' Talib Hussain, appellant alongwith his father Inayat and his real brother Mansha residents of village Kanjri Kot, Police Station Nawan Kot, Lahore, were tried by the Sessions Judge, Lahore, for having caused the murder of Muhammad Bashir and for having assaulted Muhammad Bakhsh and Riaz P. Ws. With fire-arms after committing trespass into the house of Muhammad Baksh, P. W.
On 6th September, 1979 at about 6.00 p. m. The learned Sessions Judge acquitted lnayat and Mansha, co-accused vide judgment dated 28th February, 1980 but convicted the appellant and sentenced him to undergo life imprisonment and a fine of Rs, 5,000 under section 302, P. P. C. Or in default to undergo further R. I. For 2 years. He was also sentenced to 7 years' R. I. And a fine of Rs, 2,000 or in default to undergo further R. I. For 1 year under section 307, P. P. C. And was also awarded a sentence of 7 years' R. I. And a fine of Rs, 1,000 or in dafault to undergo 1 year further R. I, under section 449, P. P. C. All these sentences are to run concurrently. It was also directed that in case of recovery of fine, Rs, 5,000 shall be paid to the heirs of the deceased as compensation while the remaining fine shall be paid to Muhammad Bakhsh son of Taj Din and his son Muhammad Baig in equal shares. Hence this appeal.
2. The prosecution case in brief is that the houses of the accused and the complainant party were contiguous to each other. About 54 months back and 8/9 days prior to the murder of Bashir deceased, Talib Hussain accused asked Muhammad Bakhsh P. W. To restrain his son Riaz P. W.
From going upstairs of his house because it violated their privacy. Riaz P. W. Used to go upstairs because the latrine of their house was situated there. Muhammad Bakhsh P. W. Told Talib Hussain accused that ladies of their family were as respectable as others living in the neighbourhood and that they had no intention of causing any dishonour to them in any manner.
3. On 6th September, 1979 about 6 p. m. Riaz P. W. Went upstairs to ease himself. Talib Hussain accused who was present in his courtyard abused Riaz P. W. Stating as to why he was not desisting from coming on the roof top despite their protests. Riaz P. W. Also retaliated and came down while abusing him. About 15 minutes later Talib Hussain and Mansha accused armed with guns and Inayat accused armed with a revolver broke open the outer door of the house of Muhammad Bakhsh P. W. And entered there. At that time Bashir deceased, Riaz, Muhammad Bakhsh, Muhammad Aslam and Mst. Zainab P. Ws. Were present there. Bashir deceased was sitting towards the foot side of the cot lying in the courtyard of the house. Riaz P. W. Was sating in the middle, while his father Muhammad Bakhsh P. W. Was sitting towards the head of the cot. Mst. Zainab (given up P. W.) was also sitting near them on another cot with her son Muhammad Aslam P. W. Mansha and Talib Hussain accused fired from their respective guns as a result of which Bashir deceased and Muhammad Bakhsh P. W. Were injured. Thereafter, Inayat accused fired with a revolver hitting Riaz P. W. On the head. Bashir deceased died on the spot. The accused then fled away while firing shots.
4. On receiving information that a fight has taken place Muhammad Alam S.-I, P. W. 13 stated to have reached the spot of his own. He recorded the statement Exh. P. G. Of Muhammad Bakhsh, P. W.
At the spot and this statement was sent to the Police Station Nawan Kot, where on the basis of the statement formal F.
1. R. Exh. P. G/1 was recorded on 7th September, 1979 at 8-00 a. m. Though the distance between the place of occurrence and the police Station Nawan Kot is only 2 miles. The S.
1. Took into possession two empties Exh. P. 4/1-2 from there and made them into a sealed parcel vide Memo. Exh. P. J. He also took into possession taik (Rest) Exh. P. 5 of gun through Memo. P. K A. S. I. Also secured six pellets Exh. P. 6/1-6 from the spot and sealed them into a parcel through Memo, Exb, P. L. He then took into possession broken parts (planks) of the doors which were forcibly broken open by the accused vide Memo. Exh. P. M.
