JAVID IQBAL, C.J.--Ghulam Safdar son of Faqir Muhammad, aged 36, armed with .12 bore pistol, has been convicted under section 302, P.P.C. For the murder of Aurangzeb, aged 30, and, vide judgment, dated 19-7-1981 of the Additional Sessions Judge, Attock he was sentenced to death plus fine of Rs.5,000 or in default to undergo two years' rigorous imprisonment with the direction that he should pay Rs.5,000 under section 544-A, Cr.P.C. As compensation to the heirs of the deceased, or in default thereof to undergo two years rigorous imprisonment. Ghulam Khan cousin of the convict and co-accused stated to be armed with rifle was given the benefit of doubt and acquitted. The appeal of the convict as well as reference for the confirmation of death sentence awarded to him alongwith Criminal Revision No. 168 of 1981 against acquittal of Ghulam Khan co-accused are being taken up together and disposed of by this judgment.
2. The occurrence took place at 11-00 p.m. On 17-4-1981 in the house of the deceased in Pind Mehri at a distance of ten miles from police Station Hasanabdal District Attock. F.I.R. (Exh. P.F.) was lodged by Muhammad Ashraf (P.W. 7) brother of the deceased at 1-45 a.m. On the same night i.e. On 18-4- 1981 and it was recorded at the police station by Shabir Husain S.I. (P.W. 10).
3. The motive for crime as stated in the F.I.R. Is that 10/12 years ago Abdul Rahman, brother of Ghulam Khan acquitted co-accused and brother-in-law of Ghulam Safdar appellant, was murdered and in that case specific persons had been named as accused persons who were eventually acquitted. Although Aurangzeb deceased had not been named as an accused person in that case, the appellant and the acquitted co-accused had suspected that he had also a hand in that murder. It is alleged that it is in this background that the present accused party committed the murder of the deceased.
4. There are three eye-witnesses of the occurrence namely Muhammad Ashraf (P.W. 7) brother of the deceased, Mst. Shahnaz Bibi (P.W. 8) widow of the deceased, and Mst. Zaryan Jan (P.W.9) sister of the deceased. They claim to have witnessed the occurrence on the ground that they were inmates of the house and they were asleep in the same courtyard at the time of commission of crime. The trial Court has relied upon their testimony.
5. Both the appellant and the acquitted co-accused were arrested on 24-4-1981 by Shabir Husain S.I. (P.W. 10). There is no recovery from the spot but on the same day at the instance of Ghulam Safdar appellant .12 bore pistol (Exh. P.10) was recovered and taken into possession, vide memo.
Exh. P.J. The attesting witnesses are Muhammad Sabir (not produced), Zamurrad (not produced) and Shabir Husain S.I. (P.W. 10). Similarly, on the same day at the instance of Ghulam Khan acquitted co-accused was recovered licensed 7 MM rifle (Exh. P. 7) and taken into possession, vide memo. Exh. P.D. The attesting witnesses are Muhammad Nawaz (not produced), Muhammad Miskeen (P.W. 5) and Shabir Husain S.I. (P.W. 10). These recoveries have been relied upon by the trial Court. Whether these recoveries are believed or not believed these do not connect the accused party with the commission of crime and, therefore, these are of no consequence. The case of the prosecution is mainly based on the ocular testimony.
6. In the F.I.R. The occurrence is reported to have taken place in the following manner: On the fateful night Aurangzeb deceased was asleep in the courtyard of his house as he had come 5/6 days before to the village. In the same courtyard were also asleep his brother Muhammad Ashraf complainant P.W. 7, Mst. Shahnaz Bibi (P.W. 8), his widow and sister Mst. Zaryan Jan (P.W. 9). It was moonlit night (11th of the lunar month). At about 11-00 p.m. Muhammad Ashraf P.W. Was woken up on hearing the noise of foot-steps. He saw that the appellant armed with .12 bore pistol and the acquitted co-accused armed with rifle were standing near the cot of the deceased. Ghulam Khan acquitted co-accused warned Muhammad Ashraf P.W. That if he raised alarm he would be killed.
