' MAZHARUL HAQ, J.--Faiz Ahmad (55/60), his brother Haji (65), their sister's son Nawab (35) and Waris (20) son of Faiz Ahmad, accused, were tried by the Additional Sessions Judge, Mianwali for the murder of Jahan and for having caused injuries to Ghulam Muhammad. On 15-9-1979 Faiz Ahmad was convicted under section 302, P.P.C. And sentenced to death and fined Rs,2,000, half of the fine, if realised was ordered to be paid as compensation to the heirs of the deceased. The remaining accused were acquitted. Appeal of the convict and the petition for leave to appeal filed by Afzal Hayat (informant) under section 417 (2) of the Cr.P.C. Against the acquittal are before us.
2. Nawaz, the acquitted, accused, desired the hand of Afzal Hayat informant's cousin in marriage, he started negotiations with All Muhammad father of the girl through one Nizam Din Pathan but Jahan (deceased) opposed the proposal and got the hand of All Muhammad's daughter in marriage for his own son Muhammad Ramzan. The second motive alleged was that about six months before the occurrence in this case, a theft took place in the house of Nizam Din Pathan and a case was registered against Muhammad Afzal Hayat (informant), P.W. Ghulam Muhammad, Jahan (deceased) and otheRs, Faiz Ahmad (appellant) and Nawaz (acquitted accused) were witnesses in that case. The accused in the theft case were found innocent during investigation. Faiz Ahmad (appellant) and his co-accused thus bore a grudge against the complainant. The third incident was a beating given by the deceased to Faiz accused, a few days before the occurrence.
On 11-1-1977 at about 8.30 a.m. Muhammad Afzal Hayat, his uncle Jahan (deceased) and Ghulam Muhammad son of Waryam were on their way to Chah Anwarwala. They were going there to condole the death of the daughter of Ghulam Muhammad son of Anwar. As they crossed the stream known as Nullah 1-R, the four accused appeared there on camels. Faiz Ahmad and Nawaz were armed with .12 bore guns, Muhammad Waris armed with a rifle and Haji had a stick. They came down from the camels which were held by Haji. Faiz Ahmad fired at Jahan and Nawab fired at Ghulam Muhammad P.W. The two fell down. Waris fired at Muhammad Afzal Hayat who ducked and was thus not injured. Besides, Ghulam Muhammad and the informant, the occurrence was witnessed by Sher Muhammad who was passing by. He appeased the accused and they went away on their camels. Jahan died at the spot. Muhammad Afzal Hayat proceeded towards Police Station, Piplan, situated 16 miles away from the place of occurrence. On the way he met with a police party at "Harmoli More". He made statement (Exh. P.G.) at 12 noon to Allah Yar, Head Constable (since dead) on the basis of which formal F.1.R. (Exh. P.G/1) was registered at Police Station, Piplan, the same day at 12.40 p.m. Allah Yar, Head Constable went to the spot and took into possession blood-stained earth and two crime empties from two different places. Empty Exh. P.11 was recovered from a distance of 15 Karams away from the dead body of Jahan, it was made into a sealed parcel, the second crime empty Exh. P. 12 was at a distance of eight Karams from the dead body, it was also made into a sealed parcel, their recovery memos. Are Exh. P.K. And Exh. P.L.
Respectively. These were attested by Allah Yar, Head Constable (since dead), P.W. 10 Muhammad Afzal Hayat (informant) and Sher Muhammad (given up as having been won over). After preparing the necessary documents, the Head Constable sent the dead body for its post-mortem examination and got Ghulam Muhammad P.W. Medically examined. At this stage, it may be mentioned that P.W. 5 Nawab Khan, F.C. Proved the death of Allah Yar, Head Constable, as he was deputed to serve the summons on him, he reported thereon that the Head Constable had since died. Since the main investigation was conducted by Allah Yar, Head Constable (deceased), the prosecution led secondary evidence and through the evidence of P.W. 12 Javed Feroze, S.I./S.H.O., Police Station, Piplan proved the various documents prepared by the deceased police officer.
3. P.W.8, Dr. Sher Gul Khan, Medical Officer, Primary Health Centre, Hafizwala, on 11-1-1977, medically examined P.W. Ghulam Muhammad and found the following injuries on his person:-
(1) A penetrating lacerated wound 4/10" in diameter with inverted margins over upper front, right lower leg. There is variance of breadth of collar of abrasions around the wound. It was the wound of entry.
