1. JAVID IQBAL, J.--This appeal is directed against the judgment of a Division Bench of the Lahore High Court, Lahore dated 17th September, 1978 in Criminal Appeal No.1018 of 1976 whereby the appeal of Rab Nawaz respondent was accepted, his conviction under section 302, P.P.C. As well 4s sentence of death plus fine of Rs.1,000 or in default to suffer further R.I. For a period of one year awarded to him by the Sessions Judge, Multan were set aside and he was acquitted of the charge of the murder of Allah Bakhsh deceased as against him. The appellant in the present case Mst.
2. Daulan is the mother of Allah Bakhsh deceased.
3. According to the prosecution version the deceased was the only son of Mst. Daulan appellant and he resided with her in a Behni at Chah Nonariwala within the limits of the revenue estate Haveli Koranga, Police Station Sarai Sidhu, Tehsil Kabirwala, District Multan. The motive for crime as stated in the F.I.R. Is that Rab Nawaz respondent had developed a suspicion that the deceased was carrying on illicit relationship with Mst. Bakhan his sister. According to the prosecution version after sunrise of the morning of 15th January, 1974 the deceased was warming himself before fire which had been lit outside his Behni. His mother Mst. Daulan P.W.10 and three other persons namely Allah Yar P.W.9 first cousin of the deceased, Allah Ditta and Khadim Hussain (both not produced but given up as having been won over) were also sitting with him in front of the fire. It is stated that Rab Nawaz respondent as well as his uncle Bahadur co-accused came to a nearby sugarcane field.
4. Rab Nawaz respondent called out and asked the deceased to come out to meet him. In response to the call the deceased went towards Rab Nawaz respondent and Bahadar co-accused. As soon as he got near them it is stated that at the instigation of Bahadar co-accused Rab Nawaz respondent who had wrapped a blanket around himself took out a gun and fired at the deceased.
5. The deceased was hit in the chest and he died on the spot. Rab Nawaz respondent as well as Bahadar co-accused his uncle who was armed with a Dang then ran away. The occurrence was witnessed by Allah Yar P.W.9, Mst. Daulan P.W.10, Allah Ditta and Khadim Hussain (both not produced) who had rushed to the spot in order to rescue the deceased. Leaving behind Allah Ditta and Khadim Hussain to guard the dead body of the deceased Allah Yar P.W.9 reported the matter to the Police as the police station was at a distance of 9 miles from the spot. The F.I.R. Was registered at 9-30 a.m. On the same day. After registering the case Allah Wasaya A.S.I. P.W.11 arrived at the spot and picked up a crime empty EXh.P.8 from there which was taken into possession.
6. According to the medical evidence the deceased had one fire-arm wound of entry on the front part of the left side of the chest and four wounds of exit on the back part of the chest. The injury had been caused by fire-arm and had resulted from a single shot. According to the medical officer the deceased had died immediately after the receipt of the injury. Rab Nawaz respondent was arrested on 1st February, 1974 whereas Bahadar co-accused his uncle was arrested on 30th January, 1974. Immediately after his arrest at the instance of Rab Nawaa respondent was dug out a shotgun from a sugarcane field of one Noor Muhammad which was taken into possession by the Investigating Officer vide memo. Exh.P.F. Attested by Bahadar P.W.6, Zulfiqar (not produced) and Saeed Ahmad S.I. P.W.12. In a chamber of the gun was lying a live cartridge. Later on the gun and the crime empty had been examined by the forensic science laboratory at Lahore and according to its report Exh.P.O. The said crime empty had been fired from the said shotgun. Rab Nawaz respondent in a statement before the trial Court denied having participated in the occurrence and stated that he had been falsely implicated in this case. He produced an arm licence clerk from the office of the Deputy Commissioner, Multan in his defence. According to the statement of this D.W.
7. Until 1962 the gun which had been recovered from Rab Nawaz respondent was borne on the licence of one Ghaus Muhammad.
8. The case of the prosecution is based on the following: First, on the ocular testimony of two eye- witnesses produced in the instant case namely Allah Yar P.W.9 who is first cousin of the deceased and was also the first informant. His sister Mst. Gami was stated to be the wife of Bahadar co- accused but thereafter they separated. He is, therefore, stated to be inimical. The other eye- witness namely Mst. Daulan P.W.10 is mother of the deceased. Both these eye-witnesses stated that on the, fateful day and at the relevant time they were sitting with the deceased outside his Behni and were warming themselves before the fire when the deceased was called by Rab Nawaz respondent and when the deceased approached him he took out a gun on the instigation of his uncle Bahadar co-accused and fired at the deceased as a result of which the deceased died on the spot. Second, the crime empty picked up from the spot was stated to have matched with the gun, which was alleged to have been recovered at the instance of Rab Nawaz respondent. Third, there was stated to be an extra-judicial confession made by Rab Nawaz respondent before Bahadar P.W.6 which was relied on by the trial Court. Fourth, the evidence of motive, and fifth the medical evidence in the instant case. Both Rab Nawaz respondent and Bahadar co-accused were charged for the murder of Allah Bakhsh deceased but the Sessions Judge, Multan acquitted Bahadar co-accused convicting Rab Nawaz respondent under section 302, P.P.C. And sentenced him to death plus fine of Rs.1,000 or in default to undergo one year's further R.I. As stated above. The appellate Court considered the ocular testimony in the instant case but declined to place reliance on the same. It also arrived at the conclusion that the evidence of extra-judicial confession in the instant case alleged to have been made by Rab Nawaz respondent before Bahadur P.W.6 was also doubtful. It likewise did not place reliance on the recovery evidence which had also not been relied upon by the trial Court.
