ZIA MAHMOOD MIRZA, J.---This appeal by leave of this Court granted on a Jail petition is directed against the judgment of Lahore High Court dated 20-7-1991 whereby petitioner's conviction under section 302, P.P.C. On the charge of committing the murder of Amanat deceased was maintained though altering his death sentence to life imprisonment.
2. Murder of Amanat deceased which allegedly took place at 7-30 p.m. On 25-5-1987 was reported at Police Station, Shah Bhore of District Okara on 26-5-1987 at 3-00 a.m. By one Muhammad Ashiq.
According to the allegations in the F.I.R., Muhammad Ashiq complainant alongwith Nawaz Khan P W.5 and Daulat P.W.6 was going towards the nearby mosque for taking a bath. Amanat deceased was going ahead of them and just as he reached the WATT' of Killa No.21 of Square No.66, Muhammad Shafique, Allah Rakha and Muhammad Shafi all armed with .12 bore-guns and Muhammad Rafique armed with a 7 m.m. Rifle emerged from behind a heap of wheat, and raised a Lalkara' that Amanat would be taught a lesson for helping Faqir Hussain whereafter Muhammad Shafique, Allah Rakha and Muhammad Shafi fired shots which hit the head, neck and arm etc. Of the deceased while Muhammad Rafique fired at the complainant and Nawaz P.W., who remained unhurt Amant died at the spot.
Motive for the occurrence as alleged in the F.I.R. Was that there was a land dispute resulting in litigation between the complainant's brother Faqir Hussain and Muhammad Shafi accused in which Amanat deceased used to help Faqir Hussain. It was allegedly for this reason that Muhammad Shafi and his co--assailants committed the murder of Amanat deceased.
3. It appears that during the investigation of the case, the prosecution version set out in the F.I.R.
Lodged by Muhammad Ashiq was discarded and a new version was set up on the basis of the statements of Charagh, father of the deceased, Subhan, a cousin of the deceased (both not named as eye-witnesses in the F.I.R.) and Muhammad Nawaz and Daulat Ali P.Ws., all of them accusing Ramzan alias Jani, the present appellant, as an assailant who caused the murder of Amanat Ali deceased by firing to shots at him with his .12 bore gun, though the motive, the timing and place of the occurrence remained the same as were mentioned in the F.I.R. The appellant allegedly approached Charagh and Subhan P.Ws. On 18-6-1987, confessed his guilt before them and begged forgiveness but they produced him before the Investigating Officer who arrested him whereafter the appellant produced before him his gun which he had used in the commission of the crime and the same was taken into possession by the Investigating Officer.
4. After the completion of usual investigation, the appellant was challaned and put on trial to face the charge of murdering Amanat deceased. At the trial, prosecution sought to prove its case by the ocular testimony furnished by Subhan P.W.4 Muhammad Nawaz P.W.5 and Daulat P.W.6; extra- judicial confession made by the appellant before Subhan P.W., and Charagh (given up P.W.), the evidence of motive and the medical evidence. Relying on this evidence except the extra judicial confession which was disbelieved, the trial Court found the appellant guilty of the charge of murdering Amanat deceased, convicted him under section 302, P.P.C. And sentenced him to death with a fine of Rs.10,000 and he was also directed to pay Rs.10,000 as compensation to the legal heirs of the deceased.
5. On appeal filed by the appellant and the References submitted by the trial Court under section 374, Cr.P.C. For confirmation of the death sentence awarded to the appellant, the learned Judges of a Division Bench of Lahore High Court upheld the conviction of the appellant under section 302, P.P.C. But did not confirm his death sentence and instead sentenced him to imprisonment for life and also reduced the amounts of fine and compensation to Rs.5,000 each. This was vide judgment impugned in the present appeal.
6. Leave to appeal against the impugned judgment of the High Court was granted by this Court after noticing the following discrepancies in the cases:--
(i) Muhammad Ashiq, posing himself as an eye-witness of the occurrence, lodged the F.I.R.
No.53/87 on 26-5-1987 at Police Station Shahbore, District Okara in which he charged Muhammad Shafiq son of Rafiq, Allah Rakha son of Muhammad Sharif, Muhammad Shafi son of Ahmed, and Muhammad Rafiq son of Falak Sher for firing at the deceased with their respective guns in the presence of Daulat Ali P.W.6 and Nawaz Khan P.W.5 but these persons were neither arrested nor prosecuted;
(ii) that the the of occurrence noted in the F.I.R. Is 7-30 p.m. On 25-5-1987 but the report was lodged at 3-00 a.m. On 26-5-1987. The delay of about 8 hours remains unexplained; (i.e) Ramzan petitioner has not been charged in the F.I.R. And the maker of the F.I.R. Though consistently shown as an eye-witness of the occurrence was not produced by the prosecution to explain as to why he charged the persons mentioned in the F.I.R. And omitted to charge the petitioner for the offence;
(iv) the prosecution witnesses have attributed to shots to the petitioner but according to the medico-legal report the doctor found 13 lacerated wounds on different parts of the body of the deceased, to of them with blackening and according to the opinion of the doctor expressed by him under cross-examination, these injuries could be the result of at least 5 independent shots;
(v) the distance between point No. l where the deceased was fired at and point No.3 wherefrom the petitioner allegedly fired at the deceased is shown as 4 Karams in the site plan Exh.PC/1 but burning was found on some of the wounds of the deceased;
(vi) the presence of the semi-digested food in the stomach of the deceased according to the medico-legal report does not apparently corroborate the the of occurrence mentioned in the report;
(vii) the motive advanced is not strong enough for prompting the accused for killing the deceased.
