MAZHARUL HAQ, J.----Muhammad Sadiq, Riasat and Rajwali of village Pial near Rawalpindi, were tried by the Additional Sessions Judge, Rawalpindi, under section 302, P. P. C. Read with section 34 of the Pakistan Penal Code for the murder of Nazar Hussain of their village. Riasat and Rajawali were acquitted and Muhammad Sadiq was sentenced to death under section 302 of the Pakistan Penal Code. The convict filed an appeal which was accepted and the case was remanded for retrial to enable him to produce defence to meet the allegations put to him is his supplementary statement dated 9th March, 1971. On retrial, Muhammad Sadiq produced four witnesses in defence.
He was again convicted by the Additional Sessions Judge under section 302 of the Pakistan Penal Code and sentenced to death. His appeal and the connected murder reference are before us.
2. The three accused are inter-related. Muhammad Sadiq is married to Mst. Makhmal, a sister of Riasat. The grand-mother of Rajwali is a phuphi of Riasat. Murid Hussain (P. W. 13) who also belonged to Pial was employed as a Sepoy in Sialkot Cantonment. Riasat and Rajawali accused called him to the house of their relative Muhammad Siddique at Marala and induced him to marry Mst. Nargis another sister of Riasat. The marriage was performed at the house of Muhammad Sadiq on 28th May, 1969. Fazal Dad (P. W. 14), the father of Murid Hussain and their relation Nazar Hussain deceased were against the match. When they learnt about the marriage, they went to Murid Hussain and after showing compromising photographs (Exh. 1/2) of Mst. Nargis persuaded him to divorce her on account of her bad character before marriage. The divorce was notified to Union Council of Banda and notice Exh. P. H./1 was also published in the issue of daily "Jang" for 17th September, 1969. It was stated in the notice that Mst. Nargis was divorced because her parents bad represented her as a virgin although she had a loose character before marriage. It is alleged that the accused resented these proceedings as an insult to their family and they decided to murder Nazar Hussain.
3. Early in the morning of 22nd September 1969, Fazal Dad (P. W. 14), and his relative Manje Khan (P.
W. 16) left Pial for Rawalpindi in connection with the hearing of a case which the former had filed against two men under section 325 of the Pakistan Penal Code. On the way they saw Nazar Hussain deceased and his wife Mst. Khudeja (P. W. 15) going ahead of them. Nazar Hussain was a teacher in the Middle School of Maira Mohra. The couple was to obtain medicine from Sattar Dispensary for their infant son after which Nazar Hussain was to take leave from school for going to Rawalpindi in connection with the case of Fazal Dad, while his wife was to board a bus for her school. When they reached the rakh of Gammon the three accused emerged from a nearby depression and shouted to Nazar Hussain that they would teach him a lesson for instigating Murid Hussain to divorce his wife. Muhammad Sadiq had a revolver, Riasat had a gun and Rajwali was empty-handed. Riasat and Rajwali held the arms of Nazar Hussain while Muhammad Sadiq shot him in the back. Nazar Hussain fell down and died instanta--neously. The accused then went away.
4. Fazal Dad P. W. Went to Rewat Police Station and made the F. I. R. Exh. P. L. To Muhammad Hayat, Sub-Inspector (P. W. 17) at 9-30 a.m. After registering the case, the Sub-Inspector went to the spot and found Nazar Hussain lying dead there. He prepared the necessary documents and sent the dead body for post-mortem examination. He collected some blood-stained earth and shoes (Exh.
P. 5/1-2) of the deceased from the spot. Empty cigarette packets (Exhs. P. 6 and P. 7), match stick (Exh. P. 8/1-6), cigarettes stubs (Exh. 9/1-2, P. 10-12/1-4), were picked up from the depression where the accused were said to have waited for the arrival of the deceased. The Sub-Inspector also took possession of notice of divorce in Jang newspaper (Exh. P. 11/1) which Maji Khan had produced before him. Licence (Exh. P. 20) pertaining to revolver No. 22407 was recovered by the S. I. From the house of Dadan next day (23rd September 1969).
