' TANVIR AHMAD KHAN, J.--- Muhammad Nazir appellant has filed Criminal Appeal No. 215 of 1986 against the judgment dated 22nd of March, 1986 passed by the learned Additional Sessions Judge, Gujrat whereby he was convicted under section 302, P.P.C. For the murder of Muhammad Khan and was awarded death sentence. He was also fined Rs.6,000 and in default thereof to further undergo two years' R.I. It was ordered that half of the amount of fine in case of its realization shall be paid to the legal heirs of the deceased.
2. The complainant, Allah Din has filed Criminal Revision No.317 of 1986 against the appellant for the enhancement of amount of compensation. Murder Reference No.83 of 1986 has also been submitted for the confirmation of the aforesaid death sentence of the appellant. This judgment shall dispose of all the aforementioned three matters.
3. The occurrence in this case is stated to have taken place on 1st of December, 1983 in the area of Rukh Duffar within the jurisdiction of Police Station Miana Gondal. The F.I.R. Exh.P.E. Was recorded by Safdar Inayat S.I./S.H.O. (iP.W.10) at the dictation of Allah Din (P.W.7) the elder brother of Muhammad Khan deceased, under section 302, P.P.C. At 8-00 p.m. At Police Station Miana Gondal.
4. It is the case of the prosecution that Allah Din (P.W.7) along with his deceased brother Muhammad Khan was going through jungle towards Bungalow 18 at about Peshiwela. While both of them were going on the bank of a watercourse, they saw Muhammad Yusuf (P.W.) and Muhammad Nazir accused/appellant in the jungla. The former was going ahead of the appellant.
All of a sudden the latter fired a shot from his carbine which hit on the back of Yusuf (P.W.), who fell down on the ground. At this the complainant and his deceased brother rebuked die appellant for this .Act of injuring Yusuf (P.W.). Thereupon the appellant ran towards jungle. Complainant Allah Din alongwith his deceased brother took injured to Chak 28 at a distance of. 3/4 miles from the place of incident. Leaving him there, they started towards Mona Syeddan, their place of residence, while Yusuf (P.W.) went towards police station to get the case registered. On their way when they reached near compartments Nos.3 and 4 in the jungle, the appellant emerged from there and shouted that he would teach them a lesson for abusing him and rescuing Muhammad Yusuf (P.W.).
He fired from his carbine which hit on the right side of the neck and face of Muhammad Khan who was going ahead. He fell down on the ground and died at the spot. This occurrence, according to the complainant, was also witnessed by Ghulam Abbas and Amir (P.Ws.), who were attracted to the place of occurrence. The complainant leaving the dead body in the custody of the aforesaid witnesses, reached the police station and got the F.I.R. Exh.P.E. Recorded.
5. Safdar Inayat S.I./S.H.O. (P.W.10) after recording the F.I.R. Reached the place of occurrence and prepared the inquest report Exh.P.G. And injury statement Exh.P.H. Of the deceased. He also took into possession blood-stained earth vide memo. Exh.P.B. The Investigating Officer sent the dead body through Muhammad Ashraf, Constable (P.W.3) in the early hours of the morning to Civil Hospital, Phalia for post-mortem examination. The site plans Exh.P.A. And Exh.P.A./1 were got prepared through Bashir Ahmad Patwari (P.W.1). The postmortem examination was conducted by Dr. Muhammad Rashid (P.W.10) Medical Officer, Civil Hospital, Phalia on 2nd of December, 1983 at 4-00 p.m. Who found the following injuries:--
(1) A fire-arm wound of entry 0.8 x 0.8 c.m. x going deep on right side of neck.
(2) A fire-arm wound of entry 0.8 x 0.8 c.m. On right side of neck near injury No.1.
(3) A fire-arm wound of entry 0.8 x 0.8 c.m. x bone deep on right mandible.
(4) Two fire-arm wounds of entry on right cheek each measuring 0.8 x 0.8 c.m. x skin deep.
(5) A fire-arm wound of enty 0.8 x 0.8 c.m. On lower lip.
' According to the doctor the time between injuries and death was immediate and between death and post-mortem was 20/24 hours. Exh.P.F. Was the correct carbon copy of the post-mortem report. According to the doctor death occurred due to injuries Nos.1 and 2 which were sufficient to cause death individually as well.
6. Muhammad Ashraf (P.W.3) after the post-mortem examination produced blood-stained clothes of the deceased Chadar P.1, Kurta P.2, Salooka P.3, Woollen Chadar P.4 and a pair of shoes P.5/1-2 before the Investigating Officer which were taken into possession vide memo. Exh.P.C.