(2) A penetrating lacerated wound 3/10" in diameter with inverted margins 1" below and backward of injury No,
1. There is collar of abrasions of varying breadths around the wound. It is a. Wound of entry.
(3) A penetrating lacerated wound 2/10" x 3/10" into communicating with injury No, 2 with averted margins over the back of mid right leg. It is a wound of exit of injury No, 2.
(4) A penetrating lacerated wound 3/10" x in diameter with inverted margins just above the right knee joint. There is collar of abrasions of varying breadths around the wound. It is a wound of exit ' The injuries were kept under observation and X-rayed.
4. P.W. 1 Dr. Muhammad Qasim, Medical Officer, Primary Health Centre, Kundian, on 12-1-1977, held the autopsy on the dead-body of Jahan Khan and found the following injuries on it:-
(1) Three wounds of firearm (entry 1/4" x 1/4", each in an area of 5" over the back of the right upper arm, 8" above the right elbow joint.
(2) One firearm wound of entry 1/3" x 1/4" on the right side of the chest 5" away from mid line and 5" above the right nipple directed obliquely.
(3) A firearm wound of entry 1/4" x 1/4" on the right angle of the mouth and lower lip.
(4) A firearm wound of entry 1/4" x 1/4" on the right side of the chin.
' Death, in his opinion, was due to shock and haemorrhage caused by injury No, 2 which ruptured the pleurae and both lungs. It was sufficient to cause death in the ordinary course of nature.
Probable time between injuries and death was 15 to 30 minutes and between death and post- mortem about 20-24 houRs, ' Allah Yar, Head Constable also took into possession X-ray report through memo. Exh. P.R. Dr. Sher Gul has not referred to this x-ray report, nor it was got proved by the Radiologist.
4. P.W. 12 Javed Feroze, S.H.O., P.S. Piplan, partly investigated this case. He arrested the accused. On 23-1-1977 Muhammad Hayat, Lumbardar, of Harnoli (not produced), produced licenced gun (P. 10) of Faiz Ahmad, the A.S.I. Made it into a sealed parcel through memo. Exh. P.D. Attested by P.W. 4 Saleh Muhammad, Head Constable, P W 6 Muhammad Latif Khan, Constable and the S.1.
5. The two crime empties were taken into possession on 11-1-1977 by Allah Yar, Head Constable (since dead) and were deposited by him in the Malkhana. P.W. 4 Saleh Muhammad, Moharrir Head Constable was entrusted with four sealed parcels on 17-1-1977. On 19-1-1977 he handed over these parcels to P.W. 6 Muhammad Latif, F.C. Who on 20-1-1977 deposited the parcels containing the blood-stained earth with the Chemical Examiner and the remaining two parcels of the crime empties with the Forensic Science Laboratory, Lahore. On 8-2-1977, he deposited the sealed parcel of the gun (P. 10) in the Forensic Science Laboratory, Lahore, and according to the report of the fire- arm expert (Exh. P.U.) the crime empties recovered from the place of occurrence matched with the gun (P. 10) of the appellant. After completing the investigation, the accused were sent up for trial.
6. All accused denied guilt and ascribed the case to enmity. According to Faiz Ahmad, he appeared at the Police Station on 12-1-1977 and produced his licenced gun with a copy of its licence Exh. D.G.
Explaining the case against him, he made the following statement:- "I am innocent. The deceased Jahan and Ghulam Muhammad P.W. Were habitual thieves. The occurrence took place during the night. The deceased and aforementioned Ghulam Muhammad were returning after committing the theft and were way laid and fired at by somebody else. During the investigation of this murder case, ,the police had found that the deceased was done to death by some other persons. However, I and my co-accused have been substituted due to the abovementioned enmity."
' The accused produced four defence witnesses, namely, D.W.-1 Muhammad Zaman, F.C., D.W.-2 Riaz Ahmad, Inspector, D.W. 3 Muhammad Khan, D.S.P. And D.W. 4 Sher Muhammad, Inspector, Crimes Branch. They produced various investigation reports in which some of the accused were considered innocent and names of some persons were mentioned who had not been challaned and were suspects. D.W. 1 Muhammad Zaman, F.C., produced copy of the F .I.R. (Exh. D.H . ), dated 17-6-1972 in which Jahan was the informant and P.W. 11 Ghulam Muhammad was one of the witnesses. This was produced to show that Ghulam Muhammad was a partisan of the deceased and thus an interested witness.
