SHAUKAT ALI, J.-Muhammad Arif (22), Jafar Ali (20), Noor Khan (62), Hakim Ali (35) and Muhammad Shaft (50), were tried under sections 302/149 and 148, P. P. C. For having formed themselves into an unlawful assembly with the corlmon object of committing the murder of Hanif and in the prosecution of that common object to have actually on 3rd of November 1967, at digarwela (3/4 p.m.) committed the murder of said Hanif in the area of village Rukhanwala, within the jurisdiction of Police Station Lulliani, in the district of Lahore. The learned Additional Sessions Judge, Lahore Camp at Kasur, who tried them. Acquitted Jafar Ali, Noor Khan, Hakim Ali and Muhammad Shafi of both the charges, but convicted Muhammad Arif under section 302, P. P. C. For the murder of Hanif and ordered him to suffer death. The condemned person has appealed and the case is also before us under section 374, Cr. P. C. For confirmation of sentence of death. This judgment will dispose of the appeal and the reference.
The accused are related inter se. Muhammad Arif appellant is a brother of Jafar Ali. Muhammad Shall is their maternal uncle. Hakim Ali is married to the sister of Muhammad Arif and Jafar Ali.
2. The case of the prosecution was that the accused were annoyed with the deceased and suspected him that he was an informer against them to the police. The prosecution alleges that on 3rd of November 1967, at digarwela Muhammad Hanif deceased and his brother Muhammad Sharif pro--ceeded to their house after having a look at their land. Muhammad Hanif was ahead of Muhammad Sharif. When they crossed the haveli of Bashir Christian, the accused appeared at -the scene Muhammad Arif had a rifle while the other accused were empty-handed. All of them raised lalkara that Hanif should be done to death as he had been acting as an informer of the police against him. Muhammad Arif who was ahead of the other accused fired from his rifle at a distance of 10/15 paces. The shot hit Hanif. He fired a few more rounds while he was advancing towards the deceased. The shots hit Hanif and he fell down. The occurrence was witnessed by Muhammad Sharif, Mansha and Khadim Ali gripped Muhammad Arif from behind whereupon Muhammad Sharif snatched rifle P. 1 from him. The companions of Muhammad Arif raised lalkara and advanced towards Muhammad Arif, whereupon the witnesses released him. Hanif succumbed to the injuries at the spot within half an hour.
Muhammad Sharif P. W. Handed over the rifle to Muhammad Mansha and asked him and Khadim Ali to guard the dead body and proceeded to Police Post Raja Jang where he made a report Exh. P.
A. To Talib Hussain, A. S. I. He recorded it at 6-40 p. m. The A. S. I. Forwarded the report to Police Station Lulliani. Formal F. I. R. Exh. P. A/1 was recorded at 8-45 p.m. At Police Station Lulliani, which is at a distance of nine miles from the place of incident.
The A.S.I. Proceeded to the spot. He prepared the injury state--ment and the inquest report of Muhammad Hanif and despatched the dead body for post-mortem examination. Muhammad Mansha P. W. Produced rifle, P. 1 containing an empty cartridge P. 6 in the chamber. The same was taken into possession and made into separate sealed parcels vide memo. Exh. P. E. He collected blood-stained earth from the place of incident and made into a sealed parcel vide memo. Exh. P. F.
He also collected three empty cartridges P. 7/1-3 from the place of incident and made the same into a sealed parcel vide memo. Exh. P. C.
3. The autopsy on the dead body of Muhammad Hanif was conducted by Doctor Naseem Ahmad Qureshi, Medical Officer, Civil Hospital, Kasur, on 4th November 1967, at 3-30 p.m. And the following injuries were found thereon :-
(1) A wound circular in shape, -- " x -- " on the abdomen at its lower part, l I" to the right umbilicus.
The area at the margins of the wound was charred.
(2) A gircular wound 3/8" x 2/8" on the abdomen, 21" to the left and below the umbilicus.
(3) A horizontal charred area 1 -- " x-- " on the abdomen, above injury No. 1.
(4) A wound horizontal in direction in front of the left thigh at the upper 1/3rd. The size was 2" x 1".
The wound was skin deep and its margins and surface were charred. The skin and the subcutaneous tissues were slightly everted at the outside of the wound.
(5) A wound on the lower part of the abdomen, dinner to the left hip bone, 3/8" x 3/8" in size and circular in shape. Its margins were charred.
(6) A wound irregular in shape with everted margins on the back of the left buttock near the mid line. Size was -- " x -- ".
Death in the opinion of the doctor was due to massive haemorrhage and shock as a result of injuries Nos. 5 and 6. These injuries were sufficient in the ordinary course of nature to cause death.
All the injuries were the result of fire-arm.
In cross-examination the doctor stated that the distance of firing place from the deceased was about four feet at the time of. Fire which hit the deceased.
4. Direct evidence regarding the commission of crime is furnished by Muhammad Sharif P. W. 13, Muhammad Mansha P. W. 14 and Khadim Ali P. W. 15, in their statements. Munawar Khan P. W. 11, Malik Inayat Hussain P. W. 12, Khadim, Ali P. W. 15 and Talib Hussain P. W. 16, testified to the recoveries in the case.
