' Muhammad Asif alias Chandi was tried by the learned Additional Sessions Judge, Sargodha for the murder of Bisharat Ali deceased and vide his impugned judgment dated 5-10-2000, the appellant was convicted and sentenced under section 302(b), P. P .0 . To undergo imprisonment for life as taz'ir and also he was directed to pay Rs,50,000 as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. And in case of default of payment the appellant was directed to suffer further undergo for six months S.I.
2. The prosecution story in brief as unfolded in F.I.R. No,59 of 1998 Exh.P.H recorded at Police Station Kirana, District Sargodha on the statement of P.W.10 Safdar Ali, complainant recorded by Muhammad Aslam, S.I. P.W.14 is to the effect that the complainant along with Bisharat Ali deceased, Neshan Ali P.W. And Muhammad Asif were sleeping on the night between 11/12-4-1998 in their Dera, at about 2-00 a.m. He woke up on the barking of dogs and saw in the moonlight Muhammad Asif alias Chandi accused/appellant present near the cot of Bisharat Ali deceased. He fired with his gun .12 bore thrice hitting him near the left ear and under the nipple of the chest of Bisharat Ali deceased. The occurrence was witnessed by Neshan Ali, Muhammad Asif and the complainant.
The appellant then ran away from the spot.
3. The motive behind the occurrence has been stated by P. W.10 Safdar Ali in F.I.R. Exh.P.H that 10/12 years ago, Bisharat Ali deceased had abducted Mst. Shaheen the sister of Muhammad Asif alias Chandi, who was given back on the intervention of the respectables of locality and due to this reason the occurrence had taken place.
4. After registration of the case the Investigating Officer P.W.14, Muhammad Aslam, S.I. Visited the spot and took into the possession blood-stained earth through recovery memo. Exh.P.E. Three empties of .12 bore gun were recovered from the spot which were taken into possession through recovery memo. Exh.P.F. The appellant was arrested on 23-6-1998 and during the investigation he led to recovery of gun .12 bore on 26-6-1998 which was taken into possession vide recovery memo.
Exh.P.E.
5. After completion of the investigation the challan was submitted in the Court of learned Additional Sessions Judge, who distributed copies of the statements of the witnesses required under section 265-C, Cr.P.C. And subsequently framed the charge which was denied by the appellant and he claimed to be tried.
6. The prosecution in order to prove the guilt of the appellant produced 14 witnesses and also tendered the report of Chemical Examiner and that of Serologist with regard to blood-stained earth as Exh.P.K and Exh.P.K/1 respectively and that of Forensic Science Laboratory as Exh.P.L and closed the prosecution case.
7. The appellant in his statement under section 342, Cr.P.C. Denied the allegations and also denied the recovery of gun. He has stated that the gun has been planted upon him and on question that "why this case against you and why the P.Ws. Have deposed against you," he has stated that the case against him is false. The P.Ws. Are related inter se as well as with the deceased and thus they have moved to falsely depose against him. On question that "have you anything else to say," he has made the following reply which is reproduced as under:-
8. "I am innocent. The case against me is false. Basharat Ali deceased was a man of bad character.
He was keeping on illicit intimacy with so many ladies, causing annoyance to their close relatives.
The deceased on the fateful night was sleeping alone when was done to death by any of his enemy. The complainant and the P.Ws. Were summoned at the spot on the following morning. The Investigating Officer colluded with the complainant party and after conducting preliminary investigation at the spot, nominated me as an accused on mere suspicion and at the instance of Anwar Ali Cheema the then M.N.A. Myself and my family was maintaining cordial relations with the deceased and his family. I cannot think of committing his murder."
8. After hearing the arguments of learned counsel for the parties the learned Additional Sessions Judge passed the impugned judgment, which is being assailed through this criminal appeal.
