' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellant was tried by the Sessions Judge, Mianwali for the murder of one Ali Muhammad in case F.I.R. No,7 of 1998 dated 11-1-1998 under section 302, P.P.C.
Registered at Police Station Harnoli who vide judgment dated 30-11-1998 convicted appellant under section 302(b), P.P.C. And sentenced him to death. Appellant was also directed to pay Rs,1,00,000 as compensation to the legal heirs of the deceased or in default of payment of fine it was ordered that the same would be recovered as arrears of the land revenue and would be a liability against the person and property of the convict. Appellant was also convicted under section 449, P.P.C. And sentenced to 10 years' R.I. With fine of Rs,25,000. The learned trial Court also extended the benefit of section 382-B, Cr.P.C. In'favour of the appellant.
2. Being aggrieved of the aforesaid judgment, the appellant has filed the instant appeal. The trial Court has also sent a reference i.e, Murder Reference No,51 of 1999 for confirmation of the death sentence of the appellant. This judgment will dispose of both the matters.
3. Facts of the case are that on 11-1-1998 one Ghulam Rasool son of Abdul Aziz reported to the police at Police Station Harnoli that at about 4-30 a.m. He woke up to keep fast when he heard the cries from the house of his neighbour namely Ali Muhammad a street vender. He rushed to the house of Ali Muhammad and came to know from Mst. Saima aged about 15/16 years daughter of said Ali Muhammad that on the preceding night she alongwith his father and sister Mst. Naeema aged about 7/8 years slept in the room at about 9-00 p.m. At about 4-15 a.m. Mst. Shamim a neighbour of the said Mst. Saima awoke her to arrange for the food for fasting. In response to the said call she (Mst. Saima) went to the kitchen and in the electric light saw the dead body of her father Ali Muhammad lying in a pool of blood. Statedly there were sharp-edged weapon injuries on the throat, chest and other parts of the body of the deceased.
' Upon the said information F.I.R. Exh.P.A. Was registered by Malik Maula Bakhsh,
4. In order to prove the charge against the appellant prosecution produced 13 witnesses.. Ghulam Rasool P.W.1 (complainant) while supporting the prosecution case as set up in the F.I.R. Deposed before the trial Court. Soanda P.W.2 was present when the blood-stained earth was taken into custody by the police from the stop. He also attested the recovery memo. In this regard. Mukhtar Ahmed P.W.3 identified the dead body at the time of post-mortem examination. He was also present when the last-worn clothes of the deceased were handed over to the Investigating Officer by a Constable Rana Muhammad Anwar P.W.4 deposed that on the night of occurrence at about 11-00 p.m. When he was passing by near the house of the deceased saw Riaz appellant who was frightened and perturbed. His statement in this regard was recorded by the police on 16-1-1998 (i.e, after six days of the occurrence). Mst. Saima P.W.5 while supporting the prosecution case as set up in the F.I.R. Also added that on the night of occurrence at about 6/6-30 a.m. Appellant came to their house and brought `Halva' for them and while leaving asked her father that he (accused) would come at 9-00 p.m. After Taravih prayer to arrange a meeting of the deceased with a cart driver. Statedly the deceased (father of the witness) waited for the accused for about 5/10 minutes' at the appointed time. The accused did not turn up and ultimately the deceased went to asleep.
Statedly in fact Muhammad Riaz came to their house at night and hid himself in the kitchen so that he could commit rape with her but unfortunately her father saw the appellant in the kitchen and the appellant committed his murder. She also stated that about one week before the occurrence the accused appellant visited her house when she was alone. She sensing bad intention of the appellant pretended that her maternal aunt was sitting inside the room and thus managed to save herself. Statedly in fact the accused wanted to develop illicit intimacy with her. Habir ur Rehman P,W.6 deposed that after 1-1/2 months of the occurrence appellant confessed his guilt before him when he was sitting at a wood stall situated in front of the house of the deceased. Alongwith one Noor Muhammad. This witness was also present when appellant led to the recovery of bloodstained Churri and his clothes. He also attested the recovery memos. In this regard. Abdul Majeed Qureshi P.W.7, Draftsman, prepared site-plans Exh.P.F. And Exh.P.F/1. Muhammad Altaf, Constable P.W.8 took the parcels (case property) to the office of the Chemical Examiner and delivered the same intact. Raj Mir, Head Constable P.W.9 kept the parcels (case property) in the Malkhana for safe custody and later on delivered the same to the Constables for onward transmission to the relevant offices. Liaqat Ali, Constable P.W.10 took the dead body to the mortuary for post-mortem examination and after the same handed over the last-worn Clothes of the deceased before the Investigating Officer. Faiz Hameed, Head Constable./P.W.11, handed over the parcels to Muhammad Altaf, Constable for onward transmission to the concerned office. Dr. Tahir Shafique P.W.12 conducted the post-mortem examination on the dead body of Ali Muhammad and observed six incised wounds. Malik Maula Bakhsh, S.-I./P.W.13 being the Investigating Officer of this case conducted the investigation as narrated earlier.
