' DOST MUHAMMAD KHAN, J.---At a trial held by the learned Additional Sessions Judge-I, Abbottabad appellant No,1 Ayaz Khan and appellant No,2 Mst. Nazia Bibi were found guilty for the murder of Hameed Khan son of Muhammad Aslam resident of Mirpur Kalan. Appellant No,1 has been sentenced to 25 years' R.I. Under section 302-C, P.P.C. With a fine of Rs,20,000 to be paid as compensation to the L.Rs, of the deceased under section 544-A, Cr.P.C. While appellant No,2 Mst.
Nazia Bibi has been sentenced to 10 years' R.I. Under section 302-C, P.P.C. She has been further convicted and sentenced under sections 420 and 468, P.P.C. To 5 years' R.I. With a fine of Rs,20,000 which is to be recovered and paid to the L.Rs, of the deceased under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Was given. Sentences of the lady accused were directed to run concurrently.
2. Muhammad Nazir, A.-S.I. (P.W.8) on getting information on 19-6-2001 from one Abdul Qayyum not produced at the trial went to the house of Jamal Khan in village Dheri where he found the dead body of Hameed son of Muhammad Aslam lying inside the house of Jamal Khan. On local investigation he came to know that deceased Hameed entered the house of Jamal at 10-30 a.m.
And wanted to abduct Nazia Bibi accused daughter of Jamal Khan forcibly, on which Wajida Bibi and Rabia Bibi the other daughters of Jamal Khan raised alarm on which appellant Muhammad Ayaz was attracted who in the efforts to rescue Nazia Bibi caught hold of the deceased but the deceased who was armed with .30 bore pistol did not abandon his criminal act and during the struggle Ayaz snatched the pistol from the deceased, fired two shots at him who was hit and died on the spot. Murasila and inquest report of the dead body were prepared, the dead body was then dispatched to mortuary for post-mortem examination and on the Murasila case F.I.R. No,453 was registered on the same date. From the spot two crime empties .30 bore pistol were recovered.
Through memo. Exh.P.W.1/12 Identity Card Exh.P.3, pension book Exh.P.4, one purse Exh.P.5. Rs,700 Exh.P.6, a calculator Exh.P.7, golden plus capsules Exh.P.8 were recovered from the dead body. The blood and the two empties were secured through memo. Exh.P.W.1/1. He then handed over investigation to S.H.O. Shaukat Zaman (P.W.7) on the spot who received blood-stained clothes of the deceased and took the same into possession vide memo. Exh.P.W.2/1 along with a spent bullet and one phila containing stomach contents of the deceased sent by the Doctor. He arrested accused Ayaz on 22-6-2001 who while in handcuffs led him to the place of occurrence and pointed out the site plan position of the crime spot. Pointation memo. Is Exh.P.W.2/2. At the instance of the said accused a .30 bore pistol Exh.P.11 (crime weapon) was also secured lying under the bedding in the house of the said Jamal vide memo.
' Exh. P. W .2/3 . Vide application Exh.P.W.7/1 the empties and crime pistol were sent to the Arms Expert who returned a positive report Exh.P.W.7/2.
3. During the course of investigation Mst. Parveen Bibi (P.W.3) widow of the deceased submitted an application to the I.O. Disclosing that her husband has been murdered by Ayaz, Mst. Nazia the ' appellants and acquitted accused Mst. Rabia in a well calculated manner. Explaining the backdrop, she divulged that 13/14 years prior to the occurrence she married the deceased while the two ladies distantly related to her husband used to visit their house at Mirpur. The deceased was a retired personnel, of Pak. Army and at that time he was a truck driver and that both the lady accused persuaded the deceased to leave his wife at Mirpur and to settle at Dheri Maira along with children who agreed and settled there with children and that the amount of pension and other benefits received by the deceased were misappropriated by the two ladies through deceitful means after establishing illicit relation with him and when the deceased became penniless then they devised criminal plan to eliminate him, thus he was murdered for this reason. On the same line statement of Mst. Nooreen Bibi daughter of deceased was recorded under section 161, Cr.P.C.
Whereafter the I.O. Applied to the local registration office to ascertain as to why the I.D. Card recovered from the dead body mentions Mst. Nazia Bibi as a daughter of the deceased which was not the fact in reality thus collected Form A, Form B and also recorded the statement of Khalid Rehman Jadoon (P.W.5) District Registrar to that effect and collected the documents Exh.P.W.5/1 and 5/2 showing the tampering made therein and the inconsistent entries as found therein. On the basis of these facts, the I.O. Also incorporated sections 419, 420, 468 and 471, P.P.C. Into the F.I.R. And final charge-sheet. After completion of investigation the prosecution filed charge-sheet in the trial Court where in all 9 witnesses were produced in support of its case and after examining the accused under section 342, Cr.P.C. And recording the statement of Ayaz appellant on oath under section 340(2), Cr. P C . The impugned judgment was passed. The appellants have questioned their convictions and sentences through the instant appeal.