9. It was for these reasons that the learned Division Bench of the Lahore High Court, Lahore had acquitted Rab Nawaz respondent and also dismissed the criminal revision filed by the complainant side as against the acquittal of Bahadar co-accused. In the appeal of Mst. Daulan appellant before us it was argued by the learned counsel that the testimony of Allah Yar P.W.9 should have been relied on as he was related to both the deceased as well as Bahadar co-accused. The house of Allah Yar P.W. Was at a distance of about a mile from the Behni of the deceased. In his statement before the trial Court he had admitted that he had no business at the Behni of the deceased and that he was present there at the time of the occurrence only by chance, although in the F.I.R. He had stated that he had gone to the Behni of the deceased for some personal work. Thus, at his own showing he appeared to be a chance witness. Now so far as his relationship on both the sides is concerned, he had stated in the cross-examination as well as before the committing Magistrate that his relations with Bahadar co-accused uncle of Rab Nawaz respondent were strained. He was, therefore, rightly considered by the trial Court not only as a chance witness but being inimical not even as a disinterested witness. Apparently for these cogent reasons the learned Division Bench of the Lahore High Court Lahore was not satisfied that he was present on the spot at the time of the occurrence. However since he was cousin of the deceased, it was he who had gone 9 miles away to the police station to lodge the report. It was next argued by the learned counsel that Mst. Daulan P.W. Was a natural witness as being mother of the deceased. She resided with him and that her testimony should have not been excluded. We have considered this aspect of the case and carefully examined the statement of Mst. Daulan P.W. Even the appellate Court had also arrived at the conclusion that her presence at the spot should not be doubted. But the point is that according to the prosecution case the deceased had been called out and had been asked to come out which implied that even if they were sitting out of the Behni in front of the fire, there was probably a wall around the courtyard where they were sitting and it was for this reason that the deceased was asked to come out. The next point is that the eye-witnesses had only stated that they had heard the voice calling out the deceased. The occurrence took place in a sugarcane field which was at a distance of about 2 Kanals from the Behni. Therefore, there did arise the question of identification of the assailant /assailants of the deceased. The appellate Court did not throw away the testimony of Mst. Daulan P.W. Entirely but applying the rule of prudence proceeded to seek corroboration thereof by independent evidence before it could be acted upon to convict a person on a capital charge.
10. They also considered this aspect that the testimony of Mst. Daulan P.W. Had not been relied upon by the trial Court so far as Bahadar co-accused uncle of Rab Nawaz respondent was concerned. It may be pointed out at this stage that the Investigating Officer did not collect 'any such evidence which could show that fire was lit at the time of the occurrence and the eye-witnesses were sitting in front of the fire. Now the question is that the appellate Court was prepared to consider the testimony of Mst. Daulan P.W. Provided that it was corroborated. Then what was its view respecting the recovery evidence. It may be pointed out at this stage that the recovery evidence had been discarded in' this case by the trial Court as well as the appellate Court. It was not considered as reliable evidence for the reason that not only the recovery of the gun from Rab Nawaz respondent was considered as doubtful but even it was not clear from the record as to whether or not the crime empty had been despatched to the forensic science laboratory before the recovery of gun. It appears that these items had been sent together to the laboratory. So far as the evidence of extra- judicial confession of Rab Nawaz respondent is concerned the appellate Court in our opinion rightly did not place reliance on it. According to Bahadar P.W., Zulfiqar who had not been produced had brought Rab Nawaz respondent to his Dera. On his inquiry Rab Nawaz respondent had told him that he had murdered the deceased as he was carrying on with his sister. Thereupon he and Zulfiqar took him to the Police. Now this Zulfiqar had not been examined although he was an important witness. Then Bahadar P.W. Belongs to a different village and had been many years ago a B.D.
11. Member. He claimed that he was an influential person. It was considered doubtful if he was in a position to offer any assistance to Rab Nawaz respondent so that he should choose to go to the said Zulfiqar and then in his company to make an extra-judicial confession before Bahadar P.W.
12. The appellate Court was right to arrive at the conclusion that there was no connection between Rab Nawaz respondent and Zulfiqar. In such circumstances it would have not been proper to rely on the evidence of extra-judicial confession. Thus, it is evident from the record that in the peculiar circumstances of this case there was on the record uncorroborated testimony of Mst. Daulan P.W.
13. Which the appellate Court did not find sufficient for convicting Rab Nawaz respondent on a capital charge. Consequently interfering in the judgment passed by the appellate Court in this case would only mean that we are taking a different view of the evidence which has already been properly appraised by the appellate Court.