5. Gul Sher, District Inspector, Police, Rawalpindi also took part in the investigation of the case. As he was said to be too ill to appear in the Court of the Additional Sessions Judge for evidence, his statement recorded by the Committing Magistrate was transferred to the Sessions record. He stated that Muhammad Sadiq and Rajwali accused appeared before him in his office on 3rd October, 1969. Muhammad Sadiq produced revolver (Exh. P. 13) and five live cartridges (Exh. P.12/1- 5), which he took into possession. He also arrested Riasat, who offered himself for arrest on the following day i. e. 4 October, 1969. He further stated that Ishtiaq, younger brother of Riasat, appeared before him and confessed to have shot Nazar Hussain with revolver (P. 13). As there was no evidence to connect him with the murder, he was only challaned for possessing an unlicensed revolver.
6. The earth collected from the spot was made into a sealed parcel and sent to the Chemical Examiner. His report read with the report of the Serologist shows that it was stained with human blood. Revolvers (Exhs. P. 13 and P. 14) and spent bullet (Exh. P. 4) were made into separate sealed parcels and sent to the Forensic Science Laboratory, Lahore, where they were examined by the Ballistic Expert, Abdur Rashid (P. W. 9). According to his report and evidence, Exh. P. 4, which was extracted from the body of Nazar Hussain was fired from revolver (Exh. P. 13) and not from revolver (Exh. P. 14).
7. The autopsy was held by Doctor Abdur Rashid. He deposed to have found a gunshot wound of entry in the back 3' below the lower angle of right scapula. Internally the plura on the right lung, the pari---cardium and the heart were ruptured through and through. Bullet (Exh. P. 4) was found embodied in the muscle of the right of chest. In addition to these injuries, there was one abrasion each on the right cheek, bridge of the nose and near the right nipple. Death was due to shock and haemorrhage caused by gunshot wound.th
8. During the days of the occurrence, Muhammad Sadiq appellant was employed as a skilled labourer in Wing No. 502 of Central Workshop, Rawalpindi. Working hours of the Workshop in September, 1969 were 7-00 a.m. To 12 noon and 12-30 p.m. To 3-CO p.m. Siraj Din (P. W. 11), General Time-keeper of the Workshop deposed that the appellant approa--ched some of his clerks on the morning of 22-9-1969 at about 9.00 a.m. And asked them if he was marked present in the register of attendance that morning. Siraj Din, who over-heard the inquiry, told him that he must have been marked present if he had signed the relevant entry, according to rules. The appellant again came at 1.00 p.m. And took short leave but he never came back.
9. All the accused denied guilt. Riasat and Rajwali admitted that they got Murid Hussain, P.W.
Married to Mst. Nargis at the house of their relation in Head Marala as desired by him and his mother. The marriage was arranged there instead of Pial because Fazal Dad, P.W. Father of Murid Hussain and Nazar Hussain were opposed to it. Muhammad Sadiq corroborated them and added that lie was on duty in the Workshop at the time of the occurrence. He denied the production of live cartridges (Exh. P. 12/1-2) and revolver (Exh. P. 13) before the Inspector and explained that his (licensed) revolver was still in his house. He admitted that he left the Workshop at 1-00 p.m. On the day of the occurrence and explained that he did so because his Commanding Officer had told him to go and take steps to establish his innocence.
10. At his retrial, the appellant produced four witnesses in defence. Imdad Hussain (D.W. 1), Station House Officer, Rewat, deposed that under the orders of the trial Judge, he obtained key (Exh. D. 1) from the appellant in jail on 22nd October, 1972 and recovered revolver (Exh. D. 2) from an attache- case in his house. Raja Gulzar Khan (D. W. 2) deposed to have sold this weapon to the appellant.