5. Te appellant when examined admitted the relationship of the accused inter se but denied the prosecution allegations. He stated that Farzand P. W. Got him involved in a murder case of his uncle Haji Jamal Din in 1961. He was acquitted in that case. Farzand P. W. Appeared as a witness in that case against him. Later on in the year 1964, Farzand P. W. Got him and his brother Jafar challaned under section 307/34, P. P. C., but they were discharged by a section 30 Magistrate at Kasur.
Farzand P. W. Is a nephew of the deceased and relative of Muhammad Mansha and Khadim Ali P.
Ws. He stated that due to enmity he has been implicated in this case. At- the trial he stated that the deceased used to appear as prosecution witness against different persons and some body might have murdered him. No evidence was called in defence.
6. The prosecution in support of its case relied on the oral testimony of three eye-witnesses namely, Muhammad Sharif, Muhammad Mansha and Khadim Ali and the recovery of rifle P. .1, along with empty P. 6 and three empties P. 7/1-3, recovered from the spot. Out of the eye-witnesses examined Muhammad Sharif is the brother of the deceased. Muhammad Mansha P. W. Is married to a sister of Muhammad Sharif P. W. And Muhammad Hanif deceased. Khadim Ali P. W. Is their first paternal cousin and another sister of their is married to him. Apart from this, Muhammad Sharif, P: W. Admitted in cross-examination that Haji Jamal Din brother of his brother-in-law Fateh Muhammad was murdered and Muhammad Arif was challaned in that murder case but was acquitted. Therefore, these eye-witnesses are inimical to the appellant. It is well-settled now that in approaching the question of the extent to which credence should be given to the inimical eye- witnesses, the first and foremost consideration to be borne in mind is that there might be false implication of the persons who were known to be the enemies. In a case of this nature, where natural witnesses were not produced by the prosecution and there is a background of enmity it puts the Courts on caution and we have to examine the evidence of these witnesses minutely and carefully.
7. The first question that revolts one's mind is whether these eye-witnesses were present at the time of the incident. Muhammad Sharif P. W. Claims that he was accompanying the deceased after having a round from his land. Muhammad Mansha P. W. Stated that he was proceeding towards his fields from his house. In cross-examination he stated that he owned no land in village Rukhanwala. Khadim Ali P. W. Stated that he went towards the site in search of some Christian as he wanted that he should work for him, but he did not meet anyone. Muhammad Mansha and Khadim Ali are chance witnesses. Kha.Dim Ali was trying to find a Christian which he could not.
Suchlike explanations are often coined by chance witnesses to testify an incident. Likewise, the presence of Muhammad Ma.Nsha at the spot does not inspire confidence as he had no land in village Rukhanwala. In addition, these witnesses have improved their version of the incident. At the trial they stated that Muhammad Arif continued advancing and firing at the deceased. Obviously, the story of movement by the gun-man at the time of firing was introduced in order to reconcile their evidence with the medical opinion. Initially the case of the prosecution was that the appellant fired at the deceased from a distance of 75 feet, as is come out by the plan Exh. P. H./I
8. Doctor Naseem Ahmad Qureshi, who performed the post-mortem examination on the dead body of Muhammad Hanif, deposed that the margins of the wounds were charred and darkened.
He also stated that the distance of the firing place from the deceased was about four feet at the time of fire which hit the deceased. It is apparent from the medical evidence that the shooting took place from a close quarter. Therefore, the evidence of Doctor Naseem Ahmad Qureshi furnishes a very strong support to the defence plea that the firing took place from a close range and not as alleged by tire eye-witnesses from a distance of 75 feet. In face of this evidence we would say that the medical evidence belies the ocular account and cast doubt as to the presence of these eye- witnesses at the spot.
The eye-witnesses claim that they apprehended the appellant and snatched the rifle from him.
Oddly enough, though they had deprived the culprit of the firearm, they released him on the raising of lalkara of his companions without an aggression on their part. This conduct of the eye-witnesses weighs heavily against them and cast further doubt as to there presence at the spot.
9. The evidence of recovery of the empties P. 7/1-3.And rifle P. 1 does not inspire confidence. The is no mention of the empties alleged to have been recovered from the Pot in the. Inquest report. If the empties would have Ocean were it would have been described by the A. S. I. In the said report.
Muhammad Mansha P. W., who produced the rifle was a material witness, but Exh. P. E. Shows that he did not sign the memo. Or thumb-mark it. This makes the recovery of the rifle doubtful.
It has also come in evidence that the deceased was a police stock witness and the suggestion of the defence that he was murdered by anyone of his enemies might he true. It has also been held that the eye-witnesses falsely implicated four of the accused. From the appraisement of evidence it is thus clear that it is not safe to place implicit reliance on the prosecution evidence produced in this case. The ocular account has been belied the medical evidence and the eye-witnesses have given an exaggerated account and have been held guilty of falsely roping innocent persons. To carry conviction on a capital charge, the evidence must come from an unimpeachable source which is lacking in the instant case. The case against the appellant doubtful.
10. The upshot of the whole discussion is that we allow the appeal, set aside the conviction and the sentence of the appellant and direct that he be acquitted.