SIKANDAR Versus THE STATE
ORDER
ASLAM RIAZ HUSSAIN, J .--Sikandar, aged 25 years and his brother Muhammad, aged 28 years, were tried by Mian Abdul Majid, Additional Sessions Judge, Lyallpur at Jhang, for an offence under section 302; 34, P. P. C., for the murder of Majha deceased. The learned trial Judge acquitted Muhammad but found Sikandar to be guilty of an offence under section 302, P. P. C. and sentenced him to death. Sikandar appellant has filed the present appeal. The case is also before us under section 374, Cr. P. C., for confirmation of the death sentence. We propose to dispose of the appeal and the murder reference by a single order.
2. The facts of the prosecution case, briefly stated, are that the land of Majha deceased was adjacent to that of Sikandar appellant and his brother Muhammad (the acquitted accused) and there was constant friction between them with regard to the boundaries of the land and damming of the crops. A day prior to the occurrence Sikandar and Muhammad had cut some fodder crop belonging to the deceased, over which the latter quarrelled with them and gave a shoe beating to Sikandar appellant Raja Khan P. W. 12, Moonda, P. W. 8 and Ghulam P. W. 9, intervened and separated them. Sikandar and Muhammad had threatened in take revenge. On the night between 16th and 17th January 1967, Majha deceased and Muhammad Yousuf P. W. 13 were sleeping inside their dhari in the area of dakhli Chak No. 126, Police Station, Chiniot, District Jhang. At about 5 o'clock in the morning Sikandar appellant turned up at the dhari armed with a gun and his brother Muhammad armed with a hatchet. Muhammad stood outside the door while Sikandar appellant entered the dhari and fired at Majha deceased. Muhammad Yousuf P. W. 13, woke up on hearing the gun fire and saw the two assailants in the light of a lantern, which was lit in the kotha. Sikandar appellant then reloaded the gun and fired another shot at Majha deceased who was covered with a lehaf. Muhammad Yousuf P. W. raised an alarm and the assailants ran away. Hearing the shots Muhammad P. W. a broter of deceased rushed to the spot and saw Muhammad (the acquitted accused) Standing Eat the door with the hatchet and also saw Sikandar appellant firing the second shot at Majha deceased. Shortly afterwards Waryam P. W. 15, also reached there and saw Sikandar appellant armed with a gulf and Muhammad co-accused armed with a hatchet coming out of the door of the dhari and run, away. Raja P. W. 12, heard the shots at a distance of 3 killas from the dhari and towards it. He also saw Sikandar and Muhammad coming out of the dhari and run away. Muhammad Yousuf P. W: 13, informed them of the incident. Raja P. W. then left for Police Station Chiniot, leaving the dead -body in the custody of Muhammad Yousuf, Muhammad and Waryam P. Ws. He reached the police station, which is situated at a distance of 10 miles from the place of occurrence, any' lodged the F.I. R. Exh. P. A. Thereafter Ghulam Qadir S. 1. P. W. 17, who had recorded the F. I. R. at 10 a.m., imme diately left for the place of occurrence. On reaching the spot he prepared the injury statement and inquest report of the deceased and sent the dead-body for post-mortem examination. He took into possession some blood-stained earth from under the cot of the deceased and a lantern P. 12, which was hanging from a peg inside the kotha where the occurrence had taken place. The accused were produced before Mukhtar Ahmad S. (. P. W. 16 on 19-1-1968 and were arrested by him. On 25-1-1968 Sikandar appellant led to the recovery of a gun P. 13, from a sugar-cane field along with a live cartridge P. 14, which were taken into possession vide memo. Exh. P. F.
After the completion of the investigation, the appellant, were challaned and ultimately sent up for trial.
3. Dr. Farooq Ahmad P. W. I. who performed the post mortem examination on 17th January 1968; found the following injuries on his person :---
(i) A gun shot wound 1 " x 1" going into the front and upper part of the left chest. The wound was situated over the left lateral and upper end of the sternum. The medial end of the left clavical was also not present. The wound was going into the left side of the thorax piercing all the structures, muscles, vessels, etc. Over lying sweater and shirt had also got holes according to the site of wound.
