RAJA AFRASIAB KHAN, J: --Muhammad Inayat alias Natu (50), Amir (19/20), Bashir (40), Shabbir (17/18), sons of Lala, Muhammad Altaf (16/17) son of Muhammad Inayat, Ghulam Safdar (50) son of Bahadur, Naman (22) son of Mahia, Shamir (23), Hayat (45) sons of Sai, Ghulam Haider (20), Ghuiam Munawar (19) sons of Sardara and Sardara (80) son of Hayat, were tried by Syed Irshad Hussain Abidi, learned Additional Sessions Judge, Sargodha, for the murder of Amir (35) son of Murad. By Judgment dated 12-1-1988, the learned trial Judge convicted and sentenced Muhammad Altaf under section 302, P.P.C. To death plus a fine of Rs.10,000. It was directed that the fine, if recovered, a sum of Rs.5,000 shall be paid to the legal heirs of the deceased as compensation. The remaining 11 co-accused, named above, were acquitted by the learned trial Judge by giving them the benefit of doubt. Muhammad Altaf appealed against his conviction and sentence. The complainant Muhammad Nazir filed criminal revision against acquittal of Muhammad Inayat etc. The learned trial Judge sent a reference under section 374, Cr.P.C. For confirmation of the death sentence of Muhammad Altaf. We propose to dispose of the above matters together by this Judgment.
2. The prosecution case is that Muhammad Nazir complainant is the resident of Midh Paragna. He had agricultural land near the brick-kiln of Saif Milt Warraich, Contractor. He had built a kotha quite close to the brick-kiln. Towards northern side of brick-kiln, Sardar son of Hayat owned a Dera where he had installed a Tube-well to irrigate his land. Inayat alias Natu had fast friendship with Sardara.
On account of his relationship, he wanted to pass through the irrigation water of Tube-well from the land of the complainant. Land of Inayat alias Natu was situated near the land of Muhammad Nazir. He, therefore, wanted to construct a water-course in order to pass through the irrigation water. On 20-4-1986 at about evening time, Inayat alias Natu asked Muhammad Nazir to allow him to pass through the water. However, Muhammad Nazir refused to oblige him. They had an exchange of hot words and abuses and as a result thereof Natu while leaving issued a threat that on the coming morning, he would pass through the irrigation water from his land. On the day of occurrence at about 10 a.m. Muhammad Nazir, his brother Amir, Muhammad Walayat, Muhammad Yar and Ziada were present at their Dera and were preparing themselves for cutting their wheat crop. Suddenly, from the dera of Sardar, Inayat alias Natu, Naman armed with Rifles, Altaf, Shameer, Bashir, Ghulam Haider, Munawar, armed with .12 bore guns, Ghulam Safdar, Hayat armed with sotas, Bashir, Ameer, armed with spears and Sardara armed with a hatchet, in execution of their common object came there. Inayat alias Natu shouted that they had come to teach them a lesson for not allowing them to take the irrigation water through their land. Inayat alias Natu fired which luckily missed. Then Altaf fired which hit Amir on his right temple. He fell down. All the accused,, thereafter indulged in indiscriminate firing. The complainant party took shelter in their Kotha. The accused went away with their weapons. Ameer died on the spot after some time. On statement of- Muhammad Nazir complainant (P.W.7), Sher Muhammad S.I./S.H.O. (P.W.10) recorded the F.I.R. (Exh.
P.T).
3. Sher Muhammad Inspector P.W.10 investigated the case. He visited the spot on the same day at about 10-40 a.m. Injury statement Exh.P.V. And inquest report Exh.P.X. Of Amir deceased were prepared by the Sub-Inspector. The dead body was handed over to Fazal Elahi Constable P.W.3 for taking it to mortuary for post-mortem examination. Blood-stained earth was taken into possession vide memo Exh. P.E. Last-worn clothes of the deceased P.1 to P.3 were taken into possession vide memo. Exh. P.C. The accused absconded and accordingly the Police Officer searched for them from 21-4-1986 to 1-5-1986. On 2-5-1986 the accused appeared before him in village Midh Paragna. Some of the accused produced their respective weapons before him. Muhammad Altaf produced gun Pati and two live cartridges P.7/1-2,, which were taken into possession vide memo A Exh. P.G. Site plans Exh. P.D. And Exh.P.D./1 were got prepared from Zahoor Ahmad Patwari P.W.4 Positive reports of the Chemical Examiner Exh. P.Y. And that of Serologist Exh P.Z. Were tendered in evidence.
