' JAVID IQBAL, J.-Ghulam Farid son of Fazil, aged 35 years, has been convicted under section 302, P.
P. C. For the murder of Nizam with a 12 bore single-barrelled gun (Nizam being Khalazad of the father of Ghulam Farid), and sentenced to death vide judgment dated the 19th of June, 1971, of the Sessions Judge, Sahiwal. His appeal and reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.
2. According to the F. I. It (Exh. P. C.) the occurrence took place at 6-15 p.m. On the 5th of April, 1970, within the Abadi of village Naman Sial, Tehsil and District, Sahiwal at a distance of 10 miles in the direction of North from Police Station Harappa. The F.
1. Ps. Was lodged at Police Station Harappa by Muhammad P. W. 8, brother of Nizam deceased at 3- 00 a.m. On the 6th of April, 1970, and it was recorded by Abdul Karim S.
1. P. W. 13 who also investigated the case.
3. The motive for offence as disclosed in the F. I. R. Is that a Watt& (exchange) marriage agreement was arrived at between Ghulam P. W. 12, brother of Nizam deceased and Muhammad P. W. On the one slice and the appellant on the other. According to this agreement Ghulam P. W. Was to give the hand of his daughter Mst. Bashiran in marriage to the appellant and in exchange the appellant was to marry his cousin sister to the son of Ghulam P. W., namely, Bashir. But the exchange deal fell through because the appellant refused to comply with its terms. Consequently Ghulam P. W. Also refused to many Mst. Bashiran to the appellant and instead decided to give her hand in marriage to Yousaf son of Nizam deceased. This happened two months prior to the occurrence and on account of this it is stated that the appellant bore a grudge against Nizam deceased.
4. In the F. I. R. The occurrence is reported to have taken place in the following manner. Muhammad P. W. Who resided in a different Chak, (which is at a distance of about 15 miles from village Naman Sial), 3/4 days prior to the occurrence, had come to village Naman Sial in order to demand for his son the hand of the daughter of farid P. W. 11, son of' his father's sister. His brother Nizam deceased resided in this village. On the day of occurrence at about 6-15 p.m. While Muhammad P. W. And Nizam deceased were sitting together in the 'hula of Nizam, the appellant came there covering his shoulder with a chaddar and asked Nizam that his father Full who was sitting outside at the shop had sent for him as he was to discuss the sale of wood with Nizam. Nizam did business in buying and seeing wood. Therefore, he left with the appellant. When both of them had covered a aistance of 40/50 karam3, the appellant took out the gun which he had concealed under his chaddar and fired a shot at Nizam. On hearing the fire report Muhammad P. W. Rushed to the spot. In the meantime, Muhammad Din P. W. 9, Melia P. W. 10 and Fend P. W. 11, had also arrived at the spot on hearing the gun report. In the presence of these eye-witnesses ths appellant fired a second shot at Nizam which hit him on the lower portion of his neck and be fell down. Nizam died on the spot. The eye-witnesses tried to apprehend the appellant but he threatened them with his gun and ran away alongwith the gun.
5. The recoveries in this ease are two crime empties P. 2 and P. 3 picked up from the place of occurrence at 9-00 a.m. On the 6th of April, 1970, and taken into possession vide memo. Exh. P. G.
The attesting witnesses of this recovery besides the Investigating Officer, namely, Abdul Karim S. I. P.
W. 13, are Wall Muhammad P. W. 6 and Thiraj P. W.
5.
' According to the report (Exh. P. N/1) dated the 9th of April, 1970, of Muhammad Sarwar P. W. 7, Fire Arms Expert, the crime empties marked by him as C. 1 and C. 2 ,examined as P. 9 and P. 10 in the Sessions Court) had been fired from gun P. 1, stated to have been recovered from the appellant.
12 bore single-barrelled gun P. 1, was recovered at the instance of the appellant after his arrest at 3-00 p.m. On the 6th of April, 1970, and was taken into possession vide memo. Kith. P. D. The attesting witnesses of this recovery besides Abdul Karim S. I. P. W. Are Wall Muhammad and Muhammad Din P. Ws.