9. Learned counsel appearing on behalf of the appellant has contended that it was the night occurrence and has not been witnessed by any of P.W. The appellant has been involved in this case due to suspicion and also due to the previous enmity. It is further contended that it was not possible for the eyewitnesses to identify the accused in the moon bet light from the distance on which the appellant and the deceased were allegedly present. It is further contended that report of Forensic Science Laboratory is not positive and an inference can be drawn against the prosecution as the empties recovered from the spot were sent to Forensic Science Laboratory and subsequently the gun allegedly recovered was also sent to Forensic Science Laboratory but it has been opined that the empties were not found as having been fired from the gun. It is also contended that according to the prosecution 12 years ago of the occurrence the sister of the appellant was abducted by the deceased. The appellant and the deceased used to live in the same village but no attempt was ever made for the murder of said Basharat or to cause any danger to his life during the above said period. It is further contended that there is glaring contradiction in the medical evidence and the ocular account. It is further contended that the medical evidence is in contradiction with the ocular account as according to the witnesses the appellant was standing near the cot of the deceased at the time of occurrence and fired at the deceased from there. But P. W.1 Dr. Muhammad Aslam has not found blackening on the injuries received by the deceased. It is also contended that the blunt weapon injuries have not been explained by the prosecution which are nine in number. It is also contended that the deceased was a man of bad character having relations with different women and has been murdered by some of the relative of the said women but the case has been planted upon the appellant due to the enmity. It is further contended that the prosecution has failed to prove the case against the appellant, hence, the appeal may be accepted and the judgment may be set aside by setting at liberty the appellant.
10. Learned counsel appearing on behalf of the State has opposed this appeal on the ground that the medical evidence is in line with the ocular account as according to the ocular account the injuries have been caused from a very short range while the deceased was sleeping on the cot. It is also contended that the injuries are not blunt weapon injuries but are caused by fire-arm which is clearly mentioned by P.W.1. It is also contended that the ocular account is supported by the medical evidence as blackening and smoking is found by the Doctor when he examined the deceased and medical evidence is in line with the ocular account. It is further contended that P.W.11 Muhammad Asif has clearly stated that the occurrence had taken after Eidul-Azha and it was 14th of the moon and there is no question of misidentification of the appellant as both the appellant and P. Ws. Are residents of the same locality. It is also contended that the appellant is named in the F.I.R. And he is single accused. There is no chances of his false implication and their presence at the spot is natural. They are consistent on material points and the recovery has been effected from the appellant. It is further submitted that after his arrest when the appellant was produced before the learned trial Court during the trial, he became fugitive from justice and remained absconder for about two years, hence, his conduct is to be noted down, as the prosecution has succeeded in proving the case beyond any reasonable doubt.
11. I have heard the learned counsel for -the parties and also perused the record with great care and caution. The Learned trial Court has found that the motive is too remote and has not found it sufficient for the commission of the murder of the deceased by the appellant. No corroboration has been found to the ocular account. Similarly, recovery of the gun from the appellant has not been found as corroborative piece of evidence to the ocular account as the empties recovered from the spot immediately after the occurrence by the Investigating Officer were sent to Forensic Science Laboratory for expert opinion and subsequently gun recovered from the appellant was also sent to Forensic Science Laboratory but it was found that those have not been fired with it. In such circumstances, the recovery of the gun from the appellant is also of no " use to the prosecution.
Now, the evidence against the appellant remains in the shape of ocular evidence, comprising statements of Safdar Ali P.W.1Q and Muhammad Asif P.W.11. P.W.10 Safdar Ali is admittedly brother of Basharat Ali deceased while P.W.11 Muhammad Asif is nephew of P.1A'.10 and the deceased, hence, the witnesses are not only related inter se but are also related with the deceased closely, hence, their evidence is to be taken into consideration with due care and caution because the charge against the appellant is for the murder.
