RAJA AFRASIAB KHAN, J: --Muhammad Hassan (55), Muhammad Shafi (75) sons of Khan Bahadur, Muhammad Nawaz (22) son of Muhammad Hassan, Muhammad Ishfaq (26) son of Muhammad Shafi and Khuda Bakhsh (60) son of Bahadur, were tried by Mr. Muhammad Saleem Qureshi, learned Additional Sessions Judge, Okara, for the murder of Arif Ali alias Midda (25) son of Muhammad Siddique. By judgment, dated 21-9-1987 the learned trial Judge convicted Muhammad Nawaz under section 302, P.P.C. And sentenced him to death plus a fine of Rs.10,000 or in default thereof to undergo R.I. For two years. However, Muhammad Hassan, Muhammad Shaft, Muhammad Ishfaq and Khuda Bakhsh were acquitted by the learned trial Court by giving them the benefit, of doubt vide the same judgment. Muhammad Nawaz had appealed against his conviction and sentence while the learned trial Judge has sent a reference under section 374, Cr.P.C. For confirmation of his death sentence. We propose to dispose of both the matters together by this judgment.
2. The prosecution case is that on 24-9-1985 at sun-set time Rehmat Ali, Muhammad ~harif and Muhammad Nawaz went on a Tractor towards the village Dola Sultan in order to get a leveller from Sardar Ali. Near the Dera of Sardar Ali, Arif alias Midda and Inayat son of Noor Samand were going on foot towards village Dola Sultan. When they reached near the house of Jan Muhammad Potter, from the Northern side, Muhammad Nawaz, Muhammad Shaft, armed with .12 bore guns, Muhammad Hassanf armed with pistol .12 bore, Khuda Bakhsh and Ishfaq Ahmad armed with Sotas emerged while raising Lalkaras. Muhammad Nawaz fired at Arif Ali, which missed. Arif Ali took the .12 bore gun from his companion Inayat Ali and fired in the air just to frighten the assailants.
Muhammad Nawaz fired another shot, which hit Arif Ali on his forehead. He fell down. Arif Ali was lifted and brought in the house of Jan Muhammad Potter and was placed on a cot. The witnesses did not dare to go towards the assailants for fear of being attacked. All the five accused while firing ran away with their weapons. Arif Ali was placed in a tractor-trolley and while on his way to hospital, he died just 5/6 acres away from the village. He was brought to the house of Jan Muhammad Potter. The complainant also informed his relatives in the village about the murder.
Motive is that the complainant and Muhammad Hassan mutually agreed to thrash their wheat crop with their implements with a view to share the expenses jointly. The tractor was owned by Rehmat Ali while Thrasher Machine belonged to Muhammad Hassan. However, after thrashing their wheat crop, Muhammad Hassan etc., refused to pay their share of oil expenses. There was thus a quarrel between Arif Ali and Muhammad Hassan etc., over the issue. The dispute was, however, resolved amicably. Muhammad Hassan etc., however, bore a grudge and as a result thereof, Arif Ali was done to death. On statement of Rehmat Ali complainant (P.W.1), Sikandar Zulqarnain Inspector/S.H.O. Recorded the F.I.R. (Exh. PA.).
3. Sikandar Zulqarnain Inspector/S.H.O. Investigated the case. He prepared the injury statement Exh.
P.J and inquest report Exh P.K of dead body of Arif Ali. Dead body was sent to mortuary under the escort of Suba Khan Constable (P.W.9) for post-mortem examination. Blood-stained earth was taken into possession vide memo. Exh. P.G. Anwar son of Baqir produced 11 empties P9/1-11 before the Investigating Officer which were taken into custody vide memo. Exh. P.H. Last worn clothes of the deceased shirt P4, shalwar P5. Safa P6, a pair of chappal P.7/1-2 and a phial P.8 were taken into possession vide memo. Exh. P.F. All the five accused were arrested by the Inspector on 20-10-1985.
Muhammad Nawaz appellant while in police custody led to the recovery of .12 bore gun P.2 from his house which was taken into possession vide memo. Exh. P.D. Site plan Exh. P.L. And its duplicates Exh.P.L./1-2 were got prepared by the Investigating Officer from Muhammad Salim Ullah Draftsman P.W.10. Positive reports of the Chemical Examiner Exh. P.N. Serologist Exh. P.O. And that of Forensic Science Laboratory Exh. P.P. Were tendered in evidence.
4. Dr. Zakir Hussain Shah P.W.7 conducted the post-mortem examination upon the dead body of Arff Ali on 25-9-1985 at 1-00 p.m. And found the following Injury on it:
(1) On left forehead five fire-arms entrance wounds on an area of 10 x 5 c.m. Were present. Edges of the wound were inverted with tattooing. Fire done from in front within five meters.
