' MUHAMMAD KHALID ALVI, J.--- Appellant Salamat Ali was tried by the learned Additional Sessions Judge, Chunain for the murder of Mst. Rani Bibi daughter of Muhammad Tufail P.W.5 in case F.I.R.
No,484 of 1995 registered on 20-9-1995 at 5-30 p.m. Under section 302, P.P.C. At Police Station, Chunian, along with his co-accused Karamat Ali (acquitted accused), Jan Muhammad, Maula Bukhsh and Mohsan Ali (compromised with complainant). While Muhammad Ashraf, who was the original complainant in ,the case was also made an ,accused person on the statement of Muhammad Tufail recorded under section 161, Cr.P.C. And now stands declared as P.O. At the conclusion of trial Karamat. Ali, co-accused was acquitted. Jan Ali, Maula Bukhsh and Mohsan Ali were also acquitted as a result of compromise effected with the L.Rs, of deceased Mst. Rani Bibi on 10-11-1999. The appellant was however, convicted and sentenced to death subject to confirmation by this Court for which a Murder Reference No,191 of 2001 has been sent by the learned trial Court.
He was also directed to pay an amount of Rs,10,000 to the legal heirs of the deceased under section 544-A, Cr.P.C., in default whereof he was to further undergo S.I. For 6 months. Appellant Salamat Ali has also challenged his conviction through Criminal Appeal No,126-J of 2001.
2. According to the F.I.R. Exh.P.A. Recorded on the statement of P.O. Muhammad Ashraf (Exh.P.D.) on the day of occurrence at 3-30 p.m. He was present in his house where Karamat Ali, Salamat Ali and deceased Mst. Rani Bibi had also come 3/4 days ago. In the meanwhile Salamat Ali on exchange of hot words with Mst. Rani Bibi picked up a gun and repeatedly fired at her killing her instantly. Motive, as alleged, was that Salamat Ali appellant wanted to marry Mst. Rani Bibi who had already married with Karamat Ali co-accused.
3. Two days thereafter Muhammad Tufail P.W.5 father of the deceased got his statement recorded under section 161, Cr.P.C. And stated that on 29-5-1995 his daughter Mst. Rani Bibi was abducted by the appellant and others and he got a criminal case registered vide F.I.R. No,221 of 1995 at Police Station, Hujra Shah Muqeem. He along with his companions' were in search of Mst. Rani Bibi. On 21- 9-1995, Muhammad Zaman (P.W. Not produced) in the presence of Ghulam Rasool P.W.7 reported him that on 20-9-1995 he was present in the house of Muhammad Ashraf, Jan Ali, Mohsan Ali and Maula Bukhsh accused were present. They all were trying to convince Mst. Rani Bibi that she should marry either Karamat Ali or Salamat Ali but she refused. In the meanwhile Jan Ali, Mohsan and Maula Bukhsh left the place while directing the accused Karamat Ali, Salamat and Muhammad Ashraf that the girl should be done to death. Whereupon Karamat Ali and Muhammad Ashraf dragged Mst. Rani Bibi into the room. He (Muhammad Zaman) tried to rescue her but was pushed away. Thereafter Salamat Ali picked up the gun and repeatedly fired at the deceased killing her instantly.
4. Investigation in the case was conducted by Muhammad Aslam, A.S.-I. P.W.6. After completion of the same he submitted his report under section 173, Cr. P.. C
5. In support of its case prosecution, apart from formal witnesses have produced P.W.5 father of the deceased and Ghulam Rasool P.W.7 with the status of eyewitness.
6. Appellant in his statement under section 342, Cr.P.C. In response to question No,7 replied in the following words:-- "The evidence against is only hearsay evidence. The case is due to previous enmity about the marriage of Rani Bibi with Karamat Ali and the marriage of my sister with Barkat Ali. The P. Ws. Are inter se related."
' Neither he appeared as his own witness under section 340(2), Cr.P.C. Nor lead any defence evidence.
7. Learned counsel for the appellant contends that the only alleged eye-witness of the occurrence was Muhammad Zaman who has not been produced in Court, that Mst. Rani Bibi had moved an application through a counsel to get her statement recorded under section 164, Cr.P.C. Which was recorded on 13-6-1995; further submits that she of her own free-will had contracted marriage on 21-4-1995 with Karamat Ali co-accused therefore, the prosecution story as put forward is without any base any substance; that no empties were recovered from the spot, therefore, mere recovery of a gun and that too from the house of Muhammad Ashraf co-accused is merely a plantation on the appellant.
8. On the other hand, learned counsel for the State has opposed the arguments advanced by the learned counsel for the appellant.
9. We have heard the argumenis advanced by the learned counsel for the parties.
10. According to the statement of Muhammad Tufail recorded under section 161, Cr.P.C. The facts of the case were narrated by Muhammad Zaman in the presence of Ghulam Rasool P.W.7. He did not mention in his said statement that Ghulam Rasool was also with him at the time of occurrence. As against this Ghulam Rasool while appearing as P.W.7 claimed that he was also present at the time of occurrence. The prosecution without disclosing any reason has withheld the most important witness i.e, Muhammad Zaman, who could have been safely termed as the only eye-witness.
11. The immediate cause of murder as narrated by P.W.7 is that the accused persons were trying to convince Mst. Rani Bibi to marry one of them and give a statement in their favour before a Court of law. This cause is also belied by the Nikahnama of Mst. Rani Bibi with Karamat Ali, dated 21-4-1995 and her statement recorded before a Magistrate on 13-6-1995. Meaning thereby that her Nikah had already taken place and her statement in favour of the accused had also been recorded much before the date of occurrence, therefore, there was no reason for the accused persons to convince the deceased for such an object, which they had already achieved.
12. Another incriminating piece of evidence against the appellant is that of recovery of gun P.1 through memo. Exh.P.C. It was allegedly got recovered by the appellant from the house of Muhammad Ashraf co-accused, which by no means can be said to be in exclusive possession of the appellant. In order to connect this gun with the crime some other material was also necessary to have been collected and connected by the prosecution. Allegedly the appellant had thrice fired at the deceased, meaning thereby that at least once he had to refill the gun. Neither any empty was recovered from the spot nor the same were recovered from the appellant nor it were found in the gun at the time of its recovery. There is yet another important angle to look at P.W.4 Dr. Muhammad Mushtaq, in his statement submitted that after post-mortem he handed over a sealed bottle containing three card boards and one metallic pellet to police constable Abdul Karim. These articles, of course, would have been recovered by the doctor from the dead body. These articles do not appear to have been taken into custody by the Investigating Officer. Nor sent to the Forensic Science Laboratory so as to establish that the same match with the crime weapon. Even the gun P.1 was allegedly recovered from the appellant on 29-10-1995 but was sent to the Forensic Science Laboratory on 6-12-1995. This unreasonable delay also casts shadow of doubt at the prosecution case. It is also to be observed that according to the report of the Forensic Science Laboratory Exh.P.L. Regarding the use of gun P.1 it is reported in the foHowing words:-- "Nothing can be said to when it was last fired."
' This also raises doubt as to whether in fact the gun was or was not ever fired.
13. In view of the foregoing reasons, we allow this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith from jail, if not required in any other case. Murder reference is answered in the negative.