LEHRASAP KHAN, J.--Sardar Khan (46/47) has been convicted under section 302, P.P.C., by a learned Additional Sessions Judge, Mianwali, vide his judgment, dated 7-11-1982, for causing the murder of Akram Khan (60) and has been sentenced to death and a fine of Rs.10,000 or in default six months' R.I. He has further been ordered to pay compensation amounting to Rs.10,000 to the heirs of Akram Khan deceased, or in default to suffer six months' R.I. Ata Muhammad and Sher Samand who were also tried alongwith Sardar Khan for the aforesaid murder have, however, been acquitted.
2. The convict has challenged his conviction and sentence through the present appeal, viz. Criminal Appeal No. 618 of 1982, while the matter also stands referred to us under section 374, Cr. P. C. For confirmation of death sentence through Murder Reference No. 115 of 1982. Mst. Fateh Khatun has filed Criminal Revision No. 71 of 1983, against the acquittal of Ata Muhammad and Sher Samand and also for the enhancement of sentence of fine and also amount of compensation. All these three matters shall be disposed of by this single judgment.
3. The occurrence took place, on 13-3-1981, at 8 a.m. On the pathway in the area of village Musa Khel at a distance of two miles from Police Station Musa Khel, District Mianwali.
4. First Information Report (Exh.P.G.) was lodged at Police Station, Musa Khel by Mst. Fateh Khatun (P.W.8) widow of the deceased at 9-45 p.m. The same day, which was recorded by Muhammad Yaqoob, A. S. I. (P.W.12).
5. Regarding motive it is alleged that about 28 years before the present occurrence, Faizullah a real brother of Muhammad Akram deceased abducted Mst. Baigan and married her. The deceased Muhammad Akram is alleged to have resisted the return of said Mst. Baigan to her parents. Mst.
Baigan was a cousin of Sardar Khan appellant and was also engaged to him. It has further been alleged that Sardar Khan appellant alongwith Ahmad Khan and Sultan Mahmood murdered Mst.
Baigan and Muhammad Akram deceased got registered a murder case against them. Sardar Khan and his co-accused were acquitted in that murder case.
6. As for the main occurrence, it has been stated that on the eventful day, Mst. Fateh Khatoon (P.W.8) and her husband Muhammad Akram deceased left for village Marmandi in the morning to fetch their goat from the house of Gola Khan alias Bhola Khan of Marmandi. Ata Muhammad (P.W.9) and Muhammad Azim (not produced) were also following the couple at some distance. At about 8 a.m. They reached near Nali Ghurnianwali, on the road going towards Chhidru-Musa Khel that the three accused i.e. The appellant Sardar Khan armed with .12 bore gun, Ata Muhammad also armed with .12 bore gun and Sher Samand armed with a Gilty gun were seen approaching them from the opposite direction. When they reached near the deceased and Mst. Fateh Khatoon P.W., Sardar Khan appellant raised Lalkara and fired at the deceased hitting him on the front chest.
Ata Muhammad also fired which hit the deceased on his chest and right upper arm. The deceased fell down while Sher Samand waived his gun and declared that if anyone came near he would be shot dead. The deceased succumbed to the injuries on the spot and the accused went towards the mountain.
7. The appellant and his acquitted co-accused were arrested by Sikandar Ijaz, S.I. (P.W.11) at a road near Musa Khel Police Station on 25-3-1981. Sardar Khan appellant was found carrying licensed .12 bore gun P.10 which was taken into possession vide memo. Exh.P.K. Which has been attested by Amanullah Khan (not produced), Muhammad Yaqoob, A.S.I. (P.W.12) and. Sikandar Ijaz, S.I. (P.W.11).
No recovery has, however, been effected from the acquitted accused.
From the spot, a crime empty P.8 was recovered on 13-3-1981, vide memo. Exh.P.F., which has been attested by Muhammad Aslam (P.W.7) and Muhammad Yaqoob, A.S.I. (P.W.12). One Amir had also attested the recovery memo. Of the crime empty but he has not been produced.
