' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 91 of 1982 and the connected Murder Reference No, 66 of 1982 arise from the judgment of learned Additional Sessions Judge, Gujrat whereby he on 31-1-1982 while acquitting Latif and Bashir co-accused convicted Rafaqat appellant under section 302, P.P.C. For causing the death of Mehdi Khan and sentenced him to death and a fine of Rs,5,000, in default thereof 6 months' R.I. It was directed that the fine when recovered be paid to the legal heirs of the deceased. I propose to dispose of them through single judgment.
2. The occurrence took place on 16-8-1980 at Sarghiwela on the roof of the house of Shah Muhammad, father of the deceased situated in village Saka of P.S. Lalamusa. The distance between the place of occurrence and the police station is 15 miles. The F.I.R. Exh.P.B. Is the statement of Shah Muhammad, father of the deceased recorded at Police Post Kakrali at 5-30 a.m. By Amir Muhammad Shah, A.S.I., P.W.
15. The formal F.I.R. Exh.P.B/1 was drawn up by Muhammad Hayat A.S.I., P.W.2 on the same day at 8- 30 a.m.
3. The motive as alleged by the prosecution was that about 15/16 years before the occurrence Mian Khan paternal-uncle of the appellant, was murdered by Mehdi Khan deceased who was convicted and sentenced to imprisonment for life. It was one year before the present occurrence that he was released after having served out the entire sentence. To take the revenge of the murder of his paternal-uncle, the appellant along with acquitted co-accused fired at the deceased resulting in his death.
4. As far the main occurrence, it has been stated that at the eventful time Mehdi Khan, his father Shah Muhammad, his mother Mst. Niamat Bibi, P.W. 4 and Ghulam Ghaus, P.W.5 were asleep on the roof of the house of Shah Muhammad. A lantern was burning there. Shah Muhammad was awake.
He saw the appellant and the co-accused coming on the roof of the house through stairs. Bashir acquitted accused raised Lalkara that they had come to take revenge of the murder of Mian Khan.
Rafaqat appellant fired first shot hitting Mehdi Khan on his chest and abdomen while he was lying on the cot. On receiving injury Mehdi Khan got up when Latif co-accused fired second shot on him which hit on his right forearm. On this Mehdi Khan started running. He got down through stairs of Muhammad Inayat a neighbor and went to the Khanqah of Baba Fazal Hussain Shah where he concealed himself. The appellant and the co-accused searched for him but could not find him.
They then went towards the house of Muhammad Latif. Mehdi Khan was removed to Civil Hospital, Lalamusa by Allah Ditta and Mst. Niamat Bibi. Shah Muhammad left for Police Post Kakrali for report.
The case was registered under section 307/34, P.P.C. Mehdi Khan succumbed to the injuries in Civil Hospital, Lalamusa on the same day. Therefore, section 307, P.P.C. Was amended as 302, P.P.C.
5. On 17-8-1980 at 12-00 noon Dr. Rashid Javid P.W.16 conducted post-mortem examination on the dead body of Mehdi Khan. He found the following injuries:-
(1) "An entrance wound of fire-arm multiple in number in front of chest and abdomen upper part each measuring 0.4 c.m. x 0.4 c.m. And some were skin deep, some muscle and some were cavity deep. There was a collective entrance wound measuring 1.4 c.m. x 1.3 c.m. Into cavity deep on epigastrium.
(2) A fire-arm entrance wound on left forearm and a wrist. They were multiple in number and in the lower 2/3rd of wrist.
(3) A fire-arm entrance wound four five in numbers on the right hand hypophenor prominence. The wound was measuring 0.4 c.m. x 0.4 c.m. And into through and through. The margins were inverted.
(4) A fire-arm exit wound margins were everted on back of right hand 4, 5 in number on posterior aspect of the hand."
' In his opinion, the death was due to shock and haemorrhage as a result of injury No, 1 which was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was immediate. The time between death and post-mortem was 30 to 36 hours. In cross- examination, the Doctor stated that taking into consideration the damage occasioned to the internal organs of the deceased there could be very remote possibility of his moving from the place where he was injured.
6. On 16-8-1980 Amir Muhammad Shah, A.S.I. Had taken into possession two crime empties Exhs.P.8 and 9 from the place of occurrence vide memo. Exh.P.0 attested by Shah Muhammad complainant (not produced) and Ghulam Ghaus P.W.S. The report of the Forensic Science Laboratory, Exh.P.Q.
Reveals that both the empties were fired from the pistol recovered from the appellant.
