The appellant, Muhammad Tufail son of Muhammad Ismail aged 25 years, armed with gun P.8 was tried for the murder of Muhammad Nawaz son of Suba Khan, his co-villager having taken place on 19-1-1985 at peshiwela in the area of Dhok Rohian Dakhli Dhari Roy Ditta, Tehsil Fateh Jang, District Attock. He was convicted under section 302, P.P.C. And was sentenced to imprisonment for life and a fine of Rs.5,000 or in default thereof to suffer further rigorous imprisonment for one year. The fine, if realised was ordered to be paid as compensation to the legal heirs of the deceased Muhammad Nawaz, vide judgment dated 19-9- 1985 passed by the learned Additional Sessions Judge, Attock.
2. Briefly mentioned, the facts of the prosecution case, as disclosed by Durab Khan complainant (P.W.7) are that the deceased Muhammad Nawaz was the paternal nephew and was serving in the Army and during the days of occurrence he was enjoying two months' leave. The complainant stated that on 19- 1- 1985 early in the morning he went to the Dairy Farm of the Forest Department near the village in order to bring some medicine for his ailing goat. At about Peshiwela, on his return when he reached near the place known as Rata Kheter, he saw that Muhammad Nawaz, deceased, was busy in cutting grass for his camel. He stated that the appellant Muhammad Tufail came near the deceased and challenged him whereupon the deceased ran towards the village in order to save his life. The appellant, Muhammad Tufail, is alleged to have fired with his gun P.8 at the deceased which hit him on the right side of his head. On receipt of this injury the deceased fell on the ground. It is alleged that the appellant came near the deceased and untied the string of his shalwar P.2 and again fired which hit him on his penis. Muhammad Sadiq P.W. (not produced) and Ejaz Khar. P.W. 9 witnessed the occurrence. The complainant stated that he along with other eye- witnesses raised alarm whereupon the appellant Muhammad Tufail ran towards the village along with his weapon of offence.
3. About the motive the complainant P.W. 7 submitted that about four years ago the deceased Muhammad Nawaz demanded the hand of Mst. Ansar Bibi, sister-in-law of the appellant but the parents of the girl rejected the proposal. Later on, above said Mst. Ansar Bibi was married to one Imtiaz Ali. The appellant had suspicion that Mst. Ansar Bibi had illicit relations with the deceased even after her marriage with aforesaid Imtiaz Ali.
4. The prosecution in order to prove its case produced as many as 11 witnesses. Muhammad Khan S.I. P.W. 11 recorded the F.I.R, Ex. P.C. On 19--1-1985 on the statement of Durab Khan, complainant P.W.
7. The said witness visited the spot and prepared the injury statement Ex.P.I. And inquest report Ex.P.J. Of the deceased and sent the dead body to mortuary under the escort of Muhammad Khan F.C. P.W.
6. He recorded the statements of the P.Ws. And collected the blood-stained earth and made the same into a sealed parcel vide memo Ex.P.D. He also took into possession the empty P.5 and made the same into a sealed parcel vide memo Ex. P.E. Durab Khan, complainant P.W. 7 and Abdul Rehman P.W.8 attested the said recovery memos. He took into possession bundle of cut grass P.7 and sickle P.6 vide memo. Ex.P.F. The same witnesses attested the said recovery memos.
Muhammad Khan F.C. P.W.6 produced shirt P.I, Shalwar P.2, Banyan P.3 and a bottle P.4 and made them into a sealed parcel vide memo. Ex.P.B. After the post-mortem examination, the aforesaid articles were taken into possession vide memo. Ex.P.B. And the same was attested by Muhammad Khan P.W.
6. Site Plans Exs.P.A. And P.A./1 were also got prepared.
5. During investigation the appellant led to the recovery of gun P.8 and its licence P.9 from his residential house which were taken into possession vide memo Ex.P.G. Abdur Rehman P.W.8 and Arshad Mehmood P.W. Attested the said memo. Of recovery. Muhammad Khan S.I. P.W. 11 also prepared a rough sketch of the place of recovery Ex.P.G./l. Thus, he completed the investigation and submitted the challan before the Court.
