GHULAM SAFDAR SHAH, J.-Accused Najib Ullah aged 55 years, Saifullah aged - 35 years and Jehan Khan aged 34 years are brothers and are the sons of Hassan Khan. They have been con--victed by the Additional Sessions Judge, Lyallpur under section 302/34, P. P. C. For the murder of Fateh Sher aged 50 years, resident of Chak No. 586/G. B. Police Station, Lundian--wala. Accused Najibullah has been sentenced to death and the other two accused to transportation for life. Each one of them has also been fined of Rs. 200 and in default to two months' R. I. The learned Additional Sessions Judge has made a reference to this Court under section 374, Cr. P. C. For the confirmation of death sentence of accused Najibullah while all the three accused have also filed an appeal questioning their conviction. Since the reference and appeal arise out of the same judgment, - they would be disposed of together.
2. The facts of the prosecution case are that at about sun--set time on 28th October 1965, the deceased, along with P. W. 8 'Sher Muhammad, his real brother, Barkburdar P. W. 9, his sister's son, Faith Muhammad P. W. 10, also his real brother, and Abdullah P. W. 11, the grand-son of his paternal uncle was sitting in his dera, listening to radio. Since it was going to be prayer time soon, the deceased asked them to switch off the radio and himself went out to answer the call of nature, towards the sarkanda bushes nearby. After a short while there was a report of gun fire. The P. Ws.
Stood up and saw Fateh Sher deceased running in their direction, chased by the three accused who were armed with guns. Najibullah accused fired at the deceased hitting him in his back who as a result fell down and expired. The accused also aimed their guns at P. Ws. And threatened that if any one was to come near them, he would also be killed. After the incident, the accused are alleged to have run away. Some persons from the-neighbouring houses had also come to the scene of occurrence, soon after the incident. Sher Muhammad P. W. 8 then went to the Police Station, accompanied by Faiz Muhammad P. W. 3, and lodged F. I. R. Exh. P. G.
3. The motive for the murder, as stated by .The P. Ws. Was that Muhammad Khan, elder brother of the accused had sold four killas of his laud in Chak No. 586/G B. To Fateh Sher deceased about 9/10 years ago for Rs. 2,000. When the land was sold it was barren but after sometime it was reclaimed and its condition improved. The accused desired to have the land in question restored to them by the deceased Fateh Sher and approached him offering him Rs. 2,000, which he had paid, as its price, but he refused. A few days before the occurrence the accused had also prevented Fateh Sher deceased from irrigating his land but he nevertheless succeeded in doing so with the help of his tenants. The accused, on account of this incident, nursed a grudge against the deceased who as a result was murdered by them.
4. Dr. Abdul Ghafoor Zahid P. W. 1 had performed the post-mortem examination on the dead body of the deceased at Civil Hospital, Jaranwala and had found on his person the follow--ing injuries: - -- 11 gunshot wounds 1/4' x 1/4' each situated in a circule 3' diameter on the left side of back near the middle line. There was chairing of skin and deposit of powder on the margin. Two shots were discovered under the skin on the left side front aspects and four shots were discovered from the left chest cavity. The left lung was perforated through and through at five places with severe haemorrhage. The heart was perforated through and through at two places. The stomach contained one ounce of digested food. The intestines and bladder were healthy and empty. Rest of the organs were healthy."
In his opinion the deceased died of haemorrhage and shock due to injuries to the lung and heart.
All the aforesaid injuries, according to him, were sufficient to cause death in the ordinary course of nature. In his opinion the injuries were caused by a fire-arm and were ante-mortem.
5. The nature of the wounds, charring of skin and the deposit of powder on the margin, as reported by Mr. Abdul Ghafoor Zahid P. W. 1, suggests that the deceased had been shot from a very close range which could not be more than four feet. For this assumption we find support from the following passage from the book of Medical Jurisprudence and Toxicology by Modi, 8th Edition which appears at page 205: "If a firearm is discharged very close to the body, or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scroched and blackened by smoke and tattooed with unburnt grains of gunpowder. The adjacent hair is singed, and the clothes covering the part are burnt from the flame of the gas. If the powder is smokeless, there will be no blackening of the skin, but there may be a greyish or white deposit on the skin round the wound. No blackening or scorching is found if the firearm is discharged from a distance of more than four feet."
6. The prosecution case depends upon the evidence oaf four eye-witnesses namely Sher Muhammad P. W. 8, Barkhardar P. W. 9, Fateh Muhammad P. W. 10 and Abdullah P.