Therefore, Muhammad Ashraf P.W. Did not raise his voice. In the meantime he saw that the appellant fired a shot at the deceased while he was asleep. On hearing the report of the fire-arm Mst. Shahnaz Bibi P.W. As well as Mst. Zaryan Jan P.W. Suddenly were up. In the meantime Ghulam Khan acquitted co-accused fired in the air. On the alarm of the three eye-witnesses the appellant and the acquitted cc-accused ran away. The eye-witnesses noted that deceased had received a fire-arm injury near his right shoulder and therefore, he was unconscious as blood was flowing out of the wound. He was being taken to the hospital for treatment but he died on the way. Leaving behind Muhammad Akram to guard the dead body on the spot Muhammad Ashraf P.W. Proceeded to lodge the report.
7. The appellant in his statement before the trial Court denied having participated in the occurrence. He disowned the recovery allege to have been made from him and made the following statement:- "Mst. Shahnaz has persuaded all the witnesses to support her false evidence against us. In fact she has conspired the murder of her husband and it is rumoured in the village that Noor Muhammad and Rabnawaz were responsible for this murder. It is also said that one Akhtar whose leg got fractured on that night while fleeing away from the scene of occurrence had also assisted Rabnawaz and Noor Muhammad in the crime. Mst. Shahnaz has concocted a false version at the instance of Noor Muhammad order to save him from the consequences of this crime Noor Muhammad and his brother Ghulam Muhammad were convicted the murder of Abdul Rahman and they are on inimical terms, with us up-till now. Allah Dad father of Rabnawaz and Malik Ashraf after deliberations got the case registered against through Muhammad Ashraf P.W. My mother's first cousin Azad was murdered by father of Allah Dad. Malik Ashraf was convicted under the Arms Act at the secret information given by us to the police and my cousin Ghulam Farid had appeared as a witness against him. Both of them are our enemies."
He stated that he would produce defence but he did not.
So far as Ghulam Khan acquitted co-accused is concerned he also made an identical statement.
He further stated that nobody had witnessed the occurrence. All the family members of the deceased were sleeping in the courtyard of one Muhammad Din who was ill and that only the deceased was sleeping in the courtyard of his house when was killed. He also stated that they had during the investigation offered to satisfy every one about their innocence on any oath acceptable the opposite party and vice versa but the complainant party refused to accept both the offers.
8. Dr. Muhammad Khan (P.W. 1) conducted post-mortem examination on the dead body of the deceased on 17-4-1981 and found on his, person a fire-arm wound on the right axilla 11 c.m. x 3 c.m. x chess and three injuries on the right and back side of chest below right shoulder tip. The first injury was grievous and dangerous to life and caused by fire-arm. The second injury was exit wound. In his opinion death occurred due to the fire-arm injury which resulted in haemorrhage, shock and which was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem.
Time between death and injury was about one hour. He stated in the cross-examination that there was no burning, tattooing or blackening on the wound of entry. From short distance of 3 or 4 feet blackening, tattooing or burning was always found on the wound caused by fire-arm. He stated that the entry wound was on the front side of axilla and exit wound on the back side of chest. The direction of the injury was from above downward. The injury could possibly be caused from the head side of the deceased.
9. We have heard learned counsel for the parties and carefully perused the record. Firstly it is argued that the motive does not stand proved in the instant case. The reasoning is that the motive as set up by Muhammad Ashraf P.W. Brother of the deceased is that 10/12 years ago Abdul Rahman, brother of Ghulam Khan acquitted co-accused and brother-in-law of the appellant, was murdered and in that murder case specific persons who were named as accused persons were Ghulam Muhammad, Noor Muhammad and one Safdar. In that murder case one of the eye- witnesses was real brother of the appellant who had deposed that he had not only witnessed the occurrence but attributed specific parts to Ghulam Muhammad, Noor Muhammad and Safdar accused in that case. In the record of that case there is no mention that the complainant side had suspected Aurangzeb deceased of having any hand in that murder. The judgment in that case is Exh. D. D., dated 24-7-1970. It is part of the record. The occurrence had taken place on 27-9-1969.
