' AFRASIAB KHAN, J.--Ghulam Hasan Khan and Muhammad Nawaz Khan, brothers inter se, sons of Ata Muhammad Khan, have been convicted for the murder of Ghulam Husain Khan vide judgment dated 26-6-1983 of the Additional Sessions Judge, Mianwali, whereby Ghulam Hasan Khan was sentenced to death and a fine of Rs,4,000/- or in default to undergo four months' rigorous imprisonment under section 302/34, P.P. C. The said appellant was also ordered to pay a ompensation of Rs,6,000/- to the heirs of the deceased or in default hereof he shall undergo six months' rigorous imprisonment. Muhammad Nawaz Khan was sentenced to imprisonment for life plus fine of s.4,000/- or in default to undergo four months' rigorous imprisonment under section 302/34, P.P.C. He was further ordered to pay a compensation of Rs,6,000/- to the heirs of the deceased or in default thereof to suffer six months' rigorous imprisonment. Their co-accused Ghulam Hasan Khan son of Allah Dad Khan was, however, acquitted under section 302/34, P.P.C. By giving him the benefit of doubt. Both the appellants have come in appeal against their conviction and sentence and the case is also before us under section 374, Cr.P.C. For the confirmation of the death sentence awarded to Ghulam Hasan Khan accused. Complainant Muddat Khan has filed private Criminal Revision No,606 of 1983, praying that Ghulam Hasan, son of Allah Dad, and Muhammad Nawaz s/o Ata Muhammad respondents be awarded death sentence. This criminal revision' was ordered to be heard alongwith the main criminal appeal. This judgment will dispose of the Criminal Appeal as well as the criminal revision and the murder reference together.
2. The brief facts of the prosecution story as narrated in the F.I.R. Are that on 15-10-1981, at 5.45 p.m., complainant Muddat Khan (PW.6) was going in the company of Noor Khan (PW.8) from the side of Old Bazar towards the office of Union Council-. Ahead of them, at a short distance, Ghulam Husain Khan, son of Ghulam Khawaja Khan, and Majidullah Khan, son of Bahadur Khan, were proceeding in the street towards the office of the Union Council. Suddenly, from the side of the office of the Union Council Ghulam Hasan Khan, son of Allah Dad Khan, empty handed, Ghulam Hasan Khan armed with rifle, and Muhammad Nawaz Khan armed with .12 bore gun, both sons of Ata Muhammad Khan, came out. Ghulam Hasan Khan, son of Allah Dad Khan, shouted by saying that "today you will not go alive". Upon this, Muhammad Nawaz Khan fired at Ghulam Husain Khan deceased from his .12 bore gun which hit the victim on his both htnds. Ghulam Hasan Khan, son of Ata `Muhammad Khan, fired from his rifle which hit the deceased on his chest. On the receipt of this bullet injury, the deceased fell on the ground. On the noise of Majidullah Khan- Muddat Khan complainant and Nur Khan P.Ws. Came running at the spot. Ghulam Husain Khan deceased died on the spot within their view. On seeing the witnesses, all the three accused went towards the side of the office of Union Council.
2. The motive, as stated in the F.I.R., was that on 12-4-1979, Fateh Khan, son of Ata Muhammad Khan, a brother of Ghulam Hasan Khan and Muhammad Nawaz Khan, the accused, was done to death by Ghulam Abbas Khan, brother of Ghulam Husain Khan deceased. In the, said case of murder Ghulam Abbas Khan etc. Were challaned and sentenced. On account of this murder of Fateh Khan, the two appellants alongwith their acquitted co-accused have murdered Ghulam Husain Khan deceased.