7. The appellant was arrested on 4th of December, 1983. He led to the recovery of carbine P.6 and an empty P.7 from his house which were taken into possession vide memo. Exh.P.D. This recovery of incriminating articles was also witnessed by Gahray Khan (P.W.6) and Yasin, given up P.W.
8. After the investigation of the case the appellant was charged for the murder and the prosecution examined 11 witnesses towards the establishment of its case.
9. The ocular account in this case has been stated by Allah Din (P.W.7) and Ghulam Abbas Shah (P.W.8). The account narrated by the former has been stated in the preceding paragraph. He has admitted that the subequent incident of murder of Muhammad Khan deceased had taken place in the middle of jungle 8/9 miles away from the place where Nazir appellant injured Muhammad Yusuf (P.W.9) in the earlier incident. He has also admitted that after the injury Yusuf P.W.9 walked on foot for 1-1/2 hours to reach Chak 28 covering 3/4 miles of distance. Further stated that they did not inform the incharge of the forest guard at Bungalow 18 respecting the injury caused to Yusuf (P.W.).
Similalry, Ghulam Abbas (P.W.8) had stated that he was going towards Rest House, Kathianwala alongwith Amir, a given up P.W. In the evening time as the latter came in his Dera at Degarwela, an hour before sunset and asked him to accompany because he wanted to get firewood for one Muhammad Gondal whose marriage was going to be solemnized about 12 days after the occurrence. It was further stated by this P.W. That he had seen Muhammad Khan deceased alongwith Allah Din P.W.7 at a distance of 3/4 K.M. In the jungle and there the appellant emerged from the trees and fired at the deceased. He had categorically stated that no one from the adjoining dera was attracted to the place of occurrence. This witness had also stated that the dead body was taken in a Suzuki van in the early hours of the morning to the hospital where the post-mortem examination was completed by 11-00 a.m. He had also identified the dead body at the hospital.
10. The motive as asserted by the prosecution in this case is that the appellant fired a carbine shot at Muhammad Yusuf P.W.9 in the earlier incident which was witnessed by Allah Din P.W.7 and his brother Muhammad Khan deceased. Both of them abused the appellant for this dastardly act of firing due to which he bore grudge against them. This aspect respecting the motive has been stated by Allah Din (P.W.7) and Yusuf (P.W.9) who was allegedly injured in the earlier incident. The narration of this incident by the aforesaid two witnesses is contadictory. The former has simply stated that while he was going alongwith his deceased brother, they saw Yusuf P.W. Ahead of them.
He was fired at by the appellant whereupon they abused him and the latter ran towards jungle.
However, the testimony of Yusuf P.W.9 respecting this incident is completely different than that of Allah Din P.W. He had stated that while he was returning from Mona Syeddan, he met Allah Din (P.W.7), Muhammad Khan deceased and Nazir Ahmad appellant. The latter asked him to wait for him as he had to go to arrange a calf for Allah Din and his brother Muhammad Khan deceased.
According to this witness the appellant came back after an hour and told him that the calf could not be arranged. Thereafter, according to Yusuf P.W. They both started towards jungle. It was further stated by Yusuf P.W.9 that Nazir appellant fired a shot with his carbine at his back when he was ahead of him. During this time Allah Din and Muhammad Khan deceased were also attracted.
They abused the appellant. He has further stated that he was brought to Chak 28 by Allah Din (P.W.7) and Muhammad Khan deceased. However, this witness had admitted that Nazir appellant came to him on cycle. He drove the cycle while the appellant sat behind him. He also admitted his near relationship with Muhammad Khan deceased. He had further stated that the police had not recorded his statement under section 161, Cr.P.C. In this case. According to this P.W., he lost his senses on the receipt of fireshot which he subsequently regained. He remained as an indoor patient for 5 days in the hospital.
11. The evidence respecting the recovery of carbine P.6 and empty P.7 was given by Gahray Khan and Safdar Inayat (P.W.10). The prosecution after tendering in evidence the report of Chemical Examiner Exh.P.J. And that of Serologist Exh.P.K. Closed their evidence.
12. When the accused was examined under section 342, Cr.P.C. He totally denied his involvement and disowned the recovery of incriminating article from him. He also made a statement under section 340, Cr.P.C, completely denying the allegation levelled against him.
