' MAZHARUL HAQ, J.--Sher Dil (30) and his cousin Muhammad Ashraf (22/23) were tried for the murder of Khan Zada by the Sessions Judge, Mianwali on 18-1.1-1981, they were convicted under section 302/34, P.P.C. And sentenced to death. Each was fined Rs, 2,000 in default to undergo 2 years R.I. The fine if realized was ordered to be paid as compensation to the heirs of the deceased.
The appeal and the connected murder reference are before me.
2. Sher Dil and Muhammad Ashraf accused beat up Khan Zada in village Thammewali, but a compromise was effected. Khan Zada went to Karachi for labour. Five/six months before the occurrence in this case, the two accused went to Karachi and were beaten up by the deceased there. This was the motive for the crime in this case. According to the prosecution at 8-00 a.m. On 13-4-1980 Dost Muhammad (informant) and his father Bakhtawar were on their way to Chakrala, when they reached in front of Dhok Hakam Khan, village Thammewali and were at a distance of 25 to 30 Karams from the truck of the deceased, which was parked there, they saw Sher Dil accused armed with a gun near the window of the truck and Muhammad Ashraf accused armed with pistol stood in front of the truck. Sher Dil abused the truck driver and opened fire. The second shot was fired by Muhammad Ashraf from the front. The Informant and his father stood back. The accused fled away towards the south, the informant and his father went near the truck. Mian Muhammad who had his wheat field nearby also reached there. The dead body laid on the seat of the truck with a wound on the right side of the chest. The wind screen and the side window glass were broken.
Covering a distance of about 8 miles P.W.7 Dost Muhammad went to Police Station Chakra. He made F.I.R. Exhs. P.F. To P.W.9 Saleem Raza, Sub-Inspector at 9-00 a.m. The same day. After registering the case, the S.I. Went to the spot. He prepared the necessary documents and sent Khan Zada's dead body for its post-mortem examination. He took into possession blood from inside the truck and broken pieces of glass lying on the mudguard vide memo. Exh. P.B. He also took into possession Truck No, 819-823/77Karachi-78 through, memo. Exh. P-;-E. He found two glasses of the right side window broken. There were pellet marks on the right mudguard and the back rest of the truck seat.
3. P.W.4 Dr. Ashiq Ali, Medical Officer, D.H.Q. Hospital, Mianwali, held the autopsy on 13-4-1980 and found the following injuries on the dead body of Khan Zada:--
1. A fire-arm wound of entry with inverted edges 3 c.m. x 3 c.m. On the vertebral column 22 c.m.
Below the root of nape of neck. No blackening or tattooing was seen.
2.An exit wound with averted edges 2 c.m. x 1 c.m. Right chest, 3 c.m. Above the right nipple and 8 right of mid-line.
3.An exit wound with averted edges 2 c.m. x 1 c.m. Right chest, 5 c.m. Below right nipple and 6 c.m.
Of mid-line.
4.An abrasion 1 c.m. x 1/4 c.m. On the right temple probably by fall and striking against some hard object.
10th and 11th dorsal vertebrae and the spinal cord were fractured. Spinal Cord was smashed. 11th rib was fractured from back. Right pleura and the lower lobes of right lung were perforated. Big vessels of the heart were perforated. Four pellets. Gatta and Namda were found in right chest cavity.
' The diaphragm on its right side and upper part of right lobe of liver were perforated. There was about 8 ounces of semi-digested food in the stomach and some digested food in the small intestines. There was faucal matter in the large intestines. There was two ounces of urine in the bladder.
' In Doctor's opinion, the death occurred due to shock and hemorrhage caused by injury No,1.
4. P.W.9 Saleem Raza, S.I. Arrested both accused on 14-4-1980. The following day Muhammad Ashraf got recovered pistol P.5 and rifle P.6 from the land of Malik Aslam which were dug out from under the earth near a tree. The weapons were made into separate sealed parcels vide memo.
Exhs. P.J. And P.K. Respectively attested by the Investigating Officer, Dost Muhammad Constable No, 102 and Ahmad Khan Constable No, 540 (both constables not produced). On 16-4-1980 Sher Dil accused got recovered from within the wheat bundles gun P.7 which was taken into possession vide memo. Exh. P.L. Attested by the same aforesaid witnesses. After completing the investigation the accused were sent up for trial.