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7. We have heard the learned counsel for the appellant as also the learned counsel appearing for the State. Learned counsel for the appellant reiterated most of the points noted in the leave- granted order and vehemently contended that the appellant was not named in the F.I.R. Lodged by Muhammad Ashiq complainant who, it has not been denied by the prosecution was witness of the occurrence. According to the learned counsel, there was no good reason for the complainant to have omitted the appellant if he had actually perpetrated the crime. Learned counsel also took strong exception to the prosecution withholding the maker of the F.I.R. Who admittedly was an eye- witness of the occurrence. Objection was also taken to non-examination of Cheragh P.W. Who is the father of the deceased and was according to the prosecution an eye-witness of the occurrence. It was contended by the learned counsel that the appellant was falsely involved in the case by substituting him for the real culprits with ulterior motives. It was submitted that the Courts below failed to appreciate that the appellant had no motive to kill the deceased, as there existed no such previous enmity between them as would induce the appellant to commit calculated murder of the deceased. Learned counsel also pointed out that the testimony of the alleged eye- witnesses stood belied by the medical evidence. Learned counsel also made a grievance that the persons named in the F.I.R. As having fired at the deceased and killed him were never arrested by the police and instead a false case was cooked up against the appellant and he was arrested 22/23 days after the occurrence.
8. The a forenoted infirmities/deficiencies in the prosecution case are amply borne out from the record. The motive for the crime as alleged by the prosecution was that Muhammad Shafi and Faqir Hussain, the co-villagers of the appellant and the deceased had a land dispute and they were engaged in litigation with each other. Amanat deceased was the supporter of Faqir Hussain while the appellant was supporting Shafi and some days prior to the occurrence, the deceased and the appellant had an altercation and they asked each other to refrain from supporting Faqir Hussain and Shafi. It was alleged that it was on account of this grudge that the appellant killed the deceased. It is in the evidence of the Investigating Officer, however, that throughout the investigation, no motive against the appellant was brought to his notice. It is also an admitted position that the petitioner and the deceased had no other enmity and had no concern whatsoever with the land which was the bone of contention between Faqir Hussain and Shafi. In the circumstances, we quite agree with the learned counsel that the appellant had no motive at all or for that matter, no motive strong enough to prompt him to commit cold-blooded murder of the deceased. Not only that, the appellant was also not named in the F.I.R. Which was lodged by Muhammad Ashiq complainant who admittedly was an eye-witness of the occurrence. The complainant had in fact charged Muhammad Shafi and three others mentioned in the F.I.R. For having fired at the deceased and killed him. The appellant was subsequently substituted for those named in the F.I.R. Case of the prosecution sought to be proved at the trial was that the deceased was fired at and killed by the appellant; the occurrence was witnessed by Subhan P.W.4, a cousin of the deceased, Muhammad Nawaz P.W.5, Daulat Ali P.W.6, Cheragh, father of the deceased, and Muhammad Ashiq complainant (both not produced) and that the complainant got a false case registered against Muhammad Shafi and others who were the enemies of his brother Faqir Hussain and omitted the name of the appellant as he belonged to his (the complainant's) brotherhood.
According to the prosecution, Subhan, Cheragh, Nawaz and Daulat P.Ws., who claimed to have witnessed the occurrence reached the police station immediately after the recording of the F.I.R.
And narrated the incident to the Police Inspector/S.H.O. Implicating the appellant whereupon Ashiq complainant who was still present in the police station apologized from the Police Inspector stating that he had got a wrong case registered due to his personal enmity. It is further stated by the P.Ws., that their statements were recorded at the police station. Relying on this part of the prosecution story, the learned Judges of the High Court observed that Nawaz, Daulat and Subhan P. Ws., had repudiated, the claim of Ashiq complainant regarding the murder of Amanat at the hands of Shafiq shortly after the F.I.R. In question was registered and proceeded to hold "such an early substitution of the accused persons named in the F.I.R. With Ramzan appellant, rules out the possibility of the same having been prompted either by subsequent consultations and fabrication or even for any monetary and financial consideration." On closer examination of the evidence, however, we find that the subsequent version implicating the appellant instead of the persons accused in the F.I.R. Was not brought up as early as was sought to be made out at the trial because the name of the appellant was admittedly not mentioned as an accused in the inquest report which according to the Investigating Officer P.W.9 was prepared by him long after the recording of the F.I.R. And the statements of the P.Ws. On the other hand, the accused named in the F.I.R.
