1988 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑ This Criminal Appeal No. 660 of 1985, Murder Reference No. 233 of 1985 and Criminal Revision No. 58 of 1986 filed by Raza Muhammad complainant, against acquittal, arise from the judgment of learned Sessions Judge, Mianwali, whereby he on 19‑10‑1985, while acquitting Barkat Ullah accused, convicted Saif Ullah (21/22) appellant for the murder of Hayat Ullah (34/35) and sentenced him to death and a fine of Rs.2,000, in default thereof one year's R.I. It was directed that the appellant will pay Rs.10,000 as compensation to the legal heirs of the deceased. We propose to dispose of three matters through single judgment.

2. The occurrence took place on 10‑9‑1983 at 9‑00 a.m. in the fields of village Daud Khel at a distance of 3 miles from Police Station Daud Khel. The F.I.R. Exh.P.H. was lodged by Raza Muhammad P.W.7, brother of the deceased at Police Station Daud Khel on the same day at 10‑30 a.m. and was recorded by Ejaz Hussain S.I., P.W.10.

3. Saif Ullah appellant and Barkat Ullah, acquitted accused, are stated to be close friends. The motive alleged by the prosecution was that Muhammad Ashraf, father of Saif Ullah appellant was abducted some years before the present occurrence and a case under section 364, P.P.C. was registered against Raza Muhammad P.W.7 and his 5 close relatives. The case was found false during investigation. On this a complaint under section 364, P.P.C. for the abduction of Muhammad Ashraf in order to murder him, was filed against Raza Muhammad and others. The trial Court convicted the complainant and others but they were acquitted in appeal, two years before the occurrence, hence this occurrence.

4. As far the main occurrence it has been stated that on the day of occurrence Ghulam Mustafa son of Raza Muhammad complainant was to 'be married in the evening and many guests including Hayat Ullah deceased, who was a foot constable posted at Gujranwala, had come to the village for participation in the marriage. At 8‑30 a.m. on the day of occurrence, Raza Muhammad P.W. 7 alongwith Hayat Ullah deceased, Ghulam Murtaza P.W. had gone to the fields to urinate. Hayat Ullah deceased was free first of all, so, he proceeded back to the village. Raza Muhammad P.W.7 and Ghulam Murtaza P.W.8 followed him at a distance of 25 Karams. When Hayat Uliah reached near mattled road, Saif Ullah appellant and Barkat Ullah acquitted accused both armed with .12 bore pistols appeared there. Saif Ullah appellant raised Lalkara that he had come to take revenge of his father. Barkat Ullah co‑accused put his pistol in his right pocket and caught hold of the deceased in his Japha. Simultaneously Saif Ullah appellant fired shot at Hayat Ullah hitting on his back. Barkat Ullah accused released Hayat Ullah from his grip. Hayat Ullah fell down on the ground. Barkat Ullah co‑accused then took out pistol from pocket and fired on the right side of the back of chest of the deceased. Saif Ullah appellant then fired another shot on the legs of the deceased. By that time Ibrahim P.W.9 had also arrived on the spot and seen the occurrence. The appellant and Barkat Ullah co‑accused ran away taking the weapons with them. Hayat Ullah was removed to Civil Hospital Kala Bagh. On reaching the hospital, he expired before he could be examined by the doctor.

5. On 10‑9‑1983 Dr. Muhammad Mushtaq Ahmad P.W. 1 conducted post‑mortem examination on the dead body of Hayat Ullah and found following injuries: ‑ "(1) An entrance wound of fire‑arm 5 x;5 c.m. on the back of neck in the mid line, dark blood was running out of the wound, no burning or blackening was present around the wound. (2) An entrance wound of fire‑arm ? x ? c.m. on the back of lower zone of right chest, 20 c.m. away from the mid line. Slight burning was present around the wound. (3) An entrance wound of fire‑arm ? c.m. x ? c.m. on the outer side of left ankle joint. No burning or blackening was present." On internal examination, spinal cord, blood vessels on the right side of neck and the right chest wall, were found injured. The stomach was full of food. In his opinion, the death occurred due to shock and haemorrhage as a result of injury No. 1 which was sufficient to cause death in the ordinary course of nature. The injuries were caused by fire‑arm. The time between death and the injuries was about 1‑2 hours and between death and post‑mortem was about 2‑4 hours.