5. The occurrence took place on 6th September, 1979, yet the accused were not arrested till 13th September, 1979 as it is stated that the accused appeared of their own before the Investigating Officer who arrested them. There is no explanation on record as to why the Police did not at all apprehend them in these 7 days. Then on 19th' September, 1979 Mansha accused while in the Police custody led to the recovery of gun Exh. P. 9 from his house after opening the lock Exh. P.K. With key Exh. P.
7. The gun was without a taik (Rest) and according to the witness taik recovered from the spot fitted in gun Exh. P. 9 and bore the same number. The gun was seized vide Memo. Exh. P. S. Talib Hussain, according to prosecution led to the recovery of carbine Exh. P. 10 which was lying buried behind a Darba on 27th September, 1979. On the same day Inayat accused in police custody led to the recovery of Revolver Exh. P. 11 from the graveyard of Baba Farid. The site plan Exh. P. E. Of the place of occurrence was prepared by Inam Ali Shah, Draftsman P. W.
2. The prosecution during trial relied on the medical evidence motive, ocular evidence of Muhammad Riaz P. W.
7. Muhammad Bakhsh P. W. 9 and recoveries of gun P. 9 from Mansha, revolver P. 11 from Inayat and carbine P. 10 from Talib Hussain, appellant. Muhammad Riaz P. W. 7 is first cousin (Khala Zad) of the deceased and son of P. W. 9 Muhammad Bakhsh. Muhammad Aslam P. W. 8 is first cousin of the deceased as well of P. W.
7. Muhammad Bakhsh P. W. 9 is husband of the sister of deceased's mother. The learned Sessions Judge disbelieved the recoveries as no independent witness was produced by the prosecution to prove them. Moreover, the recoveries were effected admittedly from the places accessible to the public.
6. The medical evidence is contained in the statement of Dr. Sabir Ali, P. W. Who had conducted the autopsy on the deceased on 8th September, 1979 at 11-30 a. m. And had examined Muhammad Bakhsh and Riaz, the injured P. Ws. The injuries found on the dead body were one entry and one exit wound as a result of single fire of a shot gun and the other two abrasions were the result of friction either due to rubbing of the body against hard rough object or friction of any hard or rough object with the body. As regards the injuries on the body of Muhammad Bakhsh P. W. The doctor opined that the same were simple caused by some blunt weapon and the only injury found on the front of the left side of the head just above the hair margin of Riaz P. W. Was also declared simple caused by some fire-arm as vide X-Ray report an opacity of metallic density on the skull vault of the scalp was detected.
7. As regards motive as set up in the F. I. R. It is worth noting that the said motive was neither urged nor pressed during trial nor before me in appeal. The learned State counsel half-heartedly sought reliance on the recoveries, but he had to concede ultimately that the recovery of the crime weapons in the case cannot be relied upon. The case of the prosecution, therefore, rests entirely on the ocular evidence and the medical evidence contained in the statement of Dr. Sabir Ali, P. W.
10.
8. I have gone through the entire evidence with the help of the learned counsel for the parties with a view to determine whether on the basis of testimony of Muhammad Riaz P. W. 7, Muhammad Aslam P. W. 8, Muhammad Bakhsh P. W. 9 the prosecution has been able to prove gull of appellant beyond reasonable doubt specially in the circumstances that very witnesses have been disbelieved as against the two co-accused by the trial Court. The rule of caution laid down by the Supreme Court in such a situation is that there has to be unimpeachable circumstances or corroborative evidence on the record in support of such testimony in order to uphold the conviction of the convict whe the majority of the co-accused have been acquitted. The close scrutiny of the evidence reveals that these eye-witnesses cannot be safely relied upon for convicting the appellant also. In this case F. I. R. Appears to be of no substantive value and cannot be used as a circumstance in support of the version of the eye-witnesses as it was recorded at the spot where Muhammad Aslam S.-I. P. W. 13 arrived on his own. The formal F. I. R. Was recorded at the Police Station on 7th September, 1979 at 8.00 a. m. On the basis of the statement of Muhammad Bakhsh P. W. 9 admittedly recorded by the S.-I. On 6th September, 1979 at 7-55 p. m. Though the distance between the place of occurrence and the Police Station is only two miles. No explanation for such a delay of formal F. I. R. Has been offered and in these circumstances no reliance can be placed on it. The eyewitnesses, moreover, stand contradicted by the F. I. R. For instance in F. I. R.
