' SH. MUHAMMAD ZUBAIR, J.--- Muhammad Saleem Khan was tried under section 302, P.P.C. By the learned Additional Sessions Judge, Kasur, for the murder of Amanat Ali. The learned trial Judge vide his judgment, dated 23-12-1991, convicted him thereunder and sentenced him to suffer death plus fine of Rs,20,000 or in default to undergo further R.I. For three years. He was further directed to pay Rs,10,000 as compensation to the legal heirs of the deceased, failing which to undergo six months'
R.I.
2. The convict has filed the present appeal. The learned trial Judge has referred the case to this Court under section 374, Cr.P.C., for confirmation of death sentence. We propose to dispose of both these matters by this judgment.
3. The occurrence took place at 4-30 p.m. On 20th November, 1989, F.I.R. Exh.P.E. Was lodged by Amanullah P.W.9 the same day at Station, Mustafabad at 6-20 p.m., which was recorded by Muhammd Yousaf, Inspector (P.W.12). The distance from the place of occurrence to the police station is three miles.
' The motive for the alleged occurrence is stated to be election rivalry between the parties. Further, it is alleged that Muhammad Ashraf brother of the appellant was a smuggler. His gold was seized at the border. The accused party suspected that it was due to the secret information of Amanat All deceased. It is also stated that a few days earlier, mother of the appellant abused the deceased, who returned in the same coin. In order to avenge the last mentioned incident, the appellant is alleged to have murdered the deceased.
4. As for the main occurrence, the prosecution case is that on 20-11-1989 at about 4-30 p.m., Amanullah complainant and the deceased were on their way to their house from the High School of Mauza Sarhali Kalan. When they passed near the Dera of one Arshad, they saw the appellant standing in front of the Dera armed with a .12 bore gun. As soon as they passed near the appellant and covered a few paces, the appellant fired at the deceased from the backside. The complainant noticed that the appellant after firing at the deceased, retreated and decamped from the spot by riding on a scooter. Noor Elahi (P.W.10) who was following them in the street, Maqbool Elahi and Inayatullah, who were standing on the crossing of the street, saw the occurrence. The shot hit Amanat Ali on the left side of waist who fell down. The complainant alongwith Noor Elahi P.W.10, Maqbool Elahi and Inayat Ullah took Amanat Ali in injured condition to the General Hospital, who breathed his last before reaching the hospital and his dead body was brought back. Thereafter, Amanullah lodged the F.I.R. Exh.P.E.
5. The investigation in this case was carried out by Muhammad Yousuf, Inspector P.W.12, who after recording the F.I.R., prepared the inquest report Exh.P.G. And sent the dead body to the mortuary under the escort of Zafar Iqbal (not produced) and Muhammad. Sadiq, Constable (P.W.7).
Thereafter, he proceeded to the spot, inspected it and took into possession blood-stained earth vide recovery memo. Exh.P.B. On 21-11-1989, Muhammad Sadiq, Constable produced the last worn clothes of the deceased, which were taken into possession vide memo. Exh.P.A. On 2-12-1989, the appellant voluntarily appeared before him with gun P.3 along licence P.4. The appellant was put under arrest and the articles were taken into possession vide memo. Exh.P.C. He got the site plans Exh.P.D. And Exh.P.D/1 prepared by Nasrullah Draftsman (P.W.8). After completing legal formalities, the Inspector submitted the challan in the Court.
6. Dr. Ziaur Rehman Khalid (P.W.11) conducted post-mortem examination on the dead body of Amanat Ali on 21-11-1989, and found the following injuries thereon:--
(1) A circular wound, 2 x 2 c.m. With margins inverted, blackening and tattooing present, 1 c.m. Left lateral to the mid line on the back of left mid chest, 14 c.m. Below and medial to left scapula at level of T.7, T.8, thoracic vertebrae (wound of entry).
