' This is an appeal by Abdul Majid son of Sher Ali against the judgment of the learned Sessions Judge, Multan dated 23-11-1970. He was tried for an offence under section 302, P. P. C. For the murder of Mst. Bilqis. He was acquitted of that charge but was convicted by the learned Sessions Judge of an offence under section 307, P. P. C. On the ground that the death would not have been caused if a proper treatment had been given to the deceased. He was sentenced to transportation for life under section 307, P. P. C. Hence the present appeal.
2. The facts of the case briefly are that Muhammad Rafi P. W. 1 the husband of Mst. Bilqis deceased was running a dairy farm in his house in Mumtazabad, Multan. Six or seven months before the occurrence the accused/appellant who was employed at WAPDA Grid at some distance from the locality of Mumtazabad, came there in a state of intoxication. Rafi P. W. Turned him out of the locality. Three or four days later when Rafi P. W. Was returning from the Marker, Abdul Majid appellant stabbed him in the belly with his knife and was challaned under section 307, P. P. C. He was admitted to bail after about 14 months. It is alleged that on 13-3-1969, he came to the house of Rafi P. W. The latter's wife Mst. Bilqis (deceased) started quarreling with him as to why he had come there when he had enmity with them. The appellant and Mst. Bilqis started exchanging abuses. Rafi P. W. And three of his customers namely, Imam Bakhsh P. W. 2, Muhammad Ramzan P. W. 3 and Muhammad Ata P. W. 4, were present in a room of the house which was being used as a dairy farm.
On hearing the noise of the quarrel all of them ran into the courtyard to see what was happening.
They saw the accused/appellant and Mst. Bilqis exchanging abuses near the door of the house.
The appellant was standing at the entrance with a pistol. Mst. Bilqis picked up a brick to throw it at him, but the appellant fired his pistol which hit her in the chest. She fell down on receiving the injury.
Rafi P. W., and his companions tried to apprehend the accused/ appellant but he ran away and managed to escape in a Rickshaw standing nearby. Rafi P. W. Then took Mst. Bilqis, who was still alive, to Nishtar Hospital, Multan where she was admitted. She succumbed to her injury on 25-4- 1969 i.e , after a month and 11 days. After she was taken to the hospital the hospital authorities informed the police at P. S. Mumtazabad. On receiving the information, Ovaris Bakhsh A. S. I., (P. W.
8) rushed there. He found Mst. Bilqis lying unconscious. He, therefore, recorded the statement Exh. P.
B. Of Rafi P. W. He sent this statement to the Police Station for the registration of a case. The formal P.
1. R. Is Exh. P. B./1. The doctor told to A. S. I. That Mst. Bilqis was not in a fit condition to make a statement. On the next day however, the doctor informed him that she was able to make a statement. The A. S. I. Therefore, recorded her statement under section 161, Cr. P. C. The accused was produced by his mother on 20-3-1969 and was arrested by the A. S. I. As mentioned above Mst.
Bilqis expired on 25-4-1969, whereupon the A. S. I. Prepared the inquest report and sent the dead body for post-mortem examination. The A. S. I. Also got a site-plan Exh. P E. Prepared by Bashir Ahmad Draftsman P. W.
7. The accused was then challaned and subsequently committed to stand his trial before the Court of Sessions.
3. At the trial the prosecution produced ten witnesses in support of its case. Four of them were eye- witnesses. They are Rafiq P. W. I. Imam Bakhsh P. W. 2, Muhammad Ramzan P. W. 3 and Muhammad Ata P, W.
4. The draftsman proved the site-plan. Ovais Bakhsh A. S.
1. P. W. 8, is the investigating officer. Dr. Abdul Wahid Khan, P.W. 9, Medical Officer Civil Hospital, Multan, conducted the post-mortem examination. Dr. Qazi Abdul Wahid, P. W. 10, C. M.
0. Nishtar Hospital, Multan, is the doctor who treated the deceased while she was alive.
4. The accused/appellant when examined, simply denied the allegations and stated that he was falsely implicated. He said that he was lame and could not run and the story of his running away was therefore false. He produced an X-ray photograph and the report of the Radiologist in respect of fracture of his pelvis bone.
5. I have heard the learned counsel for the parties and have gone through the record. The learned counsel for the appellant contended that Rafi P. W. Was an interested witness while the other three were procured witnesses and were not present at the spot. He submitted that in any case they were 'chance witnesses' and that from the evidence of all the four eyewitnesses it was clear that they had not seen the occurrence. He admitted that the deceased had been shot in the belly but said that the prosecution had not been able to prove, beyond reasonable doubt, that it was the appellant who had fired the shot.
' It will be noticed that the prosecution evidence consists of motive, as stated by Rafi P. W. 1 the statements of the four eye-witnesses; the statements of the two doctors; the investigating officer and the Draftsman. There is no independent and positive corroborative evidence in support of the ocular evidence. The statement of Mst. Bilqis (deceased) recorded by the A. S. I., too, could not be used as dying declaration as it was merely a statement under section 161, Cr. P. C. It was not recorded in the presence of the doctor nor did the A. S. I. Care to get it recorded through a Magistrate A or any other independent official and the prosecution never pressed it as a piece of evidence against the accused/appellant. The case, therefore, hinges on the reliability of the witnesses. It may therefore, be mentioned that out of four eye-witnesses Muhammad Ramzan P. W.
3, and Muhammad Ata P. W.