(ii) A gun shot wound 1" x 1" going into the middle of the chest. The wound is situated at the upper end of the sternum. The underlying sternum was also fractured. This wound was " medial to injury No. 1 and was also going into the thorax piercing all the structures in front of it. The overlying sweater and shirt had also got holes according to the site of the wound.
On dissection of the chest all structures, namely, muscles and vessels were found to be perforated under injuries Nos. I and 2. The right and left pleurae were also perforated under these injuries. Both lungs were perforated at the upper lobes and both sides of the pleural cavity were full of blood. Extensive damage had been caused to the organs beneath the injury. Three small pieces of card-board were present over the right pleural cavity. All other organs were found healthy. Stomach was healthy and empty.
The doctor also stated that the dead-body was covered by a white coarse, Khadar lehaf which had got hole on its upper side. There was blackening 7" x 7" in area, around this hole. There were two holes on the lower part of lehaf.
4. The appellant and his co-accused, when examined, denied their guilt, and produced two witnesses in their defence. When asked why the case had been made against him, Sikandar appellant replied :-
"Waryam, Allah Ditta, Haji Yousaf son of Muhammad, Moonda, and Majha P. Ws., are very closely related to each other. They are very influential people. Allah Ditta is a Lambardar while Haji Muhammad Yousuf is a B. D. Member. Waryam P. W. was opposed to my marriage with Mst. Bakhtawar, the daughter of Khan his brother. Khan approached the police that Waryam was threatening to kill me as well as my wife and the police challaned Waryam P. W. his brother Yara, his son Majha and his cousin Kamir on one side and Khan, my, father-in-law on the other side, two days before my marriage Even then Waryam has not forgotten the affair as he demands the hand of Mst. Bakhtawar for his own son. Majha died while sleeping alone at that dhari. The P. Ws. mentioned above are very closely related to Raja, Muhammad Yousuf son of Mallah, Ghulam and Mst. Allah Jowayee P. Ws. and they diverted their mind due to their influence towards me on account of the party disputes over damage of crops in the past. I have given up my residence in Chak No. 126 and have shifted to Chak No. 236 where my father had purchased land. I have been made the victim of conspiracy hatched by Waryam and Haji Muhammad Yousuf and Allah Ditta P. Ws. along with Raja and others.
He also stated that:
"I have been victimised by my enemies on account of my marriage with Mst. Bakhtawar. Majha had so many enemies and many people had grudge against him to murder him."
5. The prosecution had relied on the following pieces of evidence in support of its case
(i) the motive ;
(ii) the ocular evidence ;
(iii) the recoveries of lantern (Exh. P. 12) and .12 bore gun (Exh. P. 13) and
(iv) the medical evidence.
It may be stated at the outset that Majha deceased was the first cousin of Sikandar appellant inasmuch as Nur Muhammad, the father of the deceased and Amir, the father of Sikandar appellant are real brothers inter se. Most of the witnesses are also closely related to the deceased. Two of the eye-witnesses, namely Raja P. W. 12, and Muhammad P. W. 14, are the real brothers of Majha deceased. Mst. Jawai P. W. 10, is the widow of the deceased. Muhammad Yousuf P. W. 13, is the nephew (brother's son) and Majha deceased. Ghulam P. W. 9 is the real brother of Muhammad Yousuf P. W. 13: Father of the Haji Majha P. W. 6 and the father of the deceased were cousions. Haji Allah Ditta P. W. 5 and Haji Muhammad Yousuf P. W. 7 are brothers inter se and are the nephews (i.e. sister's sons) of Haji Majha P. W.
6. The wife of Moonda P. W. 8 is the sister of Haji Majha P. W. 6 and the wife of Haji Majha P. W. 6, is the sister of the wife of one Yara who is the brother of Waryam P. W.
