' KHIZAR HAYAT, J.-- This is an appeal by Muhammad Naeem s/o Muzaffar-ud-Din, caste Arain, resident of Chak Sarkari, District Bahawalnagar, who has been convicted by Additional Sessions Judge, Bahawalnagar, under section 302, P.P.C. For murdering Gulzar Ahmad aged 65 years while asleep outside his house in the area of Chak Sarkari about 10 miles away from Police Station Takht Mahal, District Bahawalnagar and sentenced to death and a fine of Rs,20,000 in default whereof to undergo 7 years' R.I. While his co-accused Muhammad Aslam has been acquitted. It was also directed that fine, if realised shall be paid to the heirs of the deceased as compensation under section 549-A, Cr.P.C. His case is also before us under section 374, Cr.P.C. For confirmation of the death sentence. This judgment will dispose of the appeal (Crl.Appeal No,49 of 1983/BWP) as well as the reference (Murder Reference No,5 of 1983/BWP).
2. The investigation in this case started on the basis of F.I.R. Exh.P.F. Lodged on 18-7-1979 by one Muhammad Shafi s/o Ch.Habibullah of Chak Sarkari at Police Station Takht Mahal on the following morning of the occurrence at 9.55 a.m. Recorded by Bashir Ahmad A.S.I. (P.W.9). The report is printed at page 6 of the Paper Book and its English translation is as follow:- "I am Manager of His Highness Amir of Bahawalpur and live in Chak Sarkari. Today at 7.00 a.m.
Muhammad Naeem s/o Muzaffar-ud-Din, caste Arain, r/o Bhatti Abdul Jabbar alongwith another person came and informed me that on that night some unknown persons had murdered Gulzar Ahmad son of Din Muhammad, caste Arain, resident of Bhatti Gulzar Ahmad in village Chak Sarkari by firing at him, and his family members were also sleeping nearby who did not hear report of the gunfire and came to know of the occurrence in the morning. On this information I went by a tractor to the spot, where Ch.Javed Akhtar s/o Ch.Ahmad Hassan, Abdul Ghafoor son of Ch.Muhammad Ibrahim, caste Arain and Khan Muhammad son of Noor Muhammad, caste Bhaba, residents of the village were present near the dead body alongwith the family members of the deceased, who confirmed the above story. The dead body was lying outside the outer door of the Haveli. There was a gun-shot wound on the left temporal bone of deceased Gulzar Ahmad. The persons present there sent me to the Police Station. I have lodged the report. Please take action."
3. After the report has been recorded, Bashir Ahmad A.S.I.(P.W.9) left for the spot. Reaching there he prepared injury statement Exh.P.A./2 and the inquest report Exh.P.A./3 of the deceased and despatched the dead body to the mortuary at Bahawalnagar through Muhammad Ijaz F.C. For post-mortem examination. He collected bloodstained earth from there vide Memo. Exh.P.B. He also took into possession lantern P/1 from the spot vide Memo. Exh.P.C., attested by Abdul Jabbar (P.W.6) and Inayat Ullah P.W. (not produced). After post-mortem examination, the constable produced before him last worn clothes of the deceased and a phial Exh.P/10 containing pellets removed from the wound of the deceased by the doctor which was taken into possession vide Memo. Exh.P.B. He got prepared site plan Exh.P.G. In duplicate and made notes thereon in red ink. He then made over the investigation to S.I. Munawar Alam Leghari (P.W.10). Munawar Alam S.I. (P.W.10) took up the investigation on 23-7-1979. He arrested Muhammad Naeem appellant on 26-7-1979 who while in custody led to the recovery of .12 bore pistol Exh.P/2 from the heap of chaff lying in his residential Kotha, which was taken into possession vide Memo. Exh.P.D., attested by Sardar Muhammad (P.W.7) and Inayat Ullah (not produced) besides Munawar Alam S.I. After completing the usual investigation, he made over papers to Muhammad lqbal Noon, who succeeded him and report under section 173, Cr.P.C. Was forwarded by him. He identified his signatures on it in Court.
