MUHAMMAD SIDDIQ J.---Saee appellant has been found guilty of the offence under section 302, P.
P. C. For causing the death of Ahmad Yar deceased. He was sen;enced to death. He has challenged his conviction and sentence through the present appeal. The case is also before us under section 374, Cr. P. C. For confirmation of the sentence of death. This judgment will dispose of the appeal as well as the Murder Reference.
2. According to the prosecution version, Ramzan, father- of the deceased Abroad Yar, was originally the resident of village Ahlowala, but he owned land in village Bodhranwala, which was lying banjar. About two and a half months prior to the present occurrence, he came to village Bodhranwala to bring the land under cultivation. His son Ahmad Yar deceased, his brother Khan, nephew, Shera also accompanied him as they were co---sharers in the said land. On 18th July 1969, at about sunrise time, he woke up his, son Ahmad Yar Khan and Shera P. W. Were also present.
Ahmad Yar was still rubbing his eyes when Saee appellant came there armed with a gun. He fired two shots at Ahmad Yar hitting him on the right side of iris chest and right arm. The occurrence was witnessed by Ramzan P. W. Khan (given up), Shera and Lala P. Ws. The accused after firing ran away. Abroad -Yar died after about one hour. Ramzan reported the matter to the S. H. O. On 18th July 1969, at 9-30 a. m. According to the prosecution, the motive for the murder was that about 4/5 years earlier, Ramzan had given hit daughter Mst. Nizam Bibi in marriage to Muhammad Yar, brother of Saee appellant. In exchange, Mst. Jind Waddi, sister of Muhammad Yar and Sate appellant, was married to his son Muhammad Hayat. Only Nikkah were read, but no rukhsati had taken place, because Muhammad Yar remained seriously ill after his n1kah. Saee appellant, his brother and other relatives insisted that rukhsati of Mst. Nizam Bibi and Mst. And Waddi should take place. However, Ramzan P. W refused to agree with the pro--posal because of the serious ailment of Muhammad Yar. The accused and his brother Ahmad had quarrelled with Ramzan many a time on this issue. They also threatened him with murder. According to the prosecution, this was the motive to commit the murder. In support of its case the prosecution produced Ramzan (P. W. 9), Lala (P. W. 10) and Shera (P. W. 11) as eye-witnesses An empty cartridge (Exh. P. 1) was recovered from the place of occurrence vide memo. Exh. P. C. The appellant is alleged to have produced a single-barrelled gun (Exh. P. 7) on 2nd August 1969. Blood-stained cot along with chaddar was also recovered villa memo. Exh. P. D. Blood-stained earth was also removed from the place of occurrence vide memo. Exh. P. B. And this has been found to be stained with human blood according to the report of the Serologist.
3. The appellant, when examined under section 342, Cr. P. C. Denied the charge levelled against him. He, however, admitted the n1kah of Mst. Nizam Bibi with his brother Muhammad Yar which took place about nina months or one year before the occurrence. He also admitted the nikah of Mst.
Jind Waddi with Muhammad Hayat P. W. He further admitted that the rukhsatis of Mst. Nizam Bibi and Mst. Jind Waddi had not taken place. He denied that his brother Muhammad Yar was sick.
When asked why the case was made against him, he stated as under Mst. Paaah Bibi is daughter of P. W. 9 Ramzan, she was married to one Mahla who divorced her.
Mat. Panah Bibi had two daughters and a son named Sarfraz from Mahla. Mst. Panah Bibi and her son Sarfraz are living with P. W. 9 Razwan. The daughters of Mahla and Mst. Panah Bibi were living with Mahla. Ahmad Yar deceased kidnapped the daughters of Mahla. They were returned after a report to the police and after the intervention of the police. I helped Mahla for the return of Sarfraz to him. Due to this reason, P. W. 9 Ramzan lodged this false complaint against me."
However, he did not produce any defence evidence.
