' IJAZ AHMAD CHAUDHRY, J.---Muhammad Asif, Muhammad Yaseen sons of Muhammad Boota and Muhammad Ansir alias Chatni son of Abdul Hamid, appellants/convicts have preferred the Criminal Appeal against their conviction and sentence, who, vide judgment dated 28-2-2004 passed by Malik Mobeen Ahmad, the then learned Additional Sessions Judge Daska District Sialkot were convicted under section 302 (B)/34, P.P.C. And sentenced to imprisonment for life on two counts each with direction for payment of Rs,1,00,000 as compensation on two counts each payable to the legal heirs of Afzal and Mst. Sameena Bibi deceased as provided under section 544- A. Cr.P.C. For committing the murder of Afzal and Mst. Sameena Bibi deceased or in default thereof further undergo six months S.I. And benefit of section 382-B Cr.P.C. Was also extended to the appellants. However, through the same judgment co-accused of the appellants namely Tanveer Ahmad and Mst. Nadia Bibi were acquitted of the charge by extending them the benefit of doubt.
2. The occurrence in the present case had taken place on 22-3-2003 at 2.00 a.m. At Mohallah Mughalpura Daska situated within the jurisdiction of Police Station City Daska District Sialkot which was at a distance of 2 k.m from Police Station, City Daska towards North while the matter was reported by Shabbir Hussain (P.W.3) through his written application (Exh. PC) which was handed over to Zulfiqar Ahmad (P.W.-11) at 3.30 a.m. At the spot on the basis of which formal F.I.R. No,123 (Exh. PC/1) was recorded on the same day at 3.55 a.m. Under sections 302/148/149 P.P.C.
3. Concisely the facts of the prosecution case set up in the F.I.R.(Exh. PC/1), got lodged by Shabbir Hussain (P.W.3) are that marriage of his daughter Mst. Shahnaz Bibi was solemnized with Muhammad Afzal deceased and out of their wedlock five children were born out. Afzal deceased also contracted second marriage with Mst. Sameena Bibi who had to take Rs, 70,000 from her brothers namely Muhammad Asif and Yaseen, due to which they oftenly quarrelled with each other. Said Muhammad Asif and Yaseen extended threats to Mst. Sameena and Afzal deceased. On 18-3-2003 at about 8.00 p.m. That if they demanded back Rs,70,000 from them, they would be done to death. On 21-3-2003 at 9.00 p.m. Afzal made a telephone call to the complainant to come to his house so as to settle the dispute of Rs,70,000 with Asif and Yaseen. Shabbir Hussain complainant (P.W.3) along with Muhammad Boota (P.W.4) and Muhammad Akbar (given up P.W.) went to the house of Afzal at about 11.00 p.m. Where Asif and Yaseen along with Ansir alias Chatni also come there. At about 12.30 a.m. (night) the said three persons left the house of Afzal while saying that they would come back after arranging Rs,70,000. At about 2.00 a.m. Muhammad Asif, Yaseen, sons of Muhammad Boota, Ansir alias Chatni, Tanveer Ahmed alias Majho accused persons came in the house of Muhammad Afzal deceased aged about 30/32 years while armed with Chhurris after consultation. Mst. Nadia wife of Tanveer Ahmad also accompanied them. The accused persons while reaching in the house of Afzal deceased raised Lalkara to kill Afzal and Mst. Samina and also extended threats to the complainant and others who were present at the house of Afzal deceased.
Asif accused gave Chhurri blow to Afzal deceased which hit on his belly and then Yaseen accused gave a Chhurri blow which also hit on the belly of Afzal, Ansir alias Chatni accused gave a chhurri blow on the abdomen of Afzal deceased. Then Yaseen and Asif repeated chhurri blows on the abdomen of Afzal deceased. Mst. Sameena Bibi wife of Afzal deceased when came forward, the accused persons also gave repeated Churri blows to her, which landed on the chest and abdomen of Mst. Sameena Bibi. Both husband and wife started shivering and then Asif accused picked up the pan (Tawa) lying nearby and gave its repeated blows to both Afzal and Mst. Sameena Bibi who both succumbed to the injuries at the spot. Electric bulb was on in the compound and the room.
