' ALI IIUSSAIN QAZILBASH, J.---This appeal, by leave, arises from the judgment of a learned Single Judge of the Lahore High Court, dated 27-2-1983, whereby the appeal filed by Aurangzch appellant and the criminal revision filed by the complainant were dismissed.
2. The appellant alongwith Safdar Hussain and Ashiq Hussain, residents of Mera Kalan, District Rawalpindi, was tried by the learned Additional Sessions Judge, Rawalpindi under section 302/34, P.P.C. For committing the murder of Muhammad Younas by inflicting a fire-arm injury. The learned trial Court after the conclusion of the trial acquitted Safdar Hussain and Ashiq Hussain but convicted Aurangzcb under section 302, P.P.C. And sentenced him to transportation for life and a fine of Rs,5,000 or in default to two months' R.I. The fine on realization was ordered to he paid to the legal heirs of the deceased.
3. The occurrence in this case was alleged to have taken place on 28-2-1978 at 9 in the morning, the report of which was made the same day at 12-15 p.m. By Pcrvcz Khan (PW 9). The allegations were that the complainant was on two months' leave in the village and was raising construction of his house. On 28-2-1978 at 9 a.m. He went to his maternal uncle's house to call his cousin Muhammad Younas to assist him in opening the shuttering. Enroute back to his house when they reached near the mosque, Muhammad Younas deceased went towards the shop of Lehrasap Khan for purchasing some cigarettes. The moment the deceased proceeded towards the shop of Lehrasap Khan, Aurangzeb armed with .12 bore pistol, Safdar Hussain armed with a hatchet and Ashiq Hussain empty-handed suddenly appeared and Aurangzch fired at Muhammad Younas at his back which hit him and he fell down and expired at the spot. Suleman and Sultan Mahmood appeared from the opposite direction and witnessed the incident. Leaving the dead body at the spot, the complainant rushed to the, police station where he lodged the report which is Ex.P.H.
4. In the F.I.R. The motive given was that in October, 1977 Aurangzch appellant had teased the wife of Muhammad Younas deceased. As Muhammad Younas was employed in the Army, so when he came to his house, he also disgraced the wife of appellant Aurangzch. Thus, in order to take revenge of this disgrace, Aurangzeb appellant alongwith Safdar Hussain and Ashiq Hussain has committed the murder of Muhammad Younas.
5. The above report was recorded by Sajjad Hussain Shah (PW 11). He then proceeded to the spot, inspected the same, prepared the injury sheet (Ex.P..1) and inquest report (Ex.P.K) of the deceased.
He also secured bloodstained earth from the place of occurrence vide memo. Ex.P.D in the presence of the witnesses. A cardboard and two wads lying inside the shop were also secured vide memo. Ex.P.E. He then sent the dead body for post-mortem examination and recorded the statements of the eye-witnesses. The investigation was then handed over to Abdul Khaliq (PW 12).
He arrested the appellant and his companions, and on 12-3-1978 the appellant led the police party to the recovery of the pistol and a complaint under section 13 of the Arms Ordinance was also made against Aurangzch appellant.
6. After the completion of the investigation, the appellant alongwith his companions was put to trial where the prosecution in support of its case produced as many as twelve witnesses including Dr.Muhammad Aslam Arshad who appeared as P.W.5. On conducting the post-mortem examination, the doctor found six circular wounds of entrance on the hack of right chest 1/4" x 1/4".
Five of them were below the shoulder blade in an area of 4" x 3" and one was near the middle of the shoulder blade. There was slight blackening on the edges of the wounds of entrance and also on the holes of the shirt. According to the doctor, one pellet was palpable on the front of right chest 2- 1/2" below the nipple and one on the front of left chest 1-1/2" below the nipple on outer side. Both these pellets were removed, sealed in a bottle and handed over to the police. The doctor also found the stomach of the deceased having one ounce of digested food.