15. This Waryam is also a cousin of Muhammad, the father of Haji Allah Ditta P. W. 5 and Haji Muhammad Yousuf P. W. 7 Waryam P. W. 15 has strained relations with his own brother Khan inasmuch as Khan wanted to marry his daughter Mst. Bakhtawar to Sikandar appellant, but Waryam P W. 15 opposed this marriage and both the brothers as well as Sikandar appellant were bound down under section .108/151, Cr. P. C.
The fact that the appellant and the deceased are so closely related and that most of the witnesses are also close relations of the appellant indeed raises a serious suspicion against the appellant because he is named as the culprit by his own cousions. It is, however, well established that mere suspicion, howsoever strong, cannot take place of proof, we have, therefore, to see whether the prosecution has been able to prove its case against the appellant beyond reasonable doubt.
We may first take-up the evidence with regard to the motive. This was supplied at the trial by Moonda P. W. 8, Ghulam P. W. 9, and Raja P. W. 12, Mst. Jawai P. W. 10, also stated about a different motive which had not been mentioned in the F. I. R.
Moonda P. W. 8, stated that a day prior to the occurrence he was sitting at the dhari of Majha deceased. Majha deceased, Ghulam P. W. 9, and Raja P. W. 12, were also present there. After a short time, Majha deceased left for the dhari of Amir which is situated at a distance of one Killa from the dhari of the deceased. While sitting at the dhari of the deceased, they saw the deceased quarrelling with Sikandar appellant at the dhari of Amir. On seeing this they also proceeded towards the dhari of Amir. , While they were still on their way, they saw the deceased beating Sikandar appellant with a shoe. They reached there and separated the parties. Sikandar appellant is then stated to have proclaimed that he would take revenge very soon.
In his statement before the police, however, he has not stated that Majha deceased had gone to the dhari of Amir. He had also not stated that he had seen the deceased quarrelling with Sikandar at the dhari of Amir while sitting at the dhari of the deceased or that on seeing the quarrel he, Raja and Ghulam P. Ws. had also proceeded to the dhari of Amir. He is also contradicted by his own statement before the Committing Magistrate wherein he has stated that when he reached the dhari of Majha deceased, he saw the deceased quarrelling with Muhammad and Sikandar. It will be noticed that at the trial he has stated that this quarrel took place at the dhari of Amir and not at the dhari of the deceased and further that the deceased had quarrelled with Sikandar only and not with Sikandar and Muhammad both.
Ghulam P. W. 9 and Raja P. W. 12, have given the same account of this incident at the trial as given by Moonda P. W. A reading of their. evidence shows that they have made similar improvements in the story as made by Moonda P. W. at the trial. Ghulam P. W. 9 had not stated in his statement before the police (Exh. D. C.) that he as well as Moonda and Raja P. Ws. and the deceased were sitting at the dhari of the deceased that the deceased left for the dhari of Amir or that the incident took place at the dharf (i.e. dhari of Amir). In that statement, he had stated clearly that Majha deceased had a quarrel with Sikandar and Muhammad while in his statement at the trial there is no mention of Muhammad. Similarly the statement of Raja P. W. 12, at the trial on this point, is different from the one given by him in the F. I. R. He has not mentioned in the F. I. R. that Majha deceased had proceeded to the dhari of Amir and had given to Sikandar a beating at that place. Again in the F. I. R., he had mentioned that after the shoe beating both Muhammad and Sikandar had given the threat of revenge, whereas at the trial he has completely excluded the presence of Muhammad. He has also deposed at the trial that Sikandar appellant had a suspicion that Majha deceased had illicit relations with the wife of Sikandar appellant. He added that Mst. Jawai, the widow of Majha deceased, had told him about this suspicion. Mst. Jowai appeared at the trial as P. W. 10, and confirmed that Sikandar appellant had such a suspicion against the deceased. This suspicion is said to have constituted as additional motive, with the appellant for the murder of Majha deceased. Raja P. W. stated during his cross-examination that he hod told the Sub-Inspector about this suspicion while lodging the F. I. R., before him. There is, however, no mention about it in the F. I. R. It is apparent that the story with regard the illicit relation was introduced subsequently on realising that the motive mentioned in the F. I. R. (i. e. with regard to the shoe beating given.to Sikandar appellant) may riot be considered strong enough to impell the appellant to murder the deceased. It appears to be only an after thought and we, therefore, reject it as false. The story with regard to the shoe beating to Sikandar appellant over the cutting of fodder by him, is full of discrepancies as pointed out above. The story given by the P. Ws. at the trial is quite different to the one given by them earlier before the police or the Committing Magistrate. We, therefore, agree with the learned trial Court that the prosecution has not been able to establish the motive beyond reasonable doubt.
