' ASLAM RIAZ HUSSAIN, J.-This is an appeal by Mushtaq Ahmad against the acquittal of Muhammad Afzal and Abdul Khaliq respondents.
2. The occurrence in this case took place on 10th of March, 1975 at 3-30 p.m. In the area of Dhok Sihhat, Village Jandot, District Jhelum. The F. I. R. Was lodged by Basharat Ali (P. W. 14) at Police Station Sohawa at 4-15 p.m. On the same day.
' The prosecution story as given in the F. I. R. Is, briefly, that on 10th of March, 1975, Basharat Ali P. W. 1 (the first informant) and his maternal uncle Muhammad Siddiq (deceased) came from Rawalpindi to their Village land ot. They started back for Rawalpindi at about 3-30 p.m, and proceeded in the direction of Sargodha Bus Stand. They had hardly gone about a mile from the village and bad reached Sadowala Road in the area of Dhok Sehat. Muhammad Siddiq was going ahead of Basharat Ali P. W. Muhammad Afzal respondent and Muhammad Nazeer (co-accused) armed with 12 bore guns, Abdul Khaliq respondent. Armed with a pistol came from behind them. Muhammad Afzal fired at the deceased with his '12 bore gun, hitting him on his forehead. Immediately thereafter Muhammad Nazeer (co-accused) fired a shot with his gun which also hit the deceased on his forehead. Thereafter, Abdul Khaliq raised a Lalkara and fired a pistol shot in the air. Muhammad Siddiq, on receiving the injuries, fell down. While this was happening Basharat Ali (the first informant) kept himself away out of fear. All the three assailants then came over to the dead body of Muhammad Siddiq and picked up his 7 mm. Licensed rifle which he (deceased) was carrying.
They also removed his wrist-watch and two golden rings. They then left the spot alongwith their respective weapons. The occurrence was seen by Muhammad Bashir (P. W. 15) and Niaz Ali (not produced) residents of Jandot, who happened to be passing by that way at that time.
3. The motive for the occurrence is stated to be that about an year before the present incident Abdul Khaliq respondent borrowed Rs, 500 from Zafar Iqbal which the latter had sent to him from England through money order. About nine months later Zafar Iqbal came over and asked Abdul Khaliq to clear the debt. Muhammad Siddiq deceased maternal uncle of Zafar Iqbal also asked Abdul Khaliq to pay up the money but all in vain. A day before the occurrence, on demand, an altercation took place in Rawalpindi between Muhammad Siddiq (deceased) and Abdul Khaliq respondent. The latter threatened the deceased to teach him a lesson.
4. After leaving some P. Ws. To guard the dead body Basharat Ali (P. W. 14) went and lodged the report at the Police Station, Sohawa at about 5-30 p.m. Which was recorded by Muhammad Anwar, A. S.-I. (P. W. 12), who thereafter went to the spot, prepared the necessary documents and sent the dead body for post-mortem examination. The next day Ababeel Khanzada, A. S. I. (P. W. 17) took over the investigation of the case from Muhammad Anwar, A. S.I. And reached the spot at 6-30 p.m.
He took into possession some blood-stained earth from the spot. He also picked up and took into possession a '12 bore empty (P. 1), which he found lying near the place of occurrence. Muhammad Afzal respondents was arrested by Muhammad Masud Khan, S.-I. (P. W. 16), S. H. O., P. S. Sohawa on 14-3-1975 at 6-30 p.m. When he (i,e, Muhammad Afzal respondent) was going on the thoroughfare at a distance of about If mile from Village Jandot. At the time of his arrest Muhammad Afzal was carrying a licensed 7 mm. Rifle (P. 12), with 3 bullets (P. 12/1-3) in it, belonging to Muhammad Siddiq (deceased). These were taken into possession by the S. H.
0. Muhammad Afzal respondent was also in possession of the licence of the said rifle, which too, was taken into possession by him vide Memo. Exh. P. G. Two days later, on 16.3-1975, Ababeel Khanzada A. S.I. (P. W. 17), the Investigating Officer arrested Abdul Khaliq and Muhammad Nazeer.
On the same day (i,e, on 16-3-1975), Muhammad Afzal respondent is stated to have led to the recovery of a gun (P. 14) belonging to his brother Azram and a wrist watch (P. 15) belonging to the deceased, from his house. Nine days later, on 24-3-1975, Muhammad Afzal respondent led to the recovery of a golden ring (P. 16) belonging to the deceased.
