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---S.302--Recovery--Recovery of gun effected from accused but no empty recovered from spot--Evidence of recovery of gun discarded.- [Recovery].

---S.302--Parties locked in criminal litigation prior to occurrence and having strained relations--Evidence of eve-witnesses disbelieved on point of participation of co-accused who were acquitted--Evidence of eye-witness also in direct conflict with medical evidence--No other evidence left to connect accused with crime-Conviction and sentence set aside in circumstances.

S.M. Latif Khan Khosa for Appellant.

Kh. Shaukat Ali for A.-G. for the State'

Dates of hearing: 5th and 9th May, 1987.

Khuda Bakhsh, aged 50 years, was tried alongwith his two sons Sawall and Mir Dost and his brother Miru for the murder of Ali Dost by Sessions Judge, Rajanpur, who convicted Khuda Bakhsh alone under section 302, PPC and acquitted the rest vide judgment dated 26-3-1983. For the said offence Khuda Bakhsh has been sentenced to death and a fine of Rs.2,000/- or in default to undergo further R.I., for 3 months. He was further directed to pay Rs.2,000/- by way of compensation to the legal heirs of the deceased or in default thereof to undergo 3 months' R.I The convict has filed the instant appeal against his conviction and sentence and the trial Court has sent a reference (M.R. No.50/1983) for confirming the death sentence of Khuda Bakhsh. This judgment shall dispose of both the appeal as well as the murder reference.

2. The occurrence took place at Nimazwela on the night between 21/22-8-1980 in an open field within the revenue limits of Basti Jewna Dakhli Chak Dhanwani, tehsil Rojhan, district Rajanpur, about 24 k.m., away from police station Rajanpur. The report in this case was made by Gul Muhammad (PW.6), uncle of the deceased, through statement Ex-PG recorded by ASI Ghulam Jilani (PW.15), the following morning, at 7 a.m., near Dera Azim Khan, at a distance of 8 miles from the spot and 4 miles from police post Bungla Ichha on the basis of which formal FIR Ex.PG/1 was recorded at police station Rajanpur at 11 a.m., by MHC Ghulam Hussain (PW.5).

3. The prosecution case briefly is that some agricultural land surrendered by Mazari Tribe to the Government was in possession of the complainant party. Khuda Bakhsh, appellant, claimed, the said land to be his and asked the complainant party to vacate possession of the land who did not agree. Ali Dost (deceased) used to cultivate the said land. Due to the floods in the area, on the day preceding the night of occurrence the complainant Gul Muhammad (PW.6) alongwith his two sons Ali Sher, Ali Murad and nephew Ali Dost (deceased) left for Basti Jewna Chak Dhanwani and took alongwith them herd of their sheep and goats, at a distance of about 1i miles, reaching r there a little before sunset. On the fateful night the complainant alongwith Ali Dost (deceased) and his sons Ali Sher and Ali Murad PWs. slept in the open. They got up at Nimazweia and saw Khuda Bakhsh, appellant, present there armed with .12 bore gun with his three co-accused (since acquitted) armed with hatchets. Khuda Bakhsh, appellant, raised Lalkara addressing Ali Dost (deceased) that he had come to take revenge of (not vacating) the land. At this, the deceased who was lying on the ground tried to get up but Khuda Bakhsh fired a shot at him hitting him in the chest as a result of which Ali Dost fell down. The witnesses tried to step forward but were restrained by Sawali, Miru and Mir Dost (acquitted accused). Khuda Bakhsh, appellant, then reloaded his gun. The accused fled away with their respective weapons. Ali Dost died at the spot as a result of the injury. Gul Muhammad (PW.6) leaving the dead body in the care of Ali Sher and Ali Murad PWs. proceeded to police post Bungla Ichha for lodging the FIR. In the way he met ASI Gbulam Jilani (PW.15) and lodged complaint Ex.PG with him.