Yahya (D. W. 3), arms dealer has deposed that their firm had sold revolver (Exh. D. 2), and not revolver (Exh. P. 13) to Raja Gulzar Khan although both weapons have the same number (22407). Mr. Qamar-ud-Din Bhatti, a handwriting expert of Forensic Science Laboratory, Lahore, was examined to show that the appellant had good relations with Murid Hussain, who had written to him a letter showing interest in Mst. Nargis.
11. Fazal Dad, Maji Khan and Mst. Khudeja are the three eye--witnesses in the case. They are related to one another and the deceased and are also common enemies of the accused. Fazal Dad is the father of Murid Hussain. Maji Khan and Mst. Khudeja are children of his sisters. Nazar Hussain deceased was also a son of one of his sisters. Mst. Khudeja wag brought up by him and was married with the deceased. Fazal Dad had brought a theft case against Tikka Khan son of Riasat accused and two near relatives of Muhammad Sadiq, appellant, named Arif and Meharban. He was deadly against the accused because they had tried to foist Mst. Nargis on his son. We cannot, therefore, safely rely on the evidence of the eye-witnesses.
12. Pial is only 20 miles from Rawalpindi and a bus leaves from there after every half an hour for that place. It was not, therefore, necessary for Fazal Dad and Maji Khan to go to Jatta for going to Rawalpindi. It was, explained that they went to Jatta because Fazal Hussain was also to go with them and in order to do so he was to obtain leave from his Headmaster from there. But as the latter was his next-door neighbour, he could have secured leave from him either on the preceding evening or early next morning, before leaving his village. Moreover, a compromise had taken place in Fazal Dad's case, it was not necessary for Nazar Hussain to go with which. Assuming that it was necessary to take him to Rawalpindi, they would normally go together from the village and not in batches. Mst. Khadija deposed that she went with her husband to Jatta because her son had become seriously ill on the preceding evening and she wanted to obtain medicine for him from the hospital at Jatta. This story seems to have been invented to make her an eye-witness of the murder of her husband.
13. The version of the murderous attack on Nazar Hussain is also auspicious. The appellant was a Naib Subedar and a licensee of at least two firearms. It was not, therefore, necessary for him to seek the help of his co-accused for committing the murder. The story that Riasat A.I, caught hold of an arm of the deceased with one hand while holding the gun in the other hand is incredible. He and Muhammad Sadiq could easily finish with him by firing their weapons straightaway. The site plan Exh. C/2 showed that the deceased had covered 12 karams before he was shot, but according to Mst. Khadija, he was shot from a distance of only two paces' No blackening or charring was found on his body. Dr. Abdul Majid was unable to give the distance from which the deceased was shot. The statement of Ahsan Ellahi, Patwari, P. W. 4, shows that Jawar crop was grow--ing in the vicinity of the scene of the occurrence, although this was denied by the eye-witness. Fazal Dad and Maji Khan were not, therefore, likely to have seen the occurrence from a distance. The fact that no eye-witness was fired at or hurt also suggested that they were not present nearby. Mst. Khadija admitted that when they began to weep and cry after the occurrence, a large number of people turned up from the neighbourhood, but none of them was produced to show that the witness who claimed to have seen the occurrence were present at the spot when they turned up. The S. I. Did not even record the statement of anyone of these persons though he claimed to have questioned some of them. It appears that Nazar Hussain was shot from behind when he was going alone to the school.
15. Even the trial Judge did not rely on the evidence of the eye-witnesses against other accused. He distinguished the case of the appellant because revolver P. 13 was produced by him and also because he made an inquiry about the marking of his attendance in the Workshop register on the morning of the day of the occurrence. But we are not impressed with this evidence. Only police officers were produced to prove the production of the revolver by the appellant. The trial Judge chose to rely on their testimony because he thought that their evidence was sufficient to prove the fact. Out of these police officers the Inspector and the Sub-Inspector were investigating officers while Mohammad Yousaf Foot Constable P. W. 10 v:,as working as a reader of the Inspector. The Sub-Inspector belonged to Rewat P. S. And his expla--nation that he happened to be present in the office of the Inspector in connection with the visit of Ishtiaq with revolver P. 15, one day earlier, was probably an excuse to account for his presence in the Inspector's Office in Rawalpindi at the relevant time. He deposed that the appellant was brought there by a lawyer but this lawyer was not produced as a witness. As the appellant had managed to escape after the occurrence and had reached the workshop in time to establish as alibi, he was not likely to have surrendered to the Police with the weapon of offence, eleven days later. The trial Court observed that he could have done so to save his relatives from police torture. But it was not necessary for him to risk his neck just to stop the harassm ent of his relatives by the police. It is noteworthy that the investigating officer did not care to search the house of the appellant although he had searched the house of his relative Dadan and recovered a revolver from there. It is also noteworthy that the Inspector did not appear as a witness in the Sessions Court. A private medical practitioner who was only a L. S. M.
