' MAZHARUL HAQ, J.-- Muhammad Sher (25), his brother Muhammad Nawaz (30) and Fatteh Sher
(35) were tried for the murder of Muhammad Hussain. On 17-3-1981, Sessions Judge, Mianwali convicted Muhammad Sher under section 302, P.P.C. And sentenced him to death with a fine of Rs, 3,000 in default to two years' R.I. The fine, if realized, was ordered to be paid as compensation to the heirs of the deceased. The remaining accused were acquitted. Appeal of the convict, the connected murder reference and Muhammad Amir complainant's revision against the acquittal are before us.
2. In 1972, Ghulam Abbas, a orother of Muhammad Sher and Muhammad Nawaz, accused, was murdered for which Ghazi brother of Muhammad Hussain (deceased) and four others were prosecuted and convicted but later they were acquitted in appeal. This is the motive for the crime in the present case. According to the prosecution, on 25-9-1979 in the office of the Union Council, Wah Bhachran, votes were being cast for the Union Council and District Council. Muhammad Amir (informant) and his co-villager Muhammad Hussain, Dost Muhammad and Muhammad Chiragh and several other co-villagers had gathered there. At about 12-30 p.m. After casting his vote, Muhammad Amir came out in the Varandah of the said Union Council's office. His aforementioned companions were also present in the Varandah. Just then, Muhammad Sher armed with a .12 bore pistol, Muhammad Nawaz, Fatteh Sher and Alam Khan armed with .12 bore guns appeared there.
Muhammad Sher fired at Muhammad Hussain which hit him on the right upper arm and near the arm-pit. He fell dead. The remaining three accused continued firing in the air. Causing a scare they went away. P.W. Muhammad Amir proceeded towards police station to make a report. Since P.W. 9 Ashiq Hussain A.S.I., was present at the polling station in Rest House, Wah Bhachran, Muhammad Amir met him there and made his statement Exh. P.E. To him on the basis of which formal F.I.R. Exh.
P.B/1 was registered the same day at Police Station Musa Khel situated at a distance of 15 miles from the place of occurrence. The A.S.I, then went to the spot, prepared the necessary documents, took into possession blood-stained earth and sent the dead body for its post-mortem examination. Thereafter, he searched for the accused.
3. P.W.1 Dr. Inamul Haq, M.O., D.H.Q, Hospital, Mianwali, held the autopsy at 7-30 a.m. On 26-9-1979 and found the following injuries on the dead body of Muhammad Hussain:- "(1) Two wounds of entrance at the lateral side of the chest 11" x 11" circular each on the right side, 6 c.m. Apart.
(2) Wounds on the right shoulder by gunshot (entrance wounds), skin was charred, one wound of entrance was 1 c.m. x 11 c.m.. And its exit was on the inner side at 5 c.m. Measuring 1 c.m. x 11 c.m. The other wound of entrance was 1 c.m. x 1 c.m. With exit on the inner side measuring 11 c.m. x 2 c.m. And the third wound was 1 c.m. x 1 c.m. (entry) with exit 11 c.m. On the inner side. Underlying bone under second wound of inlet and exit was fractured.
(3) Four wounds by gun shot in an area of 5 c.m. x 4 c.m. Each measuring 1 c.m. x 1 c.m. Circular in shape on the right side chest, just above the arm pit. The skin was charred.
(4) A circular wound of entrance 1 c.m. x 1 c.m. On the outer side of right chest, below the clavicle with skin charred."
' Third cartilage on the right side chest in the front, right pleura and right lung were injured. Right humerus bone was also fractured. Small intestine contained small amount of digested food, large intestine was full of faecal matter. The bladder was full of urine. Death in doctor's opinion was due to shock and haemorrhage caused by the injuries which were individually sufficient to cause death in the ordinary course of nature.