8. The recovery of the licensed gun P.10 from the appellant is of no consequence inasmuch as vide report Exh.D.K., of the Forensic Science Laboratory, it has been opined that sufficient points of similarity or otherwise were not forthcoming between the crime empty of .12 bore recovered from the spot and the test empty prepared from the shotgun.
9. Dr. M.I. Zafar Chaudhry, the then Medical Officer, Civil Hospital, Mianwali, performed the autopsy on the dead body of Muhammad Akram deceased on 13-3-1981. He noticed eight entry wounds caused by fire-arm with coverage area of 9 x 14 c.m. In front of the left side of the chest. He also noticed four exit wounds and two other wounds on the right arm of the deceased. He opined that pellet after passing the exit wounds 11 and 12 made entrance wounds 13 and 14. In his opinion the death occurred due to haemorrhage and shock as a result of injuries 1 to 8, which were sufficient to cause death in the ordinary course of nature, collectively as well as individually. According to him all the injuries were ante-mortem and caused by fire-arm. He stated that apparently it looked that injuries 1 to 8 were the result of one fire-arm shot while rest of the injuries were exit wounds.
10. Besides Dr. M.I. Zafar Chaudhry (P.W.1), the prosecution examined 11 witnesses in support of its case, out of whom Mst. Fateh Khatoon (P.W.8) and Ata Muhammad (P.W.9) testified as eye- witnesses to furnish the ocular account of the prosecution case. Muhammad Aslam (P.W.7), Sikandar Ijaz, S.I. (P.W.11) and Muhammad Yaqoob, A.S.I. (P.W.12) deposed about the recovery of licensed gun from the appellant. The other witnesses are, of course, of formal nature.
11. The plea of the appellant is that of denial and involvement dc: to enmity. According to him the murder of Muhammad Akram decease, took place during the night and was unseen occurrence.
No evident: has, however, been led in defence.
12. From the above resume of the facts of this case it appears that the entire prosecution case hinges upon the testimonies of two eye--witnesses, namely, Mst. Fateh Khatoon P.W. 8 and Ata Muhammad P.W.9.
13. The learned counsel for the appellant has urged that there is deep-rooted enmity between the families of the deceased and the appellant, as has been stated by Mst. Fateh Khatoon P.W.8 herself. She is widow of the deceased. In case of such a related and inimical witness prudence required independent corroboration. The prosecution has sought corroboration from the testimony of Ata Muhammad P.W.9 who is seemingly a disinterested witness. It has further been argued that Ata Muhammad P.W. Is the Mueen of the family of the complainant and apart from this, he too is a chance witness. He claims that he was also going towards village Marmandi to find some work for him as he is a carpenter. It has been maintained that in case of such a chance witness, independent corroboration is also a must. The recovery, as already observed above, does not furnish any corroboration, because the crime empty has not matched with the gun recovered from the appellant. We cannot also lose sight of the fact that the medical evidence A contradicts the version of the two eye-witnesses. They have stated that the deceased was fired at twice, once, by the appellant at the chest and for the second time by Ata Muhammad acquitted co-accused at the chest and right arm. According to the medical evidence the deceased suffered eight entry wounds on his chest as a result of one fire shot, while the remaining six injuries on his right arm are in fact exit wounds. Ata Muhammad P.W., has also not been believed as against Ata Muhammad and Sher Samand acquitted accused. In such circumstances, it cannot be said that his testimony furnishes corroboration to that of Mst. Fateh. Khatoon P.W.
14. In the light of the above observations, we have come to the conclusion that the prosecution has failed to bring home the guilt to the appellant beyond doubt. We, therefore, allow his appeal, set aside his conviction and sentence and acquit him. The appellant shall be released from jail forthwith, in case, he is not required to be detailed in any other case.
The death sentence is not confirmed.
15. Criminal Revision No. 71 of 1983, in the circumstances is also dismissed.
S.G.D.Acquittal ordered.