4. Dr. Muhammad Ashraf, Medical Officer, Civil Hospital, Chiniot, on 18th July 1969, at about 5:00 p.m., performed the post-mortem examination ors the dead body of Ahmad Yar deceased and found the following injuries on his person:
(1) A fire-arm entrance wound, -- x 3/4', on the right side of front chest, 2' above and lateral to right nipple at 11'o clock position. One pellet bad passed through the right fourth intern costal space, and injuring the tipper lobe of right lung through and through was found in the right side of chest cavity Which was full of the blood. Two pellets were found in the sub--cutaneous tissues just below the medial side of right clavical. Fourth pellet was found over the outer side of third right rib.
(2) A fire-arm entrance wound, --' x 1/4' just above and medial to injury No. 1. Pellet found over the subcutaneous tissue of third right rib near the costo-chondral junction.
(3) A slightly burnt abrasion, 1/4'x1/4", just above and lateral to injury No. 1.
(4) A fire-arm entrance wound, 1/4' x 1/4', over the right anterior axillary fold, If above injury No. 1, with an exit wound, -- x --', lust below the middle of right clavical edges of the entrance wounds of injuries Nos. 1, 2 and 4 were slightly tattooed.
(5) A fire-arm entrance wound with slightly tattooed edges just below the lower border of right side of mandible 1f from the chin. Pellet found under the subcutaneous tissue.
(6) Two slightly burnt abrasions lying adjacently each 11' on the right lateral side of chest, 4' below injury No. 1.
(7) A fire-arm entrance wound, 1-- x 1-- on the antro---medial aspect of middle part of right upper arm, with an exit wound, 2-- x 2' on the posto-medial aspect of middle part of right upper arm.
Humerus bone underneath was fractured. Brachial artery was shattered during the course of injury.
(8) A firearm entrance wound, -- x -- just above and anterior to the entrance of injury No.7, with an exit wound, -- x -- on the back of right upper arm.
(9) A fire-arm entrance wound, -- x --', skin deep just, above middle of Injury No. 7.
Death in the opinion of the doctor occurred due to shock and haemorrhage which were the result of injuries Nos. 1 and 7. These injuries in the ordinary course of nature were sufficient to cause death.
All the injuries were the result of fire-arm. Time between the injuries and death was about one hour or so.
5. The main eyewitness in this case is Ramzan who is the father of Ahmad Yar deceased. According to this witness, he along with his son Ahmad Yar deceased, brother Khan, nephew Shera, was present at his dhari. About 10/15 minutes before sunrise he woke up his son Ahmad Yar deceased when Khan and Shera were also present. Ahmad Yar was still rubbing his eyes when the present appellant came there armed with gun4(Exh. P. 7) and fired two shots at the deceased hitting him on the right side of his chest and the arm. The occurrence was also witnessed by Khan, Shera and Lala. The appellant after firing ran away. The deceased died at the spot after about one lour.
Ramzan made a report with the police on 18th July 1969, at 9-30 p m: Lala (P. W. 10) and Shera (P. W.
11) have fully supported Ramzan P. W. It is an admitted fact that Ramzan is the father of Ahmad Yar deceased. Shera (P. W. 11) is his nephew. Ramzan further admitted his relationship with Lala (P. W.
La). Apart on relationship, Lala P. W. Has admitted that his brother Sohna was murdered and Khan and Muhammad P. Ws. Were witnesses for the prosecution in that case. Khan and Muhammad were witnesses for the prosecution in the present case also, but they were given up. Khan is the brother of Ramzan (P. W. 9). Lala P. W. Has admitted in clear words that he became a witness in the present case, because Khan and Muhammad were witnesses Sohna's murder case. Thus, the eye- witnesses are not only close related inter se and to the deceased, but are also interests witnesses.
