' SARDAR MUHAMMAD DOGAR, J.--Muhammad Riaz (30), was tried by Sessions Judge, Toba Tck Singh, for having murdered Naurang Sher on 23-4-1986 at 2 a.m. (during the night of 22nd/23rd of April, 1986), in the Dhari of the latter, in the area of Chak No,736/GB, at a distance of ten miles from Police Station Kamalia. The learned trial Judge convicted him under section 302, P.P.C. Vide judgment dated 27-3-1987 and sentenced to death, plus to pay a line of Rs,1,000 in default whereof to undergo R.I. For one year. He has also been directed to pay a sum of Rs,15,000 as compensation to the heirs of the deceased, vide the same judgment, in default whereof to suffer S.1. For six months.
2. The convict has filed appeal. Learned trial Judge has made reference for confirmation of death sentence. Both the matters are being disposed of togAher.
3. F.I.R. (Ex.PB) was recorded at the police station by Saifullah, S.H.O. (P.W.9), on 23-4-1986, at 4-30 a.m., on the statement of Ahmad (P.W.4).
' According to F.I.R. The complainant had constructed a Dhari in his land outside the village Abadi and had taken up residence there. On the night of occurrence, he was sleeping there along with his brother Naurang Sher and Mst. Dullan, wife of Naurang Sher. A lantern was burning. The complainant and Mst. Dullan woke up on barking of a dog at 2 a.m. In the meantime the appellant entered the courtyard swiftly armed with a S.B. Gun. He placed the barrel of the gun on the right flank of Naurang Sher and fired a shot saving that he has given the land to Naurang. He ran away along with the gun. He was identified by the complainant and Mst. Dullan with the light of lantern.
Haitam (P.W.6) and given up P.Ws. Nawab and Ahmad son of Pehlwan also reached the spot hearing alarm raised by the complainant and Mst. Dullan and witnessed the occurrence. The complainant along with other P.Ws. Except Mst. Dullan, chased Riaz but he succeeded in running away by riding his motor-cycle which he had parked at a short distance. Naurang died while being taken to Civil Hospital, Kamalia. His dead body was, however, carried to Kamalia and placed in the Civil Hospital.
' Motive for the occurrence mentioned in the F.I.R. Is that 15/16 years prior to the occurrence Mudai, father of the complainant and deceased had purchased five acres of land from Ahmad son of Wallia. Mudai had eight sons, one of whom was Muhammad (father of the appellant). He Muhammad) had sold five Kanals of land out of that without permission of his father to one Waryam against a sum of Rs,2,500. Mudai paid the said sum to Waryam and got the possession of the land. Riaz used to demand share of his father from that land from Naurang deceased, his uncle, but Naurang had refused, which annoyed Riaz.
3. Saifullah, Inspector/S.H.O., after recording the F.I.R. Reached Civil Hospital. He entrusted the dead body to Khalid Mahmood, constable, after preparing injury statement (Ex.PK) and inquest report (Ex.PL), for post-mortem examination. Thereafter, he reached the spot and collected blood-stained earth from there vide memo. Exh.PD. Crime empty (P.6) lying there was taken into possession vide memo. Exh.PE, while blood-stained cot (P.7), Dohar Phantdar (P.8), quilt (P.9) and lantern (P.10) were taken into possession vide memo. Exh.P.F.
' The appellant was arrested on 30-4-1986. He led to the recovery of motor-cycle, .12-bore gun (P.4) alongwith live cartridges (P.5/1-3) and licence (Exh.P.C./1) from his house. All these articles were taken into possession vide memo. Exh.P.C. On completion of investigation challan was submitted to Court.
4. Statements of 9 P.Ws. Were recorded at the trial. Positive reports (Exhs.P.N., P.O. And P.O.) from the offices of the Chemical Examiner, Serologist and Forensic Science Laboratory were also tendered in evidence.
5. Dr. Muhammad Akhtar Hussain Chattha, who had performed autopsy at 8 a.m. On 23-4-1986 appeared as P.W.B. He had noted a fire-arm wound, 4 c.m. x 4 c.m., with gun-powder staining around the wound, omentum and intestines were coming out of the wound. He had also noted a hole alongwith gun-power staining on the Bunyan. Right side of large intestine, liver and kidney were chopped off.
' According to his opinion, death had occurred due to excessive haemorrhage, resulting from the fire-arm injury. The shot was opined to have been fired from a very close range. Time between injury and death was opined to be half to one hour while time that elapsed between death and post-mortem was opined to be about five hours.
' During cross-examination, he clarified that by gun powder staining he meant that gun-powder was sticking in the skin.
6. Munir Ahmad, M.H.C. (P.W.2) stated that parcel pertaining to crime empty was deposited with him on 24-4-1986, which he had handed over to Khalid Mahmood, Constable (P.W.1), for transmission to the office of the Forensic Science Laboratory on 9-5-1986. The parcel of gun was deposited with him on 1-5-1986, which he had sent to the office of the Forensic Science Laboratory on 17-5-1986 through Constable Khalid Mahmood.