4. Dr.Capt. Abdul Majeed (P.W.1), Senior Medical Officer, D.H.Q, Hospital, Bahawalnagar performed post-mortem examination on 19-7-1979 at 5.30 a.m. And observed following injuries on the dead body of Gulzar Ahmad:-
(1) One lacerated wound 2" x 2" brain matter deep (leading towards the basal part of the skull) on the left prietal bone and extending obliquely towards the left temporal bone. The wound was circular in shape and the margins of the wound were inverted. The blackening and scorching of the skin around the margins of the wound were present. (The wound of enterance. Fire-arm wound).
(2) An area of about 2" x 14" swollen on the upper eye-lid, lower eye-lid of the right eye and a part of the face. Direction was oblique.
(3) Blood coming out from the right ear. (Haemolysed).
' Scalp was extensively lacerated in the left prietal, and temporal region. Under the skull communicated fracture of the left prietal, frontal and temporal bones, and fracture of the right frontal and prietal bones were seen. Brain was extensively lacerated and "gatta cartoos" + 74 pellets were recovered from the wound and sealed in a phial and handed over to the police. Rest of the organs were healthy. Left side of heart was empty and right side contained dark blood. The stomach was healthy and contained traces of fluid food material. The bladder was healthy and contained about 1/2 Oz. Of urine. In the opinion of the doctor death occurred due to the injury to the vital organ (brain) and haemorrhage and shock caused by injury No,1 inflicted with firearm. All the injuries were ante-mortem. Injury No,1 was sufficient to cause death in the ordinary course of nature. The probable time between the injuries and death was instantaneous and between death and post-mortem within 48 hours. In cross-examination the doctor stated that he had omitted to mention the weapon with which injury No,2 had been caused.
5. At the trial in all 11 witnesses were examined by the prosecution. It relies on the evidence of motive and the ocular testimony furnished by Muhammad Ramzan (P.W.2) son of the deceased and Mst. Rashidan (P.W.3) wife of the deceased, the recovery of lamp P/1 and pistol P/2 deposed to by Abdul Jabbar (P.W.6) and Sardar Muhammad (P.W.7), respectively, besides the Investigating Officer and the medical evidence furnished by (P.W.1) Dr.Capt.Abdul Majid.
6. Muhammad Ramzan (P.W.2) stated that on the fateful night at mid-night he and his mother Mst.
Rashidan (P.W.3) woke up hearing the report of gunfire. In the light of lantern they saw Muhammad Naeem appellant standing on the head side of the cut of the deceased with a pistol in his hand while Muhammad Aslam (since acquitted) was standing towards the legs side of the cut of the deceased. They tried to go near the deceased but the accused threatened them with dire consequences, if they went near the deceased. However, after the departure of the accused, they went near Gulzar Ahmad (deceased), who had already expired. According to Muhammad Ramzan P.W. The motive behind the attack was that Muhammad Naeem appellant whose land was contiguous to the land of the witness, had prepared a ridge on the land of the witness in order to stop the flow of the rainy water towards his lands but the same was demolished by the deceased.
Muhammad Aslam co-accused of the appellant demanded the hand of sister of the witness which was refused by the deceased. Therefore, both the assailants were annoyed with the deceased.
Muhammad Ramzan P.W. Also stated that, as they have been mourning death of Gulzar Ahmad during the night so they did not go to the Police Station for making report. In the morning Muhammad Shafi, Manager of Ameer of Bahawalpur came to the spot and they told him about the occurrence who left for the police station to make the report. In cross-examination he stated that the report was made by Muhammad Shafi according to what had been told to him by them and they had no enmity whatsoever with him, during the days of occurrence. He has further stated that complainant Muhammad Shafi has been won over by the accused and now they have enmity with him. He admitted that the deceased had two wives and had children from both the wives. He denied that his father (deceased) had sold his land in Chak No,99/6-R and did not give share to Mst. Hafeezan and Abdul Razzaq his children from the other wife. The police had reached the spot at 10.00 a.m. And left in the evening. Muhammad Naeem appellant was arrested on 26-7-1979. He stated that he and his mother were sleeping inside the Haveli and the deceased was sleeping outside the Haveli on the night of occurrence. He denied that a Chapper intervened between their cots and the cut of the deceased. He admitted that a sanctioned road passes between the land of his father and that of the father of Muhammad Naeem appellant which is 2 Karams wide. Mst.
