RAJA MUHAMMAD KHURSHID, J.- This is an appeal against the judgment dated 9.6.1996 passed by Mr. Ikram-ul-Haque Chaudhry, learned Addl. Sessions Judge, Chiniot. Whereby, he convicted the appellant under Section 302(b) PPC and sentenced him to imprisonment for life for committing the Qatl-i-amd of Muhammad Khan deceased. The appellant was also directed to pay compensation to the tune of Rs.10,000/- to the legal heirs of the deceased as required by Section 544-A, Cr.P.C, or in default to suffer further imprisonment for six months. The benefit of Section 382-B, Cr.P.C, was also given to him.
2. The brief facts are that a report about the occurrence was lodged by Sultan alias Sulla (PW.6) to the effect that his deceased brother Muhammad Khan was running a welding shop near the ' Dera' of Sikandar Bodhar in village Yakkowala and was also selling diesel for which he was keeping some drums at the welding shop. On the unfortunate day, i.e. 3.6.1994 at about (1:00 p.m., the complainant Sultan alias Sulla alongwith deceased Muhammad Khan and his brother Muhammad Hayat were returning from Lalian on a motorcycle No. 7084/GAC. They had stopped at the tubewell of Muhammad Yar in order to drink water from a tap. While Muhammad Khan deceased was drinking water, the appellant Falak Sher alongwith his brother Feroz, an acquitted accused arrived there. Each of them was armed with . 12 bore gun. The appellant raised lalkara that they had come to teach a lesson to the deceased as the latter had insulted them and that they would not leave him alive. Falak Sher simultaneously find from his .12 bore double barrel gun hitting the deceased on right arm near the chest. Second fire was made by the acquitted accused Feroz from his . 12 bore single barrel gun which hit the deceased in the right Hank and the upper hip. The deceased fell on the ground and passed away. The complainant and the other witness Muhammad Hayat raised noise which attracted Mahla (PW) who was allegedly present at a nearby Dera' of Muhammad Bashir. He also saw' the occurrence. The motive was that at about 10/12 days back, the appellant had visited Muhammad Khan deceased for getting diesel on credit. The deceased refused the appellant to give diesel on credit till the previous amount of credit was not cleared. This led to exchange of abuses between the appellant and the deceased who also grappled with each other. The appellant, however, left the place by holding out threat to the deceased that he would take revenge of the aforesaid insult, In pursuance of that threat, the appellant alongwith his brother Feroz afore-mentioned came to the spot and in furtherance of their common intention find at the deceased thereby killing him at the spot. The matter was reported to the police during the same night at 3:00 a.m. At the Police Station by the complainant vide FIR (Ex.PD).
3. The police recovered the blood-stained earth from the spot vide Memo. (Ex.PE) attested by Sultan complainant and Muhammad Hayat (PW). The motorcycle above-mentioned was also taken into possession by the police on the same day vide Memo. (Ex.PF), attested by the afore- mentioned witnesses. The last worn clothes of the deceased were secured vide Memo. (Ex.PG), attested by the afore-mentioned witnesses. The blood-stained earth was sent to the Chemical Examiner who reported vide Memo. (Ex.PJ) that it was stained with blood. The report of the Serologist (Ex.PK) revealed that it was the human blood. The recovery of . 12 bore gun (P.5) was effected from the appellant from his ' Dhaari' in the presence of Muhammad Khan (PW.9) and Muhammad Shafi (PW.10). It, however, appears that no recovery Memo, was available on the file nor the same w.As produced during the trial.
8. The prosecution examined two brothers of the deceased namely Sultan complainant (PW/6) and Muhammad Hayat (PW.7) as eye-witnesses. Mahla, third eye-witness was, however, given up as unnecessary, though he too was closely related to the complainant side. The prosecution also examined Sultan and Muhammad Hayat aforesaid PWs in order to prove recoveries and the motive story. The medical evidence consisting of statement of Dr. Muhammad Sharif was brought on record as PW-4. The Investigating Officers namely Muhammad Shafi, ASI (PW.10) and Fazal Hussain, SI (PW.Ll) were examined respectively in order to support the prosecution case. Both the accused were examined after the conclusion of prosecution evidence in which they claimed to be innocent. The acquitted accused took up the plea that he was not present at the spot, whereas, Falak Sher appellant/convict pleaded innocence and contended that the murder of the deceased was committed by some unknown person during the night time after he had shifted to the 'Dera' of Sikandar due to alleged illicit relations with the sister of the accused namely Mst. Irshad Bibi. The acquitted accused took up the plea that he was found innocent when 'Niyan' was demanded by the complainant and as such, had nothing to do with 'the alleged occurrence.
9. The learned trial Judge after taking into consideration the evidence on record acquitted Feroz accused after giving him benefit of doubt, whereas, convicted the appellant as aforesaid.
10. Learned counsel for the appellant has submitted that the prosecution case was full of serious doubts regarding the culpability of the appellant on the ground that in all probability, nobody had seen the occurrence; that the eyewitnesses were chance witnesses and closely related to the deceased, and as such they had involved the appellant out of sheer doubt and suspicion; that the motive against the appellant/convict and the recovery of gun were also not proved as the evidence to that extent was even discarded by the learned trial Judge; that there was unexplained delay of nine hours in filing of the FIR which allegedly showed that the complainant side had been concocting a false story to involve the appellant/convict and the acquitted accused although the occurrence remained unseen; and lastly, the conviction of the appellant could not be made on the same evidence on the basis of which, his co-accused Feroz was acquitted particularly so when there was no corroborative independent evidence to link the appellant/convict with the occurrence or to distinguish his case from the acquitted accused. Reliance was placed on PLD 1995 Supreme Court 526 {Umar Hayat r. The State) and 1994 SCM R 1148 (Supreme Court of Pakistan) {Muhammad Yousaf v. The State)-, Likewise, the motive was not proved and as such was rightly disbelieved by the learned trial Court, therefore no conviction could be sustained in view of the principle laid down in PLD 1969 Supreme Court 127 {Habibullah and others v. The State).