3. Ghulam Mani A.S.I. (P.W.9) recorded the F.I.R. (Ex.P.D.) made by complainant Muddat Khan. He proceeded to the place of occurrence and examined the person of Ghulam Husain Khan deceased and prepared the injury statement (Exh.P.G.) and the inquest report (Ex.P.H.). The dead body of the deceased was sent to the hospital through F.C. Zaitullah (P.W.2). The said witness further stated that' in the meantime it had become dark and as such, he could not inspect the place of occurrence. He inspected the spot on the following day. He collected the blood-stained earth and sealed the same into a parcel through Memo. Ex.P.F. Zaitullah F.C. (P.W .2) produced shirt (Ex.P.1) and shalwar (Ex.P.2) of the deceased which were taken into possession vide Memo. Ex.P.A. The accused were not traceable despite the search having been made by the said witness. The remaining investigation of the case was conducted by Raja Muhammad Hayat S.H.O. (PW,10) on 17- 10-1981. Ghulam Hasan Khan, son of Allah Dad Khan, and Muhammad Nawaz Khan were arrested by Raja Muhammad Hayat on 21-10-1981. The said witness obtained warrants of arrest of Ghulam Hasan Khan, son of Ata Muhammad Khan, as he was not available. Ultimately he was arrested on 30-10-1981 while he was armed with rifle (Ex.P.3) having three: bullets (Ex.P.4/1-3) in his pocket. The said weapon was taken into possession vide Memo. Ex.P.B. He got the site plan prepared by Zahiruddin. Draftsman (P.W.5) on 30-10-1981. The witness proceeded further to say that he moved an application for the discharge of Ghulam Hasan Khan son of Allah Dad Khan, but the Court did not accept his request and he placed him in column No,2 of the report under section 173, Cr.P.C. He conceded in the cross-examination that the accused placed before him the version that a pistol was recovered by one Sarwar son of Jan Muhammad, from the hand of the dead body of Ghulam Husain Khan deceased. However, the said witness stated that his investigation led him to conclude otherwise. He also repelled the suggestion that the accused were innocent or that the aggression was made by the deceased while he was armed with a pistol.
4. On 16-10-1981, Dr.Tariq Siddique (PW.r) conducted the post-mortem examination on the dead body of Ghulam Husain, son of Ghulam Khwaja Khan, deceased, and found the following injuries on it:--
(1) A fire-arm wound of entry 1 cm. x 1 cm. On the palm of left hand 21 cm. Below the base of index finger. There was a wound of exit on the outer border of inner side of lower forearm 1 cm. Above the base of the left thumb.
(2) A fire-arm wound of entry 11 cm. x 1 cm. On the left side of the chest 21 cm. Lateral to the sternal angle; 34 cm. Below to the medial end of left clavicle 11 cm. Above and medial to the left side of nipple. This wound of entry had an exit wound 21 cm. x 4 cm., 1 cm. Lateral to the midline on left side 22 cm. Below the upper end of first thorax vertebra 10 cm. Medial to lower left scapula.
(3) A grazing fire-arm wound 7 cm. x 11 cm. Starting 11 cm above the tip of right thumb and it runs along the outer border of the thumb.
' In the opinion of the doctor death, happened because of smashing of the ascending aorta which caused excessive internal haemorrhage. He further opined that because of injury No,2 damage was caused to aorta, which was sufficient to cause death in the ordinary course of nature. He stated that he could not rule out the possibility that the death of deceased Ghulam Husain might have taken place at about 6.30 p.m,. On 15-10-1981 and the maximum time which must have elapsed between injuries and death was five Minutes.
5. Muddat Khan (PW.6*) to complainant, and Noor Khan (PW.8) are the eye-witnesses of the occurrence. Muddat Khan P.W. Stated that accused Ghulam Hasan Khan, son of Ata Muhammad Khan, is the consanguine brother of Muhammad Nawaz Khan accused. Wife of Ghulam Hasan Khan (acquitted co-accused), is the sister of Muhammad Nawaz an accused. He further admitted that Ghulam Husain Khan deceased was son of his cousin. The witness stated that on 15-10-1981, at 5.45 p.m., he alongwith. Noor Khan (P.W.8) was going from the side of old Bazar towards the office of Union Council. Ghulam Husain Khan deceased was proceeding ahead of them towards the same direction in village Mauchh. He stated that Ghulam Hasan Khan, son of Allah Dad Khan, was empty handed, whereas Ghulam Hasan Khan, son of Ata Muhammad Khan, was armed with rifle and Muhammad Nawaz Khan accused was armed with .12 bore gun. They emerged from behind the wall of the office of Union Council, Mauchh. Acquitted co-accused, Ghulam Hasan Khan son of Allah Dad Khan, shouted. Whereupon Muhammad Nawaz Khan appellant fired at Ghulam Husain Khan deceased which fire hit him on his hands. Ghulam Hasan Khan, son of Ata Muhammad Khan appellant fired with his rifle which hit the deceased Ghulam Husain Khan on his chest. On the receipt of these bullet injuries, Ghulam Husain Khan deceased fell on the ground. Majidullah Khan raised an alarm upon which he (Muddat Khan complainant) and Noor'Khan (P.W.8) reached the spot. The appellants alongwith their acquitted co-accused ran away. Ghulam Husain Khan deceased died at the spot. The statement of the complainant Muddat Khan (P.W.6) was supported in material terms by Noor Khan (P.W.8). Noor. Khan P.W. In his cross-examination stated that the deceased was neither standing upright nor he was strictly leaning, but he was in between the two postures when he received the shot fired by accused Ghulam Hasan Khan, son of Ata Muhammad Khan. He also stated that the hands of the victim were in his front downward near his knees when he received the first shot fired by Muhammad Nawaz Khan accused.
