1. ' USMAN ALI SHAH, J.--This appeal by leave of the Court has arisen from the judgment dated 13-5- 1984, passed by the Lahore High Court, Bahawalpur Bench, whereby, (i) Criminal Appeal No,10 of 1982/BW-P and M.R. No,5 of 1982 of the appellant against the judgment dated 31-1-1982 of the Additional Sessions Judge, Bahawalnagar, convicting the appellant under sections 302 and 452, P.P.C., for the murder of Khalid Farooq Wattoo and sentencing him under section 302, P.P.C. To death with fine of Rs,5,000, if realized to be paid to the heirs of the deceased as compensation, or in default to undergo further R.I. For two years and under section 452, P.P.C. To suffer 5 years' R.I. With a fine of Rs,1,000 or in default to undergo further R.I. For six months' (ii) Criminal appeal against the acquittal of Muhammad Yaqoob, the alleged accomplice of the appellant, were dismissed by the impugned judgment.
2. ' The motive for the offence is that Mr. Khalid Farooq Advocate had two wives, namely, Mst. Nusrat and Mst. Shaheen Rizwana. Mst. Shaheen Rizwana is the daughter of Maulvi Muhammad Latif and sister of Muhammad Ajmal appellant. Mst. Shaheen Rizwana and her sister Mst. Zahida Parveen instituted a suit against their father regarding some landed property which was decided in their favour on 1-4-1979. This decision was based on the oath of Mr. Khalid Farooq Wattoo. Maulvi Muhammad Latif while keeping grudge had threatened that he would take revenge of the oath by murdering Khalid Farooq Wattoo. In order to give vent to this grievance, Maulvi Muhammad Latif is alleged to have hatched an effective conspiracy to murder Mr. Khalid Farooq Wattoo.
3. ' According to the F.I.R. Ex.P.Q/1 the prosecution story of the case is briefly stated to be that on 21-5- 1979 at 7-30 p.m. Mr. Khalid Farooq Wattoo (deceased) and the complainant Muhammad Tayyab (PW-9), brother-in-law of the deceased were sitting in the drawing room of the house of the deceased. Munshi Ghulam Qadir and Ghulam Murtaza Wattoo, a Girdawar, were present in the office at that time. Umair Farooq son of the deceased entered the drawing room with a jug of water. Accused Muhammad Ajmal appellant armed with a revolver entered the drawing room alongwith an unknown person and started indiscriminate firing at Khalid Farooq Wattoo, due to which he tilted on the sofa and Muhammad Ajmal appellant then brought out a knife and gave a knife blow on the back of the deceased. The unknown accomplice of the appellant also gave a knife blow on the back of Khalid Farooq Wattoo. On hearing the report of firing Munshi Ghulam Qadir and Ghulam Murtaza Wattoo rushed to the drawing room from the office and Mst. Nusrat wife of the deceased also came to the drawing room from inside the house and all of them witnessed this occurrence. The assailants after commission of the crime decamped from the spot.
4. Mr. Khalid Farooq Wattoo was taken to the hospital in injured condition for medical treatment.
5. Muhammad Tayyab, Advocate produced a draft complaint Ex.P.Q. At the Police Station on the basis of which formal F.I.R. Exhibit P.Q./1 was recorded by S.I. Faiz Ahmad (P.W.15). After recording the F.I.R.
6. Faiz Ahmad S.I. (P.W.15) visited D.H.Q. Hospital, Bahawalnagar where the injured Khalid Farooq Wattoo was present. He prepared the injury statement Ex.PF and made query Ex.P.E. From the medical officer about the fitness of the injured to make statement. The injured was declared unfit whereafter the S.I. Recorded statement of PWs. Asghar, Umair, Ramzan, Ghulam Murtaza and Hafeez who were all present in the hospital. The S.I. Then inspected the spot and secured bloodstained knife P.5 vide memo. Ex.P.L. The same was lying at the place of occurrence and was made into a sealed parcel. He also secured blood from the spot vide memo. Ex.P.K. Three pellets Exs.P.6/1-3 were lying behind the sofa which were taken into possession vide memo. Ex.PN. He recorded the statements of the witnesses of the above-said recoveries and the remaining eye- witnesses, namely, Munshi Ghulam Qadir and Mst. Nusrat. At about 2-30 a.m. The same night the S.I. Received information about the expiry of the injured and went to the hospital where the dead body was lying. He prepared the inquest report Ex.PG.
7. ' On 22-5-1979 Dr. Shabbir Ahmad Goraya (PW.3) conducted the autopsy at 7-30 a.m. On the dead body of the deceased and found 9 injuries on the dead body. The doctor opined that injuries Nos. 5, 6 and 8 were proved fatal and dangerous to life. According to the doctor all the injuries were caused by fire-arm except injury No,6 which was caused by sharp-edged weapon.
8. ' On 22-5-1979 the S.I. (PW.15) arrested accused Maulvi Abdul Latif at 4-0/5-0 a.m. And on 2-6-1979 accused Muhammad Yaqoob and Muhammad Ajmal were arrested by the police. On 4-6-1979 while in police custody accused Muhammad Ajmal led the police to the recovery of revolver Ex.P.7, which was concealed under the earth near the service road of Fordwah Canal. It was secured in a sealed parcel vide memo. Ex.PN. Accused Muhammad Yaqoob was correctly identified by PWs Muhammad Tayyab, Muhammad Umair and Mst. Nusrat in the identification parade arranged in the District Jail Bahawalnagar under the supervision of Altaf Rashid Tehsildar (PW.4). On 5-6-1979 while in police custody accused Muhammad Yaqoob led to the recovery of dagger P.9 after digging out the same from the service road of Fordwah Canal. The same was blood stained and was sealed into a parcel vide memo. Ex.P.O.
