1988 PLP 237 (MLD)

KHIZAR HAYAT, J.--Anara son of Yara, Jat by caste, resident of village Mangat, District Gujrat, the appellant herein, was tried on murder charge alongwith Nura, Khi7ar Hayat and Muhammad Aslam (since acquitted) by learned Sessions Judge, Gujrat, who convicted the appellant only under section 302, P.P.C. and sentenced him to death and a fine of Rs.10,000 or in default to undergo two years' R.I. It was further directed that half of fine, if recovered, shall be paid to the heirs of the deceased. Feeling aggrieved thereby, the appellant filed this appeal (Criminal Appeal No.694 of 1984) and the trial Court's proceedings submitted under section 374, Cr.P.C. (Murder Reference No. 48 of 1985) for confirming the death sentence of the appellant are also before us. Ghulam Haider, complainant, has filed a private revision against the acquittal of aforesaid accused and prayed for directing their retrial and enhancing amount of compensation to be paid by the appellant. We propose to dispose of these matters by this single judgment.

2. The occurrence took place on the night between 31st July and 1st August, 1982 in the Behk of the deceased, within the revenue limits of village Mangat, at a distance of about 8 miles from Police Station Kuthiala Sheikhan District Gujrat, Ghulam Haider, complainant (P.W.8) while going to the police station for making report met Muhammad Hussain A.S.I. (P.W.10) at 4-30 a.m. at King Road of Kuthiala Sheikhan and made statement Exh.P.H. before him. The A.S.I. after recording this statement, sent it to police station where formal F.I.R. Exh.P.H./1 was drawn by Muharrir Head Constable Muhammad Karim (P.W.11).

3. The prosecution case, as disclosed at the trial by Ghulam Haider, complainant (P.W.8) was that on the fateful night Riaz (deceased) his nephew was asleep in his `Behk' while he alongwith his son Khalid Pervez (P.W.9) was irrigating his land situated near the `Behk' of the deceased. At mid-night Khalid Pervez P.W. saw four persons going towards the `Behk' and informed him, therefore, both went towards the Behk to find as to who they were? From a distance of 10/12 karams they identified them in the moonlight to be Anara (appellant), Aslam, Nura and Khizar Hayat accused (since acquitted).. The appellant was armed with a .12 bore gun, Aslam with pistol and the rest with Sotas. The complainant asked Anara (appellant) as to why he had come to their Behk, whereupon the appellant immediately putting barrel of his gun on the chest of Riaz (deceased) fired. They raised hue and cry. Khizar Hayat and Nura accused (since acquitted) raised Lalkara that they (witnesses) be also attacked, whereupon Muhammad Aslam accused (since acquitted) and Anara (appellant) fired at them but luckily they were not hit. The accused persons then went away towards their village. Baqri (P.W.6) who was present in his own Behk, at a distance of 1-1/2 Killas hearing the cries came towards the spot and in the way saw the aforementioned accused carrying arms, returning from the Behk of Riaz (deceased) and enquired from them as to wherefrom they were coming? They replied that since he was going there so he would see it himself. Riaz died on the spot. The complainant leaving the dead body in the care of witnesses, went to his village and informed Nazir, father of the deceased, about the occurrence and at his advise he left for making report to the police. In the way he met A.S.I. Muhammad Hussain (P.W.10) on King Road and made report Exh.P.H. The motive for the offence was stated to be that about 10/12 days prior to the occurrence the accused persons had stolen clothes, wrist watch and some other articles from the Dera of the complainant who had asked them to either return the articles or give some nian (proof of innocence) but they had been delaying the matter. A day before the occurrence Anara (appellant) and Muhammad Aslam accused (since acquitted) met the complainant and his brother Nazir (father of the deceased) at a local bus-stand and they again demanded from them the return of their stolen articles who refused to return the same, whereupon both Nazir and Ghulam Haider gave them shoe-beating. Shan Muhammad (P.W.5) separated the parties. On account of this grievance the accused had allegedly committed the murder of Riaz (deceased).

