1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to the convict Muhammad Nawaz to examine whether the Courts while acquitting the two co-accused of the appellant had not disbelieved the two eye-witnesses to an extent and in a manner to require strong independent corroboration of their testimony necessary before the appellant could be convicted under section 302, P. P. C. And sentenced to life imprisonment.
2. Aitbar Khan deceased, son of Muhammad Khan (P. W. 8), was suspected of maintaining illicit relations with Jawahir Khatoon, a widowed sister of the appellant Muhammad Nawaz. Muhammad Mumtaz, the 'acquitted accused, is a cousin and brother-in-law of Muhammad Nawaz and Muhammad Tariq, another acquitted accused was the son of Muhammad Mumtaz. Muhammad Khan, the father of the deceased had, a few months before the murder of his son, approached Allah Yar; father of Muhammad Nawaz appellant, in the company of his brothers Mansab Khan and Nur Muhammad to assure him and his family that there was no truth in the suspicion and that the deceased was not involved in any such relationship. Apparently he had succeeded in convincing them of this. Still, in order to ensure the safety of the deceased he had despatched him to Lodhran where also Muhammad Khan had his lands. About a month before the occurrence the deceased had come to the village Shakkarkot in district Sargodha on the occasion of death of his uncle Mansab Khan. On the morning of 15th of May, 1974, about half an hour after sunrise the deceased came out of his house and was proceeding to the fields to ease himself. Muhammad Khan (P. W.
3. 8), his father, followed him. As the deceased reached in front of his dhera the appellant alongwith his two companions Mumtaz and Muhammad Tariq, all armed with shot-guns came out of hiding and intercepted him. He retraced his steps, tried to run in the direction from which he was coming.
4. He was pursued by the appellant and his two companions. Muhammad Nawaz reaching close to the deceased fired at him from behind. Muhammad Mumtaz raised a Lalkara. Muhammad Tariq fired a second shot while the deceased had fallen on the ground but missed him. Muhammad Mumtaz fired in the air and all the accused retreated from the spot. Aitbar Khan expired then and there. Leaving the Chowkidar with the dead body, Muhammad Khan (P. W. 8) went to the Police Station Nowshera at a distance of 3 miles from there and lodged the report at 8.00 a.m.
5. Dr. Muhammad Bashir (P. W. 1) performed the autopsy and found the following injuries on the dead body of Aitbar Khan :- "(1) A fire-arm wound of entrance 2" x 1" eliptical on left side of neck penetrating deep into neck and left cheek, 2' below and backwards to the left ear. The edges of the wound were inverted, tattooed and blackened. There were wounds of exit measuring 4' x -- vertical on left cheek 2" from left ear ; 1" x ----- just in front of left ear and ----- x --- below the left eyelid near medial side. The edges of the wound were everted. All the passage of the wounds was blackened at places. There was fracture of upper and lower jaws on left side with cutting of left common carotid artery.
(2) Abrasion 3/4" x 1/4" just above the left eye brew.
(3) An abrasion 3/4' x 1/4' on left side of forehead.
(4) An abrasion 1/4" x 1/4' on back of left elbow joint." - The doctor was of the opinion that the fire-arm injury was caused by a bullet. As regards the contents of stomach and bladder the doctor stated as follows "From the contents of the stomach and its condition, I can say that the deceased's stomach had emptied after about one and half hours after taking his last meals. From the condition of the bladder, I am of the opinion, that the deceased had urinated and emptied his bladder before death."
6. The stomach as well as the bladder of Aitbar Khan was found to be healthy and empty. On further cross-examination the doctor stated as follows :-- "The stomach of the deceased had been evacuated before death. There may be 4 to 6 ounces of urine present in the bladder of the deceased if it was full. The bladder of the deceased in this case was empty, by that I mean that it contained few C. C. Of urine. There is possibility that due to fear and shock, the deceased had emptied his bladder. I had not noted the signs of urine of the (sic) clothes of the deceased at the time of his post-mortem examination."