4. Dr. Muhammad Aslam P.W.1 conducted the post-mortem examination upon the dead body of Muhammad Amir on 21-4-1986 and found the following injury on it:-
(1) A fire-arm wound, wound of entrance 1/2 c.m. x 1-2 c.m. In radius with inverted edges going into cranial cavity on right temporal region 4 c.m, in front of right ear. No blackening and burning was present around the wound of entrance.
It was opined by the Doctor that death occurred due to shock and haemorrhage as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem, fatal to life and caused by a fire--arm. Probable time between injury and death was immediate and that between death and post-mortem examination was about six hours.
5. Eye witness account was furnished by Muhammad Nazir P.W.7, and Muhammad Yar P.W.9 The appellant made a statement under section 342, Cr.P.C. Denying the allegation levelled against him and took the plea that he and the acquitted co-accused had a prolonged litigation with the complainant party. He further stated that he was the only issue of his father and that his mother had already died. He stated that the complainant party and Khanoo, uncle of his father, who is father-in-law of Muhammad Yar P.W.9, wanted to finish his family in order to grab his land. He pleaded that he had been falsely involved in the case due to enmity.
6. Learned counsel contends that there is delay in lodging the F.I.R. And that no explanation in that behalf has been given by the complainant. It is argued that there is only one injury on the person of the deceased and that as many as 12 persons including the appellant were implicated in the case.
He further argues that no empty from the spot was recovered and similarly, no weapon used in the commission of the offence was recovered from the accused. Learned counsel maintains that enmity between the parties is admitted. The 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 utmost care. We are of the view that the prosecution has miserably failed to establish its case against the appellant beyond reasonable doubt. The eleven co-accused were acquitted by the learned trial Judge for lack of evidence and as such there was absolutely no justification in evidence and law to convict the appellant in this case, on the basis of same set of evidence.
Muhammad Nazir P.W.7 is the real brother of Muhammad Amir deceased. Muhammad Yar P.W.9 is nephew of the deceased. The witnesses are closely related to the deceased and as such their evidence cannot be accepted unless it is corroborated,, by some other independent evidence. The corroboration as required by law is definitely missing in this case. As per the prosecution case, 12 bore gun was used by the appellant in killing the deceased. This weapon of offence,, was never recovered by the Investigating Officer. Similarly, no empty from the spot was recovered. This is a case of single injury. The occurrence took place on 21-4-1986 at $-00 a.m. Whereas the F.I.R. Was lodged with the Police Station at 9-30 a.m. After the delay of 90 minutes without any plausible explanation. The prosecution case is that on receipt of injury Muhammad Ameer died on the spot.
Dr. Muhammad Aslam P.W.1 stated that death occurred immediately after receipt of injury. Thus, in our view, there is certainly delay which has not been explained by the prosecution in lodging the F.I.R. Apart from the above, it is surprising that as many as 12 accused including the appellant came at the spot while heavily armed with deadly weapons like .12 bore guns, etc., but a solitary injury on the person of Muhammad Amir with fire-arm was caused and that no other injury to anybody else was inflicted. This fact alone demonstrates beyond doubt that the prosecution. Version has been fabricated after due deliberation and consultation with an ulterior motive. Prosecution story in that behalf is not believable on the face of record. The prosecution evidence shows that Inayat alias Natu had a motive to commit the offence. Motive part of the prosecution story does not give any support to the prosecution case. It is also in he evidence that the complainant party was preparing for cutting the wheat crop at the spot but no sickles were recovered by the Investigating Officer from the spot. This also casts doubts in the veracity of the prosecution story. Thus, case in hand is not free from doubts. We are persuaded to give benefit of doubt to the appellant as well.
8. Conclusion of the above discussion is that the conviction and sentence of the appellant is set aside and he is acquitted. He shall be released forthwith provided of course, he is riot needed in any other criminal case. The appeal succeeds and is allowed. The death sentence of the appellant is NOT confirmed. The murder reference is answered in negative.
9. In view of the acceptance of the appeal and our above findings, we do not found any substance in the criminal revision, which is dismissed.