' ABDUL JABBAR KHAN, J.--Warryam son of Muhammad All aged 26 years and Fateh Muhammad son of Nur Muhammad aged 35 years, were tried along with Muhammad Ashiq son of Noor Muhammad, by the learned Sessions Judge, Bahawalnagar under section 302/34, P.P.C. By 'his judgment dated 17th September, 1973 the learned Trial Judge while acquitting the co-accused, convicted Waryam and Fateh Muhammad. He sentenced Waryam to death and Fateh Muhammad has been awarded life imprisonment. Waryam and Fateh Muhammad have filed this appeal against their conviction and sentences. There is also a murder reference for the confirmation of death sentence. We propose to dispose of the appeal as well the murder reference by this judgment.
2. According to the prosecution the occurrence took place on the night between 17/18th August, 1972 (17th of lunar month of Rajab) at Chah Ghulam Wala Dakhli in village Bhoondi, situated at a distance of six miles from Macleod Ganj, District Bahawalnagar. The F.I.R. Was lodged by Ghulam Muhammad P.W.8, the father of the deceased on 18th August, 1972 at 5-00 a.m. At Police Station Macleod Ganj. The same was recorded by Muhammad Shafi S.1. (P.W.13). The motive as set up by the prosecution is that Mst. Khurshidan D.W.1 d/o Noora married Qasim deceased three years prior to this occurrence. This marriage was disliked. By the relations of Mst. Khurshidan. Hence her son Waryam appellant, her brother Fateh Muhammad alongwith Muhammad Ashiq (acquitted accused), a friend of the aforementioned appellants, committed the murder of Qasim deceased, Ghulam Muhammad P.W., the father of the deceased on whose instance the F.I.R. Was lodged has narrated the occurrence in the following manner.
' Ghulam Muhammad P.W. Had three sons, elder being Qasim deceased who had married Mst.
Khurshidan D.W.2 three years before this occurrence. This Mst. Khurshidan was originally living with her parents but later on started living with her husband Qasim deceased. Somehow Ghulam Muhammad P.W. (father-in-law of Mst. Khurshidan) sent her back to her parents but again she returned and started living with her husband. Mst. Khurshidan D.W. Prior to her marriage with Qasim deceased was the wife of one Muhammad Ali who was murdered. She had four sons and two daughters from said Muhammad Ali, Waryam appellant was second son of Muhammad All who was on visiting terms with Qasim deceased. On the fateful night Ghulam Muhammad P.W., his brother Waryam P.W. 9 and his son Qasim deceased were all sleeping at Chah Ghulam Wala. Mst.
Khurshidan D.W. Was also sleeping nearby. At about mid-night Ghulam Muhammad P.W.8 and Waryam P.W. 9 on hearing a gunshot woke up and found Qasim deceased in an injured condition.
They also saw Waryam and Fateh Muhammad appellants armed with guns and Muhammad Ashiq (acquitted accused) armed with a pistol.
' The accused challenged the P.Ws. And threatened them with dire consequences. After extending this threat they made good their escape and on their way Usman P.W. 11 and Muhammad All P.W.12, the two Wajtakkar witnesses met them. Qasim deceased died on the way while he was being taken to the Police Station near Macleod Gunj bus stand due to loss of blood.
3. Muhammad Shafi S.I. (P.W. 13), after recordihg the F.I.R. Exh. P.D. Took the dead body of Qasim deceased into possession which was lying outside the police station and prepared injury statement Exh. P.H/1. He also prepared inquest report Exh. P.H. And dispatched the dead body to the mortuary at Minchanabad under the escort of Allah Ditta F.C. P.W. 5 for post-mortem examination.
He then proceeded to the spot and took into possession some blood-stained earth vide memo.
Exh. P.B. He found a crime empty Exh. P.1 lying at the spot which was (sic) secured by through memo. He found pellets P.2 to P.4 at the place of occurrence and took them into possession vide memo. Exh. P.C. He arrested the accused on 19th August, 1972 who was produced by one Sher Baz.