5. Eye witness account was furnished by Rehmat Ali P.W.1, Inayat P.W.2 and Muhammad Nawaz P.W.3 The appellant made a statement under section 342, Cr.P.C. Denying the allegation levelled against him and stated that he was innocent. He disclosed that Arif Ali deceased was a desperate person. He, alongwith his companions had come to his Abadi early in the morning on the day of occurrence in support of Amin Dolla who had a dispute with him. They indulged in indiscriminate firing during the whole day with intervals to overawe him. He further stated that he was not present in the house. The villagers intervened and asked the assailants to go back. However, after sun-set they again resorted to indiscriminate firing and in the darkness of night, the deceased was hit by a stray fire shot and that the assailant could not be identified. The witnesses were not present at the time of occurrence. He further claimed that the case was registered against him after preliminary investigation.
The learned trial Court while believing motive, recovery, medical evidence and the ocular account, convicted and sentenced the appellantas mentioned earlier.
6. Learned counsel contends that there-is considerable delay in lodging the F.I.R. He argues that the dispute regarding motive was compromised between the parties and as such there was no occasion on the part of the appellant icy launch an attack upon the deceased. He further says that the prosecution evidence has been disbelieved qua the acquitted co-accused, referred to above.
Learned counsel contends that the medical evidence contradicts the eye-witness account. 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 not been able to prove its case against the appellant beyond reasonable doubt. First information of the occurrence was given to the police after considerable delay without any explanation. The occurrence took place on 24-9-1985 at about sun-set time whereas the report was lodged with Police Station Hujra Shah Muqeem 25-9-1985 wt 4-00 a.m. In near view, no attempt whatsoever has been made to explain this inordinate delay in lodging the F.I.R. Police Station Shah Muqeem is ate Jx-Stawa of only 8 miles, Prow the place of occurrence. This inordinate delay in lodging F.I.R. Creates doubt in the genuineness of prosecution version. The nature of the injury sustained by the deceased shows that he died at the spot immediately because his skull was completely fractured. The injury further shows that the shot was fired from a very close range, smashing the head of the victim into multiple pieces. The medical evidence demonstrates that the victim died there and then. The evidence of Rehmat Ali P.W.1 Inayat P.W.2 and Muhammad Nawaz P.W.3 proves that Arif Ali was being shifted in an injured condition for his treatment when he died on the way to the, Hospital.
Thus, the dead body was brought back. In other word according to the eye--witness account, Arif Ali did not die at once on receipt of injury. Medical evidence wholly runs counter to the ocular account. The irresistible conclusion is that the eye-witnesses were not present and they did not see the occurrence. We are, therefore, not prepared to evidence without corroboration. It is also in the evidence that the earlier dispute a=bout the distribution of a senses of oil over thrashing the wheat crop of Rehmat Ali and Muhammad Hassan etc., was amicably settled a month ago and as such, in our view, there was absolutely no motive left for the appellant to launch an attack. The evidence is that Muhammad Hassan acquitted co-accused refused to pay his share of the expenses and as such there was absolutely no motive with the accused party to murder Arif Ali. In the circumstances, it was Arif Ali (deceased) who appeared to be an aggrieved person in the matter and certainly not the accused party. The motive part of the prosecution story, therefore, does not lend support to the prosecution case. Apart from the above, four co-accused were acquitted by the learned trial Judge by rejecting the prosecution evidence and as such on the basis of same set of evidence, the appellant cannot be convicted and sentenced. Rehmat Ali P.W.1 is real brother of the deceased. Inayat P.W. s is his close friend and Muhammad Nawaz P.W.3 is first cousin of the deceased. The P.Ws. Being highly interested witnesses cannot be relied upon without corroboration.
The requisite corroboration is not available on record. Inayat P.W.2 admitted in his evidence that he was involved in as many as 20 decoity, murder and murderous assault cases and that the deceased Arif Ali was also his co-accused in a murder case. It is established that the deceased was a co-accused of Inayat P.W.2 who had a notorious criminal record at his credit. The recovery of gun P2 is of no avail to the prosecution story because it was effected after one month of the occurrence. Muhammad Nawaz P.W.3 deposed that he did not find any empty lying on the spot.
However, he stated that Anwar Kumhar produced 11 empties before the police on the next day. The recovery of these empties from the spot is thus highly doubtful. In law, no credence can be given to such a recovery. The recovery of Qun and the empties is accordingly rejected. The natural witnesses,, like Jan Muhammad, Haji, Muhammad Sharif Muhammad Nawaz, Aziz and Muhammad Iqbal were not produced by the prosecution to substantiate its allegations against the appellant.
The presumption in law is that in case these witnesses were produced, they would not have supported the prosecution case.
8. Conclusion of the above discussion is that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. The prosecution evidence as a whole does not inspire confidence and is certainly not worth reliance. Resultantly, the conviction and sentence of the appellant is set aside and he is acquitted. He shall be released forthwith provided of course he is not required in some 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.