P L D1982 Lahore 551 (PLP)

MAZHARUL HAQ, I.‑Abdul Majeed (35) was tried for the murder of his father Muhammad Ishaq. On 18‑3‑1979, Additional Sessions Judge, Kasur convicted him under section 302, P. P. C. and sentenced him to death along with a fine of Rs. 3,000, in default of payment of fine to suffer two years' R. I. further. The appeal of the convict and the connected murder reference are before us.

2. Appellant's grandfather Roshan Din owned land in village Koth Rai Abu Bakar, out of which he gave 60 acres to his son Muhammad Ishaq (deceased) who in turn passed on 20 acres on lease to his son Abdul Majeed and also purchased bullocks for him. Later Muhammad Ishaq fell short of money which he needed. for the marriage of his two children. He, therefore, asked his son Abdul Majeed (accused) to pay him his share of the produce and also return Rs. 1,400, the price of the bullocks which had been purchased for him. This demand hurt him so much that according to the prosecution in the evening on 20‑1‑1975 Muhammad Ishaq was on his way to the house or his father, as he reached near the door of the house, his son Abdul Majeed appeared there with a gun and fired two shots on the face of his father who fell dead at the spot. The occurrence. was witnessed by Chiragh Din and the two sons of the deceased, namely Habib and Amin. After killing his father, Abdul Majeed fled away. P. W. Chiragh Din proceeded towards the Police Station ; on the way .he met with P. W. 10 Muhammad Nazir, S. I, and made statement Exh. P. B. to him at 2‑30 a.m., on the basis of which formal F.1. R. Exh. P. B./1 was registered at Police .Station, Sadar, Kasur, in the morning at 4‑30 a.m. The S. I. went to the spot, prepared necessary docu ments, sent the dead body for its post‑mortem examination. He took into possession two crime empties P. 4/ 1‑2, made them in a sealed parcel vide Memo. Exh. P. F. attested by P. W. 5 Habib Ullah, P. W. 6 Muhammad Amin and the Investigating Officer.

3. P. W. 12 Dr. Zafar Iqbal, Medical Officer, Civil Hospital, Kasur, held the autopsy on 21‑6‑1975 at 2‑45 p.m. over the dead body of Muhammad Ishaq and made the following observations :‑ "(1) A large gapping irregular wound with blackish margins 1‑3/4' x 2' on the upper lip mainly left of mid line, left angle of mouth and left lowerlip. The wound was leading upwards and backwards. Maxilla underneath was fractured and missing except a small piece on the right side with three teeth only. Wound was leading through the broken maxilla backwards and had entered the skull through base of skull near foramen, magnum. All fossae of the base of skull were fractured. Vault of skull was intact. Three pellets embedded in the bone near occiput were removed. Medulla oblongata, spinal cord . and foramen magnum were injured and brain was injured. (2) A wound of exit ' x back neck mid line upper part. This was exit for 'injury No 1." Cause of death, in the opinion of the doctor, was shock due to injury No. 1 which was fatal.

4. At the time of his arrest on 24‑1‑1975 Abdul Majeed produced his .12 bore gun (P. 5) before the Investigating Officer. It was taken into posses sion vide Memo. Exh. P. F. attested by P. W. 9 Muhammad Hayat and P. W: 11 Mansha Ali. Both empties and the gun were sent to the fire‑arm expert whose opinion Exh. P. N. revealed that the crime empties were fired from the appellant's gun P. 5.

5. At the trial Abdul Majeed denied guilt and said that his father had a large number of enemies so much so that at the time of his death he was an accused in a case relating to the murder of one Muhammad Hussain. He added that his grandfather P. W. Chiragh Din was inimical towards him because three acres of his land were in his possession. He denied the recovery of the gun and led no evidence in defence.

6. Dealing with the statements of the eye‑witnesses recorded under section 164, Cr. P. C. the trial Court observed that these statements were not transferred on to his file under section 265‑J of the Cr. P. C. These were, therefore, of no evidentiary value. As to the evidence of the eye‑witnesses at the trial it observed that the witnesses being closely related to the appellant have stage managed their presence at the spot so as to ultimately help the appellant at the trial and have thus resiled from their previous statements. After making this observation, strangely enough it gave a contradictory finding and further observed that P. W. 6 Muhammad Amin though did not support the prosecution case, yet in its opinion he was present at the place of occurrence. We have not been able to appreciate the manner in which the evidence in this case has been analysed by the trial Curt. Conviction in al case .can only be based on the proved evidence of the case, whether it is. direct or circumstantial. Imagination and suspicion are never proof of guilt and these can never be substituted for proof.

7. Besides the fact that the eye‑witnesses did not support the prosecu tion case; there are other circumstances in this case which adversely reflect upon the investigation i.e. according to the medical evidence the deceased suffered a single fire‑arm injury ; the second injury noted on him was the wound of exit. But in the F. I. R;. the appellant was said to have fired two shots that hit 'the deceased. We may add here that the F. I. R. in this case was not recorded at the Police Station ; instead it was made to the S. 1. while he was on Ghasht duty at 2‑30 a.m. at night. Even otherwise the evidence of the recovery of the gun was not free from doubt because the empties were finally sent to the Fire‑arm Expert on 27‑1‑1975 after ,she gun had been recovered.

8. For the foregoing reasons ‑we are not satisfied with the guilt of the appellant. Giving the benefit of doubt to him, we accept the appeal, set aside the conviction and sentence and acquit him. He is on bail and shall be discharged of his bail bonds. s. Q. Petition dismissed.