6. Dr. Sarfraz Ahmed P. W. 1 conducted the post-mortem examination on the dead body of Nizam at 4-D0 p.m. On the 6th of April, 1970. And found the following injuries on his person : (1) Multiple fire- arm wounds blackened 1/10' x 1/10' each, front of neck, upper part from middle of chest, and upper front of chest, sternum. Under this injury right as well as left lungs were pierced at various places and the chest cavity was full of blood ; and (2) a fire-arm wound 1/10'x 1/10' on the side of face close to the nose. According to the doctor the stomach was 2/3rd full of semi-solid food and bladder contained about 4 oz. Of urine. In his opinion the cause of death was haemorrhage as a result of injuries to the lungs and fracture of rib bones. These injuries were sufficient in the ordinary course of nature to cause death. The injuries had been caused by a firearm.
7. The prosecution has produced four eye-witnesses who are all related to Nizam deceased.
Muhammad P. W. The first informant, is brother of Nizam deceased. Muhammad Din P. W. Is his uncle. Melia P. W. Is the paternal cousin of the father of Nizam deceased and Farid P. W. Is cousin of Nizam deceased as well as related by marriage to him. However, he is also related to the appellant as his father and the father of the appellant were cousins inter se. But that makes no difference because the appellant was also related to the complainant party, Nizam deceased being Khalazad of the appellant's father.
8. The appellant in his statement before the trial Court totally denied participation in the occurrence. He disowned gun P. 1 and stated that the crime empties had been planted on him. He further stated that he was innocent and had been falsely implicated in this case.
9. We have heard learned counsel for both the sides and have carefully perused the record.
Although motive for offence is not relevant, in our opinion, in the present case it is too weak to support the prosecution version. After the breakup of the exchange deal, if the appellant could have a grudge against anyone it would be either Ghulam P. W. Or Yousaf son of Nizam deceased to whom /Vest. Bashiran was to be married. We fail to understand how the appellant could bear a grudge against Nizam in the circumstances of the case because none of the prosecution witnesses had stated that Nizam was responsible for breaking up the exchange deal. We also note that according to the prosecution version the occurrence took place at 6-15 p.m. In the village Abadi and in spite of it the e),e-witnesses who were attracted to the scene of occurrence were all related to Nizam deceased and not a single independent witness could be produced. Furthermore, the eye-witnesses are not only closely related to Mauna deceased, they also appear to be chance witnesses. Muhammad P. W. Had stated that he resided in a different village which was at a distance of about 15 miles from the place of occurrence. He stated that he had come to village Namara Sial in order to seek the hand of the daughter of Farid P. W. For his son. He had further stated that after the occurrence he remained sitting there until 9-00 or 9-30 p.m. Mourning the death of his brother and that during this period he was not waiting for any conveyance or for any particular person. The occurrence is r*ported to have taken place at 6-15 p.m. Ordinarily in such a case steps would be taken in order to lodge a report with the police immediately or shortly after.
But in the present case Muhammad P. W. Remained at the place of occurrence for more than three hours and without any cogent reason. It is, therefore, probable that he may have been called to the spot from his village after the occurrence when Nizam his brother was found dead. The account given by the eye-witnesses is also not in conformity with the medical evidence in respect of the time of occurrence as well as the distance from which the shot was tired at Nizam by the appellant.
According to the eye-witnesses the occurrence had taken place at about 6-15 p.m. But according to the medical evidence the stomach of Nizam deceased was 2/3rd full of semi-solid food which indicated that he had been murdered about one or two hours after he had taken his meals. On the day of occurrence the time of sunset was 6-27 p.m. It was 27th of Muharram according to the Lunar month and the first new moon was to be sighted on the night of the ( the of April. Therefore, on the night in question there was no moon at all and it was a dark night, Generally speaking in villages people take their evening meals at sunset time. If this was so, then it is probable that the occurrence took place between one to two hours after the sunset time which would be between 7- 30 and 8-30 p.m. Again according to the eye-witnesses Nizam deceased was at a distance of 1i/2 karams from the appellant when the latter had fired at him. But according to the medical evidence the multiple fire-arm wounds on the body, of Nizam deceased were blackened which according to the doctor was synonymous with burning. This indicates that Nizam deceased was fired at from a very close distance and not from a distance of karams. Keeping these considerations in view we are of the opinion that it is not safe to rely on the ocular testimony unless and until it is corroborated by independent evidence which in the present case is also lacking, First of all, the recovery of crime empties P. 2 and P. 3 from the spot is doubtful. According to Muhammad P. W., the first informant, he did not notice the crime empties lying at the place of occurrence although Melia P.W. Had stated that he had seen two crime empties lying at the spot. In the recovery memo.
