' MUHAMMAD MUNIR KHAN, J.-- This criminal appeal and the connected Murder Reference No, 59 of 1983 arise from the judgment of learned Additional Sessions Judge, Gujrat, whereby he on 19-3- 1983 while acquitting Faiz Ahmad, Sher Muhammad, Bashir and Muhammad Riaz co-accused convicted Fazal Karim appellant under section 302, P..P.C. For causing the death of Bashir and sentenced him to death and a fine of Rs,20,000, in default thereof 2 years' R.I. With the direction that the fine if realized half of it be paid to the legal heirs of the deceased. We propose to dispose of them through single judgment.
2. The occurrence took place on 22-8-1981 at Namazwela on the roof of Allah Ditta, the maternal- uncle of the deceased,, situated in Charranwala of P.S. Parianwala. The distance between the place of occurrence and the police station is 74 miles. The F.I.R, Exh.P.C. Was lodged by Shan Muhammad, P.W.5, brother of the deceased on the same day at 8-15 a.m. And was recorded by Arshad Hussain S.I. P.W.11.
3. The motive as alleged by the prosecution was that Walayat, nephew of Sher Muhammad acquitted accused was killed 5 years before the present occurrence. Bashir deceased and Shan Muhammad complainant were challaned for his murder. After 4 years, they were- released on bail and were ultimately acquitted on 30-6-1981. Out of the fear of the accused party they shifted to Charranwala to live with Allah Ditta, their paternal-uncle, hence this murder.
4. As far the main occurrence, it has been stated that at the fateful time, Shan Muhammad, P.W.5, Bashir deceased, Muhammad Din, P.W.6, father of the deceased, Mst. Hamidan, wife of Shan Muhammad complainant and Mst. Fatima were sleeping on the roof of the house of Allah Ditta. The complainant woke up on the report of gun shot. He found Fazal Karim appellant armed with .12 bore carbine standing near the cot of the deceased. Fazal Karim was trying to reload the carbine when Shan Muhammad, P.W.5 took him in his Japha. Muhammad Din P.W.6 raised alarm. Mst. Fatima and Hamidan Bibi woke' up. On this Fazal Karim called out for help whereupon Sher Muhammad, Faiz Ahmad, Bashir and Muhammad Riaz, acquitted accused armed with guns came up to the roof of the house of Allah Ditta and started firing. Muhammad Din and other persons standing 'on the roof laid down on the roof for safety and protection against firing. Shan Muhammad had received some blunt injuries during the process of struggle with Fazal Karim. Fazal Karim got himself released on the arrival of his co-accused. Then he alongwith co-accused went away taking the weapons with them. Bashir died on the spot.
5. Dr. Nazir Ahmad Anwar, P.W.7 had examined Shana on 22-8-1981 at 8-00 p.m. He found two abrasions on the right index finger and left little finger. The injuries were simple and were caused by blunt weapon within 12 to 18 hours of the examination.
' On 23-8-1981 at 5-30 a.m. The same Doctor conducted post-mortem examination on the dead body of Muhammad Bashir. He found following injury on his person:- "A fire-arm wound of inlet 2 c.m. x 2 c.m. Over the centre of upper lip, involving the free edge of the septum of the nose and its base, going upward and backward into the cradeum, on dissection the base of skull was found fractured, the brain matter was mostly damaged, the top of skull was found fractured into four pieces. Two pieces of wad and five large sized pellets were recovered. The wad was recovered from the base of brain matter and pellets from near the occipital and top region of the skull."
' In his opinion, the death was due to brain damage as a result of the injury No,1 which was sufficient to cause death in the ordinary course of nature. The injury was caused with fire-arm. The death was immediate. The time between death and post-mortem was between 18 to 30 hours.
6. On 22-8-1981 Arshad Hussain, S.I. P.W.11 inspected the spot. He took into possession 5 empties and 2 live cartridges Exhs.P.6 to P.12 vide memo. Exh.P.1 attested by Muhammad Nazir P.W.8 and Muhammad Siddiq (not produced).
7. On 7-9-1981 Fazal Karim appellant was arrested by Arshad Hussain, S.1. On 15-9-1981 he got carbine Exh.P.15 recovered from his house which was taken into possession vide memo. Exh.P.L.
Attested by Ahmad Din, P.W.9 and Muhammad Hussain (not produced). The recovery was effected by Arshad Hussain Jaffari, S.I., P.W.11. It may be noted that the recovery has not been relied upon by the trial Court on the ground that the Forensic Science Laboratory report was withheld by the prosecution.