6. Dr. Ghayyur Alam P.W. 10 conducted the post-mortem examination on the dead body of Muhammad Nawaz on 20-1-1985. The following injuries were found on the person of the deceased:- -
(1) Fire-arm wound of inlet, edges were inverted. 1/3" x 1/3" x going inward on back right side of head, 3" behind right ear.
(2) Fire-arm inlet wound, edges inverted 1/3" x 1/3" into going inward in back right side lumber region, just below chest, 9" below scapula.
(3) Fire-arm inlet wound, edges inverted 1/3" x 1/3" into going inward on back right side of lumber region, 2"right side of mid-line.
(4) Fire-arm wound of inlet, edges inverted 1/3" x 1/3" going inward on back right side of lumber region, 2-1/2"below injury No. 2.
(5) Fire-arm wound of inlet, edges inverted 1/3" x 1/3" into going inward back right side of lumber region, just lateral to injury No. 4. Corresponding holes on bunyan and shirt was present.
(6) Fire-arm outlet wound, edges everted 1" x 3/4" x going outward on front right portion of abdomen groin area. This injury was associated with injury No. 5.
(7) Fire-arm wound 3/4" x 1/2" x going through and through on dorsal side of penis. This injury was associated with injuries No. 5 and 6.
According to the statement of Doctor P.W. 10 injuries Nos. 1 to 7 were caused by fire-arm. Injuries Nos. I to 5 were grievous and fatal. Rest of the injuries were simple. All the injuries were ante- mortem in nature, According to the opinion of the Doctor, death was caused due to shock and haemorrhage as a result of injuries Nos. 1 to 7. Injury No. 1 was itself sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was immediate and the death and the post--mortem examination was about 20 hours. Ex.P.H. Is the post-mortem report while Ex. PH/1 is the sketch of the injuries. .
6. Durab Khan, complainant P.W. 7 and Ejaz Khan P.W. 9 are the two eye-witnesses in the case.
Durab Khan, complainant P.W. 7 has given the details of the prosecution case. He submitted that on the day of occurrence he had gone for bringing medicine for his ailing goat. While he was returning to village at about Peshiwela near Rata Kheter he saw the deceased while cutting grass for his camel. He stated that the appellant while armed with a gun came near the deceased and challenged him. On the receipt of the challenge, the deceased ran towards the village. However, the appellant fired at him which hit him on the right side of his head. On the receipt of this injury the deceased fell on the ground. He deposed that the appellant came near Muhammad Nawaz, deceased, and untied the string of his Shalwar and then fired at him which hit the deceased on his back side of the body and the pellets came out of the front side of the body of the deceased and thus he injured the penis of the deceased. The ocular account of the complainant P.W. 7 was supported in material terms by Ejaz Khan P.W.9.
About the motive both the eye-witnesses disclosed that the deceased, Muhammad Nawaz, demanded the hand of Mst. Ansar Bibi, sister-in-law of the appellant, which proposal of the deceased was turned down by the parents of the girl. As stated earlier, later on the girl was married to one Imtiaz Ali. The eye-witnesses further stated that Muhammad Tufail, appellant, had suspicion that Mst. Ansar Bibi was still having illicit relations with the deceased even after her marriage.
7. The appellant, Muhammad Tufail, made a statement under section 342, Cr.P.C. And denied the charges against him. However, the appellant submitted that the deceased was carrying on illicit relations with his sister---in-law Mst. Ansar Bibi prior to her marriage and that scandal had become the talk of the day in the village. The appellant stated that he had strongly opposed the proposal of marriage of Mst. Ansar Bibi with the deceased.