(2) Nine semi-circular lacerated wounds of 1/2 x 1/2 c.m., with margins everted present on the antero lateral surface in front of left chest, covering an area of 15 x 12 c.m., lateral to left nipple (wound of exit).
' In the opinion of the doctor, the cause of death was due to haemorrhage and shock by the abovementioned injuries, which were sufficient to cause death in the ordinary course of nature, caused by fire-arms.
7. The appellant denied the prosecution allegations, professed innocence and no evidence was produced in defence. He explained the case against him in the following words:-- "On the night of 20-11-1989 the dead body of the deceased was fallen in the lane where the Dera of my brother Arshad as well as our residential house is located. There were no shoes or any foot wears on the feet of the dead body nor any valuables belongings i,e, watch, purse etc. Was found on the search of the dead body by the police. It appeared that deceased had been injured at some other place and thereafter his dead body was thrown near our Dera and house to cast suspicion on us. The F.I.R. In this case was lodged after the postmortem examination of the deceased in back date. As the injury of the deceased was found to have been caused by a .12 bore gun and as the complainant party knew that I was a holder of a .12 bore licensed gun, I was named on suspicion after consultation and in collusion with the police. The witnesses are all related and party men of the deceased. On coming to know that I had been falsely nominated in this case, voluntarily appeared before the police alongwith my licensed gun. I do not own any scooter nor to know how to drive scooter."
8. The learned trial Judge believing the prosecution evidence, convicted and sentenced the appellant as stated above.
9. The learned counsel for the appellant vehemently contended that it was an unwitnessed crime, which took place in the darkness of night when none of the eye-witnesses was present. The F.I.R.
Was lodged after preliminary investigation, deliberation and speculation. The possibility cannot be ruled out that on account of Previous enmity, which is the motive alleged in the FIR., the appellant has been nominated falsely as an accused in this belated F.I.R. An excuse was coined by the prosecution of taking the dead body to the General Hospital, Lahore, in order to cover the delay in lodging the F.I.R. In an occurrence which took place near the police station; the General Hospital is mainly meant for diseases relating to head injuries, whereas the deceased had no head injury, the conduct of the complainant is unnatural and against the human behaviour, that instead of getting medical aid from the nearest dispensary at Mustafabad, they took the deceased to the General Hospital even there is no evidence available on the record to show that the deceased was actually taken to the General Hospital, because neither any entry was made there nor anybody examined the dead person in the General Hospital, Lahore. According to Calendar for the year 1989, the sunset time on the relevant date was 5-04 p.m. It appears, that the occurrence took place after sun-set and it was not possible to clearly identify the accused person and in order to get rid of this difficulty, the F.I.R. Was ante-time. The ocular version is against the medical evidence. According to the doctor the deceased died due to haemorrhage and shock by injuries Nos.1 and 2. According to Chambers Tewentieth Century Dictionary "shock", means * a stroke of paralysis **** which temporarily incapacitated a person, whereas according to the evidence the deceased after receiving the injuries covered 40 feet distance before he fell down. This material discrepancy between the ocular version and the medical evidence remained unexplained, which lends support to the defence version that the occurrence took place when none was present.
' The learned counsel further contended that doctor admitted in his evidence that there was no corresponding hole on the shirt of the deceased and the dead body was without shoes, which gives strength to the defence version that the deceased might have met his death somewhere else and he was not wearing the clothes which were normally found on his persons in such season.
The nature of the injury suggests that it was from a close range, whereas according to the version given in the F.I.R. This injury was caused from certain distance, which further contradicts the ocular version. Placing reliance on page 275 of Parikh's Textbook of Medical and Jurisprudence Toxicology, Fourth Edition, 1987, learned counsel contended that in shotgun generally smoke or powder mark and tattooing occurs to an injury which is caused from three to nine feet and this further contradicts the ocular evidence. The occurrence took place in a inhabitated street, where numerous independent witnesses were present, but none from the locality appeared to support the prosecution story. He further urged that according to the prosecution, the appellant was armed with S.B. Gun and after using that gun there was no time with the appellant to reload it, as no empty was found at the spot or taken into possession, it was impossible for the appellant to escape apprehension, when there were four eye-witnesses present on both corners of the street.