4. Having sent the complaint Ex.PG to police station Rajanpur ' for registration of a formal case the ASI went to the spot. Reaching there, he prepared inquest report Ex.PE of the deceased and despatched the dead body for post-mortem examination under police escort. He removed blood-stained earth from the place of occurrence. The investigation was taken over from him on 26-8-1980 by SI Muhammad Hassan (PW.1). He arrested the appellant as well as the acquitted accused on 15-9-1980. Khuda Bakhsh, appellant, produced on the same day.12 bore gun P.1 which was secured under memo. Ex.PA. Hatchets P.2 and P.3 were produced before the Investigating Officer by Sawali and Mir Dost, acquitted accused, which were secured under memo. Ex.PB and attested by Mithan Khan (PW.13) and Sharbat Khan (PW.14).

5. It may be mentioned that hatchets P.2 and P.3 were not stained with blood and were not sent to the Chemical Examiner. Likewise, because no empty was found on the spot, therefore, the gun recovered from the appellant was not sent to the Fire-arms Expert.

6. Dr. Abdul Wahab (PW.2) on 22-8-1980 at 5-30 p.m., conducted post-mortem examination on the dead body of Ali Dost and found the following injuries on it:-

(i)An oval wound of entry 11" x 1" chest cavity deep on the front of chest midline upper part of sternum (manuvrim sterni).

(ii) Five wounds of exit I" in diameter in the back and left side of chest scapular region. Wadding from the chest cavity and one pellet were removed from the back and left side of chest and handed over to police in a sealed bottle.

Vertebra, wall, ribs and cartilages of chest, pleura, tracheae, right and left lungs, arch of aorta and pulmonary vessels were injured. Food and wind pipes were also injured. Stomach was healthy and contained semi-digested food. Small and large intestines were healthy and contained faecal matter. In the opinion of the doctor, the death occurred due to shock and haemorrhage produced by injuries Nos.l and 2 caused with fir-arm which were sufficient to cause death in the ordinary course of nature. Probable duration between injuries and death was immediate and between death and post-mortem was 12 to 24 hours.

7. At the trial, prosecution examined 15 witnesses in support of its case, of whom Gul Muhammad (PW.6), Ali Murad (PW.7) and Ali Sher., (PW.8) furnished eye-witnesses account while Mithan Khan (PW.13) and Sharbat Khan (PW.14) deposed about the recoveries and AST Muhammad Hassan (PW.1) stated about the investigations. Dr. Abdul Wahab (PW.2) proved that the deceased died of fir-arm injuries.

8. The appellant as well as the acquitted accused when examined under section 342, Cr.P.C, denied the allegation but produced no defence evidence.

9. Learned trial Court on consideration of the material on record observed in paragraph 12 of its judgment that gun P.1 recovered from Khuda Bakhsh (appellant) was of no consequence. It acquitted three co-accused of the appellant as their participation was found not free from doubt as they allegedly went to the spot armed with hatchets but no injury was found on the deceased caused with hatchet. The appellant was, however, convicted and sentenced believing motive and ocular testimony, as indicated above, hence this appeal. No appeal or revision has been filed against the acquitted accused.

10. Learned counsel for the appellant has contended that the motive as set up by the prosecution has not been established; that the eye-witnesses besides being closely related to the deceased are inimically disposed towards the appellant, therefore, their evidence could not be acted upon in the absence of independent corroborative evidence; and finally, that there is glaring conflict between ocular and medical evidence, hence the appellant deserves to be acquitted. To the contrary, learned counsel for the State has supported the conviction and also the sentence awarded to the appellant.

11. We have carefully considered the contentions of learned counsel for the parties and also perused the record.

12. According to prosecution, the motive for the offence was that because the land claimed by the appellant was not vacated by Noor Muhammad as his son Ali Dost (deceased) was cultivating it in defiance to the appellant's command, therefore, he had shot him dead on the night of occurrence. It is to be noted that Gul Muhammad complainant (PW,6) in cross-examination has clearly conceded that the land in dispute was not cultivated by them as it remained under river waters and that after the water had receded even then they did not cultivate it. He also denied the suggestion that the land in question was actually in possession of the appellant or that his (complainant) party had tried to take its possession forcibly. The appellant has produced documents Exs.DC and DD showing that the land in dispute was allotted to him and was possessed by him, therefore, he had no grouse whatever against the complainant party. No revenue record like Khasra Girdawari, etc. , has been produced by the prosecution showing that the deceased or his father ever remained in cultivating possession of this land to the annoyance of the appellant. We are, therefore, not convinced that the appellant bore grudge against the complainant or the deceased on this account.