Shabbir Hussain complainant (P.W.-3) Muhammad Boota (P.W.4) and Muhammad Akbar (given up P.W.) had witnessed the occurrence.
4. After receipt of written application (Exh. PC) submitted by complainant Shabbir Hussain at the spot to Zulfiqar Ahmad S.I/S.H.O. (P.W.11), it was sent to the PS for registration of the F.I.R. (Exh. PC/1).
Thereafter P.W.11 had inspected the place of occurrence and prepared the injury statement (Exh.
P.M) as well as the inquest report (Exh.PN) of the dead body of Muhammad Afzal deceased.
Similarly, he also prepared the injury statement (Exh. PQ) and inquest report (Exh. PR) of the dead body of Mst. Sameena Bibi deceased. Then he also dispatched the dead bodies of both the deceased namely Muhammad Afzal and Mst. Sameena Bibi to Civil Hospital Daska under the escort of Muhammad Akram and Muhammad Amjid constables for post-mortem examinations.
During the spot inspection he collected blood-stained earth regarding the blood of Muhammad Afzal deceased as well as the blood of Mst. Sameena Bibi deceased from the place of occurrence which was taken into possession vide recovery memos (Exh. PD and Exh. PE) respectively. He also got prepared scaled site-plan (Exh. PU and PU/1) from Masood Ahmad Bhatti, Draftsman (P.W.14) and recorded the statements of the P.Ws. Under section 161 Cr.P.C. On 31-3-2003 he arrested Muhammad Asif, Muhammad Yaseem, Ansir and Tanveer Ahmaed. Thereafter he was transferred and the further investigation was conducted by Zahid Hussain S.H.O./S.-I. (P.W.12). On 6-4-2003, Muhammad Asif appellant while in custody led to the recovery of P.11 Tawa allegedly used by him during the occurrence from his residential room which was taken into possession by P.W.12 vide recovery memo. (Exh.PM). Similarly, Muhammad Asif after making disclosure got recovered Churri blood-stained from his residential house which was also taken into possession vide recovery memo. (Exh. PL). On 9-4-2003, Muhammad Ansir appellant while in custody led to the recovery of Chhurri P.9 from his residential house which was taken into possession by him vide recovery memo.
(Exh. PK). On the same day, Muhammad Yaseen appellant in the presence of Muhammad Arshad and Muhammad Rafique P.Ws. Led to the recovery of blood-stained Chhurri P.8 from the quarters of Degree College Daska which was used as his own residence, the same was also taken into possession vide recovery memo. (Exh. PH). On 11-4-2003. Tanveer accused while in custody in the presence of Muhammad Younas and Tahir Hussain P.Ws. Got recovered Chhurri (P.7) stained with blood from his residential house situated in Mohallah Mughalpura Daska which was taken into possession by P.W.12 vide recovery memo (Exh. PG).
5. After conclusion of the investigation, report under section 173 Cr.P.C. Was submitted in the Court and copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellants and the acquitted accused who were charge-sheeted on 7-1-2004 which was denied by them they claimed to be tried.
6. The prosecution in order to prove the guilt of the appellants and the acquitted accused produced as many as 15 witnesses. Medical evidence was produced by Dr. Muhammad Azam (P.W.6) and Dr. Rehana Sardar, (P.W.-7) who on 22-3-2003 has conducted the postmortem examinations on the dead bodies of Muhammad Alzal and Mst. Sameena Bit* deceased respectively while the ocular account was furnished by Shabbir Hussain complainant (P.W.-3) and Muhammad Boota (P.W.4). The investigation of the present case was conducted by Zulfiqar Ahmad S.I/S.H.O. (P.W.11) and Zahid Hussain, S.H.O./S.-I. (P.W.-12). However, the remaining witnesses are less or more of formal nature and need not to discuss here.
