1988 P Cr (PLP)

of Punnu Khan. The sentences were to run concurrently. It was directed that the fine if realized half of it be paid as compensation to the legal heirs of the deceased.

2. The occurrence took place in the Haveli of Punnu Khan P.W.13 situate in Dhoke Mughal Keyal Dakhli Aheer at a distance of 4J miles from Police Station Gujjar Khan. The F.I.R. Exh.P.M. was lodged by Nazir Hussain P.W.12, first cousin of the deceased and was recorded by Javaid Nisar P . W.15 on the same day at 7‑45 p. m.

3. The background of the occurrence was that in the morning of the day of occurrence, Changaiz Iqbal deceased was taking cattle for grazing, when he passed his cattle from the public street near the house of Muhammad Azad appellant, the appellant asked him not to pass his cattle because they will damage his Band which he had made in the street. The deceased told him that since he was passing his cattle from public street, therefore, he (Azad) had no business to stop him. This led to altercation and exchange of abuses between them. Nazir Hussain P.W.12 was present in his courtyard at that time. He came out, intervened and separated them, hence this occurrence.

4. As far the main occurrence, it has been stated that at the eventful time, Changaiz Iqbal was returning to his house after grazing his cattle. When he came near the house of Muhammad Azad, the appellants and two acquitted accused, came out of their houses. Muhammad Azad and Zubair appellants were armed with guns and Muhammad Ayaz was carrying pistol. Muhammad Azad appellant raised Lalkara that. he would teach lesson to Changaiz Iqbal for passing his cattle from he street. On this the deceased ran towards the house of Punnu Khan P.W.13 and when he reached the courtyard of the house, Muhammad Azad appellant fired shot hitting on the forehead of Changaiz Iqbal, who fell down. Zubair appellant fired shot on the right shoulder of Punnu Khan. Muhammad Azad appellant then fired shot which hit on the left arm of Punnu Khan P.W. The appellant and his co‑accused then fired successive shots at random which hit the cow of Punnu Khan and the wall of his house. Punnu Khan also received injuries on his back. The occurrence was seen by Nazir Hussain P.W.12, Zulfiqar Hussain P.W.14 and Abdul Aziz (not produced). Changaiz Iqbal died on the spot. The appellants and the acquitted accused ran away.

5. On 19‑7‑1983 Dr. Ghayur Alam P.W.4 conducted post‑mortem examination on the dead body of Changaiz Iqbal. He found following injuries: ‑ (1) Fire‑arm inlet wound edges inverted f x );" x going inward on front right portion of forehead. (2) Fire‑arm inlet wound, edges inverted I x I" x going inward on right shoulder joint. Corresponding hole was present on shirt and bunian." In his opinion; the death was due to shock and haemorrhage as a result of injuries Nos. 1 and

2. Both the injuries were caused by fire‑arm. Injury No.1 was sufficient to cause death in the ordinary course of nature. Injury No.2 was simple. One pellet was recovered from underneath injury No.2. On 28‑7‑1983, the doctor examined Punnu Khan P.W. and found 5 fire‑arm wounds out of which 3 were on the back‑‑lower, left and right portions of the chest. He also found tendered area 3 x 2" on left shoulder joint. One pellet was recovered from underneath injury No.3. On X‑Ray 2 injuries on the left and right portion of the chest were declared grievous. The rest were simple.

6. On the day of occurrence, four crime empties Exh.P.10/1‑4 were lifted from the spot by Javaid Nisar, S.H.O., P.W.15 and were taken into possession vide memo. Exh.P.K. attested by Muhammad Akram P.W.11 and Muhammad Sarwar (not produced). On 1‑8‑1983, the appellants and the co‑accused were arrested by Javaid Nisar, S.H.O., P.W.15. On 10‑8‑1983, Muhammad Azad appellant led to the recovery of gun Exh.P.9 from his house which was taken into possession vide memo. Exh.P.J. attested by Muhammad Sabir P.W.10, Muhammad Rashid (not produced) and Javaid Nisar, S.H.O., P.W.15. On 13‑8‑1983, Muhammad Zubair, appellant led to the recovery of gun Exh.P.8 from his house which was taken into possession vide memo. Exh.P.F. attested by Muhammad Yousaf P.W.9 and Mahboob Hussain (not produced). On 16‑8‑1983 'Muhammad Ayyaz, acquitted accused .got recovered revolver Exh.P.7 from .his house which was taken into possession vide memo. Exh.P.G. attested by Mukhtar Ali P.W.8 and Muhammad Anwar (nut produced). The memoranda were prepared by Javaid Nisar, S.H.O., P.W.15. Forensic Science Laboratory Report Exh.P.T. shows that all the four empties were fired from the gun recovered from Muhammad Azad.

