1984 PLP 545 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑Leave was granted to the appellant b this Court vide order, dated 21‑3‑81 on the ground that his conviction rests on the evidence of solitary eye‑witness, while the evidence of the recoveries of crime shells and revolver were rejected by the trial Court and the on corroboration of the ocular account, which weighed with the trial Court, wa s motive for the crime.

2. According to the prosecution, on 10‑12‑1976 at about 10 a. m. in the limits of Chak No. 350/GB Police Station Rajana, District Lyallpur, the deceased Muhammad Akram, along with his brother Muhammad Yusuf, was proceeding towards his field to bring fodder for the cattle. When they reached near the shop of one Muhammad Ramzan, from the south‑eastern side Muhammad Anwar appellant appeared; took out a pistol from his trouser's fold and fired at Muhammad Akram deceased who was hit on his left shoulder by the first shot; the second shot fired hit his chest and the third shot fired wounded him on his right shoulder and he fell to the ground and died instantaneously. The occurrence was witnessed by the reporter Muhammad Yusuf, Muhammad Hussain and others.

3. According to the complainant, 2J years prior to the occurrence Muhammad Ashraf, another brother of the deceased and the complainant, had murdered the father of the accused/appellant for which he was tried and convicted but his appeal was accepted by the High Court and he was acquitted of the charge.

4. Report Exh. P.D. in the instant case, was recorded by Javed Nisar, S. H. O., P. W. 10 at Canal Bridge known as Pul Nagra on the basis of which a formal case was registered under section 302, P. P. C. at Police Station, Rajana. The dead body was sent to the mortuary where Dr. Ghulam Ahmad P. W. 6 performed the post‑mortem examination and found (i) A charred contused abrasion on upper part of right chest ; (ii) A charred contused abrasion on the right upper arm ; (iii) Abrasion on the body of right forearm ; (iv) A charred contused abrasion on posterior of left axilla ; (v) A charred contused abrasion on left shoulder ; and (vi) A fire‑arm wound on the left chest which pierced the chest wall, lower lobe of lung and apex of heart, through and through.

5. The accused was arrested on 12‑12‑76 and while in custody he led the police to the; recovery of revolver P. 4, three empties P. 5/1‑3 and two live cartridges P. 6/1‑2 from his residential house which were taken into possession and sealed into parcel.

6. Learned counsel for the appellant contended that both the Courts below have relied upon the solitary statement of Muhammad Yusuf complainant, brother of the deceased; that not a single independent witness had been produced to support the prosecution case; that the recovery of revolver and the crime empties were rejected by the Courts below; that corroboration of the testimony of Muhammad Yusuf complainant is sought only by the motive for the crime; that the medical evidence totally belies the statement of Muhammad Yusuf as the doctor found most of the injuries charred with gun powder whereas the eye‑witness Muhammad Yusuf had not given any distance between the assailant and the deceased in his report Exh. P.B. nor has he stated the spot wherefrom he witnessed the occurrence, and therefore, it is obvious that he has not seen the occurrence. Besides this Abdul Hamid P. W. 3 who is related to the complainant and the deceased, admitted in cross‑examination that the occurrence took place at "sun‑rise" The Courts below failed to appreciate that the time of occurrence given by the complainant is not supported by the medical evidence because according to the doctor's statement there was 8 ounces of digested food in the stomach of the deceased. Had the occurrence taken place at 10 a. m. the deceased's stomach would have been found empty.

7. The learned counsel further contended that the occurrence took place in front of the shop of one Muhammad Ramzan which was found closed at the time of occurrence. Normally shops are opened in the early hours of the morning in villages, and, therefore, Muhammad Ramzan was not produced by the prosecution as eye‑witness of the occurrence as he had not yet opened his shop.

8. Regarding the recoveries we refer to the following observation of the trial Court: "Admittedly it does not appeal to reason that the accused, after the occurrence, would retain the crime empties also at his house for the recovery of the same by the police," It was further observed by the trial Court regarding the recovery of revolve and crime empties: "Be that as it may, the recovery evidence is manifestly inconsequential for the simple reason that the revolver P. 4 has not been wedded with the commission of crime."

9. We have examined the contentions raised by the learned counsel and find that there is substantial force in his arguments. The medical evidence contradicts the statement of the complainant Muhammad Yusuf as the site plan Exh. P K drawn at the instance of this eye‑witness, shows Point No. 1 where the deceased was fired at and killed while in the site plan Exh. P K the Investigating Officer has not noted the distance between the assailant and the deceased "I have not shown the houses of Muhammad Hussain and Nazir P. Ws I have also not shown the place in Exh. P K where the accused was standing at the time of the occurrence. I did not show the place in m3 inspection notes where the accused was standing at the time of firing made by him at the deceased. In the whole of record prepared by me 1 have not given the distance between the accused and the deceased at the time of occurrence."

10. Testimony of Muhammad Yusuf is to be taken together with the background of enmity between the parties. A witness normally is considered independent unless he springs from sources which are likely to be tainted and that usually means that unless the witness has a cause such as enmity against the accused and wishes to implicate him falsely. Thus the testimony of Muhammad Yusuf cannot be safely relied upon as he is the real brother of the deceased and his another brother was charged for the murder of the father of the accused/appellant. Such a testimony would necessarily require an independent corroboration.

11. We have also gone through the evidence of the doctor and we find that the deceased had six wounds of different dimensions. To mention them precisely, Injury No. 1 is x 1/2" and so are Injuries Nos. 2, 3 and 4 which are all nearly of the same dimension whereas Injury No. 5 is 1/2" x 1/3" and Injury No. 6 is also of the same dimension. All this obviously points out that two different types of weapons were used in the commission of the offence and the possibility cannot be excluded that more than one assailants had surrounded the deceased all of a sudden and fired at him from a very close range.

12. In his statement, Abdul Hamid, who was produced as P. W. 3 as referred to above, mentions the time of occurrence as "sun‑rise". In his cross‑examination he stated: "At about sun‑rise time, there was alarm that Muhammad Akram deceased had been shot dead. So I reached the spot. I did not see Muhammad Yusuf complainant, Muhammad Hussain and Muhammad Nazir being present at the spot." Although Muhammad Hussain and Muhammad Nazir were mentioned in the F. I. R. yet they were not produced by the prosecution. Thus we allow this appeal, the appellant shall be set at liberty at once, if not required in any other case. M.Z. M. Appeal allowed.