4. A.S.I. Muhammad Hussain (P.W.10) after sending complainant's statement Exh.P.H. to the police station for formal registration of the case, proceeded to the spot. Reaching there he prepared injury-statement and inquest report of the deceased and sent the dead body for post-mortem examination. He inspected the spot and collected blood-stained earth from there. He also picked up an empty (P.5) and secured it under memo. Exh. P.B. making it into sealed parcel. He arrested the accused persons on 10-8-1982 and on 15-8-1982 Anara appellant while in custody led to the recovery of .12 bore gun (P.6) from his house vide memo. Exh.P.E. Both these memos were attested by Shan Muhammad (P.W.5) and the Investigating Officer (P.W.10).

5. Dr. Nazir Ahmad (P.W.7) Medical Officer Civil Hospital Phalia, conducted post-mortem examination on the dead body of the deceased on 1-8?1982 at 10 a.m. and found one fire-arm inlet wound 2-1 /2 c.m. x 2 c.m. x going deep into chest over the right nipple. Skin surrounding the wound was blackened. Edges of the wounds were inverted and irregular. On dissection, the right lung and central portion of the liver were found ruptured through and through. Right kidney was damaged and perforated. Three pieces of wads were recovered from ? right side of the chest besides six large size pellets. According to doctor, the injury was ante-mortem caused with firearm, which resulted in immediate death of the deceased. Duration between death and post-mortem examination was given as 6 to 12 hours.

6. At the trial the prosecution examined eleven witnesses in support of its case. Shan Muhammad (P.W.5) narrated about the motive while Ghulam Haider (P.W.8) and Khalid Pervez (P.W.9) deposed about the occurrence besides the motive. Baqri (P.W.6) is Wajtaker witness who claimed to have seen the accused persons when they were returning from the spot with their weapons. Dr. Nazir Ahmad (P.W.7) proved that the deceased died of fire-arm injury Shan. Muhammad (P.W.5) and Muhammad Hussain, A.S.I. (P.W.10) have deposed, about the recovery of crime empty (P.5) from the spot and gun (P.6) from the appellant. Firearm Expert's report Exh.P.N. shows that empty (P.5) was fired from gun (P.6)

7. When examined under section 342, Cr.P.C. the accused persons denied the allegation and explained that they were falsely implicated. They did not produce any evidence in defence. However, they produced copy of Warabandi Exh. DD in order to show that. the turn of water of Ghulam Haider complainant had ended much before mid-night, the alleged time of occurrence.

8. Learned trial Court on consideration of the material on record disbelieved the recovery of gun from the appellant but despite believing the ocular testimony acquitted Muhammad Aslam, Khizar Hayat and Nura accused observing that as no injury had been attributed to them, therefore, their participation was not established beyond reasonable doubt, convicted and sentenced Anara, appellant, on the charge of murder, as stated above.

9. Learned counsel appearing on behalf of the appellant argued that it was unwitnessed occurrence. The presence of eye-witnesses on the spot at the time of occurrence appears doubtful because there was no occasion for them to be present there as their turn of water ended much before the relevant time. He further argued that even if it is admitted that they were present, then identification of the murderer (whosoever he was) was not possible in the light of moon of 9th day of the lunar month from a distance of 10/12 Karams as claimed by them. Learned counsel appearing on behalf of the State assisted by learned counsel for the complainant has supported the conviction. According to him, the turn of water of Ghulam Haider, complainant (P.W.8) lasted upto.9-43 p.m. on the night of occurrence. It did not mean that the witnesses left for their place immediately after their turn of water ended. They must have remained there for at least half an hour more after their turn of water terminated for managing the water which already had entered the field. He further submitted that `Behk' (land where cattle are tethered during the night temporarily) was of the complainant and his brothers so the witnesses would have returned there after finishing their turn of water and had seen the occurrence. Next submitted that the villagers have strong eye-sight as compared to those living in cities, therefore, it was possible for the eye-witnesses to have identified the appellant from such a distance who -was already well-known to them being their co-villager. Lastly, he argued that ?according to the eye-witnesses, Anara, appellant, fired the shot by placing barrel? of his gun on the chest of the deceased. This. version stands corroborated by the medical witness as gun wads were recovered from the wound and blackening around the wound was also noted by the doctor. The distance from where the? appellant fired at the deceased could not be told by the witnesses who are laymen? unless they had actually seen the occurrence. He, therefore, asserted that' prosecution has brought home the charge to the appellant successfully and the sentence of death awarded is appropriate in the circumstances of the case.

