Ijaz Ahmad Chaudhry, J.--Masood Ahmad appellant was convicted under Section 302(b) PPC vide judgment dated 20.12.2000 handed down by the learned Additional Sessions Judge, Gujrat and was sentenced to death for committing `qatl-i-amd' of Karam Din deceased. Masood Ahmad appellant was ordered to pay a sum of Rs, 50,000/- to the heirs of Karam Din deceased by way of compensation under Section 544-A, Cr.P.C. Masood Ahmad appellant was further convicted under Section 308(2) PPC for committing qatl-i-amd of Mst. Khushnood Akhtar his wife an sentenced to 14 years R.I. Masood Ahmad appellant was further directed to pay and amount of Rs, 2,75,000/- as Diyat under Section 308(1) PPC to the heirs of Mst. Khushnood Akhtar deceased. However, Khalid Hussain co-accused was acquitted by the learned trial Court vide order dated 7.11.2000 while invoking the provisions under Section 265-K Cr.P.C. Masood Ahmad appellant has challenged his convictions and sentences before this Court through the present appeal which has been heard by us alongwith Murder Reference No, 183 of 2001 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant. He propose to decide both these matters together thought he present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. (Ex. PB) got lodged by Muhammad Nazir complainant (PW-2) was that Karam Din deceased was his `phoophizad' whose daughter Mst. Khushnood Akhtar deceased was married to Masood Ahmad appellant 16/17 years ago. The relations of Mst.
Khushnood Akhtar alongwith her husband Masood Ahmad appellant became strained and thereupon Mst. Khushnood Akhtar deceased 10/11 days earlier had come to the house her parents after quarrelling with her husband Masood Ahmad. In the morning of 31.5.1996, Karam Din deceased had sent a message from Gujrat that the appellant was coming to take Mst. Khushnood Akhtar deceased forcibly alongwith him. On this, the complainant alongwith his friend Muhammad Ashraf son of Muhammad Inayat, caste Jet, resident of Mohallah Masjid Siddique went to the house of Karam Din deceased, where Karam Din deceased, Bashrat Hussain (PW-3) and Shabbir Hussain sons of Karam Din deceased were already present. They all tried to get understand Mst. Khushnood Akhtar that she should go to her in-laws but she did not agree to it. At about 11.15 a.m., Masood Ahmad appellant and Khalid Hussain son of Lal Khan, caste Jat Warriach, resident of Mohallah Sardar Khan, Trust, Gujrat in consultation and furtherance of their common intention by raising lalkaras entered the house of Karam Din deceased and stated that they had been sent by Ch. Shujat Hussain and Ch. Pervaiz Elahi in order to take Mst. Khushnood Akhtar deceased by force.
Thereupon Karam Din deceased while coming forward said that they should not do so as they were trying to get agreed Mst. Khushnood Akhtar and sent her but Khalid Hussain said that they could not tolerate this matter day to day and they should take her with them at any cost. On this Masood Ahmad appellant took out a pistol .30 bore from the dub of his Shalwar and simultaneously made two fires with his pistol .30 bore at Mst. Khushnood Akhtar deceased who was standing in a room, which hit on her both breasts, who fell down. Thereafter, Masood Ahmad appellant fired two shots at unison at Karam Din deceased `phoophizad' of the complainant, which hit him on his right shoulder and head. Both succumbed to the injuries at the spot. Due to the fear they did not step- forward and afterwards Masood Ahmad appellant and Khalid Hussain, while raising lalkaras fled away from the scene of occurrence.
3. The investigation of this case was conducted by Riaz Ahmad, S.I./SHO (PW-11) as well as Hussain Ali, S.I. (PW-10) and during the investigation the place of occurrence was inspected, blood was secured through cotton from the places of occurrence, a rough site-plan of the place of occurrence was prepared, the dead bodies were sent to the mortuary for autopsy, the last-worn clothes of both the deceased were received, the statements of the complainant and the witnesses under Section 161/164 Cr.P.C. were got recorded, a formal site-plan of the place of occurrence was got prepared, the appellant and the co-accused were arrested, recovery of pistol .30 bore from the appellant's possession was effected and after completion of the investigation a challan was submitted.
