MUHAMMAD ARSHAD Versus THE STATE
KHALIL-UR-REHMAN RAMDAY, J.--- Muhammad Arshad and Sarfraz had been tried by the learned Sessions Judge of Gujrat for the murder of one Karam Ali. Through his judgment, dated 25-2-1991, the said learned Court acquitted Sarfraz accused but after finding Arshad guilty of the charge, convicted him under section 302, P.P.C. and punished him with death and a fine of Rs.50,000 or two years' R.I. in default of payment of fine. Half -If the amount of fine was directed to be paid to the heirs of deceased.
2. Murder Reference No.162 of 1991 seeks confirmation of the said sentence of death while Muhammad Arshad convict has filed Criminal Appeal No.19b of 1991 and challenges the above-noticed convictions and sentences recorded against him. Shana complainant has filed Criminal Revision No.405 of 1991 to call in question the acquittal recorded in favour of Sarfraz accused while the said complainant has also filed Criminal Revision No.188 of 1991 and prays for enhancement of the amount of fine/compensation. All these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 14-1.0-1990 at about Sargiwela in the house of Karam Ali deceased in Village Mianwal. about six miles from Police Station Kathiala Sheikhan of District Gujrat and had beers reported to Hakam Ali S.I. (P.W.12) at the Canal Bridge Mianwal at about 6-30 a.m. by Shana (P.W.10). The complainant had claimed that he was a resident of Village Mianwal in which village, three of his other mothers, including Karam Ali deceased, also resided. He had added that on the day of occurrence he went out of his house at about Sargiwela to answer the call of nature and while he was returning home and just as he had reached near the house of Karam Ali deceased, he heard the report of a fire-arm from the house of his said brother at which, he entered the said house where a lantern was lit and saw Arshad appellant armed with .12 bore gun and Sarfraz alias Sarwar armed with a Sota standing near the cot of the deceased in the courtyard of the house of Karam Ali deceased. He had alleged that in his sight, Arshad appellant fired a shot hitting the back of the deceased who was wing asleep on his cot and that on the alarm raised by the complainant, Sarwar alias Saroo (given up) and Sikandar (P.W.11) also reached there and witnessed the occurrence. The complainant had further disclosed that after the said assailants had runaway from the place of occurrence, they rushed towards Karam Ali but found him dead.
4. Divulging the motive for the murder in question, the complainant had stated that a daughter of Karam Ali deceased, namely, Mst. Ismat Bibi had been married to Muhammad Aqsad who was a brother of Arshad appellant who died about three years prior to the occurrence as a result of which, the said Mst. Ismat Bibi became entitled to the cash left behind by the said Aqsad and his pension. He had added that Arshad appellant was keen that Mst. Ismat Bibi who was the widow of his brother should be married to him but Karam Ali deceased had refused to accept this offer and that it was on account of this grievance that Arshad appellant had done the deceased to death.
5. Arshad appellant and Sarfraz accused were arrested on 16-10-1990 whereafter Arshad appellant had allegedly led to the recovery of a gun P.3 with two live cartridges P.4/1-2 on 28-10-1990 which articles had been seized vide memo. Exh.P.F.
6. When confronted with the prosecution case, Arshad appellant denied his involvement in the murder in question and attributed his implication to enmity.
7. The time of occurrence was. mentioned as Sargiwela. At the trial, the complainant had specified the time to be one Pehr after mid-night which would mean around 3-00 a.m. During the days of occurrence the sun rose at about 6-00 a.m. and thus the time of occurrence which was about three hours before sunrise would be a dark hour of the night. It was claimed by the eye-witnesses that a lantern was burning in the courtyard of the house of deceased and it was because of the said light that they had managed to identify the appellant and his co-accused. The learned counsel for the appellant argued that in a moonless night, it would not have been possible for the eye-witnesses to identify the assailants at the time of occurrence. This submission is not without merit.