' Learned D.D.A. Tendered in evidence reports of the Chemical Examiner Exh.P.N. And Exh.P.O., reports of the Serologist Exh.P.P. And Exh.P.Q. And closed the case of the prosecution.
5. Learned trial Court also examined appellant under section 342, Cr.P.C. While answering to the question "why this case against you and why the P.Ws. Have deposed against you" appellant replied as under:-- "Shamshad, real brother of the deceased permanently resided in Sahiwal, District Sargodha. He demanded the hand of Mst. Saima, P.W. For his son Khalid. The deceased dismissed this request of Shamshad, because aforesaid Khalid was already married and was a man of bad character.
Shamshad occupied the house of the deceased located in Sahiwal and also planned to usurp the landed property of his deceased brother situated in Hernoli, District Mianwali. On account of these disputes the relations between the deceased and aforesaid Shamshad were strained. After dismissal of the proposal for the hand of Mst. Saima, P.W. Shamshad became inimical towards the deceased. Anwar P.W. Developed illicit intimacy with the second wife of the deceased, namely Mst.
Gulzaran: The relations between Anwar, P.W. And the accused had been strained for the last about one year before this incident on account of a dispute of drainage of water. Aforementioned Khalid and Anwar conspired the killing of Ali Muhammad, deceased in order to achieve their respective objects. I was produced before the police on third day of the occurrence by one Rana Islam Din son of Taj Muhammad. The police did not show my arrest in papers dishonestly. The investigator in connivance with the complainant party fabricated different pieces of circumstantial evidence against myself.
' After this occurrence aforementioned Khalid divorced his first wife Mst. Robeena daughter of Qasim Ali resident of Hjernoli on 30-3-1998 and then contracted marriage with Mst. Saima, P.W. On 4-11-1998."
' Appellant neither made any statement under section 340(2), Cr.P.C. Nor produced any evidence in his defence. However, he tendered in evidence certified copy of the Private Complaint No,71 of 1998 titled "Mst: Saima v. Muhammad Riaz" Exh.D.D., certified copy of the statement of the counsel for the complainant dated 8-10-1998 Exh.D.E. And certified copy of the final order of the trial Court dated 8- 10-1998 passed in the said private complaint Exh.D.F.
' The learned trial Court after appraisal of evidence vide judgment dated 30-11-1998 convicted and sentenced the appellant as narrated earlier.
6. Learned counsel for the appellant while challenging the legality of the impugned judgment submitted that Ali Muhammad deceased was done to death during the dark hours of the night by some unknown persons but later on appellant had been involved in this case malafidely by the investigating agency in order to show the efficiency. It was argued that the entire evidence relied upon by the prosecution to involve the petitioner was tailored during the investigation and the close relatives of the deceased were made witnesses just to strengthen the prosecution case.
Argued that the discrepancies in evidence of said witnesses had shattered the credibility of the prosecution case. Further argued that the deceased had about 14 injuries on his person and such a large number of injuries could not be caused by a single accused and that this fact top had shattered the credibility of the prosecution case. It was lastly argued that the learned trial Court had erroneously convicted and sentenced the appellant in the circumstances of this case.
Conversely, learned counsel for the State while supporting the impugned judgment vehemently opposed the instant appeal.
