' SAAD SAOOD JAN, J.---On the night between 5th and 6th September, 1987, Shera, deceased, was killed while he was taking his turn of water in village Malwali within the area of Police Station Hannah Dorgan. The incident was reported by Mahmood Khan (P.W.7) at the police station at 4-00 a.m. On 6th September, 1987. He named six persons as responsible for the killing. They were Rosa, Sultan, Shahabad, Khan, Asher and Zafar. Sultan absconded and is no longer traceable. Thus, only five persons, namely, Rasab, Shahamad, Khan, Asghar and Zafar were put on trial before the Additional Sessions Judge, Sheikhupura. Asghar and Khan died before the trial could conclude.
Zafar was acquitted by the learned Judge. Thus, only Rasab and Shahamad were found guilty on the charge under section 302, read with section 34, Pakistan Penal Code, and on conviction were sentenced to suffer imprisonment for life, in addition to payment of fines. On appeal, the High Court maintained their convictions and sentences.
2. Rasab filed a petition for special leave to appeal to challenge his conviction and sentence.
Shahamad filed a petition through jail seeking the same relief. Mahmood Khan (P.W.7) filed a petition inter alia seeking enhancement of the sentences awarded to Rasab and Shahamad. The petition filed by Mahmood Khan (P.W.7) was dismissed while leave was granted to Rasab, Shahamad's jail petition is still pending. After hearing the learned counsel for the parties we convert his petition too into appeal.
3. Mahmood Khan (P.W.7) had purchased some land from one Rajada. Sultan who was the brother of Shahamad and some others filed a suit for preemption. The suit was still pending when the present occurrence took place. It may be mentioned that Shera, deceased, was a distant uncle of Mahmood Khan (P.W.7).
4. As stated earlier, the deceased was attacked as he was watering his fields. According to the prosecution, at the relevant time Rasab, Shahamad and Sultan were armed with shot guns Khan had a hatchet while Asghar and Zafar were carrying Sotas. Rasab, Shahamad and Sultan fired at the deceased while the other attacked him with their weapons. The deceased died at the spot.
5. Both, Rasab and Shahamad pleaded not guilty. They alleged that they had been falsely implicated in the case. They did not lead any evidence in their defense.
6. The case of the prosecution against Rasab and Shahamad was based essentially upon the ocular accounts provided by Mahmood Khan (P.W.7) and the son of the deceased namely, Ahmad Khan (P.W.9). The High Court doubted the presence of Mahmood Khan (P.W.7) at the scene of occurrence at the relevant time, observing that the enmity of the accused party was with Mahmood Khan (P.W.7) and not with the deceased; if Mahmood Khan had been present at the scene of occurrence at the relevant time he and not the deceased should have been the target of the attack. It, however, relied upon the testimony of Ahmad Khan (P.W.9), son of the deceased, and observed that it stood confirmed by the motive and the first information report which had been recorded without delay.
7. The reason given by the High Court for rejecting the testimony of Mahmood Khan (P.W.7) is substantial and it was entirely justified in keeping his testimony out of consideration. So far as Ahmad Khan (P.W.9) is concerned, he appeared before the Deputy Superintendent of Police during the course of investigations and made certain admissions which indicate that he too was not present when the deceased was killed. He was duly confronted with these admissions but was unable to explain them away. The relevant portion from his statement in this regard runs as follows:--- "I did not state before the D.S.P. That on the fateful day I was sleeping at the Dera and at about 2 a.m. I heard the report of firing upon which I rushed into the room to fetch a gun. (Confronted with Exh. D.B. Where it is so recorded). It is also incorrect to say that I had stated before the police that when I holding a gun rushed to the spot, my father had already expired. (Confronted with Exh. D.D.
Where it is so mentioned). I did state in reply to a question by the D.S.P. That I had seen my father having been murdered by the accused with my own eyes. (I also did not state that I was sleeping at the Dhari and my father had gone to irrigate the lands alone). It is incorrect to say that at the time of occurrence Iqbal, Mahmood and Muhabat had gone to village Mangat to say Fateha.
(Confronted with Exh. D.B. Where it is so recorded.)"
In view of the statement that he made before the Deputy Superintendent of Police his claim that he had witnessed the occurrence becomes dubious. Thus, this is a case where neither of the two eye- witnesses can be relied upon.
8. As noted above, the High Court found confirmation of the ocular testimony from the motive and the first information report. Now, Rosa had no motive of his own to harm the deceased. As regards the first information report, it was got recorded by a person who was not present at the scene of occurrence at the relevant time and yet he had falsely claimed to be so. Apart from this, the version therein was at best only a second hand account and for the reason could not furnish satisfactory confirmation to the ocular account.
9. For the. Reasons stated above, we are not persuaded that there was sufficiently reliable evidence to convict Rasab and Shahamad on the charge of C murdering the deceased. We would accordingly accept the two appeals and acquit them of the charge against them. They shall be set at liberty forthwith if not required in any other case.