' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No, 7 of 1998 and Criminal Appeal No, 36 of 1998 filed by Muhammad Bashir who was convicted and sentenced for the murder of Bashir Ahmad by learned Additional Sessions Judge, Chishtian, District Bahawalnagar vide his judgment, dated 17-3-1998 to death sentence under section 302, P.P.C.
2. Occurrence in this case took place on 13-12-1995 in the house of complainant at 6-30 p.m. While the matter was reported by Muhammad. Jehangir, real brother of the deceased Bashir Ahmad on the same day at 7-30 a.m. In Police Station vide complaint Exh.P.D. The same was recorded by Muhammad Sarwar, Inspector/S.1-1.O. (P.W .7).
3. Brief -farts of the case are that the complainant along with his three brothers was living jointly and on the night prior to the occurrence he along with his brother Muhammad Ameer were sleeping in their respective cattle when on 13-12-1995 at about 6-30 a.m., the complainant, Muhammad Ameer and Muhammad Anwar were putting fodder to their respective cattle, meanwhile Muhammad Bashir armed with a rifle came there. Complainant and aforesaid Muhammad Ameer inquired from him as to where he was going while carrying a gun early in the morning whereupon Muhammad Bashir appellant told them that they will shortly come to know as to where he was going and within their view Muhammad Bashir fired a shot with his rifle upon complainant's brother, hitting him on his head when the complainant along with Muhammad Ameer and Muhammad Anwar came forward to catch hold of Bashir Ahmad, he threatened them of the same fate. Due to fear, none from the complainant party came near to him, so Muhammad Bashier fled away from the scene along with rifle saying that he had taught a lesson to Bashir Ahmad (deceased) for sending his mother Mst. Sairan Bibi with his second husband Manzoor Ahmad. Bashir Ahmad succumbed to the injuries at the spot.
' The motive was stated to be that Mst. Sairan Bibi the mother of Muhammad Bashir appellant was divorced by Muhammad Yaqoob, the appellant's father, 30 years ago, where after he contacted her Nikah with Manzoor Ahmad aforesaid Mst. Sairan had been living with his son, the appellant, for the last 1 year but subsequently, the deceased through a Punchayat sent her with his second husband Manzoor Ahmad for which the appellant had nurtured a grudge against the deceased, as a result of which Bashir Ahmad was done to death by the appellant in consultation with Muhammad Yousuf, his co-villager.
4. After registration of the formal F.I.R., Muhammad Sarwar, Inspector/ S.H.O. Came to the spot and took the bloodstained earth into possession vide memo. Exh.P.E. He arrested Muhammad Bashir, the appellant. Rifle P.8 which was licensed one of the appellant alongwith two live bullets P.9/1-2 were taken into possession vide memo. Exh.P. F. On 31-12-1995. After completion of the investigation, appellant was challenged to face the trial.
5. Prosecution in order to prove its case produced 8 witnesses in all. Amongst them, eye-witness were P.W. 3 Muhammad Jahangir and P.W.4 Muhammad Anwar. Report of the Chemical Examiner is Exh. PL while that of the Serologist is Exh, P.M. Thereafter statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded innocence and claimed false implication.
6. Learned counsel for the appellant has read before us the prosecution evidence recorded by learned trial Court, statement of the appellant under section 342. Cr.P.C, and submits that it was an un-witnessed occurrence, there is conflict between ocular account and medical evidence because according to the first informant and the eyewitnesses one shot was fired at the deceased while according to Post-mortem report there are two injuries on different parts of dead body of the deceased and that had the eyewitnesses been present at the spot, they must have stated the correct number of shots fired at the deceased. Further submits that ocular account is not corroborated by any other piece of evidence as no crime empty was taken from the spot and report of the Fire Arm Expert is also not on the record of the case. Learned counsel lastly submits that motive in the case is far-fetched and that the version of Fateh, Tehsil Christian. The dead body was brought by Aziz Ullah 825/C and was identified by Muhammad Ameer and Ali Sher, P.Ws. I observed as under: ' EXTERNAL APPEARANCE ' INJURIES:
(1) A lacerated rounded wound with inverted margin near left side of left eye. Size 1 c.m. Dia.
