1976 P Cr (PLP)

Date of hearing : 10th May 1973. K. M. A. SAMDANI, J.‑‑This judgment will dispose of Murder Reference No. 110 of 1971 and Criminal Appeal No. 445 of 1971 arising out of the judgment dated 29th May, 1971 of the Sessions Judge, Mianwali, whereby he convicted the appellant under section 302, P. P.C. and sentenced him to death.

2. The appellant Malik Jan son of Baqi Khan, was tried along with his cousin Bait Ullah, his friend Isam Gul, and another person Taraz Gul who happens to be a cousin of the said Isam Gul. But the learned Sessions Judge acquitted the three co‑accused and convicted the appellant alone on two grounds, namely, that he had a motive to kill the deceased. Gul Faraz; and that it was he who had fired the fatal shot although, according to the prosecution the deceased had been shot at effectively as well by Isam Gul accused as by Malik Jan appellant. However, the prosecution case in brief, is as follows:‑‑‑ About 6 or 7 years prior to the occurrence in question, Gul Faraz deceased had made an attempt on the life of Ghazi Khan, a brother of Malik Jan appellant by shooting him as a result of which he was convicted under section 307, P. P. C, and sentenced to five years' R. I. He served out the sentence and was released a year before the present occurrence. On the 25th July 1969, Gul Faraz deceased his brother Gul Raz complainant; their father Wali Dad Khan collected in the morning at the home of Badshah Khan, the maternal uncle of the deceased and the complainant, under a kiker tree presumably to enjoy the shade. At about 9‑00 a.m. Gul Faraz deceased left the company to answer a call of nature. While he was returning to his uncle's house he was challenged by Isam Gul accused who was armed with a gun. Then Isam Gut accused fired upon him immediately as a result of which Gul Faraz deceased was hit a little below his right shoulder. He tried to run but Malik Jan appellant, who also appeared there armed with a gun, shot him on his left side whereupon Gul Faraz deceased collapsed after covering some distance. Gul Raz complainant, his father Wali Dad, and his uncle Badshah Khan rushed towards the deceased and found Taraz Gul and Bait Ullah Khan accused also standing behind and firing their guns. The deceased succumbed to the injuries on the spot and the complainant went to the police station and reported the incident. All the four accused denied the allegations altogether arid also examined two witnesses to show that Badshah Khan P. W. could not have been present at the scene of occurrence when the deceased was murdered. However, the eye‑witnesses examined by the prosecution are he said Gul Raz, Wali Dad and Badshah Khan the closest possible relatives of the deceased. The enmity between the deceased and the appellant is an admitted fact in this case. Yet two other persons, namely, Mahboob Shah and Miran Mast mentioned as eye‑witnesses in the F. I. R. have not been examined by the prosecution, and the witnesses tried to minimise the effect of their non‑production by stating that either they were not present at the scene of occurrence or that they arrived there a bit late. It makes one wonder as to whether those two persons, if examined, would have supported the prosecution case although they have also been shown to be related to the deceased one way or another. Thus the fate of this case, hinges entirely on the testimony of Gul Raz, Wali Dad and Badshah Khan, P. Ws. without any circumstantial evidence on record to corroborate it. It is obvious that these witnesses have tried to rope in as many friends and relatives of Malik Jan appellant as they possibly could. Therefore in view of this and the admitted enmity, it is not safe to rely upon their testimony. They are indeed highly interested witnesses in the true sense of that expression.

3. The only piece of circumstantial evidence on record, namely, the testimony of the doctor who examine, the deceased post‑mortem, does not conclusively show that the deceased was hit by two independent shots. In tact the doctor was of the opinion that all the injuries sustained by the deceased could possibly be the result of a single shot. Even if it be held, des pite the opinion of the medical expert that the deceased was hit by two shots; the possibility of both shots having been fired by a single assailant cannot be ruled out. In fact in this case it is highly doubtful if any of the three so-called eye‑witnesses at all sighted the assailant or assailants while the deceased was tired upon even if they were under the kiker tree in the house of Badshah Khan P. W. at that time. For, it appears from the F. I. R. that they noticed Taraz Gul and Bait Ullah accused only when they ‑reached the place where the deceased had fallen. This indicates that the alleged assailants were not visible to then from where, they claim to have been at that moment i.e. under the kiker tree. For all that we know, Isam Gul accused alone may have done the job for the sake of his friend Malik Jan appellant who undoubtedly had a motive to kill the deceased. But the mere fact that he had a motive, does not prove him guilty of murder and liable to be punished with death. We are, therefore, of the view that the evidence on record has not brought home the charge of murder to the appellant to our satisfaction.

3. We accordingly refuse to confirm the sentence of death, accept the appeal, set aside the conviction and sentence and acquit the appellant. Appeal allowed.