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Criminal Appeal No. 213 of 1983, decided on 14th June, 1986.

‑‑‑S. 417‑‑Penal Code (XLV of 1860), S. 302/34‑‑Appeal against acquittal‑‑Appraisal of evidence‑‑Complainant, sister of deceased, though not witness to motive incident, yet stating about motive‑‑ Witness changing her statement at trial‑‑Illiterate witness stating precisely about travelling of bullet after entering into body, which could only be described by an expert‑‑Other witness found to be related and interested‑‑Medical evidence not supporting ocular evidence‑‑Ocular evidence did not inspire confidence‑‑Eye‑witnesses being disbelieved, recoveries would be of no consequence‑‑Order of acquittal not interfered with in circumstances.

Ch. Muhammad Yamin for Appellant.

Seerat Hussain Naqvi for Respondents.

Dates of hearing: 1st and 2nd March, 1986.

‑‑Tariq Hussain Shah and his father Sardar Shah were tried by Additional Sessions Judge Gujrat, for the murder of Muhammad Shafi. Both of them were acquitted by judgment, dated 21‑11‑1982. The State has challenged their acquittal by means of appeal in this Court in which notice was issued to both the accused on 22‑10‑1983. While the matter was pending adjudication, Sardar Shah died. So appeal against him has abated.

2. Zubaida Bibi, complainant, has also filed a revision (Criminal Revision No. 102 of 1984) against the acquittal of the accused. Both the appeal and the revision shall be disposed of by this judgment.

3. Report about the occurrence was lodged by Mst. Zubaida Bibi on 19‑10‑1981 at 10 a.m. at Bus‑Stand Shah Jehanian. It was recorded by Muhammad Anwar, S.I. On the basis of this report, formal F.I.R. EXh.P.F, was recorded by Muhammad Ramzan, Head Constable, at Police Station Jalalpur Jattan.

4. The prosecution story is that on the day of occurrence, Muhammad Shafi brother of Mst. Zubaida went alongwith his cousin Muhammad Ashraf to plough his land situated at a distance of two squares in the East from village and two Killas in the south of Darbar Miran Shah. The land is known as Miran Shah Dilawar.

5. At 8 a.m. Mst. Zubaida went with Huqqa to the land Muhammad Shafi, Muhammad Ashraf and Ghulam Rasool were present there. Tariq Shah armed with rifle and Sardar Shah armed with revolver came there. They were shouting. They threatened that Muhammad Shafi and Muhammad Ashraf would be taught a lesson for abuses. Tariq Shah fired. Muhammad Ashraf laid down. The shot missed. Tariq Shah then fired a second shot. Muhammad Shafi was hit on the right upper arm. The bullet thereafter, passed through the chest from the right side and crossed the abdomen. Muhammad Shafi fell down. He died. The accused fled away.

6. Motive for the murder was that a day before, at about Chhahwela, a goat of Muhammad Ashraf damaged the cotton crop of Tariq accused. This led to exchange of abuses between Tariq Shah and Muhammad Shafi and Muhammad Ashraf. They grappled. Rehmat Khan son of Nawab Khan and Mst. Bashiran who were present nearby separated them. It was this incident which resulted in the murder of Muhammad Shafi.

7. Prosecution examined Mst. Zubaida sister of deceased and Muhammad Ashraf as eye‑witnesses. Reliance was also placed on the post‑mortem report as well as recoveries.

8. The accused denied the allegations in their statements under section 342, Cr.P.C. However, they admitted the motive.

9. Mst. Zubaida before the trial Judge deposed about the incident and then with regard to the motive. She said that Tariq Shah fired first. He aimed at Muhammad Ashraf. It missed him because Muhammad Ashraf got aside. Then Tariq Shah and Sardar Shah fired. Muhammad Shafi was hit in his right arm and right chest. He fell down and died. The accused went towards their Dera with their weapons.

10. Muhammad Ashraf deposed that at about 8 a.m. when Mst. Zubaida and Ghulam Rasool were present, Tariq Shah and his father Sardar Shah came there. Tariq Shah had rifle and Sardar Shah a revolver. Tariq Shah fired at him. It missed. Then they came close to Muhammad Shafi and both of them fired from their respective weapons. Muhammad Shafi was hit in the right arm and right chest. He fell down and died. He also deposed about the motive. He is also a witness of recovery of revolver P.6 from the roof of the room of accused's Dera. He also attested the recovery of rifle P.4 and three bullets. The rifle was recovered at the instance of Tariq Shah from the eastern room by digging the earth.

11. On 19‑10‑1981, Dr. Ghulam Abbas Zafar, Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat, conducted the post‑mortem of Muhammad Shafi. He found the following lacerated wounds 1 c.m. x 3/4 c.m. on right upper arm at the lateral border of the bicep muscles with inverted margins; 1.5 c.m. x 1 c.m. on the right upper arm on inner side of the bicep muscle with everted and ragged margins; 2 c.m. x 1 c.m. with blackening around at the level of 7th and 8th ribs below right axilla in mid axillary line with inverted margins and 7 c.m. x 4 c.m. cavity shape at the back of the chest at the level of 9th and 10th dorsal vertebrae causing crushing of both vertebrae with irregular and everted margins.

12. The doctor admitted that he did not give the distance from which deceased was fired at. He did net notice any blackening except on injury No. 3. All the injuries were by fire‑arms. The cause of death according to the doctor was shock and haemorrhage.

13. Tariq Shah admitted that the co‑accused was his father. He also admitted the earlier incident pertaining to goat. Rest of the allegations even the recovery of weapon of offence were denied. When questioned why this case against him, his answer was as follows:‑

"Bahadur the brother of the deceased was murdered by Fazal Ahmad son of Daulat Khan resident of Noora Mandiala. He was convicted and sentenced to 20 years revenge and committed the murder of the deceased. I was involved in the case on account of the incident that occurred a day before the day of occurrence on account of suspicion. No person saw the occurrence. The deceased was murdered at Sargiwela."

14. Learned counsel for the State conceded that there was no merit in the appeal. Nevertheless counsel for the complainant Dr. Khalid Ranjha, addressed us at length and submitted that the judgment of the Additional Sessions Judge has resulted iii miscarriage of justice. There is strong ocular evidence duly supported by the medical evidence and the recoveries which prove the case of the prosecution beyond doubt. According to the learned counsel the case having been proved to the hilt the respondent deserved capital sentence.

15. Counsel for the respondent while supporting the impugned judgment gave his own reasons which to our mind are more weighty and submitted that even if the reasons given by the Additional Sessions Judge are not convincing, still there is element of doubt in the prosecution version and as the case is not free from doubt, the respondent has been rightly acquitted.

16. Mst. Zubaida though not a witness of the motive yet gave evidence about the motive. She had no personal knowledge about that. She told what she was told. The subsequent change in her statement before the trial Court puts us on guard iii accepting her evidence as the truth. She is an illiterate person. The precision with which she gave particulars as to how the bullet travelled after entering the body of the deceased is marvellous. Only an Expert could depose to that effect.

17. Muhammad Ashraf is also an interested witness being relative of the deceased. The ocular evidence as such does not inspire confidence.

18. As already observed, the medical evidence does not support eye witnesses account.

19. Since we have disbelieved the eye‑witnesses testimony, the recoveries are of no consequence.

20. For the foregoing reasons Ave are of the view that the prosecution has failed to prove its case beyond doubt. The appeal ands the revision are hereby dismissed.

S.A./S‑27/L Acquittal maintained.

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