8. Learned counsel for the appellant has submitted that the occurrence in hand took place on 19-1- 1985 at Peshiwela whereas the report was lodged with the police on 19-1-1985 at 11-00 p.m. After the delay of about 9 hours. It is stated that this delay stands unexplained. It is next contended that Durab Khan, complainant P.W.7 and Ejaz Khan P.W.9 have nor witnessed the occurrence and, their presence at the spot has not been proved by the prosecution. It is submitted that the medical evidence is not in line with the ocular account of the eye-witnesses. Lastly, the learned counsel for the appellant stated that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt.
9. The learned .Assistant Advocate-General while replying the arguments of the learned counsel for the appellant submitted that the prosecution has succeeded in proving its case against the appellant inasmuch as the eye-witnesses P.W. 7 and P.W. 9 are the truthful witnesses and there is no justification to disbelieve their evidence. The learned Assistant Advocate-General supported the conviction and sentence passed by the learned trial Court against the appellant. He vehemently maintained that the instant case is a single accused case and this being so there was no question of any substitution of the appellant for the real culprit.
10. After hearing the learned counsel for the parties and scrutinizing the entire evidence, I have come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt. To begin with Durab Khan, complainant P.W. 7, is admittedly related to the deceased Muhammad Nawaz. Further the evidence of P.W. 7 does not inspire confidence inasmuch as he stated in his evidence that he had gone to bring some medicine for his ailing goat and the prosecution has failed to produce the incharge of the Veterinary Health Centre or the register to show the entry regarding the supply of medicine to Durab Khan, complainant P.W.
7. The failure on the part of the prosecution to do so, surely will support the view that Durab Khan did not go to the Health Centre. Thus, the story the complainant went to bring medicine for his sick goat was concocted with a view to make him the eye-witness in the case. If the aforesaid fact was true, it was the easiest thing for prosecution to have produced the Incharge of the Health Centre as a witness with the relevant register showing the supply of medicine. To do so was very much essential to corroborate the statement of Durab Khan who was otherwise a highly interested witness in the case. Moreover the delay of 9 hours in lodging the F.I.R. By Durab Khan P.W. 7 clearly shows that the said witness was not present at the spot when the occurrence had taken place, otherwise he was in a position to report the matter to the police very early. It is in his evidence that he had to cover some distance on foot but then he stated that he covered the rest of the distance by Bus. Therefore, the explanation given by the said witness so far the delay of 9 hours is concerned is not at all adequate and convincing. Rather this delay has created considerable doubt in the truthfulness of the prosecution story itself. During the period between the occurrence and lodging the F.I.R. With police, the possibility of the false implication of the appellant in the case cannot be ruled out because the appellant was against the proposal of marriage of Mst. Ansar Bibi with the deceased. I, therefore, proceed to disbelieve the statement of Durab Khan P.W. 7 and hold that he did not see the occurrence. So far as Ejaz Khan P.W. 9 is concerned, again the evidence of this witness appears to be doubtful. Ejaz Khan P W. 9 stated that at about Peshiwela on the day of occurrence, he came out from the village mosque after having a bath there and saw the appellant while armed with a gun. The appellant was going towards Rata Kheter. The witness stated that he followed him. He also mentioned that when he came out of the village, he was met by Muhammad Sadiq (not produced). Both the P.Ws. Reached the fields of Faqir Khan where the deceased was cutting grass. The statement of this witness appears to be false on the very face of it because he could not be believed when he says that he followed the appellant without any objection having been raised by the appellant. It was natural that if the appellant was going with an intention to commit an offence and if he was followed he must have raised objection as to why he was being chased by the witness. It was natural that the witness should have been threatened by the appellant because he was being chased. The conduct and behaviour of this witness shows that he was not telling the truth. The witness also stated that in the way he met another witness Muhammad Sadiq but the prosecution did not produce him to substantiate its allegation against the appellant. The witness admitted in cross-examination that he did not raise alarm and he did not warn the deceased on seeing the appellant approaching him for saving himself. The witness further. Deposed in the cross-examination that after taking bath he wanted to go to the forest. He admitted that his house was situated on the southern side of the village abadi. He conceded that he was following the appellant in order to watch his activities and had no other business to follow him. Particularly this part of the evidence of the witness shows that the witness is telling a lie and had not witnessed the occurrence. It is clear from his statement that there was no occasion for the witness to go to the forest without any set objective at such an odd hour. The conduct and trend of the evidence of the witness lead to the conclusion that he has also not seen the occurrence like Durab Khan P.W.
