DAVID IQBAL, C.J.--Shah Fakhar Zaman, son of Shah Sher Bakhsh, aged 40, armed with a gun, has been convicted and sentenced vide judgment, dated 12-9-1981 of the Additional Sessions Judge, Attock, as follows. He was convicted under section 302, P.P.C. For the murder of Munir Akhtar, aged 26, and was sentenced to death plus fine of Rs.5,000 or in default to undergo two years' rigorous imprisonment and in addition to the same he was ordered to pay Rs.5,000 as compensation to the heirs of the deceased or in default to undergo one year rigorous imprisonment. The appeal of the convict as the reference for confirmation of death sentence awarded to him are being taken up together and disposed of by this judgment.
2. The occurrence took place at 6-30 p. m. On 2-1-1981 in a Gali in front of the house of the deceased within the area of village Danda Shah Bilawal at a distance of 2) kilometres from Police Station Lawa, District Attock. F.I.R. (Exh.P.I.) was lodged by Muhammad Banaras (P.W.9), cousin of the deceased, at 9-30 p.m. On the same day and it was recorded at the police station by Meharban Hasan S.I. (P.W.10).
3. The motive for crime, as stated in the F. I. R. Is that the deceased had developed illicit relations with Mst. Asghar Parveen, wife of Shah Peer Bakhsh, brother of the appellant and due to her bad reputation in the village on account of the same she had been sent along with her husband away to Badeen in the Province of Sind to stay with her father. It was in this background that the appellant is said to have fired a shot at the deceased in order to take revenge for the insult offered to his family.
4. In the F.I. R. The occurrence is reported to have taken place in the following manner. On the fateful day, Muhammad Banaras (P.W.9), who had come on leave to the village, at the fateful time was sitting with Mst. Bakht Bhari (P.W.8), mother of the deceased, and he had gone to her house in the company of Muhammad Khan, another cousin and Fateh Muhammad, Behnoi of the deceased (both given up as unnecessary). All of them were sitting together and talking. The deceased i.e. Son of Mst. Bakht Bhari P.W., was not present at the house at that time but had gone out. In the meantime, there was a knock at the main door of the Haveli and when Mst. Bakht Bhari P.W. Had got up in order to unchain the said door, there was a fire report in the outside Gali. On this Muhammad Banaras P.W. And his other two companions also got up when they heard from outside in the Gali the voice of the deceased to the effect that the appellant had fired a shot at him. Thereafter, one of the other two shots was fired. The eye-witnesses rushed to the door and opened the same. When they came out, they saw that the deceased was lying covered in blood in front of the door of the Haveli and the appellant was standing on the roof of his house holding a shotgun in his hand. On seeing the eye-witnesses he declared that he had taken the revenge of the insult which had been offered and thereafter he descended into his own house, When the eye- witnesses attended to the deceased, they found that he had died on the spot. Thereafter, leaving behind Muhammad Khan and Fateh Muhammad to guard the dead body of the deceased, Muhammad Banaras P.W. Went to lodge the report with the police.
5. The prosecution has produced two eye-witnesses of the occurrence namely, Mst.. Bakht Bhari (P.W.8), mother of the deceased, and Muhammad Banaras (P.W.9) cousin of the deceased. Two other eye-witnesses cited in the F.I.R. Namely, Muhammad Khan and Fateh Muhammad, were given up as unnecessary, although Muhammad Khan was cousin and Fateh Muhammad was Behnoi of the deceased.
6. The appellant was arrested on 24-1-1981 (22 days after the occurrence) by Meharban Hasan S.I.
(P.W.10). There is no recovery of crime empties from the spot, in the instant case, which is the roof of the house of the appellant. However, human blood-stained earth was picked up from the spot where the deceased had fallen dead and from there four wads and one Namda were also picked up and taken into possession by the police. At the instance of the appellant shot-gun Exh.P.7, single barrelled, was recovered from his house along with three empty cartridges (Exh.P.8/1-3) and taken into possession vide memo. Exh.P.H., dated 31-1-1981 at page 45 of the printed paper-book. The attesting witnesses are Meharban Hasan S.I. (P.W.10), Amir Muhammad (P.W.7) brother of the Behnoi of the deceased, and Mehar Khan (not produced). The report of the Fire-arms Expert (Exh.P.O.) at page 8 of the printed paper-book is to the effect that the empty cartridges recovered along with the gun (Ex.P.7) at the instance of the appellant, had been fired from the said gun. These recoveries are of no corroborative value and only prove that a single-barrelled gun was recovered from the appellant along with three empty cartridges. But there is nothing on the record to show as to how it is connected with the commission of crime. Since the recoveries are of no consequence, we are attaching no importance to them.