6. The ocular evidence is furnished at the trial . by Muhammad Yousuf P. W. 13 and Muharhmad P. W.
14. Their evidence is supported' by Raja P. W. 12 and Waryam P. W. 15 who saw the two accused running away from the "spot shortly after the incident.
Yousuf P. W. 13, is a nephew of the deceased. He is said to lave been sleeping with the deceased in the same dhari on the night of the occurrence. At about morning prayer time he woke up on hearing the bang of a gun-shot and saw Sikandar appellant armed with a gun standing inside the room and Muhammad (the acquitted accused) standing as a guard at the door, armed with a hatchet. Thereafter, Sikandar took out the empty cartridge, reloaded the gun and fired another shot at the deceased. Yousuf P. W. was able to see the occurrence and identify the assailants in the light of a lantern (Exh. P. 12) which was hanging from a peg on the wall of the katha. He raised an alarm whereupon both the assailants ran away. Muhammad P. W. 14, was, the first person to reach the spot. He is a real brother of the deceased. He was present in his dhari which is situated at a distance of about 11 killas from the spot. He herd the gun fire and rushed to the dhari of Majha deceased, Reaching there, he saw Sikandar firing (the second shot) at the deceased. He also saw Muhammad (the acquitted accused) standing at the door with a hatchet. This witness (i e. Muhammad P. W.) was asked during the cross-examination as to the distance from which the shot was fired by the appellant at the deceased. He replied that it was fired from a distance of 2 or 3 karams (i. e. 10/15 feet). This assertion is in clear contradiction of the medical evidence. One look at the injuries on the dead-body would show that they were caused by a gun shot fired from a very close range. There is hardly and dispersal of the pellets, all of which entered the body in one mass in the case of each shot. The lehaf with which the deceased was covered had only one hole on its upper side through which both the shots had passed. According to Dr. Farooq Ahmad P. W. 1, there was a blackening 7' x 7" around this hole. This indicates that the shots were fired from a very close range. The fact that both the shots had passed through a single hole, clearly shows that the muzzle of the gun was in close proximity with the lehaf. It could have been no more than 6 away to achieve this result. The doctor was also opined that the injuries were caused from very close range. This fact alone is sufficient to demonstrate that Muhammad P. W. 14 is a lier and that he had not seen the appellant firing at the deceased. There is also another indication to show that Muhammad P. W. was probably not present at the spot and had not seen Sikandar appellant firing at the deceased. A careful look at the different statements made by Raja and Muhammad Yousuf P. Ws., at various stage, would show that the prosecution was riot sure as to. which of the two witnesses should be seen as having reached, the place of occurrence, ,in time to see Sikandar appellant firing the second shot. It, bas been stated by Raja P. W. in the F. I. R., that "Muhammad and Waryam had also reached there and seen the occurrence with their own eyes". He has, however, denied this fact at the trial. The position taken up by him at the trial is that only Muhammad P. W. had reached the spot in time to see the second shot being fired by the appellant and that Waryam reached sometime later when the assailants were already running away. This shift in the prosecution story takes away Waryam P. W. as an eye-witness.
