1. ' MUSHTAQ HUSSAIN, J.-Anwar son of Jaimal aged 22 years, Sarwar alias Saroo son of Din Muhammad, aged 19 years and Mubarik alias Mamura son of Goman, aged 21 years, all residents of Chak No, 29-30/2-L, District Sahiwal, stood their trial before the learned Sessions Judge, Sahiwal, who by his order dated 17-6-1971 convicted Anwar under section 302, P. P. C. And sentenced him to death for having killed Atta Muhammad in field in the area of Chak No, 40/D, Killa No, 19, Square No, 30, at a distance of 8 miles from Police Station, Dipalpur in the District of Sahiwal.
2. ' By the same order, he acquitted Mubarik and Sarwar the two co-accused. The F. I. R. Exh. PB/1 was recorded at 6-10 p.m. At P. S. Dipalpur on the basis of Exh. PB a statement made by Muhammad Amir (P. 'N. 5), brother of the deceased before Umra Khan S. H.
0. (P. W. 8) at Pir De Hatti at a distance of 3 miles from the scene. By the same order, he convicted Anwar under section 302, P. P. C. And sentenced him to death for having on 25-9-1969 at 2-30 p.m.
3. Murdered Atta Muhammad, aged 25, in a field of Chak No, 29-2/L at a distance of 8 miles from P. S., Dipalpur ' Anwar has filed an appeal against his conviction and sentence and the case is also before us under section 374, Cr. P. C. For confirmation of the death sentence.
4. ' The prosecution case is that 5/6 months before the occurrence Atta Muhammad started cultivating land jointly with Muhammad Anwar appellant in Chak No, 29/2-L. Atta Muhammad started living at the house of Anwar. Atta Muhammad purchased two buffaloes and lent them to Anwar appellant along with some cash. The relations between them got strained a few days before the occurrence because Anwar had started suspecting that Atta Muhammad had cultivated illicit intimacy with his sister Mst. Najjan wife of Wali Muhammad.
5. ' On 24-9-1969 Atta Muhammad went to Dipalpur and told his brother Muhammad Amir (P. W. 5) that he had decided to give up joint cultivation with Anwar as he was not returning the loan that had been advanced to him. He further requested his brother to accompany him with a view to setting the loan account with Anwar.
6. ' On the fateful day, Muhammad Amir (P. W. 5), Anwar Zamir (P. W. 6) and Atta Muhammad went to Chak No, 29-2/L at midday. They went to the house of Anwar and talked with him. The latter expressed his inability to pay because he had no money at the moment but promised to liquidate the loan after he had lifted the harvest. He further told them that they should remove Atta Muhammad from his presence immediately if they wanted their safety. The parleys continued till 2.30 p.m. But remained inconclusive. At that time Atta Muhammad and his party went towards Chishti Chah 29/2-1, to urinate in the fields. There are some sand-dunes near the village. On their return, when Atta Muhammad reached near these dunes, Anwar Zamir and Muhammad Amir were following him at the distance of about 50 yards when suddenly Anwar appellant emerged from behind one of the dunes with a revolver in his hand. He was accompanied by Sarwar and Mubarik, both of whom were empty-handed. The latter shouted a lalkara and Anwar fired three shots in quick succession from his revolver. Atta Muhammad was injured and fell down. A hue and cry was raised. The appellant threw his revolver at the spot and ran towards the village along with his companions. Anwar Zamir and Muhammad Amir ran towards the place where Atta Muhammad had fallen down and found that the bullets had penetrated his chest and he had lost consciousness. Within a very short while he died at the spot Muhammad Amir (P. W. 5) left for the Police Station when he met Umra Khan S. H.
0. (P. W. 8) in the way and made a statement Exh. PB before him.
7. ' Umra Khan S. H.
0. (P. W. 8) having recorded the statement at Pir De Hatti on the Okara-Dipalpur Pucca Road sent it to the police station where formal F. I. R. Exh. PB/1 was recorded by Nazir Mnad, Moharrir Assistant Sub-Inspector (P. W. 4).
8. ' Umra Khan S. H.