Rashidan (P.W.3) in her cross-examination stated that lantern was burning and hanging just by the side of the door to the south of Chapper at a distance of one Karam from the cot of the deceased.
According to her Muhammad Naeem appellant was arrested and brought to the spot while the dead body was still lying at the spot.
7. At the conclusion of the prosecution evidence, Muhammad Naeem appellant and Muhammad Aslam (since acquitted) were examined under section 342, Cr.P.C. They denied prosecution allegations as well as recovery of weapons and professed innocence. Muhammad Naeem appellant chose to produce defence evidence but did not produce any witness except that he produced copies of mutation Nos. 378 Exh.D.D. 476, Exhs.D.E. And 379 Exh.D.F. And closed his defence.
The mutations Exh.D.D. And Exh.D.F. Showed that the deceased had sold his land before the occurrence.
8. The learned trial Court on consideration of the evidence held that the two eye-witnesses were most natural ones and their statements in his estimation were convincing. He also held that Muhammad Naeem appellant had a motive to attack the deceased for the latter had demolished the ridge constructed by him on the land of the deceased, but at the same time disbelieved the motive alleged against Muhammad Aslam (acquitted accused), being 4/5 years old affair.
Learned trial Court believed the recovery of pistol P/2 from Muhammad Naeem appellant and used it as corroboration of the testimony of the eye-witnesses and consequently convicted and sentenced Muhammad Naeem appellant on murder charge but giving benefit of doubt to Muhammad Aslam accused acquitted him. Muhammad Naeem has filed the instant appeal against his conviction and sentence.
9. We have heard the learned counsel for the appellant as well as for the State assisted by learned counsel for the complainant and also perused the record with their assistance.
10. First of all we take up the recovery of pistol P/2 alleged to have been effected at the pointation of the appellant from the heap of Bhoosa (Chaff) from his residential Kotha. Admittedly no empty was recovered from the spot. In the circumstances, even if the recovery of pistol P/2 at the instance of the appellant is accepted, it is of no consequence in the case for the reason that it has not been connected with the crime in any manner.
11. Next comes the motive. Muhammad Ramzan (P.W.2) has stated that in order to stop flow of rainy water to his lands the appellant, prepared a ridge on the land of the deceased who demolished the same and the appellant felt annoyed over it. It is admitted that there is a two Karams wide road which intervenes the lands owned by the deceased and that of the appellant. It is not known as to how many days before the occurrence, the appellant made the ridge and when was it demolished by the deceased. It is also not stated that during those days, it was a rainy season, which necessitated the raising of ridge. Bashir Ahmad Patwari (P.W.11) clearly stated that there was no dispute between the deceased and the appellant whatsoever. Since there existed a road between the land of the appellant and that of the deceased, therefore, it is not believable that the appellant would prepare a ridge on the land of the deceased for stopping the water. We are, therefore, of thef view that this motive had been introduced for the sake of providing B cause for attack by the appellant.
12. Now we take up the ocular evidence which is most important piece of evidence from the prosecution point of view. Both the eyewitnesses are close relations of the deceased. Admittedly the witnesses were sleeping inside the Haveli while the deceased was sleeping outside the outer door of the Haven. The distance between the cot of the deceased and the Charpoi of Muhammad Ramzan, eye-witness as indicated in the site plan Exh.P.G. Is 9 Karams and from the Charpoi of Mst.