7. The investigation of the case was taken up by Manzoor Hussain Shah (P. W. 10) who recovered blood-stained earth from the spot and arrested the three accused on 22-5-1974. Tariq accused led to the recovery of a gun on 27-5-1974. It was a licensed weapon. Licensed rifles of Muhammad Mumtaz and Muhammad Nawaz appellants, were recovered on 31-5-1974. On 2-6-1974 the appellant led to the recovery of 12 bore gun which was not licensed.
8. The appellant denied that he or others of his family suspected the deceased of maintaining illicit relations with Mst. Jawahir Khatoon, his sister. He denied having fired at and caused the death of Aitbar Khan. He denied having led to the recovery of the gun. His other co-accused also in similar terms denied their participation, presence or role in the occurrence.
9. The trial Court considered Mian Muhammad (P. W. 9) to be an independent witness and considered him and Muhammad Khan to be natural witnesses of the occurrence. The recovery of the gun from Muhammad Nawaz appellant was held to provide the corroboration. In the case of Tariq accused only motive was held to corroborate the prosecution case. In arriving at the guilt of the accused charged at the trial Court held as follows "While I am satisfied that the two eye-witnesses were present at the spot as stated by them, the next question as to how far to accept their statements calls for a more anxious analysis. Keeping in view the incorrigible tendency of the people of this 1llaqa to add innocent persons with those guilty, we have to satisfy as to whether each and every accused participated in the occurrence. The role ascribed to Mumtaz accused is superfluous as there was no need for any body to exhort Nawaz and Tariq accused to fire at the deceased, especially when they had direct motive for the offence.
10. Moreover had Mumtaz participated in the occurrence he must have fired at the deceased, having an equal motive he would not have remained content with raising a lalkara and firing in the air while retreating."
11. Mumtaz was acquitted on being given the benefit of doubt but Nawaz and Tariq were held guilty of the offence under section 302/34, P. P. C. And sentenced to undergo life imprisonment and to pay a fine of Rs. 1,500 each or in default two years' R. I. The fine if recovered was to be paid as compen-- sation to the heirs of the deceased.
12. The High Court also held Mian Muhammad to be an independent witness rather related to the accused party. The two witnesses were found to be not interested witnesses and for that reason the necessity. Of independent corroboration was not felt. The motive was found established.
13. However, Tariq accused was acquitted by the High Court on the following reasoning :-- "In the case of Muhammad Tariq, on the same principle a similar view was possible. Part attributed to Muhammad Tariq is that he fired but his fire missed the target. The deceased., at the time he was fired at, was very close to the assailants. From such a close range there was no possibility that a fire from a shot-gun would miss the target. The attacking party had waylaid the deceased in the earlier hours of the morning. They could not anticipate any resistance. Even one assailant armed with a fire could have accomplished the task. The participation of Muhammad. Tariq appellant, therefore, appears to be doubtful. - His appeal is accepted and he is acquitted. I give benefit of doubt to him also."
14. The learned counsel for the appellant, Mr. Abid Hassan Minto, contended that the same two witnesses who have been considered dependable and credit--worthy had made a categorical statement that Mumtaz not only raised a lalkara but fired in the air and Tariq had from a close range fired at the deceased but bad missed him. Their statement involving Mumtaz and Tariq was disbelieved in a manner and to an extent as to impair the consistency and credibility of their statements. It was not a case where applying the safer principle of administration of justice, benefit of doubt had been extended to' the two co-accused without impairing the integrity or fabric of the testimony of the two eye-witnesses. There was, according to the learned counsel for the appellant, a clear and obvious discrepancy between medical evidence and the prosecution case. It was that the deceased according to the witness was going to evacuate his bowels or to urinate while the doctor found that his bladder was empty and his bowels had evacuated. This aspect of the discrepancy in evidence was not at all referred to or noted by the two Courts dealing with the case.
