' Muhammad Rafiq Tarar, J-- Muhammad Sharif (35) son of Ghulam Muhammad, caste Awan, resident of village Rajpur, has been convicted under section 302, P.P.C. And sentenced to death and a fine of Rs,3,000 or in default in the payment thereof to undergo R. I. For one month. He has been further directed to pay Rs,3,000 as compensation to the heirs of the deceased or in default of its payment to suffer R.I. For one year. He was tried alongwith his brother Ali Haider, Feroze Khan son of Shah Muhammad, Gul Muhammad and Walayat Khan sons of Muhammad Khan resident of village Rajpur, Muhammad Hussain son of Feroze Khan resident of Chaurpur and Adalat Khan son of Muhammad Ibrahim resident of Paharay, Police Station Lala Musa, who were acquitted vide judgment dated 29th September,1980 of the learned Additional Sessions Judge, Gujrat. The allegation against Muhammad Hussain and Adalat Khan was that they abetted the other accused to commit the murder. Muhammad Sharif convict has appealed and the case is also before us under section 374, Cr.P.C. For the confirmation of the death sentence awarded to him. Both these matters shall be disposed of by this judgment.
2. The brief facts of the prosecution case are that Abdullah deceased was employed in the army.
He had come to his village Rajpur on ten days' leave. On 23rd December, 1976 at 11 a.m. He alongwith his wife Mst. Shafia Bibi started for Kotla Arab Ali Khan in order to catch a bus for Kharian where he was posted. Bashir Ahmad complainant (since dead) and Muhammad Alam P.W. Were accompanying the couple to bid farewell. When they were going on a path in the field of one Bashir Khan, Muhammad Sharif appellant, Ali Haider, Gul Muhammad, Walayat and Feroze Khan came there from the house of Feroze Khan raising Lalkaras. Muhammad Sharif was armed with a gun and the remaining were empty-handed. In the meantime, the deceased and his companions had reached the field of Allahditto. On hearing the Lalkara, Abdullah deceased saw towards the accused persons on which Muhammad Sharif appellant fired two shots hitting him in the chest as a result of which he fell down dead. Besides the aforementioned P.Ws. Nek Alam (not produced) also saw the occurrence. The complainant and his companions took the dead body to the house of the deceased and leaving it there, Bashir Ahmad complainant went to Police Post Kakrali and reported the occurrence to Muhammad Nawaz Sub-Inspector at 1 p.m. Vide his statement Exh.P.A., on the basis of which formal F.I.R. Exh.P.A./1 was recorded at Police Station Lala Musa at 3 pm ' The motive alleged by the prosecution was that two years prior to the occurrence Bashir Ahmad complainant (since dead) had purchased trees standing in the Shamlat Deh. About 2/3 months prior to the occurrence the deceased had gone to cut the wood but he was given beating by Feroze Khan accused, etc. And five others upon which a case under section 308, P.P.C. Was registered against them. It is alleged that the accused harboured grudge against the deceased on that score.
3. After recording the statement of the complainant Muhammad Nawaz Sub-Inspector, Incharge Police Post Kakrali, reached village Rajpur. He found the dead body of the deceased lying in his house. He prepared injury statement Exh.P.B. And inquest-report Exh.P.C. And despatched the dead body to the mortuary for post-mortem examination. Then he took some blood-stained earth into his possession from the place of occurrence and made it into a sealed parcel vide memo. Exh.P.F.
He also secured an empty cartridge of .12 bore and made it into a sealed parcel vide memo.
Exh.P.G. He arrested Muhammad Sharif appellant, Ali Haider, Feroze Khan, Walayat and Gul Muhammad accused on the same day. On 27th December, 1976 Muhammad Sharif appellant, while in custody got recovered .12 bore gun (Exh.P.2), its licence (Exh.P.3) and live-cartridge (Exh.P.4) vide memo. Exh.P.J. The gun was made into a sealed parcel. After the investigation the aforesaid five accused persons were challaned. Muhammad. Hussain and Adalat Khan accused were not arrested as there was no incriminating evidence against them. In the final report submitted in Court they were shown in column No,2.
4. On 24th December, 1976 Dr.Soleman F. Elahi, Medical Officer. A.B.S. Hospital, Gujrat conducted the autopsy on the dead body of Abdullah. Deceased and found the following injuries on it:
(1) Firearm entry wound with circumferential blackening of edges measuring k" x 3/8" x directed medially and backwards over front of left side chest, 3" above and to left of left nipple.
(2) A firearm entry wound with marginal blackened edges measuring 3/8" x 1" x directed medially and backwards over the left side front of chest in anterior axillary line and 3" below pit of left axilla.
(3) A firearm entry wound 3/8" x 3/8" x directed backwards, situated on front of chest in the midline and 21" below the manubrium.