Rashidan (P.W.3), is 4 Karams. According to these witnesses the occurrence took place at mid- night. They woke up on hearing report of the gun fire and found the appellant standing near the cot of the deceased and identified him in the light of the lantern hanging by the wall of Chapper. It was 21/22 of the lunar month and according to Jantari for 1979 published by Government of Punjab, Lahore, the moonrise time on that was after 1.00 a.m. Which means that it was dark till mid-night and therefore the prosecution appears to have introduced lantern to show that the appellant was indentified in the light of it. The statement of the witnesses that the appellant after having fired a shot at the deceased, kept standing near his (victim's) cot and issued threats to the witnesses who woke up on hearing report of gunfire is not at all believable as it runs counter to the normal human conduct. The assailant of the deceased had selected night time for the attack obvidusly to conceal his identity and it cannot be expected of him that after firing on the head of his (victim), instead of disappearing from the spot he would keep standing under the light of a lamp issuing threats to the witnesses at the risk of his being identified. We have grave doubt in our minds about the presence of the lamp at the relevant time as it is not common among the villagers to keep a lamp burning a night time without any special need. The site plan Exh.P.G. Shows that "Charpois" of the witnesses were initially shown just in front of Chapper towards the north but later those drawings were erazed by using ink-remover and were later shown at different point in order to show that the deceased's "Charpoi" was visible from the "Charpois" of the witnesses. Sardar Bashir Ahmad (P.W.11) Patwari although denied that the site plan originally prepared by him was not changed for it did not suit the prosecution, but, he admitted that on point 2 and 3 of the map (indicatig the place of hanging of lamp and the Charpoi of Mst. Rashidan) ink-remover had been used. It is noteworthy that Charpoi of Mst. Rashidan P.W. Is shown at a distance of 4 Karams while that of Muhammad Ramzan P.W. At a distance of 9 Karams from the Charpoi of the deceased, therefore, it was not possible that having been aroused from sleep by boom of the gunfire they collected their senses quickly and were able to identify the culprit before he decamped from the scene, which would not take more time than a few seconds. Consequently, the evidence of the eye-witnesses does not inspire confidence and we are unable to accept their claim that they had seen the occurrence and identified the killer.
13. There is yet another strong circumstance which belies the ocular testimony of the eye-witnesses i,e, the Investigating Officer Bashir Ahmad A.S.I. (P.W.9) admitted to have reached the spot at 12/12.30 p.m. On his arrival he found Mst. Rashidan and Muhammad Ramzan P.Ws. Present near the dead body. He recorded their statements after despatching the dead body to D.H.Q. Hospital, Bahawalnagar, for post-mortem examination. In the inquest report Exh .P.A. /3, the story of Muhammad Ramzan and Mst.Rashidan P.Ws. That they had seen the appellant (Muhammad Naeem) and the acquitted accused (Muhammad Aslam) standing near the Charpoi of the deceased at the time of occurrence does not find mention therein. It follows that till the despatch of the dead body nobody disclosed before the Investigating Officer that it was Muhammad Naeem appellant who had murdered Gulzar Ahmad by firing at him with a pistol. Obviously, therefore, this story is afterthought and lends support to the originally lodged F.I.R. Exh.P.F. Showing that it was a blind murder. Learned counsel appearing on behalf of the complainant wants us to raise presumptions against the appellant (who according to the F.I.R. Had informed Muhammad Shafi Manager of Ameer of Bahawalpur that some unknown persons have shot dead Gulzar Ahmad) that he being the real culprit put the investigation on a wrong track to conceal his guilt. We are afraid, there is nothing on the file to warrant such a presumption against the appellant rather Muhammad Ramzan P.W. (son of the deceased) has conceded that Muhammad Shafi, Manager of Ameer of Bahawalpur (first informant not produced) visited the place of occurrence and was briefed by him about the occurrence who left for lodging the report and had reported the matter according to what had been told to him. S.I. Munawar Alam (P.W.10) also stated that nobody at any stage complained to him that Muhammad Shafi had lodged a false report.
14. For what has gone above, we are of the view that there is absolutely no satisfactory evidence warranting conviction of the appellant for the murder of Gulzar Ahmad. Consequently, we accept this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith if not wanted in any other case. The sentence of death imposed on the appellant is NOT confirmed. Reference, is, therefore, rejected.
Appeal accepted.