4. Arguments heard and record perused.
5. Admittedly, there is no ocular account in this case and the fate of the entire case depends upon the circumstantial evidence brought on record.
6. The story of the F.I.R. By itself appears to be intriguing one because while recording the same on the spot P.W.8 Muhammad Nazir, A.S.-I. Has not disclosed the source of his knowledge/ information about the occurrence which he has incorporated therein. Only a passing reference has been made to one Abdul Qayyum conveying information to him but he was not made prosecution witness nor he was produced at the trial.
' Keeping in view the entire evidence and the facts discussed above, to sum up the prosecution case rests on the following items of evidence:---
(i) Deceased Hameed Khan was found murdered in the house of Jamal Khan the father of Mst.
Nazia Bibi accused-appellant having stamps of fire-arm injuries.
(ii) The discovery of crime pistol at the instance of appellant Ayaz ]Khan from the same house and two crime empties of the same, bore found on the crime spot.
(iii) The positive report of the Firearms Expert about the crime - empties having been fired from the crime pistol.
(iv) The motive for the crime disclosed by the widow and daughter of the deceased at a later stage of investigation.
(v) The proclamation of (P.W.8) Nazir, A.S.-I. In the shape of Murasila report that the deceased was murdered as he wanted to abduct Mst. Nazia Bibi appellant when Ayaz appellant intervened to free her from his clutches and in the ensuing brawl and grappling the pistol was snatched by appellant Ayaz from the deceased and fired two shots at
(vi) The collection of the alleged fake and forged identity card of the deceased showing Mst. Nazia Bibi appellant as his daughter.
7. The prosecution evidence is completely silent on the point as to where was Jamal the owner of the house at the fateful time who was the father of Nazia Bibi appellant No,2 which is a begging question for which the prosecution could not offer any explanation. From the contents of F.I.R.
Which has not been disowned till the end of the trial, it is the stand of the prosecution that the deceased had entered the house of Jamal father of Nazia Bibi appellant and made physical attempt to abduct her on gun-point and during that appellant No,1 Ayaz came to her rescue but when the deceased did not drop his idea he was killed. This story is based absolutely on hearsay evidence because none has been produced to confirm it at/the trial but once the prosecution has set up the same it shall abide by it because during the course of investigation no legal evidence was brought on record to dislodge the said theory in any manner. The fact that the deceased had made sexual assault on appellant Nazia Bibi and took practical steps to abduct her for satisfaction of sexual lust gets substantial support from the statement of Mst. Parveen (P.W.3) widow of the deceased and Mst. Nooreen Bibi (P.W.4) daughter of the deceased. They have in unequivocal words disclosed that the deceased was maintaining illicit relation both with Mst. Nazia Bibi appellant No,2 and the acquitted accused her sister namely Rabia Bibi.
In the recovery memo. Mentioned above from the pocket of the dead body capsules by the trade name "Golden Plus" were also recovered. The nature of the,medicine and its potency has not been probed into by the Investigating Officer rather it was suppressed but as commonly noticed such type of drugs are used for sex stimulation as a tonic giving rise to an inference that visit of the deceased to the crime house was not with any other object but either to commit sexual intercourse with Mst. Nazia Bibi or for that matter Rabia Bibi or after maintaining such laison of illicit intercourse with both the sisters, the deceased had lastly decided to take away Nazia Bibi permanently with him for illicit relation. Whatever the true position might be the deceased was not related within the prohibited degree to the two ladies and in the absence of any male member of the family his intruding into the crime house gives rise to the only inference that the visit was with a definite purpose as suggested and was not out of courtesy. When the prosecution case is judged from this angle then judicial mind would remain disturbed about the correctness of the charge levelled by the prosecution particularly the widow and daughter of the deceased against the appellants who are admittedly not eyewitnesses. True that when the prosecution and defence both come out with a twisted story suppressing true facts then it becomes the duty of the Court to act on the third probable theory as laid down by the apex Court in case "Syed Ali Bepari v. Nibaran Mollah and others" PLD 1962 SC 502 but the case of the prosecution is pregnant with such grave doubts making it absolutely difficult for the Court to discover the truth as to what really happened preceding the actual occurrence and what role was played by the appellants in the commission of the crime. In this regard we have before us only the F.I.R. Story based on hearsay evidence and the statement of Mst. Nazia Bibi appellant made in reply to question No,4 while examined under section 342, Cr.P.C.