12. I have noticed that though they have made consistent statements in the Court that they were sleeping alongwith the deceased on different cots when the occurrence took place and they had witnessed the occurrence in the moonlight as it was. 14th of the month when the occurrence, took place yet according to them their cots were at a distance of 15/20 feet from the cot of the deceased and from the place where the deceased was sleeping and the accused fired at the deceased. It is admitted by P.W.11 during cross-examination that after abduction of sister of the appellant, the deceased and the appellant remained in the village and the appellant had been meeting with the witnesses as well as the deceased and no objection was ever raised to the conduct of the deceased by him nor he ever picked any quarrel with the deceased. They had been meeting with the accused in a cordial atmosphere, hence, the Learned trial Court has rightly disbelieved the motive part. But during the cross-examination though the allegations have been denied that the deceased was desperate person and had been involved in cases of abduction of women and immoral activities in the village and had so many enemies, hence, someone had murdered and the appellant has been involved falsely in this case, yet I do not find the witnesses worthy of credence for the conviction of an accused in a murder case without any independent corroboration because their statements itself show that they had some motive against the appellant and had some apprehension as his sister was abducted by the deceased, therefore, the chances of false implication of the appellant in such circumstances cannot be ruled out. I have also noticed that it is admitted fact that the occurrence had taken place after the mid-night during darkness and it cannot be ignored that though both the witnesses had allegedly witnessed the occurrence in the moonlight and were present at the spot yet their conduct alone during the occurrence, if were actually present when their close blood relation was being done to death, is sufficient to discard the evidence. According to them the appellant was armed with single barrel gun who fired first shot and then unloaded the gun, then fired second shot and again unloaded the gun and then fired third shot and once again unloaded the gun, it means sufficient time must have consumed between loading of the gun and unloading of the gun but the witnesses who were allegedly present at a short distance had not even. Tried to apprehend the accused/appellant during this time. They had neither raised any hue and cry nor had chased him after the incident as the deceased was very close relative of the witnesses and it was unnatural. Had they been present there, they might have tried to save the deceased from the second and third shot which was Pred, according to them, after loading the weapon. Their statements also seem to be false as there was no need to unload the gun after third fire as the deceased had already been done to death and no other fire was made even to threaten the witnesses. Their statements are also contradictory to the medical evidence as the Doctor. Has found as many as 14 injuries on the person of the deceased.
Injuries Nos.13, 14, 3, 4, 5, 6, 7, 8, 9, 10 and 11 are caused by blunt weapons. These injuries have not been explained by the eye-witnesses in their statements made before the police or before the learned trial Court, hence, the medical evidence is not in line with the ocular account and is contradictory which casts doubt about P.W.10 Safdar Ali and P. W.11, Muhammad Asif to have witnessed the occurrence having them failed to explain' these injuries on the person of the deceased. These injuries having been caused during the occurrence but not been explained is also a fact leading to the conclusion that the occurrence had not taken place in the manner as stated by the P.Ws.
13. Another aspect of the case is that semi digested food was found in the stomach of the deceased at the time of his post-mortem examination by the Doctor and in his opinion the deceased must have taken the meal 2/3 hours before his death. The villagers usually take the meal in the early hours of the night and occurrence had allegedly taken place at about 2-00 p.m.
Though the witnesses have tried to explain that they had gone to attend the funeral ceremony to a village about 40 k.Ms. Away from their house and after funeral ceremony they had gone to the house of said deceased person to say `Fatia' but they were not served with any meal does not lend to mind because in the village society the meal is usually prepared by the close relatives of the deceased in order to serve the persons having come to attend the funeral ceremony. The statement of P.W.10 Safdar Ali is that he got recorded the F.I.R. At police station but according to P.W.11 Muhammad Asif the statement of Safdar Ali P.W.10 was recorded at the spot by the Sub- Inspector and he thumb-marked the same in his presence. In such circumstances, it is borne out from the record that the F.I.R. Has not been recorded as has been stated by the complainant and the Investigating Officer and possibility of its being recorded after thorough investigation cannot be ruled out, thus it cannot be termed as a promptly lodged F.I.R.
14. Both the witnesses have failed to connect the appellant with the commission of the crime beyond any reasonable doubt. It has not been shown in their statements that they were sleeping there in order to tethering the cattle as it is not referred by the prosecution that the cattle were at the place of occurrence and in order to save them they were sleeping there. It has also not been mentioned in their statements recorded during the trial that it was the purpose for their sleeping along with the deceased. Similarly, in the site plan it has not been shown anywhere that the cattle were being tethered at the place of occurrence. In such circumstances, both the eye-witnessed examined by the prosecution to furnish ocular account against the appellant have failed to show their presence at the spot at the time of occurrence which causes serious doubt in the prosecution case about their having witnessed the occurrence. In such circumstances, the ocular account alone which is also in contradiction with the medical evidence is not sufficient to uphold the conviction passed through the impugned judgment. Admittedly, it was the dark night occurrence and about source of light it is difficult to believe that in the moon light the occurrence was witnessed by these two witnesses. The time of occurrence is also doubtful. In such circumstances, the prosecution has miserably failed to prove the guilt of the appellant beyond reasonable doubt.
15. For the foregoing reasons, this appeal is accepted by setting aside the impugned judgment of conviction and sentence and the appellant is acquitted of the charge by extending. Him the benefit of doubt. He is in jail and shall be released forthwith, if not required in any other case.