4. Had resiled from their earlier statements and had to be cross-examined by the learned P. P.
Muhammad Ata P. W. 4, in fact did not support the prosecution case at all. Imam Bakhsh P. W. 2 and Ramzan P. W. 3 admitted that they did not live in the locality and stated that they had come to the shop of Rafi P. W. To purchase cream. As such they were 'chance witnesses' who according to the prosecution itself merely happened to be there at the time of the occurrence. Rafi P. W. 1 has admitted that he had seen stabbed by the appellant some time before the incident because he had turned him out of the locality three or four days earlier. In fact this is said to have constituted the motive for the offence. This witness was therefore definitely hostile and inimical towards the appellant. a Moreover he is the husband of the deceased. He can, therefore, be safely termed as "interested witness." He has stated that he reached the scene of occurrence and saw the accused/appellant firing at his wife. He hai stated further that he chased the deceased who was admittedly armed with a pistol. This does not appear to be true because in view of the above- mentioned motive, the only possible reason for the appellant to have come armed with a pistol, to the house of Rafi P. W. Could be to shoot and kill him. There was no point in the appellant coming all the way and killing only the wife of Rafi P. W. Is also contradicted on the point that on coining out of the room he saw the accused/appellant quarrelling with his wife, by the fact that a 5i feet high gate as well as a pardah wall stood between the room and door where the occurrence took place.
The above-mentioned wall is clearly shown in the site-plan as '31_14.3 ugh 1141" Bashir Ahmad Draftsman who prepared the site-plan has admitted that in front of the southern door of the house inside the courtyard there was a wall situated at a distance of five or six feet. Rafi P. W. However, denied the existence of this wall by saying that- "No wall stands behind the southern door of my house to intercept the view into the courtyard."
' It is also unbelievable that none of the persons living in the vicinity or passing on the road, which was a thoroughfare, was present to see the occurrence. As a matter of fact Rafi P. W. Has gone to the length of saying that no one from the locality reached the place of occurrence before he left for the hospital. He has also stated that a mosque is situated near his house but no one came even from there. He has stated further that - "No other person reached the place of occurrence before I left for the hospital."
' This is indeed unbelievable because if the incident had taken place as stated by the witnesses, residents of the locality as well as passersby would have gathered within a short time. I feel his above-mentioned denial is a clear attempt to explain the non-production of witnesses from the locality. Muhammad's denial is a clear attempt to explain such it is not necessary to discuss the same. I am therefore left with Imam Bakhsh P. W. 2 and Muhammad Ramzan P. W.
3. The occurrence took place in the house of Rafi P. W. Which is situated in a locality known as Mumtazabad in Multan City while Imam Bakhsh P. W. 2 was admittedly resident of another locality known as Qasimpura Colony. The accused/appellant was admittedly employed in WAPDA at a Grid at a distance of two miles from the place of occurrence. Muhammad Ramzan P. W. 3 is also resident of Qasimpura colony. He has stated that he has seen the appellant once or twice six months or one year before the occurrence. In view of the above facts it is doubtful whether these witnesses could identify the accused. No identification parade was held by the investigation to test their memory. Their conduct is also strange inasmuch as both of them have stated that immediately after the occurrence they went to their houses. None of them helped Rafi P. W. To carry Mst. Bilqis to hospital nor did any one of them report the matter to the police. This too, casts a doubt with regard to their presence at the spot. They, too, have stated that no one from the locality came there as long as they stayed at the spot. Both of them have categorically denied the presence of any pardahwall behind the southern door of the house although its existence has been admitted by the Draftsman who has also shown it in the site-plan. Obviously the reason for their denial as to the existence of this wall is that it could otherwise have been argued that the wall hindered the vision of P. Ws. And they could not, possibly, have witnessed the occurrence.
' Muhammad Ramzan P. W.
3. Has stated that he was present in the room of Dairy Farm when he heard the report of a pistol. He has stated before the Committing Magistrate that none of the witnesses chased the accused.
Imam Bakhsh P. W. 2 has also stated that- "I went to the place of occurrence from the room of the Dairy Farm on hearing the pistol report,"
' This clearly contradicts the prosecution version as given by Rafi P. W. From the above-noted admission of these two witnesses it is evident that they had proceeded to the spot only after the accused had already fired a shot at the deceased,
7. As a result of the above discussion I feel that the evidence of these witnesses is not worthy of reliance. As already mentioned there is no other corroborative evidence. The net result is that I find that the prosecution has not been able to prove its case beyond reasonable doubt. Consequently I accept the appeal; set aside the impugned judgment and acquit the appellant. He should be set at liberty forthwith unless he is not wanted in any other case.
8. Before parting with the case I may mention that Muhammad Ata P. W. 4 has evidently committed a perjury before the Committing Court. He fully supported the case before the learned trial Court. In his examination-in-chief he stated as follows : "I did not go to the place from where the pistol report had been heard and returned to my house taking away my milk. I do not know who was hit by the pistol shot. I have not seen the accused."
' When the P. P. Examined him he stated as follows :- "I did state before the C. M. That hearing pistol report I went out and saw Mst. Bilqis lying in the door of Rafi P. W. I also stated before the C. M. That the accused was running away. I did not state before the C. M. That Ramzan Rail, Allah Ditta etc. Were present at the place of occurrence (confronted so recorded). I had not identified the accused nor saw him running towards the west. I did not state before the C. M. That the accused was running towards the west. (confronted so recorded)."
' There is an obvious contradiction between his statement at the trial and the one made by him before the Committing Magistrate, both of which were on oath. Let a notice be issued to him to show cause as to why he should not be prosecuted for perjury.