Which is to the following effect:--- "Ans.--- It is wrong. In fact on the day of occurrence deceased Hameed Khan while armed with pistol entered the house and wanted to abduct me forcibly for purpose of satisfying his lust in the meantime, my cousin namely Abdul Qayyum wanted to rescue me and tried to snatch the pistol from Hameed Khan which in the meantime went off with which Hameed Khan was injured on his leg, in the meantime, Police arrived at the spot I narrated the occurrence to Muhammad Nazar, A.S.-I. But as Abdul Qayyum was a minor aged about 17 years he was let off by the said A..S.-I. And instead made Muhammad Ayaz our maternal uncle as accused in the present case. This whole was the result of bad intention of Hameed Khan and is high-handedness despite the fact that I was of the age of his daughter. During the search of the deceased Gold Plus Capsule Exh.P.8 were recovered which show his tendency of sexual lust".
8. It is a cardinal principle of law and justice that capital punishment can be awarded only on the basis of unimpeachable, credible and believable evidence which is almost missing in the instant case.
' The motive part of the case instead of supporting the prosecution case extends corroboratory support to the defence plea to a considerable extent, therefore, it is of no help to the prosecution.
9. The next item of evidence is the recovery of crime pistol at the instance of appellant Ayaz Khan.
He was arrested on the same day from the crime house and was taken to the police station. As a murder crime had taken place in the crime house and in the F.I.R. Ayaz was charged for firing with a pistol at the deceased snatched from the latter, thus in ordinary course and in all probabilities the Investigating Officer must have enquired about the crime pistol and for that he was supposed to have conducted thorough search of every nose and corner of the crime house to collect incriminatory evidence in the shape of the crime pistol and search for that must have been conducted but it was not found. Thus its recovery at subsequent stage renders the same highly doubtful. Moreover, when there is no ocular account of any nature then the defence plea contained in the statement of Mst. Nazia is to be taken and considered as a whole. According to her, Abdul Qayum her minor cousin committed the murder of the deceased to prevent him from abducting Mst. Nazia Bibi and not Ayaz Khan appellant. It is squarely mentioned in the F.I.R. That it was this Abdul Qayum on whose information Nazir A.S.-I., the first Investigating Officer went to the spot and gained knowledge about the crime. This witness Abdul Qayum was deliberately kept aside and was not interrogated, nor he was made a prosecution witness rendering the investigation extremely dishonest because vital aspect of the matter having direct bearing on the actual crime has been muffled. The house from which the crime pistol was recovered belongs to Jamal Khan and not Ayaz Khan appellant is another doubtful aspect reflecting the recovery. The vital question is as to whether the crime pistol was used by Ayaz Khan or it was Abdul Qayum is also a serious and debatable question.
10. The subsequent investigation wherein fake identity card was recovered from the dead body and Form A as well as Form B collected from the registration office would in no way further the prosecution case on the charges under sections 420/468, P.P.C. In the absence of any evidence to show that Mst. Nazia Bibi was either the author of the entries or that she had abetted the making of the entries particularly when her thumb-impression or signature/handwriting have not been obtained and sent to the expert for comparison with the questioned documents.
11. The learned trial Court has acted in disregard of settled principle of law and justice by convicting the appellants on capital charges merely on the statement of Mst. Nazia Bibi recorded under section 342, Cr.P.C. Being inconsistent with the version of the F.I.R. The F.I.R. Was not lodged by her nor she was attesting witness to the same, therefore, the alleged inconsistency legally cannot be attributed to her. No rule of law permits that on a capital charge an accused can be convicted on such like statement recorded under section 342, Cr.P.C.
12. In the case of circumstantial evidence it is more than settled principle that to exclude every possibility of false implication such evidence must be of a very high degree and all the links shall make one chain which on one end touches the dead body while the other end connects the neck of the accused with the commission of the crime leaving nothing for speculation. The instant case is based on weakest circumstantial evidence and while keeping in view the peculiar features of the case and the role of the deceased who intruded into the house of the lady accused without any reason and just cause, his mere entry therein amounts to a criminal trespass and the owners thereof were having every right to expel him and for that matter in case of threat to life to kill him, therefore, the prosecution has failed to reasonably connect the accused-appellants with the commission of the crime in any manner whatsoever.
13. For what has been discussed above, this appeal is allowed. The convictions and sentences awarded to the appellants are accordingly set aside. Both the appellants are accordingly acquitted of the charges levelled against them and they be set free forthwith if not required in any other case.