1985 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑. This Criminal Appeal No.33/82 and the connected Murder Reference No.10/82 arise from the judgment of learned Additional Sessions Judge, Sahiwal, whereby he on 13‑12‑1981 convicted Muhammad Shafi appellant aged 18 years under section 302, P.P.C. for causing the death of Muhammad Yar aged 25 years and sentenced him to death and a fine of Rs.2,000, in default thereof 2 years' R.I. with the direction that the fine when recovered half of it be paid to the heirs of the deceased.

2. The occurrence took place on 28‑10‑1980 at about 12 noon in a field near Tube‑well of Riaz Hussain Shah in village Lal Shah of P.S. Qaboola. The distance between the place of occurrence and the police station is 7 miles. F. I. R. is the statement Exh. P. B. of Ahmad Yar p.W.5, the brother of the deceased recorded by Abdul Haq, A.S.I, P.W. 8 near Khadar Canal in the area of village Tibbi Lal Baig which was at a distance of 4 miles from spot. Formal F. I. R. Exh. P. B./1 was drawn up by Muhammad Chiragh, Muharrir Head Constable, P.W.2 at 2.00 P.m. on the same day.

3. The motive as alleged by the prosecution was that Muhammad Shafi appellant suspected that Muhammad Yar deceased was having illicit relations with his aunt Mst. Mumtaz Bibi.

4. As far the main occurrence, it has been stated that on 28‑8‑1980 at about noon time, Muhammad Yar deceased alongwith his brother Ahmad Yar P.W.5 were sitting in a field near Tube‑well of Syed Riaz Hussain Shah. Shera P.W.6 and Mureed (not produced) came there and sat with them. Muhammad Shafi appellant emerged from the maize crop field all of a sudden. He was armed with a gun. He raised Lalkara and fired shot at Muhammad Yar deceased causing his immediate death on the spot. The appellant then tried to run away but was apprehended by Ahmad Yar P.W.5, Shera P.W.6, Mureed Hussain (not produced) and by Riaz Hussain Shah, who by that time had arrived at the spot. Syed Riaz Hussain Shah took gun Exh. P.3 and live cartridge Exh. P.4 from the hands of the appellant. Leaving behind the dead body and the appellant in the custody of the above said witnesses, Ahmad Yar left for police station to report the matter. On the way, near Khadar Canal, he met Abdul Haq, A.S.I. and made statement Exh. P.B. to him. After recording statement of Ahmad Yar Abdul Haq A.S.I. came to the spot. Muhammad Shafi appellant who was in the custody of Syed Riaz Hussain Shah was produced before him and he arrested him. Syed Riaz Hussain Shah also produced gun Exh. P.3 and live cartridge Exh. P.4 before him and he took the same in possession vide memo. Exh. P.D. The A.S.I. secured crime empty Exh. P.5 from the spot vide memo. Exh. P.F. attested by Syed Riaz Hussain Shah (not produced) and Ahmad Yar complainant. The crime empty and the gun were serfs to the Forensic Science Laboratory for examination. The report of the Laboratory is Exh. P.L. wherein it has been stated: "The 12 bore S.B.B.L, shot‑gun country made is not in its normal working order and no test empty could be prepared for comparison with the crime empty. The exhibits are thus returned un‑examined."

5. Dr. Fazal Miran Chaudhary, P.W.7 conducted post‑mortem examination on the dead body of Muhammad Yar deceased and found following injuries:‑ "(1‑A)? A fire‑arm wound of entry 5 c.m. x 3 c.m. x going deep with lacerated and irregular margin on the back and middle of right arm. Margins of the wound was scortched and tattooed. (1‑B) A fire‑arm wound of exit 6 c.m. x 5 c.m. x going deep (communicating wound of entry No.1‑A) on the outer and upper of right arm 3 c.m. below the right axilla. (2)??????? Six fire‑arm wounds of entry 1 c.m. x 1 c.m. x going deep each on right side of chest in outer and upper on an area 6 c.m. x 5 c.m., 7 c.m. above and outer to right nipple and 3 c.m. inner to the right axila." In his opinion, the death was due to shock and haemorrhage caused by injury No.2 which was sufficient to cause death in the ordinary course of nature. The probable time between death and the injury was immediate and between death and the post‑mortem examination was within 12 to 24 hours. In cross‑examination, the doctor stated that injury No.2 could be caused by a fire‑arm from the front of the deceased, as well as from the side of the deceased but it is definitely not fired from the back of the deceased. Both fires are possibly independent fires and they possibly cannot be fired from the same distance.

6. To prove its case presecution examined 8 witnesses, out of whom Ahmad Yar P.W.5 and Shera P.W.6 have given the ocular account of the occurrence. Ahmad Yar is also a witness of recovery of crime empty from the spot and of the recovery of gun Exh.? P.3 which was produced by Syed Riaz Hussain Shah before the Investigating Officer. The rest of the evidence is more or less of formal nature.

7. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He raised the plea of false implication. In defence he did not produce any evidence.

8. Learned counsel for the appellant submitted that the 2 eye?witnesses namely Ahmad Yar and Shera were in fact not present on the spot and they have falsely deposed against the appellant. On the other hand, the learned counsel for the State supported the judgment of the trial Court.

9. We have considered the arguments advanced by the learned counsel for the parties with care. From the statement of facts and the details of evidence given in paras. Nos. 4 and 6, it is very much obvious that the fate of the case depends upon the question of the credibility of the two eye‑witnesses. The two witnesses claim to have seen the appellant causing the death of the deceased by firing a shot at him from gun Exh. P.3. The medical evidence and the Forensic Science Laboratory report Exh. P.L., however, falsify the statements of the eye‑witnesses. From the number of the injuries, locations thereof and the statement of Dr. Fazal Miran, P.W.7, it is crystal clear that two shots were fired at the deceased whereas the eye‑witnesses have said that only one shot was fired on the deceased causing his death. Further A according to the eye‑witnesses, the appellant was apprehended on the spot when the gun Exh. P.3 was still in his hands. The gun was taken away from him by Syed Riaz Hussain Shah (not produced) and given to Abdul Haq A.S.I., P.W.8 when he arrived on the place of occurrence. The gun was made into sealed parcel and was delivered in the office of the Director Forensic Science Laboratory intact. Strangely enough, the Examiner found the same not in its normal working order. This report leads to the irresistable conclusion that gun Exh. P.3 was not used by the appellant for the murder of the deceased. There are, thus, weighty reasons to doubt that Ahmad Yar and Shera in fact witnessed the occurrence, and as such, there is no option but to exclude the statement of the eye‑witnesses from consideration.

10. There being no other incriminating evidence on record to earn the conviction, we while giving him the benefit of doubt, acquit the appellant of the charge. He shall be released forthwith, if not required in any other case. The sentence of death is not confirmed. M.Y.H.??????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.