Before the Committing Magistrate, Muhammad Yousuf P. W. 13, stated 'that Muhammad and Waryam had reached the spot "when the accused were running away from the spot". According to this version even Muhammad P. W. had reached subsequently when the incident, was already over.
As observed, these shifts in the prosecution versions at different stages cast a serious doubt. on the presence of Muhammad P. W. at the spot at the time of the occurrence. In view of the above mentioned discussion we find, that it is very unsafe to rely on his evidence without independent corroboration.
7. Raja P. W. 12 and Waryam P. W. 15, are two witnesses who are said to be going towards the dhari of Majha deceased at, about 5 a.m., on the morning of the occurrence. Raja P. W. had slept at his house and Waryam P. W. at his dhari both of which are situated at a distance of 2J squares from the dhari of the deceased. On hearing the gun shots they ran towards the dhari of the deceased and saw the two accused persons running, away. Raja P. W. has not given any reason at all for his proceed ing towards the dhari of the deceased at such an early hour in the morning in the month of January. 7 he reason given by Waryam P. W. that he was going to the dhari of Majha deceased for getting a he-buffalo is not convincing and does not disclose any urgency which would necessitate his proceeding to the deceased's dhari at 5 a.m. in a cold January morning. The learned trial Court found the reason given by Waryam P. W. to be entirely unsatisfactory. We feel that the presence of these two witnesses at or near the spot at such an early hour in the morning in mid-January is very doubtful.
8. It is admitted by the prosecution witnesses that dharis of a large number of other persons are situated near the dhari of the deceased, some of which are situated at a distance of only one Killa, which is much near than the dhari of Muhammad P. W. 14 or Waryam P. W. 15 or the house of Raja P. W. 12, yet none of the persons residing in these dharis reached the spot in time, either to see Sikandar appellant firing at the deceased or the assailants running away. Dhari of one Dossa is admittedly situated just be side that of the deceased. From a look at the map Exh. P. 8/1 it appears that the dhari of the deceased and that of Dossa are situated face to face. It is admitted that a servant of Dossa was sleeping in this dhari on the night of the occurrence. It is surprising that even he is not said to have reached the spot or seen the occurrence. In these circumstances, it is strange indeed that two brothers i. e. Raja and Muhammad P. Ws. and a close relative (i. e. Waryam P. W. 15) of the deceased, were the only persons who reached the spot in time. Raja P. W. 12, admitted that he slept at his house in the village which is situated at a distance of 2 squares of the occurrence. Waryam P. W. 15 has also admitted that his dhari is also situated at a distance of 21 squares from the dhari of the deceased. It is a strange, coincident that both of them, namely, Raja and Waryam P. Ws. had come out in the early hours of the morning in the month .of January and were proceeding towards the dhari of Majha deceased just at the time when the assailants had entered the same, in order to murder Majha, and were thus able to run up to the spot in time to see them running away. It is apparent that this is sheer concoction on the part of the prosecution and these witnesses have been introduced merely to corroborate the evidence of the eyewitnesses. Such concoction, in fact, cast a serious doubt on the entire prosecution case. For the foregoing reasons the evidence of Muhammad, Raja and Waryam P. Ws. cannot be relied upon.
9. We are, therefore, left only with the evidence of Muhammad Yousaf P. W. 13 who is alleged to have slept in the same dhari with the deceased on the night of the occurrence. The entire prosecution case hinges on his evidence. What has to be determined first is whether he was, in fact, sleeping in the dhari of the deceased as alleged by the prosecution and if so, was he is in a position to see the occurrence or identify the assailants inside the dhari. In other words, was there sufficient light in' the dhari at that hour' of the day to enable him to identify the appellants.
