' RASHID AZIZ KHAN, J.--- Muhammad lqbal son of Muhammad Shafi (24) and Niaz Ahmad son of Khurshid (35) were tried by Additional Sessions Judge, Sahiwal, for the murder of Ghulam Murtaza, in pursuance of case registered against them with Police Station Harappa, District Sahiwal. Learned trial Court vide judgment, dated 14-2-1993 gave the benefit of doubt to Niaz Ahmad and acquitted him of the charge. Muhammad lqbal was however, found guilty under section 302(a), P.P.C. And sentenced to death. 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 case in brief, as disclosed in F.I.R. Exh.P.F., got registered by Bahawal Sher, P.W.7, was to the effect that on 15-11-1991 first informant with his brother Ghulam Murtaza with others, namely, Noor Samand, Muhammad Latif, Qutab, Muhammad Iqbal who were armed with .12 bore guns, were participants in the Baraat of one Ghulam Qadir. When the bus reached Adda Mir Dad, Ghulam Murtaza and Iqbal exchanged hot words about the seat in the bus. They were separated by other persons. When they reached near Basti Nooran Sanpal and everybody was getting down, lqbal took out a pistol. Niaz asked Iqbal to teach a lesson to Murtaza, whereupon Iqbal fired hitting Ghulam Murtaza on his neck, face and nose, who fell down and expired at the spot. Occurrence was witnessed by Noor Samand, Muhammad Latif and Qutab. The witnesses tried to apprehend the assailants but they threatened them and decamped from the spot. Motive for the occurrence was that 2-1/2 years earlier Muhammad Iqbal had committed a theft of goats of a close relation of the first informant, regarding which a case was registered and Muhammad lqbal was annoyed with them on that score.
' Occurrence took place on 15-11-1991 at about 2 p.m. At Basti Nooran Sanpal, 13 Km. From Police Station Harappa. F.I.R. Exh.P.E. Was got registered the same day at 3 p.m. On the statement of Bahawal Sher, P.W., which was recorded by Ikram Ullah, S.-I., P:W.10.
' Ikram Ullah, S.-I., P.W.10, after registering the F.I.R. Went to the spot and prepared injury statement Exh.P.F. And inquest report Exh.P.F./1 and s' ent the dead body for autopsy. Blood-stained earth from the spot Was secured vide memo. Exh.P.B. One .12 bore empty cartridge P.4 was recovered from the spot vide recovery memo. Exh.P.C. Last-worn blood-stained clothes of the deceased were taken into possession vide memo. Exh.P.G. He got prepared site plan Exhs.P.A. And P.A./1 from the Draftsman and gave his notes in red ink thereunder. After completion of investigation he challaned the accused.
' Rana Muhammad Akram, D.S.P. P.W.11 had also investigated the case. During investigation, on 17- 12-1991 Muhammad lqbal accused while in custody got recovered pistol P.5 froni underneath the cluster of date-trees, which was secured vide recovery memo. Exh.P.H. Thereafter the investigation was transferred from him.
' Dr. Muhammad Iftikhar Khan, Medical Officer, D.H.Q. Hospital, Sahiwal, P.W.6, on 16-11-1991 at 2 p.m.
Conducted the post-mortem examination on the dead body of Ghulam Murtaza and found the following injuries:--
(1) A fire-arm wound 1.5 c.m. x 1.5 c.m. x deep going on bridge of the nose. Margins were inverted.
(2) A fire-arm wound 1.5 c.m. x 1.5 c.m. x deep going on the upper parts of chin, 1 c.m. Below the right lower lip.
(3) A fire-arm wound 1.5 c.m. x 1.5 c.m. x deep going on front upper part of right chest, 12 c.m. From the top of right shoulder. Margins were inverted.
(4) A fire-arm wound 1.5 c.m. x 1.5 c.m. x deep going on front upper part of right chest, 6 c.m. Below injury No,3. Margins were inverted.
(5) Fire-arm wound 1.5 c.m. x 1.5 c.m. x deep going with averted margins on back and middle part of neck.
' In his opinion, the death had occurred due to shock and hemorrhage on account of injuries Nos.2, 3 and 4 which were caused with fire-arm and sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem.
3. Prosecution in support of its case had produced 12 witnesses in all. P.W.1 Mirza Ashfaq Baig, Draftsman, had prepared site plan Exhs.P.A. And P.A./1 on the directions of the police. Iftikhar Ahmad, Constable, P.W.2 had delivered the sealed parcel containing blood-stained earth in the office of Chemical Examiner, Lahore, and another parcel in the office of Forensic Science Laboratory, Lahore, intact. P.W.3 Muhammad Shahzad, Constable had escorted the dead body to the mortuary and thereafter produced the last-worn bloodstained clothes of the deceased before the Investigating Officer. P.W.4 Naurang had identified the dead body at the time of autopsy. Wallia, P.W.5 had witnessed the recovery of blood-stained earth and crime-empty from the spot and signed both the recovery memos. Ocular account was furnished by Bahawal Sher and Noor Samand, P.Ws. 7 and 8, respectively. Maqbool Ahmad, A.S.-I., P.W.9 was working as Moharrir at the relevant time and had kept. The sealed parcels in the Malkhana, intact. Case was investigated by Ikram Ullah, S.-I., P.W.10. The investigation was verified by Rana Muhammad Akram, D.S.P., P.W.11. Rest of the witnesses were of formal nature. The appellant, at the conclusion of prosecution evidence was examined without oath, wherein . He refuted the prosecution allegations and pleaded innocence. In answer to a question he, however, stated that on the fateful day some people had joined the Baraat with their licensed fire-arms. When Baraat reached Adda Nooran Sanpal, Barratis started firing while rejoicing and fire accidentally hit .Ghulam Murtaza, who died. Since he had enmity therefore, was falsely involved. The appellant, however, did not choose to appear in his defence on oath nor produced any defence witness.
