' RUSTAM S. SIDHWA, J.---This judgment will dispose of criminal appeal CrA.165 of 1990 filed by Bashir Ahmad appellant/complainant seeking leave to appeal against the judgment of a learned Division Bench of the Lahore High Court dated 19-7-1988 accepting the appeal of All Muhammad and Nabi Ahmad respondents and acquitting them of all charges, and criminal appeal CrA.166 of 1990 filed by Ejaz Ahmad appellant against the same judgment dismissing his appeal and confirming his death sentence.
2. The prosecution case in brief, as disclosed by Bashir Ahmad complainant P.W.4, a real brother of Muhammad Hanif deceased, is that on 17-9-1982 at about 11 a.m. He alongwith Muhammad Abdullah P.W.7, Faqir Muhammad and Muhammad Aslam, was sitting in front of the baithak of one Muhammad Inayat. They were smoking Huqa when they noticed Nabi Ahmad, Ali Muhammad and Ejaz Ahmad accused, all armed with guns, and Muhammad Hussain and Noor Muhammad accused, both armed with sotas, came to the shop of his brother Muhammad Hanif deceased, which was just opposite to the baithak where they were sitting, Nabi Ahmad accused fired at Muhammad Hand, who was inside his shop, hitting him on the left knee. Ali Muhammad accused then fired a shot with his gun at Muhammad Hanif, which hit him on his lift arm, left shoulder and left side of chest. As a result of the said shots, Muhammad Hanif fell down inside his shop.
Thereafter, Ejaz Ahmad accused entered the shop and brought the barrel of his gun near the chest of Muhammad Hanif 'and fired at his chest. Muhammad Hussain and Noor Muhammad accused thereafter gave repeated blows with their respective sotas to Muhammad Hanif. After the commission of the offence, the accused persons came towards him (the first informant), but he entered the baithak of Muhammad Inayat and chained the door from inside. Thereafter, the accused persons ran away from the scene of occurrence alongwith their weapons. He (the first informant) then came out of Muhammad Inayat's baithak and went to his brother's baithak and found that his brother had already expired.
3. The motive for the occurrence was that the father of Ejaz Ahmad accused had been murdered, in which the relatives of Bashir Ahmad complainant were involved. Ejaz Ahmad accused, alongwith his relations,-had killed Muhammad Hanif deceased to avenge the murder of his father.
4. Bashir Ahmad complainant P.W.4 then proceeded to the police station, but meeting Ghulam Nabi, SI, Incharge Police Post Arrori on 17-9-1982 at 2 p.m. Near the bridge of Saim Nala, got his statement Exh. PB recorded by the said police officer. On the basis of the said statement, formal F.I.R. Exh. PB/1 was recorded by Jahangir Ali Khan Moharrir P.W.3 at 4 p.m. The same day.
5. After recording the complaint, Ghulam Nabi SI proceeded to the spot, where, after preparing the necessary papers, he despatched the dead body for post-mortem examination. He also collected blood-stained earth from the spot vide memo Exh. PH. He later arrested Ejaz Ahmad accused, who led to the recovery of gun P4, which was taken into possession vide memo Exh. PI.
6. Dr. Imtiaz Ahmad Gill P.W.5 conducted the post-mortem examination on the dead body of Muhammad Hanif on 18-9-1982 at 10 a.m. And found fire-arm wounds of entry on the front left side of chest, back of neck, left tubital fossa, left upper arm, left thigh and left knee and fire-arm wounds of exit on the left clevical, left pectoral region, left scapular region and back of left elbow. The second and third ribs were fractured and the pleura, left lung, the paricardium and the heart were found lacerated. The stomach contained 8 ounces of semi-digested food and the bladder was empty. Death was due to shock and haemorrhage as a result of the fire-arm wounds on the left side of the chest and the neck.
7. All the accused denied all the accusations that were levelled against them, including the gun alleged to have been recovered at the instance of Ejaz Ahmad accused. They all pleaded innocence and imputed their false involvement to enmity and party faction. They however admitted their inter se relationship and also the motive. They did not adduce any evidence in defence or appear personally in their own defence.