6. The accused made statements under section 342, Cr.P.C. And denied the prosecution allegations. Appellant Ghulam Hasan Khan, son of Ata Muhammad Khan, in his statement pleaded his innocence and stated that the occurrence took place after the sunset under unknown circumstances. He further proceeded to say that the persons of the locality appeared before the Investigating Officer on 16-10-1981 and clearly deposed that the alleged occurrence took place after Maghrib prayers and that the deceased was armed with a pistol which pistol was taken out by one Sarwar, son of Jan Muhammad. He further stated that the Investigating. Officer also examined Muhammad Khan, Rabnawaz, Khaliq Dad etc. As eye-witnesses. He maintained that the complainant party was highly influential and they have fabricated the case against him due to enmity. He requested that the Zimni dated 21-10-1981 may be looked into to verify those facts. The other appellant Muhammad Nawaz Khan submitted that he was innocent and was chronic patient of T.B. Many persons of the locality and of the village Mauchh appeared in his defence before the Investigating Officer. He submitted that the case against him, was because of long-standing enmity and he had been falsely implicated in the case.
7. Mr. Ijaz Husain Batalvi, learned counsel for the appellants, has contended before us that the eye- witnesses namely, Muddat Khan and Nur Khan have given evidence in the case against the appellants on account of established enmity and it will not be safe to rely upon their interested testimony. He stated that independent corroboration to the statements of these two eye-witnesses was necessary which is not forthcoming. It has been vehemently argued by learned counsel for the appellants that the occurrence in the case had not taken place at the time as stated by the prosecution in the F.I.R. The occurrence had taken place after the sunset when there was sufficient darkness and the identity of the assailants could not be verified. According to the learned counsel, the prosecution has suppressed this very material aspect of the case.
8. Learned counsel for the State Mr. Muhammad Rafiq Butt, half-heartedly supported the impugned judgment. However, he stated that he will plead for lesser penalty to the appellants. Ch. Muhammad Yamin Advocate, who appeared on behalf of the complainant in his revision petition, did not press the revision petition and requested for its withdrawal. He also disclosed before the Court that the parties have compromised. The Criminal Revision No,606 of 1983 is accordingly dismissed as having been withdrawn.
9. We have heard learned counsel appearing on behalf of th parties at great length. We are of the definite opinion that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. It is very strange- that the occurrence had taken place in the open Bazar of the locality which locality is inhabited by the citizens but no unconnected person from the locality was produced as an eye-witness and only Muddat - Khan (PW.6) and Noor Khan (PW.8) who are related to the deceased and inimical towards the accused have been examined as eye-witnesses.
Independent corroboration to their evidence was necessary which is not forthcoming in this case, therefore, it will not be safe to rely upon these two interested witnesses to convict the appellants on a capital charge. It appears from the record that the occurrence in the instant case had taken place not at the time mentioned by the prosecution in the F.I.R. But the same had taken place after the sunset. This plea of the appellants finds support from the statement, of Ghulam Jilani A .S.I.
(P.W.9) who stated, that he could not inspect the place of occurrence because it had become dark.
Again Dr. Tariq Siddique (P.W.7) who conducted the post-mortem examination on the dead body of the deceased, stated in his cross-examination that he could not rule out the possibility that the death of Ghulam Husain Khan deceased had taken placed at about 6.30 p.m. On 15-10-1981. He further stated that the maximum time which could have elapsed between the injuries and death was five minutes. Additionally, from the bare reading of site plan (Ex.P. C.) the place of occurrence is at point No,1 in front of the blind street. Point No,2 is the place where Majidullah, another eye- witness, witnessed the occurrence. Point No,3 is the place where the eye-witnesses are stated to have seen the occurrence and this place is in front of the house of Ahmed Khan and again on the eastern side there is a thoroughfare". Point No,4 is the place where the appellants were standing and from where they fired at the deceased. Thus, the distance between point No,3 and point No,4 will come to 135 feet. It is, therefore, doubtful if the so-called eye-witnesses could identify the assailants from that distance especially when the-darkness had already set in. Possibility cannot be ruled out from the facts and circumstances of the instant case that some one from the blind street might have fired at the deceased and killed him. In the circumstances, it will be unsafe to place reliance on the uncorroborated testimony of the eye-witnesses.
10. There is, therefore, considerable weight in the arguments of learned counsel for the appellants that the prosecution case is not free from doubt. Accordingly, by giving the benefit of doubt we accept this appeal, set aside the conviction and sentence of the appellants and acquit them. They shall be released forthwith if not required in any other case. Death sentence of Ghulam Hasan Khan appellant is not confirmed.