13. The learned counsel for the appellant has argued that the ocular account in this case is highly unreliable and unworthy of credit. Respecting Allah Din (P.W.7), he has maintained that he being the real brother of the deceased has just concocted the story, the reading of which does not inspire any confidence. He has stated that the account given by this P.W. That they took Muhammad Yusuf (P.W.9) in an injured condition on foot to Chak 28 covering a distance of 3/4 miles does not appeal to reason when the latter had admitted that after the receipt of injuries at his back he lost his senses. He having suffered fire-arm injuries at the back could not have covered such a distance on foot. Secondly, they being the close relatives would not have left the injured in Chak 28 alone for his ownard journey to Police Station Miana Gonda for registration of case. This is highly improbable and against the human conduct. As far as Ghulam Abbas Shah (P.W.8) is concerned, learned counsel has argued that no plausible reason has been advanced by this witness for his presence at the place of occurrence. It is argued that none of the eye-witnesses had seen the occurrence which took place in the middle of jungle. As far as the motive is concerned the learned counsel has argued that too is very week. It is in evidence that the appellant did not say anything to the complainant party when they earlier rescued Muhammad Yusuf P.W. After the infliction of injuries at his hand. On the contrary it is in evidence that the appellant ran towards jungle without any confrontation with Allah Din (P.W.7) and Muhammad Khan deceased.
14. As far as the recovery is concerned, it has been argued that the same has not been established beyond any doubt. Gahray Khan (P.W.6) the recovery witness, is the son-in-law of the deceased and no independent witness has come forward to support the same. Further it has been pointed out that the testimony of the recovery witness is contrary. To substantiate the same learned counsel has pointed out that according to Gahray Khan (P.W.6) empty P.7 was lying beside carbine while according to Safdar Inayat (P.W.10) the Investigating Officer, the same was in the chamber of the carbine. Furthermore the incriminating weapons were not sent to the Forensic Science Laboratory for examination and in the circumstances the alleged recovery is of no avail. Lastly it is argued that the medical evidence is in conflict with the ocular account as according to Dr. Muhammad Rashid Javed (P.W.10) post-mortem examination was conducted on 2-12-1983 at 4-00 p.m. While according to Ghulam Abbas Shah (P.W.8) and Muhammad Ashraf (P.W.3) the same was completed by 11-00 a.m.
15. We have considered the arguments of the parties and have perused the I record. The ocular account in this case has been stated by Allah Din (P.W.7) and Ghulam Abbas Shah (P.W.8). The former is the real brother of the deceased and his testimony does not inspire any confidence whatsoever. His statement that he alongwith his deceased brother took Muhammad Yusuf P.W.
Their first cousin to Chak 2.8 in an injured condition covering a distance of 3/4 miles and left him there alone for onward journey to Police Station Miana Gondal for registration of the case does not appeal to reason and is against the human conduct in the facts of the present case. They being the close relatives of Yusuf P.W. Would not have left him in such an injured condition in Chak 28. The assertion of Allah Din (P.W.7) that after leaving Muhammad Yusuf P.W. At Chak 28 they again met the appellant in the jungle 8/9 miles away from the place where in the earlier encounter the appellant had fired at Yusuf, is not believable.
16. As far as Ghulam Abbas Shah (P.W.8) is concerned, he has not advanced any plausible reason for his being present at the place of occurrence at that odd hour in the jungle. His testimony does not inspire any confidence.
17. So far as the motive is concerned, the contradictions in the testimony of the witnesses have been pointed out in the preceding paragraph. The prosecution has simply alleged this motive and has not brought anything to substantiate the same on record. The medico-legal report of Yusuf P.W. Would have been a relevant factor towards the establishment of motive but the prosecution has suppressed all these aspects. On the contrary the testimony of Allah Din P.W.7 and Muhammad Yusuf P.W.9 respecting the motive is replete with contradictions. Furthermore the statement of Muhammad Yusuf (P.W.9) was not recorded under section 161, Cr.P.C. By the police. Resultantly there is nothing on record except the bald assertion of the prosecution witnesses towards the motive. Hence the prosecution has failed in establishing the motive of this occurrence.
18. As far as the recovery of incriminating weapons is concerned that is of no avail simply because the same were not sent to the Forensic Science Laboratory for examination. Apart from the same as earlier discussed there are contradictions in the testimony of the witnesses in the manner in which the alleged incriminating weapons were recovered.
' Keeping all the aforesaid features of the case into consideration we are of the view that the prosecution has failed to bring home the guilt of the accused/appellant. Resultantly the appeal is accepted. The appellant is in jail. He shall be set at liberty forthwith, if not required in any other case. His death sentence is not confirmed.
' Allah Din complainant has filed Criminal Revision No.317 of 1986 to enhance the amount of fine and compensation. We do not see any reason for the same. Accordingly the revision is dismissed.