MUHAMMAD MUNIR KHAN, J: -- This Criminal Appeal No 137 of 1987, Murder Reference No.67 of 1987 and the connected Criminal Revision 195 of 1987 filed by Muhammad Ashraf, complainant, arise from the judgment of learned Additional Sessions Judge, Gujrat whereby he on 24-2-1987, while acquitting Zafar Ali and Inam Ullah, convicted Ikram Ullah (14-16) appellant under section 302, P.P.C.
For the murder of Farooq Sher (30) and sentenced him to death and a fine of Rs.5,000 in default thereof further R.I. For one year. He was also directed to pay compensation of Rs.5,000 or in default thereof six months R.I.
2. The occurrence took place on 31-10-1985 at Deegarwela in the field of village Doian at a distance of 18 miles from Police Station Lalamusa. F.I.R. Exh. P.C. Is statement of Muhammad Ashraf P.W.6, paternal-uncle of the deceased, which was recorded by Arif Hussain, A.S.I. P.W.10 at 6-15 p.m. At \ Chowk Langaryal at a distance of 6/7 miles from the spot. Formal F.I.R. Exh.P.C./1 was drawn up by Sikandar Hayat, Moharrir Head Constable, P.W.9 on the same day at 8-00 p.m.
3. The eye-witnesses Muhammad Ashraf P.W.6 and Muhammad Inayat P.W.7 are real brothers.
They are paternal-uncle of the deceased. The appellant and the acquitted accused are also related to the eye-witnesses. Ikram Ullah and Inam Ullah accused are brothers and Zafar Ali acquitted accused is their maternal-uncle.
4. The motive allegedly was that a day before the occurrence, cattle of Farooq Sher deceased trespassed into the field of the three accused, which led to a quarrel and exchange of hot words between them. On the intervention of the respectable, the matter was apparently patched up.
5. As for the main occurrence, it has been stated that at the eventful time Farooq Sher deceased was grazing his cattle in his field at a distance of 1-1/2 furlongs from village Doian. Ikram Ullah appellant armed with .12 bore gun, Inam Ullah acquitted accused armed with .12 bore gun and Zafar Ali, acquitted accused armed with 7 m.m. Rifle, all of a sudden came there. Muhammad Ashraf P.W.6 and Muhammad Inayat P.W.7 were at a distance of 13/14 yards from there. Zafar Ali accused raised Lalkara that Farooq Sher should not be spared alive and fired from his rifle hitting on the face of Farooq Sher. Inam Ullah acquitted accused fired shot from his gun which hit Farooq Sher on the right side of his chest. Inam Ullah fired shot with .12 bore gun hitting on the right knee of the deceased, who fell down on the ground and succumbed to the injuries on the spot. The occurrence, was seen by Muhammad Ashraf P.W.6 and Muhammad Inayat P.W.7 and Muhammad Javed (not produced).
6. On 1-11-1985, Dr. Muhammad Ali Malik, P.W.1 conducted post-mortem examination on the dead body of Farooq Sher and found following injuries: (1)Fire-arm wound 1.5 x 5 c.m. x muscle deep on right side of face justbelow lower lip.
(2)Fire-arm entry wound 5 x 5 c.m. x going deep approximately 4.5 c.m.Outer and slightly upper to right nipple.
(3)Fire-arm entry wound 5 x 5 c.m. x going deep outer to right knee."
7. Ikram Ullah appellant was arrested on 16-11-1985 by Farrukh Hussain, Inspector, P.W.8. Inam Ullah acquitted accused was arrested on 7-12-1985 by him. Zafar Ali acquitted accused was arrested by him on 8-12-1985, On 18-11-1985 Ikram Ullah appellant led to the recovery of gun Exh.P.5 from his house which was taken into possession vide memo. Exh. P.E. Attested by Muhammad Inayat P.W.7, Muhammad Javed (not produced) and Farrukh Hussain, Inspector, P.W.8. No weapon 'was recovered from the remaining accused. No empty was recovered from the place of occurrence. So, the recover of gun EARS from the appellant is of no consequence.
8. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He raised the plea of false implication on account of enmity. He did not give evidence on Oath in disproof of the charge against him. No witness was produced in defence.
9. The trial Court was of the view that the eye-witnesses namely Muhammad Ashraf P.W.6 and Muhammad Inayat P.W.7 produced by, the prosecution were tainted, interested and inimical witness, therefore, independent corroboration of their statements was necessary qua each accused. So, the trial Court acquitted Inam Ullah and Zafar Ali accused for want of independent corroboration and treating the recovery of gun Exh.P.5 from Ikram Ullah appellant as sufficient corroboration of the statements of the eye-witnesses, has convicted and sentenced him as stated above.
10. Learned counsel for the appellant submitted that the case of Ikram Ullah appellant stands at par with the case of the acquitted accused because no empty having been recovered from the spot, recovery of gun Exh.P.5 from the appellant, even if, believed, was of no consequence, and as such, the trial Court has wrongly treated this piece of evidence as sufficient corroboration of the testimony of the interested and inimical eye-witnesses; that the deceased had many enemies, the possibility that he might have been murdered by someone else cannot be excluded and that the injury allegedly caused by the appellant on the knee of the deceased was. Not sufficient to cause death of the deceased in the ordinary course of nature. Learned counsel for the State has supported the judgment of the trial Court.
11. 'ire 'Have anxiously attended to the arguments addressed by the learned counsel for the parties and have carefully reviewed the evidence produced by the prosecution, the circumstances appearing in the case and the statements made by the appellant and his co-accused under section 342, Cr.P.C. On our independent assessment of the evidence, we find that the findings of the trial Court that the ocular testimony is tainted, interested and inimical is based on evidence on record. Muhammad Ashraf P.W.6 and Muhammad 4nayat P.W.7 are closely related to the deceased. They were involved in several murder cases. The deceased was also involved in a murder case and was on bail in that case at the time of occurrence. Muhammad Ashraf P.W.6 stated in cross-examination that Zafar Ali accused and father of Inam Ullah and Ikram Ullah accused had given beating to Muhammad Inayat P.W. Before this occurrence on account of some domestic dispute. He admitted that two cases under section 302, P.P.C. Were registered against him at Police Station Karyanwala. On his own showing, a case under section 307, P.P.C. Was also pending against him at the time of trial of this case. He stated in cross-examination that Muhammad Inavat P.W. Was challaned in two murder cases and in one case under section 307, P.P.C. Lie also stated that Farooq Sher deceased was facing trial in two criminal cases: one under section 302, P.P.C. And other under section 307, P.P.C. At the time of trial of this case. He stated that he was not present at the time of the motive incident. Muhammad Inayat P.W.7 in cross- examination stated that Muhammad Ashraf P.W. Was accused in many criminal cases. The two eye-witnesses are not injured witnesses and as such, there was no circumstantial guarantee of their being present at the time of occurrence. The F.I.R. Was not recorded at police station. It was recorded at a distance of one mile from police post, where the A.S.I. Conveniently met him per chance. Muhammad Inayat P.W.7 stated that the motive for the occurrence was that a day before the occurrence the cattle of Farooq Sher trespassed into the lands of accused and damaged their Bajra Crop. The matter was got patched up by respectables. Therefore, it cannot be safely said that the accused party had a motive to do away with the deceased. For all these reasons, we feel that the rule of prudence does require independent corroboration of the statements of the eye-- witnesses qua each accused including the appellant, which we do not see in the case in hand.
Since no crime empty was recovered from the spot, therefore, the trial Court has wrongly treated this piece of evidence as corroborative evidence. According to the eye-witnesses, the appellant fired shot hitting on the knee of the deceased. According to the post-mortem examination report, the death had occurred due to injury No.2, which was fired by the acquitted accused. The injury allegedly caused by the appellant was not sufficient to cause death in the ordinary course of nature. For all these reasons, we are convinced that the prosecution has not been able to prove its case beyond reasonable doubts against the appellants.
Pursuant to the above discussion, the appeal is accepted and giving him the benefit of doubt, the appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case. Resultantly, the revision is dismissed in limine.
Death sentence is not confirmed.