Blackening present around the wound (entry wound).
(2) A lacerated wound with averted margin over back of left side of head. Size 3 c.m. x 4 c.m. Skull bone fractured. Pieces of bones present near wound. Injury No,2 was continuous with injury No,1 (Exit wound).
(3) A lacerated wound present over palmer aspect of left hand in-between left index and middle finger. Both fingers fractured. The wound was continuous over dorsum of left hand. Pieces, of bone and soft tissue avulsed. (Entry and Exit wound).
' CRANIUM AND SPINAL CORD: ' THORAX: ' All the organs in thorax were healthy. Heart was empty.
' ABDOMEN ' MUSCLES BONES AND JOINT: ' Mentioned in injury column.
' REMARKS/OPINION: ' On external and internal examination of body I was of the opinion that cause of death in this case was cardiorespiratory failure due to Injury No,1 which was sufficient to cause death in ordinary course of nature. All the injuries were caused by fire-arm and were ante-mortem in nature. Time between injuries and death was instantaneous and between death and post-mortem was within 12 hours. He handed over the dead body, police papers, last worn clothes, post-mortem report to Aziz Ullah 825/C after post-mortem examination."
' A bare perusal of the statement of the doctor would show that he conducted the post-mortem examination at 11-30 a.m. On 13.12-1995. Duration between the death and post-mortem was 12 hours. According to the prosecution, occurrence took place at 6-30 a.m. Duration given by the doctor suggests that occurrence could have taken place at any time between midnight to 6-30 a.m. Moreover, there are two separate injuries on the person of the deceased. Injury No, 1 is entry wound which hit the deceased near left side of left eye while injury No,2 is an exit wound. Injury No,3 is entry and exit wound with fire-arm which the deceased received over palmer aspect of left hand in-between left index and middle finger. Both the fingers were fractured and pieces of bone and soft tissues avulsed. It was not story of the prosecution either in the F.I.R. Or before the trial Court that the deceased was sleeping in the condition as submitted by learned counsel for the State and the complainant before us having his hand underneath his head. Furthermore, had the eye- witnesses been present at the spot, they must have stated about the number and seat of the injuries on the person of the deceased either in the F.I.R. Or before the trial Court. No crime empty was recovered from the spot, so there is no report of the Fire Arm Expert which could lend support to the prosecution case. Occurrence in this case took place at 6-30 a.m. While according to the prosecution, the matter was reported to the Police at 7-30 a.m. Although police station was at a distance of 21 kilometres from the place of occurrence, so in our opinion F.I.R. Was recorded after due deliberation and consultation because after receipt of such an information Police as it usually happens, must have stopped the daily diary and the register of F.I.R. Motive alleged in this case is far-fetched. Grievance, if any, was by the appellant that should have been against her mother who had entered into second marriage and not against the deceased. It may be added that while replying to Question No,7 that had the appellant anything else to say, he deposed as under: "I am innocent. The real facts are that Mst. Amiran Bibi niece of the complainant had contracted marriage with me and for this reason the complainant had felt annoyed with me. Secondly my mother Mst. Syran Bibi was murdered by Manzoor Ahmad. I moved application against .The said Manzoor Ahmad for the registration of the case and Bashir deceased used to help me against Manzoor Ahmad. The said Manzoor Ahmad had killed Bashir deceased and implicated me falsely in this case with the connivance of the complainant."
Perusal of above-quoted reply of the accused would show that the defense taken by him is more probable and plausible as compared to the version put by the prosecution and if both the versions Pare put in juxtaposition, the version given by the appellant seems to be more plausible, convincing one and near to reasons. Muhammad Jehangir (P.W.3) an eye-witness of the occurrence is real brother of the deceased while the other eye-witnesses, namely, Muhammad Anwar (P.W.4) is from the step-mother of the complainant, namely, Jannat Bibi.
' Taking into consideration the overall facts and circumstances of the case, we are of the view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, so while extending the benefit of doubt, we accept the appeal filed by appellant, set aside the conviction and sentence recorded by the learned trial Court and acquit him of the charge of murder. Death sentence is not confirmed. Murder Reference is answered in the negative. Appellant is in jail. He shall be released forthwith, if not required to be detained in any other case.