4. It was contended by learned counsel for the appellant that the occurrence did not take place at the time alleged by the prosecution, instead it took place much earlier but on account of ulterior motive and manipulation it was shown to have taken place at 2 p.m. It was argued that both the eyewitnesses were closely related therefore, interested and inimical. Both of them were disbelieved qua the acquitted accused as well therefore, they may not be relied upon against the appellant without independent corroboration which was not available. Submitted that the recovery of pistol had not been established because both the marginal witnesses from public were given up and in such a situation bald statement of the Investigating Officer cannot establish the recoveries. Argued that the motive as set up by the prosecution has not been proved at all and in such circumstances the appellant be extended benefit of doubt. The contentions were vehemently opposed by learned counsel for the State.
5. We have heard the learned counsel and gone through the evidence with his assistance.
Prosecution in order to establish its case had relied upon the ocular account furnished by Bahawal Sher and Noor Samand, P.Ws.7 and 8, respectively, and sought corroboration from the recovery of pistol effected at the instance of the appellant as well as the recovery of crime-empty P.4 from the spot. Report Exh.P.J. Of the Fire-arms Expert is positive. It sought corroboration from the evidence of motive as well. As far as the recovery of pistol at the instance of the appellant is concerned, it is made on 17-12-1991 which he got recovered from the cluster of date trees. The recovery was witnessed by Allah Yar and Muhammad Riaz, witnesses from public. We have noticed that both of them were given up having been won over. In support of the recovery of fire-arm at the instance of the appellant, the only evidence available is of Rana Muhammad Akram, D.S.P. P.W., took over the investigation on 4-12-1991 and on 17-12-1991 the appellant got recovered .12 bore pistol P.S. The manner in which the pistol P.5 shown to have been recovered, is not very convincing. Both the recovery witnesses from public were not produced. In such circumstances, we are of the view that it would not be safe to rely upon the statement of the Investigating Officer alone as far as the question of recovery is concerned. No doubt the principle is that single statement of the Investigating Officer in such-like matters is sufficient, but where the prosecution chooses to associate two witnesses from public but at a particular stage they are given up and only the Investigating Officer is produced, in such-like cases the recovery would be doubtful.
' Motive for the occurrence was that Baraat of one Ghulam Qadir was going in a. Bus where the deceased as well as the appellant and the witnesses were present. When the bus reached Adda Mir Dad, the appellant and the deceased exchanged hot words but were separated. When they reached Basti Nooran Sanpal and everybody was getting down, the appellant fired at Ghulam Murtaza, deceased. There is nothing in evidence what was the nature of exchange of hot words.
The prosecution has not chosen to bring on record anything to suggest that once the matter had been patched up, then what prompted the appellant to attack when everybody was getting out of the bus and the question of motive had come to an end. Prosecution evidence on this point was also divergent. One witness had stated that the motive took place when they were getting out of the bus whereas the other witness stated that the altercation took place at Adda Mir Dad. As far as the motive is concerned, there are only two witnesses whose statements are divergent. There is nothing on record which could help us in arriving at the conclusion whose statement should be accepted.
' As far as the eye-witness account is concerned it was furnished by Bahawal Sher and Noor Samand, P.Ws.7 and 8, respectively. Both of them corroborated the prosecution version as given by them before the police. They were subjected to lengthy cross-examination in which it was admitted that there was background of enmity between the appellant and the witnesses. The appellant had also got a case registered against the complainant side, which was suppressed by Bahawal Sher, P.W.7 but was admitted by Noor Samand, P.W.B. In this respect the statements of both the eye-witnesses are at variance. Similarly, on the question of motive their statements are contradictory to each other. In cross-examination they admitted that the occurrence had taken place at 2 p.m. Yet Bahawal Sher had managed to get the case registered at 3 p.m. The same day at the police station which was at a distance of 13 Kms. In cross-examination Bahawal Sher, however, stated that he made a statement before the Thanedar under section 154, Cr.P.C. After the sunset. This would establish beyond doubt that F.I.R. Exh.P.E. Was not registered at 3 p.m. As shown in it. Bahawal Sher, P.W., stated that one Nausher, Sub-Inspector was not related to him but was from his brotherhood. On the other hand, the Investigating Officer Ikram Ullah, S.-I. P.W.10, in cross- examination admitted that when he reached the spot, Nausher, S.-I. Was already present there.
This strengthens the defence assertion that the occurrence took place earlier but was reported much later because there is nothing in the evidence to show that anybody went to Nausher, S.-I., to inform about the occurrence. Similarly, P.W.4 Naurang, who had identified the dead body, admitted that he had learnt about the murder at 2 p.m. When he was in the village, which was at a distance of 16 miles from the spot. Both the eye-witnesses admitted their enmity with the appellant. They contradicted each other to an extent that neither can be relied upon without independent corroboration, which is not available. The eye-witnesses have been disbelieved as far as Niai Ahmad, acquitted co-accused is concerned. For reasons already discussed above, the recovery of pistol is extremely doubtful. The motive as set up by the prosecution has not been established.
' The upshot of the discussion is that the statements of both the eyewitnesses, who are interested and inimical and have contradicted each other on material facts, cannot be relied upon. Therefore, extending the benefit of doubt, the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case.
' Death sentence is NOT confirmed.