7. The appellant in his statement before the trial Court denied having participated in the commission of crime. He disowned the recovery and stated that he had been falsely implicated due to enmity and suspicion. He raised the plea of alibi when he stated that at the time of the occurrence he was confined in the police lock-up at Police Station Gularchi in Sind during those days. He further submitted that he was cultivating the land of his father in Sind and was residing there but he frequently came to his house at this village and that a few days before the present occurrence he had come to the village in order to visit his house and had gone back to Sind some days before the present occurrence. According to him, this murder took place at night time in the darkness and the occurrence was an unwitnessed one. Furthermore, the complainant did not know that he had gone back to Sind. Consequently, under suspicion and due to consultations between the members of the complainant party and at the instance of his enemies he was blamed for the commission of crime merely on suspicion. The appellant pleaded innocence but did not produce any defence except stating that he was in the police lock-up at the time of the alleged occurrence and had been remanded to police custody by the Magistrate on 1-1-1981 for about a week or so and had remained with the police. However, in his defence he produced certain documentary evidence which consists of Exh.D.C. Which is certified copy of Khasra Girdawari, Exhs.D.D. And D.E.
Certified copies of the statements of Ali Khan and Fateh Khan, Exh.D.F. And Exh.D.G. Certified copies of the remand papers and Exhs.D.H. And D.I., which are certified copies of the remand orders.
8. Dr. Muhammad Afzal Malik (P.W.5) conducted the post-mortem examination on the dead body of the deceased at 11 a.m. On 3-1-1981 and found that there was blackening around the holes of his shirt and Shalwar. He found the following injuries on the person of the deceased:-
(1) Lacerated wound 3/4 x 3/4 c.m. With burnt ring. No blackening inverted edges on lateral end of left patella.
(2) Lacerated wound 3/4 x 3/4 c.m. With burnt ring and inverted edges 1 c.m. Lateral to injury No.1.
(3) Lacerated wound 3/4 x 3/4 c.m. With burnt ring and inverted edges 1 c. m. Lateral to injury No.2.
(4) Lacerated wound 3/4 x 3/4 c.m. Burnt ring and inverted edges, 3 c.m. Lateral to injury No.3.
(5) Lacerated wound 3/4 x 3/4 c. m. Burnt ring and inverted edges, 2 c. m. Lateral to injury No.4.
(6) Bruised area 1 x 1 c.m. With bluish colour on inner middle of left thigh. A metallic foreign body removed under the skin.
(7) Bruised area 1 x 1 c. m. , 7 c. m. Above injury No. 6. A metallic foreign body removed under the skin.
(8) Bruised area 1 x 1 c. m. , 9 c. m. Above injury No. 7. A metallic foreign body removed under the skin.
(9) Bruised and laceration about 1 x 3/4 c.m. Inner of left thigh, 6 c.m. Medially to injury No. 7 with everted edges.
Injuries Nos. 1 to 5 are entry and 6, 7, 8, 9 are exit wounds. The left femur bone was found fractured at lower side. There were holes on Shalwar corresponding side with blackening.
(10) Lacerated wound 3/4 x 3/4 c.m. Burnt and inverted edges just at back middle of neck.
(11) Lacerated wound 3/4 x 3/4 c.m. Burnt and inverted edges, 2 c.m. Below injury No-10.
(12) Lacerated wound 3/4 x 3/4 c.m. With burnt and inverted edges, 2 c.m. Left of injury No. 1.1.
(13) Lacerated wound 3/4 x 3/4 c.m. With burnt and inverted edges. There was no blackening around the wounds. Situated 2 c.m. Right of injury No. 11.
(14) Lacerated wound 3/4 x 3/4 c.m. On the back middle of occipital bone underneath was fractured.
(15) Swelling about 1 c.m. In diameter just above right ear and a metallic foreign body was removed under the skin and right parietal bone was fractured.
(16) Bruised area 1 x 1 c.m. On right middle of neck. A metallic foreign body was removed under the skin.
(17) Bruised area 1 x 1 c.m., 2 c.m. Lateral to injury No. 16. A metallic foreign body removed under the skin.