Continued to be shown in the inquest report. If what the prosecution would have us believe were correct, the name of the appellant would certainly have found mention in the inquest report. In the circumstances, it can be safely presumed that the name of the appellant was substituted any the after the preparation of the inquest report, may be days after as his arrest, to, was effected 22/23 days after the occurrence and there is no cogent evidence on the record to show that the Police had taken any tangible steps to arrest him earlier but could not do so. He was not even shown to have been declared a proclaimed offender. The presence of Subhan and Cheragh P.Ws., at the the of occurrence is also doubtful as their presence is not shown in the F.I.R. Which was lodged by Muhammad Ashiq who it is not denied was an eye-witness of the occurrence. Their names are also not mentioned as eye-witnesses in the inquest report. If they were really present at the the and place of occurrence, there was no reason why both or at least one of them would not have gone to the police station for lodging the F.I.R. The reason given by Subhan P.W.4 that they were going to Basti Balochi to purchase buffaloes at that odd hour does not appeal to reason. In fact, he himself stated that it was per chance. Even otherwise, the evidence of Subhan P.W. Does not inspire confidence. He denied the knowledge of what should have been a widely known fact namely that a case under sections 307. 325/148/149, P.P.C. Was registered against the appellant, his father Nabi Bakhsh, his brother Saeed and his cousin Muhammad Sharif for breaking the legs of Faqir Hussain and Nazir Hussain, the brothers of Ashiq complainant though it was admitted by Daulat Ali P.W.
That a Criminal Case was registered against the appellant, his father, uncle and others for causing hurt to Nazir, brother of Faqir Hussain. Subhan P.W., it appears, deliberately tried to suppress the background of enmity between Ashiq complainant and the appellant as he had earlier deposed that Ashiq had not named the appellant as accused in the F.I.R. As he belonged to his 'Bradari'. The fact that Fazal Muhammad, a brother of Muhammad Shafi (accused in the F.I.R.) had transferred four acres of land in the name of Subban P.W. After the murder of Amanat Ali also renders his credentials open to serious scrutiny and his bare word of mouth that he had purchased the said land for a sum of Rs.1,00,000 and had paid Rs.40,000 as earnest money cannot be implicitly relied upon in the absence of any independent evidence of payment of whole or part of the alleged consideration.
9. The other to eye-witnesses namely Muhammad Nawaz P.W.5 and Daulat Ali P.W.6 are also not independent and disinterested witnesses. Muhammad Nawaz P.W. Is the cousin of Faqir Hussain with whom, the appellant as noted above had a background of enmity which though was sought to be concealed by this witness by stating that he did not remember if the legs of Faqir Hussain and Nazir were broken by Jan Muhammad, Muhammad Sharif, Muhammad Siddique and Saeed Muhammad or that any case under section 307/325/148/149, P.P.C. Was registered against them.
Daulat Ali P.W.6 also admitted that the deceased was from his brotherhood.
10. Non-examination of Ashiq complainant and Cheragh P.W., the father of the deceased on the usual and hackneyed plea that they have been won over by the accused seriously reflects upon the credibility of the prosecution case. The complainant, if produced, would have explained as to why he omitted the name of the appellant and charged the persons mentioned in the F.I.R. Yet another circumstance which detracts from the credibility of the ocular evidence is its inconsistency with the medical evidence. According to the P.Ws., only to shots were fired at the deceased, one hit his head and the other on his neck but the doctor found as many as 13 lacerated wounds on different parts of the body of the deceased from head to knee joint and to of the wounds also had burning andblackening. All these wounds could not possibly have been caused by the to shots attributed to the appellant which according to the P.Ws., only hit the head and the neck of the deceased. In the opinion of the doctor, these injuries could be the result of at least five independent shots. Oculer evidence, in our view, stands belied by the medical evidence. It has also been observed that although according to the P. Ws.. The appellant when firing the second shot had re- loaded his gun, no empty was recovered from the spot.
11. Upshot of the above discussion is that the charge against the appellant cannot be said to have been proved beyond reasonable doubt and we, therefore, find it unsafe to uphold his conviction on a capital charge. This appeal is accordingly allowed and the appellant is acquitted of the murder charge. In fact, by a short order, the appeal was accepted and the appellant was acquitted of the charge and it was directed that he shall be released forthwith if not required in any other case.
Reasons have now been recorded in this judgment.