It is in evidence that Majha deceased had at least two real brothers, namely, Raja P. W. 12, and Muhammad P. W. 14, 'it is also in evidence that Muhammad P. W. 14, has a separate dhari and that Raja P. W. and Majha deceased had a joint dhari (i. e. the dhari in which the occurrence took place). On the other hand it is admitted that Yousuf P. W. 13, who is a nephew of Majha deceased, has also got a real brother, namely Ghulam P. W. 9, who has a dhari of his own. A question would naturally arise as to why Muhammad Yousuf P. W. 13 was sleeping at the dhari of his uncle Majha deceased and not in that of his own brother Ghulam P. W. The explanation given by the prosecution is that Majha deceased and Muhammad Yousuf (P. W. 13) had joint cultivation. Apart from this explanation there is no earthy reason why a nephew of the deceased was sleeping with him on the night of the occurrence and not one of his own real brothers. We have, therefore, carefully scrutinised the evidence on the record to ascertain the correctness of this explanation. We find that the assertion that the deceased and Yousuf (P. W. 13) had a common cultivation is very doubtful. It is noteworthy that Raja P. W. has not mentioned in the F. I. R. that Yousuf (P. W. 13) had joined cultivation with the deceased. Raja P. W. has in fact let the cat out of the bag during his statement in the Court. He has stated during his cross-examination that "Yousuf P. W. son of Mallah has his cultivation separately from Majha deceased". Realising his mistake, however, he reversed himself in the next breath and stated that it was incorrect that Yousuf (P. W. 13) had a separate cultivation and a separate dhari of his own. This however, does not improve the situation. Even if it be assumed that Yousuf P. W. did not have separate cultivation it does not necessarily mean that he had a joint cultivation with the deceased. Similarly the fact that he did not have a separate dhari of his own dots rot go to show that he had a joint dhari with the deceased. Sikandar appellant produced a copy of the Register-Haqdaran for the year 1967-1968 (Exh. D. H.) wherein Yousuf and his brother Ghulam are shown as holding their land jointly. It would, therefore, be reasonable to presume that Yousuf (P. W. 13) would be having joint cultivation with his own brother Ghulam P. W. rather than with his uncle Majha deceased, who also had real brothers with whom it would be more natural for him to have joint cultivation. Had Yousuf (P. W. 13) been the son or a brother of the deceased, his presence at the dhari during the night would have been more natural and believable.
10. It would be useful to point out here that although Muhammad Yousuf has stated categorically that on getting up ho had soon the appellant taking, out the empty cartridge from the gun and reloading it in order to fire a second shot, yet no empty cartridge has been recovered from the spot. Yousuf P. W. has not alleged that the appellant has picked it up and carried it away. The absence. of the empty cartilage, therefore, completely contradicts the statement of Yousuf (P. W. 13) and proves that he was neither present in the dhari nor he saw the occurrence. Two shots were, of course; fired at the deceased but they may have been fired by the assailants from a double barrelled gun and therefore there may not have been need for reloading the gun. The story about reloading of the gun, which is not mentioned in the F. I. R., has obviously bean introduced because the gun that was ultimately available for the alleged recovery, at the instance of the appellant, was a single barrelled gun.
11. In view of the above discussion it, appears that the story that on the night of the occurrence Muhammad Yousuf (P. W. 13) had slept with the deceased, in his dhari, is not true and he has been introduced only with a view to strengthen the prosecution case by providing an eye-witness of the occurrence.