4. At the commencement of the trial the learned trial Court framed a charge under Sections 302/34 PPC against the appellant to which he pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as eleven witnesses in support of its case against the appellant. The ocular account of the incident in question was furnished by Muhammad Nazir complainant (PW-2) and Basharat Hussain (PW-3) while Tariq Hussain (PW-1) stated about the recovery of pistol .30 bore during the investigation of this case. The medical evidence was provided by Dr. Muhammad Alam (PW-9) and Riaz Ahmad, S.I./SHO (PW-11) and Hussain Ali, S.I.
(PW-10) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In his statement recorded under Section 342, Cr.P.C., the appellant had denied the controverted all the allegations of fact levelled against him by the prosecution and had professed his innocence.
The appellant however, opted not to make statement on oath under Section 340(2), Cr.P.C. and he did not produce any witness in his defence. However, to a question that "why this case against you and why the PWs deposed against you?" the appellant replied as under:-- "Karam Din deceased was having a bad reputation in the .area and was involved in an abduction and zina cases and also was a complainant in such like cases, whereas Khushnood Bibi was a married woman before her marriage with me and from the wedlock of her first husband Abdul Hamid, Mah Jabeen and Yasmeen were born, which he claimed for their return and having a dispute with his wife and in laws. On the day of occurrence, said Abdul Hamid visited the house of inlaws for the return of his daugthers but they did not return his daughters and due to that Abdul Hamid murdered both the deceased in the struggle of snatching his daughters. I was having political affiliation with PML (N) group and was residing with Pervaiz Elahi and Shujat Hussain at Lahore and as at that time the Government of PPP was ruling and the MPA Gul Nawaz of that party belonging to Jalal Pur Jattan falsely involved me alongwith Pervaiz Elahi and Shujat Hussain and Khalid Hussain, who is uncle of Pervaiz Elahi and Shujat Hussain."
7. Upon conclusion of the trial the, learned trial Court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, he was convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
8. The learned counsel for the appellant contends that Muhammad Nazir complainant (PW-2) was `phuphizad (cousin) of Karam Din deceased and Mst. Khushnood Akhtar deceased was daughter of Karam Din while Basharat Hussain (PW-3) and Shabbir Hussain PW were sons of Karam Din deceased and as such they were interested witnesses, who had falsely implicated the appellant in the present case due to the strained relations between the appellant and Mst. Khushnood Akhtar deceased his wife; that Muhammad Nazir complainant (PW-2) was not resident of the same area and he claimed that he was summoned by Karam Din deceased in order to settle the dispute between the spouses i,e, Masood Ahmad appellant and Mst. Khushnood Akhtar deceased but had not produced any proof in support of his claim and at the most he was a chance witness; that the eye-witnesses had contradicted each other on material points regarding the place of occurrence and the manner in which the occurrence had taken place, who were not worthy of reliance and their statements may be discarded; that the recovery of weapon from the appellant was legally inconsequential as no empty was recovered from the spot that the whole prosecution story is doubtful which is not corroborated by any piece of evidence and the prosecution had not succeeded in proving the case against the appellant beyond any reasonable doubt entitling him to acquittal by this Court.
9. On the contrary, learned counsel for the state have maintained in unison that Basharat Hussain (PW-3) was son of Karim Din deceased and also real brother of Mst. Khushnood Akhtar deceased who was wife of Masood Ahmad appellant and as such Masood Ahmad appellant was closely related to him and he had no motive to falsely implicate the appellant in the present case; that PW-a Muhammad Nazir was Phoophizad of Karam Din deceased and also related to the appellant, who had no malice to falsely involve him in the present case as well; that both the eye-witnesses had made consistent statements regarding involvement of the appellant in the present case, who was the single accused and the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt, therefore, the convictions and sentences of the appellant recorded by the learned trial 'Court do not warrant any interference by this Court.
