' Upon commencement of trial of case registered at Police Station Basirpur Tehsil Depalpur, vide F.I.R. No,339 of 1989, dated 14-11-1989, Munawar Masih appellant and two others were charged for having caused/ committed murder of Atta Muhammad, brother of Shah Muhammad complainant, by firing a shot with pistol. On culmination thereof, Munawar Masih alone was found guilty, convicted and sentenced under section 302, P.P.C. To imprisonment for life. He was also held liable to pay fine to the tune of Rs,20,000 and to undergo R.I. For one year in default thereof. It was further directed that, amount of fine, if recovered, shall be paid to legal heirs of the deceased. Benefit of provisions of section 382-B, Cr.P.C. Was extended to the appellant, while, computing the period of his sentence.
2. Briefly facts as unfolded in, and reflected by F.I.R. Exh.P.A. Lodged by Shah Muhammad complainant P.W.1, are, that on 13th November, 1989, he i,e, the complainant alongwith his brother Muhammad Arif (P.W.2) set out to Dhari of one Amir in Mauza Koekey Bahawal to see their brother Atta Muhammad, who, resided there. On reaching there in the evening, they learnt, that their brother Atta Muhammad, had left for Chah Rati Wala, where, he cultivated land on lease, to look after his cattle. Taking Muhammad Shahbaz alongwith them, they, then, proceeded to Chah Rati Wala and met Atta Muhammad.
3. At about 1-00 a.m. Atta Muhammad went to sleep, while the complainant and his companions remained indulged in conversation, when, at about 2-00 a.m., appellant Munawar Masih armed with .12 bore pistol, Mashooq Masih empty-handed and Zubair alias Kali armed with a Sota came there. Shah Muhammad, complainant, Muhammad Arif and Muhammad Shahbaz claim to have identified all the three accused person in the moon light.
4. Munawar Masih asked about Atta Muhammad and on being told that he was sleeping on the cot, across them, Mashooq Masih and Zubair accused sat over the cot, while, Munawar Masih fired at him and the shot hit in his left eye below the left ear. Complainant and his companions tried to apprehend the accused, who, however, made their escape good, hurling threats of dire consequences to them. Injured/victim died on the spot.
5. Motive behind the occurrence is stated to be suspected illicit relations and intimacy of deceased with sister namely Mst. Rani of Munawar Masih appellant.
6. At the trial, the prosecution examined as many as nine witnesses in support of its case/version.
P.W.1 Shah Muhammad and P.W.2 Muhammad Arif, both brothers of deceased, furnished ocular account of the incident. P.W.3, Rehmat Ali and P.W.4, Atta Muhammad are recovery witnesses.
P.W.5, Qasim Ali signed the memo. Of recovery of last-worn clothes of deceased. P.W.6, Muhammad Yar identified the dead body of deceased at the time of post-mortem examination.
Muhammad Ali, S.-I., P.W.7, investigated the case and Khadim Hussain P.W.8 escorted the dead body to morgue for autopsy. Dr. Naseer Ahmad P.W.9, provided medical evidence and found following nine injuries on the person of deceased:--
(1) An irregular fire-arm wound measuring 1-1/2 x 1 c.m. On the left side of front of chin, 2 c.m. Below and inner side of angle of mouth. It was encircled with blackening measuring 3 x 2 c.m. Directed inwards and upwards and outwards (entry wound).
(2) A fire-arm wound measuring 3 x 1 c.m. Into deep going directed upwards and inwards lacerated the lower lip on the outer aspect of left side of lower lip. It was encircled with blackening 5 x 2 c.m. Margins were inverted and blackened (entry wound).
(3) A fire-arm wound 4 x 1/2 c.m. On the left side of mandible in the submendibular region directed upwards and backward. Margins were inverted (entry wound).
(4) Five irregular fire-arm wounds of different dimensions in an area 7 x 7 c.m. On the outer canthus of left arbit, and interior aspect of left temporal region. Margins were evened (exit wound).
(5) A fire-arm wound 3-1/2 x 1 c.m. On the left side of temporal region 2-1/2 c.m. On the front of tragus. Margins were evened (exit wound).
(6) A fire-arm wound 3 x 1-1/2 c.m. On the left temporal region kissing the left ear lobule. Margins were everted (exit wound) as a result of injury No,3.
(7) A fire-arm wound 1-1/2 x 1-1/2 c.m. On the left side of face. 2 c.m. Behind the injury No,3 (exit wound).
(8) A fire-arm wound 1/2 x 1/2 c.m. On the left cheek (exit wound).
(9) Bleeding from both the ears was present and bleeding from both nostrils and mouth was present.
