Muzffar appellant has filed this appeal to challenge his conviction under section 302, P. P. C. By the Sessions Judge, Lyallpur (vide his order dated the 13th December, 1972), for the murder of one Habib in Chak No. 566/GB, police Station Lundianwala, and his sentence of imprisonment for life.
2. The occurrence took place on the 26th February, 1972 at 10-30 p. m. The prosecution story is that the appellant suspected illicit connec--tions between his sister Mst. Haleema and the deceased.
On the date of occurrence the deceased knocked the door of his own house. At that time the appellant came therewith a .12 bore pistol and fired at the deceased. In response to the knock by the deceased, his brother Muhammad Amir (P. W. 8) opened the door. At that time Allah Diwaya (P W. 10) a cousin sister's husband of Muhammad Amir was also present. Both of them saw the occurrence. Muhammad Anwar (P.W. 9) saw the occurrence from a distance.
3. Habib was placed on a cot and was taken to the house where he died. Muhammad Amir learnt that the police was present in Chak No. 563 G B which is at a distance of 2 or 3 miles from the place of occurrence. Muhammad Amir went to that village and gave the first information report (Exh. P. A) at 1-30 a. m. On that very night.
4. The autopsy was conducted by Dr. Ahmed Saeed (P. W. 1) on the 27th February, 1972, at 3-00 p. m.
He found the following injuries on his person:-
(1) A firearm wound of entry 3/8'' x 3/8'' x chest cavity deep over outer side of left upper arm 3 -- '' below left shoulder. The margins of wound were charred.
(2) Three abrasions with charred edges each 1--''v 3/8'' over an area of 2'' x 1--''over front of left upper arm. 3" below shoulder.
(3) A firearm wound of entry 3/8'' x 3/8'' x opening into the chest over left side of front of chest just inner root of axilla, the margins were charred.
(4) Firearm wound of entry --'' x --'' x opening into chest front of left chest J' below injury No. 3, the margins were charred.
(5) A firearm wound of entry with charred margins 3/8'' x 3/8'' x opening into chest; front of left chest 1--''below injury No. 4 and 3'' outer to left nipple.
He found 5th and 6th ribs fractured corresponding to injury Nos. 3, 4 and 5. One pellet was removed from right 4th inter space. Left pleura was found pierced at several places corresponding to injuries Nos. 1, 3, 4 and 5. Right pleura was also found pierced and contained about one pint of clotted and liquid blood. Right lung was found pierced at two places at its anterior border. Left lung was found pierced at several places. Pericardium was found pierced at several places at both ventricles. All the injuries were caused by firearm. Injury No. 2 was simple in nature and the rest were dangerous to life. Death in the opinion of the doctor was due to shock and haemorrhage caused by injuries Nos. 1 to 5 which were sufficient to cause death in the ordinary course of nature. The death was instantan--eous. The time that elapsed between death and post-mortem examination was about 12 to 15 hours.
5. The appellant was arrested on the 28th February, 1972, at about 10 a. m. On interrogation he led the Sub-Inspector to the recovery of .12 bore pistol P. 1 which contained an empty cartridge P. 2 in its barrel from a Bhorola in the sheep-pan in his house. He also got recovered live cartridge P. 3 from that Bhorola. The pistol and the empty were sent to the Fire Arms Expert who found that the empty had been fired from the same pistol.
6. Muhammad Amir (P. W. 8), Muhammad Anwar (P. W. 9) and Allah Diwaya (P. W. 10) appeared as eye-witnesses while Sh. Abdur Rashid, Fire Arms Expert appeared as P. W. 12.
7. After going through the record carefully I find that it is not safe to convict the appellant on the eye-witness account of P. Ws. 8, 9 and 10. Muhammad Anwar is stated to have seen the occurrence from a distance of 70 feet. The learned Sessions Judge observed that from a distance of 70 feet it is not possible to identify a person even in the clearest moon light I agree with the learned Sessions Judge that it was not possible for Muhammad Anwar (P. W. 9) to identify the appellant from such a distance. His testimony, therefore, cannot be relied upon.
8. Muhammad Amir and Allah Diwaya are closely related to the deceased. It appears clear that even they had not seen the occurrence.
9. According to the notes on the site plan Exh. P B 1, the occurrence was seen by these witnesses from inside the house but according to the witnesses they had come out in the lane and had seen the occurrence from there. The site plan was prepared by Aurangzab (P. W. 5). He stated that he had prepared it at the pointing out of the witnesses. He further stated in cross-examination that place of presence of two witnesses were shown in the site plan at their pointing out. It appears from the site plan that this occurrence could not have been seen by the witnesses from inside the house. According to the medical evidence, the death was instantaneous. These witnesses stated that the deceased died after a cot was arranged lo bring him and he was brought on the cot to the Chappar. The medical evidence contradicts the two witnesses in this respect. It is, therefore, doubtful whether these persons had at all seen the accused appellant firing shot on the deceased.
10. The first information report is also belated in the circumstances of this case. The police station was at a distance of 2 or 3 miles. The occurrence took place at 10-30 p. m. But the first information report was recorded at 1-30 a. m. i.e. About 3 hours later. This delay has not been explained. It is said that Muhammad Amir took Faiz Muhammad with him and started to the police station at 12- 00 or 12-30 to report the matter. In cross-examination, Muhammad Amir P. W. 8, stated that they had walked to the police station and did not go on bicycles. Muhammad Siddique (P. W. 6) the paternal cousin of the deceased, who identified the dead body at the time of post-mortem examination stated that Faiz Muhammad and Muhammad Amir P. Ws. Had gone from the village on bicycles to report this murder. Clearly, therefore, the story of walking to the police station has been introduced to explain the delay in the first information report. It is, therefore, possible that during the period the witnesses may have been trying to find out the identity of the assailant. The mere evidences of the recovery of firearm is not sufficient for the conviction of the appellant.
11. I, therefore, allow this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith, if he is not required in any other case.