11. Sher Muhammad P. W. 8, who had lodged the F. I. R. Has stated that on the date of occurrence, he first beard the report of a gunshot which attracted his attention and then saw the deceased running towards his direction, being chased by the accused who were all armed with guns. He further stated that the deceased was at a distance of l -- karams in front of the accused when Najibullah accused fired his gun which hit Fatah Sher in his back who as a result fell down and died on the spot. He further stated that he, and the other P. Ws. Ran towards the accused but they stopped as the accused aimed their guns. At them, However, these facts do not find a place in the F. I. R. Which he had lodged. It is true that these discrepancies may not appear to be material by them--selves, but when the evidence of other P. Ws. Is discussed, it would be seen that they would assume proper significance.
7. Barkhurdar P. W. 9, in his examination-in-chief, stated that after a gun-fire was beard, he along with other P. Ws. Came out of the dera and saw Fateh Sher deceased running towards their direction, followed by the three accused who were armed with guns. Najibullah accused fired his gun in the back of Fateh Sher from a distance of 1-- karams, who as a result fell down and died on the spot. However, in cross-examination, he stated that on coming out of the dera he had also seen smoke coming out of the guns of Saifullah and Jehan Khan accused. This version suggests that evidently two shots had been fired one each from the gun of Saifullah and Jehan Khan accused before Najibullah accused fired the fatal shot in the back of the deceased which as a result killed him. The other conclusion to which one is driven, as a result of this version, is that in order to have been able to see the smoke coming out of the gun, the sun must still be shining when the occurrence took place.
8. Fateh Muhammad P. W. 10 stated in his examination-in-- chief that when Fateh Sher deceased had gone out of the dera to answer the call of nature, he heard gun shots after a short while.
According to him, when he got up and looked towards the direc--tion, from where the shots were heard, he saw the three accused running behind the deceased armed with guns. According to him, Najibullah accused fired at the deceased which hit him in the back and as a result he fell down and died. In cross-examination, he confirmed that he bad heard two gunshots before his attention was drawn to the incident, but he had not said so in the Court of committing Magistrate. In that Court he had stated that he had beard the sound of fire only. Similarly in his statement under section 161, Cr. P. C. He had not mentioned that the accused had threatened him and the other P. Ws. With guns. He also stated that there was still 15 to 20 minutes time to Maghrab prayers when the occurrence took place and that the sun had not set until then. He further stated that around the dera, where he and other P. Ws. Were sitting, are the houses of Ghulam son of Zaman and Yasin son of Ghulam and that some persons from the neighbouring houses had come to the scene of occurrence after the incident.
9. Abdullah P. W. 11, in his cross-examination, stated that after hearing two shots, his attention was attracted to the place of incident, but he had not stated so before the Court of committing Magistrate. He further stated that no one from the neighbouring houses had reached the scene of occurrence after hearing the gun--shots. He also stated that when the deceased was answering the call of nature inside the bushes he was not visible. He further stated that soon after the occurrence he had gone inside the bushes and had seen for himself the traces of urine which the deceased had made.
10. Abdul Haq, S. I. P. W. 12 has stated in his cross-exami--nation that he had reached the scene of occurrence at about 5 or 5-30 a. m. On 29th October 1965. He confirms that the distance between the scene of occurrence and the police station is 14 miles, if one goes straight through katcha roads but otherwise it is 25 miles. He further stated that on inspecting the bushes, where the deceased had gone to answer the call of nature, he found them above man's height. He also stated that the bushes were quite thick at some places and that if a person was standing in it, he would not be visible to the P. Ws. He also stated that no empty cartridges were recovered from the scene of occurrence. He further stated that he had arrested the accused Saifullah and Najibullah at 8 a. m. On 30th October 1965, but on interrogating them they did not disclose to him the purpose of offence. He also stated that he did not search the houses of the accused because they did not disclose to him that they possessed any weapon. He also stated that accused Najibullah and Saifullah bad told him, during investigation, that Jehan Khan was at Khanewal since 28th October 1965. He also confirmed that Muhammad Ashraf A. S. I. Was sent by the Inspector to Khanewal to enquire about Jehan Khan who reported that he had been arrested at Khanewal at 21-35 hours on 30th October 1965 by the Railway Police in connection with certain offence committed by him on the night between 28th/29th October 1965. He also stated that on 18th November 1965, Muhammad Ashraf A. S. I. Reported that Jehan Khan was innocent and he had no band in the murder of Fateh Sher deceased. He further stated that he did not agree with the report of A. S. I. Muhammad Ashraf sad after making enquiries he found that Jehan Khan accused was also guilty. He however, admitted that a case of theft had been registered against Jehan Khan accused, which he was alleged to have committed between the night of 28th/29th October 1965. .
