' IJAZ NISAR, J.--- Mumtaz All Khan (55) was tried for the murder of his son Saeed-ur-Rehman deceased (27). By judgment dated 17-7-1988 the learned Addl. Sessions Judge, Jhang convicted him under section 302, P.P.C. And sentenced him to death plus a fine of Rs,50,000 or in default to undergo three years' R.I. 3/4th of the fine if recovered was ordered to be paid to the legal heirs of the deceased.
2. Mumtaz Ali Khan has appealed against his conviction and sentence while the learned trial Court has made a reference under section 374, Cr.P.C. For confirmation of his death sentence. Both the matters shall be disposed of together by this judgment.
3. The prosecution case is that Saeed-ur-Rehman deceased was the son of the appellant from his first wife. After her death the appellant contracted a second marriage with Mst. Bushra. It is alleged that the appellant's relation with the deceased was strained as he demanded his share of land from him.
4. On the night between 3rd and 4th October, 1986 the deceased was asleep in the house of his father. He died on account of a fire-arm injury. Mumtaz Ali Khan appellant reported the matter to the police vide Exh.P.1/1 on 4-10-1986. According to him the deceased was sleeping after keeping a loaded gun by his side. The gun went off accidentally resulting in his death. On receipt of this information S.I. Muhammad Sadiq P.W.11 (S.H.O., Police Station Garh Maharaja) proceeded to the, spot and prepared the inquest report Exh. P.M. He took into possession Gun P./1 with an empty P.2 in its chamber and thereafter, handed over the dead body to the appellant. No post-mortem examination of the deceased was conducted as the appellant and his relatives did not desire so.
' On 6-10-1986 one Muhammad Sharif alias Muhammad Hussain (not examined) submitted an application Exh. P.N. To the police stating that the deceased used to check the immoral activities of his step-mother (Mst. Bushra) and demanded his share of produce from the appellant which annoyed him and on 3-10-1986 a quarrel had taken place between Saeed-ur-Rehman deceased and his father Mumtaz All and that the latter had threatened him with dire consequences and on the same night on hearing a fire report he along with All Nawaz, P.W.7 and Liaquat (not examined) reached his house and saw the deceased in an injured condition saying . According to him Mumtaz All Khan appellant was holding a gun in his hands while his wife Mst. Bushra was standing near him.
On seeing them they shouted that they had killed their son and that they should leave that place.
On his request the dead body of Saeed-ur-Rehman deceased was exhumed for postmortem examination.
5. Dr. Abdur Razzaq P.W. 1 conducted the post-mortem examination on 11-10-1986 on the dead body of the deceased and found the following injury on his person: "A fire-arm entrance wound 3 cm x 2.08 cm situated on the front of right side of the chest and 1.05 cm above the right nipple and 11.05 cm below the right clavical. The wound was oval in shape and the edges of the wound were inverted. There was burning in the upper part of the wound and the wound was passing between the right 3rd inter-costal space and there was fracture of right anterior, third and fourth ribs, and the right lung was ruptured and was lying into the wound and was putrefying, the right thorax cavity contained clotted blood and the wound was passing from the right towards the left of obliquely and the paricardium was ruptured and there was laceration of right ventrical of the heart, the left lung ruptured and was present en mass, the left thorax of cavity contained clotted blood and there was fracture of 5th left posterior ribs, wad found into the left chest cavity and there was a fracture of the left scapula in the middle. There was an exit wound 2.05 cm x 2 cm on the back of left side of the chest 2 cm below the lower and the left scapula and 3 cm towards the left from the vertebral column. A pellet removed 1 cm below the exit wound from the back of left side of the chest, and five pellets were removed from the back of left side of the.
Chest above the wound of exit.
' The death occurred due to shock and haemorrhage consequent upon injury No, 1.
5. Muhammad Sadiq S.H.O. Arrested Mumtaz Ali Khan appellant on 10-10-1986. No recovery was effected from him.
6. The prosecution examined 11 P.Ws to prove its case. Sadiq Hussain P.W.8 and S.I. Muhammad Sadiq P.W. 11 are witnesses to the recoveries from the spot including gun P. 1 and empty P.
2. Ali Nawaz P.W. 7 furnished the motive. According to him he alongwith Muhammad Sharif alias Muhammad Hassan and Liaquat (not examined) rushed to the house of the appellant on hearing a gun report and saw the deceased lying injured while the appellant and his wife Mst. Bushra were standing near him. The appellant was holding a gun in his hands. He went on to say that Mst.
Bushra Begum said that they should leave their house at once as they had murdered their own son.
7. The appellant denied that there was any dispute between him and the deceased over the distribution of the share of land or funds. Explaining the occurrence he made the following statement:-- "On the fateful night I was sleeping in my room. On hearing gun report I went to the place where Saeed-ur-Rehman (deceased) was sleeping, I found him dead. I do not know as to how he met his death whether it was suicidal or act of some enemy. The police came to the spot and recorded statement of lot of persons of the village and came to a conclusion that it was an accidental death, when the S.I. Dictated Exh. P. 1/1 to Hamid Khan a retired Police Officer and I was made to sign that document and it was read over to me. After being fully satisfied the S.H.O. Had permitted me for the burial of the deceased."
' According to him he had been falsely involved in the case as Sahib Zadgan of Bahu Sultan, Amjid Ali Khan and Ghulam Qasim Sargana were his sworn enemies, that they made his enemy Ali Nawaz as an instrument to implicate him in the case.
' No evidence was called by him in defence.
9. The prosecution case solely rests on the evidence of Ali Nawaz P.W.7. Since the evidence in the case is entirely circumstantial it is a fundamental rule that all reasonable hypothesis consistent with the innocence of the appellant be excluded. The occurrence in question had taken place on the night between 3rd and 4th October, 1986 whereas the matter was reported to the police by All Nawaz P.W. On 8-10-1986. According to Ali Nawaz P.W. The police had visited the spot on 4-10-1986 but he did not inform them about having seen the occurrence.. According to him the women folk of the appellant observed Pardah so he being related to him could go inside his house but he failed to give the details of his relationship with the appellant. On the other hand, he appears to be inimical towards him. He admitted that he had filed an appeal against the appellant in respect of consolidation of land which was dismissed. He admitted to have engaged a counsel to prosecute the case against the appellant. He further admitted that he had engaged a counsel for moving transfer application in the High Court. He admitted that 10/15 days prior to the occurrence Muhammad Sadiq P.W. Got a case registered under section 382, P.P.C. Against the nephew of the appellant and that his son Tahir was a witness against them. He made a lot of improvements in his statement. There are material contradictions between his statement at the trial and the one made by him before the police.
In the background of the above enmity it is not probable that Ali Nawaz P.W. Could have dared to go inside the house of the appellant at the dead of night. Furthermore his keeping silent for 4 days over the matter casts a serious doubt of his veracity. There is absolutely no corroboration of his testimony. Except for his evidence, there is no other piece of evidence against the appellant.
Liaquat Ali and Sharif alias Muhammad Hassan who could corroborate him were not produced by the prosecution. His interest in the prosecution of the case puts us on caution. Since the death of the deceased was instantaneous, there was absolutely no possibility of his having heard the deceased condemning the act of his father. In view of the inherent contradictions his testimony is not appealing to reason and is inconsistent with common course of human behavior. The mere suspicion cannot be sufficient to justify conviction of the appellant.
For the reasons discussed above the prosecution has failed to prove the case against the appellant. Accordingly, we accept his appeal, set aside his conviction and sentence and acquit him of the charge. He shall be released, forthwith, if not required to be detained in any other case.
' The death sentence is NOT confirmed.