' RAO NAEEM HASHIM KHAN, J.--- Abdul Hameed alias Haqqa (20) was sent up for trial by Police Station City Kabirwala, District Multan, for an offence under section 302, P.P.C. Sessions Judge, Khanewal vide judgment, dated 5-11-1991 convicted and sentenced him to death with a fine of Rs,10,000 or in default to further undergo R.I. For a period of one year. Fine if recovered, would be paid to the heirs of deceased Mohsin Raza as compensation under section 544-A, Cr.P.C. The convict has appealed while State has sought confirmation of death sentence through Murder Reference No,528 of 1991. Both the matters will be disposed of by this single judgment.
2. Prosecution story in brief, as disclosed in application Exh.P.F. Submitted by Manzoor Hussain P.W.10, was ..To the effect that on 13-6-1990 at 6-40 a.m., he along with his Nawasa Mohsin Raza, his son Muhammad Salem and Ghulam Shabbir P.W.1 were going from Kabirwala to Multan to attend a marriage. Mohsin Raza was going ahead of them at some distance. When Mohsin Raza reached on the back gate of Civil Hospital, Kabirwala situated at Kookarhatta Road, they saw that Abdul Hameed alias Haqqa of Faiz, caste Jopu, resident of Nawan Shehr Gharbi, Kabirwala, was standing on one side of the road. On seeing Mohsin Raza, the appellant raised Lalkara that he would not go escaped and that he would be taught a lesson of the quarrel of previous day. Mohsin Raza turned back and started running towards them (P.Ws.) Abdul Hameed alias Haqqa appellant fired at him with carbine which hit his left thigh. In injured condition Mohsin Raza fell on the ground. The accused fired for the second time, but the fire shot did not hit Mohsin Raza. Complainant party attempted to catch hold of Abdul Hameed alias Haqqa appellant, who threatened them with dire consequences and made his escape good, while firing towards the northern lane. The motive behind the occurrence was said to be that appellant Abdul Hameed alias Haqqa vexed Mohsin Raza deceased with bad intention and one day before the occurrence both of them quarrelled, whereby the appellant was annoyed. Complainant alongwith Manzoor Hussain and Ghulam Shabbir were taking Mohsin Raza to Civil Hospital, Kabirwala, when Zafar Hussain Kharl, Advocate P.W.9 son of the complainant also reached at the spot. The injured Mohsin Raza was admitted in Hospital Kabirwala, where Dr. Jehangir Shahzad P.W.2 examined him and issued a medico-legal report (Exh.P.D.) which Manzoor Hussain P.W.10 produced before Noor Hussain, A.S.I. Alongwith application Exh.P.F. At 1-40 p.m. At Old Bus Stand Kabirwala. On the basis of application, Exh.P.F.
Sahibdad Moharrir, Head Constable Police Station City Kabirwala, P.W.8 prepared formal F.I.R.
Exh.P.F./1.
3. The occurrence took place on 13-6-1990 at 6-45 a.m. Near Civil Hospital at Kookarhatta Road, Kabirwala, three furlongs from Police Station Kabirwala F.I.R. (Exh.P.F./1) was lodged on the application (Exh.P.F.) submitted to Noor Hussain, A.S.I. P.W.7 by Manzoor Hussain P.W.10 at 1-40 p.m.
On the same day. The complainant had presented the said application (Exh.P.F.) alongwith medico-legal report (Exh.D.1) before Noor Hussain A.S.I. P.W.7 on 13-6-1995 at Old Bus Stand Kabirwala. Noor Hussain A.S.I. P.W.10 went to the spot and recorded the statements of Muhammad Saleem, Ghulam Shabbir P.Ws. He prepared rough site plan (Exh.P.G.). He took into possession blood-stained earth from the place of occurrence and made into sealed parcel vide memo.