4. On 1-10-1979, Muhammad Sher, Alam Khan and Muhammad Nawaz, accused, appeared before P.W. 9 Ashiq Hussain, A.S.I, at Police Post Wah Bhachran who arrested them. Fatteh Sher, accused, was arrested by him the same day from the school at Mianwali. On 3-10-1979, Muhammad Sher, in custody, led the police to the recovery of his .12 bore pistol P.1 and live cartridge P.2 from within an iron box lying inside his house. These were taken into possession vide memo. Exh. P.D. Attested by P.W.10 Karam Hussain Shah, S.H.O., Police Station, Musa Khel, P.W. 5 Muzaffar Khan and Fatteh Muhammad (given up as unnecessary). On 5-10-1979, Khalas Khan, a brother of Muhammad Sher, accused produced the licensed guns of Alam Khan, Muhammad Nawaz and Fatteh Sher which were taken into possession vide memo. Exh. P.F. Attested by P.W.9 Ashiq Hussain, A.S.I, P.W.6 Muhammad Amir and Sahib Khan (given up as unnecessary). Licence P.9 of Alam Khan was also produced before the A.S.I.
5. Admitting their inter se relationship, all accused denied guilt.According to Muhammad Sher and his brother Muhammad Nawaz, for the murder of their brother Abbas, Ghazi and Muhammad Amir (informant) were accused. Ghazi was a step brother of Muhammad Hussain, deceased.
Muhammad Sher produced Exh. D.E. a certificate to show that the deceased was a Polling Agent of P.W. Muzaffar, Exh. D.F is the list of polling staff, Exh. D.G. Is the list of contesting candidates. He also produced copies of Nikahnamas Exh. D.H. And Exh. D.K., copy of F.I.R. No, 8 of 1926, Exh. D.L. And copy of the statement of Dost Muhammad Exh. D.M. Both Muhammad Sher and Muhammad Nawaz stated that they have been falsely roped in due to old enmity and were in fact arrested on 27-9- 1979. According to Muhammad Nawaz, his right arm had been fractured a few day before the occurrence. He was medically examined and was being treated. He claimed to have been declared innocent by the police and, therefore, he was discharged. Alam Khan, accused, ascribed the case to old enmity. Admitting that he was accused of the murder of Zaman, a paternal-aunt's son of Muhammad Hussain (deceased) and that in that case the deceased was a witness against him. He claimed to have appeared before the police on 27-9-1979. According to Fatteh Sher, in the F.I.R. Ghazi was not named but during the investigation, he was hauled up by the police and was convicted by the Jirga Tribunal for the murder of his father. He claimed to have been falsely roped in due to old enmity. He asserted that on the day of occurrence, he was present at the Civil Polling Station, Middle School, Mianwali and was thus found innocent by the police.
6. Relying on the evidence of the two eye-witnesses namely P.W.6 Muhammad Amir and P.W.7 Dost Muhammad, trial Court came to the conclusion that the prosecution case was satisfactorily proved against Muhammad Sher, to whom the fatal shot was ascribed. It however, did not rely on the evidence of the recovery of weapon. For sound reasons, it gave the benefit of doubt to the remaining accused and acquitted them.