7. In their statements under section 342, Cr.P.C., all the three accused denied the allegations of the prosecution. Aurangzeb appellant further stated that he was innocent and had come to know later on that the deceased was done to death inside the shop in suspicious circumstances by some relatives of Mst. Sufedan. He also produced his written statement marked A/1 as required under section 265-F(5), Cr.P.C.
8. The trial culminated in the conviction of the appellant and the acquittal of his companions as stated earlier. The appeal filed by the appellant and the criminal revision filed by the complainant were dismissed by the High Court as per the impugned judgment.
9. Leave in this case has been granted to reappraise the entire evidence.
10. The learned counsel for the parties heard for and against the appeal and the record gone through with their assistance. The learned counsel for the appellant vehemently contended that though it was a broad daylight occurrence enacted in the village street, vet as the case stands, the prosecution has not been able to bring home the charge to the appellant. In support of the above, he submitted that the occurrence was unseen, the motive for the delict had not been established, the ocular evidence besides being interested was discrepant and not at all corroborated by other circumstantial evidence. In view of the above, he submitted that the appellant has wrongly been convicted. These were, however, controverted by the learned Assistant Advocate-General.
11. After considering the arguments of the learned counsel, we find that as per record the case against the appellant is one which is not free from doubt. It is a daylight occurrence and the deceased was done to death in the street. The ocular version in this case has been furnished by Pervez Khan (PW 9) and Sultan Mahmood (PW 10). The deceased was related to the former but had no relations with the latter. The learned trial Court after examining the evidence has held that none of the witnesses who have given eye-version account of the incident was present at the spot and had thus not seen the occurrence. As against the above, the learned Judge in the High Court did not agree with the above conclusion. Though the learned appellate Court discarded the evidence of Sultan Mahmood (PW 10) being a chance and hostile witness, yet it did not find any reason to disbelieve Pervez Khan (PW 9). After giving certain reasons in support of the evidence of Pervez Khan (PW 9) and other circumstantial evidence, the learned Judge found the appellant guilty of murder and maintained his conviction and sentence.
12. On our reappraisal of the entire evidence we have come to a conclusion different from the one arrived at by the learned Judge of the High Court. We think that at the crucial time, either P.W.9 was not at all present at the spot and had not seen the occurrence or he is not a truthful witness. The so-called eyewitnesses arc consistent in alleging that the occurrence had taken place outside the shop of Lchrasap Khan where the deceased having received the injury fell down. This is, however, belied by the circumstantial evidence collected in this regard in that the blood was found inside the shop of Lchrasap Khan and so were the cardboards and the wad. In the site plan which had been prepared at the pointation of the eye-witnesses, Aurangzeb appellant had been shown to have fired from point No,4 at the deceased who at the crucial time was at point No,1. The distance between these two points has been shown to be 14 feet, But strangely enough the post-mortem examination report has revealed that there was a slight blackening on the edges of the wounds of entrance and also on the holes of the shirt, meaning thereby that the deceased was tired at from a very close range. Again, according to the site plan Pervez Khan (PW 9) has, at the relevant time, been shown at point No,7. The fact that he was not present at the spot and had not seen the occurrence is established by the statement of Muhammad Akram, Draftsman (PW 6), who has admitted at the trial that point No,4 (where Aurangzeb was shown to be present was not visible from point No,7 on account of corner of the house of Mehdi Khan. There is vet another circumstance which militates against the presence of Pervez Khan (PW 9) and that is, had he been present at the spot the appellant would not have fired at the deceased in order to avoid creating evidence against himself. It also seems that the story set up by the prosecution that the deceased was fired at when he was heading towards the shop of Lehrasap Khan to purchase cigarettes was a mere fabrication because according to Sajjad Hussain Shah, Investigating Officer, who appeared as P.W.11, no money, whatsoever, was found on the personal search of the deceased.
13. The above thus makes the presence of Pervez Khan (PW 9) at the spot at the relevant time highly doubtful. It was an -unseen occurrence and the appellant was charged on mere suspicion.
The appeal is, therefore, accepted and the appellant is acquitted. He is to be released forthwith if not required in any other case.