15. Besides, Muhammad Khan had given no reason for his following his son and while preparing the inquest report the Investigating Officer had taken his purpose to be the same as that of the deceased, that is, to ease himself out .In the fields. However, at the trial he gave an altogether different reason for his going behind the deceased at the time when he was fired at. Another discrepancy pointed out by the learned counsel for the petitioner is with regard to the nature of the injury on the person of the deceased. It had blackening and charring which suggested that the deceased had been fired at from a close range from behind. He was taken unawares, and not as stated by the prosecution witnesses pursued and fired at while running from the appellant and his companions. Mian Muhammad has been taken by the learned counsel for the appellant to be a chance witness who has not satisfactorily explained his presence at the spot and who has given an uninspiring statement with regard to the occurrence. He could not hear the conversation between the appellant and his associates and the deceased from a distance of 150 feet.
16. There is an inconsistency in the medical evidence and the ocular evidence which it is not possible to explain away or reconcile. The doctor was put a specific question to which his reply was "the stomach of the deceased had been evacuated before death" and further that "the deceased had urinated and emptied his bladder before death." Muhammad Khan (P. W. 8) stated that at about sunrise the deceased went out to case himself and that he was fired at before he could ease himself, within minutes of his coming out of the house. This discrepancy or inconsistency has the effect of impairing the strength of the testimony of Muhammad Khan (P. W. 8), for it was he alone who claimed knowledge of the fact that the deceased was feeling stomachache and had just gone out to ease himself.
17. Another factor which affects the testimony of Muhammad Khan (P. W. 8) is the somewhat unsatisfactory explanation for his presence at the scene when the occurrence took place. In the First Information Report he just mentioned that he was following his son who was going to ease himself. Now everyone knows that that is not the occasion when one adult follows another unless there be an identity of purpose. The Investigating Officer assumed such an identity of purpose when he so recorded it in the inquest report. Muhammad Khan (P. W. 8) however gave an altogether different reason for going in the same direction so as to be present at the time of occurrence. It was to reach the dhara, "to smoke Hukka and to cough and sit there" "with no definite programme" or time in view. Such a purpose and the exact timing of the outing of the two would appear to be coincidental having more an element of chance than naturalness.
18. Another discordant element in the prosecution case is the nature of the injury actually caused to the deceased and the ocular evidence about it. In the first version given by Muhammad Khan (P. W, 8) in the F. I. R. There is no mention of the assailant pursuing the deceased to some distance, of reaching close to him and then firing at him. The tattoing and blackening of the wound of entry and the location of the exit wound make it somewhat unlikely to have been caused in hot pursuit, in the process of assailant running after his victim who was running for his life. Mian Muhammad (P.
19. W. 9) stated that the appellant fired at the deceased from a distance of 1 1/2 karams but the injury does not bear it out.
20. Man Khan (P. W. 9) who has been taken to be an independent witness more related to the accused than to the complainant side, is not really so. About his connection with the appellant he stated that a sister of the appellant was the wife of his Mulwair Adalat Khan. He was himself tried on a murder charge alongwith Mumtaz co-accused of the appellant and others acquitted. The maternal grandfather of Mian Muhammad and the paternal grandfather of complainant Muhammad Khan were real brothers as per statement of Muhammad Khan. Mian Muhammad expressed ignorance of such relationship. Anwar Beg (P. W. 7) claimed to be first cousin of Muhammad Khan (P. W. 8) and further said that his sister Mst. Thari was married to Qasam Khan a "Khala Zad" of Muhammad. Khan complainant and their daughter Mst. Khedeja was married to Mian Muhammad (P. W. 9). Now Mian Muhammad admitted his marriage to Mst. Khedeja daughter of Qasam but expressed ignorance about Qasam being Khala Zad of Muhammad Khan. In rural communities such ignorance about living relatives cannot be readily accepted or condoned. The object of such replies was obviously to place in low key the connections with the complainant and to highlight or emphasize the association with the appellant to lend added credibility to his testimony. He is a chance witness. His claim to have heard the lalkara or conversation between the accused and the deceased from a distance of 150 ft. Does not appear worthy of credit.
21. On the facts of the case we consider the claim of Muhammad Khan (P. W. 8) and Mian Muhammad (P. W. 9) to be eye-witnesses of the occurrence resulting in the death of Aitbar Khan not free from reasonable doubt. Hence we accept his appeal, set aside the conviction and sentence of the appellant and direct his release forthwith unless his detention is required in some other case.
22. M. Z. M.