13. So far as recovery of gun P.1 effected from the appellant is concerned, it is needless to say that as no empty was recovered from the spot, therefore, it was not connected with the crime and the learned trial Court had rightly discarded this piece of evidence.

14. The prosecution case mainly hinges on the ocular testimony which comprises three eye-witnesses, namely, Gul Muhammad complainant (PW.6) an uncle of the deceased, Ali Sher (PW.8) a brother of the deceased, and Ali Murad (PW.7) the son of the complainant and first cousin of the deceased.

15. Gul Muhammad (PW.6), the first informant, has supported the prosecution case as given in paragraph 3 above. He admitted that Jetha and Ali Sher P.Ws. are his nephews and are brothers of Ali Dost (deceased). Ali Murad PW is his son while Miru and Noor Muhammad (father of the deceased) are his real brothers. Basti Jewna (place of occurrence) consists of 4/5 houses. The accused /appellant resided in Chak Dhanwani at a distance of 2J squares from his house situated in Chak Umrani. He admitted that Miru (acquitted accused) brother of the appellant, had got registered a case under section 307/325/324/148/149, PPC against his sons Ali Murad and Afzal and nephews Ali Dost (deceased), Jetha and Ali Sher prior to the occurrence and out of them, Ali Sher, Murad and Jetha are now P.Ws. in the instant case. He also admitted that he got a case under section 324/308, PPC registered against the appellant and his brother Miru but they were acquitted. He denied that Ali Dost (deceased) was 'Kala' (paramour) with wife of Mehr Gul. He stated that the disputed land (surrendered to Government by Mazari Tribe) is situated in Chak Umrani and that it was not cultivated by him or his family as it remained under river water and that they had not made any application for its allotment. He denied that the land was in possession of the accused party or that they had tried to forcibly take its possession. He alongwith the deceased and the PWs. had stayed in Basti Jewna only for the night of occurrence while their other family members stayed back in their own village Umrani. He brought meals from the house of Jewna and all of them took it after Maghribwela and slept at Ishawela. They slept on the ground. The appellant fired a shot at the deceased from a distance of 4/5 Karams from a single barrel gun. There was daylight at the time of occurrence. He did not talk about the occurrence to anyone in the Basti.

16. Ali Murad son of the complainant as well as Ali Sher brother of the deceased who are also eye-witnesses of the occurrence have made similar statements. Ali Murad (PW.7) in cross-examination stated that he had mentioned in his police statement Ex. DA that Gul Muhammad PW was present at the time of occurrence but on confrontation with Ex. DA it was not found recorded in it. He stated that they reached Basti Jewna at sunset time and camped at open place on the night of occurrence. His father brought the meals from Basti Jewna which they had taken at Ishawela. There was daylight at the time of occurrence. Ali Dost (deceased) was standing when he was fired at by the appellant. Khuda Bakhsh, appellant, after firing the shot taken out from the gun empty cartridge and thrown it away. He denied the suggestion that it was an unwitnessed occurrence and that they having subsequently come to know of it reached there. Ali Sher (PW.8) in his cross-examination stated that he had mentioned in his police statement Ex.DB that Gul Muhammad PW was present at the time of occurrence but on confrontation with Ex. DB it was found as not recorded. He stated that they reached Basti Jewna at evening time when the darkness had not yet prevailed and they slept in the open. That Basti comprised two houses and from among the residents only Jewna was known to them. They had taken meals at Ishawela. There was neither any crop nor any jungle around the place of occurrince. The appellant after firing threw away the empty cartridge and then reloaded his gun. Nobody from Basti Jewna was attracted to the spot on their alram. Jewna was also not informed about the occurrence. He denied the suggestion that he had not seen the occurrence.