' The '12 bore crime empty (P. 1) found at the spot was sent to the Forensic Expert by Ababeel Ichanzacitt, A. S.-I. QH the 13th of March, 1975 at Lahore through a foot constable who delivered it at the said laboratory the next day. The crime empty was, however, returned with some objection.
After removing the objection it was again sent to the said laboratory and was received by the Forensic Expert on 17-3-1975. Gun P. 14 recovered on 16-3-1975 at the instance of Muhammad Afzal respondent, was also sent to the said laboratory on 19-3.1975. According to the report of Abdur Rashid, Forensic Expert, the crime empty (P. 1) matched with the gun (P. 14).
' The post-mortem examination revealed the following injuries on the person of the deceased :- "(1) Lacerated wound with irregular margin and skull bones are irregularly out of frontal bone of left side, mis-parietal bone 7" x 1 f wide. Bones in the middle part are missing. The width 2" in the middle.
Cranial cavity is empty. The brain matter was in a piece of cloth separately lying near the dead body. No pallet of bullet found in the brain matter. There was no charring in the area.
(2) Lacerated wound on right side of forehead, 1" X 1/4anial deep 1' above the inner margin of eye- brow.
(3) Exit of fire-arm injury on the right side of occipital area of having the size of 14 x 1 averted margins of the wound 4' above and posterior to the right ear.
(4) Lacerated wound left temporal area running from before backwards having the size cutting the left ear."
' All the bones of the skull were found to be fractured as also the base of the skull. Cranial cavity was empty and membrane were missing.
5. After completion of the investigation all the 3 accused were sent up for trial where the prosecution relied upon the ocular testimony of Basharat Ali (P. W. 14). Bashir (P, W. 15) ; the evidence of recovery of gun (P. 14) which matched with the '12 bore crime empty. (P. 1) recovered from the spot; recovery of licensed 7. Mm. Rifle with 3 bullets in it, belonging to the deceased, which Muhammad Afzal respondent was carrying at the time of his arrest ; recoveries of the watch and the golden ring belonging to the deceased at the instance of Muhammad Afzal respondent ; the medical evidence and the evidence of motive.
6. At the trial the accused denied their guilt and pleaded innocence: They also denied the aforesaid recoveries and gave the following explanation :- "From the Khasra number on which the house of the deceased has been constructed, our cousin Abdul Mahroof sold land to Hukam Dad son of Ghulam Qadir, a door of the house of the deceased opened upon the land sold and his water from the house also drained over it. It was pre-empted by Mansab Dad, brother of the deceased, my brother Azram and Arshad Mahmood minor through Nazeer accused and wife of Hukam Dad. First decree was granted in favour of Arshad Mahmood and second in favour of my brother Azram and for this grudge I have been falsely involved.
' Our father had appeared as a witness in a case under section 307, P. P. C against Niaz Ali and Bashir P. Ws. And so they have also falsely involved us."
' Dr. Nasib Awan, Professor of Forensic Medicines and Toxicology, King Edward Medical College, Lahore, was produced as a defence witness. His evidence is mainly to the effect that the injuries on the hand of the deceased had been caused by a blunt weapon.
6. The learned trial Judge (Sessions Judge, Jhelum) believed the prosecution evidence as far as Muhammad Afzal and Abdul Khaliq respondent are concerned, and convicted them under section 302/34, P. P. C. He sentenced the two respondents to death for the said offence and a fine of Rs, 2,000 each or in default of payment of fine to further undergo R. I. For 2 years each. He also convicted them under. Section 379/34, P. P. C. For having stolen the 7 mm. Rifle of the deceased and sentenced each of them to 2 years' R. I. Muhammad Afzal respondent was also convicted under section 411, P. P. C. And sentenced to 2 years' R. I., for being in possession of the stolen 7 mm, rifle belonging to Muhammad Siddiq deceased. Nazir co-accused was, however, acquitted on being given benefit of doubt.
' The two respondents filed an appeal against their conviction and sentences before the High Court, which was accepted vide the impugned judgment dated 22-11-1978, and the respondents were acquitted.