Thus, the argument of learned counsel is that first of all if the accused party had suspected Aurangzeb deceased as one of the culprits in that murder case, why did they wait for 10/12 years before killing him. Next it is argued that the accused persons namely, Ghulam Muhammad, Noor Muhammad and Safdar in that case were eventually acquitted, but how could it be possible that the accused party in the present case did not proceed to murder any of them to avenge the death of Abdul Rahman deceased and instead proceeded to kill Aurangzeb deceased who had neither been named as an accused person in that murder case nor was there any evidence that they had suspected him for having had a hand in that murder case. Thus, according to learned counsel the motive as alleged did not stand proved. Apparently the appellant and the acquitted co-accused did not have any direct motive to murder the deceased. We have considered this argument. There is no other witness of motive except Muhammad Ashraf P. W. It is also apparent from the record that there is background of enmity between the parties and since there is no independent evidence coming forth in support of the motive version, we cannot help but agreeing with learned counsel that motive in this case is either too remote or it does not stand proved. Next it was argued that there is no recovery evidence in the instant case to corroborate the testimony of the eye- witnesses who in the background of enmity between the parties should be considered as interested. We have gone through the statements of the eye-witnesses. Firstly we want to point out that so far as Mst. Shahnaz Bibi and Mst. 2aryan Jan P.Ws. Are concerned, they stated that they did not see the appellant firing at the deceased but were told by Muhammad Ashraf P.W. That it was the appellant who had fired at the deceased. So far as the testimony of Muhammad Ashraf P.W. Is concerned, his version as given in the F.I.R. And then subsequently at the trial stage is not very convincing. In the F.I.R. He stated that he were up on hearing the noise of foot-steps in the courtyard and saw the appellant and the acquitted co-accused standing near the cot of the deceased. On this Ghulam Khan acquitted co-accused warned him that if he raised alarm he would be murdered and consequently he maintained silence. It was thereafter that the appellant fired a shot at the deceased which eventually led to his death. At the trial stage he stated in the cross-examination that both the appellant and the acquitted co-accused armed as described above were standing towards the West of the cot of the deceased and when the appellant fired at the deceased he was at a distance of one pace. According to the site plan the deceased on the statement of Muhammad Ashraf P.W. Was fired at from a distance of half a karam which means about 2J feet. But according to the medical evidence there was no burning, tattooing or blackening on the wound of entry on the dead body and that from a short distance of 3 to 4 feet according to the doctor blackening, tattooing or burning was always found on the wound caused by fire-arm.
Thus, the version of Muhammad Ashraf P.W. To the effect that the deceased was fired at fr -n close quarters is not supported by the medical evidence. Learned counsel further argued that it was a night-time occurrence and although it was 11th of the lunar month, the question of identification of the real culprit was definitely involved. On the other hand, learned counsel for the complainant argued that there was background of enmity between the parties, that Muhammad Ashraf P.W.
Was the only person being brother of the deceased, who could have deposed about the motive and finally that the ocular testimony of the inmates of the house who were the natural witnesses of `he occurrence and who had identified the appellant and the acquitted co-accused in the moonlit night as it was 11th of the lunar month should be behind and, therefore, the prosecution had succeeded in establishing its case not only as against the appellant but also as against the acquitted co-accused beyond any shadow of doubt. We have carefully considered the arguments of learned counsel for both the parties. As we have pointed out above, in our view the motive as set up by the prosecution does not stand proved. It is too remote and is not supported by any evidence on the record. We are aware that there is background of enmity between the parties and it is only for this reason that we decided to consider the ocular testimony in this case with abundant caution as it is not being corroborated; by evidence coming forth from an independent source. So far as the recovery evidence is concerned, that does not connect the appellant or the acquitted co-accused with the commission of crime. It is, therefore, of no consequence. We are, therefore, left with no other alternative except to consider the ocular testimony as it is. But so far as the ocular testimony is concerned, particularly that of Muhammad Ashraf P.W., it is not being supported by the medical evidence. The two women eye--witnesses have stated that there was no boundary wall of the courtyard. Hence the possibility cannot be ruled out that the assailant may have fired a shot from some distance while every one was asleep and had managed to escape before he could be identified. But since there was background of enmity the complainant side implicated the accused side on suspicion. In the light of the above discussion, in our view, the prosecution has not succeeded in establishing its case as against the appellant beyond any shadow of doubt. In the circumstances his conviction as well as sentence awarded to him were not proper and, therefore, we while giving him the benefit of doubt hereby set aside the conviction as well as sentence awarded to him and acquit the appellant. His appeal is accepted. He shall be released from jail forthwith if not wanted in any other case. The death sentence awarded to him is not confirmed.