10. We have carefully considered the contentions of the learned counsel for the parties in the light of the record perused with their assistance.

11. Death of the deceased by gun fire committed at mid-night in the Behk of the deceased is not disputed. The prosecution mainly relied on ocular testimony furnished by Ghulam Haider and Khalid Pervez P.Ws., therefore, the question-for? determination is whether the eye-witnesses were present at the time of occurrence and if so were they able to correctly identify the assailants at mid? night in the light of the moon of 9th day of lunar month? Admittedly Ghulam Haider (P.W.8) and Khalid Pervez (P.W.9) are father and son. Riaz (deceased) is the real nephew of former and first cousin of the latter. They stated that at the relevant time they were irrigating their land situated about a Killa away from the place of occurrence with canal water when they saw Anara appellant (alongwith acquitted accused) approaching the deceased and placing gun at the chest fired at him. They stated that their turn of water falls on "Saturdays" starting at 7 a.m. and ending at 10 p.m. They did not produce certified copy of the sanctioned Warabandi. The accused, however, produced a certified copy of the same which is Ex.DD. The correctness of this document is not disputed, rather learned counsel for the complainant relying on it referred to its entries existing at S. No-.36 which show that "Ghulam Rasul etc. sons of Quttba" (complainant is also son of Quttba) have 14 hours 41 minutes time to use the canal water on every Saturday commencing at 7-2 a.m. (morning) and terminating at 9-43 p.m. same day. 31st July, 1982, according to High Court Diary, for the year 1982 was, of course Saturday. Sunset time on that day was 7-2 p.m. and sunrise time was 5-16 a.m. It means that complainant's turn of water ended some 3 hours after sunset and about 7 hours before sunrise time. So, mid-night was around 12-30 or 1 a.m. Obviously, therefore, both the witnesses cannot be expected to be irrigating their land at mid-night (12-1 a.m.) the alleged time of occurrence, as their turn of water had terminated 3 hours before. Assuming that the witnesses were present, then question would arise whether they were able to correctly identify the assailant in the moonlight?. According to the High Court Diary, 31st July, 1982 was the ninth day of lunar month and the moon-rise time on that day was 3-55 n.m. (noon) and moonset time was 1-23 a.m. (mid-night). So, at mid-night there was either no moon or it was about to set shedding very dim light not sufficient for identification from distance of 10/12 Karams. It is true that the appellant was known to the witnesses being their co-villager but the witnesses on their own showing were 10/12 Karams away when he ran away after firing at the deceased. According to the Medical Jurisprudence and Toxicology-by Modi, 1963 Edition, page 60, the best known person cannot be recognized in the clearest moonlight beyond a distance of 17 yards, as opined by Tidy and as per opinion of Colonel Barry, I.M.S. from a distance of more than 12 yards the stature or outline of the feature alone is available as a means of identification which means that the identification of features even at a shorter distance is practically impossible by moonlight. We are, therefore, constrained to hold that the witnesses even if it is assumed for argument sake that they were present they could not identify the assailants from a distance of 10/12 Karams (about 20/25 yards). In this view of the matter the appellant's conviction based on testimony of P.Ws. 8 and 9 who claim to have identified him in the moonlight cannot be maintained. We may further observe that the appellant did not have direct motive against the deceased. It was rather the father of the deceased who alongwith the complainant had given shoe-beating to the appellant, therefore, had Ghulam Haider, complainant been present at the relevant time and shouted at the appellant as stated by him then he would have been his first target.

12. For what has been stated above, the prosecution has failed to connect the appellant through reliable evidence with murder of the deceased. Consequently, we accept the appeal, set aside his conviction and sentence and acquit him. The death sentence is NOT confirmed. The revision filed by the complainant fails automatically. Release order of the appellant was issued by our short order dated 13-1-1988. S.A./A-271/L?? Appeal accepted.