' ASIF SAEED KHAN KHOSA, J.--- Ghulam Abbas and Mst. Faridah Bibi appellant were convicted for an offence under section 302(b)/34, P.P.C. Vide judgment dated 17-7-1999 handed down by the learned Sessions Judge, Sargodha whereby Ghulam Abbas appellant was sentenced to death and Mst. Faridah Bibi appellant was sentenced to imprisonment for life and both the appellants were ordered to pay a sum of Rs,30,000 each to the heirs of Ahmad Yar deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months each. The appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,904 of 1999. Sher Muhammad complainant has also filed Criminal Revision No,459 of 1999 before this Court seeking enhancement of the sentences passed against the appellants by the learned trial Court. We have heard both these matters together along with Murder Reference No,348 of 1999 seeking confirmation of the sentence of death passed against Ghulam Abbas appellant by the learned trial Court. We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Sher Muhammad complainant was running a poultry shop in Manzoor Hayat Colony, Bhalwal and was residing at a house in Zahoor Hayat Colony, Bhalwal whereas his brother namely Ahmad Yar, who used to work as Head Fireman in Fire Brigade, Bhalwal, used to reside in a different Block of the same Zahoor Hayat Colony. In the evening of 22-4-1998 the complainant's brother namely Ahmad Yar sent for the complainant through their nephew namely Nasir Abbas who had come to see Ahmad Yar. The complainant went to the house of Ahmad Yar whereat the complainant, his brother namely Ahmad Yar and their nephew namely Nasir Abbas took dinner together and kept talking to each other till late at night.
Ahmad Yar told the complainant and Nasir Abbas that one Sajid Shah who was also employed in the Fire Brigade had developed bitterness against Ahmad Yar and was busy in submitting various applications against him and also that Sajid Shah was a dangerous person who could even kill Ahmad Yar or get him killed or even to get his child abducted. According to Ahmad Yar he had become quite careful and had also asked his wife namely Mst. Faridah Bibi appellant to be careful in that regard. Thereafter Ahmad Yar and his wife namely Mst. Faridah Bibi appellant went to sleep in the Baithak of Ahmad Yar's house whereas the complainant and Nasir Abbas went to sleep in the Verandah of that house. At about 1-15 a.m. On 23-4-1998 the complainant woke up after hearing some noise emanating from the Baithak and he awoke Nasir Abbas as well. They then switched an electric bulb in the Verandah on and went towards the Baithak and saw two unknown persons armed with a gun .12 bore each aiming their guns at Ahmad Yar and Mst. Faridah Bibi appellant.
Upon the complainant and Nasir Abbas's approach one of the culprits aimed his gun at them and warned them not to come near whereas the other culprit fired a shot at Ahmad Yar hitting him on the left side of his front chest. The same culprit then fired again but that fire only hit the pillow as well as the bed and then hit a wall. Thereafter the culprits scaled over the wall of the Haveli and ran away. The complainant's brother namely Ahmad Yar succumbed to his injury at the spot.
According to the complainant both the culprits had been seen by the complainant and Nasir Abbas P.W. And that they could identify them if they were brought before them. The complainant suspected that his brother had been murdered or had been got murdered by Sajid Shah, etc. Leaving the dead body of his brother at the spot in the care of Nasir Abbas P.W. And Mst. Faridah Bibi appellant the complainant proceeded to report the matter to the police. F.I.R. No,126 was registered at Police Station Bhalwal, District Sargodha at 2-10 a.m. On 23-4-1998 at the instance of the complainant for an offence under sections 302/34, P.P.C.
3. The investigation of this case was conducted by Abdul Rauf, S.-I. (P.W.10) who got the dead body of Ahmad Yar subjected to postmortem examination, arrested the appellants, recovered a licensed gun from Ghulam Abbas appellant, completed the other formalities and then submitted a challan.
4. At the commencement of the trial the learned trial Court framed a charge with one head under section 302/34, P.P.C. To which the appellants pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced 10 witnesses in support of its case against the appellant. Sher Muhammad complainant (P.W.9) and Nasir Abbas (P.W.7) furnished the ocular account of the incident in question. Nasir Abbas (P.W.7) also deposed about the motive. Saee Muhammad (P.W.8) stated about an extra-judicial confession allegedly made by Mst. Faridah Bibi appellant before him. Muhammad Azam (P.W.6) and Sher Muhammad (P.W.9) proved the recovery of a licensed gun from the possession of Ghulam. Abbas appellant during the investigation of this case. Muhammad Azam (P.W.6) also deposed about having seen Ghulam Abbas appellant fleeing from the spot soon after -the occurrence. The medical evidence was provided by Dr. Muhammad Ali Khan (P.W.1) and Abdul Rauf, S.-I. (P.W.10) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In their statements recorded under section 342, Cr.P.C. The appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence.
They, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in their defence.
7. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeal by the convicts, revision petition by the complainant and the connected murder reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt as the evidence led by it before the learned trial Court was replete with serious contradictions as well as downright improbabilities. As against that the learned counsels for the complainant as well as the learned counsel for the State have maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, the convictions and sentences of the appellants recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record we have straightaway observed that the occurrence in this case had taken place during the dead of a night and the culprits perpetrating the alleged offence had not been nominated in the F.I.R. The site plan (Exh.P.D.) of the place of occurrence shows that there was only one electric bulb available near the place of occurrence and according to the statement made by Muhammad Hafiz, Draftsman (P.W.2) the said electric bulb was available about 100 feet away from the place of occurrence and was situated in a lane which was on the backside of the house wherein the alleged occurrence had taken place. It is admitted at all hands that no test identification parade had been held in this case so as to positively incriminate the appellants.
10. Sher Muhammad complainant (P.W.9) was admittedly a married man having a wife and four minor children and living in a house separate from the house of his brother Ahmad Yar deceased. It is available on the record that his house is also situated in the same colony wherein his brother resided and there is absolutely no reason available on the record of his case to show as to why the complainant had not gone back to his own house for sleeping with his own wife and children rather than sleeping with his brother at his house during the fateful night. Muhammad Azam (P.W.6) had claimed to have reached the house of the deceased immediately after fleeing of the culprit therefrom and according to him he had not seen Sher Muhammad complainant (P.W.9) in the house of the deceased at that time. The claim of P.W.6 as well as of the complainant that the complainant had by then left for reporting the matter to the police has been found by us to be rather unbelievable as the complainant could not have left the place of occurrence within a few seconds of the alleged occurrence and in the normal course of things he was likely to attend to his injured brother or to spend some time with his bereaved family in order to regain his composure before leaving for reporting the matter to the police. It is of some significance to mention here that in the F.I.R. The complainant had maintained that there were two male culprits who had actually been seen by the complainant and Nasir Abbas (P.W.7) to be pointing their guns towards Ahmad Yar deceased, Mst. Faridah Bibi appellant as well as at the complainant and the other eye-witness.
However, before the learned trial Court the complainant completely changed his version contained in the F.I.R. And maintained that there had been some misunderstanding about the second male culprit at the spot because the second culprit was in fact none other than Mst. Faridah Bibi appellant herself. Such a sea change in the prosecution story brought about by the complainant had surely detracted from its veracity. The complainant had acknowledged before the learned trial Court in so many words that Ghulam Abbas appellant was not known to him earlier on and also that no test identification parade had been held in this case. We have, therefore, entertained serious doubts about the claimed presence of Sher Muhammad complainant (P.W.9) at the spot at the relevant time and have found it to be reasonably plausible that, being a brother of Ahmad Yar deceased living in the same colony, the complainant had been procured and planted in this case as the complainant and an eye-witness at a subsequent stage.
11. Nasir Abbas (P.W.7), the other eye-witness produced by the prosecution, has also failed to inspire our confidence. This witness, like the complainant, was also closely related to Ahmad Yar deceased being his nephew. This witness was ordinarily a resident of a place which was situated about 50 miles away from the place of occurrence. It was claimed by this witness that during the days of occurrence he was staying with the complainant while learning how to weld whereas complainant had maintained in the F.I.R. In so many words that at the relevant time Nasir Abbas (P.W.7) was only visiting the complainant for an evening. This witness too had stated before the learned trial Court a version of the incident which was different from that contained in the F.I.R. He did not mention any second male culprit and also portrayed Mst. Faridah Bibi appellant as a culprit rather than a victim as depicted in the F.I.R. He maintained before the learned trial Court that he had recognized Ghulam Abbas appellant at the spot but he did not recollect his name and he also maintained that although he had not identified Ghulam Abbas appellant at the spot yet he was told the said appellant's name by Muhammad Azam (P.W.6). The changed version of the incident advanced by Nasir Abbas (P.W.7) and Sher Muhammad complainant (P.W.9) utterly fails to inspire our confidence because if Mst. Faridah Bibi appellant were a culprit then she would have been apprehended at the spot and the name of her companion could have been divulged by her to the complainant party but that was not to be Saee Muhammad (P.W.8) was a brother of Sher Muhammad complainant as well as of Ahmad Yar deceased but till after the burial of Ahmad Yar deceased he was not told that Mst. Faridah Bibi appellant was also a culprit in this case. All this shows that the metamorphosis in the prosecution's original version had come about at a subsequent stage and most probably for motives which were otherwise than bona fide.
12. The extra-judicial confession allegedly made by Mst. Faridah Bibi appellant before Saee Muhammad (P.W.8) has been found by us to be unbelievable for the simple reason that P.W.8 had claimed that the said appellant had made her extra-judicial confession before that witness in the village where Ahmad Yar deceased was buried and on the day when such burial had taken place.