7. Criticizing trial Court's finding, learned counsel for the appellantcontended that the complainant had a long standing enmity with the accsued, therefore, it was necessary to seek independent corroboration of the ocular testimony which in this case was lacking. Further the medical evidence belied the eye-witnesses because according to the prosecution only one shot was fired at the deceased but there are foul' injuries described as wounds of entry out of which injury No,1 are two wounds of entrance at the lateral side of the chest which are not charred, while the remaining bore charring which indicated that more than one shot hit the deceased. It was argued that the trial Court did not properly assess this aspect of the case inasmuch as it came to the conclusion that since the doctor was not thorough in his examination and he did not trace each entry wound to its end, it thus concluded that either the pellets hit the right upper arm and after making an exit entered the chest causing the entry wound covered by injury No,1 or may be due to perspiration in the arm-pit, the charring wag wiped away. We have considered this aspect of the case. These two wounds of entry are not in line with the gunshot wounds that hit the deceased on his shoulder because there is no evidence to show that the shots were fired from a higher level. Moreover, according to the doctor, the assailant who caused injury No,1 in the chest would be in front of the deceased while injury to the shoulder was caused from deceased's right side. Further according to the doctor, injury No,3 was caused from higher level. Under these circumstances, it could not be the result of a single shot. There is thus a contradiction in the evidence of the witnesses and the medical evidence. It was next contended that the deceased's stomach was found empty, as such the occurrence, in all probability, took place much earlier and not at about noon time. It was further contended that the statement of Muhammad Amir, (informant) was full of improvements and contradictions because according to him he was not aware as to why the deceased was present at the polling station. But when police came and recorded the inquest report, the witness was present and in the inquest report, it was noted that the deceased was there to get the votes of his relations and women-folk cast. Again, under cross-examiantion, the informant stated that he did not know from which side the accused came, but simply said that they suddenly appeared. He denied the fact that the accused had raised a Lalkara but in the F.I.R. He had so stated. It appears that the witness took up this position because had he heard them exhorting the Lalkara, then be would have thus known from which side they appeared. He also added that Sher Muhammad fired from a distance of about a Karam. He did not mention that distance in the F.I.R. It was further argued that Muhammad Amir who was an accused in the murder case of Muhammad Sher's brother would have been the first target, had he been there at the place of occurrence. Discussing this aspect of the case trial Court observed that the statement of the complainant will have to be accepted with a pinch of salt, but placed reliance in him because his evidence was corroborated by P.W. 7 Dost Muhammad whom the trial Court considered a disinterested witness who in fact was as much an interested witness as the informant. P.W.7 Dost Muhammad was also admittedly inimical towards the accused and related to the deceased. His first cousin was married to the first cousin of the deceased. A niece of deceased's cousin was married to Nawaz, a brother of the witness. This witness admitted that Muhammad Nawaz the acquitted-accused, brother of Muhammad Sher, appellant, was a prosecution witness in a case of murderous assault on Ahmad Khan. Witness's brother Rab Nawaz and his cousin Muhammad Sher were accused of the firing in that case. After admitting these suggestions, Dost Muhammad, however, stated that the case was compromised and Muhammad Nawaz did not support the prosecution case. Dost Muhammad also claimed to be related to Muhammad Sher, appellant. This fact was, however, not put to Muhammad Sher, but under cross-examination P.W. Dost Muhammad was suggested that he had incorrectly introduced this relationship. Even otherwise, relatives can also be inimical with each other. The fact remains that appellant's brother was a witness in a criminal case against Dost Muhammad's brother and cousin. We further find that according to P.W. Dost Muhammad, deceased, Chiragh, and Amir, informant, were already present in the Union Council Office, when he reached there about 4/5 minutes before the occurrence but in his statement Exh. D.A. Before the police, he had said that he had come alongwith them since morning for casting votes. We are of the view that P.W. Dost B Muhammad was not a disinterested witness. His evidence is no better than that of the informant.
8. There is another aspect of this case which requires consideration.Undoubtedly, large number of persons were gathered at the Polling Station for casting votes but no unconnected witness has been produced to support the prosecution case. P.W.9 Ashiq Hussain, A.S.I. Mentioned under cross- examination that he received chit Exh. P.L. From the Presiding Officer of the Polling Station that a man had been murdered before the informant came and reported the matter to him. Strangely enough, the A.S.I. Made no enquiries from any official on duty at the Polling Station. His conduct has been rightly criticized by the trial Court. Similarly, the investigation was carried out by P.W.10 Karam Hussain Shah, S.H.O., and recovered pistol and cartridges from Muhammad Sher, accused on 3-10- 1979 yet he moved an application Exh. P.Q. On 6-10-1979 before Court for physical remand of the four accused on the ground that the weapons are still to be recovered from them. We are, of the view, that the trial Court has rightly made its observation with regard to the conduct of the police officials in this case. However, the recovery of the weapons in this case will have no bearing because no crime empty was recovered from the spot and the recovered weapons are thus not connected with the commission of the crime.
For the foregoing analysis of the evidence of the eye-witnesses and the medical evidence, we are not satisfied with the guilt of the appellant. Giving him the benefit of doubt, we accept his appeal, set aside the conviction and sentence and acquit him of the charge. He shall be released forthwith if not required in any other case.