12. Assuming, however, that he slept at the dhari of Majba deceased on the fateful night we have to see if there was any possibility of his seeing the occurrence, or identifying the assailant inside the dhari which must have been quite dark at that hour. According to the prosecution case, Yousuf P. W. was able to see and identify the assailants in the light of the lantern (Exh. P. 12) which was lit at that time. We have to examine the correctness of this assertion because a lantern is conveniently introduced whenever the prosecution faces such difficulty. It-is noteworthy that Yousuf (P. W. 13) himself has made no mention of any burning lantern in his statement, although the entire prosecution case rests on its presence. It is in evidence that the lantern was recovered by Investigating Officer from inside the dhari. It was found to be hanging from a peg in the wall. It contained Kerosene oil as well as wick but that, in itself, is no indication that it was also `on' at the time of the occurrence. Its recovery, was attested by Haji Allah Ditta (P. W. 5) and- Majha (P. W. 6). Apart from the fact that the two recovery witnesses are closely related to the deceased. There is no indication in the recovery memo. or in the evidence of these two witnesses that the lantern was lit at the time of recovery nor have the witnesses stated that any one had put it off. Ghulam Qadir Sub-Inspector (P. W. 17) who recovered the lantern also does not. say that the lantern was burning at the time of recovery. Therefore, even if the recovery of the lantern is accepted, it does not advance the prosecution case: The lantern may indeed be present in the dhari but it has not been satisfactorily proved that it was `on' at the time of the occurrence. It is also against general practice of the villagers to keep their lanterns burning throughout the night. It was argued by the learned counsel for the State that the lantern was kept burning by Majha deceased out of fear of thieves etc. as according to Muhammad Yousuf (P. W. 13) there had been some cases of theft in the village. 1f that was so, why was the kundi inside the door of the dhari left open as stated by Yousuf' (P. W. 13).
13. In view of the above discussion we are of the view that the presence of Yousuf (P. W. 13) at the dhari on the night of occurrence is extremely doubtful and even if he was present, we feel that he would not have been in a position to see the occurrence or identify the assailants in the absence of any light in the dhari, as we have already held that the assertion that a lantern was burning in the dhari at the time of the occurrence has not been proved satisfactorily.
14. We may now consider the alleged recovery of gun (Exh. P. 13) from a sugarcane field at the instance of the appellant We do not think this recovery, even if believed, is of much importance as the gun has not, in any way, been connected with the offence in question. No empty cartridge was found on the spot with which it could have been matched. In any case the recovery itself appears to be doubtful. The gun is question is alleged to have been recovered at the instance of the appellant on 25th January 1968, but Muhammad Yousuf, an Advocate of Lyallpur, who has appeared as defence witness has stated that Nausher Khan D. W. 2, a maternal uncle of the appellant had come to him a. day earlier, on the 24th of January 1968, to get an affidavit attested, Mr. Muhammad Yousaf, D. W. 1., who is also an Oath Commissioner, attested the affidavit (Exh. P. G.) of Nausher Khan D. W. 2, to the effect that the latter was in possession of a single-barrelled. 12 bore gun; bearing No. 1904-K-64. Mr. Muhammad Yousuf has also stated that Nausher Khan actually showed the gun in question to him, which bore the number given above and corresponded with the description thereof given in the affidavit. The gun (Exh. P. 13) which is said to have been got recovered by the appellant on the 25th January 1968, from a sugarcane field bears the same number and corresponds to the same description. Nausher Khan has himself appeared as D. W. 2 and stated that Ghulam Qadir Sub-Inspector and Mukhtar Ahmad S. I., had put pressure on him to produce a gun so that it could be shown as having been recovered at the instance of the appellant. The learned trial Court has expressed the view that it improbable that the police should have asked a close relative of the appellant to produce the gun for recovery purpose. That may be so but we have no reason to disbelieve the statement of Muhammad Yousuf, Advocate, that he actually saw the gun in question with Nausher Khan one day prior to the alleged recovery. The fact that the affidavit attested to by Muhammad Yousaf Advocate was not to be used in any civil proceedings, is besides the point because we are not giving any finding as to its admissibility. We, therefore, feel that the recovery seems to be a fictitious one. Even otherwise, in view of the fact that the ocular evidence has been disbelieved, the recovery of the gun would be of no consequence.
15. In view of the above discussion we are of the view that tire prosecution has not been able to prove its case satisfactorily. As a result we accept the, appeal, set aide the conviction and sentence of the appellant and order his acquittal. The sentence of death awarded to him is not confirmed.
16. This also dispose of the reference.
Appeal allowed.