RASHID AZIZ KHAN, J.-- Mati-ur-Rehman aged 55 years, alongwith his two sons, namely, Zahid Nadeem 19 years and Rizwan Ahmed, 17 years, were tried by Additional Sessions Judge, Rawalpindi, for the murder of Muhammad Saleh Javed. The trial Court vide its judgment, dated 25-2-1987, gave the benefit of doubt to Mati-ur-Rehman and Rizwan Ahmed and acquitted them. Zahid Nadeem was, however, found guilty and sentenced to death and a fine of Rs.10,000 or in default to undergo two years' R.1. It was further ordered that the fine if recovered, half of it shall be paid to the legal heirs of the deceased. Zahtd Nadeem has appealed against his conviction. The complainant has also filed a revision. Challenging the acquittal of Mati-ur-Rehman and Rizwan Ahmed. The case is also before us for confirmation of the death sentence.
The prosecution story in brief as disclosed by Muhammad Azam complainant' in F.I.R. Is that on 12- 10-1985, he and his brother Muhammad Khalid were present in their house. His other two brothers, namely, Muhammad Saleem and.Muhammad Saleh. Had gone to their shops situated at Taj Mahal market Rawalpindi. At about 2 p.m., they; heard some commotion outside their house and both of them went towards the place from where the noise was coming: They saw Zahid Nadeem appellant armed with revolver, Rizwan Ahmed armed with .12 bore gun and their father empty- handed, tenants of the complainant. All of them were dragging Muhammdd Saleh towards their house. On seeing them, Rizwan Ahmed, acquitted accused, fired a shot threatening that if anybody came near, would be done to death. In the meanwhile, Tariq Amjad Khan and Khawaja Khalid Hameed, both neighbours, also came to the spot. Within their presence Zahid Nadeem fired a shot hitting Muhammad Saleh on the right side of the nose. On the alarm raised by the witnesses the said three accused left Muhammad Saleh and went inside their house.
The motive for the commission of the offence is that House No. 125-H had two portions. In one portion the complainant side was residing whereas they had given the other portion on rent to the accused persons. The complainant side had asked the accused persons to vacate the house as they needed the same for their personal use which they refused, whereupon an ejectment petition was also filed in which the next date of hearing was 2-11-1985.
Complaint Exh.P.D. Was lodged by Muhammad Azam, P.W.10, at about 2-30 p.m. It was recorded by Muhammad Anwar, S.I. Police Station City Rawalpindi, P.W.13, in General Hospital, Rawalpindi at 3 p.m. Formal F.I.R. Exh.P.D./1 was recorded by Mian Muhammad S.I. P.W.4.
2. After drafting Exh.P.Q., Muhammad Anwar, S.I. Prepared inquest report Exh.P.N., and injury statement Exh.P.O. And then left for the spot. On his way to the spot, he met Sher Baz, A.S.I., who produced before him Zahid Nadim, Rizwan Ahmad and Mati-ur-Rehman, accused persons. He recorded the statements of the witnesses at the spot and prepared a rough sketch Exh.P.Q. Of the place of occurrence. He got the place of occurrence photographed from one Abdul Hakim, S.I., the photographer. Mati-ur-Rehman produced before him licensed gun P.9 of his father which was secured vide memo. Exh.P.E. At the time of arrest of the appellant, he was found injured, therefore.
He recorded his injury statement Exh.P.R. On 16-10-1985, Zahid Nadim, while in custody, got recovered revolver P.12 from his Baithak from underneath a Sofa which was secured vide Exh.P.J. He also took into possession broken pieces of the door of the Baithak of the appellant and iron bolt vide memo.. Exh.P.L. On 20-10-1985, he took the draftsman to tyre spot, who, on the pointation of the witnesses prepared site plan Exh.P.C. And Exh.P.C./1. On 13-10-1985, he took into possession the last worn clothes of the deceased vide memo. Exh.P.A. He recorded the statements of the witnesses, and came to the conclusion that Mati-ur-Rehman and Rizwan were innocent.
3. Dr. Naveed Iftikhar, Medical Officer, District Hors. Hospital, Rawalpindi, P.W.6, on 13-10-1985 at 10 a.m. Conducted the post-mortem examination on the dead body of Muhammad Saleh Javed, and found one injury, which is as under- (1)An oval wound 1 c.m. x 1 c.m. On the right side of bridge of nose' with burning of sorrounding skin.
No wound of exit present."
Dr. Akhtar A.I Khan M.O. District Headquarters Hospital, Rawalpindi, P.W.7, examined Muhammad Zahid Nadim at 12-15 a.m. On 13-10-1985, and found the following injuries:- (1)A lacerated wound about 2 c.m. x 0.5 c.m. Scalp deep on the back of head.
(2)An abrasion on the lower side of right eye.
(3)An abrasion on the outer side of left eye.
(4)An abrasion on the back side of left shoulder.
(5) An abrasion on the front of left shoulder.