8. To prove its case prosecution examined 11 witnesses. Dr. Nazir Ahmed Anwar, P.W.7 has proved the post-mortem examination report of the deceased and the medico-legal report of the injuries found on the person of Shane complainant. Shan Muhammad, P.W.5 and Muhammad Din P.W.6 have given the ocular account of the occurrence. They claim to have seen Fazal Karim standing near the cot of the deceased and trying to reload the same when Shan Muhammad,P.W.5 caught hold of him and that Muhammad Bashir deceased had already received injury. Shan Muhammad has also deposed about the motive. Muhammad Nazir, P.W.8, Ahmed Din, P.W.9 and Arshad Hussain S.I., P.W.11 have supported the recovery of crime empties and live cartridges Exhs.P. 6 to P.12 from the spot and recovery of carbine Exh.P.15 from the appellant. The rest of the evidence is of formal nature.
9. When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. In reply to question, "As to why the case against him?" He stated:- "Muhammad Walayat deceased was my real brother in which the P.W. Shane and the deceased were involved. As such, they have implicated me and my relatives who are co-accused in this case. Faiz accused is incapacitated, because he is a hunch-back. Sher Muhammad accused is an aged person. The deceased had many enemies. It was a night occurrence and on the suspicion the complainant party has involved us. All the P.Ws. Are interrelated and they have deposed against me on account of previous enmity."
' In defence no witness was produced.
10. The trial Court while giving the benefit of doubt has acquitted the four accused and believing the motive and the ocular testimony has convicted and sentenced the appellant as stated above.
11. Learned counsel for the appellant contends that the prosecution has failed to prove its case beyond reasonable doubts, inasmuch as the F.I.R. Was recorded after preliminary investigation; that the eye-witnesses are related and inimical and that there is no independent corroboration of the statements of the eye-witnesses. On the other hand, the learned counsel for the State has supported the judgment of the trial Court.
12. We have considered the arguments advanced by the learned counsel for the parties with care.
Keeping in mind that the appellant has not raised any special plea, therefore, the entire burden lies on the prosecution to prove its case against the appellant through reliable evidence, we propose to discuss the F.I.R. i.e,, the foundation of the prosecution case first. We find that the F.I.R. Exh.P.C. Is not a genuine document. It was not written at the time and place as it purports. The prosecution case is that Exh.P.C. Was recorded at the police station at 8-15 a.m. From the statements of Muhammad Zaman P.W.3, Shan Muhammad P.W.5 and Muhammad Din, P.W.6, it appears that the statement of Shan Muhammad complainant was recorded on the A spot after 11-00 a.m. On 22-8- 1981 and was got thumb-marked. The foundation of the case is thus, very much shaky. The ocular evidence has, therefore, to be appreciated with utmost care and caution. The two eye-wtinesses are not only related but also inimical witnesses. Shan Muhammad, P.W.5, is the brother and Muhammad Din, P.W.6 is the father of the deceased. The accused party had involved Shan Muhammad and Muhammad Bashir deceased in the murder case of Walayat and they had been acquitted only two months before the occurrence. They involved as many as 5 persons in the case.
The number of the injuries found on the deceased and the number of the accused named by them do not commensurate. Their evidence has not been relied upon to the extent of 4 acquitted accused. Had Shan Muhammad been present on the roof then he would not have been spared alive because he was also challaned as an accused in the murder of Walayat, nephew of Sher Muhammad acquitted accused. No doubt, there are two abrasions on his fingers but from the nature of the injuries it is very much obvious that the same were not caused by enemy hands and that he did not B receive these injuries in this occurrence. The eye-witnesses did not see the appellant firing shot at the deceased. They were asleep. The complainant woke up on the report of gunfire; Muhammad Bashir had already received gunshot injuries. Since four co-accused armed with guns were also present near the place of occurrence, therefore, the possibility that someone else might have fired at the deceased cannot be excluded. The crime empties and the gun recovered from the appellant were sent to Forensic Science Laboratory. Strangely enough, the relevant report was withheld by the prosecution and as such, there is no independent corroboration of the statement of the two eye-witnesses which may connect the appellant with the injuries found on the person of the deceased. For all these reasons, we are of the opinion that the prosecution has failed to bring home the guilt to the appellant beyond shadows of doubts.
13. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and while giving him the benefit of doubt, the appellant is acquitted of the charge. He shall be released forthwith if not required to be detained in any other case.
Death sentence is not confirmed.