' Abid Shah (30) was tried for the murder of his co-villager Akbar Shah by the Additional Sessions Judge, Sheikhupura. On 26-4-1979 he was convicted under section 302, P.P.C. And was sentenced to imprisonment for life and a fine of Rs,10,000 in default of payment of fine, he was further ordered to undergo two years' R.I. One-half of the fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation. The appeal of the convict is before me.
2. About six years before the occurrence in this case Mst. Zubaida a maternal cousin of Abid accused was abducted by Akbar Shah and during the abduction Mehtab Shah, brother-in-law of Mst. Zubaida and her brother Anwar Shah were also fired at. Mehtab Shah had died at the spot and Anwar Shah received injuries. Consequently, Abid Shah and his father Manzoor Shah bore a grudge and were on the look out to avenge the insult. According to the prosecution, in the evening on 12-8- 1976, Jevan Shah a relation of the parties had gone to Tibba Sheerin Jangar to get his money back from Abid Shah accused, because there was some dispute between him and Abid Shah over the sale of wheat. He promised to pay the money in the morning. Since it had become late, therefore Jevan Shah stayed for the night in the house of his cousin Munawwar Shah. At about mid-night when Jevan Shah and Munawwar Shah were still talking to each other, they heard the report of a fire-arm coming from the house of Akbar Shah. They went towards his house and in the lane they saw Abid Shah accused coming from the house of Akbar Shah with a .12 bore pistol in his hand.
They tried to stop him, but he threatened them with dire consequences; therefore, they did not go near him. Abid Shah disappeared. They went to the house of Akbar Shah who lay dead on the Charpai in a pool of blood. Deceased's wife Mst. Amina Bibi and his son Bagh Ali Shah told them that Abid Shah had killed Akbar Shah with a pistol. Jevan Shah proceeded towards the Police Station Nankana Sahib. On the way he met with P.W.12 Muhammad Afzal, A.S.I. In village Bhudda and made statement (Exh.P.F.) to him at 9 a.m. On 14-8-1976, on the basis of which formal F.I.R.
(Exh.P.F. /1) was recorded at Police Station Nankana Sahib, at a distance of eight and a half miles from the place of occurrence. The A.S.I. Went to the spot, he prepared necessary documents and sent the dead body for its post-mortem examination.
3. On 15-8-1976 at 10 a.m. Dr. Abdur Razzaq, Medical Officer, Civil Hospital Nankana Sahib, held the autopsy. Since the doctor had proceeded abroad, his post-mortem report was proved through secondary evidence, P.W.7 Sardar Ali, Dispenser proved the same. According to the post-mortem report (Exh.P.G.), the doctor made the following observation:- "A fire-arm entrance wound 1f" x 1 1/2 situated on the front of right side of the chest 1 1/2" below the clavical and is 24" towards the right from the mid sternal line. The wound is oval in shape. There is burning and blackening in an area of 4" x 4" around the wound of entrance. The wound is passing into chest cavity. The wound is passing obliquely. There are three exit wounds in an area of 2" x 2" on the back side of the chest below the lower border of scapula. The exit wounds are 1" x 1" each and are separated from each other Five pellets were recovered from the back of right side of the chest. The wound of entrance is passing in the chest cavity. There is fracture of 2, 3 right ribs. Both the lobes of right lung perforated. The right chest cavity containing 1,000 c.c. Of blood on the back.
There is fracture of 6th and 8th ribs.
' The injuries were sufficient to cause death in the ordinary course of nature. Probable time that lapsed between injuries and death was about 1/2 hour and between death and post-mortem 26 to 36 hours.
4. On 29-8-1976 P.W.8 Rashid Ahmad, S.H.O., Police Station Nankana Sahib arrested Abid Shah and on 10-9-1976 upon interrogation the accused got recovered pistol (P.4) from his house in Tibba Sheerin Jhangar. It was made into a sealed parcel vide Memo. Exh.P.D. Attested by P.W.2 Shahabal and Muhammad (not produced) besides the Investigating Officer. After completing the investigation, the accused was sent up for trial.
5-7 In his examination under section 342, Cr .P.C., admitting the abduction of Mst. Zubaida and his relationship with her and the deceased, Abid accused denied guilt and ascribed the case to enmity with Jevan Shah. Explaining it,' he said that Jevan Shah had murdered the mother of Akbar Shah deceased and his father had been pursuing the murder case in which Jevan Shah was convicted.