Unfortunately, none of them, tried to apprehend him. Neither the number of the scooter on which the appellant made good his escape was given in the F.I.R. Nor it was taken into possession by the police, though the appellant himself immediately appeared before the police. Even no physical remand of the appellant was procured by the police for the recovery of the said scooter, which further belies the prosecution version. The uncorroborated evidence of the eye-witnesses who are close relatives of the deceased and have some enmity with the appellant cannot be believed on its face value, when they did not try to apprehend the appellant at the time of the alleged occurrence.
Even if the presence of the eye-witnesses at the spot is admitted, for the sake of arguments, still in view of the infirmities and background of enmity, their uncorroborated testimony which stands belied by the medical evidence cannot be believed. The deceased was a man of means and he was not expected to go out bare-footed, as neither any shoe was found near the dead body nor the shoe of the deceased was recovered from any place as is apparent from Column No,22 of the inquest report, which leads to this inference that the occurrence did not take place in the manner as asserted in the F.I.R. The dead body was sent to the hospital on 21-11-1989, whereas the occurrence took place on 20-11-1989 at 4-30 p.m. And the F.I.R. Was lodged at 6-20 p.m. When the deceased had already expired. The delay in sending the dead body to the mortuary also strengthened the defence version that the occurrence has not taken place at 4-30 p.m. As the prosecution wants us to believe, actually it took place somewhere in the darkness and time was consumed for speculation and deliberation and the appellant was involved on the basis of this guess work in the present case. The doctor has admitted in his evidence that he received the dead body at 11-00 a.m. On 21-11-1989 directly without any other legal document, which shows eagerness of the police to oblige the complainant party in a case which was more or less untraced crime. Had the version of the prosecution been correct, then in all probability the dead body of the deceased might have been received in the mortuary either on the same night time or at the morning time.
10. The learned counsel for the complainant vigorously urged that the F.I.R. In this case was lodged with great promptitude which excludes the possibility of speculation and deliberation. The appellant is the sole accused named in the F.I.R. In spite of enmity which is the motive for the crime.
The evidence of the eye-witnesses is being corroborated by the medical evidence. Any abnormality found in the behaviour of the deceased person can be reasonably condoned in view of the observation appearing at page 293 of Parikh's Textbook, referred to above, which relate to "physical activity after fatal fire-arm injury". No doubt, the eye-witnesses are the chance witnesses but being persons of that locality, they were the natural and probable witnesses of the occurrence.
Noor Elahi P.W.10 is quite independent witness and he has no animus against the appellant to depose falsely. The learned counsel further contended that, even if, for the sake of arguments, the evidence of the complainant is excluded from consideration, still conviction can be maintained on the evidence of Noor Elahi P.W., the prosecution is not obliged to produce all the eye-witnesses mentioned in the F.I.R. The contention of the learned counsel for the appellant that after fire, S.B.
Gun becomes a Lathi or Danda is devoid of force, as it depends upon the courage of witnesses whether they should take the risk of their lives by apprehending an accused, who is holding a gun or not. Mere negligence on the part of the police to recover the scooter or to examine the independent witnesses, if available, would not ipso facto affect the evidentiary value of the independent witness, namely, Noor Elahi, P.W. Who had no relationship with the deceased. The motive, as alleged in the F.I.R., stood proved and it provides necessary corroboration to the prosecution case. The immediate impulse of the eye-witnesses was to provide best medical pad to the deceased to save his life and that is why they took him to the General Hospital, but unfortunately the deceased died in the way, this explains the delay, if any, in lodging the F.I.R.
11. The learned counsel for the State has supported the impugned judgment and has also adopted the arguments of the learned counsel for the complaint, as incorporated in para. 10 above.
