SHAUKAT ALI, J.-Muhammad Shafi (26) and his paternal uncle Abdul Hamid (50), cultivators by profession, residents of Basti Kawanwali, within the jurisdiction of Police Station Dunga Bunga, have been convicted for having murdered Muhammad Sharif by shooting, on 13th July 1967, at 4 p.m. In village Faqir Shah, District Bahawalnagar. The learned Additional Sessions Judge, Bahawalpur, found them guilty of the charge. Muhammad Shafi was sentenced to death and Abdul Hamid was ordered to suffer transportation for life. The convicts appeal. There is a usual reference under section 374, Cr. P. C., for the confirmation of sentence of death of Muhammad Shafi.
2. The prosecution case is that on 13th July 1967, at about 4 p.m., Muhammad Sharif accompanied by his son, Muhammad Amin P. W., went to the shop' of Shah Muham--mad P. W., where he called Faiz Muhammad and Muhammad Bilal P. Ws., for the payment of land revenue. Both of them assured that they would make the payment the next day. Muhammad Sharif deceased proceeded towards his house followed by his son Muhammad Amin, Faiz Muhammad and Muhammad Bilal P.
Ws. On the way, when Muhammad Sharif reached near the house of Muhammad Shafi, both the accused emerged from there. Muhammad Shafi was armed with a .12 bore pistol while Abdul Hamid was empty-handed. Both the accused raised a lalkara while Muhammad Shafi fired a shot at Muhammad Sharif. The shot hit Muhammad Sharif who fell down on the ground. The accused ran away. The occurrence was witnessed by Muhammad Amin P. W. 6, Faiz Muhammad P. W. 8 and Muhammad Bilal P. W.
9. They reached the deceased who succumbed to the injuries then and there. The report of the shot attracted Shah Muhammad P. W. 10, to the spot. On his enquiry he was told by the witnesses that Muhammad Shafi and Abdul Hamid accused had killed Muhammad Sharif.
The motive of the alleged offence was two-fold, firstly, in the year 1947, Abdul Hamid accused and his brother Jan Muhammad had secured double allotment in their names of agricultural land situated in Mauza Faqir: Shah. On the application of the deceased and on the basis of his claim the allotment of this land which was in the names of Abdul Hamid accused and his brother, was cancelled and was made in favour of the deceased and litigation was pending between the parties at the time of the incident; and secondly, about six months before the occurrence the deceased was instrumental in securing 'land for Sher Muhammad, his relation, in village Faqir Shah and the accused were annoyed over it, as they did not like that a stranger should settle in .That village.
3. Leaving Faiz Muhammad, Muhammad Bilal and Shah Muhammad P. Ws.,. To guard the dead body of Muhammad Sharif, Muhammad Amin P. W., proceeded. To Police Station Dunga Bunga, which is at a distance of nine miles from the place of occurrence. He made a statement Exh. P. A., which was taken down by Ch. Noor Muhammad, Sub-Inspector P. W. 13, at 6-30 p.m. The Sub- Inspector came to the spot and took into pqssession the dead body of Muhammad Sharif. He prepared the injury statement and the inquest report and des--patched the dead body to the - mortuary for post-mortem examination. He inspected the scene of offence. He recovered blood- stained earth from the spot and made it into a sealed parcel vide memo. Exh. P. C. He collected empty cartridge P. 5 from the spot and made it into a sealed parcel vide memo. Exh. P. D. A pair of shoes P. 6/1-2 of-the deceased was also taken into possession vide memo. Exh. P. E. - On 14th July 1967, Muhammad Shafi accused was arrested by the Inspector Police. He led to the recovery of pistol P. 7 from his house. The same was taken into possession and made into a sealed parcel vide memo. Exh. P. F.Abdul Hamid was put under arrest the same day by the Inspector who accompanied Ch. Noor Muhammad Sub-Inspector. After the usual investigation, the accused were sent up for trial.