7. The appellant was arrested on 27-8-1980 by Amir Muhammad Shah, A.S.I., P.W.15. On 31-8-1980, the appellant led to the recovery of pistol Exh.P.11 from a graveyard which was taken into possession vide memo. Exh.P.J. Attested by Mushtaq Hussain, P.W.3, Haji Allah Ditta, P.W.14 and Shah Muhammad, complainant (not produced). The recovery was effected by Amir Muhammad Shah, A.S.I., P.W.15.
8. To prove its case, prosecution examined 8 witnesses. Dr. Muhammad Rashid Javid, P.W.16 conducted post-mortem examination on the dead body of Mehdi Khan. Out of the three eye- witnesses, Mst. Niamat Bibi P.W.4 and Ghulam Ghaus, P.W.5 were produced as eye-witnesses.
Ghulam Ghaus did not support the prosecution case. Shah Muhammad, father of the deceased who was also an eye-witness of the occurrence, having died during the trial, could not be examined. Ghulam Ghaus, P.W.5, Mushtaq Hussain, P.W.3 and Haji Allah Ditta, P.W.14 were produced to prove the recovery of crime empties and pistol from the appellant but they did not support the prosecution. Amir Muhammad Shah, A.S.I., P.W.15 alone has supported these recoveries. The rest of the evidence is of formal nature.
9. When examined under section 342, Cr.P.C., the appellant denied all incriminating circumstances.
He raised the plea of false implication on account of enmity. In defence he produced affidavit Exh.D.1 of Shah Muhammad complainant exonerating him of the crime. No witness was produced in defence.
10. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt, inasmuch as, the medical evidence is in direct conflict with the ocular evidence and the recoveries of pistol and the crime empties having not been supported by the private witnesses. The learned counsel has also informed us that the legal heirs of the deceased have already entered into compromise with the appellant. On the other hand, the learned counsel for the State supported the judgment of the trial Court.
11. We have considered the arguments advanced by the learned counsel for the parties with care.
We feel that there is sufficient force in the arguments addressed by the learned counsel for the appellant. There were three eye-witnesses of the occurrence namely Shah Muhammad, complainant, Ghulam Ghaus, grandson of the complainant and Mst. Niamat Bibi, wife of the complainant. Out of them Shah Muhammad complainant could not be produced as a witness because of his natural death. Ghulam Ghaus has not supported the prosecution. Mst. Niamat Bibi, P.W.4 alone claimed to have seen the appellant alongwith co-accused firing at the deceased and thereby causing his death. She stated that she in fact saw the appellant firing at the deceased. In her statement before the Court, she stated:- "After receiving the first shot, the deceased got up and ran out but he was fired at by the accused in the meanwhile, whereupon he fell down at a Darbar which is at a distance of about one Killa from our roof."
Whereas Dr. Rashid Javid has categorically stated that Mehdi Khan could not have moved from the place where he was injured and that the death was immediate. It may be noted that the first shot had hit on the chest and abdomen of the deceased causing injury No, 1 on his person which had done great damage to the internal organs of the deceased. In the F.I.R., it has been stated that Latif had also fired shot on the deceased which hit on his right arm but Mst. Niamat Bibi stated that she had not seen Muhammad Latif Khan firing shot on the deceased. The conflict between medical evidence and the statement of Mst. Niamat Bibi is a reason to doubt that she in fact witnessed the occurrence. Since Mst. Niamat Bibi is the mother of the deceased and the accused party had involved the deceased in the murder case of ',Han Khan wherein the deceased was sentenced to imprisonment for life, therefore, the rule of prudence also requires independent corroboration of her statement on material points. The three witnesses of recoveries namely Mushtaq Hussain P.W.3, Haji Allah Ditta, P.W.14 and Ghulam Ghaus, P.W.5 have refused to support the recovery of crime empties from the spot and the recovery of pistol Exh.P.11 from the appellant. In the peculiar circumstances of the case it would not be in accordance with the safe administration of justice in criminal cases to place implicit reliance on the uncorroborated testimony of Amir Muhammad Shah, A.S.I., P.W.15 because he being Investigating Officer is naturally interested in the conviction of the appellant. The prosecution case is, otherwise, pregnant with numerous doubts. Muhammad Ashraf P.W.1 has stated that he had escorted the dead body of Mehdi Khan deceased from Police Post Kakrali to the mortuary whereas Amir Muhammad Shah, P.W. 15 has stated that the dead body of Mehdi Khan was not brought to the police post but was lying in Civil Hospital, Lalamusa from where it was escorted to the mortuary. In the F.I.R. It has been stated that Rafaqat appellant and Muhammad Latif had fired one shot each at the time of occurrence whereas two crime empties recovered from the spot tallied with the pistol recovered from Rafaqat appellant.
' For all these reasons we are of the view that the prosecution has failed to prove its case against the appellant beyond reasonable doubts.
12. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellant and while giving him the benefit of doubt, he 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.