17. ASI Ghulam Jilani (PW.15), the Investigating Officer, proved statements Exs.DA and DB to have been correctly recorded by him. He reached the spot at 8 a.m. During site inspection no empty cartridge was found by him from the place of occurrence. He admitted that he did not mention in his site inspection note the place of presence of the eye-witnesses at the time of occurrence. He admitted that name of Gul Muhammad complainant was not mentioned in statements Exs. DA and DB. He further stated that he did not see cattle on the spot. He denied that it was a blind murder.

18. The gist of the evidence given above would show that the parties were locked in criminal litigation prior to the occurrence which betrays that they had strained relations. So, implicit reliance cannot be placed on the ocular testimony and it needs to be subjected to strict scrutiny particularly when they have already been disbelieved on the point of participation of three co-accused of the appellant who have been acquitted by the trial Court. Obviously the complainant party neither had any place to live in Basti Jewna, village Dhanwani, nor they had any cultivation there to feed their animals. It is in the evidence that there was no jungle or other vegetation around the place where they were camping in open under the sky on the night of occurrence. It does not appeal to reason that due to the floods (if any) all the male members of their family would have shifted with their cattle to village Dhanwani, leaving their other family members including the womenfolk behind. Their story about shifting to village Dhanwani on the day preceding the night of occurrence does not appear to be convincing. ASI Ghulam Jilani (PW.15) has also stated that when he visited the place of occurrence on the day following the night of occurrence, he did not find any cattle present there. Furthermore, these witnesses have made improvements upon their earlier statements which show that they are capable of telling lies, for example, they stated that the appellant had reloaded his gun after firing a cartridge at the deceased, but realising that no empty was recovered from the spot, they improved at the trial by saying that the appellant had taken out the empty from the gun and then reloaded it and threw away the empty. Obviously, the witnesses have coined this explanation to meet the non-recovery of empty from the spot.

19. Above all, the evidence of the eye-witnesses is in direct conflict with the medical evidence. Their version is that the deceased alongwith them had taken last meals at about Ishawela and the occurrence took place same night at Nimazwela and at that time there was sufficient "daylight", therefore, the appellant and his co-accused were correctly identified by them. According to the doctor, the deceased had died instantaneously on receipt of gunshot injury. He found semi-digested food in the stomach of the deceased. The occurrence took place in the last week of August, 1980, at Nimazwela. Lahore High Court Calendar, 1980, shows the sunset time on the right of occurrence as 6-42 p.m., and the sunrise time next morning as 5-30 a.m., at Lahore. So, the Isha prayers time approximately on that day would be 8-15 p. m., and Nimazwela time next morning would be about 4-30 a.m., at Lahore. Half an hour's time be added to the said timings, as the occurrence took place in district Rajanpur (about 350 miles away from Lahore towards south-west), therefore, Isha prayers time in that district on the night of occurrence would be about 9 p.m., and Fajr prayers time would be 5 a.m. The deceased took his meals at Ishawela, i.e., 9 p.m., and in between Ishawela and Nimazwela (morning prayers time) there is an interval of about 8 hours. The semi-digested food in the stomach of the deceased shows that he had taken his last meals about 3 to 4 hours before he met his death. Calculating the time from "Ishawela" (9 p.m.) when the deceased took his last meals, the occurrence would have taken place in between 12 mid-night and 1 a. m. It would show that the eye-witnesses shifted the occurrence to Nimazwela to make us believe that at the time of occurrence there was sufficient light for them to identify the culprits. Their evidence thus being in conflict with medical evidence, cannot be believed. Consequently, we have no option but to discard their evidence. We are thus left with no evidence whatsoever connecting the appellant with the crime. In the result, we accept the appeal, set aside the conviction and sentence of the appellant and acquit him. The death sentence awarded to the appellant is NOT confirmed and the reference is rejected. The appellant is directed to be released forthwith if not wanted in any other case.

M.Y.H./K-27/L Appeal accepted.

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