8. The learned trial Judge, relying upon the motive, the ocular account and the medical testimony convicted Ejaz Ahmad, Ali Muhammad and Nabi Ahmad accused under section 302/34, P.P.C. For causing the murder of Muhammad Hanif deceased, but gave the benefit of doubt to Muhammad Hussain and Noor Muhammad accused as there, appeared to be no blunt weapon injuries on the dead body of the deceased.
9. The learned Judges of the High Court, acting on the same material, only convicted Ejaz Ahmad accused, but acquitted Ali Muhammad and Nabi Ahmad accused, giving them the benefit of doubt.
10. On behalf of Ejaz Ahmad convict appellant it is submitted that Bashir Ahmad complainant P.W.4 and Abdullah P.W.7 are not witnesses of truth as they did not see the occurrence, which is reflected in the various improvements made by them at the trial. In this connection it is submitted that in the complaint Exh. PB Bashir Ahmad stated that the first fire was made by Nabi Ahmad respondent, which hit Muhammad Hanif on his left knee, the second was by All Muhammad respondent, which hit the left arm, left shoulder and left chest of the deceased, whereas the third fire was by Ejaz Ahmad appellant, which hit the deceased on the chest, after he had fallen. However, at the trial he stated that Nabi Ahmad respondent opened the attack by firing at Muhammad Hanif, while he was sitting in a chair inside his shop, followed by Ali Muhammad respondent, whose fire hit the deceased on the chest, whereafter Ejaz Ahmad appellant fired at the deceased on his back, while he was lying on the ground. Abdullah P.W.7 has also made similar improvements in his statement as Bashir Ahmad P.W.4. The skiagram connected with the post-mortem report shows two distinct fire-arm injuries at close range on the deceased, namely, a fire-arm wound 6 cm x 6 cm on front of left side of upper chest, close to midline, with margins burnt and tatooed, and a fire-arm wound 5 cm x 3 cm on the back of neck, with margins burnt and tatooed. Then there are two fire-arm wounds of entry on the left upper arm at a distance of about three to four inches from each other and two fire-arm wounds of entry on the left upper leg at a distance of three to four inches from each other. The remaining are fire-arm wounds of exit. According to the prosecution version the fire-arm wound of Nabi Ahmad respondent was on the left knee. There are actually two on the upper left leg, one on the knee and one slightly above. Both appear to be the part of one spread from a distance. According to the prosecution the fire-arm injury of Ali Muhammad respondent resulted in injuries to the left arm, left shoulder and left chest. Only two pellet wounds on the left upper arm are fire-arm wounds of entry, which by their distance from each other appear to be the part of one spread from some distance. According to the prosecution the fire-arm injury of Ejaz Ahmad appellant which was at near range hit the chest of the deceased. This is about one injury that corresponds with the injury on the front chest, close to midline. In view of the glaring discrepancies in the evidence of the witnesses as regards the nature of the injuries caused by the firing of Ejaz Ahmad appellant and All Muhammad and Nabi Ahmad respondents, it is not safe to rely upon the testimony qua Ejaz Ahmad appellant, merely because his injury corresponds closest to one of the fire-arm wounds of entry which can be found on the dead body of the deceased. In the light of the glaring discrepancies which compelled the learned Judges of the High Court to grant the benefit of doubt to the other co-accused, it is not safe to convict Ejaz Ahmad appellant on the same testimony, in the absence of strong corroboration or confirmatory circumstance which can conclusively prove the participation of the said appellant in the crime in instance. Since there is no such corroboration, we have no hesitation but to hold that Ejaz Ahmad appellant is also entitled to the benefit of doubt.
11. For the foregoing reasons, we accept criminal appeal CrA.166 of 1990 and set aside the conviction and sentence of Ejaz Ahmad appellant. He shall be set at liberty forthwith, unless required in any other case.
12. There being no merit in Criminal Appeal CrA.165 of 1990, the same is dismissed.