SARDAR MUHAMMAD DOGAR, J.~ Ghulam Rasul alias Phoola aged 30 years was tried by the Sessions Judge, Mianwali, for having murdered Muhammad Ismail on 19-8-87 at 9-00 p.m. In front of the hotel of Ahmad Khan, at old Adda Larian (Bus-stand) Mochh, at a distance of 4 furlongs from P.S. Mochh, district Mianwali.
Vide judgment dated 27-7-89, learned trial Judge convicted him under Section 302 PPC and sentenced him to death plus to pay a fine of Rs. 10,000/- in default whereof to undergo R.I. For 4 years. Half of the fine, on recovery, was directed to be paid as compensation to the heirs of the deceased.
2. Convict has filed appeal. Learned trial Judge has made a reference for confirmation of death sentence. Both the matters are being disposed of together.
3. FIR Ex. PD was recorded at the Police Station by Ata Muhammad, S.I. (PW8) on the statement of Abaidullah PW6 at 9-30 p.m. On 19-8-87.
According to F.I.R, the complainant alongwith his brothers Muhammad Ismail (deceased)& Latif Ullah and Ali Muhammad PW went to the hotel of Ahmad Khan at old Bus-Stand Mochh to take tea on 19-8-87 at 8-30 P.M. Muhammad Ismail lay down on the cot lying in front of the hotel. His companions sat down on a cot lying nearby. They placed order for tea. An electric bulb was burning outside the hotel. Ghulam Rasul alias Phoola (appellant) came there armed with a pistol at 9-00 p.m. After giving lalkara to Muhammad Ismail that he (Ismail) should get ready, as he (Ghulam Rasul) had come to avenge the murder of his brother, he fired a shot at him which struck him on the left flank. The complainant and his companions witnessed the occurrence and raised alarm. However, they did not dare intervene due to fear. The accused ran away. Muhammad Ismail died on the spot.
4. Muhammad Ismail had murdered Muhammad Iqbal brother of Ghulam Rasul in 1981. He was tried and acquitted. Ghulam Rasul was aggrieved of that. This was alleged to be motive for the occurrence.
5. Ata Muhammad, SJ. After recording F.I.R, went to the spot. After preparing injury statement Ex. PG and inquest report Ex. PH, he despatched the dead body for post-mortem examination.
Bloodstained earth was Collected by him vide memo Ex. PE during spot inspection. Chappal of the deceased P.7/1-2 found lying there was taken into possession.
Ghulam Rasul appellant was arrested on 22-8-87. On the same day, he led to the recovery of 12- bore pistol P.5 along with live cartridge P.6 from his house, Which was taken into possession vide memo Ex. 'PB. Ghallan was submitted to Court after completion of necessary investigation.
6. Statements of nine P.Ws, were recorded at the trial.
Dr. Mumtaz Khan who had performed autopsy on 20-8-87 at 7-30 a.m., appeared as PW9. He had noted a circular wound of entry of a projectile 2 cm x 2 cm with blackening around it, over the lateral side of left abdomen, 1 cm above the anterior superior illiac spine and 19 cm from the umbilicus.
Peritoneum and intestines were found punctured. Stomach contained about 3 ounces of digested matter and the bladder was empty.
Death was opined to have occurred immediately due to shock and haemorrhage, resulting from the firearm injury. Time between death and postmortem was opined to be about 10 to 14 hours.
7. Ocular account was deposed to by Abaidullah PW6 and Ali Muhammad PW7.
Abaidullah while repeating the facts given by him in the FIR stated during cross-examination that he was running a sweet-meat shop which he had taken on rent. He admitted that a case under Section 302 PPC was registered against his cousin Nur Muhammad 14-15 years ago for having murdered Ghulam Muhammad Khan at Adda Larian Mochh. However, he expressed inability to state that 10 years prior to that Nur Muhammad had fired at Mustafa Khan and that Muhammad Ismail (deceased) was also involved in that case. He expressed ignorance about his cousin Karim having abducted Mst. Zaitoon. He also expressed ignorance about the occurrence of injuries to Gul Muhammad father of Karim, resulting in registration of case against Ghulam Abbas and Ghulam Hassan and effecting of compromise on Gul Muhammad having given his daughter in marriage.
