S.M. ZUBAIR, J.- Nazir (30), Muhammad Anwar (38) and Ahmad (36) were tried for the murder of Bahu deceased under section 302-34 PPC by the learned Addl. Sessions Judge, Chiniot and Nazir and Muhammad Anwar were convicted and sentenced by his order dated 31.5.1989, to suffer imprisonment for life and a fine of Rs. 10,000/- each. In default of payment of fine, they were further ordered to undergo R.I. For six months. The fine, if realized, half of it was to be paid to the legal heirs of the deceased, while Ahmad was acquitted of the charge. Both the accused have come up in appeal before this Court.
2. Briefly the prosecution story as narrated by the complainant Sada is that on 26.1.1987 at about 10-30 a.m. He along with Bahu deceased who was carrying a mobile-oil-gallon in his hand, was going towards village Abhula where Ahmad, Mohammad Anwar and Nazir accused who were armed with 12 bore, guns came in a tractor from behind and Muhammad Anwar accused raised a lalkara that Bahu would not return alive that day. Bahu, the brother of the complainant, started running, meanwhile all the three accused got down the tractor. Ahmad accused fired at Bahu deceased which hit him On his right thigh, Nazir accused fired second shot on the deceased which hit him on his left leg and the third fire by Muhammad Anwar accused hitting the deceased Bahu on both his legs. Thereafter Ahmad and Nazir accused repeated gun fires upon Bahu deceased who dropped down. Then Muhammad Anwar accused went close to the deceased and fired last shot in his left ear. Muhammad Anwar accused threatened the complainant that he would also meet the same fate if he would come near. On hue and cry raised by the complainant, the P.Ws, who were returning home from their lands, were attracted to the spot but all the three accused fled from the spot on their tractor firing in the air.
The motive, as alleged in the F.I.R, is that Zafar, the nephew of the complainant and the deceased had abducted Mst. Roshan, a relative of the accused persons, three four days prior to the present occurrence and had returned her the next day through panchayat and the complainant. Bahu deceased advised his nephew Zafar to leave the village lest he may not be a victim of the wrath of the accused persons. Due to this grudge, the accused attacked upon Bahu deceased as they had also doubts that the abduction was on the abetment of the deceased Bahu.
3. The F.I.R. Ex. PA was recorded by Muhammad Khan Inspector/SHO Police Station Garh Maharaja, District Jhang on 26.1.1987 at'12-30 p.m. On the statement of Sada complainant. Muhammad Khan, Inspector/SHO (P.W.13) performed the investigation of this case. After recording the F.I.R, he reached the spot and prepared injury stated Ex.P.K, and inquest report Ex. P.l, and despatched the dead body of Bahu deceased to Tehsil Headquarters Hospital, Chiniot for post-mortem examination. He inspected the spot and took into possession blood-stained earth vide memo Ex.PJ), and made it into a sealed parcel. He also took into possession 8 empties from the spot Ex. P.1/1-8 and an empty mobile-oil-gallon Ex. P.2 vide memo Ex.P.C. The same made into sealed parcel. The last worn belongings of Bahu deceased Ex. P3 to P.8 also took into possession vide memo Ex.P.E. He arrested all the accused on 16.2.1987. At the pointation of Muhammad Anwar accused he recovered a gun P.10 and took into possession vide memo Ex.P,G. Similarly Nazir accused led to the recovery of gun P.9 and the I.O. Took it into possession vide memo Ex.P.F. After completing all the formalities the challan was submitted to the Court.
4. , .On 26.1.1987 Dr. Muhammad Akhtar Hussain Chatha, Senior Medical Officer, Tehsil Headquarter Hospital Chiniot conducted the postmortem examination on the dead body of Bahu deceased and he found nine injuries in all on the person of the deceased, out of which injuries No. 2 to 6 were grievous and the rest were simple in nature. In the opinion of the doctor, the death occurred due to injury No. 1 which was sufficient to cause instantaneous death in ordinary course of nature.
5. The prosecution produced thirteen witnesses in support of its case. Sada complainant (P.W. 1), Muhammad Ashraf (P.W.2) and Ghulam (P.W.3) furnished ocular account of the occurrence, whereas Mohabbat Khan (P.W.6), Mehdi Khan (P. W.7) and Zafar Abbas (P.W.9) gave recovery evidence. Dr. Muhammad Akhtar Hussain Chatha, Senior M.O. Tehsil Headquarters Hospital, Chiniot (P.W.12) provided medical evidence of the occurrence.
