' IJAZ NISAR,J.--Muhammad Akbar son of Khan (40) and his maternal, uncle Bakhtawar alias Bakhu son of Mumraiz were tried for the murder of Ghulam Muhammad deceased. The learned Addl.
Sessions Judge, Okara by judgment dated 2-3-1986 convicted them under section 302/34 P.P.C.
And sentenced them to death and a fine of Rs,5,000 each or in default to suffer six months' R.I.
2. The convicted accused have appealed to this Court, the learned trial Court has made a reference for confirmation of the death sentences while All Muhammad has filed a revision for enhancement of the amount of fine. All the matters shall be disposed of by this judgment.
3. The prosecution case is that about 27/28 years prior to the occurrence the mother of Muhammad Akbar appellant and the sister of Bakhtawar appellant, Mian Khan brother of Bakhtawar appellant and his wife were murdered for which Ahmad Din, brother of Ghulam Muhammad deceased alongwith others was tried and sentenced to imprisonment for life.
4. On 19-8-1982 Ghulam Muhammad deceased, All Muhammad P.W.1 and Shahadat P.W.2 had come to Okara in connection with a meeting to be held at the house of Rai Muhammad Aslam Advocate. At about 11-30 a.m. They were on their way to the house of Rai Muhammad Aslam Advocate and when they reached in front of the shops near Hanfia Mosque the appellants came from behind and challenged the deceased. The latter looked back whereupon Bakhtawar appellant fired a pistol shot at him hitting him on the back of his neck. He started running.
Muhammad Akbar appellant fired at him from a double barrel gun hitting on his back. He fell injured. The appellants ran away with their weapons. Ghulam Muhammad died instantaneously.
The occurrence was witnessed by Ali Muhammad P.W.1, Shahadat P.W.2 and Ameer Muhammad (not produced). Ali Muhammad P.W.1 left for Police Station, City, Okara and lodged the FIR Exh. PA at 12-00 Noon.
' After recording the F.I.R. S.I. Dilsher P.W.9 reached the spot, prepared the injury statement Exh.PH and inquest report Exh.PJ of the deceased. He also collected blood-stained earth from there vide memo Exh.PB. He picked up three blood-stained pellets from the spot vide memo Exh.PC and extracted bloodstained wad from the back injury of the deceased vide memo Exh.PD. He got prepared the site plan Exh.PE/1 and PE/2 of the spot.
' On 8-9-1982 Muhammad Akram brother of Muhammad Akbar appellant produced before the police, double barrel gun Exh.P.6 alongwith its licence P.7. The licence was in the name of Muhammad Akbar appellant.
5. S.I. Dilsher arrested Bakhtawar appellant on 3-9-1982. On 9-9-1982 he led to the recovery of .12 bore pistol P.1 and two cartridges through memo Exh.PE.
6. Dr. Jamshed Iqbal P.W.8 conducted autopsy on the dead body of Ghulam Muhammad deceased
(50) and found the following injuries thereon:--
(1) A circular lacerated wound of entry 2 c.m. x 2 c.m. Going deep on the right side of back of neck lower part. The skin around the wound was black.
(2) A lacerated wound of entry 2 c.m. x 2 c.m. Going deep on the left side of back of chest in the middle. The margins of wounds were blackened.
(3)Six lacerated wounds of exit, each 1 x 1/2 c.m. (five were grouped in an area of 9 c.m. x 5 c.m. On the front of the neck and one on the right side of the chin). These were wounds of exit of injury No, 1.
' All the injuries were caused by firearm. Injuries No,1 and 2 were individually and collectively fatal.
7. The appellants denied the prosecution allegations and attributed the case to enmity. According to them they had no motive against the deceased. He had been challaned in many cases and had enmity with many persons of the Ilaaa and that it was an witnessed occurrence. They examined Amjad All Naib-Moharrir D.W.1 in their defence who deposed about the involvement of the deceased in cases under section 307/34, P.P.C. And under the Arms Ordinance.
8. To prove its case, the prosecution examined 10 witnesses. Ali Muhammad P.W.1 and Shahadat P.W.2 appeared as eye-witnesses. All Muhammad P.W.1 also proved the recoveries from the spot.
Muhammad Ismail P.W.3 proved the recoveries of pistol P.1 and cartridges at the instance of Bakhtawar appellant. Dilsher Khan S.I. P.W.9 investigated the case and effected recoveries from the spot and secured gun P.6 of Muhammad Akbar appellant which was produced by his brother Muhammad Akram.
9. Relying on the ocular evidence supported by the medical evidence and the recoveries, the learned trial Court convicted and sentenced the appellants as described above.
10. Criticising the judgment the learned counsel for the appellants contends that the F.I.R. Was ante-timed and was recorded after due deliberations, the eyewitnesses are partisans and that no witness from the locality was examined and further that the, appellants had no motive whatsoever against the deceased and that there is absolutely no corroboration of the ocular testimony.
11. The occurrence had taken place in the heart of city during day time but no witness of the locality was produced at the trial. The eye-witnesses examined by the prosecution were not residents of the vicinity but lived at a distance of 20 miles from that place. Ghulam Muhammad deceased was married to the sister of Shahadat P.W.2 while the other eye-witness namely Ali Muhammad P.W.
Was their party-man. According to the eye-witnesses they were accompanying the deceased to attend a Bradri meeting at the house of Rai Muhammad Aslam Advocate which was 1-1/2 acres from the place of occurrence but surprisingly Rai Muhammad Aslam Advocate was not examined by the police to throw light on the meeting scheduled to take place on that date. This was necessary to fad out that the eye-witnesses produced by the prosecution were actually accompanying the deceased. If the purpose of the visit of the eye-witnesses to Okara remains uncertain it may be difficult to accept their testimony with regard to the occurrence Except their evidence there is nothing on the record to show that any meeting was to take place at the house of Rai Muhammad Aslam, Advocate. Even the purpose of meeting is not clear. According to Ali Muhammad P.W.1 it was a meeting of Coordination Committee while according to Shahadat P.W.2 it was a Bradri meeting. According to the site plan prepared at the pointation of the eye-witnesses Bakhtawar appellant had fired at the deceased from a distance of 40 feet while Muhammad Akbar had fired from a distance of about 8 feet but the blackening found around the injuries belies the version of the eye-witnesses. Because according to the doctor who conducted the post-mortem examination the blackening of a wound could be caused from a distance of 4 feet. There is yet another circumstance which makes the presence of the eye-witnesses highly improbable.
According to them they were walking along with the deceased in a line close to one another but strangely they did not receive any injury during the occurrence. According to the evidence the deceased was hit by pellets. If All Muhammad and Shahadat had been actually accompanying the deceased they would not have escaped unhurt by the spread of the pellets.
Being a day time occurrence some wajtakar evidence could have been collected by the prosecution but no such attempt was made. As both the eyewitnesses were partisans and chance witnesses some independent corroboration was required to corroborate their testimony but the same is not forthcoming. The recoveries of firearms at the instance of Bakhtawar and Muhammad Akram brother of Muhammad Akbar appellant are of no significance because no crime empties were recovered from the spot with which they could match.
For the foregoing reasons the prosecution case is not free from doubt. Accordingly, we accept the appeal, set aside the conviction and sentence of the appellants and acquit them of the charge.
They shall be released forthwith, if not required to be detained in any other case.
' In view of the acceptance of the appeal the revision filed by All Muhammad complainant automatically fails and is dismissed accordingly.
NOTE:- Learned counsel for the appellants has pointed out that Muhammad Akbar appellant had died in jail on 8-8-1989.