1988 PLP 1532 (SCMR)

NASIM HASAN SHAH, J.‑‑This is an appeal, by leave of this Court, directed against the judgment of the Lahore High Court dated 27‑10‑1981 whereby death sentence awarded by Sessions Judge, Sargodha to the appellant Dosa son of Ahmad under section 302, P . P . C . for causing the murder of Sohrab was confirmed and his The prosecution case briefly stated is that the appellant and the deceased had fallen out on account of the appellant's cattle having trespassed into the field of the deceased, who had abused him. This was the motive. On the night of the occurrence, it is stated, when a lantern was alight the appellant came and fired at the deceased as a result of which he succumbed to the injuries caused by the gun shot. The prosecution relied on the recovery of gun which, however, is inconsequential because no empty was recovered from the spot. In addition, reliance was placed on the eye‑witness account given by the complainant Mutalli (P.W.7) and two other witnesses, Muhammad Yar (P.W.8) and Sher (P.W.9), who are neighbours and allegedly saw the appellant while retreating from the spot after the incident. The appellant's plea was of denial which having been rejected he was convicted for the offence of murder and sentenced to death. The High Court having dismissed the appeal and confirmed the sentence of death hence this appeal by leave of this Court. Before the High Court it was submitted that the eye‑witness account of the three eye‑witnesses could not have been believed as these witnesses are interested witnesses being close relatives of the deceased. Mutalli, P.W.7, is the uncle as well as father‑in‑law of the deceased. Sher P.W.9 is son of Ali who is son of Ghulam, a real brother of the father of Mutalli P.W. Muhammad Yar P.W. was admittedly prosecuted alongwith the deceased for the murder of one Muhammad Afzal and as such was a partisan witness. It was also submitted that the presence of Mutalli was highly doubtful as there was no reasonable explanation for his spending the night in the house of the deceased. Similarly, the presence of Sher P.W. in the vicinity on the fateful night was also doubtful as he hailed from village Chowkara and had no land or house in Chak No.32/NB, where the occurrence took place. It was also argued that the appellant and the complainant party had asked the accused party to find out the real culprit or stand charged for the murder of the deceased. As the accused party could not find out the real culprit the appellant was involved in the case as scapegoat. The learned Judges in the High Court rejected these pleas observing:- "Mutalli P.W.7 is maternal‑uncle as well as father‑in‑law of the deceased and despite the fact that on the night of occurrence the wife and the children of the deceased were not in the house yet the presence of Mutalli and spending of night by him in the house of his sister's son and son‑in‑law is neither unnatural nor something extraordinary. He in a straightforward manner stated that there was no reason for him to stay for the night with the deceased except that he was my Bhanja and he asked me to stay as I had reached there by the sunset." They went on to .add that his testimony alone was sufficient to inspire confidence. As to the presence of Sher P.W. in the vicinity at the time of the occurrence it war, observed that‑‑ "It will be noted that in his testimony Sher P.W. explained that he was in the Chak for a long time, cultivating the land of his sister's husband Naurang and was sleeping in the. Ahata jointly owned by Naurang and Muhammad Yar P.W.8. He. attracted to the spot alongwith Muhammad Yar P.W. by` the gun report, as they were sleeping in the land outside the house of the deceased at a distance of 32 feet from the door of the house in which offence took place." The conclusion expressed was that there was "nothing uncommon for these P.Ws. to have seen the appellant while he was retreating from the spot after having shot the deceased. The ocular account of these witnesses cannot be brushed aside as the witnesses, the deceased, as well as the appellant belong‑to one and the same Baradri and there is nothing in the entire record to suggest that there can possibly be any reason for the eye‑witnesses to falsely implicate the appellant, in a murder case or to substitute the appellant for the While granting leave to appeal it was observed by this Court that an aspect which, inter alia, required serious consideration was that "according to the Inquest Report the body of Sohrab (deceased) was found in naked position and that his shoes were also not available. That being so, the motive and the entire prosecution story about the manner in which the murder was committed would undergo change and be covered by shadow of doubt" . It was further submitted that the complainant did not see the occurrence nor did the evidence of P.W8.8 and 9‑‑who were really Waj Takkar witnesses ‑ really corroborate the ocular account given by the complainant Mutalli, which was even otherwise open to grave doubt. We have been taken through the evidence by Khawaja Muhammad Afzal, learned counsel for the appellant. We note that it is a night occurrence and the night was a dark one. According to the prosecution, the only eye‑witness of the incident is Mutalli P.W.7, the uncle and father‑in‑law of the deceased who lives two miles away. However, none of the normal inmates of n the house were present there on the fateful night. The wife of the deceased (and daughter of Mutalli) and the children had gone to his house a day before the occurrence. One Jalal, who resided in the Ihata of the deceased was also not present. But fortuitously Mutalli came to visit the deceased, although the wife of the deceased and her children‑‑his daughter and grandchildren‑‑had gone to stay with him and despite there being no reason for him to stay for the night with the deceased, he stayed on, as the deceased asked him to do so. Khawaja Muhammad Afzal vehemently contended that the claim of Mutalli to have been with the deceased is false; that it was an unseen occurrence and Mutalli had been informed about it early next morning and the appellant was implicated on account of strong suspicion. In this connection, he pointed out that the F.I.R. was lodged in the morning of the 6th May, while the occurrence took place on 5th night. In this connection he drew our attention to the statement of Mutalli on cross‑examination to the effect that he "stayed at the spot from midnight till Azan and thereafter left for the Police Station", which was 8 miles away. He also referred to the statement of Sher P.W.9, in cross‑examination that he had stated in his statement before the Police (Ex.D.B.) that he and Muhammad Yar P.W. remained with the dead body while Mutalli left for the report to the Police, but this was not found so recorded in his statement before the Police, on confrontation with it. The explanation given by Mutalli for his being with the deceased on the fateful night also does not appear plausible. The deceased's wife‑‑the daughter of Mutalli‑‑had come to his house, which was only two miles away. One would normally expect that he would return to be with them, even if he had gone to visit Mutalli during the evening. The statements of Muhammad Yar P.W.8 and Sher P.W.9 are also of not much help. They allegedly were sleeping about 30 yards away and were awakened by the report of the gun‑shot. They then rushed to the spot and saw the appellant retreating from the spot. We have already noticed that it was a dark night and the appellant was allegedly seen in the light of the lantern, which was burning. 'But it does not stand to reason that the appellant should have waited at the spot, after firing at the deceased, so as to be seen by others coming from outside. On the other hand, he should have fled away immediately after the occurrence and should have been more than 30 yards away from the scene of occurrence before outsiders who were sleeping 30 yards away, could reach the spot after waking up by the report of the gun. In these circumstances, if the appellant was more than 30 yards away from the spot, when Muhammad Yar and Sher P.Ws. reached it, they could not possibly have seen him in the light of the lantern. There is also the curious circumstance of the deceased having been found lying stark naked on his cot after being fired upon (and even his shoes were not anywhere near it). It is hardly likely that he would have been sleeping in this state if his uncle and father‑in‑law was really lying on a cot by his side. All in all we are very doubtful, after having gone through the record and considering the attendant circumstances that any one had indeed witnessed the occurrence. Accordingly, we would give the appellant benefit of doubt. The result is that this appeal is accepted. The conviction and sentence set aside. The appellant shall be released forthwith if not wanted in any other case. M.Y.H./D-21/S Appeal allowed.