(6)Slant about 7 c.m. x 1 c.m. On the back of left shoulder.
(7)Two abrasions on the back of right shoulder.
(8)An abrasion on the front of right shoulder.
(9)Two abrasions on the right side of chest.
(10) An abrasion on left thigh on lateral aspect. Weapon used was blunt in nature and the duration of injury was 10 to 12 hours.
Injury No.1 was kept under observation while the rest were declared simple.
4. The prosecution in support of its case produced fourteen witnesses in all. The statement of one Court-witness was also recorded. Munir Ahmad, F.C.(P.W.1) escorted the dead body of Muhammad Saleh Javed for post-mortem examination to Civil Hospital Rawalpindi, and thereafter he handed over the last worn clothes of the deceased. Muhammad Din P.W.3 prepared the site plan Exh.P.C. Of the place of occurrence on the pointation of the witnesses. Mian Muhammad, S.I., P.W.4 recorded the formal F.I.R. Exh.P.D./1. Muhammad Amjad, F.C., P.W.5 witnessed the recovery of gun P.9 at the instance of Mati-ur--Rehman, and signed the recovery memo Exh.P.E.
5. The eye-witness account has been furnished by Muhammad Azam, P.W.10, and Muhammad Khalid, P.W.9 (both real brothers) and Khawaja Khalid Hamid, P.W.11. P.W.12 Abdul Majid, Inspector, P.S. City Rawalpindi, arrested Muhammad Zahid Nadim, appellant, and also verified the ivnestigation already conducted by Muhammad Anwar, S.I. P.W.13.
Abdul Hakim, S.I., C.W.1, had taken the photographs P.18 to P.23 of the place of occurrence on the direction of the Investigating Officer.
6. Zahid Nadim, appellant, was examined under section 342, Cr.P.C., wherein he refuted the entire prosecution evidence. In answer to a question he stated that, in fact, his father Mati-ur-Rehman had entered into a sale-agreement with Khadim Hussain, the original owner of the house in dispute, and had also paid the earnest money. Before the sale could be got registered, the complainant side purchased the said house without their knowledge, therefore, his father filed a suit for specific performance. Thereafter, the complainant filed a petition for ejectment. On this, the complainant side started causing annoyance to them by cutting water supply to a portion of the house and they (complainant side) also used to peep into the courtyard. On the day of occurrence when he came back from the college, he saw the deceased throwing the debris into tire courtyard of his portion. When he tried to stop him, he started abusing him (appellant), therefore, he also returned the same. He tried to phone his father, but the telephone was out of order, therefore, he came out of his house in order t E inform his father about the incident. In the meanwhile, the deceased armed with a stick came out and started giving him blows with it. In order to save himself, he ran inside the Baithak of his house and bolted the door. The dvccased broke open the door and again started beating him. He picked up licensed revolver of his uncle and fired a shot in the air to scare him away. The deceased instead of running away, continued giving him blows: therefore, in order to save his life he fired a shot hitting the deceased which resulted in his death.
Matt-ur-Rehman and Rizwan Ahmad, co-accused of the appellant, simply denied the entire prosecution evidence and pleaded innocence.
7. The learned trial Court while convicting the appellant had relied upon the eye-witness account corroborated by the evidence of motive and the recovery.
8. It is contended by learned counsel for the appellant that no reliance on ocular account can be placed because the witnesses are inimical and interested. Submits that the witnesses have suppressed the injuries on the person of the appe4ant most of which were on the vital part of the body. Argues that the eye--witnesses have been belied by the medical evidence because no drag marks were found on the body of the deceased yet all the witnesses had asserted that the deceased was dragged to the Baithak of the appellant. Contends that' the appellant had as many as ten injuries on his person which gave -him the right of private-defence. The contentions have been controverted by the learned counsel for the State as well as the learned counsel for the complainant.
9. We have heard the learned counsel for the parties and gone through the evidence with their assistance. The motive as set, up by the prosecution is that the complainant side had filed an ejectment suit against the appellant which was not liked by him, hence, the occurence. During the trial it came in evidence that prior to the filing of ejectment petition by the complainant side the appellant had already filed a suit for specific performance of the agreement regarding the same house. It had also come in evidence that the appellant's father had entered into an agreement to sell with regard to the house in his possession and the sale price was fixed as Rs.4,80,000 and earnest money of Rs.60,000 was paid. Thereafter, the complainant purchased the house from its owner. The suit for ejectment was filed much after the suit for specific performance. In these circumstances it is clear that it was not the appellant who had the motive to commit the offence, therefore, we hold that the motive as set up by the prosecution has not been proved.
