' IJAZ NISAR, J.-Mumtaz Khan (26), son of Karam Dad Khan, Caste Pathan, resident of Sultan Wala Sharqi, Police Station, Musa Khel, District Mianwali has been convicted by the learned Sessions Judge, Mianwali, on 16th October, 1980 under section 302, P. P. C. For the murder of Muhammad Khan (29)- and sentenced to death and a fine of Rs, 2,000 or in default to undergo 2' years' R. I. The fine, if realized, was ordered to be paid to the heirs of the deceased, as compensation.
' He has also been convicted under section 13 of the Arms Ordinance, 1965 and sentenced to 2 years' R. I. And a fine of Rs, 200 in default thereof to undergo further R. I. For 2 months.
' We have before us the murder reference and the appeals against the convictions under sections 302, P. P. C. And 13 (20) of the Arms Ordinance.
2. The deceased was a school teacher at Middle School Chhidru. On 30th September, 1978 at about 7-30 a. m. He was going to school in the company of his father Adam Khan (P. W. 9) and his father's cousin Sardar Khan (P. W. 10) who were to purchase the gram seed. When they reached the land of Tore Khan, Mumtaz Khan appellant came out of lawar (bajra) field armed with a .12 bore gun Exh. P.
6 and raised a lalkara that he had come to avenge the murder of his brother Shaukat Hayat and that he would not spare the deceased. The latter started running. The appellant chased and fired at him. One of the shots hit the deceased in the back as a result of which he fell down. The appellant fired further shots at him. The alarm raised by the P. Ws. Attracted Abdullah Khan (given up) who also witnessed the occurrence. The appellant fled away with his gun. The deceased died at the spot.
' The motive for the occurrence was that about 4 years prior to the occurrence Shaukat Hayat brother of the appellant had been murdered in which Sultan Khan a brother of the deceased had been challaned and acquitted.
' The eye-witnesses carried the deceased to the Police Station, Musa Khel which was at a distance of 9 miles where Adam Khan (P. W. 9) lodged the F. I. R. Exh. P. G. At 10-20 a. m. On the same day with Rafi Ullah Khan Moharrir (P. W. 7). The latter prepared the injury statement Exh. P. H. And the inquest report Exh P. J. Of the deceased and sent his dead body for the post-mortem examination.
' S.-I. Muhammad Akbar (P. W. 11), reached the spot and took into possession blood-stained earth through memo. Exh. P. E. Two crime empties P. 7 and P. 8, vide memo. Exh. P. F. He arrested the appellant on 11th October, 1978. On 16th October, 1978, the appellant led to the recovery of unlicensed gun P. 6 from a pit near his baithak through memo. Exh. P. D. After completion of the investigation, the appellant was challaned.
' The gun P. 6 and empty cartridges P. 7 and P. 8 were sent to the Forensic Seience Laboratory and according to Muhammad Hanif Naseem (C. W. I), Fire Arms Expert, the crime empties had been fired from the gun Exh. P.
6.
3. The appellant denied the prosecution allegation and stated that he had been falsely involved. As to the matching of the crime empties with the gun, be stated that the said piece of evidence had been fabricated against him. He produced challan Exh. D. F. Relating to the case lodged against Ahmad Khan, first cousin of Fateh Khan P. W. In which his brother Sikandar Hayat had appeared as P. W. Copy of the deposition is Exh. B. G. According to him, the said occurrence had taken place in the Central Jail, Mianwali in 1974. He stated that his uncle Sarfraz Khan was married to the sister of Sardar Khan son of Ayub Khan. The latter had murder enmities with the relations of Fateh Khan P. W.
And that he was married to grand-daughter (nawasi) of Sardar Khan aforementioned.
4. Dr. Muhammad Akram Khan (P. W. 1), conducted autopsy on the dead body of Muhammad Khan deceased on 30th September, 1978 at 3-30 p. m. And found the following injuries thereon:-
(1) (a) Seven fire-arm wounds of entry each 1/4" x 1/4" one on the middle of chin, 6" on the front of the neck.
(b) Seven wounds of exit each 1/4" x 1/4" five on the back side of head and neck, one on left shoulder blade, and one below the left shoulder blade.
(2) A fire-arm wound of entry 1/4" x1/4" on the left side back 1/2' from the mid line, 5" above the sacrum.
' On opening the skull, he found multiple fractures on back side under injury No, (b). Membranes of the skull were injured on back side. Brain was smashed in its lower portion. Left scapula was also fractured under injury No, 1 (5). Lower jaw was fractured at the chin. Pleura was injured on the left back side. Left lung was perforated, stomach was perforated and was full of undigested food. Large intestines were full of faecal matter. Bladder was empty.
' In the opinion of doctor death was due to shock and haemorrhage caused by injuries Nos. 1 and 2 which were ante-mortem and caused by a fire-arm, The probable duration between injuries and death was immediate. Exh. P. A. Is the post-mortem report.
5. Adam Khan (P. W. 9) and Sardar Khan (P. W. 10) furnished the ocular account. Mehar Khan (P. W.
5) proved the recovery of crime empties from the spot. Nazir Ahmad F. C. (P. W. 3) and Fateh Khan (P. W. 4) proved the recovery of gun P. 6 at the instance of the appellant. S.-L, Muhammad Akbar (P.
W. 11) investigated the case and effected the recovery of the crime empties from the spot and the gun P. 6 from the appellant.
