CH. IFTIKHAR HUSSAIN, J.--- Ghulam Abbas and his father Muhammad Rafique were tried under section 302 read with section 34, P.P.C. In the case F.I.R. No.172 of 1995 registered with Police Station, Khutiala Sheikhan, District Mandi Bahauddin for in furtherance of their common intention committing the Qatle-eAmd of deceased Abdul Razzaq on 21-3-1995 at about 6-00 p.m. In front of the house of one Muhammad Sadiq situated in the chowk of their village No.33 falling within the jurisdiction of the aforesaid police station.
2. Ghulam Abbas vide the judgment rendered by Syed Iqtidar-ul-Hassan Bokhari, learned Additional Sessions Judge, Mandi Bahauddin was convicted under section 302(b), P.P.C. And sentenced to death subject to confirmation by this Court. He was also directed to pay Rs.1,00,000 as compensation to the legal heirs of the deceased.
3. He feeling himself aggrieved of the impugned judgment of his conviction and sentence has assailed the same by way of Criminal Appeal No.617 of 1999.
4. The learned trial Court has submitted Murder Reference No.263 of 1999 to this Court for confirmation of his sentence of death. .5. Muhammad Rafique his father was acquitted of the charge by giving him the benefit of doubt.
6. Haji Nazir Ahmad complainant has brought Criminal Revision No. 704 of 1999 against both of them. The same has been dismissed vide our separate order recorded today on the same being not maintainable.
7. However, as his appeal and the murder reference have arisen out of one judgment in a case, hence, these are being disposed of by this single judgment.
8. The detailed facts of the case are available in the impugned judgment as well as the paper book. We, therefore, refrain to repeat all those here lest the record may be burdened unnecessarily.
9. The prosecution at their trial has mainly relied upon the ocular testimony, medical evidence, recovery of crime-weapon pistol and the motive. The learned trial Court has believed all these pieces of evidence against him, while rejected his plea that deceased along with 5/6 armed persons had attacked his house and as a result of firing made by them a stray bullet had hit him (deceased) on his back. It finding him guilty of the Qatal-e-Amd of the deceased had convicted and sentenced him as stated above.
10. It has been contended on his behalf that it sufficiently reflects from the evidence on the record that the eyewitnesses were not present at the spot and they had not seen the occurrence; that the medical evidence has contradicted the initial stand of P.W.2, Haji Nazir Ahmad complainant in the F.I.R. Exh.P.B. Inasmuch as that in the same he had mentioned that the solitary fire shot made by him at the deceased had hit him on the front side of his left thigh while the doctor has found a circular lacerated entry wound of 1 c.m. Diameter on left buttock with exit wound on left inguinal region and anteriorly at mid 2.5 c.m. Dia with averted margins and this position is absolutely in negation to his said initial stand; that recovery of crime weapon pistol was inconsequential as no empty was found from the spot to be sent to the expert for matching with the same; and that the motive in this case has also not been proved by any independent person.
11. As against the same the learned State counsel has supported the impugned judgment saying that the eye-witnesses as per the evidence has proved to have witnessed the occurrence; that they were absolutely independent persons; that medical evidence is in line with their testimony; that Haji Nazir Ahmad complainant in his supplementary statement has explained that in fact the fatal shot to the deceased had hit him on his buttock and so there is absolutely no inconsistency in these two pieces of evidence; that although no empty was found from the spot and opinion of the Ballistic Expert is not available but the same is hardly of any consequence as the reliable ocular account supported by the medical evidence and the motive has established abundantly the guilt of the appellant beyond any shadow of reasonable doubt.
12. We have considered the submissions made from both the sides with the help of available record.
13. The ocular account of the prosecution has been unfolded by Haji Nazir Ahmad complainant(P.W.3), Lal Khan (P.W.4) and Sardar Khan (P.W.5). The former two Haji Nazir Ahmad and Lal Khan) are the real uncles of the deceased and third one namely Sardar Khan, the friend of Lal Khan. This relation of the former two with the deceased and of Sardar Khan with Lal Khan is admitted fact in the evidence on record. Though this is long settled principle that relation of a witness with the deceased is no matter, if he either is not inimical towards the accused or his evidence otherwise is inherently reliable.
14. The presence at the spot of first informant Haji Nazir Ahmad at the relevant time has appeared to us to be doubtful. This is simply because of the fact that he in the F.I.R. Exh.P.B., which has been shown to have been lodged with the police within 1-1/2 hour of the occurrence, has clearly mentioned that the fire shot made by the appellant had hit his deceased nephew on the front side of his left thigh, while on the autopsy of the dead body of the deceased there was found only one injury and the same was entry wound in the shape of circular lacerated wound of 1 c.m. Diameter on left buttock at center inverted margins without blackening and tattooing with its exit on left inguinal region anteriorly at mid 2.5 c.m. Dia with everted margins. The autopsy on the dead body was conducted On the next day of the occurrence i.e. 22-3-1995 at 9-30 a.m.