Muhammad Bakhsh P. W. Stated that Talib Hussain appellant was armed with a gun but at the trial he stated that he had a carbine. This deviation in the statement is understandable because the prosecution case was that during investigation a carbine was recovered at the instance of the appellant. At the trial the eye-witnesses deposed that the appellant fired the caroine more than once, yet the expert opined that it cannot be stated as to when the carbine was last fired. A refereence to the site plan is necessary at this stage as according to this plan Exh. P. E. Talib Hussain appellant had fired from Mansha and Inayat (acquitted accused) had fired from a point at some distance from the point '1.7' from where appellant had fired. If this version is true then it is strange that the crime empties Exh. P. 4/1-2 and taik (Rest) Exh. P. 5 which matched the gun P. 9 recovered at the instance of Mansha were found near point 'F' from where Talib fired the carbine and not near the point from where Mansha allegedly fired gun Exh. P.
9. It is also surprising that there is no mention in the F.I.R. About the fall of the taik (rest) of the gun or of the presence of the crime empties. The F. I. R. Was admittedly recorded at the spot and had the firing taken place as alleged there appears to be no reason for the omission of above-stated articles from the F. I. R The view in the circumstances that I have formed is that eye-witnesses are not speaking the truth and have not come out with true facts and circumstances in which death of Bashir deceased occurred. Even the medical evidence instead of lending support to the eye- witnesses belies them as firstly, there is no explanation of the blunt weapon injuries received by Muhammad Bakhsh P. W. Again the witnesses stated that Muhammad Bakhsh, Riaz P. Ws. And Bashir deceased B were engaged in conversation with Muhammad Aslam and Zainab Bibi who were sitting at a distance on a cot when the appellant and the acquitted co-accused fired on them. If this is to be believed then Bashir deceased should have received the injury not at the back but on the front side of the body. The fire-arm entry wound has been described by the doctor as under :- "Fire-arm wound of entry in group in area 9x9 c.m. Between two scapulae."
' It is also unbelievable and unnatural that while the appellant and his co-accused were forcing their entry by breaking open two doors, one in the street and the other in the courtyard the eye- witnesses and Bashir deceased and others remained unalarmed and continued their conversation while sitting on their respective cots. It is indicated in the site plan Exh. P. E. That there was a third door nearby the cot where Muhammad Bakhsh and Riaz P. Ws. We're sitting alongwith the deceased which opens in the back street and from where the eye-witnesses could have escaped.
These features of the case when considered together with the other material discrepancies and inconsistencies in their statements make the case of the prosecution C doubtful. Muhammad Bakhsh and Muhammad Riaz P. Ws. Stated that they were bleeding profusedly and their clothes got besmeared with blood whereas Muhammad Aslam P. W. Deposed that injuries of Muhammad Bakhsh and Riaz did not bleed profusely and their clothes were not smeared with blood though he had seen them bleeding from their injuries. Considering the nature of injuries allegedly received by Muhammad Bakhsh and Riaz the same could not have been bleeding as the eyewitnesses would make us believe. These eye-witnesses are related admittedly inter se and no doubt there is no background of enmity between the complainant party and the appellant yet it is too hard to believe the version of the occurrence as narrated by the eye-witnesses. The testimony of the eye- witnesses considered in conjunction with medical evidence and the site plan Exh. P. E. Does not inspire confidence. I, therefore, do not feel persuaded to agree with the findings of the learned Sessions Judge that it was the appellant only who committed the crime. Giving him benefit of doubt I hereby set aside the conviction and sentence awarded by the learned Sessions Judge, and accept the appeal. The appellant shall be set at liberty if not required in any other case.