1. ' RASHID AZIZ KHAN, J.--- Muhammad Riaz (29), with his brother Muhammad Nawaz (26), their father Umar Din (60) and Muhammad Ilyas (29) alongwith one Zulfiqar were sent up for trial by Police Station Bambanwala, Tehsil Daska, District Sialkot for the murder of Ahsan Ullah. Zulfiqar before commencement of trial was murdered, therefore, proceedings qua him abated. Additional Sessions Judge, Sialkot, vide judgment, dated 19-11992 gave the benefit of doubt and acquittal Muhammad Nawaz, Umar Din and Muhammad Ilyas of all the charges. Muhammad Riaz was, however, found guilty under section 302, P.P.C. And sentenced to. Death with a fine of Rs,50,000, or in default of payment of fine undergo R.I. For three years. It was further directed that the fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. He was, however, acquitted for an offence under section 307, P.P.C. The convict has appealed. Case is also before us for confirmation of death sentence. Both these matters shall be disposed of by this judgment.
2. Prosecution story in brief, as disclosed in F.I.R. Exh.P.F./1 lodged by Allah Rakha, P.W.4, was to the effect that he was an agriculturist and had four sons. Eldest son was Ahsan Ullah. On 26-2-1989 at about 1 p.m., first informant with his sons Irfanullah and Amanullah was busy in their agricultural pursuits. He saw Riaz armed with rifle, and Nawaz, empty-handed, going near Seme-drain. A few minutes thereafter he saw Ilyas and Zulfiqar accused on a motor-cycle along with Ahsan Ullah, his son, going on the bank of Seme-drain. Riaz and Nawaz accused were standing near the Dera of Muhammad Hussain, Lambardar. Zulfiqar, who was driving the motorcycle, stopped near Nawaz and Riaz and all of the three got down. Nawaz put a piece of cloth around the neck of Ahsan Ullah; Ilyas raised a Lalkara that he should be fired at. Riaz fired at Ahsan Ullah hitting on the right side of his chest. Zulfiqar fired his revolver hitting on the right arm of Ahsan Ullah. First informant and others raised a Lalkara, whereupon Riaz fired at them but missed. Ahsan Ullah fell down at the spot.
2. Riaz and Nawaz ran away on foot, and Ilyas and Zulfiqar decamped on their motorcycle. Ahsan Ullah breathed his last on the way to hospital. Motive for the occurrence was that 4/5 days earlier Ahsan Ullah and Muhammad Nawaz quarrelled. Absan Ullah gave fist blows to Muhammad Nawaz.
3. While leaving, Nawaz had threatened that he would take revenge of his insult, therefore, the present occurrence.
4. ' Occurrence took place on 26-2-1989 at 1 p.m. On the bank of Semedrain near the Dera of one Muhammad Hussain, Lambardar, 15 k.m. From Police Station Bambanwala. Complainant Exh.P.F.
5. Was made on 26-2-1989 at 3-30 p.m. By Allah Rakha, P.W.4, father of the deceased outside the mortuary of Civil Hospital, Daska; which was recorded by Muhammad Akmal, S.I. P.W.12, on the basis of which formal F.I.R. Exh.P.F:/1 was drawn the same day by Ghulam Hussain, M.H.C., P.W.6.
6. ' Muhammad Akmal, S.H.O., P.W.12, on 26-2-1989 recorded the statement Exh.P.F. Of Allah Rakha and sent the same to police station for registration of a case. He examined the dead body and prepared injury statement Exh.PA. And inquest report Exh.PA./1 and sent the dead body for autopsy.
7. Blood-stained earth from the spot was secured vide memo. Exh.P.G. He recorded the statements of the eye-witnesses. Last worn blood-stained clothes of the deceased were taken into possession vide memo. Exh.P.D. He got the site plan prepared from the Patwari. Thereafter he was transferred.
8. ' Jaffar Hussain, S.H.O. P.W.10, had also conducted, the investigation and arrested the accused.
9. Muhammad Riaz accused while in custody led to the recovery of rifle P.4 from Dera Baghwala, which was secured vide memo. Exh.P.E. He got the memo. Attested from witnesses. After usual investigation he challaned the accused.
10. ' P.W.1 Dr. Muhammad Nasrullah Khan, Medical Officer, Civil Hospital, Daska on 27-2-1989 conducted the post-mortem examination on the dead body of Ahsan Ullah and found the following injuries:--
(1) A lacerated fire-arm wound 1-1/2 c.m. x 1-1/2 c.m. With abrasion 1-1/2 x 1 c.m. Around the medial aspect of wound. The blackening and tattooing was present around the wound on the front of right side of chest, horizontal in shape, 1-1/2 c.m. Below and medial to the right nipple with inverted margins just near the sternum bone.
(2) A lacerated fire-arm wound 2 x 2-1/2 c.m. In diameter on the lateral aspect of right side of chest with distance of 17 c.m., below and lateral to the right nipple and about 17 c.m. From injury No,1 with everted margins. The fatty tissues were protruding out of the wound. This was the exit wound of injury No,l.
(3) A lacerated fire-arm wound 3/4 c.m.In diameter on the back of right fore-arm with blackening and tattooing around the wound, 16 c.m. From the wrist joint of right side with inverted margins. This was entry wound.
