' IJAZ NISAR, J.--Adalat Hussain son of Dara (30) was tried for the murder of his father Dara Khan deceased. By his judgment dated 30-5-1984 the learned Addl. Sessions Judge-H, Okara convicted him under section 302, P.P.C. And sentenced him to death plus a fine of Rs,5,000 or in default to undergo R.I. For two years. The fine, if recovered, was to be paid to the legal heirs of the deceased.
2. Adalat Hussain has filed appeal against his conviction and sentence while the learned trial Court has made a reference under section 374, Cr.P.C. For the confirmation of his death sentence. Both the matters shall be disposed of by this judgment.
3. The occurrence had taken place on the night between 17/18-8-1981 at about mid-night in the house of the deceased situate in Chak No, 8/1-R, five miles from Police Station Renala Khurd. F.I.R.
Exh.P.G. Was lodged by Muhammad Ajmal P.W.7 stepbrother of the appellant on the same night at about 3 a.m. At the police station and was recorded by Asghar Ali S.I. P.W.10.
4. The prosecution case is that Dara Khan deceased had two wives. Firstly he was married to Mst.
Khatoon. Out of the said wedlock he had four sons namely Khadim, Muhammad Riaz, Ashiq and Adalat Hussain appellant. After the death of Khatoon he married Mst. Hanifan and four children namely Mst. Kaneez Fatima, Muhammad Ajmal P.W.7, Mst. Noor Saeen and Muhammad Akmal were born. Sometime before the occurrence the deceased got entered the names of Muhammad Ajmal and Muhammad Akmal his sons from the second wife in the Warabandi of Square No,5 of Chak No, 8/1-R. Adalat Hussain appellant took a strong exception to it thinking that the land was being transferred to them. About 5/6 days prior to the occurrence Adalat Hussain appellant brought Muhammad Ameer P.W.8 and Rai Muhammad Ameen P.W.9 to the Dera of his deceased father for taking up the matter with him. On the night of occurrence he had again brought them for the same purpose. They advised the deceased not to deprive his children from his first wife of the share in his land. The deceased told them that the appellant was mistaken and that he had no such intention and would give them equal share of land. Adalat Hussain appellant was not satisfied with that and stated to have himself seen the entries in favour of Muhammad Akmal and Muhammad Ajmal in the Warabandi of Square No,5. After a short while everybody went to sleep. Adalat Hussain appellant went upstairs to sleep.
' At about 12 mid-night Adalat Hussain appellant came down from the roof carrying a pistol and raised Lalkara that he would teach a lesson to Dara for having transferred the land in the names of Muhammad Akmal and Muhammad Ajmal and fired at the deceased hitting him near the right nipple. Muhammad Ajmal, Ameer and Muhammad Ameen P.Ws. Tried to apprehend him but he threatened them with dire consequences. After opening the door he fled away with his pistol. Dara Khan died instantaneously. Leaving Muhammad Ameer and Muhammad Ameen P.Ws. At the spot Muhammad Ajmal P.W.7 left for police station and lodged F.I.R Exh.P.G.
' After recording the report S.I. Asghar Ali reached the spot, prepared the inquest report Exh.P.B. And injury statement Exh.P.C. Of the deceased. He took into possession blood-stained earth and empty cartridge P.4 from there. The empty was made into a sealed parcel through memo. Exh.P.I. He arrested the appellant on 24-1-1981 from general bus stand Okara and at his potation recovered pistol P.3 from his Dhari situate in Chak No, 8/1-R. It was made into a sealed parcel vide memo.
Exh.P.F. Attested by Sajwara P.W.5 and Noor Muhammad PW.6.
5. The pistol P.3 and crime empty P.4 were sent to the Forensic Science Laboratory and as per report Exh. PN of the Examiner of firearms the crime empty had been fired from pistol P.3
6. At the trial, the prosecution examined 11 witnesses to prove its case. Of them, Muhammad Ajmal P.W.7, Ameer P.W.8 and Muhammad Ameen P.W.9 deposed about the motive as well as occurrence.
Ameer P.W.8 and S.I. Asghar Ali P.W.10 proved the recovery of crime empty P.4 from the spot.
Sajwara PW.5, Noor Muhammad PW.6 and Asghar Ali, S.I. P.W.10 testified to the recovery of .12 bore pistol P.3 at the instance of the appellant. Asghar Ali, S.I. Recorded the F.I.R. And conducted investigation.
7. Dr. Naseem Ahmad P.W.3 conducted autopsy on the dead body of Dara deceased (70) and found the following injury thereon: "An oval fire-arm wound (inlet) 3 c.m. x 3 c.m. With inverted skin edges alongwith blackening around it. Blackening including tattooing in the area of 10 c.m. x 11 c.m on the right side of chest. The wound was 1-1/2 c.m. Inner from the right nipple and 8 c.m. From the midline of sternum."
' The pellets had fractured the cartilaginous bone medial ends of 6th, 7th, 8th ribs, ruptured liver, heart, stomach and spleen. Death was due to shock and haemorrhage consequent upon the said injury which was caused by firearm.
