' RUSTAM S. SIDHWA, J.---This is an appeal by Muhammad Younus Khan appellant against the judgment of a learned Division Bench of the Lahore High Court dated 12-10-1987 dismissing his appeal.
2. The brief facts of the case arethat on 4-2-1984 there was a wrestling bout in which Jamshed Khan, minor son of Younus Khan accused, was knocked down by Anwar Khan, minor son of one Nazir. Talib Khan PW 10, brother of the complainant and the deceased, who was present, ridiculed Jamshed Khan saying "Ja Putra Tere Peo Ne Tanu Geo Gat Khhalaya Ae, Pher Dobara Tiar Ho".
Jamshed Khan went home abusing Talib Khan P.W. 10 and apprised his mother of the situation, upon which she went to the house of the complainant party and after having an altercation with the ladies, left the house abusing them. On the next day, i.e, 5-2-1984 at 6.45 p.m. Sarwar Khan complainant P.W. 7 and his father Ghulam Rasool were present in their house, when Safdar Khan accused gave a call from outside their house that they should come out whereupon they came out and saw Safdar Khan and Younus Khan accused, both armed with pistols, standing in the street.
Both of them tried to catch hold of Sarwar Khan complainant P.W. 7, but he started running and raising alarm. Safdar Khan accused fired at him, but his shot missed and the bullet struck the wall.
Both the accused chased him. In the meantime Mushtaq Khan deceased, younger brother of the complainant, came out of the Haveli on hearing his alarm. Safdar accused gave him a blow with the butt of the pistol on his right cheek and then took him into his hold, while Younus Khan accused fired at him, after flashing the light of a torch on him, hitting him on temporal region of the head, as a result of which he died at the spot. Besides Sarwar Khan complainant P.W.7, the occurrence was also seen by Ishaq Khan P.W.8 and Ghulam Rasool and Sakhi Khan (P.Ws. Not produced). After the occurrence, the accused persons ran away from the spot raising lalkara.
3. Leaving the dead body in the custody of Ghulam Rasool and Ishaq Khan P.W.8, Sarwar Khan complainant P.W.7 went to Police Station Narowal and reported the occurrence to Sarfraz Khan, Sub-Inspector, at 3,30 a.m. On 6-2-1984.
4. After recording the F.I.R. Ex. PC, Sarfraz Khan, S.I. P.W.12 reached the spot. He secured blood- stained earth from the spot vide memo Ex. PD. He took crime empty P.4 into possession vide memo Ex. PE. He prepared the injury statement Ex. PH/1 and inquest report Ex. PH of the dead body and despatched it to the mortuary for post-mortem examination.
5. On 6-2-1984 at 12.30 p.m. Dr Nazir Ahmad, M.O. P.W.1 conducted the post-mortem examination on the dead body of Mushtaq Khan deceased and found a firearm wound 6/10 x 6/10 cm through the left ear on its middle auricle with blackened edges, and a firearm wound of same size on the left side of head behind the left ear. This later injury was held to be the result of the first injury going inwards through the skull bone into the brain. He also found an abrasion 2 x 1 cm on right lower eyelid and an abrasion 5 x 3-1/2 cm on the right renal area on the back. A bullet was recovered from the right side of the skull cavity. There was churned food about half full present in the stomach.
' The urinary bladder was empty. The two firearm injuries were held to be the result of one firearm shot.
6. On 10-2-1984 Younus Khan accused was arrested, while on 14-2-1984 Safdar Khan accused was arrested.
7. On 24-2-1984 Younus Khan accused led to the recovery of a .32 revolver P 5 with two live cartridges P 6/1-2 in its chamber, which were taken into possession by the police officer vide memo Ex. PF. The said recovery was witnessed by Imdad Khan P.W.9, Sarfraz Khan P.W.12 and Mahngay Khan given up PW.
8. On 27-2-1984 Safdar Khan accused led to the recovery of revolver P:7, which was taken into possession vide memo Ex. PG.
9. The sealed parcels containing the crime empty P 4 and revolver P5 were sent to the Forensic Science Laboratory on 28/29-2-1984, but were returned due to technical flaws in the docket.
Ultimately the said two parcels were teceived in the Forensic Science Laboratory on 7-3-1984.
10. At the trial the prosecution produced Sarwar Khan P.W.7, Ishaq Khan P.W.8 and Talib Khan P.W.10 to prove the motive, Sarwar Khan P.W.7 and Ishaq Khan P.W.8 in proof of the ocular account, Dr.Nazir Ahmad in corroboration of the medical testimony and Imdad Khan P.W.9 and Sarfraz Khan S.I., P.W.12 in support of the recoveries.
11. Both Muhammad Younus Khan and Safdar Khan accused denied all the accusations that were levelled against them, including the recoveries alleged to have been effected at their instance.
Younus Khan accused claimed that he had been falsely implicated due to party faction and suspicion, that the deceased had other enemies and that he had been killed sometime at mid- night by unknown assailants.