7. After close of the prosecution evidence, the appellants and the acquitted accused were examined under section 342, Cr.P.C. Who denied the allegations levelled by the prosecution against them and professed their innocence. However, on a question that "Why this case against you and why the P.Ws. Have deposed against you? Muhammad Asif appellant stated as under:-- "I have been roped in this case as my as well as Yaseen's sister was murdered and the complainant party had an apprehension that I and my brother Yaseen accused must be the prospective complainant and thus we have falsely been involved in this case along with. Tanveer being brother-in-law and Ansir being our close friend. Further more, complainant and P.Ws. Are closely related to each other. They have deposed against us. Infact it was blind murder and unseen occurrence. P.Ws. Were not present at the time of occurrence and the police just to show its kargazari especially for tracing the blind murder involved me and my co-accused. Complainant had concocted a false story with the connivance of the police and implicated me and my co- accused. There is no reason to involve us in this case. There are glaring contradictions in the ocular account made by the P.Ws., medical evidence given by the doctors and the alleged recoveries were also planted by the police in connivance with the complainant party."
' The other accused/appellants also made the similar statements. However, the appellants or the acquitted accused neither produced any defence evidence nor they opted to make statements on oath under section 340(2) Cr.P.C.
8. After hearing the learned counsel for the parties, the learned trial Court passed the impugned judgment of conviction and sentence against the appellants which is being assailed through this appeal.
9. Learned counsel for the appellants contends that Shabbir Hussain complainant (P.W.3) and Muhammad Boota (P.W.4) eyewitnesses have not been relied upon by the learned trial Court; who were residents of village Mandaranwala Tehsil Daska Sialkot which according to P.W.4 Muhammad Boota was 3 k.m. Away from the place of occurrence and they could not be able to prove their presence at the spot during odd hours of the night when the occurrence according to their own statement had taken place. It is further contended that Muhammad Boota (P.W.4) has been disbelieved by the learned trial Court along with the motive set up by the prosecution and the appellants were involved in the present case as their sister Mst. Sameena Bibi was also murdered in the same incident by the complainant party, who, apprehending that they might be involved in the present case while introducing relatives of Mst. Samina Bibi deceased as witnesses got registered this case against the present accused/appellants in connivance with the local police. It is next contended that the medical evidence is in contradiction with the ocular account as according to P.W.7 Dr. Rehana Sardar there was fire-arm injuries on the body of Mst. Sameena Bibi deceased which had not been explained by the eye-witnesses.
10. On the other hand learned counsel for the State opposes this appeal on the ground that present of the eye-witnesses stood established on the record as nothing could be gained by the defence during the cross-examination on the P.Ws. Who had no previous enmity, or grudge against the appellants to falsely implicate them in the present case; that F.I.R. Was got lodged immediately and there were no chances of consultation or fabrication of the story; that recovery of chhurris which were stained with blood and effected on the pointation of the accused has been wrongly disbelieved by the learned trial Court.
11. I have heard the learned counsel for the parties and also perused the record with due care and caution.
12. The occurrence in the present case had taken place on 22-3-2003 at 2.00 p.m. And on the written application moved by Shabbir Hussain complainant (P.W-3) case was registered on the same day at 3.55 p.m. By the police. But the complainant during the cross-examination had admitted that the said application was written by one Bao. P.W.4 Muhammad Boota also admitted that the case was registered on the application which was prepared after consultation between him, the complainant and given up eye-witnesses. It is claimed that the police had reached at the spot at 3.30 a.m. And inquest report and other documents according to the Investigating Officer were prepared within 15 minutes. Then the dead bodies were dispatched to Civil Hospital at 6.00 a.m. But the postmortem examination on the dead body by Muhammad Afzal deceased was conducted at 4.00 p.m. By Dr. Muhammad Azam (P.W.6). The postmortem examination on the dead body of Mst. Sameena Bibi was conducted by Dr. Rehana Sardar (P.W.7) as well on the same but surprisingly in the postmortem report time of examination has not been given. Admittedly, both the alleged eye-witnesses were not residents of the same locality and they were residing about 3 k.m. Away from the place of occurrence. At the most they were chance witnesses, who had firstly to prove presence at the spot. It is established on the record that the postmortem examination had been conducted with the delay in spite of that F.I.R. Was shown to be recorded with promptitude, which leads to draw an inference that it was an unwitnessed occurrence and the witnesses were summoned from village Mandaranwala and then while concocting the story the case was registered subsequently by the police as P.W.3 Shabbir Hussain and P.W.4 Muhammad Boota were residents of village Mandaranwala, which, according to P.W.4 Muhammad Boota, was at a distance of 3 p.m. From the place of occurrence. Both the eyewitnesses have stated that Muhammad Afzal deceased had contacted Shabbir Hussain complainant on telephone and they went to the house of the deceased where they reached at about 11.00 p.m. However, P.W.3 Shabbir Hussain claimed to have received telephonic call at 9.00 p.m. While P.W.4 Muhammad Boota stated that he received the telephonic call at 7/8-00 p.m. Then it took about two hours to reach them the house of Muhammad Afzal though they rushed to his house after receiving the telephonic call.
