Z. A. CHANNA , J.-Appellant Abdul Salam, aged 22 years, has been convicted by a learned Additional Sessions Judge, Hyderabad, by his judgment delivered on 16-6-1975, under section 302, P. P. C., for committing the murder of Qazi Abdul Ghafoor, and has been sentenced for the said offence to imprisonment for life. The appellant, in this appeal, has assailed his convic--petition and sentence.
At the outset we - may remark that the sentence awarded by the learned Additional Sessions Judge was not a legal sentence at the time when the offence is alleged to have been committed by the appellant. It was' under the provisions of the Law Reforms Ordinance, 1972, which Ordinance was promulgated on 16th April 1972, that the sentence of transportation for life for murder and certain other offences under the Penal Code was replaced by sentence of imprisonment for life. As such a sentence of imprisonment for life could not be awarded for an offence of murder committed before the coming into force of the aforesaid Ordinance.
2. The prosecution case, shortly stated, is that on 21-3-1972, the appellant came to the provision shop of first informant Abdul Jabbar, who is a brother of deceased Qazi Abdul Ghafoor. The appellant is stated to have been armed with a black coloured pistol. It is alleged that the deceased, who was standing on a plank outside the shop of the first informant, taunted the appellant that it was a toy pistol and that he was not afraid of it, whereupon the appellant is said to have fired at the deceased, hitting him in the chest. The deceased, who had become unconscious on sustaining the bullet injury, was rushed to the Civil Hospital, Hyderabad, but he suc--cumbed to his injuries. On telephonic message being received regarding the bringing of the deceased to the Hospital and his death, A. S. I. Arz Muhammad went to the Civil Hospital and took first informant Abdul Jabbar to the Phuleli Police Station where the latter lodged his F. I. R. At 22-40 hours, while the incident had occurred the same day at 9-00 p.m.
3. The post-mortem on the deceased was performed by Dr. Muhammad Siddik, of the Civil Surgeon's Office, on 22-3-1972, at 8-30 a.m. He found the following injuries on the deceased :- "A circular wound 1/4" in diameter with contused and inverted margins on the front of the chest left side at the second inter-costal space only J' lateral to the sternum about 31 above and medial to the left nipple (wound of entrance)."
4. According to the Medical Officer, this injury was caused by the dis--charge of a bullet from a fire-arm. In fact, a bullet was removed from the 6th inter-costal space of the deceased which was sent to the Phuleli Police Station. Since there were no charring marks on the deceased, the doctor opined that the distance from which the bullet had been fired was more than 4 feet. He, however, was unable to give more precise information as to the distance from which the shot had been fired at the deceased.
5. The case against the appellant rests on the ocular testimony of 3 witnesses, namely, first informant Abdul Jabbar, Noor Muhammad and Muhammad Hanif. The crime weapon admittedly has not been recovered and apart from the evidence of the above witnesses, there is no evidence incrimi--nating the appellant. Of these 3 eye-witnesses, Muhammad Hanif has not supported the prosecution version. All that he has stated is that while he was present at the shop of the first informant Abdul Jabbar, he found the deceased, the accused and P. W. Noor Muhammad, Abdul Majid and others present at the shop. He, however, has stated that he did not see anything in the hands of the accused nor has he spoken of any shot being fired in his presence.
6. The evidence of first informant Abdul Jabbar is shaky and unconvinc--ing and thus equally unhelpful to the prosecution. In the first place, he has contradicted substantial portions of his F. I. R.
And has alleged that it was the S. H. O. Who bad himself prepared the F. I. R. And thereafter merely obtained his signature thereon. According to him, he was not in his proper senses at the time of lodging the F. I. R. On account of the tragic and sudden death of his brother. Secondly, according to the F. I. R., the person who had fired the fatal shot at the deceased was Abdul Salam son of Muhammad Hanif Tailee, while admittedly, the appellant is not Tailee by case but his case is Chauhan. The first informant has given no explanation as to why he gave wrong case of the appellant, if in fact it was the appellant who was responsible for the murder of the deceased. It was, however, stated by the witness in the committal Court, which statement of his has been duly proved, that it may be correct that under the influence of one Yamin, the police might have released Abdul Salam Tailee and implicated the accused. The third circumstance, which casts doubt on the testimony of this witness and suggests that he may not have been present at his shop at the time of the incident, is the fact that he had not pointed out to the Tapedar the place at which he was sitting when the incident occurred. It fact, according to the statement of the Tapedar in the committal Court, the informant had told him that it was Abdul Rashid who was sitting in the shop and the sale was made and the shop was being run by Abdul Rashid at that time. A further circum--stance which indicates that first informant Abdul Jabbar did not see the incident is that the witness instead of immediately going to the Police Station to lodge a report or to take the injured to the Hospital for treatment, went to his house from where he is said to have brought his brother Abdul Rashid. It is not understood why the witness should have left his brother in a critical condition at his shop and gone to his house to bring his brother. The reasonable inference which could be drawn from his evidence, including the admission made by him to the Tapedar, is that in all probability the witness was not present at his shop when the incident occurred and it was for this reason that he has been making varying statements in the F. I. R., in the committal Court and before the Sessions Court.
7. There only remains the evidence of P. W. Noor Muhammad. No doubt, according to this witness it was the appellant who had fired the fatal shot at the deceased, but his version is totally different from the version of the incident as given in the F. I. R. While according to the F. I. R., the appellant had fired at the deceased because the deceased had taunted the appellant that he was carrying a toy pistol of which he was not afraid, according to P. W. Noor Mohammad, the deceased was trying to take the pistol from the appellant when the shot was fired. If, what he says, is correct, then the deceased must have been standing very close to the appellant at the time when the shot was fired. In that case there should have been charring marks on the deceased. The absence of charring marks on the deceased indicates that the version given by Noor Muhammad is not correct. Furthermore, according to this witness, after the incident he saw the pistol on the ground.
However, the evidence on record establishes that no pistol was recovered. This is another material point on which the witness has made a wrong statement. In the circumstances, it is not possible to place reliance on his evidence,. The witness also admitted that the police had given him threats and forced him and other witness to give evidence in the case and the police had been detaining them at the police station for long hours. This would suggest that this witnesses as well as the other witnesses were not willing to implicate the appellant, possibly because he was not the real guilty party. In any case, the evidence of the witnesses does not inspire confidence. It is a well- established rule that to sustain con--viction on a murder charge, the evidence must proceed from unimpeachable e sources. Such sources are totally lacking in the instant case.
8. On a careful appraisal of the evidence of the eye witnesses we are of the view that the guilt of the appellant has not been established beyond reasonable doubt, and accordingly he is entitled to the benefit of that doubt. We would, therefore, accept his appeal and set aside his conviction and sentence. The appellant is on bail. His bail bond is directed to be discharged.