1. ' RASHID AZIZ KHAN, J.--- Muhammad Yasin son of Umar Din (23) alongwith Muhammad Din alias Manda son of Guddar, and Ali Sher son of Faiz Ahmad was sent up for trial by Police Station Hujra, District Okara, for an offence under section 302/34, P.P.C. Sessions Judge, Okara vide his judgment, dated 29-9-1991 gave benefit of doubt and acquitted Muhammad Din and Ali Sher of the charge.
2. Muhammad Yasin was, however, found guilty for the murder of Muhammad Mansha and sentenced under section 302, P.P.C. To death with a fine of Rs,50,000, or in default R.I. For two years.
3. It was further directed that the fine, if recovered, shall be paid to the legal heirs of the deceased.
4. The convict has appealed. Case is also before us for confirmation of death sentence. Both the matters will be disposed of by this judgment.
2. Prosecution story in brief, as disclosed in F.I.R. Exh.P.B., lodged by Muhammad Yousaf, was that he was resident of Wirowala. On 1-7-1990, he with Muhammad Nawaz, first informant's brother, and one Kaka slept in the courtyard of his tube-well. At about 5 a.m., they awoke and started talking to each other while the first informant's son Muhammad Mansha was sleeping on the roof of the said tube-well. In the meanwhile, first informant saw Muhammad Yasin armed with .12 bore pistol, climbing the boundary wall from the western side. First informant raised Lalkara, whereupon Muhammad Din and Ali Sher armed with guns emerged and raised Lalkara that if anybody moved he would be killed. In the meanwhile, Muhammad Yasin climbed on the roof of the Kotha and fired at Muhammad Mansha. He reloaded the pistol and fired another shot in the air. Thereafter, he got down from the Kotha and all of them ran away while firing in the air. After the assailants had decamped, first informant climbed the roof of the Kotha and saw that his son Muhammad Mansha had expired on account of fire-arm injury on the right side of his chest. Motive for the occurrence was that on 30-6-1990 at about Asar Prayers time accused Muhammad Yasin's younger brother Muhammad Aslam had an altercation with Arshad Ali, nephew of the first informant, whereupon, Muhammad Mansha, deceased gave a few slaps to said Muhammad Aslam. Muhammad Yasin with the help of his co-accused because of the said incident committed the murder of Muhammad Mansha.
5. ' The occurrence took place on 1-7-1990 at about 5 a.m. On the roof of tube-well of Muhammad Yousaf, P.W. Situated within the area of Chak Virowal, District Okara, 7-1/2 Km. From Police Station Hujra. F.I.R. Exh.P.B. Was lodged on the same day at 6-30 a.m. By Muhammad Yousaf, P.W.4, which was recovered by Muhammad Sharif, Inspector/S.H.O., P.W.11.
6. ' Muhammad Sharif, Inspector/S.H.O., P.W.11 after recording F.I.R. Exh.P.B. Went to the spot and prepared inquest report Exh.P.J. And injury statement Exh.P.A. And sent the dead body for autopsy.
7. Blood-stained earth was secured from the spot vide memo. Exh.P.C., which was got attested from the witnesses. One crime-empty P.3 was secured from the spot vide memo. Exh.P.D., duly attested by the witnesses. Blood-stained cot P.4 was secured vide memo. Exh.P.B. He recorded the statements of the witnesses at the spot.
8. ' Last worn blood-stained clothes of the deceased were also taken into possession by him.
9. Muhammad Yasin appellant was arrested by him on 25-7-1990 alongwith his acquitted co- accused. On 27-7-1990 Muhammad Yasin while in custody led to the recovery of pistol P.5 from his residential house from under a cot, which was secured vide memo. Exh.P.G. He got the said memo.
10. Attested from the witnesses. He got the site plan Exhs.P.I and P.I/1 prepared from the Draftsman and gave his notes in red ink thereunder. After usual investigation he challaned the accused.
11. ' P.W.6 Dr. Zulfiqar-ul-Hassan, Medical Officer, R.H.C. Hujra, on 1-7-1990 conducted the post-mortem examination on the dead body of Muhammad Mansha and found the following injuries:--
(1) A lacerated wound 2.5 c.m. x 2.2. c.m. x ingoing on the front and middle part of left side of chest 4.2 c.m. From the left nipple 3.5 c.m. From mid line blackening in area of 11 c.m. x 9.5 c.m. Around the wound. Wound of entry.
(2) A lacerated wound 0.6 c.m., x 0.5 c.m. x ingoing on the posterior part of left shoulder and upper part of left scapula.
(3) A lacerated wound 0.6 c.m.. x 0.5 c.m. x ingoing on the lateral part of left scapula just close to left border of left scapula.
12. ' In his opinion, cause of death was shock and haemorrhage due to injury No,1, which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem caused with fire- arm.
3. Prosecution in support of its case produced 11 witnesses in all P.W.1 Noor Ahmad, A.S.I. On 1-7-1990 received 2 sealed parcels containing bloodstained earth and crime-empty for safe custody. On the following day he handed over the same to Shahbaz Ahmad, Constable for onward transmission.
