RAJA AFRASIAB KHAN, J: -- Khadim Hussain alias Khadu (30) son of Hashim, Bashir alias Bashira son of Muhammad Sadiq were tried by Mr. Muhammad Aslam Sumra, Additional Sessions Judge, Gujrat for the murder of Muhammad Sharif (55-60). By judgment dated 31-3-1987, learned trial Judge convicted and sentenced appellant Khadim Hussain to death under section 302, P.P.C. Plus a fine of Rs.2,000 or in default to suffer six months' R.I. It was directed that in case of recovery of fine, it shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. Co-accused Bashir was killed on 7-12-1985 during an encounter with Police. Fazal Karim the third accused is still an absconder. Appellant Khadim Hussain has challenged his conviction and sentence by filing Criminal Appeal No. 376 of 1987. The learned trial Judge has sent a reference under section 374, Cr.P.C. For confirmation of the death sentence of Khadim Hussain. This judgment shall dispose of both the matters together.
2. The prosecution story is that on 30-9-1981 at `Dopehervela' Muhammad Yousuf son of Ilam Din (P.W.4) his brother Muhammad Sharif, (deceased) Muhammad Siddique son of Muhammad Fazal, his nephew and Muhammad Hanif son of Fazal Karim, his sister's son were grazing their cattle near a brick--kiln about one mile away towards South of. Village Dandi Nizam. Bashir alias Bashira, Khadim Hussain armed with guns while Fazal Karim armed with a rifle suddenly emerged there.
Khadim Hussain shouted that they had come to take revenge from them for attacking Muhammad Maqsood. Fazal Karim fired, which hit Muhammad Sharif on his right leg. Khadim Hussain and Bashir fired which too hit Muhammad Sharif on his left leg. The accused also fired at the P.Ws., who luckily escaped by hiding themselves in the bushes nearby. After commission of the crime, the accused left the place while firing. Muhammad Sharif died at the spot. The motive is that about 3- 1/2 months ago Muhammad Siddique and Muhammad Hari if inflicted injuries to Muhammad Maqsood son of Jallal and in lieu thereof a cas8 under section 307/365/34, P.P.C. Was registered against them at Police Station Sara-e-Alamgir, District Gujrat. Aforesaid Muhammad Maqsood and Khadim Hussain appellant had fast friendship with each other. On this crude, Muhammad Sharif was done to death by the accused.
3. Sher DR, S.I. P.W.7 recorded statement Ex. P.B., made by Muhammad Yousuf complainant. On the basis of the said statement formal F.I.R. Exh.P.B./1 was registered by Atta Ullah Khan, Moharrar Head Constable P.W.2. Sher D.1 S.I. Investigated the case. On 30-9-1981, he visited the spot, prepared injury statement Exh. P.H. And Inquest Report Exh P.J. Of dead body of Muhammad Sharif. The dead body was sent for post-mortem examination through Fazal Din, F.C., P.W.6 to the mortuary. Blood-stained earth was taken into possession vide memo. Exh. P.C. Last worn clothes of the deceased, shirt P.1, vest P.2 and Tehband P.3 all blood stained were taken into possession vide memo. Exh.P.D on 1-10- 1981. On 19-10-1981 warrants of arrest of Bashir, Khadim Hussain and Fazal Karim accused were obtained by the Police Officer from the Ilaqa Magistrate. Proclamations,, Exhs P.E, P.F, and P.G. Of the accused were also obtained by the investigating Officer from the learned Magistrate on 3-11-1981.
The accused were not available and as such were declared proclaimed offenders.
4. Dr. Muhammad Afzal P.W3 conducted post-mortem examination upon the dead body and found the following injuries on it:
(1) An inlet fire-arm wound 1-1/4" x 1-1/4" and going inward edges are inverted entering from lateral side. Right knee joint. Through politeFosse.
(2) An outlet wound 4" x 2" on inner side of lower part of right thigh, edges are averted. It is outlet to injury No.1.