4. Muhammad Shafi accused when examined admitted his relationship with his co-accused Abdul Hamid. He stated that the case had been brought against him on account of enmity. He examined Rao Riaz and Syed Tajammal Hussain Shah in his defence. To a like effect is the statement of Abdul Hamid.
5. Doctor Gulzar Muhammad Dogar, who performed post-mortem examination on the dead body of Muhammad Sharif, found nine gunshot wounds thereon. Injury Nos. 2, 3 and 4, as described in the report of the doctor, were declared sufficient to cause death in the ordinary course of nature.
Mr. Muhammad Sarwar (P. W. 7), Fire-arms Expert, deposed that if a S. G. Cartridge is fired within a distance of ten to twenty feet the pellets would diffuse and could cause nine injuries. He stated that the pellets in phial P. 4 can be the contents of S. G. Cartridge which had nine pellets. He stated that if a S. G. Cartridge is fired from '12 bore gun within a distance of 10/20 feet it could cause nine multiple injuries as in the instant case. He stated that he compared the '12 bore crime empty marked as `C' with the '12 bore test empty and as a result of his examination he was of the view that '12 bore crime empty had been tired from crime pistol.
6. The learned Additional Sessions Judge, referred to the ocular account, the medical evidence, the evidence of the Fire--arms Expert and the recoveries in this case and came to the conclusion that Muhammad Shafi actually fired at the deceased when he was in the company of Abdul Hamid.
7. We have gone through the record with the assistance of the learned counsel appearing for the accused. We find that Muhammad Amin P. W. Is the son of the deceased and Muhammad Bilal P.
W. Is his nephew. Faiz Muhammad P. W., denied his relationship with the deceased. ;N-tuhammad Amin P. W., denied that Muhammad Bilal P. W., was his relation, but Faiz Muhammad P. W., in cross- examination stated that Mst. Fateh Bano, mother of Muhammad Amin P. W. Is the daughter of Ibrahim, who was his uncle in brotherhood. The mere fact that the witnesses are the relations of the deceas--ed cannot, by itself, be a ground to discard their testimony. They gave a consistent account of the incident and there is nothing in their cross-examination to suggest that they were not present at the spot. They live in close proximity to the place of incident and their presence at the spot is natural. They described the assault in minutest details and stated that the deceased was fired from the back. The medical evidence and the opinion of the Fire-arms Expert affirm their version. We find no material discrepancy to dis--credit their evidence. Their evidence finds further corrobora--tion from the testimony of Shah Muhammad P. W., who immediately reached the spot.
8. There is nothing to discard the testimony of Niaz Ahmad P. W. 11 and Ghulam Muhammad P. W. 12, who are the witnesses of recovery of pistol P.
7. Rao Riaz and Syed Tejammal Hussain were produced by Muhammad Shafi accused to show that the recovery of the alleged pistol, as alleged by the prosecution, was fabricated. In paragraph 16, the learned Additional Sessions Judge has examined the evidence of these two witnesses at length and has advanced cogent and convincing reasons to discard their evidence on account of material discrepancies. We are in agreement with his findings and are of the view that their evidence was rightly discarded.
As a result of the above discussion we find that the case against Muhammad Shafi stands fully established. We have, therefore, no hesitation' in confirming his death sentence, there being nothing to extenuate his conduct. His appeal is accordingly dismissed.
9. The question now left is whether Abdul Hamid accused was guilty of the offence charged. The only part attributed to him was the proverbial lalkara. If he was to participate it the assault he would not have gone there empty-- handed. We know that such allegations are frequently made to implicate innocent persons. Assuming that Abdul Hamid had a direct motive to kill the deceased for having got his allotment cancelled, it was hardly necessary for an elderly man like him to personally assault him or even to be present at the relevant time when his nephew was prepared to carry out his behest. In the circumstances, therefore, we do 'not consider it safe to convict him merely on the basis of a lalkara and would rather acquit as a matter of abundant caution. His appeal is accordingly accepted. He may, therefore, be released from jail if not required in any other case.