6. Relying upon the testimony of the eye-witnesses, motive and the recovery of gun P. 6 at the instance of the appellant the learned trial Court convicted and sentenced the appellant as stated above. However, the circumstance of the gun matching with the crime empties recovered from the spot was not considered worthy of credence as according to the learned trial Judge some bungling had taken place in sending the crime empties and the gun to the Foresic Science Laboratory.
7. Learned counsel for the appellant contends that the prosecution evidence is untrustworthy inasmuch as both the eye-witnesses are inimical and chance witnesses and there is nothing to corroborate them. It is further urged that there is a conflict between the medical evidence and the ocular account and that there are lot of improvements in the statements of the witnesses made before the police and at the trial. The story of motive is also assailed.
8. The prosecution case is that the appellant bore a grudge against the deceased because his brother Sultan had been challaned and acquitted for committing the murder of his brother Shaukat. It is argued that his version is unrealistic for the reason that no attempt had been made on the life of Sultan Khan aforementioned during the intervening period of four years since the taking place of that incident. The appellant did not have any greater motive against the deceased than the other members of his family. If he could murder Muhammad Khan deceased on account of murder of his brother he could have easily done away with his father Adam Khan who was accompanying him in a deserted place.
' Learned counsel for the appellant contends that it is apparent from the record that there were other enemies of the complainant also and as such the possibility of the deceased having been murdered by some one else cannot be ruled out. Adam Khan (P. W. 9), father of the deceased admitted that one Zarif Khan was murdered for which he alongwith his brother Ahmad Khan and Sardar Khan P. W. And two others was challaned. He further admitted that his brother Ahmad Khan was an eyewitness in the murder case of Wazir Khan while Mehar Khan P. W. Was the complainant.
Two of the accused of the said case were sentenced to life imprisonment while the other two were acquitted and that a revision against acquittal was still pending in the High Court when the present occurrence had taken place.
9. Learned defence counsel has pointed out a number of contradictions in the statements of the P.
Ws. Made by them before the police and at the trial about the manner in which the occurrence had taken place. According to the statement of the complainant at the trial the deceased started running on hearing lalkara of the appellant and was fired in the back but in the F. I. R there is no mention of the deceased running and being hit in the back. At the trial the eye-witnesses gave the number of shots fired by the appellant and the location of the injuries but no such mention was made in their earlier statements. There is yet another material discrepancy in the statements of the eye-witnesses. According to them the deceased was fired at from behind when he was running away but the presence of the injury on front of the neck belies their version. At the trial they stated that they were proceeding to village Chhidru to fetch the gram seed but no such explanation was given by them in their police statements. The complainant admitted that the pagdandi on which the occurrence had taken place was not a continuous one from their village to Chhidru and that a road to village Chhidru passed at a distance of II mile to the north of their wandah.
10. It is argued that not only the two eye-witnesses are closely related to the deceased and are chance witnesses but they have a long standing enmity with the family of the appellant and as such their evidence' should not be believed without independent corroboration. According to their own showing the occurrence had taken place 2 or 2 miles away from their houses when they were accompanying the deceased for the purchase of gram seed. The Courts are put on caution in assessing the evidence of chance witnesses having background of enmity and the need for close examination of their evidence is always emphasised.
' The enmity between the parties is proved by the following circumstance appearing in the evidence. Lodhi Khan P. W. Was involved in the case of knife injury to Ghazi a collateral of the appellant. Wazir Khan, the father of Mehar Khan P. W. Was murdered for which the appellant and his brothers, namely, Khizar Hayat, Sikandar Hayat and Shaukat Hayat were challaned, two of them were convicted and sentenced to life imprisonment while the other two were acquitted against whose acquittal a revision is still pending in the High Court. Besides this, there is enmity between the parties over the murder of Shaukat Hayat brother of the appellant. Mehar Khan (P. W. 5) who deposed about the recovery of crime empties from the spot is a first cousin of the deceased. Fateh Khan P. W., the recovery witness of gun P. 6 is also not an independent witness. Sikandnr Hayat, brother of the appellant had appeared as P. W. Against Ahmad Khan a first cousin of Fateh Khan P.
W. In a case under section 307/34, P. P. C.
As already stated above the circumstance of the crime empties P. 7 and P.
8. Matching with gun P. 6 has been disbelieved by the trial Court on the ground that inordinate delay had taken place in sending these articles to the Forensic Science Laboratory. The learned Court further observed that there was no explanation as to why the parcel of the gun P. 6 was not sent to the Laboratory on the same day when the crime empties were sent because by that time the gun had been recovered and wa in the custody of the police. The learned trial Judge also noticed certain interpolations in Register No, 19 where the entries regarding these article were made. Nevertheless, the trial Court believed the recovery of the gun at the instance of the appellant. Learned counsel for the appellant has argued that mere recovery of the gun would not be sufficient by itself link the appellant with the offence of murder because it does not stand connected with the offence. Further, no independent evidence has been examined to prove it.
Fateh Khan (P. W. 4) who testified to it is inimical towards the appellant and is not a resident of the village from where the recovery had taken place. According to his own admission, he lived at distance of 1 mile away from the place of recovery. He stated that there were 5/6 houses near the place of recovery but no reason appears for not associating any body from the said houses. No other public witness has been examined by the prosecution to prove the recovery. Moreso. The recovery was affected from an open and accessible place.
' For these reasons we are of the opinion that recovery of the gun from the appellant is not fully established.
11. Having considered all the pros and cons of the case, we think that the prosecution has failed to bring home the guilt to the appellant beyond all shadow of doubt. Consequently, we accept the appeals, set aside the convictions and sentences of the appellant and acquit him of the charges by giving him the benefit of doubt. He shall be set at liberty forthwith if not required in any other case.