BASHIRUDDIN AHMAD, J.-Ghulam Akbar (36) was tried for the murder of Fateh Sher on 27-8-1967 by the learned Sessions Judge, Sargodha, who convicted him under section 302, P. P. C. And sentenced him to suffer death.
2. The condemned-person has appealed and the case is also before us on reference under section 374, Cr. P. Code, for conformation of the death sentence. We propose to dispose of the appeal and the reference by a single judgment.
3. The facts of the case, shortly stated, are that Mst. Gahran, who is married to Muhammad Sher, a brother of the deceased, had developed illicit relations with the appellant and had obtained an ex parte decree for dissolution of her marriage from a civil Court at Jauharabad. She was living in the house of her father-in-law, Alam Sher, at Katha Misral. On the eventful day, at about peshiwela, the deceased told Mst. Gahran to discontinue the illicit connection with the appellant. Mst. Gahran took it ill. She left for the house of the appellant and after a short while, the appellant came to the house of Alam Sher armed with a rifle and asked the deceased as to why he had stopped Mst. Gahran from visiting him. This led to the exchange of hot words between the deceased and the appellant.
The latter fired twice at the deceased, who dropped to the ground and died. Alam Sher, his son Muhammad Sher and Mst. Saran, the mother of the deceased, witnessed the occurrence. Alam Sher proceeded to Katha Sagral Police Station, three miles away from the scene of the crime, and reaching there at 4-00 p. m. The same day, lodged the report, Exh. P. G.
After scribing the report A. S. I. Inayat Hussain (P. W. 11) went to the spot, took into possession blood- stained earth and scaled it into a parcel. He prepared the injury-sheet and the inquest--report find then despatched the dead body to the mortuary for post--mortem examination. Khan Beg (P. W.
6) acid Muhammad Sher (P. W. 8) were associated With the investigation and in their presence the investigating officer recovered from the spot an empty-shell; Exh. P. 4, and sealed it into a parcel.
4. The case was partly investigated by S. I. Muhammad Iqbal (P. W. 10) who arrested the appellant on August 29, 1967. The appellant produced rifle, Exh. P. 1 and three live cartridges Exhs. P. 2/1-3, which were taken into possession, vide memo. Exh. P. A. The rifle was sealed into a parcel. It may be stated here that the rifle, Exh. P. 1 alongwith the crime empty was submit--ted to the Ballistics Expert, who opined that the empty cartridge, LA-.Pi 4 was not fired with this rifle.
5. Dr. Shahid Husain Bukhari (P. W. 1) performed the post-mortem examination on the dead body of Fateh Sher deceased on August 28, 1967 at 11-00 a.m. And found the following injuries: -
(1) A gun shot wound of entrance --' x --" on the outer aspect of right thigh 1 /3 below the rightilliac crest in the line of right hip joint.
(2) A gun shot wound of exit 3/4" x --" on the left side of abdomen, 3-- lateral to umbilicus at 2-30 o'clock. The part of greater omentum was protruding through the wound.
The death, in the opinion of the doctor, occurred due to shock and haemorrhage, caused by injury No. 1.
6. The defence of the appellant was a bare denial. He ascribed the case to enmity. He produced in his defence a copy Exh. D. E. Of the statement of Mst. Gahran made in the civil suit brought by her against Muhammad Sher for the dissolution of marriage, copy Exh. D. F. Of the judgment of the civil Court in the above-said suit, copy Exh. D. G. Of the plaint filed by Nur Muhammad and Fateh Muhammad, uncles of Mst. Saran against the appellant and his relatives regarding the dispute about water--mill and garden and Exh. D. H. Which is a copy of the judgment in that suit to be considered in his defence.
7. At the trial; Alam Sher (P. W. 7), his son Muhammad Sher (P. W. 8) and Mst. Saran, wife of Alam Sher (P, W. 9) furnished direct evidence. The substance of their evidence is that on the day of the alleged occurrence, at about peshiwela, they were present at their house in Katha Misral when Fateh Sher deceased told Mst. Gahran to stop prosecuting a love-intrigue with the appellant. Her husband, Muhammad Sher, Alam Sher and Mst. Saran were also present in the house at that time.
