' KHALIL-UR-REHMAN RAMDAY, J.---One Gulloo his brother Inayat and their father Sardara were accused of the murder of one Ghulam Fareed, through F.I.R. No, 206, dated 13-6-1991 of Police Station Saddar, Depalpur of District Okara. The said Inayat and Sardara allegedly concealed themselves to avoid their arrest and were consequently declared proclaimed offenders.
Resultantly, only Gulloo was tried by a learned Additional Sessions Judge at Okara for the murder of the said Ghulam Fareed. Through his judgment, dated 16-5-1993 the said learned trial Judge found the said Gulloo guilty of the said murder; convicted him under section 302(b), P.P.C. And punished him with death.
2. Murder Reference No, 148 of 1993 seeks confirmation of the said sentence of death while Criminal Appeal No, 360-J of 1993 filed by the said Gulloo calls in question the abovementioned conviction and punishment recorded against him. Both these matters are being disposed of through this single judgment.
3. The occurrence in question had allegedly taken place at 1-00 a.m. On 13-6-1991 in the house of Ghulam Fareed deceased at Chah Jaurraywala Dakhli, Lalupur about 9 k.Ms. From Police Station Sadar, Depalpur and the said occurrence had been reported at the said police station by a brother of Ghulam Fareed deceased namely, Waryam.
4. Narrating the occurrence and the background leading thereto, the said Waryam complainant had mentioned that he was a resident of Chah Jaurraywala Dakhli, Lalupur and that on the night of occurrence, he was sleeping in the courtyard of the house of Ghulam Fareed deceased along with the said deceased and Sarfraz P.W. He had further alleged that at about 1-00 a.m. During that night, they woke up on hearing the alarm raised by Ghulam Fareed deceased and saw Sardara and Inayat accused holding Ghulam Fareed deceased from his arms while Gulloo was standing behind them. The complainant had added that in their view, on a Lalkara raised by Sardara and Inayat accused, Gulloo appellant fired a shot with his pistol hitting Ghulam Fareed deceased on the left side of his neck behind his left ear as a result of which the said deceased fell injured on his cot and died.
5. Disclosing the motive for this murder, Waryam deceased had divulged that some of his relatives were facing trial for the murder of sons of Sardara accused i,e, the brothers of Gullo appellant; that Sardara accused suspected involvement of Ghulam Fareed deceased in the murder of his sons and that it was on account of this reason that the abovementioned accused persons had done the deceased to death.
6. Nasrullah Khan Niazi, Investigating Officer (P.W.10) visited the place of occurrence where he found blood-stained earth which he collected vide memo. Exh.P.C. And where he also found a lantern P.5, which he took into possession vide memo. Exh. P.D. He also inter alia took into possession a cot P.3 and Gaddah P.4 vide memo. Exh. P.A. He arrested Gulloo appellant on 11-5-1992 who then allegedly led to the recovery of a pistol P.6 with nine live bullets P.7/1-9 on 16-5-1992.
These articles were seized by the said Investigating Officer vide memo. Exh. P.G.
7. When confronted with the prosecution case under section 342 of the Cr.P.C., Gulloo accused denied his involvement in the occurrence in question; pleaded innocence and claimed that he had been falsely involved by the complainant because of close relatives of the said complainant and the P.Ws. In the present case were accused persons of the murder case of three brothers of the appellant.
8. As has been noticed above, Waryam complainant is a real brother of Ghulam Fareed deceased and although the relationship of the other eye-witness namely, Sarfaraz (P.W.4) was initially denied but it was subsequently admitted that not only that he was a lessee of the deceased but he was also a paternal cousin of the deceased and was even a paternal cousin of the wife of the deceased.
9. This Sarfaraz P.W. Has a house which was three acres away from the house of the deceased, which was the place of the present occurrence. No reasonable explanation was offered as to why the said Sarfraz was sleeping in the house of the deceased on the night of occurrence and had chosen not to sleep in his own house. He is thus, chance witness without any reasonable explanation as to his presence at the place of occurrence at the relevant time. One of the persons namely, Haq Nawaz, who was amongst the accused persons of the murder of the three brothers of Gulloo appellant, is a real brother of this Sarfraz P.W. While three other accused persons of the said murder case were his maternal uncles. He can thus rightly be declared to be an inimical and an interested witness of the occurrence.
10. Waryam complainant had mentioned in the F.I.R. At the very outset that on the night of occurrence he was sleeping in the courtyard of the house of Ghulam Fareed deceased, meaning thereby that Waryam complainant was not living in the said house which belonged to Ghulam Fareed deceased. Similar was the position taken up by the said Waryam in his examination-in- chief at the trial. An attempt was then made to claim that Waryam lived in the same house where the occurrence had taken place, as there were three separate residential rooms in the said house.
Muhammad Saleem Draftsman (P.W.5) who had prepared the site plan, admitted that there was only one residential room in the house in question and further that although one more room existed in the said house but he could not state with certainty whether the said room was used for residential purpose or for the purpose of tethering cattle. The Investigating Officer (P.W.10) also admitted that in the rough site plan (P.J) which he had prepared, he had shown only one residential room in question. Thus the explanation of Waryam complainant of his presence at the place of occurrence at the time of the murder of Ghulam Fareed deceased also becomes a doubtful affair. The prosecution had claimed that Ghulam Fareed deceased was murdered by the appellant party because they suspected the involvement of the said Ghulam Fareed deceased in the murder of the three brothers of Gulloo appellant. It was not denied that though a fairly large number of persons had been cited as the accused persons of the murder of the three brothers of Gullo appellant but the said list of accused persons did not include Ghulam Fareed deceased. It was admitted by Sarfaraz P.W. That Ghulam Fared deceased had no concern with the murder of the brothers of Gullo appellant. It had been further disclosed by the said P.W. That all the accused persons of the said murder case' of the brothers of Gulloo appellant were on bail. In this view of the matter, it is not understandable as to why Gulloo appellant or his brother or their father should have decided to take revenge of the murders of the brothers of Gulloo appellant from Ghulam Fareed and not from the persons whom they had themselves named as the murderers of their dear ones, especially when the said accused persons also stood released on bail.
11. It was stated by the eye-witnesses that Inayat and Sardara absconding accused were holding hands of Ghulam Rasool deceased and it was thereafter that the appellant fired a shot at him. This position is difficult to accept as no explanation is forthcoming as to why the two accused persons, should have first decided to wake up their sleeping target and then to shoot him dead.
12. As has been held above, both the eye-witnesses were chance witnesses of the occurrence in question, without any reasonable explanation of their presence at the place of occurrence. They were also interested and inimical witnesses. No unimpeachable corroboration was available on record in verification of the testimony of the two eye-witnesses.
13. In this view of the matter Criminal Appeal No, 63-J of 1993 is allowed. The impugned conviction and punishment recorded against Gulloo appellant are set aside. He is acquitted of the charge in question and shall be set at liberty forthwith if not required to be detained in any other case.
14. Murder Reference No, 148 of 1993 is answered accordingly.
' Death sentence not confirmed.