11. The accused have pleaded not guilty and have denied the charge. Since no recoveries have been made in this case, the prosecution version, in order to succeed, depends upon the evidence of four eye-witnesses. It would be remembered that these eye-witnesses are related to the deceased which by itself is no ground to disbelieve or doubt their evidence but for lack any corroborative material, their evidence bas to be examined with caution. There are certain material discrepancies which have emerged in the cross-examination of these eye-witness. Sher Muhammad P. W. 8, had stated in the F. I. R., that he had hears a gun-fire before his attention was attracted to the scene of incident but in cross-examination, he stated that he had heard two shots, a fact, which he said, he had mentioned in his statement under section 161, Cr. P. C. Before the police. However, no such thing is mentioned in the said statement. All that he had said was that he had heard the sound of gun fire. In cross-examina--tion, he further stated that he had seen smoke coming out of the barrel when the accused fired the first shot. He also confirmed that Fateh Sher deceased had gone inside the bushes and that he had heard the fire after a short while.
Barkhurdar P. W. 9 also stated in examination-in-chief that, he had seen smoke coming out of the guns of Saifullah and Jehan Khan accused. According to his version evidently three shots had been fired two from the guns of Saifullah and Jehan Khan accused and the third from the gun of Najibullah which killed the deceased. Sher Muhammad P. W. 8 on the other hand mentioned only one gun fire as a result of which his attention was attracted to the incident, and he thus saw Najib- -ullah accused firing his gun in the back of the deceased as a result whereof he fell down and died.
Fateh Muhammad P. W. 10, in examination-in-chief, has stated that before his attention was attracted to the incident he had heard fire shots, thereby suggesting as if more than one gunshot had been fired before Najibullah accused was seen to have shot the deceased in his back as a result of which he died. Abdullah P. W. 11, also stated in cross-examination, that before his attention was attracted to the scene of incident; he had heard two gunshots but he had not stated so in his statement under section 161, Cr. P.. C. Before the police. It would be seen that Sher Muhammad P. W.
8 started improving the prosecution case at the trial as against what he had stated in the F. I. R.
And he was followed in that direction by the other eye-witnesses. In any case, as it would be presently seen, the entire evidence of the prosecution is not only discrepant but is also unnatural and not worthy of reliance. The evidence of P. W. 1 Dr. Abdul Ghafoor Zahid, who has performed the post-mortem examination on the dead body of the deceased, leaves us in no doubt that the shot, which had killed the deceased, was fired from a very close range and in any case not from a distance of more than four feet. It also appears to us that in all only one shot had been fired at the scene of occurrence which had killed the deceased and the version of the P. Ws. To the contrary is unbelievable. If all the three accused were armed with guns which is the prosecution case, it is not conceivable as to why they should have chased the deceased and shot him from the close range of about four feet. After all they were armed with guns and not lathis or hatchets. Assuming for the sake of arguments that one or two shots had been fired at the deceased, when he was inside the bushes but he was not hit, what was there to stop the third accused to shoot the deceased at the same place without taking the risk of coming out in the open, which would have facilitated their identification. We are not inclind to believe this version and we do not consider it safe to rely on it to the prejudice of the accused.
12. There is another aspect of the case of the prosecution which also needs attention. If it was true that the deceased had instructed the other P. Ws. To switch o8' the radio as it was going to be prayer time, it does not appear natural that he should have himself gone to answer the call of nature. It is also not under--standable as to why the other P. Ws., after having switched off the radio, kept on sitting in the dera without making any prepa--ration for evening prayers. On the contrary Fateh Muhammad P. W. 10 has stated in cross-examination that there was still 15 to 20 minutes time left to Maghrab prayers when the occurrence took place. This aspect of the case of the prosecution is also not free from doubt because the evidence of the P. Ws. Does not appear to be natural and also because there exist in their statements grave discrepancies on the point of time when the occurrence had taken place.
