' This criminal appeal arises from the judgment of learned Additional Sessions Judge, Mianwali, whereby he on 14-5-1981 while acquitting Shakir accused convicted Muhammad Hayat appellant under section 302/34, P.P.C. For causing death of Ashiq Ali and sentenced him to imprisonment for life and a fine of Rs,10,000 in default thereof further R.I. For three years with the direction that the fine when recovered, out of the same Rs,5,000 be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
2. The occurrence took place at mid-night between 2/3-8-1977 in front of shop of Inayat Ullah P.W.
Situated in village Phati of Police Station Saddar Mianwali. The distance between the place of occurrence and the police station is 4 1/2 miles. F.I.R. Exh.P.F. Statement of Khurshid P.W.6 cousin of the deceased, was recorded by Malik Muhammad Khan P.W.8 at Chowk Watta Khel at 3 a.m. On 3- 8-1977. Formal F.I.R. Was drawn up by Muhammad Hanif Khan (not produced) at 3-15 a.m.
3. The motive as alleged by the prosecution was that the appellant and the acquitted co-accused were suspecting that the deceased was having illicit relation with Mst. 'Khatun sister of the appellant.
4. As far the main occurrence, it has been stated that Muhammad Hayat appellant owed Rs,2,000 to Farzand cousin of the deceased and the deceased had stood surety for the return of the money.
On 2-8-1977 Khurshid complainant along with Ashiq All deceased went to the kiln of Ghulam Hasan Khan to demand Rs,2,000 from Muhammad Hayat appellant. The talk between the parties was going on when Mst. Khatun came and sat there. She exchanged smile with the deceased. The appellant then asked the deceased and the complainant to stay there and he will make payment on the following day. Muhammad hayat appellant then took the complainant and the deceased to the Dera of lnayat Ullah P.W. And asked him to make arrangements for their boarding and lodging.
Inayat Ullah P.W. Arranged meals for them. Thereafter the deceased and the complainant slept in front of the shop of lnayat Ullah P.W. At about mid-night Khurshid Ahmad complainant and Inayat Ullah P.Ws. Awoke on the report of pistol shot and saw Muhammad Hayat armed with .12-bore pistol standing on the head side of the Ashiq Ali deceased while Shakir acquitted co-accused armed with Danda was standing on the feet side of the deceased. The witnesses found blood coming out from the wound on right side of the chest of the deceased. The appellant and the co- accused on seeing P.Ws. Ran away from the spot threatening them with dire consequences if they went near them. Ashiq Ali succumbed to the injuries at the spot.
5. Dr. Ashgar Ali P.W.2 conducted post-mortem examination on the dead body of Ashiq Ali and found following injuries on his person:-
(1) A fire-arm wound of entry with inverted edges 1" x 1" on the upper part of front of right chest, 3" from the mid-line and 5" above the nipple. Blackening was present around the wound.
(2) A fire-arm exit wound 1" x 1/4" with everted edges on the back of left chest 1" from mid-line and 6" below the base of neck.
' On internal examination the Doctor found the chest wall perforated on account of the injuries. He found 1st, 2nd and 4th ribs and right clevicle fractured. The doctor removed four pellets from the body of the deceased. The pleura was fractured. Stomach contained about 8 ounces of semi digested food. In his opinion the cause of death was shock and haemorrhage due to injury No,1 causing damage to lungs and blood vessels. The injury was ante-mortem and caused by fire-arm and was sufficient to cause death in the ordinary course of nature. The probable time between injuries and post-mortem examination was about 12 to 16 hours.
6. The appellant was arrested on 10-8-1977. On the same day he produced pistol P.1 alongwith five live cartridges P.2/1-5 by taking out the same from his Dub which were taken into possession vide Exh.P.E. Attested by Ghulam Jilani P.W.5 and Ghulam Sajjad (not produced). The recovery memo.
Was prepared by S.I. P.W.8. It may be noted that since no crime empty was recovered from the spot, the pistol was not sent to Forensic Science Laboratory for report.
7. To prove its case prosecution examined 8 witnesses. Doctor Asghar All P.W.2 conducted post- mortem examination on the dead body of the deceased. Khurshid P.W.6, Inayat P.W.7 have given the ocular account of the occurrence. They claim to have seen Muhammad Hayat appellant and Shakir co-accused, standing near the cot of the deceased armed with pistol and Danda respectively at the time of occurrence. The complainant also supported the motive, set up by the prosecution. Khurshid P.W.6 stated that the appellant had produced pistol P.1 alongwith five live cartridges P.2/1-5 before the Investigating Officer. Muhammad Khan Investigating Officer P.W.8 investigated the case. He recovered pistol P.1 alongwith five live cartridges P.2/1-5 from the appellant. The rest of the evidence is of formal nature,
8. When examined under section 342, Cr.P.C. The appellant denied all incriminating circumstances.
He stated- ' We have been falsely involved in this case on account of our enmity with Khurshid complainant.
The deceased was a professional gambler. Inayat Ullah P.W. Runs a gambling den. On the fateful night Ashiq All deceased had won from all the participants in the gambling den and consequently lnayat Ullah P.W. Or his men killed Ashiq All deceased, while he was asleep. Inayat Ullah P.W. Is related to Dr. Sh. Sher Afgan of Mianwali and due to the pressure of the latter, Inayat Ullah P.W. Or his men were let-off and we have been falsely involved in this case."
' In defence he did not lead any evidence
9. The learned counsel for the appellant contends that prosecution has failed to prove its case beyond reasonable doubt; that the presence of the Khurshid at the eventful time is not believable; that Inayat Ullah P.W. Had not seen the accused firing at the deceased and that the trial Court has found that the F.I.R. Exh.P.F. Was not a genuine document. Conversely the learned counsel for the State has supported the judgment of the trial Court.
10. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that it was a night occurrence; that the trial Court in para. No,27 of its judgment has not believed that the F.I.R. i,e, statement Exh.P.F. Of Khurshid P.W.6 was recorded at Chowk Watta Khel at 3 a.m. As alleged by the prosecution; that Khurshid P.W.6 was not the resident of the vicinity of the occurrence; that the being not injured, there is no circumstantial guarantee of his presence at the spot and that he being the cousin of the deceased could have easily been induced to become the complainant of the case. He did not see the appellant firing at the deceased. He has stated that when he woke up, on the report of the gunshot, he found that the deceased had already been injured. Inayat Ullah Khan P.W.7 also did not see the appellant firing at the deceased. There was only one injury on the person of the deceased. It might have taken less than a minute, to cause this injury. The conduct of the appellant of having remained at the place of occurrence so that the witnesses might woke up and see him, runs counter to the natural probabalities. Khurshid P.W.6 has stated that the moment, he woke up the appellant ran away. It is well-known that evidence of identity based on personal impression should alway be appreciated by the Court with considerable caution especially when the whole case hinges upon such evidence. The testimony of sense cannot be implicitly relied upon even when the veracity of the witnesses cannot be challenged because chances of errors in identification become greatly increased when the same is based upon a momentary glimpse in the confusion, even there is sufficient light. In any case, the prudence requires independent corroboration of the statement of the two eye-witnesses to connect the appellant with the firing on the deceased causing his death. Since no crime empty was recovered from the spot, the recovery of pistol P.1 from the appellant was of no consequence. For all these reasons, I am of the view that the prosecution E has failed to prove its case beyond reasonable doubt.
11. The upshot of the above discussion is that there being no satisfactorily basis to uphold the conviction and sentence of the appellant and while giving him the benefit of doubt, he is acquitted of the charge.