(18) Lacerated wound 3/4 x 3/4 c.m. Just middle of chin.
(19) Bruised area 1 x 1 c.m. On right upper chest 2 c.m. Below injury No. 17. A metallic foreign body removed in this wound. Injuries Nos. 10 to 14 are entrance wounds, injuries Nos. 15 to 1'7 and 19 are exit wounds."
In his opinion, the death had resulted due to shock and haemorrhage as a result of injuries Nos. 1 to 5 and 10 to 14 which were caused by a fire-arm and were wounds of entry and ante-mortem in nature. The time between injuries and death was within I hour and between death and post- mortem examination was about 18 to 24 hours. In the cross-examination he stated that there was blackening on the clothes corresponding to the entry wounds on the dead body and almost all the entry wounds had burnt edges. He stated that blackening is found only in case the shot is fired from within a distance of 4 feet. The presence of wads also indicated that the shot had been fired from a very close range. Blackening is not possible if the shot is fired from a distance of about nine or more feet. The injuries on the dead body were caused by two shots. One shot had been fired at the outer side of the left thigh and the other shots had been fired on the back of neck. T he pellets in both the shots had travelled from downward to upward and this was an indication that at the time of firing of the shots the victim was standing at a higher level than the assailant who might have stood at a much tower level. But if the position was reverse i.e. The: assailant was standing at a higher level and the victim was standing at a lower level, than the injuries as in this case, could not possibly .Be caused. It was also possible, according to him, that due to the injury on the brain, the deceased may have not been capable to talk after the receipt of the head injury which caused damage to the brain matter.
9. We have heard learned counsel for the parties and carefully perused the record. As we have already pointed out, the recovery evidence is not of any use in the instant case and, therefore, we have to carefully scrutinize the ocular testimony. The ocular testimony comes from two witnesses of the occurrence, namely, Mst. Bakhat Bhari (P.W.8) and Muhammad Banaras (P.W.9). Mst. Bakhat Bhari P.W. Had stated that while Muhammad Banaras P.W. Was present in her house and had come to see her when the deceased had gone out to purchase cigarettes, after sometime there was a knock at the door of the courtyard of the house by someone and it was reported that the appellant had fired on the deceased. She then stated that it was in fact the voice of the deceased himself.
After that she heard report of two more fire-shots and then they opened the door, went outside and saw that the appellant was present on the roof of his Kotha armed with a shotgun. According to her at that stage the appellant declared that he had taken the revenge from the deceased of his making illicit relations with Mst. Asghar Parveen and after making the said declaration he descended to his house. In the cross-examination she stated that the Investigating Officer did not record her statement when he came to the spot. He did not even record her statement on the day of the occurrence. In fact, she did not make any statement and the police did not ask her any question during the investigation. The police did not enquire from Muhammad Banaras P.W.
Anything in her presence. She made the statement before the police to the effect that the occurrence had taken place at the sunset time or that it took place at Nimashanwela but it was not recorded in her statement made before the police (Exh . D . A .) . She stated that the person who was knocking at the door was not visible to them. At the trial she stated that she informed the police that after the knock it was reported that the appellant had fired at the deceased and that it was the voice of the deceased himself. She was confronted with her statement (Exh.D.A.) made before the police in which it was not so recorded. She also stated in the cross-examination that while they were present in the courtyard, they heard the report of fire-shots outside and at that time they did not see the person who had fired the shots, nor the person who had been fired at as the door was closed and nothing was visible to them from that place. She also stated that when the door was unchained, she found the deceased lying on the threshold and he had already expired when they reached near him. So far as the motive version is concerned, this witness stated that she knew of the illicit relationship between the deceased and Mst. Asghar Parveen, brother's wife of the appellant, and that she had secretly informed the mother-ire-law of Mst. Asghar Parveen about her misconduct but that she did not disclose this fact to any other person. Thus, there is no witness in support of the motive version except Mst. Bakhat Bhari P.W. And apparently it was at her instance that Muhammad Banaras P.W. Recorded the same in the F.I.R. So far as the testimony of Muhammad Banaras P.W. Is concerned, he stated in the examination-in-chief that while they were sitting in the house at Maghrib Azan time there was a knock at the door. Mst.