7. Feeling aggrieved Mushtaq Ahmad appellant moved this Court for leave to appeal against their acquittal.
The learned counsel for the appellant assailed the impugned judgment, inter alia, on the ground that one of the eye-witnesses namely Muhammad Bashir, was not related to the deceased and is an independent witness ; that there is no contradiction between the medical evidence and the ocular testimony and that the High Court had wrongly disbelieved the recovery of crime empty (P.
1) found from the spot. Leave was granted by this Court on 6-2-1980, to consider these questions and see whether miscarriage of justice had not taken place in this case.
8. We have heard the learned counsel for the parties for two days and gone through both the impugned judgment as well as the entire evidence on the record and reappraised the evidence.
We feel that there are some glaring defects in the prosecution evidence which cast grave doubt on the veracity of its case. In the first place, as already mentioned above, according to the F. I. R.
Muhammad Afzal and Nazir (acquitted accused) who were following the deceased, fired shots at him with their respective '12 bore guns, each of which hit the deceased on his forehead and it is, thereafter, that Abdul Khaliq respondent raised Lalkara and fired a shot in the air with his pistol. But since the medical evidence revealed that both the wounds of entry were on the front side of the head of the deceased i,e, on his forehead. The eye-witnesses, therefore, changed the version during their statements at the trial and stated that Abdul Khaliq had raised Lalkara first whereupon Muhammad Siddiq (deceased) turned his head to look back and it is then that Muhammad Afzal and Muhammad Nazeer fired shots at his forehead, with their respective guns. This does not reflect very favourably on the eye-witnesses who have evidently changed the version to bring it in conformity with the medical evidence.
9. Secondly, a close examination of the nature and dimension of the injuries found on the forehead of the deceased, keeping in view that according to the witnesses the respondents had fired at the deceased at least from a distance of 9/12 feet, we do not feel inclined to believe that these injuries were the result of -12 bore gun shots. Rather they appear to be the result of rifle shots, for had they been caused by a 12 bore gun, there would certainly have some stray pallet marks on the face or the body of the deceased, because it is well-known that the pallets of a '12 bore gun spread to some extent when fired from a distance of between 9 and 12 feet. As such the medical evidence also falsifies the evidence given by the eye-witnesses.
10. Again it is surprising that Muhammad Anwar, A. S.-I. Who visited the spot immediately after the occurrence failed to notice the empty cartridge (Exh. P. 1) and did not mention its presence in the inquest report prepared by him. It is stated to have been found by Ababeel A. S.-I. (P. W. 17) on the next day. This crime empty (P. 1) was sent to the Forensic Laboratory on the 13th of March, 1975 where it was received on the next day (i,e, on 14-3-1975). We notice that it was returned by the Forensic Expert due to some defect. The A. S.-L removed the defect and sent the empty cartridge back to the Laboratory, where it was received again on 17-3-1975. It is, therefore, evident that the A.
S.-I. Had sent it to the Forensic Laboratory for the second time on 16-3-1975, i,e, on the very day on which gun (P. 14) is stated to have been recovered at the instance of Muhammad Afzal respondent.
Subsequently gun (P. 14) was also sent to the Forensic Expert which reached him on the 19th of March, 1975. This sequence of dates lends support to the contention raised by the respondents' counsel that the empty cartridge (P. 1) was not the one alleged to have been found from the spot on the 11th of March, 1975, but had been manufactured subsequently, by firing a shot from the gun (P. 14) after the gun was recovered on the 16th of March, 1975.
11. Another noteworthy feature of the case is that the occurrence is alleged to have Taken place at 3-30 p.m. But the post-mortem examination revealed that the stomach, the small intestines as well as large intestines of the deceased were found to be completely empty. This lends support to the contention of the respondents' counsel that the occurrence had, in fact, taken place in the early hours of the morning of 10th of March, 1975, after he had evacuated himself ; that the deceased was alone at that time and that no one had seen the occurrence.
12. In view of the above discussion we are of the view that the above noted features render the prosecution version as given by the eye-witnesses (both of whom have been correctly found by both the learned Courts below to be related to the deceased). We are also of the view that the learned Division Bench of the High Court was justified in acquitting the respondents for the reasons given by it in the impugned judgment. We do not, therefore, consider it a fit case for interference.
The appeal is consequently dismissed.
13. The accused have already been ordered to be released forthwith, through a short order dated 4-12-1983.