Exh. P. G. It is stated that two crime empties P. 2 and P. 3 were picked up from the spot and that both these crime empties indicated that the cartridges were made in Hungary. According to Thiraj P. W.
Crime empties P. 2 and P. 3 were picked up from the spot at about 9-00 a.m. On the 6th of April, 1970. The statement of W Ali Muhammad P. W. Is also to similar effect. However, according to Abdul Karim S. I. P. W. These empties were not sent by him to the Forensic Science Laboratory as it was the duty of Muharrir to do so. He had stated before the Committing Magistrate that crime empties P. 2 and P. 3 were recovered by him and made into a sealed parcel but he volunteered that the empties which he had recovered were made in Hungary and that he had mentioned this fact in the recovery memo. But that the empty marked as P. 2 was not one of those which he had picked up and that the empty marked as P. 3 was the test empty. Hameed Ulan Head Constable Muharrir Malkhana was produced as C. W.
1. He stated that two sealed parcels, one containing the gun and the other containing the two empties, were received by him in the Malkhana on the 29th of July, 1970, almost four months after the occurrence. He stated that these empties were P. 9 and P. i0 and were related to case No, 54 of 1970. Muhammad Sarwar P. W. Fire Arms Expert stated that he received a sealed parcel containing two crime empties which were marked as P. 1 and P. 2 by him on the 13th of April, 1970. The crime empties marked by him as P. 1 and P. 2 were examined as P. 9 and P. 1U in the trial Court. We examined the crime empties which were four in number. Two of the crime empties marked P. 2 and P. 3 indicate that one of them was manufactured at Wah Factory Pakistan and the other was made in USSR. The other two crime empties were both made in Hungary and marked as P. 9 and P.
10. Apparently crime empties marked as P. 9 and P. 10 were sent to Muhammad Sarwar P. W. On the 13th of April, 1970, i,e, eight days after the occurrence and not crime empties marked as P. 2 and P.
3. If the crime empties recovered from the spot were marked as P. 2 and P. 3 then these were not sent to the Fire-arms Expert. How instead of two crime empties four were mixed up or involved in this case we cannot say. There is no method known to us by which this confusion could be resolved. Crime empties P. 2 and P. 3 were produced before the Committing Magistrate and in his presence Abdul Karim S. I. P. W. Admitted that they were recovered by him from the spot and made into a sealed parcel. But how crime empties P. 9 and P. 10 were mixed up in this case which were both made in Hungary and sent to the Fire-arms Expert eight days after the occurrence, there is no answer to this question. According to the prosecution gun P. 1 was recovered at the instance of the appellant at 3-00 p.m. On the eth of April, 1970. The memo. Of this recovery Exh. P. D. Was attested by Wali Muhammad P. W. And Muhammad Din P. W. Who is an eye-witness and also related to Nizans deceased. It is probable that the empties recovered from the spot were marked as P. 2 and P. 3 but the memos. Of both crime empties as well as gun were prepared by the Investigating Officer together after the recovery of gun and crime empties P. 9 and P. 10 both made in Hungary were substituted. (dun P. 1 and crime empties P. 9 and P. 10 were despatched to the Fire Arms Expert eight days after the occurrence. During this period there was sufficient time to tamper with these recoveries. In that view of the matter no reliance can be placed on the recovery of crime empties as well as gun. The result is that there is no piece of corroborative evidence which supports the version given by the eye-witnesses. ' It is probable that Nizam deceased was done to death by an unknown assailant unseen by any one and on this disc cover his brother Muhammad P. W. Was sent for from his village and then the eye-witnesses who were closely related to Nizam deceased were procured and the appellant was implicated on suspicion. It has already been pointed out by us that the statements of the eye-witnesses are not supported by any piece of corroborative evidence, the recoveries in this case being doubtful in our opinion. In the circumstances the appellant should have been given, the benefit of doubt. We accordingly give the benefit of doubt to the appellant. This conviction and sentence are hereby set aside and he acquitted. He shall be released from jail forthwith if not wanted in any other case. His appeal is accepted.
10. Reference for the confirmation of death sentence awarded to the appellant by the trial Court is rejected. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.