13. The F. I. R. Was lodged at 1.30 a. m. On 29th October 1965, at the police station which is at a distance of 14 miles if one was to go by a katcha path and 25 miles by road. It is admitted that Sher Muhammad P. W. 8, who had lodged the F. I. R. Had travelled the distance on foot and had pursued the shorter path of 14 miles. If the incident had taken place before sun-set, which is the prosecution case, then the time of occurrence would be around 5-00 to 5-15 p. m., because on 28th October 1965, the sun-set time was 5-25 p. m., according to the calendar which we have consulted. In fact Fateh Muhammad P. W. 10 confirms in cross-examination, that when the deceased gave instructions to switch off the radio, as it was going to be prayers time, there was still 15 to 20 minutes time left for Maghrab prayers and that the sun had not set until then. In this view of the facts it has not been explained as to why the F. I. R. Was lodged after about 7J hours at a distance of 14 miles. The learned counsel for the State argued that it was a dark night and therefore, the speed of Sher Muhammad P. W. 8, who went to lodge the F. I. R. Could not be more than two miles an hour. At this speed, according to him, a period of seven hours was required to cover the distance of 14 miles and after allowing a margin of 30-45 minutes, which he must have taken preparing himself to leave for the police station, the F. I. R. Was appropriately lodged at 1-30 a. m.
On 29 October 1965. We are not impressed by this argument. On 28th October 1965, the setting time of moon was 20-24 hours according to the calendar and if Sher Muhammad P. W. 8 had started for the police station, say even around 5-30, 5-40 p. m., he would have had almost three hours of moon light which would have enabled him to walk at a speed of about three miles an hour. At this rate he would have covered the distance-of 9 miles in moon light and would then be left with a distance of only 5 miles to cover in dark. Even at the speed of 2 miles an hour, which is the estimate of the learned State counsel, he would have covered the balance of 5 miles in 2J hours. As a result he should have reached the police station at 11-15, 11-30 p m. And the F. I. R.
Lodged at mid-night on 28th October 196) and not at 1-30 a. m. On 29th October 1965. We accordingly hold that F. I. R. Was not recorded in the manner as alleged by the prosecution but was recorded as contended by the defence counsel at the place of occurrence. It would be recalled that the eye-witnesses have also stated that they had seen smoke coming out of the barrels of the guns of the accused which if true, would mean that at the time of occurrence the sun was still shining. In this view of the matter, the incident must have taken place at any rate before 5-20 p. m.Which was the setting time of sun on 28th October 1965; and therefore, F. I. R. Should have been lodged in any event before mid-night on 28-10-1965.
14. The P. Ws. Have admitted in their cross-examination that, adjacent to the scene of occurrence are the houses of Ghulam son of Zamin and Yasin son of Ghulam but no one from these houses came out after the gun fire. They have also admitted that some persons from the neighbouring houses had come to the scene of occurrence soon afterwards but it is strange that none of them was examined nor even the name of any one of them men--tioned in the F. I. R. This version of the prosecution case also appears to us to be doubtful.
15. The report of Muhammad Ashraf A, S. I., who had been deputed to go over to Khanewal in search of accused Jehan Khan now gains importance. He had reported that Jehan Khan accused was innocent and was not involved in the murder of deceased. To us his report appears to beth believable when seen in the light of foregoing discussion. In any case, even the prosecution admits that at 21-35 hours on the night of 28th/29th October 1965, Jehan Khan was arrested by the Railway Police, Khanewal, in connec--tion with certain offence. His presence on the scene of occurrence as stated by the prosecution witnesses, is therefore not free from doubt.
16. Abdul Haq S. I. P. P. W. 12, in his cross-examination admitted that he neither recovered any empty cartridges from the scene of occurrence nor did he recover the weapons of offence. He further admitted that he did not even try to search the houses 0f accused in an endeavour to recover their guns. This conduct on his part seems to be unnatural and does not inspire confidence.
17. From the nature of injuries and the statement of P. W. 1 Dr. Abdul Ghafoor Zahid it is established that the deceased had been shot from a very close range which in any case could not have been more than four feet. Fateh Muhammad P. W. 10, has admitted in his cross-examination that Fateh Sher deceased was not visible when he was answering the call of nature inside the bushes, and that after the occurrence he had seen the traces of urine at the place, where the deceased had eased himself. P. W. 12, Abdul Haq S. I. P. Has also confirmed in cross-examina--tion that the bushes where the deceased had eased himself, were above man's height. He has further confirmed that these bushes at some places were quite thick and that if a person was standing there, he could not be seen from the place where the P. Ws. Were sitting. For all these reasons we are of the view that the evidence of P. Ws. Is not free from doubt and that the prosecution has failed to prove its case beyond reasonable doubt.
18. It appears to us that none of the P. Ws. Had seen the occurrence but being closely related to the deceased, who admittedly stood on inimical with the accused, they involves them on mere suspicion. As a result, we are not inclined to con--firm the death sentence of accused Najibullah and the reference in that regard made by the learned Additional Sessions Judge, Lyallpur is rejected. The appeal of all the three accused is allowed and they shall be set at liberty forthwith unless they are required in some other case.