7. To prove its case, prosecution produced 16 witnesses. Nazir Hussain P.W.12, PunnL Khan P.W.13 and Zulfiqar Hussain P.W.14 gave given the ocular account of, the occurrence. They claim to have seer, the appellants firing shots from their guns hitting the deceased on Punnu Khan P.W. and resulting in the death of Changaiz Iqbal arid injuries tc Punn:i Khan P.W.13. Nazir Hussain P.W. also supported the alleged motive. liukht:r .Nli f.S~.8. Munammad Yousaf P.W.9, Muhammad Sabir P.W.10 and Muhammad Akram P.W. 11 have supported the recoveries of crime empties from the spot and the weapons of offence from the appellants and Muhamcnad :Ayyaz acquitted accused. Dr. Ghayyur Aiam P.W.4 has proved the medico‑legal report of Punnu Khan and post‑mortem examination reucrt of the deceased. Dr. Mur.awar Ahmad, Radiologist, P.W.16 had medically examined the cow of Punnu Khan P.W.13. He found that the cow had fire‑arm wounds. Javaid Nisar, S.H.0., P.W.15, had investigated the case, effected recoveries and challaned the accused. The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr.P.C., the appellants denied the incriminating circumstances. Muhammad Azad disclosed a different version of the occurrence. In reply to Q.No. 8, 'why this case made against you'?, he stated:‑ "The deceased was our party man. Punnu and the other P.Ws. were irimical to h:rr. I learnt that Punru P.W. fired at him. The relatives of the deceased chased Punnu Khan P.W. and fired at him near the house of Muhammad Anwar in Dhoke Niamat Ullah." In defence, two witnesses namely Muhammad Akram D.W.1 and Muhammad Daud D.W.2 were produced. Muhammad Akram D.W.1 stated that Punnu Khan was injured in Dhoke Niamat Ullah Khan.

9. The learned trial Court found that the eye‑witnesses were related and inimical, so it acquitted Muhammad Ayyaz for want of corroboration of the eye‑witnesses and seeking corroboration from the recoveries of guns Exhs.P.9 and P.8 from Muhammad Azad and Muhammad Zubair appellants, convicted and sentenced them as stated above.

10. Learned counsel for the appellants contended that the prosecution has failed to prove its ‑case beyond reasonable doubt; that the F.I.R. was lodged after preliminary investigation; that the eye‑witnesses are related inter se and are also inimical to the appellants; that the recovery of crime empties and the guns has not been proved by any reliable evidence; that Mukhtar Ali P.W.8, Muhammad Yousaf P.W.9 and Muhammad Sabir P.W.10 are also related and inimical witnesses and that the guns and crime empties were deposited in the Forensic Science Laboratory on one and the same date. Learned counsel for the State has supported the judgment of the trial Court on the ground that the statements made by the eye‑witnesses find corroboration from the unimpeached circumstances of the recovery of guns from the appellants and motive as well.

11. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence produced by the prosecution, the statements of the appellants under section 342, Cr.P.C., defence evidence and the circumstances appearing in the case, carefully. We feel persuaded to agree with the learned counsel for the appellants. We find that Nazir Hussain complainant P.W.12 has admitted in cross‑examination that the F. I. R. was recorded after preliminary investigation. The three eye‑witnesses are closely related to the deceased and were also inimically deposed towards the appellants. Their evidence has not been acted upon to the extent of Muhammad Ayyaz whom they had attributed active participation in the crime. Or our independent assessment of the evidence of the eye‑witnesses, we are also of the view that no implicit reliance can be placed on their statements without corroboration qua the appellants. The question for determination, therefore, is as to whether there is I any satisfactory corroboration of the statements of the eye‑witnesses qua, the appellants. There can be no two opinions that motive is a double‑edged weapon. It cuts both ways, which way it actually cuts that depends upon the facts of each case. In the circumstances o the present case, we think that the benefit of the maxim should not be given to the prosecution because the alleged motive could also be a reason for the false implication of the appellants or anyone of them.

12. This brings us to the incriminating recoveries of four crime empties from the spot and guns from the appellants. We find that the recovery witnesses are closely related to the deceased. They were not the residents of the place wherefrom the recoveries were effected. There was criminal as well as civil litigation between the close relatives of Muhammad Akram P.W.11 and the appellants. The prosecution case is that the shots were also fired by Muhammad Zubair and Muhammad Ayyaz co‑accused. Strangely enough all the four empties recovered from the spot matched with the gun recovered from Muhammad Azad appellant. Furthermore, Forensic Science Laboratory Report shows that the crime empties and the guns were received in the Office together on 25‑8‑1983. Muhammad Akram F.C. P.W.3 has not given the date of deposit of the crime empties with Forensic Science. Laboratory. There is nothing in evidence to show that the crime empties were delivered in the Fire‑arm Expert's Office before the recovery of gun from Muhammad Azad appellant. Javaid Nisar, S. H. O., P.W.15 does not seem to be confidence inspiring witness, as observed earlier he recorded the F.I.R. after preliminary investigation. He being the Investigating Officer, was naturally interested in the conviction of the appellants. So, there is no satisfactory evidence or circumstance to corroborate the statements of the eye‑witnesses qua the appellants and their case is at par with that of Muhammad Ayyaz, acquitted accused. As a consequence of the above discussion, the appeal is accepted and while giving them benefit of doubt, Muhammad Azad and Muhammad Zubair appellants are acquitted of the charges. They shall be released forthwith, if not required to be detained in any other case. DEATH SENTENCE IS NOT CONFIRMED. M.Y.H./M‑662/L Appeal allowed