In view of this situation, the learned counsel for the State frankly conceded that without any independent corroboration no reliance should be placed on their testimony. For pur of corroboration, the most important piece of evidence is to recovery of empty cartridge from the place of occurrence (Memo. Exh. P.C.). It may be straightaway observed that Shauka Hussain Patwari has not indicated in the plan (Exh, P, L) the place where this empty was lying. In cross- examination he admitted that the witnesses did not show him the place where the empty was recovered. This circumstance makes the recovery itself as doubtful. Even if the recovery be accepted as proved, it will have no legal value. The recovery witnesses of this empty are Ramzan (P. W. 9), Lala (P. W. 10) and Shera (P. W. 11). Only Ramzan, and Lala P. Ws. Have supported this recovery before the Court. Shera (P. W. 11) has not even mentioned this fact in his examination-in- chief. Therefore, we are left with only two recovery witnesses. As observed earlier, these are the witnesses of the occurrence, also. The corroboration required in this case is for the main occurrence. The prosecution has offered no explanation why they could not produce some other indepen--dent witnesses for the recovery. In the instant case, the eye--witnesses and the recovery witnesses being the same, the question of corroboration would be a mere force. Whenever arty corrobo--ration is required, it implies that it should be an independent one. If the corroboration is also through the same whose statement is required to be corroboration, it will be no corrobora-- tion in the eye of law. In these Circumstances, we are of the opinion that the recovery of the empty from the place of occurrence is no corroboration of the eye-wig. Another article relied upon by the prosecution is the recovery of the gun which the appellant is alleged to have produced before the police on 2nd August 1969. The recovery witnesses of the gun are Ahmad (P. W. 8), Ramzan (P. W. 9) and Lala (P. W. 10). The learned counsel for the State tried to argue that Ahmad being an independent witness, the recovery of the gun should be believed. Even if this witness is believed, it will not help the prosecution. The gun in question is not the licensed gun of the accused. Unless the recovery of the empty from the place of occurrence is established beyond any reasonable doubt, the mere recover o the gun from the appellant would not advance the case of the prosecution any further. The mere recovery or production of the gun will not automatically connect the appellant with the offence of murder. In the absence of a licence the recovery of gun from the appellant may be an offence under, the Arms Ordinance, but bat itself will not make the appellant liable for the murder. The only link in the circumstances could be the recovery of the empty cartridge from the place of occurrence. We have already observed that the prosecution has not proved the same.
Thus, in the circumstances of the case, neither the recovery of the empty cartridge nor of the gun can be used as piece of corroborative evidence against the appellant. The recoveries of other articles are not relevant in this behalf. There is another serious hurdle in the way of the prosecution.
According to Ramzan P. W. The cot of Ahmad Yar deceased was lying from East to West and at the relevant time the deceased was facing towards the East. The appellant also came from East to West when he fired at the deceased. Lala P. W. Has also stated the same thing, but Shera (P. W. 11) has stated to the contrary. According to him, Ahmad Yar deceased was facing towards the North.
In the inquest report the Investigating Officer has also shown the direction of the cot of the deceased from North to South and the appellant is shown at point No. 2 which is towards the South.
The Investi--gating Officer was duly confronted with this document and he has admitted that through oversight he has shown the cot of the deceased as lying from North to South. In any case, the inquest report being the earliest document prepared by the Investigating. Officer himself on the spot, should be preferred especially when it gets support from the statement of Shera (P. W 11).
There is direct conflict between the medical evidence and the ocular evidence. According to the doctor all the injuries on the person of the deceased are on the front part of his body. If the inquest report and the statement of Lala P. W: are accepted that the deceased was facing towards the North, the injuries could not be caused on the front part of the body of the deceased. In any case, the testimony of Ramzan and Lala P. Ws. Being directly in conflict with the inquest report, no importance can be attached to the eye-witnesses, especially when they are interested witnesses. It appears that the prosecution realised this difficulty later on and, therefore, changed the direction of the cot and of the deceased. The explanation of the Investigating Officer that he had shown the cot of the deceased lying from North and South in the inquest report through oversight is not satisfactory. There was no occasion at that stage to commit such a mistake. In these circum-- stances, no value can be attached to the testimony of the eye--witnesses on this aspect of the case.
6. For the foregoing reasons, we are clearly of the view that the prosecution has not proved the guilt of the appellant beyond and reasonable doubt. Therefore, giving benefit of doubt to the appellant, we allow his appeal and acquit him of the offence of murder of Ahmad Yar deceased. He shall be released forthwith if not required in any other case.