5. Both accused denied guilt and ascribed the case to enmity. Muhammad Ashraf claimed to have been roped in at the instance of Malik Muhammad Aslam, Chairman. No accused led evidence in defence. Relying on the motive story and the evidence of the eye-witnesses, trial Court considered the case satisfactorily proved against the accused. It, however, did not accept the evidence of the recoveries of the weapons.
6. Criticizing the finding, learned counsel for the appellants contended that it was a blind murder and out of enmity with the accused and relationship with the deceased, the two eye-witnesses have stage managed their presence at the spot. Since the recovery evidence has been rightly disbelieved, therefore, there was no corroboration of the evidence of the interested eye-witnesses.
Moreover, their testimony was also in conflict with the medical evidence as such, no reliance could be placed on it. On behalf of the state it was argued that the eye-witnesses had given a true account of the occurrence. They had not tried to exaggerate. Had they any motive to do so, they would have given the details of the injuries. Since they saw the occurrence from the distance of 25 to 30 Karams, their statements as such are true as to what they actually saw.
7. We have considered the submissions. The background of the earlier beating given to the deceased by the accused was for the first time elaborated by Dost Muhammad P.W.7 at the trial.
According to him, Sher Dil accused and the deceased, along with others, injured Sher Muhammad and Hakam. A case was registered against them, but a compromise was effected and it was decided that the injured of that case be paid Rs,1,500 as compensation. Since Khan Zada deceased had no money, Sher Dil accused paid Rs, 660 on his behalf. Later, the deceased refused to make the payment, therefore, about 7/8 years before the occurrence in this case, Sher Dil and Ashraf gave him a beating. The deceased was a truck driver; he left for Karachi about 6 months before the occurrence. A month later, both accused went there and were beaten up by the deceased. It is noteworthy that the story of deceased's debt was not mentioned in the F.I.R. Moreover, besides the solitary statement of the informant, there is no corroboration of his testimony with regard to the motive. In view of the fact that since he informant had admitted his strained relations with the accused, therefore, corroboration of his testimony with regard to the motive was necessary. We are of the view that the motive has not been satisfactorily roved by the prosecution.
8. The recovery of the weapons was disbelieved because the trial court found it highly improbable that the accused would bury the weapons just near the place of occurrence. Moreover, the Investigating officer did not join anyone from the general public to attest the recovery. Even the two constables who attested the recovery were not produced at the trial. Prosecution was, therefore, left with the solitary statement of the Investigating Officer, whose investigation has been rightly criticized by the trial Court for the careless manner in which he has prepared the Inquest Report Exh. P.H. And for having recorded supplementary statement Exh. D.B. Of the complainant which created a confusion about the place of occurrence. Under these circumstances, his solitary statement inspire no confidence at all to prove the recovery of the weapons from the accused.
9. The ocular testimony is given by Dost Muhammad P.W.7 and his father Bakhtawar P.W.B.
Admittedly, Khan Zada deceased was the first cousin of Bakhtawar. Under cross-examination, P.W.7 Dost Muhammad admitted that 7/8 years ago his uncle Dilawar was injured by Sher Dil accused's father, for which Sher Dil's father and his brother Mehr Khan were challaned. Mian Muhammad (given up eye-witness) is admittedly related to the informant. Muhammad Nawaz, paternal aunt's son of Sher Dil accused, had fired at said Mian Muhammad, but the shot hit a bullock and a case was registered under section 307, P.P,C. When confronted with the facts of Section 307, P.P.C. Case; Dost Muhammad showed ignorance about it. Obviously, he was trying to suppress the truth, because, being a co-villager, he could not have been that ignorant about the criminal case. In this context, trial Court has also observed that by showing lack of knowledge, Dost Muhammad was trying to suppress the facts. In spite of the admitted enmity trial Court chose to believe the eye- witnesses solely on the ground that they would not falsely rope in the accused on a capital charge.