7. Since two of the accused Haji and Nawaz were not sent up for trial, therefore, feeling aggrieved, Afzal Hayat, complainant filed a complaint which was tried with the challan case and the trial Court came to the conclusion that the prosecution case was doubtful against Haji Nawaz and Waris, accused, they were, therefore, acquitted. But as against Fiaz Ahmad, it relied on the evidence of the eye-witnesses because the trial Court considered the evidence of the recovery of accused's gun P. 10 sufficient corroboration of their testimony. Moreover, gun P. 10 also matched with the crime empties recovered from the place of occurrence.
8. Criticising trial Court's finding, it was contended that the trial Court considered the two eye- witnesses namely P.W. 10 Afzal Hayat (informant) and P.W. 11 Ghulam Muhammad as interested witnesses. Further, observed that the two eye-witnesses had also made improvements and concluded that for the safe dispensation of justice, it was necessary to seek corroboration of their testimony from an independent source. Since there was no such corroboration forthcoming against the acquitted-accused, they were, therefore, given the benefit of doubt. But being satisfied with the evidence of the production of appellant's gun P. 10, trial Court considered it enough corroboration of the ocular testimony against the appellant. Since the crime empties had matched with the gun, therefore, prosecution case was considered satisfactorily proved against the appellant. It was also contended that since the gun was not recovered at the instance of 'the appellant but was produced at the Police Station on 23-11-1977 by one Muhammad Hayat, Lumbardar, who neither attested the recoverey memo nor he was cited as a witness in this case. As such, appellant cannot be held liable for the production of gun by the Lumbardar who has not come forward to support the recovery of the gun.
9. We have considered the matter. No doubt the two foot constables have no axe to grind against the appellant but the fact remains that no member from the general public has appeared to attest the recovery memo. Exh. P.D. Of appellant's gun P.
10. True, normally such a witness would not be available at the police station but in this case the one that was there according to the prosecution's own case i.e, the A Lumbardar was not produced to support the recovery. What makes this part of the prosecution story doubtful is that the said Lumbardar did not even attest the recovery memo of the gun. About this, there is a contradiction in the statement of the two foot constables. P.W. 6 Muhammad Latif went to the extent of saying that Malik Muhammad Hayat, Lumbardar did sign the recovery memo but the recovery memo contradicts him. On the other hand, P.W. 4 Saleh Muhammad, Foot constable, admitted that there was no entry in the daily diary, dated 23-11-1977 about the production of gun P.
10. Javed Feroze, S.I., B P.W. 12, admitted that he did not record the statement of Muhammad Hayat, Lumbardar, who produced the licenced gun of the appellant. Investigating Officer also admitted that the recovery memo. Exh. P.D. Was not in his hand but in fact was written by one of his subordinates on his dictation. He has, however, not explained why he did not write the same. These are suspicious circumstances and they adversely reflect on the investigation about the recovery of the weapon. It is also noteworthy that P.W. 12 Javed Feroze, S.I., did not mention in his C statement the date of the arrest of the accused but according to D.W. 2 Riaz Ahmad, Inspector, who had verified the investigation of this case, all accused were arrested on 19-1-1979 whereas crime empties were sent to the Firearm Expert on 20-1-1979, obviously after the arrest of the accused and atleast eight days after the empties had been recovered from the place of occurrence. It may also be added that the crime empties do not find mention in the inquest report. On the other hand, the appellant's case is that he had produced the gun and a copy of its licence before the police on the following day of the occurrence. For the reasons mentioned above, we have already expressed our doubt about the production of gun by Lumbardar on 23-1-1977. The date of arrest of the appellant is also doubtful in this case. We, therefore, do not consider it safe to place reliance on the corroborative evidence of the recovery against the appellant. The evidence of the two interested eye-witnesses remains uncorroborated. We are, therefore, not satisfied with the guilt of the appellant. We, accept the appeal, give the benefit of doubt to the appellant and acquit him. He shall be released forthwith if not required in any other case.