0. Reached the spot at about 6 p.m. And went through the usual 'formalities, He took revolver Exh. P.
9. 7 into possession which contained three empties Exh. P. 8/1-3. A memo Exh. PG refers. He arrested all the three accused on 26-9-1969 and having completed the investigation challaned the accused with the result already indicated above.
10. ' In cross-examination Nazir Ahmad (P. W. 4) A. S. I. Moharrir who had recorded the formal F. I. R.
11. Stated that according to the Report No, 11 dated 25-9-1969 Umra Khan, Sub-Inspector, was present at the Police Station till 12-20 noon and had left for the Maga along with Gulam Abbas F. C. No, 173 for the investigation of Case No, 232 under section 380/457, P. P. C. He had further to admit after seeing the roznanwha that no case diary had been received by him regarding Case No, 232 at the Police Station from 25-9-1969 to 30-9-1969. The statement of Umra Khan (P. W. 8), on the other hand, is that he was on patrol duty when the complainant met him at Pir De Hatti. He made no mention about having left for investigating Case No, 232 under section 360/457 of the P. P. C. Both statements cannot be correct. The only inference that one can draw, therefore, is that Sub- Inspector was present at the Police Station when the report was made to him and instead of taking it down immediately, he left for the spot and recorded the F. I R. After having made investigation.
12. The sanctity attached to the F. I R , therefore, vanishes in the present case because it i3 highly doubtful l4 whether Exh. PB was recorded at the place, it had been indicated, and that Exh. PB/1 was recorded on its basis.
13. ' Wherever investigation reveals dishonesty grave doubts are cast on the case for the prosecution.
14. ' At the trial, the accused denied all knowledge of the occurrence and claimed to be tried. The prosecution produced 9 witnesses in all to support its case.
15. ' Dr. Muhammad Afzal Hashmi appeared as P. W. 1 and deposed that he had performed the post- mortem examination of the dead body of Atta Muhammad on 26-9-1969 at 4-45 p.m. He found the following injury on the dead body:
1. One lacerated ablong wound 1/3" x 2/3" on the left side of front of chest about 2e above and 2k" towards the inner side of the left nipple. It was oblique right from right and below to left and above.
16. There was a hole on the corresponding part of his shirt and banyan, the margins of which were black and burnt. The wound margins were also black and scorched. The depth of the wound could be traced to the cavity of (left auricle) heart after having pierced the covering of the heart (pericardium). The wound was about one and a half inch from the mid line, and was directed through the anterior chest wall through the space between third and fourth costal cartilage.
17. ' In his opinion the injury was antemortem and was sufficient to cause death in the ordinary course of nature. During cross-examination, he made the following admission : "The injury No,1 can be caused by the deceased himself holding the pistol in his right hand and firing it on himself. This injury could be caused from a distance of within a range of six inches or less but not by contact of the weapon with the body. I cannot deny the probability of self-infliction or suicide in this case. There is a difference of degree between burning and scorching. The burning means that the distance of fire-arm was more nearer than scorching.
18. ' I found the stomach of the deceased empty and meaning thereby that he had taken his last meal more than four to six hours. It is probable that in the case of suicide, the weapon should have not remained in the hand of the deceased. More probability in this case is that the death of Atta Muhammad deceased might have taken place between 5 p.m. Of 25th September, 1969 to 5 a.m.
19. Of 26th September, 1969. I have fixed the probable minimum to 12 hours from 4-45 p.m. On 26th September, 1969 to probable maximum of 24 hours extending from 4-45 p.m. Of this date to 4-45 p.m. Of 25th September, 1969.
20. ' The testimony of this witness, therefore, proves that Atta Muhammad died as a result of firearm injury caused by firing a revolver and further that the injury could have been self-inflicted. It also proves that the weapon was within e from the body of the deceased and that the deceased had taken his last meal 4 to 6 hours before he died.