8. The complainant resides in a house which is at least 5 Killas away from the house of the deceased. He-claims to have witnessed the occurrence as he had got up and had gone out of his house to answer the call of nature at about 3-00 a.m. which, as has been mentioned above, was at least 3 hours before sunrise. He was confronted, during the course of his cross-examination and admitted that there were vacant pieces of land available near his house where he could have eased himself rather than having gone to a place near the house of the deceased for the purpose. The complainant waking up at a rather odd hour of the night to answer the call of nature at which hour, the appellant had also decided to do the complainant's brother to death and then the complainant preferring a place near the house of his deceased brother rather than easing himself at a place near his own house, is too much of a coincidence and casts doubts about the presence of the complainant near the house of deceased and having witnessed the occurrence in question. The case of Sikandar P.W. who is the other eye-witness of the present occurrence is the case of another coincidence. His house is at a distance of about 2 Killas from the house of the deceased. On the night of occurrence he also happened to have received the call of nature at about the same time at which Shana complainant had received such a call and at which time, the appellant had allegedly decided to kill the deceased. The prosecution story is replete with coincidences. It has yet another coincidence which has crept into the same through which a son of the deceased and his three daughters who normally resided with him happened to be absent from the house of the deceased on the fateful night, leaving the deceased alone to face the assault.
9. In view of these coincidences, the learned counsel for the appellant was justified in pleading that the ocular testimony offered by the prosecution in the present case could not be believed until the same was corroborated by evidence emanating from unimpeachable sources.
10. The complainant claimed to have been attracted to the place of occurrence after the first shot had been fired by the appellant. He claims to have witnessed the second shot which had been fired by Arshad appellant and according to him, these were the only two shots fired in the occurrence. According to the post-mortem examination of the deceased, six injuries had been found on his person out of which, two were wounds of exit thus leaving four of these injuries as the Wounds of entry. Only two of the injuries i.e. on the right scapula and the right hip bone had blackening around them whereas, the other two wounds of entry i.e. one on the back of right hand of the deceased and the other on the left upper arm of the deceased had no blackening around the same. An examination of the seats of the said injuries reveals that there was a possibility of injuries Nos.l and 2 having been the result of the same shot but there was no possibility of the injuries on the back of the right hand and on the inner side of the left upper arm being the result of the same fire. It thus appears that at least three shots had been fired at the deceased as against two being claimed by the complainant. It further transpires that these shots had not been fired from the same distance. There is yet another aspect of this case. The complainant claimed to have been attracted to the spot having heard the report of a fire-arm yet he claims that when he reached the place of occurrence, his deceased brother was lying asleep on the cot to receive the second shot. This being so, we find it difficult to hold that medical evidence lends the kind of corroboration to the ocular testimony which is required in the present case a The medical evidence in fact appears to be contradictory to the eye witness account.
11. A gun had allegedly been recovered at the instance of Arshad appellant but in the absence of any crime empties having been recovered from C the spot, the recovery of this gun offers no corroboration to the ocular testimony.
12. It is only the complainant who had talked about the motive for the murder in question, as alleged. There is no proof' of the sank which could have lo generated a belief in our minds that the same was the kind of motive which could have led to the murder of the deceased. Needless to mention here that the abduction of the wife of the deceased as also the matrimonial disputes of another daughter of deceased, as also the dispute of a house of the deceased have been pleaded by the defence to indicate that there could be some other persons also who could have had some reasons to eliminate the deceased.
13. In view of what has been noticed and discussed above, we are of the opinion that the prosecution case is not free from all doubts and thus the conviction recorded against Arshad appellant could not be sustained. Consequently, Criminal Appeal No.190 of 1991 filed by Muhammad Arshad appellant is allowed and the impugned conviction and sentences recorded, against him under section 302, P.P.C. are set aside. He is acquitted of the E charge under section 302, P.P.C. and shall be set at liberty forthwith if not, required to be detained in any other case.
14. For the reasons abovementioned, we do not find any force in Criminal Revision No-188 of 1991 and Criminal Revision No.405 of 1991 filed by the complainant and these two petitions are, therefore, dismissed.
15. Murder Reference No.162 of 1991 is answered in the' negative as the sentence of death awarded to Arshad appellant has since been set aside.
N.H.Q./M-1929/L ????????????????????????????????????????????????????????????????????????????? Appeal accepted.