SARDAR MUHAMMAD DOGAR, J.--- Allah Wasaya (25) was tried by Additional Sessions Judge, Bhakkar for having murdered Ghulam Shabbir on 14-6-1987 at 1-00 a.m. On Hassan Shah to Jhok Qalandar Bakhsh Road near the tube-well of Haji Ghulam Murtaza Shah in the area of village Sukha Shah at a distance of seven miles from Police Station Darya Khan, District Bhakkar.
Learned trial Judge vide judgment dated 6-12-1988 convicted him under section 302, P.P.C. And sentenced him to death plus to pay a fine of Rs.10,000 in default whereof to undergo R.I. For two years. Rs.8,000 on recovery of the fine, were directed to be paid as compensation to the heirs of the deceased.
The convict has filed appeal. Learned trial Judge has made a reference for confirmation of death sentence. Both the matters are being disposed of together.
2. F.I.R. Exh. P.H. Was recorded at the police station by Muhammad Ashraf S.H.O. (P.W.9) at 6-15 a.m.
On the statement of Muhammad Nawaz (P.W.7).
According to the F.I.R., the deceased who was working at Karachi had returned 4/5 days prior to Eid to his village. On the previous evening of the occurrence, the deceased accompanied by his father (complainant) and Ghulam Siddiq P.W. Left for Jhok Lal Shah at 4/5 p.m. To see his relatives. They started for their house at night. It was moonlit night. They reached near the tube-well of Ghulam Murtaza Shah while walking on Pacca road running from Hassan Shah to Jhok Qalandar Bakhsh.
Suddenly, Allah Wasaya came out from the bushes and `Sheesham' tree on the eastern side of the road armed with a gun. He was identified by them. Allah Wasaya gave a Lalkara to Ghulam Shabbir that he will teach him a lesson for disgracing them and will not spare him. Simultaneously, he fired a shot which struck Ghulam Shabbir on his chest. He fell down. When the complainant and Ghulam Siddiq went ahead to catch him, he threatened them that if they dare to intervene they will be murdered, and ran away.
The occurrence apart from the complainant and Ghulam Siddiq was also witnessed by Rab Nawaz who was present at the nearby tube-well of Ghulam Murtaza Shah. Ghulam Shabbir died at the spot.
Motive for the occurrence was suspecision of the accused about the illicit intimacy of the deceased with his sister, Mst. Nasreen.
The complainant explained the delay in lodging the F.I.R. By saying that he could not lodge the report earlier due to non-availability of the transport.
3. Muhammad Ashraf S.H.O. After recording F.I.R. Reached the spot. He despatched the dead body for post-mortem after preparing injury statement Exh. P.E. And inquest report Exh. P.F. Blood-stained earth was collected by him from the spot vide memo. Exh. P.I. Three pellets P.8/1-3, three cardboards P.9/l-3, and a plastic cork P.10 lying at the spot were also picked up by him vide memo, Exh. P.J. The accused was arrested on 24-6-1987. Licensed gun P.6 alongwith two live cartridges P.7/1-2 got recovered by the accused on 26-6-1987 were taken into possession vide memo. Exh. P.C.
Challan was submitted to Court after completion of necessary investigation.
4. Statements of P.Ws. Were recorded at the trial.
Dr. Muhammad Musthaq Ahmad who had performed autopsy on 14-6-1987 at 5 p.m. Appeared as P.W.6. He had noted the following injuries on the body of the deceased:-- (1)Multiple entrance wounds of fire-arm, each measuring 1 x 1 c.m. On the front of lower and middle zones of left chest, scattered in an area of 10 x 5 c.m. Slight burning and blackening was present around the wound.
(2)Seven exit wounds of fire-arm each measuring 1 x 1 c.m. On the back of middle and lower zones of chest, scattered in an area of 7 x 5 c.m. Dark blook was running out of the wounds.
(3)Multiple contusions in front of left fore-arm in an area of 6 x 5 c.m.
(4)Multiple contusions in front of right elbow joint in an area of 6 x 4 c.m.
(5)Both the lips were contused.
On dissection, left chest, wall, pleura, left lung, peritoneum, diaphragm, left lobe of the liver and spleen were found injured. 6th and 7th ribs were found fractured. Death was opined to have occurred due to shock and haemorrhage resulting from injury No.1 which was opined to be sufficient to cause death in the ordinary course of nature. Injuries Nos.1 and 2 were opined to have been caused by fire-arm while injuries Nos.3, 4 and 5 were opined to have been caused by a blunt weapon.
The doctor also gave out that the police on 16-1-1988 had inquired from him vide application Exh.
