1984 P Cr (PLP)

2. The facts of the case as transpiring from evidence adduced at the trial are that Noor Hassan, Muhammad Inayat and Ghulam Nabi were holding on lease the lands of Nawab Mehr Shah situated in Chak No. 535/G. B., District Faisalabad. Ameer father of Mst. Sughran was engaged by the lessees as tenant for cultivation of land. He was alongwith his family members including Mst. Sughran deceased and another daughter Mst. Zainab was residing in a Dhari close to the lands. Muhammad Anwar appellant is said to have been employed by the lessees as servant and he was also residing in the same Dhari. On 21st March, 1971 Ameer father of the deceased left for his fields leaving behind the deceased and Mst. Zainab at the Dhari. The wife of Ameer was away to village Jalona. After some time Ameer accompanied by his son Nazeer Ahmad, Sultan and Anwar (P. W. 11) returned to the Dhari. As they reached close to a mosque which is, according'to the site plan is (Exh. P.-J./1), at a distance of thirty-one Karams from the Dhari, they heard the deceased raising alarm. They rushed to the Dhari, and saw that the appellant had a gun (P. 1) in his band which the deceased tried to snatch but the appellant fired at the deceased causing her an injury in the right -lower jaw. The deceased fell down ; the accused threw away the gun and ran away. He was chased vainly by Shirin Khan (P. W. 12) and Sardar who happened to be present nearby, Ameer father of the deceased left for Police Station Dichkot five miles distant from the place of occurrence. He met Malik Muhammad Shafi, Sub-Inspector Dichkot (P. W. 13) at bus- stand which is at a distance of one furlong from the Police Station Statement (Exh. P. A.) of Ameer was recorded by the Sub-Inspector on the basis of which formal First Information Report (Exh. P. A./I) was entered at Police Station by War Ali Head Constable (P. W. 2). Malik Muhammad Shafi accompanied Ameer to the site. The dead body was found lying at the door of a room in the Dhari. Blood-stained earth was collected from site by means of memo. Exh. P. B. The gun (P. 1) with a used cartridge (P. 2) in its right barrel which the accused had thrown away while fleeing away were taken into possession vide memo. Exh. P. C. and made into sealed parcel. Noor Hassan (P. W. 8) produced licence (P. 3) of the gun in the name of Inayat Ullah son of Ilam Din which was taken into possession vide memo. Exh. P. D. Dead body was sent to mortuary through Maqbool Ahmad constable (P. W. 4) for post-mortem examination, after inquest report and injury statements (P. F. and P. F./1) were drawn up by the Sub-Inspector.

3. Autopsy was held by Dr. Habibullah who noticed following injury on the deceased :- "A fire-arm wound of inlet 3" x 21" situated on the right side of lower jaw, going forward and opening on the left side of neck 2" x 1" situated 2" below the left ear. The right side of lower jaw and blood vessels over the left side of neck were injured. The margins of wound on the right side were scortched. A piece of wad and two metallic pellets were recovered from the wound." The doctor expressed the opinion that death was caused due to shock and haemorrhage entailing injury to big blood vessels of the neck. The injury was declared sufficient to cause death in the ordinary course of nature. The gun (P. 1) and the crime empty (P. 2) were sent to Forensic Science Laboratory for examination which were examined by Saeed Gul Khan fire-arm expert (P. W. 14) who reported (Exh. P. L.) that the crime empty (P. 2) was fired from left barrel of the gun. The appellant was arrested by Sardar Khan Sub-Inspector (P. W. 7) on 23rd March, 1971. Fourteeq witnesses in all were adduced on the side of the prosecution.

4. The appellant has in his statement under section 342, Cr. P. C. denied the entire allegations against him that he was employed by Noor Hassan etc. lessees as their servant ; that he was residing in the Dhari alongwith the family of the deceased ; that he had misbehaved with the deceased whereat he was scolded by the latter ; that he took out gun (h. 1) of Inayatullah from the box lying inside the Dhari and fired at the deceased. The appellant has contended that the deceased had committed suicide out of frustration. She had eloped away with Muhammad Iqbal a son of Kameer (D. W. 1) and was restored to her parents. The appellant also contended that be was involved falsely in the case as he was suspected of having abetted love intrigue between the deceased and her alleged paramour Muhammad lqbal. Two witnessed named Kameer and Siddique were examined in defence.

5. The fate of the case hinges on occular evidence in the case comprising statements of Ameer, Mst. Zainab, Anwar and Shiri Khan ;P. Ws. 9 to 12). It would, therefore, be a mere formality to encumber this judgment even with a conduced gist of statements of remaining witnesses in the case.

6. Ameer (P. W. 9) has stated that Anwar and Sultan had on the day of incident visited him for repayment of loan of Rs. 200 which he owed to Anwar (P. W. 11). He accompanied them to the house. He heard alarm raised by the deceased and saw her engaged in grappling with the accused who was armed with gun (P. 1). The accused fired at the deceased in the right cheek felling her on the ground and took to heels discarding the gun at the site. He was chased by Shirin Khan and Sardar but he managed to escape away. Mst. Zainab (P. W. 10) has stated that the accused had entered the room where the deceased was present. The latter snubbed the appellant and asked him to walk out of the room. This ensued exchange of abuse between the appellant and the deceased. The latter slapped the appellant. The appellant took out gun and aimed at the deceased. She tried to catch the gun and was fired at by the appellant. Anwar P. W. has confirmed the version of Ameer. Shirin Khan (P. W. 12) has said that he had alongwith Sardar (not examined at the trial) set out for purchase of a buffalo. They both happened to pass close to the Dhari of Ameer and heard report of a gun, The appellant was seen coming out of the Dhari and running away. He was chased for a distance of 4/5 miles but could not be secured.