9. ' After completion of the formalities of the investigation, the accused were challaned by the police under section 302/452, P.P.C. To stand their trial. They pleaded their innocence. The prosecution in support of its case has examined 16 witnesses. In consequence of the trial the learned Additional Sessions Judge, Bahawalnagar vide his judgment dated 31-1-1982 found the accused Maulvi Abdul Latif and Muhammad Yaqoob not guilty of the charges and were acquitted. However, the learned Additional Sessions Judge held that both the charges against Muhammad Ajmal appellant have been proved beyond any shadow of doubt, convicted him under sections 302 and 452, P.P.C. And sentenced him under Section 302, P.P.C. To death and with the fine of Rs,5,000, if realized, to be paid to the heirs of the deceased as compensation or in default to undergo further R.I. For one year and under Section 452, P.P.C. To suffer five years' R.I., with a fine of Rs,1,000 or in default to undergo further R.I. For six months.
10. ' The appellant challenged his conviction and sentence before the Lahore High Court, Bahawalpur Circuit and the complainant filed an appeal against the acquittal of Muhammad Yaqoob in the said High Court. A learned Division Bench of the High Court, which heard the appeals dismissed both of them and maintained the conviction and sentence of the accused Muhammad Ajmal appellant, vide impugned judgment. Hence this appeal by leave of the Court.
11. ' We have heard the learned counsel for the appellant and gone through the record of the case.
12. Before us the learned counsel for the appellant urged that {{PAGE CUT}} the High Court has failed to take into consideration while examining the question, whether the three eye-witnesses examined by the prosecution during the trial were really present at the time of the occurrence and had in fact seen the occurrence as one of the learned Judges of the High Court in a separate judgment, came to the conclusion that Ch. Ramzan All (PW.11) was not present at the time of occurrence. Ch. Ramzan Ali being an independent person and who claimed that at the time of occurrence he was discussing a civil case with the deceased. His statement casts doubt on the prosecution case. Had he been present at the time of occurrence to discuss the papers of the case with the deceased, there must have been a recovery of the said papers by the investigating officer, in order to verify the fact whether the papers were stained with blood or not. This fact is not known to Ch. Ramzan Ali that how these papers reached back to his office. The finding of the High Court was that this eye-witness knew Muhammad Yaqoob, co-accused of the appellant, yet in the F.I.R.
13. The said co-accused was not named. It is a matter of record that Muhammad Tayyab (PW.9) who lodged the F.I.R. Had admitted in his cross-examination that "the house of Muhammad Yaqoob, acquitted accused is less than a furlong from the place of occurrence while that of the accused Muhammad Ajmal appellant is about a furlong from the place of occurrence. The shop of Yaqoob is about 400/500 yards from the place of occurrence. He is a carpenter but I do not know if he prepares furniture". The said eye-witness again in his statement said that "I do not know accused Muhammad Yaqoob by name before this occurrence. However, I had seen him before the occurrence". In spite of this Muhammad Tayyab (PW.9) being a lawyer and aware of the importance of the F.I.R., while lodging the FIR. Mentioned the second assailant only as an unknown person. Muhammad Tayyab (PW.9) has given altogether quite different version of the case. His presence with the dead body is shown by the doctor but the documentary evidence on record shows that nobody in the hospital was present and the S.I. Faiz Muhammad PW.15 brought the dead body. The abovesaid different version and contradictory statement clearly makes Muhammad Tayyab (PW.9) liable to be disbelieved. No motive is made out in this case because Maulvi Abdul Latif, the acquitted accused, in order to settle the dispute, made an offer to the deceased to take oath on the Holy Qur'an. After an offer made by Maulvi Abdul Latif to the deceased then the former would not have been left with any grievance against the deceased because Maulvi Abdul Latif father-in-law of the deceased had given his property to his real daughters. Thus in the circumstances the accused Muhammad Ajmal being a son, would never be prompted by his father to kill the husband of his sister. As he is not the beneficiary and by killing the deceased, neither he would get anything nor get back the property from his sister. Had Muhammad Tayyab (PW.9) been present on the spot and seen the occurrence, he would not have omitted the name of Muhammad Yaqoob who belonged to the same locality an thus failed to give his description, therefore, he has rightly been described as doubtful witness by the Courts below.
14. ' There is also contradiction in the medical evidence and that of the ey witnesses. According to the report drafted by the complainant Muhamm Tayyab on the basis of which formal F.I.R. Ex.P.Q/1 was lodged, the appellant well as his co-accused have dealt knife blows on the back of the deceased but per the doctor who conducted the autopsy on the dead body of the deceased, deceased had 9 injuries on his person which were caused by fire-arm except in No,6 which was caused by sharp- edged weapon. This contradiction also c doubt on the prosecution case.
15. In the light of the above discussion, our assessment of the evidence is that the prosecution had not come forward with clear episode of the occurrence. In the absence of clear and straightforward evidence brought by the prosecution on record, we have come to the conclusion that mere doubtful narrations on the part of the prosecution witnesses against the appellant in this case will not carry credence against him, unless the prosecution is able to bring on record ocular as well as circumstantial evidence of unimpeachable character. In the circumstances the guilt of the appellant is not free from doubt. We find that the evidence against the appellant is in no way distinguishable from the evidence given against Maulvi Abdul Latif and Muhammad Yaqoob co- accused, who were acquitted. As the prosecution case has been disbelieved against them, it deserves the same treatment as regards the appellant.
16. As a result, we hold that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, consequently, we set aside the impugned judgment of the High Court and while accepting this appeal, we acquit the appellant, he shall be set at liberty forthwith, if not required in any other case.