P.G. Whether injuries Nos.3 to 5 could be caused by burning of the arm or hot weather or fall and he had replied vide note Exh.P.G./1 that the said injuries could be caused by a fall on the hard surface.
During cross---examination, he stated that the deceased might have been tired from a distance between 12 and 15 feet. He opined that injuries Nos.3 to 5 could have been caused by a fall from the height of 4 to 5 feet. ,
5. Ocular account was deposed to by Muhammad Nawaz (P.W.7) and Rab Nawaz (P.W.8).
Muhammad Nawaz while repeating the facts given by him in the F.I.R. Also claimed relationship with the appellant. He also stated that he had witnessed the collection of blood-stained earth, pellets, cardboards, and a plastic cork from the spot by the Investigating Officer.' During cross- examination, he stated that they had gone to Jhok Lal Shah to see his maternal-uncle Allah Bakhsh and to ask for the hand of his niece for marriage with the son of Ghulam Siddiq P.W. He stated that they had started for Jhok Hassan Shah at mid-night on foot as no transport was available at that time. According to him, Rab Nawaz had reached the spot after hearing Lalkara and report of the fire shot. He stated that after the occurrence, firstly, he went to village Sukha Shah to inform the inmates of the house of Ghulam Siddiq P.W. And thereafter had gone to his own house at Hassan Shah before proceeding to the police station to lodge the F.I.R. He gave out that he had not informed Ghulam Murtaza Shah from whose tube-well Rab Nawaz P.W. Had come to the spot. He gave out that they had reached Jhok Lai Shah at about sunset but had not taken food there as they had taken their meals before proceeding to Jhok Lai Shah. According to him, the deceased was working at Karachi for the last 4/5 years and had learnt about the suspicion of the appellant against his son 5/7 days prior to the occurrence whereafter he had enquired from him and he had contradicted the fact by saying that he was prepared to take oath. He stated that he had informed Ghulam Siddiq about the stance of his son. He denied the suggestion that they suspected the appellant of having illicit relations with Mst. Shameem, daughter of Allah Bakhsh and grand-- daughter of Ghulam Siddiq P.W.
While denying that he had not witnessed the occurrence, he admitted that Ghulam Siddiq P.W. Was his father-in-law and Rab Nawaz P.W. Was a tenant of Ghulam Murtaza Shah.
6. Rab Nawaz (P.W.8) stated that he was sleeping at the tube-well of Ghulam Murtaza Shah on the night of occurrence and had awakened on hearing the alarm, and rushed to the spot where he saw the appellant firing at the deceased, During cross-examination, he stated that some relatives of the deceased had reached the spot an hour after the occurrence. He denied the suggestion that he had gone to the house of Allah Wasaya appellant on tile morning of the day of occurrence and awakened him. He also denied the suggestion that the police had arrested the appellant on the information supplied try him. He denied the suggestion that he had not witnessed the occurrence.
7. Rab Nawaz son of Allah Bakhsh, who had witnessed the recovery of licensed gun P.Fi alongwith cartridges P.7/1-2 at the instance of the appellant appeared as P.W.5 and deposed that fact. During cross-examination, he admitted that he was residing at a distance of 2-L/2 miles from the place of recovery and that 10 persons from the locality from where the recovery was effected had collected before the recovery was effected.
8. Muhammad Ashraf S.H.O. Who had registered the F.I.R. And submitted challan to the Court after investigation and arrest of the appellant appeared as P.W 9 and gave details of the investigation.
He corroborated the statement made by P.W.5 about the recovery of licensed gun at the instance of the appellant. During cross-examination he suited that the tube-well of Ghulam Murtaza Shall was at a distance of 25 Karams from the spot. He gave out that Ghulam Murtaza Shall, Ghulam Muhammad and Rab Nawaz of Thalanoon were present at the spot when he had gone there. He admitted that he had not inquired from the complainant as to meet whom he had gone to Jhok Lai Shah, and nor had made inquiries as to with whom he had stayed there. He denied the suggestion that he had recorded the F.I.R. At the spot in consultation with Ghulam Murtaza Shah after preliminary enquiries.
The statements of remaining witnesses are more or less of formal nature.
9. The appellant during statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He owned that gL1n P.6 was his licensed gun but he denied that the recovery was effected in the manner stated by the Investigating Officer. He stated as follows in answer to the question, "Do you want to say anything else?"
