ZAFAR HAYAT vs THE STATE

' SALEEM AKHTAR, J.---The appellant with the leave of the Court has challenged the judgment of the learned Judges of Division Bench of the High Court, whereby his death sentence under section 302, P.P.C. Was altered to imprisonment for life and with this modification the appeal was dismissed.

Sher Muhammad complainant has also filed Cr. Petition No, 9-L of 1992 seeking enhancement of the sentence of the appellant which is to be heard alongwith this appeal.

2. According to the F.I.R. On the night between 20th/21st April, 1987 at about 12/1.00 midnight Sher Muhammad complainant, his son Muhammad Nawaz deceased, complainant's brother Dost Muhammad and Ghulam Yasin returned from Khoshab by a bus. From the bus-stand Dharema they went to their Chak on foot. While they were passing through the street Zafar Hayat the appellant armed with a gun suddenly confronted them and after raising Lalkara that he would take revenge for the insult, fired at Muhammad Nawaz who died at the spot. As to the motive, it was alleged that about 4/5 days before the incident Muhammad Nawaz had reprimanded the appellant on his having illicit relation with Mst. Nusrat wife of Mian Muhammad who was residing in the neighbourhood. The appellant took it as an insult and had stated that he would avenge for it.

The prosecution had examined two eye-witnesses namely Sher Muhammad complainant and Ghulam Yasin P.W. 8 while Dost Muhammad was given up as unnecessary.

3. The learned counsel for the appellant contended that it was an unwitnessed occurrence having taken place during dark hours of the night and that the presence of the witnesses was not established. The first witness is Sher Muhammad, the father of the deceased. He had reiterated the facts stated in the F.I.R. In cross-examination he has stated that he had gone to Khoshab to purchase a bus for Muhammad Nawaz who was demanding it. For this purpose he had leased out his land for 2 years for Rs,27,000 and the bargain was struck with one Rab Nawaz of Khushab for purchase of bus for a sum of Rs,2,00,000 and he had paid advance money of Rs,10,000 at about 9 p.m. In the night. He however,- did not obtain any receipt for such advance payment nor any agreement was executed between the parties for purchase of the bus. In these circumstances the learned counsel contended that the reason given for going to Khushab and returning back late in the night is merely a manipulation of facts and in fact he was not present at the time of incident and had not witnessed the occurrence. While challenging the testimony of P.W. 7 it was further contended that he had made improvement in his statement as in the F.I.R. It was not stated that there was a bulb on at the place of incident but such statement had subsequently been made.

From the record it seems that such bulb was not taken in possession by the police during investigation and, therefore, this aspect of the case does not find support from any independent material. The incident occurred just near the house of the appellant and the possibility that after the incident P.W. 7 may have come out of his house cannot be ruled out. In these circumstances, the testimony of P.W. 7 becomes doubtful. In order to accept his testimony it should be supported by a strong corroborative evidence which is not available on record. In such circumstances when the presence of an eye-witness has been challenged the medical evidence though in conformity with the statement made by him can hardly be treated as a corroborative piece of evidence to support his testimony.

4. As regards P.W. 8 the admitted fact is that he is a chance witness. He lives about 18 km away and met P.W. 7 at the bus-stop in the late hours and decided to accompany him to his village to enquire about his U.S A. Visa from one Raja Abbas whom he had paid money for that purpose which according to P.W. 8 was returned by him. He had also spoken about the light of the bulb in which he had identified the appellant. From his statement it is clear that the purpose for visiting Chak No, 58 alongwith P.W. 7 and the deceased at the dead of night is not at all convincing. There is no evidence to corroborate his testimony and, therefore, it has to be excluded from consideration.

5. The learned counsel contended that the story of the prosecution if taken in the light of the site plan destroys its veracity. The learned counsel further contended that if the deceased as alleged was coming from West to East he would have crossed the door of his house when he was shot by the appellant. He further contended that there was no need for going that far and that the deceased on being threatened could not have run forward towards the appellant. This contention has no merit. In the site plan the door has not been described except that "D" has been written without specifying anything about it. The deceased seems to have been fired at from the back as suggested by the seat of injuries on his body. However, the question is whether the appellant was the person who fired at him.

6. The learned counsel referring to the medical evidence contended that ' the injuries are alleged to have been caused from the back but from the medical evidence it is clear that some injuries have been caused from the front and therefore there is a contradiction which should result in the finding in favour of the appellant. We are not impressed by this argument as most of the injuries are on the back side of the deceased. The learned counsel has referred to Injuries Nos. 2, 3 and 4 in support of his contention. Injury No, 2 was described as an abbrasion on the front of the left upper arm as an exit wound of Injury No,

8. According to the learned counsel words "exit wound" were not mentioned in the post-mortem report. However, from the chart prepared by the doctor P.W. 4 Injury No, 3 is at such a position on the arm that while a person is running or walking it could be caused by a fire- arm shot from behind;

7. We have observed that P.W. 8 is a chance witness and has not convincingly explained his presence at that odd hour. The explanation offered by him is not at all convincing. P.W. 7, as discussed above, cannot be believed without any strong corroborative evidence. The motive has been discarded by the High Court and we have no reason to disagree with it. The recovery of gun cannot be relied upon as it was not sent for examination of the Fire Arms Expert. We, therefore, allow the appeal and acquit the appellant. He shall be released forthwith unless required in any other case. For these reasons Cr. Petition No, 9-L of 1992 is dismissed.