7. Heard. File perused.
8. The entire case of the prosecution is in the form of circumstantial evidence i.e, Wajtakar (deposed by Rana Muhammad Anwar PW.4), Extra-judicial confession and recovery of crime weapon (deposed by Habib-ur-Rehman P.W.6) and the motive for the commission of this offence (deposed by Mst. Saima P.W.5).
' Statedly on the night of occurrence at about 11 p.m. Appellant was seen in perplexed and frightened condition near the house of the deceased by Rana Muhammad Anwar P.W.4. At the relevant time this witness after alighting from the bus was going towards his house. Admittedly the house of this witness is not situated in the same lane where the house of the deceased is situated and a separate lane from his house also leads towards the bus stop. In this view of the matter, there was no occasion for this witness to pass near the house of the appellant during the odd hours of the night. Statedly on the next morning he (Rana Muhammad Anwar P.W.4) after saying his morning prayer left for Lahore through a bus at about 4-15 a.m. It is clear from the statement of Ghulam Rasool P.W.1 that by that time all the neighbours had come to know about the occurrence and the people had already started pouring in at the place of occurrence. If Rana Muhammad Anwar P.W.4 had gone to the bus stand at 4-15 a.m. Then he must had come to know about the occurrence on the same day. According to the record the statement of this witness was recorded on 151-1998 i.e, after four days of the occurrence. In the circumstances of the case the delay in recording the statement of this witness is also a strong factor to doubt the credibility of this witness.
' Another piece of evidence relied upon by the prosecution to connect the appellant with the commission of this offence is in the form of extra-judicial confession of the appellant and recovery of the blood-stained Chhurri and clothes of the appellant. In support of this piece of evidence Habib-ur-Rehman P.W.6 deposed before the trial Court. Statedly after 1-1/2 months of the occurrence when he alongwith one Noor Muhammad were sitting at the wood stall in front of the House of the deceased, appellant approached him and thereafter he confessed his guilt and asked for his help for a compromise with Mst. Saima (daughter of the deceased). Admittedly after his confession, the witnesses did not make any attempt to apprehend the accused nor they made statements before the police on the same day. The statement of this witness with regard to the extra-judicial confession of appellant was recorded on 26-2-1998 and there is no plausible explanation on the record as to why his statement was not recorded on the same day. This witness was also present when the appellant also led to the recovery of Churri P.6 and bloodstained clothes from his house. Admittedly the place of recovery was not in the exclusive possession of the appellant and the same place was also occupied by the other family members of the appellant.
During the recovery proceedings no neighbour was made to join the recovery proceeding and section 103, Cr.P.C. Was never complied with during the investigation.
' The recovery of blood-stained Churri and clothes was made after 1-1/2 months of the occurrence.
It is repellent to common sense that an accused would keep these articles with him stained with blood for such a long time when he had ample opportunity to wash away the blood stains.
'The last piece of evidence relied upon by the prosecution is the motive for the commission of this offence as narrated by Mst. Saima (P.W.5). Statedly appellant wanted to develop illicit relations with this witness and on the night of occurrence he had entered into the house of the deceased with the same intention when the father of the witness woke up and the appellant in order to remove him from the scene committed his murder. The motive for this occurrence was never narrated by Mst. Saima to Ghulam Rasool complainant who had lodged the F.I.R. Upon the information conveyed to him by this witness. It seems that this part of the prosecution case was tailored by the agency during the investigation under some legal advice just to strengthen the prosecution case. The truthfulness of this witness as well as the above mentioned witnesses also become doubtful from the bare perusal of Exh.D.D i.e, the private complaint filed by Mst. Saima P.W.5. The entire complexion of the prosecution case has been changed in the said complaint. All the witnesses i.e, Rana Muhammad Anwar, Habib-ur-Rehman and Mst. Saima have been shown as eyewitnesses of the occurrence. It is interesting to note that later on this complaint i.e, Exh.D.E., was withdrawn by the counsel for the complainant on 8-10-1998 on the pretext that this complaint would damage the challan case.
' The crux of the above discussion is that the case in hand is nothing but a pack of lies and the prosecution has miserably failed to prove the charge against the appellant. Accordingly this appeal is allowed. The conviction and sentence of the appellant is set aside. He shall be released forthwith if not required to be detained in connection with any other criminal case.
' Murder reference is answered in the negative.