(4) A lacerated fire-arm wound 1 c.m. In diameter with everted margins on the front of right fore- arm, 13 c.m. From the right wrist joint. This was exit of injury No,3.
(5) An abrasion 8 c.m. x 1 c.m. Oblique in shape on front of left leg in middle part.
11. ' In his opinion the death had occurred due to injury No,1, which was sufficient to cause death in the ordinary course of nature as it had caused shock and haemorrhage.
3. Prosecution in support of its case had produced 12 witnesses in all. Dr. Muhammad Nasrullah Khan, P.W.1 had conducted the post-mortem examination. Allah Bakhsh, Patwari, P.W.2, on the directions of the police had prepared site plan Exh.P.C. Of the spot. Muhammad Sharif, P.W.3 had identified the dead body at the time of post-mortem examination, and witnessed the recovery of rifle P.4 at the instance of Muhammad Riaz appellant. He had signed the recovery memo. As well.
12. Eye-witness account was furnished by Allah Rakha and Irfan Ullah, P.Ws.4 and 5, respectively.
13. Ghulam Hussain, Moharrir, P.W.6 had drawn the formal F.I.R. Exh.P.F./1. Munawar Ahmad, P.W.7 had deposed about the earlier incident between the parties and had also witnessed the recovery of rifle P.4. Ghulam Qadir, F.C., P.W.8 had produced last-worn clothes of the deceased after autopsy. P,W.9 Khalid Mehmood, H.C. Was entrusted with the non-bailable warrants of arrest of the accused. The case was initially investigated by Muhammad Akmal Bhatti, the then S.H.O., P.W.12, and thereafter by Jaffar Hussain, S.H.O. P.W.10.
14. At the conclusion of prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. The appellant, however, neither produced defence evidence nor appeared in his defence on oath.
4. It was contended by learned counsel for the appellant that the case against him was not established at all. Submitted that the ocular account was in conflict with the medical evidence because blackening was found on both the wounds, whereas, according to the prosecution one injury was caused with pistol from a distance of 4 feet, which could not be possible. Argued that the prosecution story as given by the eye-witnesses was highly improbable and unnatural therefore, be disbelieved. Argued that the eye-witnesses, who are closely related and inimical, have been disbelieved as far as the acquitted accused are concerned therefore, may not be relied upon against the appellant without corroboration which is not available. The contentions were opposed by learned counsel for the State.
5. We have heard the learned counsel and gone through the file. The prosecution in order to prove its case had mainly relied upon the ocular account furnished by Allah Rakha and Irfan Ullah, P.Ws.4 and 5, respectively. They sought corroboration from medical evidence and the evidence of recovery of fire-arm at the instance of the appellant. As far as the recovery of rifle at the instance of the appellant is concerned, it may not be of much consequence because no empty was secured from the spot and the rifle was sent to the Expert who could not determine when it was fired last.
15. The trial Court had also disbelieved the recovery of rifle. We have noticed that the recovery of rifle was rightly ruled out of consideration because the Dera from where it was recovered was not in possession of the appellant.
16. ' According to the prosecution evidence, the deceased was fired at by Muhammad Riaz, appellant, with rifle and thereafter Zulfiqar fired at him with pistol. The distance from which they fired at the deceased was 4/5 feet. Strangely enough both the injuries had blackening and exit wounds as well.
17. If a person fires with a pistol from a distance of 4/5 feet, there cannot be blackening on the wound.
18. Blackening can be noticed if a pistol is fired from a distance of one foot. In these circumstances, we are of the view that the medical evidence does not lend any corroboration to the prosecution.
19. Instead it contradicts it.
20. ' Ocular account was furnished by Allah Rakha and Irfan Ullah, P.Ws.4 and 5, respectively. Allah Rakha was father and Irfan Ullah was real brother of the deceased. They were put to the test of lengthy cross-examination wherein both of them stated that they had strong enmity against the accused persons, so much so they were not even on speaking terms with each other. They further admitted that 4/5 days before the present occurrence the accused side had got a case registered against Ahsan Ullah deceased for pigeon theft wherein he was arrested and subsequently bailed out. If the statement of both the witnesses is accepted about the registration of the case, then the deceased sitting on the motorcycle of the accused persons on the fateful day would be highly unnatural. In view of the background of such an enmity he could not be expected to go for a ride with the enemies. Both the eye-witnesses stated that the accused persons brought Ahsan Ullah on the motorcycle and fired at him. This part of the statement appears to be unnatural. There was no occasion for the assailants to park the motorcycle near the witnesses and then murder the deceased. They could have taken him to an isolated place. We feel the ocular account is not free from doubt. Both the eye-witnesses were disbelieved as far as the involvement of three acquitted accused was concerned. Eye-witnesses had ascribed specific role to each of them, yet the trial Court gave the benefit of doubt and acquitted them. In such circumstances, we are of the view that the eye-witnesses cannot be relied upon qua the appellant unless strong corroboration was available, which, as discussed above, is missing, ' The upshot of the discussion is that it would be extremely unsafe to rely upon interested and inimical eye-witnesses. Therefore, giving the benefit of doubt we accept the appeal and set aside the conviction of the appellant. The appellant shall be released forth with if not required in any other case. Death sentence is not confirmed.