11. The learned Prosecutor contended that the prosecution had placed all its cards on the table with open heart; that there was no previous enmity between the parties except for the incident relating to the motive of this case; that the eyewitnesses though related to the deceased being his brothers were not supposed to tell lie to substitute the appellant/convict for the real offender; they allegedly did not impeach the acquittal of the co-accused Feroz after a decision was made on ' Niyan' which was accepted by the trial Court. It shows that the witnesses had no enmity or animus against the appellant/convict to implicate him in the case falsely; the mere fact that" the motive was disbelieved by the learned trial Court would be immaterial because the occurrence was vividly seen by two eye-witnesses who were accompanying the deceased being his brothers on the motorcycle, hence their presence at the place of occurrence with no stretch of imagination would be considered to be improbable; that the mere weakness of the motive would not allegedly adversely effect the ocular testimony which otherwise carried valuable credibility and inspired confidence of truthfulness. Likewise, it will not effect the merit of ocular testimony if the recovery of gun looked doubtful. Reliance was placed on PLD 1975 Supreme Court 160 (Syed Mushtaq Ahmed v.
Siddiqullah and others). Similarly, the mere fact that the eye-witnesses were blood relations of the deceased would not make them interested witnesses ipso facto until and unless it was shown that they were inimical and had a strong motive to falsely implicate the appellant/convict. Reliance was placed on 1985 P.Cr.L.J. 372 (Karachi) (Weram v. The State).
12. I have considered the foregoing submissions advanced at the Bar from both the sides. It is true that the motive in this case was quite weak and remained doubtful when the complainant had stated that he was not present when the occurrence of motive had taken place. It is also true that the recovery of gun (P.5) could not be proved as the police had not placed on record its recovery memo, nor liad called any witness from the locality to attest the same. The question would, therefore, arise whether on account of non-proving of motive and recovery of weapon of offence i.e. Gun, the prosecution case against the appellant/convict would stand smashed although there were two eye-witnesses who clearly linked the appellant with the murder of the deceased by stating that he had raised lalkara to take revenge of his insult and had also simultaneously initiated the attack by firing at the vital part of the deceased. It is also true that both the eye- witnesses being brothers of the deceased are closely related but there is nothing on record to suggest that they had any enmity with the deceased so as to implicate him in this case merely on suspicion. On the contrary, it will be their genuine desire that the real culprit and killer of their brother should be brought to book. The allegation that the eye-witnesses were merely chance witnesses would not be convincing or sustainable because it cannot be ruled out that all the three brothers might have travelled on the same motorcycle. There is nothing on record to show that their riding on a motorcycle together was unusual or a manipulated story. The fact, however, remained that they were travelling together on a motorcycle when the unfortunate occurrence took place. The mere suggestion that the deceased was keeping illicit liaison with the sister of the appellant/convict would be a bald allegation without any firm evidence to that effect. In fact after seeing that the prosecution had proved its case against the appellant/convict, the wavering defence story was invented first that the deceased that illicit relations with sister of the appellant namely Mst. Irshad Bibi, second that he had left his home and had started living at the Dera' of Sikandar on account of those illicit relations but he was done to death while he was all alone by some unknown killer and lastly that the appellant/convict was falsely involved in the case at the instance of one Sikander. Due to some political rivalry. However, there is nothing on record which may support these rambling defence stories except the above bald suggestion made to the eye- witnesses.
13. Now the question would arise as to what will be the effect of acquittal of Feroz co-accused on the appellant/convict. Learned counsel for the appellant, as pointed out above, has contended that both the eye-witnesses had linked both the accused with the occurrence but out of them one was acquitted as it was found during a 'Niyan' that he was not present at the spot. That the aforesaid 'Niyan' was taken at the suggestion of- the complainant and was given by Ghulam Muhammad nominated to give oath for innocence of Feroz accused and he gave oath that Feroz was innocent as he was not present to participate in the occurrence.
It is for that reason that the police had not arrested him after the occurrence. Learned counsel further contended that since the ocular testimony was discarded in respect of one accused, therefore, it could not be utilized to convict the appellant particularly when there was no corroborating factor to support the ocular account of occurrence.
14. I have considered the above points and find that the benefit of do,ubt was rightly extended to Feroz i.e. Acquitted accused as a decision was taken on oath given by Ghulam Muhammad nominated by the complainant side. Although the procedure of taking oath i.e. 'Niyan' is not recognized by la*v nor there is any legal procedure to justify the same but still it can generate a serious doubt regarding the culpability of a person if an oath in prescribed form is given by a person, nominated by the complainant side. In the instant case, Ghulam Muhammad, a nominated person had given oath regarding the innocence of aforesaid accused, therefore, extending, benefit of doubt to him was not something unusual so as to bring innocence automatically to appellant/convict. Although the complainant and tried to wriggle out of the aforesaid 'Niyan' but wheq confronted with Ex.DA i.e. a nomination letter for 'Niyan' signed by the complainant, he had to admit that it was thumb mnrlovl hv him tv,;.- *i- - - - -