(4) A firearm entry wound 3/8" x k" x directed medially and backwards with a surrounding zone of blackening placed on the left side front of abdomen, 31" above anterior superior iliac spine (left side) and 41" to the left of the umblicus.
(5) A grazing firearm wound 1" x k" muscle deep on the front of the right side chest 4k" below right nipple. The surrounding skin was parchment like and there is slight blackening of edges.
(6) A grazing firearm wound 3/4" x k" x muscle deep placed on the lower 1/3" of right upper arm in its outer aspect in a transverse plane.
(7) A grazing firearm wound 3/.8" x k" x skin deep placed a transverse plane on the outer aspect of right side chest 3" behind injury No,5.
(8) A firearm exit wound 3/8" x k" with overted and irregular edges situated on the right back of chest over the posterior fold of right axilla.
(9) Firearm exit wound with irregularly torn and overted edges 3/8" x k" on the back of chest nearly in midline between the scapulae.
(10) Firearm exit wound with overted edges 1" x k" on back of left side chest 2" below the left shoulder blade.
(11) Firearm exit wound 3/8" x k" on the left side of back of waist over the lumbar region. All the injuries were antemortem caused by firearm. Injuries Nos. 8 to 11 were the exist wounds of injuries Nos. 1 to 4. Injuries Nos.5 to 7 were grazing superficial firearm wounds. Death was due to shock and haemorrhage resulting: from injuries Nos.1 to 11 which were collectively sufficient to cause death in the ordinary course of nature. Probable time between injury and death was instantaneous and between death and postmortem 30 hours.
5. In support of its case the prosecution examined Mst. Shafia Bibi (P.W.8) and Muhammad Alam (P.W.9). It also relied on the motive, the evidence relating to recoveries and the report of firearm expert according to which the crime empty allegedly recovered from the spot was wedded with the gun alleged to have been recovered from the appellant.
6. The appellant pleaded not guilty to the charge. Lie admitted that a case under section 308, P.P.C.
Was registered against some of his co-accused but added that it was a false case and they were discharged. He stated that he was an accused in that case. He also admitted that subsequent to the registration of the case under section 308, P.P.C. Feroze Khan, Walayat Khan, Gul Muhammad, Ali Haider alongwith some others were arrested by Ghulam Murtaza Sub-Inspector under section 107/151, Cr.P.C. On the application of Rashid son of Rehmat and on the other side Bashir complainant, Nek Alam son of Rehmat and Rashid son of Rehmat were proceeded against under section 107/151, Cr.P.C. At the instance of Feroze Khan accused. He denied having led to the recovery of .12 bore gun on 27th December,1976. He stated that he himself produced his gun and its licence before the Sub-Inspector. He maintained that he had been falsely implicated due to previous enmity. He examined Subedar Allah Ditta in his defence who stated that the deceased was on leave from 20th December,1976 to 29th December,1976, he was residing in the Unit without his family and had not been allotted any residential quarter till 20th December,1976.
7. The learned trial Judge accepted the prosecution evidence against the appellant and convicted and sentenced him as mentioned above. He however, acquitted Muhammad Hussain and Adalat Khan for want of evidence and the remaining accused, namely, Ali Haider, Feroz Khan, Gul Muhammad and Walayat Khan, by giving the benefit of doubt.
8. The learned counsel for the appellant contended that the presence of the alleged eye-witnesses at the spot is not established and in any case, their uncorroborated interested evidence, which has been rejected against as many as six co-accused cannot form basis for the conviction of the appellant. The learned State counsel, on the other hand, submitted that the ocular evidence against the appellant finds full support from the evidence relaing to recoveries and the report of fireara expert, therefore, it has been rightly relied upon by the trial Court to record a finding of conviction against the appellant.
9. Bashir Ahmad complainant was the real brother of the deceased. He could not be examined as he died before the commencement of the trial. Mst. Shafia and Muhammad Alam P.Ws. Supported the prosecution version as detailed in the earlier portion of this judgment Mst. Shafia is the widow of the deceased. Muhammad Alam P.W. Is his maternal-uncle. He belongs to a different village, namely Saido Langar, which according to him, is adjacent to village Rajpur where the occurrence took place. This witness did not give any reason for being in the company of the deceased at the time of occurrence. He simply stated that he, the deceased Bashir complainant and Mst. Shafia left the house at 8/10 a.m. And were proceeding on a Pagdandi towards Kotla Arab Ali Khan when the occurrence took place. Mst. Shafia stated that at the time of occurrence she alongwith her husband was "going back to Kharian after availing leave" and that Bashir complainant and Muhammad Alam P.W. Were accompanying them to bid farewell. Her above statement gives the impression that she had come to the village from Kharian alongwith the deceased and at the time of occurrence was going back to Kharian after the leave of the deceased had expired. However, in cross-examination she came up with the different version saying that her husband had come to the village "on three, four, five days leave" and the leave period had not yet expired when she and her husband started for Kharian "on account of daily threats" given to them by the accused. She asserted that in her police statement she had stated that the accused had given threats. She was confronted with the said statement where it was not so recorded. The story of "daily threats" by the accused having been introduced at a belated stage cannot be accepted. If the accused had really advanced any threats to the, deceased as alleged by Mst.Shafia the deceased would never have adopted the Pagdandi passing near the house of Feroze accused where all the accused had allegedly ambushed themselves. Instead of going to Kotla Arab Ali Khan through a Pagdandi passing near the house of Feroze Khan accused he could conveniently go to village Hassan.