15. He in his statement at the trial has mentioned that he subsequently had made supplementary statement wherein he mentioned that the fire shot had actually hit at the left buttock of the deceased. The supplementary statement has no value in the eye of law. It seemingly was made to cover up the mistake in his narration in the F.I.R. Exh.P.B. Regarding the exact locale of the injury of the deceased. Had he been present' at the spot and witnessed the occurrence, he would not have made such mistake about the seat of injury of the deceased. This circumstance in evidence has strongly compelled us to believe that he perhaps was not present at the spot and rather had not seen the occurrence. It is needless to mention here that even one , reason or factor, if creates any reasonable doubt in the probability of a version being true, the same can be taken as sufficient to clinch the matter and not many are required. He perhaps had not seen the occurrence and had come forward only for the reason of his being relation to the deceased. In view of the above position, we are hesitant to place reliance upon his testimony safely.
16. As regards Lal Khan, he besides E any other thing seems to be a chance witness. It is because of the fact that he is not resident of the place close by the venue of occurrence. He has given the cause of his presence at the spot at the relevant time. According to him Sardar Khan is his acquaintance and he along with him had gone to the house of one Murad Khan in their village on the asking of the latter i.e. Sardar Khan to take money from him. He did not have any of his business or personal concern there at that place at that time. So, there is not the least doubt that if at all his presence was there at that time, it was merely per chance. He could not be happened to be there in the ordinary course of business or affairs at that time. His evidence, therefore, is to be scrutinized and received for acceptability very cautiously.
17. He as said above is the real uncle of the deceased. He is resident of a place at some distance from the venue of occurrence. He did not have any of his personal business or concern there at that time as said above. It has been established from the evidence on the record that the houses of other persons were there all around the place of occurrence. This is so from his own evidence and that of his brother Haji Nazir Ahmad and Draftsman Mian Muhammad Siddique (P.W.9). It was evening time in the month of March when the occurrence had happened. There had come none from these houses to support their version. Though, we are conscious of the fact that people normally are reluctant to come forward in the matter of others to run the risk of their, enmity but this fact has put us to guard in receiving their evidence as of reliable character without any support from any independent source. Here in this context it may also be relevant to mention that it was argued by the learned State counsel that these P.Ws. Had no enmity with the appellant and so they had no cause to depose against him falsely. We don't agree with his this submission as this too has long been settled that mere absence of enmity on the part of a witness against accused does not stamp his testimony with truth. the appellant is not worthy of placing implicit reliance.
20. The medical evidence has contradicted the ocular testimony at least furnished by the important: witness of the prosecution namely Haji Nazir Ahmad complainant. It has made it doubtful that if the deceased was fired at in the way as had been described by him in the F.I.R.
Exh.P.B. We, therefore, are reluctant to receive the same as supportive to the ocular account.
21. The recovery of crime weapon pistol P-6 is inconsequential in this case as admittedly no crime- empty was found from the spot. The alleged crime weapon P-6 is licensed one of the appellant. It was not sent to the ballistic expert for his opinion that if it was in working condition. The recovery of this weapon, therefore, could not be received as of any corroborative/supportive value to the prosecution ocular account. The learned trial Court, therefore, has erred in receiving it so in entertaining the idea of the guilt of the appellant.
18. We, due to his being chance witness and having no personal cause to be present at the spot at the. Relevant time are reluctant to place reliance upon his testimony safely.
19. As regards Sardar Khan (P.W.5), he absolutely is a chance witness in this case. He is resident of Chak No.25, which is at a distance of about four miles from the village of the deceased. He had acquaintance with Lal Khan. He has admitted that they have lived together in Kuwait. So, he seems to have old association with him. It is interesting to note here that he has not at all not given any cause in connection with which as per his showing he happened to be there at the place of occurrence at the relevant time. He simply has stated that he was coming from West to East with Lal Khan at that time and why and where from it was, has not been shown by him. So, he when was not the resident of the village and rather belong to another village and was having old association with Lal Khan by having lived with him in a foreign country and could not possibly be there at the relevant time, his testimony seems not worth placing reliance safely. So, we are of the considered opinion that the ocular account in this case against
22. The motive part of the prosecution story has been narrated by all the three aforementioned eye-witnesses. It according to them was that on the day of incident a quarrel had taken place between the appellant and the deceased in the morning due to one Ghulam Qadir Kumhar. It is in their evidence that appellant used to misbehave with the said person and the deceased had forbidden him from doing so and over the same a quarrel had ensued between them in the morning on the day of the occurrence. It is but clear from their evidence that none of them had seen that quarrel between the appellant and the deceased over the matter of the said person i.e. Ghulam Qadir Kumhar. The motive, therefore, has not been duly proved by any independent person/evidence in this case. It rather, had remained hidden. The same, therefore, could not be used as corroborative circumstance to the evidence of the eye-witnesses. All these three witnesses as is obvious from the above position have not been found inherently reliable in this case.
Therefore, we have not been persuaded to accept their testimony as regards the motive part of the prosecution story as well.
23. We are, therefore, of the considered view that the prosecution had failed to prove the case against the appellant beyond any shadow of reasonable doubt. His conviction and sentence, therefore, is not liable to be sustained.
24. We, therefore, accept his appeal, set aside the impugned judgment to the extent of his conviction and sentence and acquit him of the charge giving him the benefit of doubt. He is in custody. He be set at liberty forthwith, if not involved in any other case.
25. The Murder reference is answered in negative. The death sentence is not confirmed.