Was examined to show that he was laid up with sciatica and P. U. O., but no attempt was made to show that it was dangerous for him to attend Court. It appears that the production of the weapon of offence by the appellant was stage-managed to fix the guilt of the appellant.
16. The appellant produced witnesses to prove that he was the licensed owner of revolver D. 2 which was recovered from his house and not revolver P. 13 which he was alleged to have been produced before the Inspector. Revolver D. 2 bears the name of the firm which had sold it but revolver P. 13 did not bear the name of any firm.
17. The prosecution also relied on the evidence of a Ballistic Expert who stated that the bullet which was extracted from the body of the deceased was fired from revolver P. 13 and not from revolver D.
2. But his opinion was based on the firing of a single test bullet which would not be sufficiently reliable. It was observed by Major Sir Gerald Burrard in his book The Identification of Firearms and Forensic Ballistics. On the whole, he was inclined to think that, from the point of view of `bullet evidence' alone the test number of test bullets is probably three." The prosecution relied on Muhammad Aslam v. The State (1970 SCM R 450) wherein it was observed that the above re--mark did not necessarily imply that the opinion formed on the basis of one test bullet had no value. But there was reliable ocular evidence against the accused in the cited case and the one 'bullet test' conducted by the expert was consistent with that evidence. This fact was also taken into consideration in determining the guilt of the accused. In the present case evidence of the eye- witnesses is so doubtful that even the trial Court did not rely on it. As already explained the evidence of alleged production of revolver Exh. P. 13 by the appellant is not dependable.
Consequently, expert opinion about the firing of the crime bullet from that weapon did not advance the prosecution case against the accused. Even if the appellant was assumed to have brought revolver P. 13 as there was no proof that he had shot Nazar Hussain with it, it would not be safe to convict him on the h 'is of the opinion of the expert in this case.
18. The cross-examination of the expert shows that his evidence is not intrinsically sound. He took the photo of only one side of the crime bullet. He admitted that the encircled portion T side of Exh. P.
T is not present in B side of Exh. P. T. And that optically the encircled portion in Exh. P. T. Is away from portion B in Exh. P. T. He also admitted that he ignored the marks of dissimilarity in portion B & T of Exh. P. T. And marked only the points of similarity. The witness had obtained only one year's training from the laboratory end had not even read the work of Major Sir Gerald Burrard.
19. The conduct of the appellant inquiring about the marking of his attendance in the workshop register was considered against him by the trial Court. The clerks whom the appellant was said to have approached were not examined as witnesses. The appellant could not have been admitted to the workshop without having been marked present and it was not therefore necessary for him to ask about the marking of his attendance. It would not therefore be safe to rely on the solitary statement of Siraj Din P. W. Who claimed to have over-heard the appellant enquiring from the concerned clerks. This evidence seems to have been introduced to prove guilty conscience of the appellant, Assuming that he had really made the alleged inquiry he may have done so after getting news of the occurrence, in order to bring his attendance to the notice of the office. As to his taking short leave at 10-00 a. m. And not returning thereafter he could have gone away to avoid his arrest as a suspect.
20. As we are not satisfied about the guilt of the appellant, we, there--fore, give him the benefit of doubt anti acquit him. His sentence of death is not confirmed.