Pachana through a safe route to catch a bus for Kharian. Mst. Shafia P.W. And Jalal Din (P.W.3) who also happens to be a close relative of the deceased, have admitted that buses for Kharian were available at village Hassan Pathana which is nearer to the village of the deceased as compared with Kotla Arab Ali Khan. Mst. Shafia stated: "....The way leading to village Hassan Pathana from our village is about half of the distance from our village to. Kotla Arab Ali Khan". She, however, volunteered that since the fare for Kharian from village Hassan Pathana was half a rupee more from Kotla Arab Ali Khan, therefore, they always boarded bus from Kotla Arab Ali Khan. This explanation does not stand to reason at all and seems to have been invented to meet the argument why the deceased chose to go to Kotla Arab Ali Khan through a Pagdandi passing by the house of Feroze Khan accused for boarding a bus for Kharian when a bus could be available from a nearer place, i,e, village Hassan Pathana. According to Mst. Shafia, her three minor children, aged 7, 5 and 2, were accompanying her on foot. In a situation like that, any body, instead of saving a petty amount of half a rupee per passenger, would prefer to catch the bus from the nearer bus- stand.
10. The statement of Subedar Allah Ditta (D.W.1) who is a disinterested person has indeed provided a fatal blow to the prosecution version that on the day of occurrence the deceased was going back to Kharian to join his Unit. He appeared with the leave record of the deceased and stated that the deceased was granted leave from 20th December,1976 to 29th December,1976; he was residing in the Unit without family and had not been allotted any residential quarter till 20th December,1976, i,e, when he proceeded on leave. Since the leave of the deceased had not yet expired and he had not been allotted any residential quarter at Kharian, there was no occasion for Mst. Shafia and her children to accompany him or for Muhammad Alam P.W. To bid them farewell. Their presence at the spot is, therefore, highly doubtful.
' It is also to be noted that no money, identity-card Zro paper was recovered from the dead body nor an luggage was found at the place of occurrence. If Mst. Shafia had been accompanying the deceased to live with him at Kharian, they must have been in possession of some luggage. Mst.
Shafia stated that their luggage consisted of small attache-case which was with Muhammad Alam P.W. The investigating officer stated that no attache-case was produced before him during the investigation. The above statement of Mst. Shafia does not ring. True. If Mst. Shafia and her children had been accompanying the deceased to settle down with him at Kharian, they must have been in possession of some house hold articles to run a new house. Thus, the claim of the prosecution that on the day of occurrence the deceased alon.Gwith Mst. Shafia, Bashir Ahmad complainant and Muhammad Alam P.W. Was going to Kotla Arab All Khan for catching a bus for Kharian, remains unsubstantiated.
11. In this case F.I.R. Was lodged by Bashir Ahmad (since dead), real brother of the deceased.
Chulam Murtaza A.S.I. (P.W.10) stated that aforesaid Bashir Ahmad was a bad-character of bundle- A during the period of his posting at Police Post Kakr-ali. It is also in evidence that he was involved in a number of criminal cases, including a murder case in which he was sentenced to death by the trial Court but was acquitted in appeal. Muhammad Nawaz sub-Inspector stated that the accused had enmity with one Abdul Malik of Kotla Arab Ali Khan and Bashir Ahmad complainant was a party-man of aforesaid Abdul Malik. He further stated that no incriminating evidence was produced before him against Muhammad Hussain and Adalat Khan accused and he did not arrest them. The learned trial Judge has also observed that there is no evidence against them. To the extent of these two accused, it can be safely said that they were falsely implicated. It is the prosecution's own case that there was previous enmity between the parties. Ms.t. Shafia is the widow of the deceased and Muhammad Alam is his maternal-uncle. Both of them are therefore interested witnesses and their evidence requires corroboration. The learned trial Judge also looked for corroboration of their statements and found it in the evidence relating to recoveries and the report of firearms expert, according to which the crime empty recovered from the spot, had been fired from the gun alleged to have been recovered from the appellant. Jalal Din (P.W.3) and Muhammad Alam (P.W.9) who witnessed the recoveries of the crime empty and the gun are also interested witnesses. Muhammad Alam P.W. As already mentioned, is maternal-uncle of the deceased while Jalal Din P.W. Is the son of the real uncle of Muhammad Alam P.W. Jalal P.W.