Moreover, Bakhtawar was an aged and a respectable person, who stood the test of cross- examination. We are not inclined to accept this reasoning, because the informant, who is a son of Bakhtawar, has admitted their strained relations with the accused. The two eye-witnesses are also closely related to the deceased. We are, therefore, of the view that in the absence of independent corroboration of the interested eye-witnesses, it would not be safe to rely on their testimony. It is noteworthy that neither the motive story has been satisfactorily proved nor the recoveries of the fire arms as such, there is no corroboration forthcoming to support the ocular testimony.
9-A. We now take up the conflict between the ocular testimony and the medical evidence. Both accused were said to have fired a shot each at the deceased. P.W.7 Dost Muhammad deposed that at the time of firing, Khan Zada (deceased) was sitting in the driver's seat. In the site plan the road is East-West. According to P.W.2 Ghulam Hussain Patwari, the road was going in a depression.
Its northern side was 10/11 feet high whereas the southern side of the road was about 61 feet high.
The Inquest Report Exh. P.H. Indicates that the truck was standing in North-South direction. This was nobody's case. Undoubtedly, column 23 of the Inquest Report has been filled in recklessly. Whether the Investigating Officer was grossly negligent or had a motive to do so, is' a matter which has to be looked into by his superiors as already directed by the before Sessions Judge in his judgment.
One fact, however, is clear i.e, according to the eye-witnesses, Muhammad Ashraf stood in front of the truck, while Sher Dil approached from the side of the driver seat window. The shot fired by Muhammad Ashraf accused, being the second shot, hit the back seat, because In all probability the earlier shot fired by Sher Dil felled the deceased, therefore, it did not hit him. Under the circumstances, the sole question for consideration would be as to from what distance Sher Dil fired at the deceased and what was the deceased's posture at that time. As mentioned earlier these details are not given by the eye-witnesses nor they were questioned about it. It may be mentioned here that the height of both sides of the road would not be material in this case. The heights of the road sides as given by the Patwari, when compared with the upward direction of the solitary injury of the deceased, clearly show that the shot was not fired from the higher side of the road, because in that eventuality the pellets would have travelled downwards and not upwards as observed by the Doctor in the post-mortem report. Moreover, the Doctor also found no blackening or tattooing around it and there being one wound of entry and two of exit, indicate that the pellets went encase, meaning thereby that the shot was fired from a distance of more than 3 feet but less than 6 feet.
For this conclusion, we refer to "Legal Aspects of Medical Practice" by Bernard Knight, IInd Ed. Page
137. In figure 19 at page 136 of the same book, Characteristics of shot gun wounds at varying ranges have been shown and explained. Had the shot been fired from a distance of more than six feet, then there would have been more entry wounds than one. It thus follows that Sher Dil fired standing close to the window of the driver's seat and in all probability at that time the deceased has attempted to make an exit from the other door in the opposite direction and in doing so he may have gone out and stood on the foot board when he was hit. It would not have been possible for him to stand up in the truck. If he had been hit while he was still in the drivers seat and had only turned his back towards the assailant to go out, in that case the direction of the wound would have been in a straight line and not upward. According to the site plan, the two witnesses are shown on the road beyond Muhammad Ashraf accused, who had stood in front of the truck. As such, they would have noticed the movements of the deceased, but they have not said anything about it. This is not their case that the deceased had come out of the truck. According to them, he was fired at while he was sitting in the driver's seat. We are of the view that if the deceased was hit from the window and had just taken a turn, the direction of the wound would then not have been upward.
On this score also, we are not satisfied with the evidence of the eye-witnesses. Moreover, both father and son were said to be ailing. Bakhtawar had got trouble in his ankle. They claimed to be going all the way from their village to Chakra'l on foot to see Maulvi Allah Yar. On the other hand, we find that the informant went to make a report on cycle. He claimed to have stayed at the place of occurrence for about 10/15 minutes as and thereafter he went to make a report. How and from whom he got the cycle from the place of occurrence is not explained by the prosecution.
10. From the foregoing analysis of the evidence, we are not satisfied with the prosecution case.
Giving the benefit of doubt to the appellants, we accept their appeal, set aside their conviction and sentence and acquit them of the charge. They shall be released forthwith, if not required in any other case.