13. Shahbaz Ahmad, Constable, P .W.3 had delivered the sealed parcels in the respective office of Chemical Examiner and Forensic Science Laboratory for examination. So long the parcels remained with him, nobody tampered with them. Ocular account was furnished by Muhammad Yousaf and Sardar Kaka, P.Ws.4 and 5, respectively. F'.'W.6 Dr. Zulfiqar-ul-Hassan had conducted the post- mortem examination. P.W.7 Riaz Ahmad had witnessed the recovery of pistol P.5 from the appellant and signed the memo. Muhammad Siddique, P.W.8 had witnessed the recovery of gun P.6 at the instance of Muhammad Din, acquitted co-accused. P:W.10 Muhammad Ishaq Nasir, Draftsman had prepared site plan Exhs.P.I. And P.I./1 on the direction of the police and pointation of the witnesses.
14. The case was investigated by Muhammad Sharif, Inspector/S.H.O. P.W.11.
15. ' At the conclusion of prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. He, however, neither produced any defence evidence nor appeared in his defence on oath.
4. It was contended by learned counsel for the appellant that the prosecution had miserably failed to establish its case beyond doubt. Asserted that Muhammad Yousaf, P.W., who had got the case registered, in cross-examination admitted that on the night of incident there had been cross-firing between him and his opponents, which lasted for about 2 hours. As far as Sardar Kaka, P.W., is concerned, it was asserted that he was resident of same village, where he owned a Kotha, and, in such circumstances, his assertion that during the fateful night he slept in the courtyard of Muhammad Yousaf, complainant, cannot be believed. The prosecution had manoeuvred this solely to establish his presence at the spot to become an eye-witness. Argued that the ocular account is in conflict with the medical evidence because the deceased had three wounds of entry, whereas the witnesses unanimously deposed that he was fired at only once on the front of his chest. Argued that according to the site plan, which was prepared on the pointation of the witnesses, the appellant fired at the deceased from a distance of 15 to 20 feet, and, in such circumstances, there could not be blackening on the wound. The contentions were resisted by learned counsel for the State.
5. We have heard the learned counsel and gone through the file. The prosecution in order to establish its case has mainly relied upon the ocular account furnished by Muhammad Yousaf and Sardar Kaka, P.Ws.4 and 5, respectively. Corroboration to their statement was sought from medical evidence and evidence of recovery of pistol at the instance of the appellant, which matched with the empty secured from the spot. As far as the ocular account is concerned, Muhammad Yousaf and Sardar Kaka both of them in their examination-in-chief gave a detailed account mentioning each detail. Their case was that all of them got up at about 5 a.m. And were talking to each other when they noticed the appellant. When raised Lalkara, his co-accused also emerged from behind a wall and threatened them. Simultaneously the appellant fired hitting Muhammad Mansha on his chest. Thereafter, the appellant reloaded his pistol and fired one shot in the air. Thereafter, all of them decamped while firing in the air. In cross-examination, Muhammad Yousaf admitted that he had bitter enmity with the accused side and they had quarrelled with each other number of times.
16. He also had to admit that he had stated before the police that before the occurrence both the parties had quarrelled with each other for 20 minutes. Similarly, Sardar Kaka, P.W.5 admitted in cross-examination that he was resident of the same village where the occurrence had taken place and his house was situated at a distance of 25 Karams. If that be so, then we are at a loss to understand why he chose to sleep in the courtyard of the complainant on the fateful night. In these circumstances, we are of the considered view that no reliance on his statement can be placed because his presence at the spot at the relevant time is doubtful.
17. ' Another factor which goes to the root of the matter is that both the eye-witnesses had categorically asserted that the appellant fired one shot at the deceased hitting on the front of his chest; thereafter, another shot was fired in the air. According to the post-mortem report, the deceased had received a firearm injury on the front of the chest and two fire-arm injuries "ingoing injuries" on the back of chest. The word "ingoing" used in the post-mortem report indicates that they were wounds of entrance. This fact is directly in conflict with the ocular account. The prosecution has not been able to explain these two wounds of entrance which were fire-arm injuries. This casts doubt on the credibility of the ocular account. Site plan was prepared by the draftsman on the pointation of the eye-witnesses, and, according to the said site plan the deceased was fired at from a distance of 15 to 20 feet. Surprisingly there is blackening on the front of the chest. It is well-settled that if a shot is fired with a pistol from a distance of 15 feet, blackening cannot possibly occur. This fact also shakes the credibility of the eye-witnesses. Medical evidence, instead of corroborating the eye-witness account contradicts it. As far as the recovery of crime- empty P.3 from the spot is concerned, it was witnessed by Kaka, P.W.5, who is an eye-witness as well. In such circumstances, a witness cannot corroborate his own statement by another piece of evidence. As has already A been held that his presence at the spot was highly doubtful because of the reasons already discussed, therefore, no reliance on his statement can be placed as far as the recovery of crime empty P.3 is concerned.
18. ' For what has been discussed above, we are of the considered view that the prosecution has not been able to establish its case against the appellant beyond reasonable doubt. Therefore, giving the benefit of doubt, we accept the appeal and set aside his conviction and sentence. The appellant shall be released forthwith if not required in any other case. Death sentence is not confirmed.