' Khalid Mahmood, Constable who had appeared as P.W.1, stated of having deposited the sealed parcels pertaining to earth, crime empty in the relevant offices on 8-5-1986 and of having deposited the parcel of gun in the office of the Forensic Science Laboratory on 18-5-1986.
7. Ahmad son of Mudai complainant appeared as P.W.4. While repeating the facts given by him in the F.I.R., he also claimed of having witnessed the recoveries of motor-cycle, gun (P.4), licence (P.C./1), live cartridges (P.5/1-3) at the instance of the appellant from his house. During cross- examination, he stated that there was another Dhari in the fields which was situated at a distance of four Killas from his Dhari. He gave out that he had stated in the F.I.R. That he and Mst. Dollan had raised alarm after the accused had started running away.
' In answer to a question, he stated that he had removed the crime empty on noting the same lying at the spot and produced the same before the Thanedar at the time of recording of F.I.R. He admitted that Mst. Dullan was daughter of his first cousin. He admitted that father of the accused had got a case registered against him, his brothers Ghulam and Farid, Habib P.W., Mst. Aallan and Mst. Gullan, daughters of his cousin Bahadur, for the abduction of Mst. Sahib Bibi. He stated that they were arrested and were released on bail after 2/3 months. He gave out that his father had died a year before the present occurrence and his land had devolved on all his sons and the mutation was also attested; in consequence of which all his sons came in possession of the land, which devolved upon them. He admitted that Ahmad son of Pehlwan was residing at a distance of 8/10 miles away from his Dhari. He, however, added that Ahmad was living with them at the Dhari.
On confrontation he was not found to have stated so in the F.I.R. He admitted that Sher, maternal- uncle of the father of the accused Riaz was complainant in the murder case of wife of P.W. Ahmad son of Pehlwan, which was registered against him (Ahmad). He denied the suggestion that he was facing trial under section 182, P.P.C. The suggestion that he had not witnessed the occurrence and some unknown persons had murdered the deceased was also denied by him.
8. Mst. Dullan wife of the deceased, who appeared as P.W.5, while corroborating the statement made by P.W.4 in so far as it pertained to the actual occurrence, stated that she got up on barking of a dog and started feeding her child where after the complainant also got up and then she had seen the accused coming from the western side with a bag hanging around his shoulder and a gun in his hands. During cross-examination she denied that she had stated in Exh.DA that she had got up on barking of many dogs. However, on confrontation she was found to have stated so. In answer to another question, she stated that five Killas of land of her father-in-law were with her deceased husband and the accused used to demand share from that land over which she was also annoyed. She denied the suggestion of not having witnessed the occurrence.
9. Haitam (P.W.6), while corroborating the statement made by P.W.4 about the actual occurrence, also stated that he had witnessed the collection of blood-stained earth and empty from the spot alongwith other articles by the Investigating Officer. He also claimed of having witnessed the recovery of gun, live cartridges, gun licence and motor-cycle at the instance of the appellant from his house. During cross-examination, he stated that there were two Lambardars in their village. He added that he had got down from the roof of the Kotha from where he was sleeping on seeing the accused coming towards the place of occurrence from a distance of 13/14 Karams. He gave out that he had jumped from the Kotha as there was no staircase. He conceded that he had not raised an alarm on seeing the accused going towards the deceased nor had stopped him from firing. He admitted that Mst. Dullan was daughter of his maternal-uncle.
10. Saifullah, Inspector/S.H.O. Appeared as P.W.9 and gave the details of investigation including the arrest of the appellant and the recoveries alleged to have been effected at his instance. During cross-examination, he stated that he had not mentioned in the first inspection report about the marks of the tyres of the motor cycle at the place of parking or the direction from which it came and was taken away. He specifically stated during examination-in-chief that he had picked up the crime empty lying at the place of occurrence and taken the same into possession there and then.
11. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He denied to have led to the recovery of any article including the weapon of offence. In answer to a question, `why this case has been made against you', he stated that, "Due to enmity. The deceased was professional thief and he was murdered by unknown persons and I was falsely involved because of enmity".
12. Learned counsel for the appellant after having taken us through the evidence, criticised the impugned judgment and contended that the evidence of recovery of empty from the spot as well as gun from the appellant was not worth reliance. Learned counsel added that even if the evidence of recoveries is believed, no importance can be attached to the report of the Forensic Science Laboratory about the wedding of the crime empty with the gun, as both the articles had remained lying at the police station in the custody of the police for about eight days. As such, there were chances of substitution of the crime empty, Learned counsel contended that the ocular account has not only been deposed to by related and interested witnesses, but they were inimical too; as per statement of P.W.4, a case had been registered against them at the instance of the father of the appellant. Learned counsel argued that no documentary evidence has been produced about the transaction of the land, which became the motive for the occurrence. Learned counsel added that even if the evidence of motive be believed, the same cannot be of exclusive use for the prosecution, as it cuts both ways. In this connection learned counsel contended that if the appellant could be annoyed of the deceased's refusal to give the share of the land, the relatives of the deceased might also be feeling perturbed on the pressing demand made by the appellant. In that, he referred to the statement of P.W.5, who stated that she was unhappy and annoyed on the demand made by the appellant.
