JUDGMENT MISS TALLAT YAQUB, J.- Khizar Ali appellant before us was tried along with Ghulam Shabhir, Azhar Hussain and Mazhar Taqi for having murdered Basharat Ali deceased by Sher Zaheer Ahmed Khan, learned Addl: Sessions Judge Sheikhupura u/s 302/34 PPC.
2. The learned trial court vide judgment dated 20.7.91 convicted the appellant u/s 302 PPC and sentenced him to suffer death. He was also sentenced to pay a fine of Rs. 10,000/- or in default to undergo R.I. For one year. The learned trial court also directed him to pay Rs. 25,000/- as compensation to the heirs of the deceased, or in default he was to undergo R.I. For two years. His co- accused namely Ghulam Shabhir, Azhar Hussain and Mazhar Taqi were, however, acquitted.
The convict filed an appeal in this Court while the learned trail court sent a reference u/s 374 Cr.P.C, to this Court for the confirmation of the death sentence. We propose to dispose of both these matters through this judgment.
3. The prosecution story as unfolded by Hidayat Ali PW-4 in his statement Ex. P.A. Made before Amanullah Inspector/SHO PW.10 at Adda Machhike, was that on the night between 11th & 12th ,of August 1988 he was asleep in the baithak of Murid Hussain along with his son Basharat Ali deceased and Irshad Ali (not produced). At about 1.30 A.M, the complainant and Irshad Ali heard a noise upon which they were up and saw the appellant armed with single barrel 12-bore gun, Ghulam Shabhir armed with carbine, Ghulam Azhar Hussain and Mazhar Taqi were armed with sotas. Azhar Hussain raised a lalkara that Basharat Ali and others should be taught a lesson for having given Rishta to Muhammad Sharif. Khizar Ali appellant fired at Basharat Ali deceased with his single barrel 12-bore gun which hit him on the right side of the fore-head who died at the spot.
All the accused decamped from the spot while raising lalkaras and firing in the air. The occurrence was witnessed by Amir Hussain (not produced) and Dost Ali PW.7 who were present on the nearby Dera of Murid Hussain.
4. According to the complainant, motive for the murder was that Mst. Sakina Bibi, a sister of appellant was married with Muhammad Sharif s/o Bukhshi but on account of differences he divorced her. Later on, the complainant gave the hand of his daughter, Mst, Halima Bibi to said Sharif. The appellant and the acquitted accused bore grudge on this score.
5. The investigation of this case was conducted by Amanullah Inspector/SHO PW-10 who after recording the statement Ex. PA of Hidayat Ali PW-4 on the basis of which a formal FIR Ex. PA/1 was recorded by Muhammad Yaqub ASI PW-1, went to the spot, and took into possession blood-stained earth from there vide memo Ex. PB, prepared inquest report Ex. PH and sent the dead- body to the mortuary for post-mortem. He also took into possession Khais. P-7, pillow P-8 and a cot P-9 (All blood-stained) from the roof of the Kotha vide Ex. PE. He also recorded the statement of the witnesses u/s 161 Cr.P.C, and arrested Azhar and Mazhar (since acquitted) on 27.8.88 and two days later he arrested the appellant and Ghulam Shabhir (since acquitted). At the time of his arrest the appellant was found in possession of a single barrel 12-bore gun (P-1) which was taken into possession vide a memo Ex.PK. Since the gun was unlicensed, therefore, a case u/s 13 of the Arms Ordinance XX of 1965 was also registered against him. On 31.8.1988, the complainant produced a lantern before him in the police station which was taken into possession vide as memo Ex.P.C.
6. After completion the investigation he filed the challan in the Court.
7. Doctor Zakaullah, who had performed the post-mortem of the deceased could not be produced because his whereabouts were not known and, therefore, post-mortem report Ex.PG was brought on record through Dispenser Ghulam Mustafa PW-9 who had been working with Dr. Zakaullah and was conversant with his hand writing. According to the medical report the deceased was found to have sustained the following injuries:-
7. A Fire arm wound of entry measuring 2.5 cm oval diameter with lacerated margins on right side of forehead, 5 cm vertically above the mid part of right eye-brew and around the wound blackish burning of Skin in an area measuring 6 cm. On deep dissection the underlying scalp bone was fractured having hole in it. Menages damaged, brain matter damaged, clotted and unclotted blood was present in the cranial cavity. A plastic body was recovered from the right hemisphere of brain. Eight metallic particles were recovered from deep part of right hemisphere of brain and one from left hemisphere of brain. The material recovered from the cranial cavity, sealed and handed over to the police.
