1985 SCMR 233 (PLP)

4. After recording the F.I.R. the Investigating Officer went to the spot. After preparing necessary documents he sent the dead body of the deceased for post-mortem examination. He did not find any blood there.

5. The following injuries were found on the dead body during the autopsy:- (1) An inlet wound of fire-arm on the right arm about 2" above from elbow joint on the lateroventeral aspect, size 1/4" x 1/4". (2) An exit wound of the above wound on the same arm on the same level but on the anterio-medical aspect, size 1/2" x 1/2". (3) After passing through the muscles of the elbow joint the bullet entered into the right side of chest at the level of 8th inter-costal space between the anterior and middle exillary line at the level of about 6" below the axilla, size 1/2" x 1/2". (4) A lacerated wound on the right eye-brow, size 1" x 1/4". (5) A bruise on the outer angle of right eye, size 1" x 1/2"'. The accused was arrested on the next day but nothing was recovered from him. The prosecution case, therefore, rested on the ocular testimony of Fazal Hussain P.W.8 complainant (brother-in-law of the deceased) and his servant Irshad Ahmad P.W.9. The only corrobo ration of their testimony brought on the record by the prosecution was the alleged evidence of motive and the medical evidence.

5. The learned trial Court, believed the prosecution evidence, convicted the accused-appellant under section 302, P.P.C. and sentenced him to death. On appeal the High Court maintained his conviction and confirmed his death sentence. Not being able to engage a counsel the appellant filed a petition for leave to appeal through jail, whereupon leave was granted to him by order dated 10-1-1981.

6. We have heard the learned defence counsel and have also gone through the judgments of the two Courts below and the evidence on the record. We feel that this is a very poor case for the prosecution. In the first place the motive put forward by the prosecution is' very flimsy. It is not understandable why the appellant should have had a grouse against Muhammad Akram (deceased), when it was Niaz Muhammad who had fought with and injured the appellant. Secondly no blood was found at the alleged place of occurrence. As such the place of occurrence has not been fully established. Again, according to the prosecution story as narrated in the F.I.R. the appellant has fired 4/5 shots at the deceased from front side all of which had hit him but a, careful examination of the medical evidence reproduced in paragraph' No.5 (above) shows that only one shot had been fired by the assailant not from front side, as stated in the F.I.R., but from the right hand side. It is also noteworthy that injuries 4 and 5 on the deceased which, are a lacerated wound on the eye-brow and a bruise on the outer angle of right eye, 1" x 1/2" in size, has not at all been explained by the prosecution. It appears that there was fight between the assailant and the deceased before the occurrence, during which these injuries were caused' and that thereafter the assailant had fired the solitary shot at the deceased. The result is that neither the motive nor the medical evidence can be said to support the two eye-witnesses. As already mentioned above, out of whom Fazal Hussain P.W.8 (complainant) is the brother-in- law of the deceased while the other (Irshad Ahmad P.W.9) is former's personal servant. As such we are not persuaded to maintain the conviction of the appellant on this state of the prosecution evidence. As a result we allow the appeal, set aside the judgment of the High Court and acquit the appellant. He shall be set at liberty forthwith unless wanted in some other case. M . Z . M . Appeal allowed.