He also expressed ignorance that Gul Muhammad, later had obtained divorce of his daughter. He admitted that apart from the deceased, his brother Latif Ullah and Ahmad Saeed his cousin were also called for the murder of Iqbal. He denied the suggestion that Muhammad Ismail and others were acquitted due to compromise in that case. He explained that Ali Muhammad had come to see him at 7-30 p.m. On the night of occurrence. He gave out that while he, Latif Ullah and Ali Muhammad had taken meals, Ismail was not with them. He denied the suggestion that Ismail had also taken meals with them. He stated that 10-15 persons were sitting at the neighbouring shops.
He denied the suggestion, that the deceased had been murdered sometimes during midnight, when he had gone out of the house to urinate and that they had come to know of the murder in the early hours of morning and had thereafter got a false case registered against the accused after consultations and deliberations.
8. Ali Muhammad PW7 corroborated the statement made by Abaidullah insofar as it pertained to the actual occurrence. He also claimed to have witnessed the collection of bloodstained earth and chappals of the deceased from the spot by the Investigating Officer. During cross-examination he stated that he was living in the same mohallah at a distance of 100 karams from the house of Abaidullah complainant. He stated that they had gone together to the hotel of Ahmad Khan but did not know whether Abaidullah and others including the deceased had taken meals or not.
According to him the deceased was fired at by the appellant from a distance of 3-4 feet. He denied the suggestion that some unknown persons had murdered the deceased at midnight when he had gone out of the house for urination and that they had come to know of the murder in early hours of the morning or that he had made a false statement against the appellant.
9. Muhammad Aslam, ASI PW4 claimed to have witnessed the recovery of pistol P.5 alongwith live cartridge P.6 on the pointing out of the appellant from his house and of having attested the relevant memo. During cross-examination he admitted that there were inhabited houses on 3 sides of house of the accused. He stated that none else was in the house at the time of recovery.
He denied the suggestion that no recovery had taken place.
10. Ata Muhammad, S.I. Who had registered the case, arrested the accused and submitted the challan to Court after completion of necessary investigation, appeared as PW8 and gave the details of investigation. During cross-examination he denied the suggestion that hotels at Bus- Stand used to be closed in the evening. However, he admitted that residents of Mochh had murderous enmities amongst them. He denied the suggestion that the hotel where the occurrence was alleged to have taken place, had been abandoned or that no business was being carried out there. He denied the suggestion that he had recorded the F.I.R, after preliminary investigation. The suggestion that the accused had appeared before him voluntarily on 20-8-87 was also denied by him. According to him the accused was arrested by him on 22-8-87 at Adda Paikhel on Mianwali- Kala Bagh road. He admitted that other family members of the accused lived in the house wherefrom recovery of pistol was effected. He denied the suggestion that no recovery had been effected at the instance of the appellant and he had falsely planted the same. The statements of the remaining P.Ws, are more or less of a formal nature,
11. The appellant during his statement under Section 342 Cr.P.C, denied the prosecution case as a whole. While admitting that the deceased, his brother Latif Ullah and Ahmad Saeed their cousin were challaned for the murder of his brother, he declared that they had been acquitted due to compromise and that since then their families were living in peace in the same mohallah. He denied that he had led to the recovery of pistol or cartridge. He stated as follows in answer to the question, 'why this case against you?' :- "I have been falsely involved on mere suspicion. The occurrence did not take place in the manner alleged by the prosecution and stated by the so-called eye-witnesses. Muhammad Ismail was murdered at a different place by some unknown assailant when came out of the house to urinate late in the night."
He declined to make statement on oath under Section 340 (2) Cr.P.C, and did not opt to produce evidence in defence.
12. Learned counsel for the appellant after having taken us through the evidence, criticised the impugned judgment and contended that the deceased appears to have been murdered sometimes during late hours of the night and the eye witnesses do n"t appear to have witnessed the occurrence. Learned counsel contended that the complainant being brother of the deceased and Ali Muhammad PW being his cousin, were interested witnesses. Learned counsel also contended that uncorroborated testimony of the eye-witnesses did not warrant maintenance of conviction of the appellant on a capital charge.