12. The learned trial Judge convicted and sentenced both the accused under section 302/34, P.P.C.
And sentenced them to death.
13. In appeal, the learned Judges of the High Court acquitted Safdar Khan accused, but maintained the conviction and sentence of Younus Khan accused and dismissed his appeal.
14. We have heard the arguments of the learned counsel for the appellant, the complainant and the State and have also perused the record. The evidence as regards the motive is furnished by Sarwar Khan P.W.7, Ishaq 'Khan P.W.8 and Talib Khan P.W.10. Sarwar Khan P.W.7 was not present to witness the occurrence; but had heard of the same from his younger brother Talib Khan P.W.10.
Ishaq Khan P.W.8 in his examination-in-chief had affirmed the motive, but in cross-examination broke down and admitted that he was neither a witness to the fight nor what had transpired between the womenfolk, as he himself was not present there. The only witness therefore left to prove the motive is Talib Khan P.W.10. Even if the motive is to be believed, as stated in para. 2 above, it appears that only Talib Khan P.W.10 annoyed Jamshed Khan minor son of Younus Khan accused, which led to the wife of the said accused going to the house of the complainant party and having an altercation with the ladies there and leaving the house after abusing them. No menfolk appear to have been involved in the quarrel that took place between the ladies. The motive, therefore, at best is innocuous and does not appear to be one which would have prompted the two accused to launch a murderous attack first on Sarwar Khan P.W.7 and then failing to kill him, to turn their attention to Mushtaq Khan deceased. It appears that the true motive has not been disclosed. But then only the prosecution can suffer for this silence.
15. The ocular account in this case is furnished by Sarwar Khan P.W.7 and Ishaq Khan P.W.B.
According to their version the occurrence took place on 5-2-1984 sometime after sunset. Sarwar Khan gives the time as 6-45 p.m. Whereas Ishaq Khan P.W.8 gives the time after Maghrib prayers.
Half of the stomach of the deceased at the time of post-mortem examination was full of churned food. This would mean that the deceased had had his last meals about 2--2-1/2 hours before his death. On the normal assumption that the deceased had taken his last meals just after sunset which was at about 5-30 p.m., the food in his stomach should have remained undigested. The medical testimony rather points to the occurrence having taken place about 2--2-1/2 hours after sunset, which would be around 7-30 - 8-30 p.m. The medical evidence therefore conflicts with the ocular account as regards the time of occurrence. Sarwar Khan P.W.7 and Younus Khan appellant both happen to be members of the police force and are expected to know the difference between a pistol and a revolver. Sarwar Khan P.W.7 admitted in cross-examination that he knew this difference and that a revolver did not eject an empty when it was fired. However, in his F.I.R. Exh.P.C.
He referred to both the accused as being armed with pistols, whereas what was recovered from both of them were revolvers. Both the eye-witnesses claim that Younus Khan appellant had a torch with him and that before he fired at Mushtaq Khan deceased, he flashed the same at the deceased before firing and felling him. It is not stated by any of the witnesses that this torch was lit up and flashed earlier at any stage. There is also no evidence that there was any light or lamp burning near the place of occurrence or that there was strong moonlight. The probability that the said witnesses were able to identify Younus Khan appellant as having fired at the deceased because of the light flashed by the torch, cannot be safely accepted as at that stage the accused would not be visible because the light would be flashing from his direction. According to Sarwar Khan P.W.7, he was running, chased by the two accused who were behind him at a distance of about three and a half karams, when Younus Khan appellant fired a shot which hit Mushtaq Khan deceased. The possibility that he could not make out which of the two accused fired and hit Mushtaq Khan deceased cannot therefore be ruled out. So far as Ishaq Khan P.W.8 is concerned, according to his testimony just after Maghrib prayers he was present in his house taking his meals when he heard the report of a fireshot. In cross-examination he admitted that the moment he came out of the door of his house, he heard the second shot and that he only heard two firearm reports. In this view of the matter, he could not have seen the occurrence. The learned Judges of the High Court clearly found that Safdar khan accused had been falsely implicated by both the witnesses and that apart from the fact that he had no motive, the medical evidence also did not support the ocular testimony. In these circumstances, it is unsafe to rely on the ocular testimony, which appears to be highly contradictory and discrepant in material particulars and cannot be safely accepted to convict a person on a capital charge. We, therefore, cannot help but reject the ocular account.
15-A. So far as where the recovery of revolver P.5 is concerned at the instance of the appellant, which matched with the crime empty P.4 recovered from the spot, both the crime empty and the revolver wer sent after both the recoveries were made to the office of the Forensic Science Laboratory, which destroys its incriminatory value.
16. The upshot of the above discussion is that neither motive, the ocular account, the medical evidence nor the recoveries, can be safely relied upon for supporting the conviction of the appellant. He, therefore, deserves to be acquitted.
17. In view of the above, this appeal is accepted and the conviction and sentence of Muhammad Younus Khan appellant is set aside. He shall be released forthwith, if not required in any other case.
Fine and compensation, if any recovered from him, shall be refunded to him.