Bakhat Bhari P.W. Got up to go in order to open the door. Then they heard a report of the shot and the deceased shouted that he was injured with a bullet of the appellant. Then all of them went out towards the door and when still in the courtyard, they heard two more shots. This witness opened the door and saw the appellant standing on the roof of Kotha across the lane. He had a rifle and a bag. On seeing them, he shouted that he had revenged his honour and got down. The deceased was lying injured on the threshold and when they saw him he had already expired. There are two points which are important in the instant case. The first is that according to the statement of Muhammad Nawaz Draftsman (P.W.6) who made the site plan in the instant case, the roof in question is eight feet higher than the level of the lane and the lane is 9 to 11 feet in width. Near the spot it is about 11 feet wide. According to the ocular testimony the deceased was in the lane in front of his house when he was fired at, whereas the appellant was on the roof and it was from the roof that he had fired through his shotgun at the deceased. In other words, at the time of the occurrence, according to the ocular testimony, the appellant was standing at a height of 8 feet from the point where the deceased was standing and the distance between them was about 9 to 11 feet. So, it was in this position that the shots are stated to have been fired at the deceased by the appellant according to the ocular testimony in the instant case. Learned counsel for the appellant argued that the ocular testimony is in conflict with the medical evidence in which the doctor had clearly stated the blackening of the fire-arm wound was not possible if the shot had been fired from a distance of about 9 or more feet. Similarly, it has been clearly stated by the Medical Officer that the pellets in both the shots fired at the deceased had travelled from downward to upward and this was an indication that at the time of firing of the shots the victim was standing at a higher level than the assailant who might have stood at much lower level. But if the position was reverse, i.e. The assailant was standing at a higher level and the victim was standing at a lower level then the injuries as the instant case, could not possibly be caused. He had also stated that it was also possible that due to the injury on the brain, the deceased was not capable to talk after the receipt of the head injury which had caused damage to the brain matter. Thus, the main argument of learned counsel for the appellant is that in the light of the record of this case the ocular testimony was in direct conflict with the medical evidence and, therefore, it was not reliable. The alleged eye- witnesses had not in fact seen the assailant who had shot at the deceased but they were implicating the appellant merely on suspicion. In this connection learned counsel placed reliance on Muhammad Iqbal and another v. The State PLJ 1974 Cr.C (Lah.) 98 in which it was held that if there was conflict between the medical evidence and the ocular evidence, then the medical evidence was to be preferred over the ocular evidence. He also placed reliance on Saindad and others v. The State 1972 SCMR 74 in which it was laid down that if the medical evidence was inconsistent with the ocular account of the occurrence, then in the circumstances, the accused should be given the benefit of doubt and acquitted. Learned counsel submitted that even otherwise according to the statement of the eye-witnesses it had become dark at the time when the occurrence took place and, therefore, for that reason also they could have possibly not seen as to who the assailant of the deceased was. The next point is the plea of alibi which has been raised by the appellant in the instant case. He had stated in his statement before the trial Court that at the time of the occurrence he was confined in the police lock-up at Police Station. Gulrachi in Sind in those days. In this connection he has placed documentary evidence on the record in the form of Exhs.D.G. And D.F. At pages 60 and 59 of the printed paper-book. According to Exh . D . G . There is order of the Magistrate Gulrachi in Sind, dates 1-1-1981 to the effect that in view of the facts reported by the police remand under section 167, Cr. P. C. In police custody for seven days is granted to the appellant. This order is, dated 1-1-1981. In other words, vide this order the appellant who was in custody of the police on 1-1-1981 when he was produced before the Magistrate, the police was granted his remand from 1-1-1981 to 8-1-1981. According to Exh.D.F. The said remand was extended for a period of three days more upto 11-1-1981. Thus, according to these documents, the appellant remained in the police custody from 1-1-1981 to 11-1-1981 under the orders of the Magistrate. The present occurrence is stated to have taken place on 2-1-1981 at sunset time i.e. At 6-30 p.m. Thus, he could have not been possibly present on the spot at the time of the commission crime. In the light of the above discussion, we are of the view that the prosecution has not succeeded in establishing its case as against the appellant beyond any shadow of doubt. In that view of the matter, the conviction of the appellant as well as the sentence awarded to him were not proper and he should have been given the benefit of doubt which we hereby given to him. The result is that in the circumstances of the case the appellant is acquitted and his appeal is accepted. He shall be released from jail forthwith if not wanted in any other case. The reference for the confirmation of death sentence is rejected.