6. Placing reliance on the ocular version furnished by Sada complainant (P.W.1), Muhammad Ashraf (P.W.2) and Ghulam Muhammad (P.W.3) fortified by the medical evidence as well as by the recovery of the guns used by the appellants for the commission of crime which wedded with the crime empties found on the spot, the learned trial Judge convicted the appellants and gave them the sentences as indicated above.
7. The learned counsel for the appellants contended that the occurrence took place at a deserted place and nobody witnessed the crime. The witnesses are the close relations of the deceased; Sada (P.W.1) is his brother, Muhammad Ashraf (P.W.2) is son of Sada P.W.1 and Ghulam Muhammad (P.W.3) is first cousin of the deceased. No reliance can be placed on the uncorroborated testimony of these highly interested witnesses. All the witnesses are chance witnesses of the occurrence. The ocular version stands contradicted by the medical evidence. The motive as alleged in the FIR has not been proved. The investigation has not been conducted honestly and fairly, so no reliance can be placed on the recovery of the crime empties at the spot, and also on the recovery of the guns allegedly recovered at the instance of the appellants, which were found wedded with crime empties, as per Fire-Arms Expert report Ex.PQ. The I.O. Has not prepared the important documents such as the recovery of crime empties and the recovery of guns himself and no reliance can be placed on this unfair investigation. The eye-witnesses had the motive to falsely implicate the present appellants on the basis of some suspicion lurking in their minds on account of the incident mentioned in the F.I.R. The deceased was a man of bad character, he had many enemies, particularly Muhammad Sharif who might have killed the deceased. Ahmad one of the co-accused of the appellants has been acquitted on the same evidence, so without any independent corroborative evidence, the conviction of the appellants cannot stand, hence appeal be accepted and they be acquitted.
8. The learned counsel for the State has urged that the F.I.R, in this case has been lodged promptly, which excludes the possibility of deliberation and false implication. The occurrence took place in the day time, the presence of eyewitnesses who had no enmity with the appellants, has been proved at the scene of occurrence beyond any reasonable doubt. The guns recovered at the instance of the appellants matched with the crime empties so independent, corroboration of the ocular version is also available.
9. I have gone through the record with the able assistance of the learned counsel for the parties.
The contention of the learned counsel for the appellants that all the eyewitnesses are close relatives is well founded, but in the absence of any previous enmity, mere relationship per se would not be sufficient to discard the natural and the confidence-inspiring evidence of these witnesses.
The complainant has furnished very plausible and reasonable explanation for his presence at the scene of occurrence as he along with Bahu deceased was proceeding towards Mauz Pir Kot from Chak No. 11, while Bahu was holding tin of gallon mobile oil which was ultimately recovered from the spot. The other eye-witnesses too have furnished very good and plausible explanations for their presence at the scene of occurrence. The minor discrepancies occurring in the statements of these eyewitnesses here and there would not be by itself sufficient to discard the truthful evidence of these witnesses, because the discrepancies do occur in the statement of every witness, due to the lapse of time and difference of perceptions. The medical evidence is not in conflict with the ocular version, the deceased was not a log of wood, being a human being, he must have moved here and there in order to save his life, and in that process he received the injuries on his person from different angles. The contention of the learned defence counsel that the deceased was murdered by some unknown assailants by rifle shots, is contrary to the record, because in the post-mortem report it is mentioned that the police Constable received a phial pertaining to pellets and card board which was extracted by the doctor from injury No. 1, the ocular version that this injury was received by the deceased from a close range, stands proved from the recovery of card board by the doctor from this injury during postmortem examination. The recovery of eight empties cartridges also supports the ocular version and the crime empties recovered at the spot match with the guns recovered from the appellants which lends independent support to the ocular version. The contention of the learned counsel for the appellants that the investigation is not fair and the recovery of the crime empties and the recovery of guns at the instance of the appellants should not be believed is devoid of force because when the I.O. Visited the spot, he found eight empties lying on the spot. If the I.O. Has failed to perform his duties efficiently and diligently, then the prosecution should not suffer for his negligence. These crime empties were sent to the Forensic Science Laboratory prior to the sending of the guns which eliminates the chances of fabrication of the evidence. The reading of the statement of the I.O. Shown that the I.O. Had a soft corner for the accused party. In the presence of this attitude of the I.O., it does not lie in the mouth of the defence to assert that the I.O. Has fabricated the evidence of crime empties and recovery of guns in this case. No doubt the recovery was witnessed, by the close relations but in the absence of any enmity the Police Officer is as good a witness as any other person would be, hence reliance can be safely placed on the recovery of guns at the instance of the appellants.
10. For the foregoing reasons, I find no force in this appeal which is dismissed accordingly.
11. The appellants are on bail, they should surrender to their bail bonds and be sent to jail to serve out the remaining portion of their sentences.