10. We have heard the learned counsel for the parties at some length and also gone through the record of this case with due care and caution.
11. The prosecution in order to prove its case had produced Muhammad Nazir complainant (PW-2) and Basharat Hussain (PW-3), who are related inter se and with the deceased closely, but mere close relationship of the witnesses is not sufficient to term them as interested witnesses unless it is proved that they had the motive to falsely implicate the appellant. At the same time, there is no hard and fast rule that if the prosecution had produced non-interested witnesses, their statements should be accepted without scrutiny of the same, but each case has to be decided in its peculiar facts and circumstances. Moreover, mere gravity of the offence is not-sufficient to convict the accused involved in the offence. We have gone through the statements of both the eye-witnesses carefully.
12. Muhammad Nazir complainant (PW-2) admittedly was resident of 2/3 furlongs from the place of occurrence, who at the most was a chance witness and chance witness can only be relied upon if he succeeds in proving that he was present at the spot to have witnessed the occurrence and his statement also finds corroboration from some independent piece of evidence. In order to explain his presence at the spot PW-2 stated that Karam Din deceased had informed him that Masood Ahmad appellant husband of Mst. Khushnood Akhtar deceased, who was residing with her parents due to strained relationship with appellant, had sent him message that he was coming to take away his wife by force, but during the cross-examination he failed to give name of the person who had informed him about the intention of the appellant for forcibly taking away Mst. Khushnood Akhtar deceased from the house of her parents. He also admitted during the cross-examination that he could not produce the person who had given him the message of Karam Din deceased before the Investigating Officer.
13. The Investigating Officer Riaz Ahmad, S.I. (PW-11) also admitted during the cross-examination that name of the person who had allegedly informed the complainant about the intention of the appellant was not disclosed and in support of the version of the complainant being present Of the spot no evidence was produced by the complainant party. During the cross-examination on behalf of Khalid Hussain co-accused who was nominated as one of the accused for having accompanied the appellant for the return of his wife and the occurrence allegedly had taken place at his instigation, PW-2 admitted that Khalid Hussain acquitted accused had fast friendship with Karam Din deceased and he used to live near the house of Khalid. PW-2 also admitted that at the time of birth of granddaughter of Khalid Hussain he had gifted the buffalo to Mst. Khushnood Akhtar deceased. It was then conceded by this .PW that Khalid Hussain had no knowledge or information regarding the murders. He also admitted that Gul Nawaz MPA had forced him to involve Khalid Hussain in this case and that he had affiliation with PPP while Khalid Hussain co-accused had no concern with the occurrence, who .was not involved in the occurrence and, therefore, he did not nominate him, Similarly, Basharat Hussain (PW-3) son of Karam, Din deceased and real brother of Mst.-Khushnood Akhtar deceased admitted that Khalid Hussain accused and his father were fast friends for the last 10/12 years and he used to treat Mst. Khushnood Akthar deceased as his daughter. He also conceded that Khalid had no hand in the occurrence and they did not want to proceed against Khalid Hussain accused due to the above fact.
14. On the other hand, both the eye-witnesses in the F.I.R. and in the statements recorded under Section 161 Cr.P.C. had named Khalid Hussain as a companion of the appellant and also levelled the allegation that Khalid Hussain, on the asking of Karam Din deceased that they would convince Mst. Khushnood Akhtar and send her after few days, did not agree and shouted that they could not come time and 'again and intended to take her finally that day. Only thereafter the appellant resorted to firing resulting in the death of two persons. Both the witnesses had admitted that they had falsely implicated Khalid Hussain co-accused on the asking of Gul Nawaz C MPA. It is very unsafe to rely upon the witnesses who had not spoken the truth and also admitted to have falsely implicated the innocent person in the present case on the asking of local MPA for maintaining the conviction of an accused in a murder case. Even otherwise, we find that PW-2 Muhammad Nazir had failed to explain his presence at the spot sufficiently, who stated that the occurrence had taken place in a room and the appellant had fired two shots each a the both the deceased while standing at the same place. According to PW-2, Karam Din deceased was standing on the right side of Masood Ahmad appellant and the first shot had hit him under right shoulder and the second shot hit on the left side of his mouth whereas the bullets exited from the back of the head.