6. On 10‑9‑1983 Ejaz Hussain S.I., P.W.10 lifted three crime empties Exh.P.6/1‑3 and took the same into possession vide memo. Exh.P.F. attested by Wazir Khan, F.C. P.W.6 and Muhammad Bashir, Head Constable (not produced). Saif Ullah appellant and Barkat Ullah co‑accused were arrested on 25‑9‑1983 by Ejaz Hussain S.I. P.W.10 from bus stand. On personal search of Saif Ullah appellant, pistol Exs.P.4 and 3 live cartridges Exh.P.5/1‑3 were recovered which were taken into possession vide memo. Exh.P.D. attested by Abdul Aziz F.C. P.W.5 and Muhammad Iqbal, F.C. (not produced). The recovery Memo was prepared by Ejaz Hussain S.I., P.W.10. Barkat Ullah co‑accused was also having a pistol Exh.P.7 and two live cartridges Exh.P.8/1‑2 at the time of his arrest which were taken into possession vide memo. Exh.P.G., attested by Wazir Khan F.C. P.W.6 and Muhammad Iqbal (not produced). The Forensic Science Laboratory Report Exh.P.M. reveals that out of the three crime empties recovered from the spot, two empties were fired from pistol Exh.P.4 of Saif Ullah and one empty from pistol Exh.P.7 of Barkat Ullahr It may be noted that the recoveries of guns from the appellant and Barkat Ullah co‑accused have been disbelieved for various reasons in para. 13 of the judgment.

7. To prove its case, prosecution produced 10 witnesses. Raza Muhammad P.W.7, Ghulam Murtaza P.W.8 and Ibrahim P.W.9 have given the ocular account of the occurrence. They claim to have seen Saif Ullah appellant and Barkat Ullah, acquitted accused firing shots hitting on different parts of the body of the deceased. They also stated that before firing shot at the deceased, Barkat Ullah had put his pistol in the pocket and had taken Hayat Ullah in his Japha when Saif Ullah fired shot hitting neck of the deceased. Saif Ullah then asked his co‑accused Barkat Ullah to release the deceased whereupon Barkat Ullah released the deceased from his grips and when Hayat Ullah fell on the ground Barkat Ullah took out pistol from his pocket and, fired shot at the deceased. Raza‑Muhammad P. W.7 has also deposed about the motive of the occurrence. He stated that some years before the occurrence Muhammad Ashraf father of Saif Ullah appellant was abducted. He and 5 other members of his family were tried for the abduction of the father of the appellant. They were convicted by the trial Court but were acquitted by the appellate Court. Abdul Aziz P.W.5, stated that pistol Exh.P.4 and 3 live cartridges were recovered from Saif Ullah appellant at the time of his arrest. Wazir Khan P.W.6 is a foot constable. He stated that gun Exh.P.7 and two live cartridges were recovered from the possession of Barkat Ullah co‑accused, at the time of his arrest. Ejaz Hussain, S.I. P.W.10 had investigated the case and effected recoveries from the appellant and the acquitted accused. Dr. Muhammad Mushtaq P.W.1 has proved the post‑mortem examination report. The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He raised the plea of false implication on account of enmity. He did not produce any evidence in defence. Barkat Ullah acquitted accused, however, produced Sardar Ghulam Hussain Khan D.W.1 in his defence, who deposed about the enmity of Barkat Ullah with the complainant party and relationship of the P.Ws.

9. The trial Court did not believe the participation of Barkat Ullah appellant in the crime, so giving him the benefit of doubt, he was acquitted. The trial Court did not believe the recovery of guns from the appellant as well as from Barkat Ullah co‑accused and while believing the alleged motive, ocular evidence furnished by the 3 eye‑witnesses has convicted and sentenced Saif Ullah appellant as stated above.

10. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond doubt against the appellant, in that, the appellant had no motive to kill Hayat Ullah deceased; that the eye‑witnesses are closely related to the deceased and inimical towards .the appellant; that the statements of the eye‑witnesses have been disbelieved to the extent of Barkat Ullah co‑accused and that the recovery of gun having also been disbelieved by the trial Court, there is no corroboration of the statements of the eye‑witnesses qua, the appellant conversely, the learned counsel for the State assisted by the learned counsel for the complainant /petitioner supported the judgment of the trial Court. He maintained that since Muhammad Ashraf, father of Saif Ullah appellant was abducted by Raza Muhammad complainant and other members of his family, therefore, it cannot be said that the appellant had no motive to kill the deceased who was brother of the complainant. He argued that the statements of the eye‑witnesses do not suffer from material contradictions and can be acted upon without corroboration and that the recovery of gun which matched with the crime empties recovered from the place of occurrence, very much corroborates the statements of the eye‑witnesses, qua the appellant.

11. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statements made by the appellant and his co‑accused under section 342, Cr.P.C., statement of Sardar Ghulam Hussain D.W. 1 and the circumstances appearing in the case, very carefully. We feel persuaded to agree with the learned counsel for the appellant. We find that the prosecution has not been able to prove any motive on the part of the appellant to kill Hayat Ullah. Muhammad Ashraf, father of Saif Ullah appellant was not abducted by the deceased. Although there was a criminal litigation between the parties yet Hayat Ullah was neither accused nor prosecution witness in any case between the parties. Raza Muhammad P.W.7 has categorically stated that Hayat Ullah deceased was not an accused in the case under section 364, P.P.C. for the abduction of Muhammad Ashraf, father of Saif Ullah appellant and that in all criminal cases stated by him in para. 4 of his statement Hayat Ullah deceased was neither an accused nor a witness. Had the incident of abduction of Muhammad Ashraf been a motive for the crime, then the first target of the appellant would have been Raza Muhammad complainant oho was the abductor of his father and not Hayat Ullah who had nothing to do with the abduction.

12. Adverting to the ocular testimony, we find that the 3 eye‑witnesses are closely related to the deceased and inimical towards the appellant. Raza Muhammad P.W.7 is brother of the deceased. Ghulam Murtaza P.W.8 is son of Raza Muhammad complainant. Ibrahim P.W.9 is brother of the deceased. There was criminal litigation between the parties. Raza Muhammad P.W.7 has admitted that there were number of criminal cases between the parties. He stated that Ghulam Hussain, first cousin of Saif Ullah appellant had fired at Ibrahim P.W. and his sister Mst. Ambreen for which a case under section 307/34, P.P.C. was registered against the brothers of Saif Ullah appellant. He admitted that Muhammad Aslam, brother of Saif Ullah appellant was challaned for the offence of outraging the modesty of his daughter Mst. Bakhat Bibi. He also admitted that two years before the occurrence, his mother Mst. Fateh Khatoon had lodged a report at the police station against the brothers of Saif Ullah for the theft of her cow. The witness further stated that one year before the occurrence, his father had filed a civil suit against Saif Ullah appellant and his brother. It is thus very much obvious that Raza Muhammad P.W.7, Murtaza P.W.8 and Ibrahim P.W.9 are interested witnesses. They were not injured during the occurrence and as such, there is no circumstantial guarantee or judicial certainty of their presence on the spot. There are rather reasons to doubt that they were present on the spot and had in fact seen the occurrence, inasmuch as, had Raza Muhammad complainant who was abductor of the father of the appellant been present on the spot, he would not have been spared alive. Similar is the case of Ibrahim. He was involved in criminal litigation and as such would not have been left unhurt. Strangely enough although Saif Ullah appellant was armed with pistol and his co‑accused Barkat Ullah was also carrying pistol with him, they instead of firing at Ibrahim and Raza Muhammad P.Ws., fired three shots at Hayat Ullah who was not one of the abductors of the father of Saif Ullah appellant. The 3 witnesses have also assigned absurd and ridiculous part to Barkat Ullah co‑accused that although he was armed with pistol yet he put it in the pocket and caught hold of the deceased in his Japha and exposed himself to the danger of being hit by the shot of Saif Ullah appellant. The statements of three eye‑witnesses have virtually been disbelieved to the extent of Barkat Ullah accused and for good reasons. It seems to us that the three eye‑witnesses are wholly unreliable witnesses. There is also no satisfactory evidence of the recovery of gun from the appellant. No person from the public was associated with the recoveries of guns although the recovery was effected on a bus stand. The recovery memo. Exh.P.D. has been attested by two foot constables namely Abdul Aziz P.W.5 and Muhammad Iqbal F.C. (not produced). Abdul Aziz P.W. has admitted that the gun was not sealed into a parcel in his presence. The evidence of recovery of crime empties from the spot also suffers from same infirmity. The recovery memo. was attested by two police officials namely Wazir Khan P.W.6 and Muhammad Bashir, Head Constable (not produced). It seems to us that since Hayat Wish deceased was a foot constable, therefore, the recoveries of crime empties and the guns have been fabricated and the memos were got attested by police officials. For all these reasons, we are of the view that the prosecution has hopelessly failed to bring home the charge of murder of Hayat Ullah to Saif Ullah appellant. The upshot of the above discussion is that while giving benefit of doubt to Saif Ullah appellant, he is acquitted of the charge. He shall be released forthwith, if not required to be detained in some other case. The connected revision automatically fails. Death sentence is not confirmed. M.Y.H./S‑196/L????????????????????????????????????????????????????????????????????????????????? Appeal allowed.