At the time of his arrest Waryam appellant was carrying gun P.5 which was taken into possession vide memo. Exh. P.D/1. He recovered one live cartridge P.6 from the possession of Waryam appellant and the same was taken into possession vide memo. Crime empty P.1 and gun P.5 were sent to the Forensic Laboratory for their comparison. Abdul Rashid P.W.2 the Fire arms Expert, received these parcels on 26th August, 1972. According to him crime empty P.1 had been fired from gun P.5.
4. Dr. Muhammad Rafiq Medical Officer Civil Hospital Minchinabad, conducted post-mortem examination on the dead body of Qasim deceased on 18th August, 1972 at 4-00 p.m. He found one gunshot wound of entrance 4" x 1" on the front of the right side of chest about 5" below the right cavical. There was an exit wound 4" x 4" on the right side of the chest about 3" below and lateral to injury No,1. He removed 7 copies of gatta from the peritonal cavity. Three pellets were removed from under surface of the skin on the posterior surface of the right side of the abdomen. In his opinion the cause of death was due to severe haemorrhage and shock due to injury No,1 which was sufficient to cause death in the ordinary course of nature. He declared that time between injury and death was immediate and between death and postmortem was about 12 hours. He further stated that gunshot was fired from a very close range approximately one foot.
5. The cash of the appellants as well as the acquitted accused Muhammad Ashiq was of bare denial. The appellants pleaded innocence and produced Mst. Khurshidan in their defence as D.W.
1. It may be pointed out at this stage that the investigating agency did not arrest Fateh Muhammad appellant and Muhammad Ashiq co-accused as they were found innocent as a result of the investigation. They were accordingly placed in column No, 2 of the challan by the police but were summoned by the learned Inquiry Magistrate and were committed to stand their trial befoae the Court of Session.
6. The case of the prosecution rests on the ocular evidence corrobo- rated with the recovery of crime empties from the spot and gun P.5 from Waryam appellant. The eye-witness account has been given by Ghulam Muhammad P.W.8 the father of the deceased. Waryam P.W.9 (uncle of the deceased) and Bashir P.W.10 a tenant of Ghulam Muhammad P.W. This Bashir P.W. Is not mentioned in the F.I.R. Although he claims to be an eye-witness. Two more witnesses have been produced by the prosecution to corroborate the testimony of the above-mentioned eye-witnesses and they are Usman P.W.11, Muhammad Ali P.W.12, the first cousin of Ghulam Muhammad P.W.8. These witnesses claimed to have seen the appellants as well as the (acquitted) co-accused while they were running away from the scene of occurrence. Mst. Khurshidan wife of the deceased who was cited as an eye-witness in the F.I.R. Was examined as D.W. 1 by the defence. The prosecution failed to produce this witness both before the cummitting Court as well as at the trial.
7 We have heard the counsel for the parties and have perused the entire record very carefully. We find that all the P.Ws i.e, the eyewitnesses as well as the Wajtakkar witnesses are closely related to the deceased and thus we have to seek a strong corroboration to connect the appellants with the crime. In this respect the prosecution has relied on the recovery of crime empty P.1 and that of gun P.5 and it has been argued that with the report of the Fire-arms Expert it has been proved beyond doubt that Waryam appellant from whom gun P.5 was recovered, was the person who fired and killed the deceased. By analyzing this piece of evidence, we find this does not advance the case of the prosecution in any manner. It is on the record that the crime empty P.1 was taken into possession on 18th August but Abdul Rashid P.W.2, the Fire-arms Expert, received it along with gun P.5 on the 26th August. There is no denial of the fact that crime empty and gun P.5 remained with the police for fully eight days, a fact which by itself makes the report of the Fire arms Expert in favour of the prosecution, of no consequence. Waryam appellant has disowned gun P.5 allegedly recovered from him and has contested the sanctity of memo. Of recovery Exh. P.D.1. We find that the only independent witness of this recovery memo. Sher Baz s/o Subbah Sadiq has been given up and Ahmad All P.W.7, who has supported it is the first cousin of the complainant. Besides being a first cousin of the complainant he is son-in-law of Ghulam Muhammad P.W. And real brother of Muhammad Ali. He was specially called by the police from a distance of one mile to attest this C recovery memo. No reliance can be placed on his evidence which is of very tainted nature. We are of the considered opinion that Waryam appellant does not stand connected in any manner whatsoever with the evidence of recovery produced against him by the prosecution and thus no corroborative evidence has been placed on the record to support highly interested and partial evidence.