However, Nasir Abbas (P.W.7) had categorically maintained before the learned trial Court that Mst.
Faridah Bibi appellant was not present in the village of burial cr. The day of such burial. Even otherwise the conduct displayed by Saee Muhammad (P.W.8) upon making of the extra-judicial confession by Mst. Faridah Bibi appellant had been found by us to be strange and unnatural besides being unusual. This witness was also a brother of Ahmad Yar deceased and in the circumstances of this case we have found reasons to suspect that this witness had also been planted in this case so as to falsely implicate Mst. Faridah Bibi appellant in the murder of her husband.
13. The recovery of a licensed gun from the possession of Ghulam Abbas appellant during the investigation of this case had remained legally inconsequential as admittedly no crime-empty had been recovered from the place of occurrence so as to connect the said weapon with the alleged offence. No motive had been alleged against the appellants in the F.I.R.' and the motive set up by Nasir Abbas (P.W.7) before the learned trial Court had remained far from being established.
14. The Wajtakar evidence provided by Muhammad Azam (P.W.6) has also received our anxious consideration. Muhammad Azam (P.W.6) was a friend of the complainant and was doing his business in close proximity with that of the complainant. The reason advanced by this witness for coming out of his house at the dead of a night and consequently seeing Ghulam Abbas appellant fleeing the place of occurrence was that a child of this witness had suddenly fallen ill and at the relevant time he was preparing to go to a doctor. However, not an iota of evidence was produced by the prosecution to establish the said reason put forward by this witness. The site plan (Exh.P.D.) of the place of occurrence shows that the house of this witness is situated in a street which is located at the back of the street where the house of occurrence is situated. This witness has admitted in so many words before the learned trial Court that he could not see any person scaling over the wall of the house of occurrence if this witness were standing outside his own house. In his statement before the police this witness had claimed to be present outside his own house at the relevant time but before the learned trial Court he had significantly improved his statement by maintaining that he was available in the street and not outside his own house at the relevant time and he was duly confronted with an improvement. This witness had also claimed that in the empty plot adjacent to the plot of Mistry Ghulam Hussain the mangers for this witness's buffaloes were stationed but the Investigating' Officer and the Draftsman had given him a lie in that regard and they had confirmed the fact that no such mangers were available in that empty plot. We have curiously observed that in the inquest report the story contained in the F.I.R. Had been incorporated and not the story which depicted the present appellants as the culprits. The inquest report must have been prepared after the visit of the police to the house of the deceased where the dead body was available. Had Muhammad Azam (P.W.6) gone to the said house almost immediately after the alleged occurrence and had he informed Nasir Abbas (P.W.7) about Ghulam Abbas appellant having been seen fleeing the spot then the involvement of Ghulam Abbas appellant in the occurrence would surely have been stated before the police before preparation of the inquest report. The fact that the inquest report contains the story incorporated in the F.I.R. By itself shows that Muhammad Azam (P.W.6) had not seen any culprit fleeing the spot and he had not even gone to the house of the deceased before the visit of the police to the said house. Apart from all that this witness had claimed to have parked his motorcycle at point No,8 in the site plan (Exh.P.D.) but that did not make any sense because if he had to park his motorcycle then it ought to have been in front of his own door and not about forty yards away from the same. It appears that parking of the motorcycle and availability of this witness at point No,8 had been conveniently fabricated by the prosecution so as to utilize the services of this witness who too had come forward to falsely implicate Ghulam Abbas appellant at a belated stage. The site plan further shows that the Baithak where the occurrence had taken place had a door opening in the adjoining street and any assailant could have conveniently slipped out from that door in the darkness of the night but in all likelihood the story about Ghulam Abbas appellant scaling over the wall of the house in question and landing in the empty plot of Mistry Ghulam Hussain had been introduced only to utilize the services of Muhammad Azam (P.W.6) who had by then volunteered to chip in on the side of the complainant party. Even otherwise all that this witness had claimed was to have a fleeting glance at Ghulam Abbas appellant from sixty yards away during the dead of a night and in the absence of any test identification parade such identification may not be wholly reliable in a case involving a capital charge.
15. For what has been discussed above we have entertained no hesitation in concluding that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. Criminal Appeal No,904 of 1999 is, therefore, allowed, the convictions and sentences of Ghulam Abbas and Mst. Faridah Bibi appellants recorded by the learned trial Court are set aside and the appellants are acquitted of the charge. Ghulam Abbas appellant shall be released from the jail forthwith if not required in any other case. Mst. Faridah Bibi appellant has already been admitted to bail during the pendency of her appeal before this Court. Her bail bond and surety shall stand discharge.
16. For the reasons recorded above Criminal Revision No,459 of 1999 is dismissed.
17. Murder Reference No,348 of 1999 is answered in the negative and the sentence of death passed against Ghulam Abbas appellant by the learned trial Court is not confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.