8. The appellant pleaded not guilty to the charge and denied the prosecution allegations.
Explaining his involvement he made the following statement:- "My father Dara deceased had many enemies. My brothers, sisters and stepmother were not present at the place of occurrence, rather they had gone to attend marriage in Chak No,65/5.L. My deceased father was all alone in the house. It was unseen occurrence and blind murder. Thieves or his enemies had murdered him. My stepmother wrongly involved me in this case due to the reason that Muhammad Ameer P.W. Wanted to take the hand of Mst. Kaneez Fatima my sister for his son and in exchange sister of Muhammad Anwar P.W. Was to be married with me. I and my father opposed the above proposal. My stepmother and stepbrothers were in favour of the above said proposal. At the time of the abduction of my stepmother my deceased father and stepmother took shelter in the house of Muhammad Ameen P.W. For a period of one year. My father had one square of land under Horse Breeding Scheme and half square under Lumberdari Scheme and wanted to be allotted in the names of my stepbrothers namely Ajmal and Akmai. The instant case has been registered against me only to pressurise me that I and my brothers should relinquish our shares in favour of stepbrothers, as my deceased father had already deprived his brothers from the whole land of his father Rata. Sajwara P.W. Had been promised by the complainant the return of his share of land."
' No oral evidence was called in defence but the appellant tendered in evidence attested copies of Mutation No,14 Exh. D.1 in favor of Muhammad Iqbal, Mutation No,75 Exh. D.2 in favour of Dara deceased, Mutation No, 76 in favour of Ratta father of Dara deceased, Mutation No,156 Exh. D.4 in favour of heirs of Dara deceased and death certificate Exh. D.5 of Ibrahim.
9. Relying on the ocular testimony, the motive, the recovery of pistol P.3 at the instance of the appellant and its matching with crime empty P.4 recovered from the spot, the trial Court convicted and sentenced the appellant as described above.
10. It is contended that Muhammad Ajmal P.W.7 and Ameer P.W.8 were interested against the appellant while Muhammad Amin P.W.9 was a chance witness being a resident of another village.
It was an unwitnessed occurrence, the deceased had many enemies and remained involved in several criminal cases. The motive is also said to be not proved.
11. The case of prosecution is that the appellant was annoyed with the deceased -for his having got entered the names of Muhammad Ajmal and Muhammad Akmal in the Warabandi of Square No,5 of Chak No,8/1-R but no evidence to this effect was led in this behalf. In view of its denial it had become necessary for the prosecution to prove it. Any official of the Revenue or Irrigation Department could have been examined to prove this circumstance but for the reason best known to the prosecution no such attempt was made. Even copy of the Warabandi was n t tendered or proved. On the other hand Mohammad Ajmal P.W.7 had stated that his father Dara deceased had not transferred any land in his favor or his brother Muhammad Akmal. Muhammad Ameen PW.9 stated that in his presence Dara deceased had told the appellant that he would not transfer land to any one depriving him and his brothers of their shares and that he would give share to them as well.
' Muhammad Ajmal PW.7 is a step-brother of the appellant while Ameer P.W.8 was a cousin of the deceased. Muhammad Ameen PW.9 is admittedly a resident of a different village. According to him he had visited the house of the deceased at the instance of appellant to persuade the deceased to refrain from transferring land to Muhammad Ajmal and Muhammad Akmal. According to him after taking meals he slept near the deceased in the courtyard and at about mid-night the appellant came down from the Kotha and raised Lalkara that he would teach him (Dara deceased) a lesson for not giving him share of the land and fired a pistol shot at him. There was no occasion for the appellant to have raised Lalkara before the occurrence. If the appellant had selected the night time for the occurrence he would not have done anything which could have woken or attracted the P.Ws. He could have easily fired at the deceased when every body was asleep. There was no immediate cause of annoyance to him particularly when according to Muhammad Ameen PW.9 the deceased had denied having deprived the appellant or his brothers of their shares in the land and assured him of giving share to them as well. There is yet another circumstance which makes the prosecution case highly doubtful. According to the prosecution crime empty P.4 which was found to match with pistol P.3 of the appellant, was recovered from the spot. There is no mention of the presence of the crime empty at the spot either in the F.I.R. Or in the inquest report Exh.P.B. There is no allegation against the appellant of having eloaded the pistol at the spot after firing the first shot. A specific question was put to Ameer P.W.8 in this behalf but he denied having any knowledge about it. We have seen the pistol P.3. It is a country-made carbine with absolutely no device for automatic ejection. The empty cartridge would remain in the chamber after having been fired unless it is manually taken out of it. If the appellant, as alleged by the prosecution, had run away with pistol P3 there was no occasion for him to have thrown away empty cartridge at the spot. This improvement by Ameer P.W.8 has cast a serious doubt on his testimony. If he could tell a lie on this important aspect of the case there is no guarantee of his making the rest of the statement truly. It is in evidence that Dara deceased remained involved in murder and abduction cases. There is evidence to the effect that on the night of occurrence the mother of Muhammad Ajmal P.W.7, his younger brother and sister had gone to the house of a maternal-aunt at Hujra. Thus, the possibility of the deceased having been done to death when he was all alone in the house as stated by the appellant cannot be ruled out.
12. The recovery of pistol P.3 at the instance of the appellant is also not free from doubt. No person from the vicinity of the place of recovery was made to attest the recovery memo. The recovery took place at Okara Bus Stand but only 8 close relations of the deceased were examined to prove it.
Sajwara P.W.5 is a brother of the deceased while Noor Muhammad P.W.6 is his brother-in-law. As already stated above there was no provocation from the deceased to the appellant C compelling him to take the life of his father.
13. Having considered all the pros and cons of the case we are of the opinion that the prosecution case is not free from doubt. Consequently, we accept the appeal, set aside the conviction and sentence of the appellant and acquit him of the charge by giving him the benefit of doubt. He shall be released forthwith if not required in any other case.
' The death sentence is not confirmed.