All the other organs of thorax and abdomen were healthy. Stomach contained digested food. Infall and large intestines contained facus and gases. Bladder contained 3 Ozs. Of urine.
8. In the opinion of the Doctor, the injury leading to skull of fracture, brain damage and intra cranial haemorrhage, resulted in shock and death. The injury was ante mortem and caused by fire arm. It was grievous.
The probable duration between the injury and death, was within a few minutes, and between death and post-mortem examination, within 24 hours.
9. The case of the appellant before the trial Judge was that he was involved in the case due to guess work and suspicion and that he had no occasion whatsoever to commit the murder. The occurrence, according to him, took place on the night when the PWS were not present at the spot and that all the male members of his family had been involved in the case because of malice.
10. We have gone through the record of .The case with the able assistance of the learned defence council and the learned counsel for the State as well as the learned council for the complainant.
11. We are not impressed by the evidence of PW-4 Hidayat Ali and Dost Ali PW-7 who claimed themselves to be eye-witnesses PW-4 is the father of the deceased. He resides in Jia Mausa while the place of occurrence is within the area of Police Station Saddar District Sheikhupura. He was unable to tell the distance between Jia Mausa and the place of occurrence. He could not even affirm or deny that the distance was less than 40 miles or more. When cross-examined by the learned defence council, he could not tell the number of persons attracted to the scene of tragedy.
We have every reason to believe that he was called from Jia Mausa to become an eye witness of the case as it was an unwitnessed occurrence. PW-7 is a cousin of the deceased. He could not even tell the exact height of the room where the occurrence took place. According to him for or five shots were fired but we noticed that no crime empty was found- at the spot. He belied the statement of the draftsman who stated that he prepared the site plan on the pointation of the PWS.
As the occurrence took place on the 26th on lunar month at 1.30 a.m. When there was no moon on the horizon, so it was a pitched dark night, hence it was not possible for the eye-witnesses and the complainant to correctly recognise the assailants. It appears that the assailants have been named after speculation and deliberation. In any case Hidayat Ali PW complainant had given the hand of his daughter to Muhammad Sharif and if the appellant bore grudge for the marriage he should have murdered the complainant instead of murdering Basharat deceased. We find that the eye- witnesses are interested and related inter-se and their evidence to carry conviction on a capital charge cannot be accepted, unless supported by some strong circumstance to over-come the inherent doubt, which is lacking in the instant case. It was contended by learned counsel for the defence that no independent witness from the locality had come forward to give evidence.
Contention of the learned counsel for the defence rings true. We find that Amir Hussain son of Inayat had allegedly seen the occurrence but he was not- produced in the Court and was given up as un-necessary. The presumption is that has he been produced in Court, he would have deposed against the prosecution. Since he was the only independent witness mentioned in the FIR, therefore, his non-production before the trial court is fatal to the case of the prosecution.
12. The recovery of single barrel gun from the appellant is highly doubtful. The appellant was arrested on 29.8.1988 while the occurrence took-place on 11.8.1988. It is unbelievable that for more than seventeen days he would keep the gun with him to present as a souvenir to the police. Even otherwise, the recovery of gun is of no help to the prosecution as no empty was recovered from the scene of the occurrence. The introduction of lantern after a lapse of almost twenty days makes the case of the prosecution more doubtful. If the lantern was at the spot at the time of the occurrence it would have been taken into possession by the investigating officer or he would not have omitted it at the time of the inspection of the spot. We arc of the firm view that the lantern was introduced after due deliberation in order to strengthen the case of the prosecution but instead of strengthening, it has weakened the entire case of the prosecution.
13. The motive as set up by the prosecution can hardly be believed. PW-7 Hidayat Ali admitted in the cross-examination that no untoward incident had happened since the marriage of Mst. Halima Bibi with Muhammad Sharif till the present occurrence although the spouses had five children. This shows that the accused party had accepted the factum of marriage and, therefore, they could not have any motive to attack and commit murder of the deceased.
14. The medical evidence belies the ocular evidence in that according to PW-7 the deceased took his last meal after the sun-set and before PW-7 had offered his mughrab prayer. In the post- mortem report we find that the stomach contained partially digested food while small intestine and the large intestine contained faecal gases. The time of death can be ascertained with some certainty form the degree of digestion as also from the stomach contents. The presence of partially digested food in the stomach shows that the deceased was done to death% within 2/3 hours after the mughrab prayers. The story of the prosecution that the deceased was murdered at 1.30 A.M on 11.8.1988 is completely belied by the medical evidence.
15. For all the foregoing reasons, we proceed to accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith, if not required in any other case. The reference is rejected.