7. When examined under section 342, Cr.P.C. Appellant and other accused denied and disputed all the incriminating circumstances figuring against them in prosecution evidence, professed innocence and alleged false implication. Imtiaz Ali Dispenser D.W.1 and Ch. Shafqat Ahmad, D.S.P.
Were produced in defence, while, none of accused opted to appear to disprove the allegations envisaged by section 340(2), Cr.P.C.
8. As indicated above, appellant Munwar Masih alone was adjudged guilty, convicted and sentenced, while, his companions namely Mashooq Masih and Zubair alias Kali were exonerated, given benefit of doubt and acquitted.
9. Learned counsel representing the appellant has remarked that the prosecution has failed to prove its case beyond reasonable doubt; there are material contradictions between ocular account and medical evidence, it is blind murder, there is serious and inordinate delay in lodging F.I.R.; post-mortem was also conducted after a considerable delay; recovery is planted; witnesses are interested and related to deceased; motive is not proved; P.Ws. Are not from the locality and single independent witness was not produced. Reliance has been placed upon Munir Ahmad and another v. The State 1976 PCr.LJ 1078, Anara v. The State 1988 M LD 237, Sahib Gul v. Ziarat Gul and others 1976 SCM R 236 and Khadim Hussain v. The State 1988 PCr.LJ 1453 to contend that presence of eye-witnesses at spot and identification of accused by them in moonlight is highly doubtful.
10. Conversely, impugned conviction and sentence have been claimed and described to be not only warranted by data and material on file but also in consonance with law as well.
11. As regards recovery of crime weapon, suffice it to observe that same, even, if, taken to gospel truth despite being perfunctory on several counts does not advance prosecution case in any manner, in absence of report of the Expert. As such recovery of pistol P.4 by means of memo.
Exh.P.E. Has, no evidentiary value so as to lend any support to the cause of prosecution.
12. In wake thereof case hinges on ocular evidence motive and medical evidence. In so far as motive is concerned, same has a direct bearing upon ocular evidence and the identification of accused. If both the eye-witnesses, who, happen to be brothers of deceased knew that Munawar Masih appellant suspected the deceased of having illicit intimacy with his sister, then, there was hardly any occasion for them to have pointed out the cot upon which the deceased was lying/sleeping particularly when the said accused was armed with a pistol. Conduct of all the prosecution witnesses cannot be taken to be natural on arrival of accused, if set up motive was known to them. Very pointation by said witnesses that the deceased was lying across them on a cot to accused person in dead hours of night does not sound to reason. It rather renders presence of eyewitnesses at the spot to be highly doubtful inasmuch as their identification in moonlight of accused, who, cannot be taken to have acquaintance with witnesses previously in the absence of any evidence to that effect. I am fortified in this belief by illuminating observation made in Munir Ahmad and another v. The State 1976 PCr.LJ 1078, Anara v. The State 1988 M LD 237. As a necessary corollary prosecution case has to collapse like house of cards, as motive; presence of eye- witnesses who, safely can be taken to be chance witnesses and identification of accused in the moonlight is wrapped in doubt.
13. In terms of prosecution story, acquitted accused namely, Mashooq Masih and Zubair alias Kali held the deceased, while, lying on cot and the appellant is stated to have fired while standing towards head of deceased. Medical evidence runs counter to such direction and even number of shots ascribed to appellant. Rather there is sharp conflict between medical evidence and ocular account, which is rather falsified thereby.
14. There is yet another aspect of the matter. Learned Trial Court has not believed the prosecution evidence against appellants companions and role attributed to them has been found to be doubtful. Same evidence data and material could hardly afford any basis for conviction of even appellant who, like his companions, was also entitled to the benefit of doubt, as expounded in plethora of authorities and galaxy of rulings on the point.
15. Net result of above discussion is that the presence of eye-witnesses at the spot and identification of accused by them in moonlight is highly doubtful; recovery of incriminating articles is also not above board; and possibility that the deceased was done to death during night by some unknown persons are apparent on the face of the record. Be that as it may delay in reporting the matter to police, which of course, set the law into motion and post-mortem examination impair the prosecution case beyond repair. Needless to observe that benefit of doubt, how slight it may be, has to go to accused.
16. Resultantly, conviction and sentence awarded to appellant are neither warranted by data and material on record nor sustainable in law and open to serious and grave exceptions. As a sequel thereto, appeal is accepted, impugned) conviction and sentence are set aside and appellant, too, is acquitted of charge levelled against him by giving him benefit of doubt.
17. He shall be released forthwith, if not, required to be detained in any other case.