8. True, pistol P.4 is not connected with the crime. On the other hand the recovery of this unconnected pistol also did not inspire confidence inasmuch as that the Investigating Officer did not join any person of the same village to witness the recovery; instead P.W.2 Shahbul and Muhammad (not produced), residents of village Muhammadwala accompanied the Investigating Officer for the recovery from Mauza Tibba Sheeran Jhangar. It is in the evidence of P.W.2 Shahbul that at the time of the recovery,- there were 10/12 persons from the village of the accused. It is noteworthy that none out of these witnesses attested the recovery memo. Further, I find that the pistol was got recovered by the accused from a heap of a chaff from within his house, nearly about a month after the occurrence. Acording to the prosecution, the accused was arrested on 29-8-1976 and upon interrogation he got the recovery effected 12 days thereafter. Admittedly, the appellant's wife was living alone in the house at that time. It seems rather improbable that the appellant would retain the weapon in his house in a heap of chaff. This fact also cannot be lost sight of that out of two attesting witnesses of the recovery, the prosecution produced only one who too admitted having appeared as a recovery witness in another case. Under these circumstances, I am of the view that the prosecution did not satisfactorily prove the recovery of the pistol.
9. The sole question for determination in this case would be whether it was safe to rely on the testimony of the eye-witnesses. Admittedly the two eye-witnesses Mst. Amina Bibi and her son Bagh All had stated in their statements under section 164, Cr.P.C. Made before a Magistrate that they could not identify the assailant. Commenting upon this contradiction, the trial Court observed that the eye-witnesses had made their statements under section 164, Cr.P.C. Under the influence of the accused. It may be straightaway mentioned that the accused had been taken in custody on 29-8-1976 whereas Exh. D.A., the application for getting the statements recorded under section 164, Cr.P.C. Was made by P.Ws. Bagh Ali and Amina Bibi on 29-11-1977 i,e, more than a year after the arrest of the accused. Explaining the contradiction in their statements, they took up the plea that Manzoor father of the accused, had been threatening them and had also got Jevan Shah involved in an Arms Ordinance case, and that it was out of fear that they made these statements. It is noteworthy that they made no application in this regard to any authority. On the other hand, I find that they had made such improvements from their police statements that their statements do not inspire confidence; for instance, Bagh Ali had not said before the police that his father remained alive for ten minutes after he was shot at and had told the accused that being his son, he should not have killed him. Further the witness mentioned that his mother was awake and feeding the youngest child, this he had not said before the police. Under these circumstances the question would be whether the accused who came at night and fired a single shot, could have been identified by the witnesses. Bagh Ali was sleeping on the roof of his house. According to him, he had seen the accused leaving. Even if he had seen the accused departing, it was still doubtful whether he could identify the accused from his back. The improvements made at the trial indicate that the witnesses were trying to fill in the gaps and make believe that they had seen the occurrence.
Similarly, Mst. Amina had not said before the police that she was awake, talking to her husband and feeding the child when the accused came there and fired at her husband. According to her they were sitting on the Charpai. If that was true, then could the appellant have come so close and fired the shot at him, is a matter of doubt. This is an obvious improvement. The nature of the injury shows that it was fired at from a very close range. It could have only been possible if the deceased and every body around him were asleep. In fact, before the police both the witnesses had said that they had got up on the report of the fire-arm. It is noteworthy that the deceased's wife showed ignorance about the abduction of Mst. Kaneez Bibi by her husband. P.W. 2 Shahbul admitted that Akbar Shah had abducted a daughter of Inayat Tell who was his neighbour and the case regarding that abduction was still pending. The evasive reply of Mst. Amina Bibi and the admission of P.W.2 Shahabal indicate that the deceased had some other enemies. The manner in which the occurrence is alleged to have taken place and the improvements made by the witnesses do create a suspicion about the eye-witnesses having seen the assailant. In so far as Jevan Shah (informant) is concerned, he belongs to a different village. He had come to take money from the accused who could not supply the wheat to him. It was contended that the story of Jevan Shah of having made a bargain for wheat with the appellant and later staying on in the village for the night in order to get back his money was a made up affair, in order to show his presence at the spot. The only witness who could have supported this version of the informant was Munawwar with whom he was said to have stayed for the night, but he was not produced by the prosecution. Undoubtedly, Jevan Shah is closely related to the deceased, however it is in the evidence of Mst. Amina Bibi that there were four houses intervening the house of the deceased and Munawwar. Under these circumstances, for him to have immediately rushed towards the house of the deceased and seen the assailant was a doubtful matter. He is a chance witness and I have already considered his presence in the village doubtful. Moreover, the F.I.R. In this case was not recorded at the Police Station; it was made to P.W.12 Muhammad Afzal, A.S.I. On the way. This was again a suspicious circumstance.
10. For the foregoing analysis of the prosecution evidence, I am of the view that the prosecution has not been able to satisfactorily prove its case against the appellant. I, therefore, accept his appeal