13. Learned counsel for the State defended the judgment of the trial Court.
14. The evidence of recovery of empty, which later was found to have wedded with the gun, alleged to have been recovered at the instance of the appellant, in our view is not worth reliance. In that the widely discrepant statements made by the Investigating Officer and P.W.4, examined in that regard has weighed with us a lot. P.W.4 clearly stated that he had picked up the crime empty from the spot on noting the same and had produced the same before the police at the time of lodging the F.I.R. The F.I.R. Was lodged at Kamalia Police Station at a distance of 8 miles from the spot. On the other hand, the Investigating Officer (P.W.9) emphatically stated that he had picked up the crime empty from the place of occurrence, i,e, eight miles from the police station. Apart from the only public witness examined in this case, i,e, P.W.4, being an interested witness, the testimonies of these two witnesses appear to be highly incongruant and unbelievable. In the circumstances, the evidence of recovery of gun, even if believed, can be of no use to the prosecution. We would, however, like to note that we also find weight in the argument of the learned counsel for the appellant that since the empty and the gun had remained with the police together, the possibility of the substitution of the crime empty can also not be ruled out and as such also no importance can be given to the opinion expressed by the Ballistic Expert.
15. No documentary evidence has been produced about the sale of land by the father of the appellant to Waryam for a sum of Rs,2,500 nor any documentary evidence has been produced about Mudai, father of the deceased and grandfather of appellant having got the land back by paying Rs,2,500 to said War yam. P.W.4 clearly admitted that the land left by his father equally devolved on the eight sons of his father and a mutation had also been sanctioned in that regard.
The eight sons included the father of the appellant. If that was so, there could be no dispute between the parties. However, even if it is believed that the same land was being kept by the deceased in his possession without parting with the share of the deceased, which caused annoyance--to the appellant, the fact has also got to be taken note of that the deceased's wife was also feeling annoyed over the pressing demand being made by the appellant for return of the land. That being so, the dispute, if existed, could he a motive both ways, i,e, for commission of murder by the appellant and for false involvement of the appellant by Mst. Dullan and complainant.
16. P.W.4 is real brother of the deceased while P.W.5 is wife of the deceased. No doubt P.W.4 is also paternal-uncle of the appellant, but in that it is clear from the record that he had strained relations with the father of the appellant, on account of the fact that father of the appellant had got a case of abduction registered against him, his two brothers, two lady relatives and Habib P.W. In this case.
He also admitted that they had remained in jail for 2/3 months. It is obvious that on account of that the appellant must be feeling aggrieved against the deceased for the misdoings of his father. Still another inference which is deducible from this background is that the deceased, the complainant and the two other brothers, i,e, Ghulam and Farid, who were challaned for the abduction of Mst.
Sahib Bibi alongwith the complainant apparently were bracketed as one party as against the appellant's father. With this background, we feel it difficult to rebut the argument that the ocular account has been deposed to by inimical witnesses. With such a background, the credence which ought to have gone to the prosecution for producing close relatives of the accused cannot be given to the D prosecution in this case. It is settled principle of law that for safe dispensation of justice, strong corroboration to the ocular account deposed to by interested witnesses must be looked for, which obviously is not available in this case.
' Apart from the above, the other aspect which requires consideration is that the occurrence had taken place during night and if P.Ws.4 and 5 could have woken up on barking of dogs and the other witnesses including P.W.6 could have reached the spot on hearing alarm raised by P.Ws.4 and 5, why and how the deceased would have kept on sleeping so as to await the infliction of fatal injury fastly for never to rise. It is not the case of the prosecution that no sooner the dog barked the assailant came, hit and ran away. Herein Mst. Dullan had woken up on hearing barking of dogs and had started feeding her child. Thereafter, the complainant had got up. The accused had reached the spot after that. Even PWs.4 and 5 had raised alarm and the witnesses had arrived and at this juncture the fatal shot was fired by the appellant. We feel it difficult to believe that if E everybody could have risen, as claimed, how could the deceased had remained sleeping. On this score also, the case of the prosecution appears to be highly doubtful.
17. For all the reasons noted above, grave doubts have arisen in our mind about the prosecution having proved the case against the appellant beyond any shadow of doubt. The appeal filed by him is, therefore, allowed and he is acquitted. Death not confirmed.