(3) Fire wounds of entry measuring about each 1/4" x 1/4" edges are inverted on the inner side of left thigh 4" above left knee joint.
(4) Five outlet wounds each measuring about (1) 1/2" x 1/3" (2) 1/2" x 1/2" (3) 1" x 1/4" (4) 1/2" x 1/4" (5)
1" x 1/4" on outer side of lower part of left thigh.
It was opined by the Doctor that injuries Nos. 1 and 3 were caused by a fire-arm and were declared grievous. Injury No.2 was found an outlet of injury No.1 and similarly injury No.4 was declared to be an outlet of injury No.3. In the opinion of the Doctor, death occurred on account of shock and haemorrhage as a result of injuries Nos.1 and 3. The injuries were found sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem. Probable time between injuries and death was about one hour and between death and post---mortem was about 24 hours.
5. Eye witness account was furnished by Muhammad Hanif P.W. 1 and Muhammad Yousuf P.W.4 The appellant while making a statement under section 342, Cr.P.C. Denied the allegations levelled against him. He pleaded his innocence and took the plea that Siddique and Hanif P.Ws. Inflicted injuries to one Maqsood and accordingly a case under section,, 307 P.P.C. Was registered against them by the Police. He further stated that his father appeared as a witness in that case and consequently he had been involved in this case to take revenge from him at the behest of the said P.Ws. However, no evidence in defence,, was led by the appellant. The learned trial Judge believed the ocular account, motive and abscondence of the accused and convicted and sentenced him as already observed.
6. It is contended by the learned counsel that the prosecution,, has failed to prove its case against the appellant beyond reasonable doubt. Learned counsel urges that medical evidence runs counter to the ocular account. According to the learned counsel, presence of Muhammad Hanif and Muhammad Yousuf, eye--witnesses was not established at the place of occurrence. Learned counsel argues that enmity of the accused with the complainant party is established. He says that eye witness account is not corroborated by any other reliable evidence and as such conviction of the appellant is not sustainable in law. Learned State counsel defended the conviction and sentence of the appellant.
7. We have heard the learned counsel for the parties at considerable length and have read the record with care. We are not convinced with the evidence of Muhammad Hanif P.W.1 and Muhammad Yousuf P.W.4. Their presence on the spot appears to be doubtful. Muhammad Yousuf deposed that injuries were inflicted to Muhammad Sharif deceased by placing gun on his body.
Muhammad Hanif states that the assailants were at a distance of 20/25 karams when they attacked. He further says that the deceased was at a distance of about 8/10 yards away from him.
Thus, the eye witnesses. Materially contradicts each other. They do not inspire confidence. They, therefore, cannot be relied upon without corroboration. However, requisite corroboration is missing.
Matter does not end here. The medical evidence shows that there was no blackening or burning around the seat of injuries on the person of the deceased. The Doctor testifies that the edges of the injuries were not burned. In our view discrepant ocular account has been negated,, by the medical evidence. Muhammad Yousuf P.W.4 has admitted the correctness of Exh D.A., his own affidavit. As per affidavit of Muhammad Yousuf, nobody saw the occurrence and that the accused were not ,present at the spot. Muhammad Siddique another eye-witness was not produced 'by the prosecution for the reasons best known to it. Enmity,, has also been admitted by Muhammad Hanif and Muhammad Yousuf P.Ws. With the complainant party. Nothing incriminating was recovered at the instance of appellant. The fact that the appellant absconded immediately after occurrence is not itself sufficient to prove the murder charge against him. Learned counsel has heavily relied upon the judgments reported as Amin Ullah v. The State PLD 1976 SC 629, Mangio v The State 1976 P Cr. L J 243 and Abdul Rauf v The Crown 1971 SCMR 256. The rule laid down in these authorities aptly applies to the facts and circumstances of the case in hand. In our view, this is a case of no evidence. The prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. In consequence, we set aside his conviction and sentence and acquit him, forthwith, provided he is not required in some other criminal case. His appeal succeeds and is allowed. The death sentence is NOT confirmed.