Mst. Gahran refused to do so. She got up and went to the house of the appellant. Shortly afterwards, the appellant came to the spot armed with a rifle and enquired from the deceased as to why he had stopped Mst. Gahran from visiting him. This led to the exchange of hot words between the deceased and the appellant, who fired twice at the deceased. The deceased dropped to the ground mortally wounded and died later.
8. We find from the evidence that Mst. Gahran had instituted a suit for dissolution of marriage ten months before the occurrence and the suit was decreed on 24-3-1967. It is difficult to believe that after the suit for dissolution of her marriage with Muhammad Sher, she still continued to live with him. The prosecution did not call her as a witness to prove that later on there had been re- approachment between the husband and the wife and Mst. Gahran continued to live with Muhammad Sher at Katha Masral. The admission on the part of Muhammad Sher that his application for setting aside the ex parte decree was still pending in Court when the occurrence took place lends support indirectly to the belief in our minds that the story with regard to the motive in this case had been concocted.
9. The evidence with regard to the actual occurrence is interested consisting of witnesses who are closely related to the victim of the crime. There had been also enmity between the parties. The appellant was not only carrying on openly with Mst. Gahran, but had also abducted her, as is clear from the statement of Alam Sher on more occasions than one. Fateh Muhammad, the father of Mst.
Saran (P. W. 9) had two brothers, namely, Gheba and Nur Muhammad. Abdullah was a grandfather of Mst. Saran. Khan Beg P. W. Who witnessed the recoveries is the son of Gheba. 31st. Fatima, a sister of Khan Beg, is married to Ghazi. Qadir Bakhsh is son of Ghazi. It is proved from certified copy of the report, Exh. D. D. That in the year 1955, Qadar Bakhsh son of Ghazi had lodged a report with the police under sections 147/148 and 324, P. P. C. Against Ali and others including the present appellant for assaulting him and his uncle Nur Muhammad. There was litigation between the father and uncle of Mst. Saran on one side and the appellant and his relatives on the other regarding a water- mill and a garden belonging to Allahditta, as is borne out from certified copies of the plaint Exh. D.
G. And the copy of the judgment of the Senior Civil Judge, Sargodha dated 14-3-1961 in the above case.
The trial Judge doubted the presence of Alam Sher and his wife at the time of the alleged occurrence, because Alam Sher and his wife resided at the water-mill which is only a couple of furlongs away. He accepted the presence of Muhammad. Sher P. W. At the time of the occurrence considering that Muhammad Sher lived with the deceased in the village. Assuming for the sake of argument that Alam Sher and his wife also lived in the village with their sons including the deceased, still the story as narrated by them is not corroborated by any independent witness. The house where the occurrence took place is in the abadi. There are 300 houses in the village. The kotha of Manga Machhi is admit--tedly adjacent to the house of Alam Sher at Katha Misral. There are other houses as well, but not a single disinterested witness was produced to corroborate the evidence of witnesses who are not only interested, but also inimical to the appellant.
10. The ocular evidence is to the effect that the deceased went towards the appellant when challenged and the appellant fired at him twice. The doctor who performed the post-mortem examination found that only one shot had been fired. It entered on the outer aspect of right thigh below the right illiac crest and the exit wound was an the left side of abdomen I" lateral to the umbilicus. The ocular evidence is thus inconsistent with the medical evidence. The trial Judge tried to resolve this contradic--tion considering that the appellant fired two shots, but one of the shots fired hit the deceased. The conclusion is highly improbable because the appellant had fired while standing with a rifle at a target which he could not possibly miss. Since none of the witnesses had seen the occurrence, they considered that two shots had been fired because they were not in a position to distinguish between wound of entry and the wound of exit. The seat of the injury also belies the claim of the witnesses that they had seen the occurrence because had the assailant fired at the victim while standing, the track of the missile would have been from above downward.
11. The circumstance that the crime empty recovered from the spot did not match the rifle which was recovered from the appellant further makes the prosecution version unacceptable. The whole case is pregnant with serious doubts as regards the complicity of the appellant in the commission of the crime. We do not, therefore, consider it safe to maintain the conviction of the appellant. We, accordingly accept the appeal, set aside the conviction and the sentence of the appellant and order him to be acquitted. He is in jail and we direct that he be set at liberty forthwith provided always that his detention is not necessary in connection with any other matter. The death sentence is not confirmed.