13. Learned counsel for the State/complainant defended the judgment of the trial Court, Learned counsel for the complainant contended that statements of the eye-witnesses appeared to be forth-right and so can be safely relied upon.
14. The pistol recovered from the appellant was not sent to the Forensic Science Laboratory, that probably was not done as no empty had been recovered from the spot. There being no evidence to connect the pistol recovered from the appellant, with the crime alleged to have been committed by him, evidence of recovery of pistol does not lend support to the ocular account. Even otherwise the evidence of recovery of pistol has been deposed to by two Police officials. None from the public was examined to prove the recovery. It was not denied by the A.S.I, that the place of recovery was surrounded by inhabited houses from three sides. The S.H.O, also did not deny that the house (place of recovery) was in joint occupation with other members of the family. The evidence of recovery of pistol as such also is not upto the mark.
15. The occurrence had taken place in front of a hotel at old Adda Larian Although Abaidullah was running a sweet-meat shop yet he had returned home after closing the same. Similar was the position of Ali Muhammad PW7. The proposition requiring answer, is, whether the statements of both these witnesses that they had gone along with the deceased from their house to the place of occurrence, after having closed their shops at the Adda Larian and returned home after day's work?
It may not appear unusual that they might have decided to go again to the Adda Larian for taking tea, but the contradictory statements made by them with regard to certain aspects, casts heavy doubts about their claim of having been together in the house of the complainant and of having gone together along with the deceased to the place of occurrence. In that, according to Abaidullah PW6 an electric bulb was burning at the spot. The burning electric bulb was hung with a peg which was near the transformer, while PW7 stated that an electric bulb was affixed with a pole outside the hotel and two more bulbs, one in the hotel and the other nearby the transformer were also on.
The description of the arrangement of light at the spot amongst the two witnesses is thus not corroboratory.
According to PW6 there was no customer at the hotel when they had sat there to take tea, although 10-15 persons were sitting in the neighbouring shops. While according to P.W.7, eight to ten customers were already taking tea at the hotel when they had reached there and the proprietor of the hotel was also present there. He made it clear that the customers were sitting on cots which were 3-4 in number.
P.W.6 during cross-examination took up the stand that he, his brother Latif Ullah (given up PW) and P.W.7 Ali Muhammad had taken meals before leaving for the hotel. Ali Muhammad, however, contradicted him by stating that he did not know whether Abaidullah and other including the deceased had taken then- meals before leaving for the hotel or not.
Although such like contradictions in the statements of the witnesses may not be of much importance in a murder case yet when the question of witnesses being together at a particular hour, is to be decided, these aspects do gain importance and lend some support to the defence argument that they may not have been at the spot and their claim of being with the deceased at the relevant time might be false.
16. There is another aspect of the case. The deceased had died at the spot. During autopsy, his stomach was found containing 3 ounces of digested matter. There were traces of faeces in small intestines while the large intestines were full of faecal matter. Such a state of the stomach, obviously is a proof of the fact that more than 5-6 hours had elapsed before the deceased had taken his last meals. The deceased' used to run a sweet-meat shop and he had joined his brothers i.e. P.Ws, after having closed his shop for the day. He had left the house at 8-30 a.m. And was alleged to have been murdered at 9-00 p.m. A man who had been working for the whole day, normally would not have left his house without taking meals at that hour of the night. Although P.W.6 stated during cross- examination that the deceased had not taken meals and PW7 expressed ignorance about the deceased having taken evening meals, yet, that all, in our view, cannot be assumed to mean positively that the deceased had not taken his last/evening meals on the day of occurrence because it would have been something unusual, for which there should have been some explanation, which never came-forth during the trial. Such a state lends support to the argument of learned counsel for the appellant that the deceased might have been done to death sometimes in the later hours of the night because that only explains empty state of stomach of the deceased.
17. The contradictions in the statements of the eye-witnesses coupled with lack of support from the medical evidence and no corroboration from any other circumstantial evidence, cast heavy shadows of doubts on prosecution version of the occurrence. In the circumstances even if the evidence of motive, which otherwise appears to be a weak one, is accepted that would not place the case of the prosecution on a better footing in any scale.
As a result of the aforesaid discussion, the appellant is acquitted by way of grant of benefit of doubt. The appeal is allowed. Sentence of death is not confirmed.