12. We have minutely gone through the record with the able assistance of the learned counsel for the appellant and have critically examined the respective contentions of the learned counsel for the parties.
' Ostensibly, it appears that the F.I.R. Was lodged with great promptitude, but the close scrutiny of all the relevant material would expose the hollowness and falsehood of the prosecution case, as the occurrence took place at 4-30 p.m. And the police station was just nearby, in spite of four eyewitnesses present at the spot, none went to the police station to lodge the F.I.R. The conduct of the complainant in taking away the deceased to the General Hospital, Lahore, which is primarily meant for treatment of head injuries, is unnatural, because the deceased did not suffer any such injury. He could easily be given proper medical any such injury. He could easily be given proper medical aid at the nearest dispensary at Mustafabad. It appears this excuse was coined in order to cover up the delay, which occurred in lodging the F.I.R. The necessity arose for covering up the delay due to the darkness which . Prevailed after sun-set which time was 5-04 p.m. On the relevant date. This lacuna/material defect has caused great damage to the prosecution case, as no proper explanation is available on the record with respect to this delay. Even there is no material on the record to show that the deceased was actually transported to the General Hospital, or anybody taking the deceased to the General Hospital, visited the hospital, because neither any record of the hospital was produced in this respect nor any witness was examined, who could have corroborated this assertion of the complainant.
13. As observed earlier, it is a case of dishonest investigation. The dead body of the deceased was handed over to the doctor without completion of legal formalities, which leads to this inference that the Investigating Officer was not as impartial as he should have been while conducting the investigation.
Both the eye-witnesses, as per their own admission, are the chance. Witness of the occurrence, they have failed to furnish any reasonable or plausible explanation for their presence at the scene, and in view of the admitted background of enmity, between the parties, it would be dangerous to place implicit reliance on their uncorroborated testimony.
' As noticed above, the deceased died due to haemorrhage and shock, which completely incapacitated the victim from his movements and it was not possible for the deceased in such situation to walk about 40 feet after receiving the injury from the close range, which caused damaged to the vital organs, as discharge of the gun entered as a mass. Even there is no trail of blood between the places where the deceased received the injury and where he fell down and this material discrepancy remained unexplained. There is substantial force in the submission of the learned counsel for the appellant that it was an unwitnessed crime which took place in the darkness of night and time was consumed by the prosecution to procure the close relatives of the deceased to depose falsely as eye-witnesses in this case. Had the alleged eye-witnesses been present at the spot, then the F.I.R. Would have been lodged immediately after the occurrence by one of them. Even the appellant could not decamp from the spot, after the commission of crime, which was a narrow street, especially on a scooter, because after fire from a S.B. Gun, he was not expected to reload it within a few seconds. No independent witness, though available, was produced which creates further doubt in the prosecution version. Even both the eyewitnesses have tried to make material improvements in their statements in order to bring their evidence in line with the medical evidence, for which they were duly confronted and there is no need to mention those contradictions again and again.
' The contention of the learned counsel for the complainant that the appellant is the sole accused mentioned in the F.I.R. And as such the evidence of the eye-witnesses be accepted as a gospel truth is devoid of force, because in a situation like the present one, the Court has in the first instance to see whether the eye-witnesses were present at the spot and whether they have actually seen the occurrence or not. As discussed above, we have doubted the very presence of the eye-witnesses at the spot, so it is immaterial whether they had named one accused or more than one. Apart from this, there is no corroborative evidence coming from unimpeachable source which could " reasonably connect the appellant with the crime.
13. The upshot of ' the above discussion is that in view of the abovementioned infirmities and lacunae appearing in the prosecution case, it would not be safe to place implicit reliance on the prosecution case, which is not free from doubt. The appellant thus richly deserves the benefit of doubt, which is given to him. Resultantly, we accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be set at liberty forthwith, if not required to be detained in any other case. The reference is rejected and death sentence is not confirmed.