"The complainant party suspected my illicit relations with Mst. Shamim, the grand-daughter of Ghulam Siddique P.W. And for that reason they nursed grudge against me. Moreover, Ghulam Murtaza Shah, a big landlord of the Ilaqa, had also grudge against me and since the dead body of the deceased was found near to his tube-well, the complainant party being his party men has, with his connivance, roped me into this false case:"
He stated as follows in answer to the question, "Have you anything else to say?":-- "I am innocent. The deceased was a man of bad character who was murdered by some unknown person during the night and the complainant party with the connivance of Ghulam Murtaza Shah and police has falsely involved me:"
10. We have gone through the evidence with the assistance of the learned counsel for the appellant and considered the contentions raised by the learned counsel for the parties.
11. The claim of Muhammad Nawaz P.W. For being with his son at the time of the occurrence is based on his statement that they had gone alongwith Ghulam Siddiq P.W. To Jhok Lai Shah at 4/5 p.m. At Degarwela and were returning from there.
Jhoke Lai Shah was 6/7 miles away from the Basti of the complainant. Allah Bakhsh, his maternal- uncle was residing there. He had gone to meet him accompanied by his father-in-law to ask for the hand of his niece for the son of his father-in-law. It is highly improbable, nay unbelievable, that if they had gone to the house of so close a relative in the middle of June for such a solemn purpose, they would have started after taking their evening meals at Degerwela from their house.
The stance of the complainant, therefore, that they had not taken food at Jhok Lai Shah as they had already taken their meals is obviously an attempt to cover the medical inequity with their version. In that, the stomach of the deceased was found empty during post-mortem examination.
Had it been admitted by him that they (including the deceased) had taken meals in the house of Allah Bakhsh, semi-digested food definitely would have been found in the stomach of the deceased.
The statement of the witness does not inspire confidence from another angle as well. In that, they would not have started at mid-night from the house of the relative for their house, which was at a distance of 6/7 miles knowing full well that no transport would be available during night. The fact gains more importance that one of them i.e. Ghulam Siddiq was an old man and he had already travelled 3/4 miles. He would definitely not have been in that fit condition to re-start the journey on foot. Moreover, why would their relatives have permitted them to leave their house at that hour of night? The explanation given by the complainant that he had to attend to his work in the morning is just a lame excuse. He was not serving any Government Agency. In fact, he was not even in a private service. He was a labourer and so was not urgently required to be particularly in time at the fixed duty hours. Even if he had to do something in the morning which he thought was so important, he could have reached the house by starting sometime early in the morning when he could easily have got the facility of transport as well. His statement that he had not gone to the tube-well of Ghulam Murtaza Shah to inform him, which was at a distance of 25 Karams only seems to be an attempt to cover the allegation levelled by the appellant during trial that Ghulam Murtaza Shah had played a big role .For involving him in the case. In that, it was alleged that it was Ghulam Murtaza Shah with whose consultation the F.I.R. Had been lodged.
For all the reasons noted above, no reliance can be placed on the testimony of this witness.
12. The presence of Rab Nawaz P.W. At the spot also appears to be doubtful. Firstly, he was not a normal resident at the tube-well of Ghulam Murtaza Shah. In fact, he disclosed that himself.
Secondly, even if he was sleeping there, his own claim shows that he could not have seen the appellant firing at the deceased. His stance at the trial was that he had awakened on hearing the alarm. The alarm, of course, was Lalkara raised by the appellant and the shot fired by him. The shot, in fact, had been fired simultaneously with the Lalkara. A person who is awakened while asleep hearing the fire shot cannot cover a distance of 25 Karams to see as to who was firing at whom. It is not the case of the prosecution that the appellant before having fired the fatal 'shot had fired a shot in the air, too. Had that been so, this witness could have reached the spot before the firing of second shot and witnessed the same. His claim, in the circumstances, of having witnessed the crime, also cannot be safely relied upon.
13. The statement of both the eye-witnesses cannot be acted upon safely for another reason as well. In that, their testimony stands contradicted by the medical evidence.
The deceased was found to have suffered three injuries with blunt weapon, too. Injuries Nos. 3 and 4 were mutliple contusions on the arm. Such injuries could not have resulted merely on fall on any hard substance after being hit by a fire-arm. The opinion obtained from the doctor during investigation that those injuries might have resulted due to fall on a hard surface, obviously, was an attempt to cover the weakness of the case. The medical evidence, in the circumstances, brought on the record clearly contradicts the ocular account.
14. Mere recovery of the licensed gun and positive report about the blood--stained earth does not advance the case of the prosecution, in any manner, as it lends no useful corroboration to the ocular account which itself does not inspire confidence and appears to be a made up one.
15. For all the reasons noted above, no doubt is left in our minds that the prosecution has not succeeded to prove the case against the appellant beyond any reasonable shadows of doubt. The appeal is, therefore, allowed and the appellant is acquitted.
Sentence of death is not confirmed.