This story of taking place of the occurrence in a room has been belied by the site-plan (Ex. PH) according to which the deceased Mst. Khushnood Akhtar was murdered at point-B in a room and Karam Din deceased had died at point-A which did not exist within the room wherein Mst.
Khushnood Akhtar was fired at and Masood Ahmad Bhatti, Draftsman (PW-8) during the cross- examination admitted that he did not ask the PWs as to what Was the distance of the room from point B. He also admitted that the dead body of Karam Din deceased was lying outside the room.
So place of occurrence and the manner in which the occurrence had taken -place was not fully explained by both the eyewitnesses.
15. Basharat Hussain (PW-3) during the cross-examination claimed that the police had taken the empties in its possession, which were recovered from the back room situated at the southern side and the empties were scattered. He also admitted that the accused had not gone to the southern room from where the empties were collected and the accused had not fired from the room from where the empties were recovered. He, however, voluntarily stated that some of the empties were also recovered from the room where the occurrence had taken place. The empties were recovered from the south of dead body of Mst. Khushnood Akhtar deceased and anyhow he could not tell the distance between the dead body of Mst. Khushnood Akhtar and Karam Din deceased. The empties were at a distance of about 2 feet from the dead body of his father. On the other hand; Riaz Ahmad, S.I. (PW-11) claimed that he had visited the spot after recording of the F.I.R. and only blood was taken into possession, but no empty was recovered. The statement of Basharat Hussain (PW-3) clearly suggests that he was not present at the spot and had he been present at the spot, he would have stated that no empty was recovered from the spot. Moreover, PW-3 stated that he was a carpenter by profession and used to go for work in the morning and return from his daily work in the evening. He had also failed to show any reason for being present in the house at the time of occurrence, when he was usually out for labour. After perusal of the statements of both the eye- witnesses we are satisfied that they were not present at the spot and had not witnessed the occurrence, but were named as such on account of close relationship with both the deceased.
16. It is also doubtful that the F.I.R. was got registered with promptitude at the Police Station only after half an hour of the occurrence as claimed by the prosecution. The complainant (PW-2) stated that after the inspection of the place of occurrence the police had recorded his statement.
Similarly, PW-3 stated that the statement of the complainant (PW-2) was recorded at the Police Station after the inspection of the place of occurrence. It clearly shows that the F.I.R. was got lodged after the preliminary investigation with due deliberation, which has lost its efficacy. This view also finds support from the factum that the postmortem examination was conducted on the following day of the occurrence without any just cause and reason. Moreover, the doctor (PW-9) conceded that on the inquest Report F.I.R. No, was not mentioned and an inference can be drawn that even uptil then the formal F.I.R. was not registered and the prosecution story was concocted afterwards on suspicion.
17. The medical evidence is not found in conformity with the ocular account according to which the fires were made by the appellant at both the deceased from the same distance and the direction, but doctor (PW-9) during the cross-examination after considering the nature of the injuries categorically stated that the shots were fired from different distances and directions. PW-9 also stated that Injuries Nos, 1 and 2 were caused from upwards to downward, which showed that the assailant was not at the same level. Moreover, Injury No, 4 on the dead body of Karam Din deceased was with 'blunt weapon, which was not explained by the PWs. The medical evidence shows that the occurrence had not taken place in the manner narrated by the prosecution.
18. The recovery of pistol from the appellant in the present case was inconsequential as no empty was recovered from the spot and mere recovery of pistol from the spot is not sufficient to hold that the said weapon was used by the appellant in the incident.
19. For what has been discussed above we have arrived at an inescapable conclusion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the charges G by extending the benefit of doubt to him. He shall be released from jail forthwith if not required in any other case.
20. Murder Reference No, 183 of 2001 is answered in the negative and the sentence of death passed by the learned trial Court against Masood Ahmad appellant is not confirmed.