7. Additionally as stated by this witness he was accompanied by Muhammad Sadiq P.W. But the prosecution did not produce the said witness for unknown reasons. The presumption in law is that if Muhammad Sadiq P.W. Had been produced he would not have supported the prosecution version. Rather he would have supported the case of the defence. The mere fact that Muhammad Sadiq P.W. Was not produced, the evidence of Ejaz Khan P.W. 9 remains fully uncorroborated. The evidence given by Durab Khan P.W. 7 and Ejaz Khan P.W. 9 is also not in line with the medical evidence. According to the medical evidence, the private part of the deceased was found injured and the dead body of the deceased was lying naked. According to the statement of Durab Khan P.W. 7 and Ejaz Khan P.W. 9 the deceased was made naked and he was fired at his private part. The evidence of P.W. 7 and P.W. 9 shows that on the receipt of firs pellet injury from front, the deceased fell on the ground while his face was towards the earth. There is no evidence given by these two eye-witnesses that tile dead body was lifted so as to enable the appellant to fire at the private part of the body of the deceased as the medical evidence of Dr. Ghayyur Alam P.W. 10 shows that there are injuries on the private part of the deceased whereas the shalwar P.2 recovered by the prosecution does not carry any corresponding cuts. Even otherwise as per the version of the prosecution, in the presence of P.W. 7, P.W. 9 and Muhammad Sadiq (not produced) at a very close distance from the place of occurrence, the appellant is not expected to do so because he must be in a hurry and of course he cannot take the risk of having been apprehended by the witnesses mentioned above. Thus, according to my view the medical evidence is not in conformity with the ocular account of the prosecution story as given by the aforesaid two eye-witnesses. Additionally, neither it is possible nor it can be believed that the appellant would have been able to untie the string of shalwar of the deceased when Durab Khan P.W. 7, Ejaz. Khan P.W. 9 and Muhammad Sadiq P.W. (not produced) were standing very close to the appellant and were watching him. Therefore, the evidence of the eye-witnesses does lead to the conclusion that they are not telling the: truth. The deceased might have been murdered by some unknown person. While he was naked and was in a compromising position with some woman. Of the village. Ejaz Khan P.W. 9 admitted in his cross-examination that he tied the shalwar of the deceased. It appears that the deceased was done to death while he had taken off his shalwar. At any rate this is an unwitnessed murder. The prosecution has miserably failed to bring home the guilt to the appellant.
11. The alleged motive of the commission of the murder is very weak one. At one stage the appellant did oppose the proposal of marriage of Mst. Ansar Bibi with the deceased but the ill-will if any on the part of the appellant must end after her marriage with Imtiaz Ali. Previous to the occurrence, there was no quarrel or fight having taken place between the appellant and the deceased over the alleged illicit relations between Mst. Ansar Bibi and the deceased. In my view the motive as set out by the prosecution is of no consequence, at all.
12. The upshot of the above discussion is that I have come to the conclusion that the evidence as deposed by Durab Khan, complainant P.W. 7 and Ejaz Khan P.W. 9 is not worthy of any credit and I proceed to reject the same.
13. I, therefore, set aside the conviction and sentence of the appellant and acquit him by giving the benefit of doubt. He shall be released forthwith if not required in any other case. The result is that the appeal is accepted.