10. The eye-witness account has been furnished by Muhammad Khalid, Muhammad Azam and Khawaja Khalid Hamid, P.Ws. 9, 10 and 11, respectively. Muhammad Khalid and Muhammad Azam are real brothers of the deceased. In cross-examination they had admitted that they cut off the water supply to the portion of the appellant and the same was restored through the orders of the Court. All the eye-witnesses are unanimous that the appellant had fired with pistol one shot hitting on the left side of the nose of the deceased. Muhammad Khalid P.W.9 was cross-examined at length. In his statement before the police he had not stated that Muhammad Khalid P.W. Had also witnessed the occurrence though in evidence he had asserted the same. In Court he stated that Rizwan Ahmed, acquitted accused, had threatened that nobody should come forward but in his statement before the police he had not stated so. Similarly, he stated that Rizwan Ahmed acquitted accused had fired in the air with his gun but the same was missing in his statement before the police. The witness was confronted with his earlier statement but could not give any explanation with regard to the discrepancies. He asserted that his clothes were stained with blood but the Investigating Officer when cross-examined admitted that when he met the witness his clothes were not stained with blood. According to him Muhammad Khalid P.W. And his brother Muhammad Azam were sitting in the house; they came out and witnessed the occurrence. The demeanour of this witness is extremely unnatural because he did not make any attempt to save his real brother from the clutches of the appellant. He has made material improvements. Muhammad Azam P.W.10, real brother of the deceased, has corroborated the statement of Muhammad Khalid P.W. On all material aspects, but, in cross-examination, he admitted that he was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, on 26-1-1985 by a Magistrate at Faisalabad. He further admitted .That in the said case he had shown himself to be a resident of E Faisalabad. His Identity Card contains the address of Faisalabad and he was also a registered voter at Faisalabad.
He has not been able to show that he was resident of Rawalpindi. He made material improvements in his statement and was confronted with the statement made before the police to which he could not give any explanation whatsoever. As far as the statement of Khawaja Khalid Hamid P.W.11, is concerned, he stated that at the time of incident he was present in the street when he saw the appellant alongwith his two acquitted co-accused catching hold of the deceased and dragging him towards their drawing room.
When he tried to intervene, Rizwan Ahmed, acquitted co-accused, fired a shot in the air threatening him. Thereafter, the appellant fired a revolver shot hitting Muhammad Saleh on his nose, whereupon he fell down and expired later. He had also witnessed the recovery of broken pieces of the door of the Baithak as well at iron bolt P.17. In cross-examination, he admitted that he had been appearing as prosecution witness in a number of cases. He had also appeared as a P.W. m the ejectment case. From the perusal of his statement it is clear that he is a stock witness who had appeared in a number of cases. He had made material improvement in his statement with which he was duly confronted. From what has been discussed above, it is clear that the witnesses are interested and have made material improvements in the case, therefore, it would not be safe to rely upon the statements without independent corroboration.
As discussed earlier, the motive as set up by the prosecution has not teen proved. As far as the medical evidence is concerned, it cannot be of much help to the prosecution. The prosecution witnesses have suppressed ten injuries found on the person of the appellant. The occurrence took place near the Baithak of the appellant. It has come in evidence that the deceased was stronger than all the three accused in the case, therefore, it cannot be expected that they had managed to drag him to their Baithak especially when no dragging mark was found on the body of the deceased. In such circumstances, it is held that the G medical evidence contradicts the ocular account.
11. The appellant Zahid Nadeem in his statement under section 342, Cr.P.C., had taken the plea that he was given stick blows by the deceased, therefore, he in order to save himself ran into the Baithak of his house and bolted the door from inside. The deceased managed to break open the door and again gave him stick blow. He picked up licensed revolver P.12 of his uncle lying in the room and fired a shot in the air m order to scare Muhammad Saleh. Instead of running away he kept on giving him beating, therefore, apprehending danger to his life, he fired a shot hitting the face of the deceased. The defence version finds corroboration from the medical evidence as well as from the recovery of revolver. The doctor found ten injuries on his person out of which one injury could be fatal to life as well. Similarly, at the time of recovery of revolver P.12 two empties were found in its Chamber. This fact supports the version of the appellant and contradicts the prosecution story given by the eye-witnesses that one shot was fired. Keeping the defence version in juxta position with the prosecution version, it is clear that the defence version is more plausible. It cannot be said that the appellant had exceeded the right of private-defence. There were ten injuries on the appellant. The occurrence took place in his Baithak. The assertion of the appellant that he fired a shot in the air to scare the deceased is corroborated by the recovery of revolver P.12 where two empties were found. In these circumstances, we hold that the appellant did not exceed the right of private-defence as he fired only one shot which resulted in the death of Muhammad Saleh Javed.
12. For what has been discussed above, we hold that the eye-witness account cannot be relied upon because they have made material improvements and have been contradicted by the medical evidence. Therefore, relying upon Ahmed Din v. Faiz Ahmed and 2 others 1972 SCMR 549 and Muhammad Abdullah v. Muhammad Safdar Khan and another 1973 SCMR 26, we accept the appeal and set aside the conviction. It is directed that the appellant be released from custody forthwith if not required in any other case. For the reasons discussed above the revision of the complainant also fails. The sentence of death is no confirmed.