21. ' We have found in the F. I. R. That Atta Muhammad was coming back after urinating when he was fired at. It also shows that he died soon after receiving injuries. The medical evidence referred to above proves that at the time of post-mortem his bladder was normal, healthy and contained 100 c.c. Of urine. That was fairly large quantity and may be about 1/8th of the total urine passed by an average human being during 24 hours. Since he had already emptied his bladder just before he was fired at, the presence of this large quantity of urine in his bladder shows that the evidence with regard to his having urinated at a time immediately before his death, is not correct. This part of the story of the prosecution is, therefore, not believable.
22. ' Another point which requires notice is that in F. I. R. P. W. 5 has stated that Atta Muhammad, his brother, was fired at thrice and that the shots hit him on his chest. The medical evidence has revealed only a single injury and the statement in the F. I. R. Which has been sought to be corroborated by ocular evidence is therefore, incorrect and the only inference which can be drawn is that the maker of the F. I. R. Was not present at the scene of occurrence because of the two statements made by him in the F. I. R. And highlighted above.
23. ' So far as the recovery of the revolver and crime empties is concerned, we have the testimony of Umra Khan S. I. (P. W. 8), Muhammad Amir (P. W. 5), Anwar Zamir (P. W. 6) and Ghulam Farid, Lambardar (P. W. 3). The evidence of Ghulam Farid snows that revolver P. 7 contained three empties Exh. P. 8/1-3 in its chamber and that it was recovered from near the dead body. The recovery of the revolver does, therefore, not connect the appellant with the commission of the offence and we have to fall back upon the ocular testimony.
24. ' The ocular evidence is furnished by Muhammad Amir (P. W. 5) and Anwar Zamir (P. W. 6).
25. Muhammad Amir is a brother of the deceased while Anwar Zamir is a friend of the deceased as well as of P. W.
5. Muhammad Amir (P. W. 5) recounted the prosecution story as narrated in the F. I. R. So did Anwar Zamir. The latter also confirmed that he had seen Atta Muhammad sit down for urinating near the scene and the three accused persons appeared only when he got up after having urinated. They have repeated the prosecution story which as we have already seen above, is totally disproved by a comparison of the medical evidence, and the statements made in the F. I. R. One of them is the brother of the deceased while the other is a close friend. In these circumstances, the testimony of these two witnesses cannot be believed for the reasons already given while discussing the F. I. R.
26. And the medical evidence.
27. ' A writing Exh. PG/1 was produced before the Court to show that a sum of Rs, 1,910 was due to the deceased from Anwar appellant. Exh. PG/I does not even refer to the name of Anwar or make any indication that Anwar had anything to do with this transaction. It was states by Anwar Zamir that Exh. PG/1 was recovered from the dead body of the deceased. This witness had categorically stated before the C. M. That Exh. PG/1 is not in the handwriting of the deceased. He tried to resile from it before the trial Court and had to be confronted with his statement. He was then asked to deny that Exh. PG/1 was not written in his own hand. He declined to deny that.
28. ' We have already seen that the doctor has stated that self-infliction of the injury which caused the death was possible. We would agree with him for more than one reason and particularly because of the fact that the course taken by the bullet was oblique from right and below to left and above. It is nowhere in evidence that the appellant was standing at a level lower than that on which the deceased was standing and, therefore, it is clear that if the deceased had been fired at by the appellant, the course of the bullet would not have been from below to above. It is, therefore, probable that the injury was self-inflicted. It cannot be forgotten that the pistol was lying close to the right band of the dead body as was deposed by Ghulam Farid (P. W. 3).
29. ' The village abadi is 30 to 35 karams from the spot as has been told by Bashir Ahmad Patwari P. W.
2. No witness from the village is forthcoming to support this theory although the report of the revolver would have been heard 'loud and clear'. It only shows that no independent person was prepared to support the put up theory of the prosecution.
30. In these circumstances, we find that the prosecution has totally failed to implicate the appellant.
31. The ocular witnesses tried to rope in two innocent independent persons who had already been acquitted by the lower Court and the learned lower Court rightly held that "allegations of this type are B frequently made to implicate innocent persons." The appeal is consequently accepted, the death sentence is not confirmed and is set aside along with th conviction. We have already directed by a short order that the appellant shall be released if he is not required in any other case.