7. Learned Sessions Judge has in a lengthy judgment running into 15 pages held that the eye-witnesses Amir and Mst. Zainab (P. Ws. 9 and 10) were disinterested. Their presence at the spot was not open to doubts, hence their evidence was capable of reliance. The argument that statement of Mst. Zainab (P. W. 10) whose name was not mentioned in the First Information Report lodged by Amir (P. W. 9) who claims to have witnessed the occurrence could not be relied on was also turned down. Similarly, the further contention that Shirin Khan and Anwar (P. Ws.) also could not be relied upon as they were chance witnesses was also rejected with the observation that they had explained their presence at the site and they had no motive to charge the appellant falsely. However, the argument that the first information report was a dubious document was upheld.

8. Having heard counsel for both sides at length we find it difficult to uphold the conclusions arrived at by learned Sessions Judge as well as the reasons therefor. Evidently, the First Information Report was recorded after preliminary inquiries at the spot. It does not sound to reason that Malik Muhammad Shafi Sub-Inspector would have recorded statement (Exh. P. A.) of Ameer (P. W. 9) at bus-stand which is at a distance of one furlong from the Police Station. The Sub-Inspector would have preferred to record a formal First Information Report at the police station if Ameer had met him at the bus-stand which is as close to the Police Station as one furlong. Ameer has admitted in his cross eXamination that he did not know the parentage of Shirin Khan and that it was ascertained by the Sub-Inspector from Shirin Khan at the site and recorded in the First Information Report. Therefore, the report cannot be attached the usual credence and the fact that it was not a faith ful document also demands a very cautious treatment of statements of eye-witnesses.

9. For facility of disposal we would first advert to the evidence of Anwar and Shirin Khan P. Ws. (11-12) Learned Sessions Judge has wrongly observed that Anwar P. W. was a disinterested witness having no relationship with Ameer (P. W. 9). The latter has admitted in his cross-examination that his wife was aunt of Anwar. The names of Anwar and Shirin Khan both have not been mentioned in the inquest report (P. J.1 Malik Muhammad Shafi Sub-Inspector (P. W. 13) has admitted obviously in an unguarded manner that he had not mentioned the names of these witnesses in the inquest report as he had learned subsequently that they were also witnesses of occurrence which means that support of these two witnesses for statements in favour of the prosecution was listed after preliminary enquiries at the site. It is also wrong to say that Anwar and Shirin Khan could not be labelled as chance witnesses. They both reside at a distance of five squares (one mile) from the place of occurrence. Their presence at the time of incident was not natural. Chance witnesses always come up with such explanation to justify their presence in the vicinity of the place of occurrence. Shirin Khan had stated at the trial that he owned lands in Chak No. 535/G. B. which he cultivated himself. He had, however, made a different statement before learned Committing Magistrate that his lands were in the cultivating possession of his son. He had those days come from Campbellpur to visit his brother. It will be wholly unsafe to be swayed away by version of these witnesses for the reason that they had no motive to make false statements against the appel lant. Their evidence is accordingly left out.

10. This brings us to the statements of Ameer and his daughter Mst. Zainab. (P. Ws. 9-10) 1 have failed to bring myself round to accept the contention that evidence of Mst. Zainab must be discarded summarily for her name does not figure in the First Information Report. She has stated that she was living with her father alongwith her husband for the last 5/6 years. Anwar (P. W. 11) has corroborated the version of Mst. Zainab. Her presence at the site is, therefore, natural and not open to a serious doubt. Her evidence cannot be ignored summarily for the reason that he name was not mentioned in the First Information Report. It should be conceded readily, that Ameer and Mst. Zainab had no motive whatever to charge the appellant falsely for the murder of the deceased. However. the next contention that the statements of these two witnesses themselves did not establish the allegation that the appellant had fired at the deceased after having aimed the gun (P. 1) at her, has a force in it. Precisely, Ameer (P: W. 9) has stated :- "I rushed to the Dera. I saw that the accused was having a gun in his hand and Mst. Sughran was there with whom the accused was grappling. The accused then fired and injured her at her right cheek and the wound of exit was on the left cheek. The accused threw the gun and ran away towards North." Mst. Zainab also made a similar statement :- "In the same room gun belonging to Inayat was lying in an iron box. The accused took it out and aimed at Mst. Sughran. Mst. Sughran tried to catch the gun, but the accused fired at her. She was injured at her right cheek." The version of these two witnesses does admit of a strong probability that the gun went off accidentally during the struggle over its possession between the appellant and the deceased. Where death can be explained on the hypothesis of murder as well as of an accident, the accused cannot be denied the benefit of the hypothesis which is consistent with his innocence It is not possible that the appellant, a young lad, who was engaged in a scuffle with a girl comparatively stronger in physique and health could have retraced a few steps to fire at the deceased. In this view of the matter, it would be idle to advert to further criticism against evidence on the side of prosecution or to undertake appraisal of the evidence in defence. Prosecution has to stand on its own legs and cannot benefit from the weakness of the defence evidence.

11. In the result, the appeal is accepted, conviction and sentence of the appellant are set aside, he is given benefit of doubt and acquitted of the charge. The appellant shall be released forthwith if not detained on any other count. Resultantly, the gun is ordered to be restored to its owner/licensee and application (Criminal Miscellaneous No. 1089-M-72) is also accepted. M. Y. H. Appeal accepted.