13. After perusal of the statements of both the eye-witnesses I am satisfied that they had not been able to establish their presence during odd hours of the night at the spot through any cogent reason. Shabbir Hussain complainant (P.W.3) was father-in-law of Muhammad Afzal who was married with his daughter Mst. Shahnaz and out of their wedlock five children were born.She was not residing with Muhammad Afzal deceased as he had contracted second marriage with Mst.
Sameena sister of the appellants namely Muhammad Asif and Muhammad Yasin. She had two daughters from the previous husband and contracted marriage with Muhammad Afzal deceased about 9 months before the incident. This action of Muhammad Afzal of contracting second marriage during the subsistence of first marriage might have annoyed Shabbir Hussain complainant (P.W.3) and to call him by Muhammad Afzal deceased to settle the dispute of money with the brothers of his second wife appears to be a concocted story. Muhammad Asif and Muhammad Yaseen appellants are real brothers of Mst. Sameena who was also murdered in the present incident and there are chances of their false implication in the present case as well because both the eyewitnesses were annoyed due to the second marriage of Muhammad Afzal with Mst. Sameena.
14. The learned trial Court has already disbelieved P.W.4 Muhammad Boota while holding in the impugned judgment that the eyewitnesses were not present at the spot. It is strange that none of the eyewitnesses had received even any scratch during the incident. The ocular account is further contradicted with the medical evidence as according to the eye-witnesses the occurrence had taken place at 2.00 a.m and they had reached there, according to P.W.3 Shabbir Hussain at 10.00 p.m. And the deceased had not taken their meals during their presence, but according to P.W.6 Dr. Muhammad Azam, who conducted the postmortem examination on the dead body of Muhammad Afzal, undigested food was found in the stomach of Muhammad Afzal deceased. The ocular account has been further falsified by P.W.7 Dr. Rehana Sardar who conducted the postmortem examination on the dead body of Mst. Sameena Bibi deceased and noted down two injuries with fire-arm as well on her body, but the said injuries were not explained by the eyewitnesses, which also shows that they were not present at the spot and the occurrence had not taken place in the manner narrated by them.
15. Similarly, recoveries have also been disbelieved by the learned trial Court on valid reasons. It is worth-mentioning to point out here that none of the neighbourers or any respectable from the locality had been joined in the recovery proceedings by the Investigating Officer throughout the investigation, which is against the provisions of section 103 Cr.P.C. Even otherwise, the report of the Serologist is not available on the record and it cannot be held that the weapons allegedly recovered from the appellants were stained with human blood and it cannot be used as corroborative piece of evidence.
16. Motive has also been disbelieved by the learned trial Court and I am satisfied that the prosecution has not been able to prove the motive against the appellants. Even otherwise, such a motive was not sufficient to commit the murder of real sister along with her husband in such a desperate manner that Muhammad Afzal had received about 11 injuries with sharp-edged weapon and all the injuries are on the vital parts of his body. Similarly, Mst. Samena Bibi had also received about 12 injuries on the vital part of her body.
17. In view of above discussion, I am satisfied that the prosecution has not been able to bring home guilt to the appellants beyond any shadow of doubt. Hence, this appeal is accepted, the impugned judgment of their conviction and sentence dated 28-2-2004 passed by the learned Additional Sessions Judge, Daska District Sialkot is set aside and the appellants are acquitted of the charge by extending them the benefit of doubt. They shall be set at liberty forthwith if are not required in any other criminal case.