Exh.P.H. He went to Civil Hospital, Kabirwala, where he took into possession blood-stained Shalwar P.3 being worn by Mohsin Raza injured, vide memo. Exh.P.J. The injured was referred to Nishtar Hospital, Multan. He came back to Police Station City Kabirwala and delivered the sealed parcel of blood-stained earth and Shalwar to Sahibdad Moharrir P.W.B. On 15-6-1990, Zafar Hussain Kharl, P.W.9 informed on telephone from Multan at 10-25 p.m. In Police Station City Kabirwala that Mohsin Raza had expired in Nishtar Hospital, Multan. He entered the said fact of death as Report No,35, dated 15-6-1990 (Exh.P.K.) at 10-25 p.m. He then went to Nishtar Hospital, Multan alongwith Bashir Ahmad, Constable, Shahid Mahmood, Constable P.W.3 was guarding the dead body of Mohsin Raza in Nishtar Hospital, Multan as the hospital authorities had informed the police of Multan. He took into possession the dead body of Mohsin Raza from Shahid Mahmood, Constable P.W.3 of Police Post Sheshmahl, Multan Police Station Cantt., Multan. He prepared the injury statement Exh.P.E. And inquest report Exh.P.C. He sent the dead body, to the Dead House Nishtar Hospital, Multan for post-mortem examination under the escort of Bashir Ahmad, Constable P.W.6. After the post-mortem examination Bashir Ahmad, Constable P.W.6 handed over to him blood-stained Safa P.1 and one sealed phial containing pellets P.2 alongwith other papers of this case, which he took into possession vide memo. Exh.P.E. And delivered the same to Sahibdad Moharrir P.W.8, Police Station City Kabirwala. He substituted section 307, P.P.C. By section 302, P.P.C. He again inspected the spot. Abdul Hameed alias Haqqa appellant was arrested by Mirza Muhammad Siddique, S.I. On 24-6-1990. While under police custody, on 7-7-1990 Abdul Hameed alias Haqqa appellant led to the recovery of P.4 and crime-empty P.5/1-2 which he took into possession vide Exh.P.I. He prepared sketch Exh.P.L./1 and site plan Exh. P.L./2. He got prepared site plans Exh.P.M., Exh.P.M./1 and Exh.P.M./2 from Muhammad Aslam Draftsman, Kabirwala. He recorded the statements of P.Ws.
4. The ocular account was furnished by Manzoor Hussain P.W.10 and Ghulam Shabbir P.W.11. Dr. Abdul Aziz Khan Bokhari, S.M.O. (P.W.1) Civil Hospital, Multan had conducted the post-mortem of Mohsin Raza.
5. At the conclusion of the prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. However, he neither appeared in his defence on oath nor produced any defence evidence.
6. It is submitted by the learned counsel for the appellant that both eye- witnesses are interested, being related to the deceased inter se; that motive is not proved and shrouded in mystery; that medical evidence is in direct conflict with the ocular account; that the delay of 7 hours in lodging of F.I.R. In the presence of Rai Zafar Hussain Kharl, Advocate P.W.9 makes the case doubtful; that independent witnesses were neither cited nor produced at the trial, though, the place of occurrence is situated in thickly populated area; that the site plan Exh.P.M. Is in direct conflict with the ocular account; that it is a blind murder and has requested for the acquittal of the appellant.
7. The contentions are opposed by the learned State Counsel.
8. We have heard the arguments and gone through the file. The prosecution in order to establish its case has mainly relied upon the ocular account furnished by Manzoor Hussain P.W.10 and Ghulam Shabbir P.W.11. Both of them had given detailed account of occurrence ascribing specific role to the appellant. Each of them stated that they were present at the spot when the appellant raised Lalkara and fired at Mohsin Raza deceased. The appellant had caused injury which ultimately resulted in his death. Both witnesses were put to the test of cross-examination. Eye-witnesses are interested, being related to deceased inter se and also chance witnesses. How it is possible that Mohsin Raza deceased was going ahead at some distance of Manzoor Hussain P.W.10 and Ghulam Shabbir. P.W.11, being closely related inter se in spite of the fact that their destination is the same.
Medical evidence and site plan Exh.P.M. Are in direct conflict with ocular account.
9. Dr. Abdul Aziz Shah Bokhari, P.W. I stated that assailant might be at a distance about 4/5 feet from the victim fired at. Manzoor Hussain P.W.10 and Ghulam Shabbir P.W.11 stated that Mohsin Raza deceased was at a distance of 20 Karams, when he started running back on seeing the appellant, who had raised the Lalkara, when he came back up to a distance of 5/7 Karams, he was fired at by Abdul Hameed alias Haqqa appellant. Site plan Exh.P.M. Which was prepared under the direction and pointation of Manzoor Hussain P.W.10 and Ghulam Shabbir P.W.11, was in direct conflict with the ocular account. Mohsin Raza, at point 1, while coming towards P. Ws. Being at points 3 and 4 cannot sustain injuries on posterior lateral aspects of left thigh. The injuries should have been sustained on the frontal portion of the body. The ocular account does not inspire confidence. The accumulative effect of the abovementioned facts and discrepancies was that eye-witnesses were not present at the spot and they had not witnessed the occurrence. The prosecution has failed to establish its case against the appellant beyond any shadow of doubt. We are left with no other option, except to believe the version of the appellant. We, therefore, accept the appeal and acquit the appellant by giving him the benefit of doubt. He shall be released forthwith, if not required to be detained in any other case.