8 We cannot lose sight of this fact that two of the three accused mentioned in the F.I.R. Have been declared innocent by the investigating agency although we find that they were fully described and were assigned positive roles. If these witnesses can go to the extent of falsely implicating two innocent persons with the offence of murder, no reliance can be placed on their testimony regarding Waryam appellant. While going through their evidence we have marked that all these witnesses have made improvements in their statements and have made positive statements which are contradicted by the F.I.R. They have fully described Muhammad Ashiq co-accused as the person who was present with the appellants armed with a pistol and had actively participated in the commission of crime but Waryam P.W.9 has clearly stated before the learned trial Court that he saw another man along with the appellant with muffled face and he could not identify him.
Similarly these witnesses were bold enough to introduce the name of Bashir P.W. Although he was never mentioned in the F.I.R. They have also mentioned the presence of Mst. Fajjan and one Allah Ditta but we find them nowhere in the entire prosecution case set up by the investigating agency.
Their evidence is full of contradictions which clearly shows that they have got no scruples and can go to any length to make out a case against the appellants. The evidence of these witnesses is belied by the medical evidence on the record. We find in their evidence that Waryam appellant fired the gun at Qasim deceased from a distance of 8 to 9 paces i.e, 26 ft. Whereas the doctor opined that the gun was fired from a very close range approximately one foot. According to the statements of these witnesses there was moonlit night at the time of occurrence and thus there was no difficulty for them to identify the appellants and their co-accused. This fact is fully belied by the calendar which shows that it was 7th of the lunak month of "Rajab" and the moon was set by 10-00 to 11-00 p.m. It is also in evidence that post-mortem examination was conducted at 4-00 p.m. And the time between death and post-mortem was 12 hours. This will clearly show that the occurrence took place near about 4-00 a.m. In the morning, the time when there was no possibility of any moonlight. Bashir P.W. 10 harps in the similar strain and his evidence is highly unworthy of reliance. Mst. Khurshidan widow of Qasim deceased has appeared as D.W.1 and has unequivocally stated that there was no bad blood between his brother Fateh Muhammad appellant and Qasim deceased over the issue of her marriage and she was living with her deceased husband peacefully and happily for the last three years. She has further added that Waryam and Fateh Muhammad appellants remained on visiting terms during the abovementioned period. She has fully exonerated the appellants who remained on visiting terms during lie to the statements of the P.Ws. (she.). We do not attach much importance to her statement regarding the occurrence as she being the mother of Waryam appellant and sister of Fateh Muhammad appellant will naturally come out to help them. But out of her statement one fact cannot be ignored that she corroborates the F.I.R. On a point which is very much in favour of the appellants. It is clearly mentioned in the F.I.R. By Ghulam Muhammad P.W. That Waryam appellant was on visiting terms with Qasim deceased. Thus in view of the narration as given in the F.I.R. And supported by Mst. Khurshidan, it become unimaginable that all of a sudden Waryam and Fateh Muhammad appellants had come forward to avenge the insult which they did not consider it so for a long periods of three years.
9. In the light of above discussion we are of the opinion that the learned trial Court had no justification to convict and sentence the appellants on the basis of tainted, interested and highly unreliable evidence without any corroboration from any independent source. The prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt and thus we accept the appeal, set aside the conviction and sentences of the appellants and acquit them. They should be set at liberty unless they are wanted in some other case. The Murder Reference for the confirmation of death sentence is hereby rejected.