Admitted that in an incident of cross-firing he was a co-accused of Bashir Ahmad complainant. He further admitted that he was a co-accused of Bashir Ahmad complainant in a murder case in which Bashir Ahmad was sentenced to death by the trial Court but was acquitted in appeal. It is thus abundantly proved that he is a party man of the complainant and is his associate in crime. He stated that he joined the police of his own when other persons were already present with the police. He further stated that some other persons had also gone to the place of recovery of gun.
Strangely enough, only close relatives of the deceased were cited as recovery witnesses although unconnected persons were also available at the time of the alleged recovery of gun. It need be mentioned that the gun in question was licensed in the name of the appellant and this fact must have been known to the Investigating Officer but he did not conduct any raid on the house of the appellant before 27th December,1976 obviously for the reason that he wanted to show the recovery at his instance. The mere recovery of gun from the appellant is not an incriminating circumstance as it was his licensed gun. It was allegedly recovered on 27th December,1976. According to Mehdi Khan F.C., the crime empty was kept in the Malkhana on 24th December,1976 and was delivered to Muhammad Siddiq F.C. On 27th December,1976 for onward transmission to Forensic Science Laboratory. Muhammad Siddiq F.C. Stated that he delivered the .Parcel containing the crime empty in the Forensic Science Laboratory on 29th December, 1976. There is no explanation why the despatch, of the crime empty was delayed till the recoVery of the gun. Since the crime empty and the gun were with the police on 27th December, 1976, the report of the firearm expert is of no consequence. In the circumstances, the alleged recoveries and the report of the firearms expert do not furnish any corroboration to the statements of the eye-witnesses.
12. It will not be out of place to mention that Mst. Shafia could not even specify the place of occurrence. The site plan which has been very carelessly prepared, shows the Pagdandi and the place of occurrence to the last of the house of Fateh Muhammad son of Nawab. Mst. Shafia first stated that the Pagdandi over which they were proceeding, was towards the western side of the house of Fateh Muhammad son of Nawab but in reply to a Court question she took a sommersault saying that the Pagdandi was three or four Karams towards the east of Katcha path leading to Kotla Arab Ali. Khan. The site plan does not show any Pagdandi to the west of house of Fateh Muhammad son of Nawab although a Katcha path leading to village Ghaurpur has been shown.
The Pagdandi/place of occurrence as shown in the site plan falls to the eastern side of the house of Fateh Muhammad son of Nawab. Mst. Shafia was thus not certain about the place of occurrence.
Furthermore, both the eye-witnesses made contradictory statements and introduced material improvements. In examination-in-chief Mst. Shafia stated that the accused came in the field of one Allah Ditta and from there Muhammad Sharif appellant made the fire. She was confronted with her statement before the police wherein it was not so recorded. She denied having stated before the police that the fires were made from the house of Feroze Khan where the accused were lying in ambush. She was confronted with her statement before the police wherein it was so recorded. She further stated that Sharif appellant had come two or three paces ahead of his co-accused when he made the fire. The statement of Muhammad Alam P.W. Also suffers from similar defects. In their statements before the police with which they were duly confronted, they had stated that the accused were lying in ambush in the house of Feroze Khan and on seeing the deceased Muhammad Sharif appellant fired at him but at the trial they made an attempt to bring the appellant close to the victim perhaps with a view to justify the presence of blackening around the wounds. Again, at the trial both of them stated that the deceased died there and then at the spot and they brought the dead body to his house, but in their statements before the police with which they were duly confronted, they had stated that the deceased expired after he was brought to his house. Obviously, this improvement was made to bring their statements in line with the medical evidence, according to which the time between the injury and death was instantaneous.
The occurrence took place near the inhabited houses but no independent and disinterested person was produced by the prosecution in support of its case. Jalal Din (P.W.3) admitted that seven or eight persons lived in the house of Muhammad Sharif son of Fateh Muhammad three or four persons resided in the house of Fateh Muhammad son of Nawab and six or seven persons in the house of Faqir Muhammad and the place of occurrence was visible from outside the above- mentioned houses.
13. After giving our careful consideration to the entire evidence and the arguments addressed by the learned counsel for the parties, we feel inclined to the view that the case against the appellant is not free from doubt and it will be unsafe to maintain his conviction on the uncorroborated interested evidence of Mst. Shafia and Muhammad Alam P.Ws. We, therefore, allow his appeal, set aside his conviction and sentence and acquit him of the charge against him. He shall be set at liberty forthwith if not required to be detained in any other case. The death sentence is not confirmed.