' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,50 of 2001 and Criminal Appeal No,59 of 2001 filed by Zahoor Ahmad and Muhammad Irshad and Ali Akbar and Muhammad Munir, respectively, who were convicted and sentenced by the learned Sessions Judge, Vehari, vide his judgment dated 17-10-2001 as under:-- "All the four appellants were convicted under section 302(b)/34, P.P.C. And sentenced to death with causing murder of Abdul Ghafoor. Ali Akbar was further convicted under section 308, P.P.C. And sentenced to pay diyat amounting to Rs,2,80,000. While Zahoor Ahmad, Muhammad Irshad and Muhammad Munir were convicted under sections 302(b)/34, P.P.C. And sentenced to death for causing murder of Mst. Shah Balqees."
' Murder Reference No,121 of 2001 for confirmation or otherwise of death sentence of the appellants shall also be replied through this single judgment.
2. Brief facts of the case as given in F.I.R. Exh.P.L. Are that Abdul Sattar, complainant/P.W. On 27-3- 1998 at about 5-45 a.m. Made statement before S.-I./S.H.O., Police Station that about 7/8 years before his elder brother Abdul Ghafoor sold out land measuring four kanals in favour of Ali Akbar Shah for Rs,30,000. Its possession was delivered to purchaser Ali Akbar Shah. On account of that transaction, Abdul Ghafoor developed good relations with Ali Akbar Shah and they had visiting terms. Ali Akbar Shah wanted to sell the said land to some one else. On 26-3-1998 at Ishawela, complainant, his brother Abdul Ghafoor along with Rehmat Ali son of Ghulam and Falak Sher son of Bahawal went to Ali Akbar Shah, in his Dera. After some time, Ali Akbar Shah (accused) took Abdul Ghafoor (deceased) with him inside his residential house. After a while, complainant heard fire shots. He along with Rehmat Ali and Falak Sher rushed towards house of Ali Akbar Shah. They just reached at the main door of house of accused Ali Akbar Shah and found the main gate open. From there, it was seen by the complainant and P. Ws. That his brother Abdul Ghafoor was running back towards the main gate of the house. Meanwhile, Irshad accused with rifle made a fire shot, hitting on the front side of chest of Abdul Ghafoor, who fell down. Ali Akbar Shah armed with Toka, Zahoor and Munir Ahmad armed with hatchets inflicted injuries with their respective weapons on different parts of body of Abdul Ghafoor. As a result of above injuries, Abdul Ghafoor died at the spot.
Thereafter, all the four accused named above, went towards the house of accused Ali Akbar Shah.
They were chased by the complainant and above named P.Ws. Accused extended threats to the complainant and P.Ws. Complainant and P.Ws. Saw that Ali Akbar Shah at the door of his house inflicted injuries with Toka on his wife Mst. Shah Balqees. Irshad accused made a fire shot with his rifle, hitting her and she also succumbed to the injuries at the spot. All the accused fled away.
Complainant further added that in the light of bulb, he identified all the accused persons and saw the occurrence as above.
3. The motive behind the occurrence was that the accused had suspicion that Abdul Ghafoor brother of the complainant had illicit relations with Mst. Shah Balqees wife of Ali Akbar. Due to that reason all the accused in furtherance of their common intention committed murders.
4. After registration of case, investigation of the case was taken over by Ibrar, S.-I./S.H.O., P.W.11. He proceeded to the place of occurrence, took over the dead bodies, prepared injury statement of Abdul Ghafoor Exh.P.P. And inquest report Exh.P.C. He also prepared injury statement of Mst. Shah Balqees Exh.P.H. And inquest report Exh.P.K. The Investigation Officer took into possession bloodstained earth from the place of murder of Mst. Shah Balqees vide memo. Exh.P.F., bloodstained earth from the place of murder of Abdul Ghafoor vide memo. Exh.P.M., one empty cartridge P.14 vide memo. Exh.P.N., one cycle P.6, shirt P.7 and one pair of shoes P.8 (belonging to Abdul Ghafoor deceased), one shirt P.9 (belonging to Mst. Shah Balqees deceased), vide memo.
Exh.P.G. On 5-4-1998 the Investigation Officer arrested all the four accused. While in custody, Ali Akbar led to the recovery of Toka P.10 from a room of his Dera, which was taken into possession vide memo. Exh.P.O. Zahoor led to the recovery of hatchet lying underneath of branches of cotton sticks and the same was taken into possession vide memo. Exh.P.Q. At the instance of Munir Ahmad the Investigation Officer recovered hatchet P.10 and took the same into possession vide memo.
Exh.P.R. Muhammad Irshad led to the recovery of rifle P.13 from his house lying in the iron box, which was taken into possession vide memo. Exh.P.S. After completion of investigation, all the accused were sent up to face trial.
5. At the trial, prosecution in order to prove its case produced 11 witnesses in all, thereafter, learned D.A. Tendered in evidence reports of Chemical Examiner Exh. P. V .And Exh. P. W . , Serologist, Exh.P.X.
And Exh.P.Y. And that of Forensic Science Laboratory Exh.P.Z. And closed the prosecution case, then, the accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. After conclusion of the trial all the accused were convicted and sentenced as stated above.
6. The learned counsel for the appellants submits that it was an unwitnessed occurrence; that the eyewitnesses had no business to be present in the house of Ali Akbar at the relevant time; that during trial Ali Akbar has taken plea of grave and sudden provocation that he had committed murder of Mst. Shah Balqees and Abdul Ghafoor; and as far as the three other appellants except Ali Akbar have played no role in this case and they have been falsely involved in this case.
7. The learned counsel for the State has stated that Ali Akbar who has been awarded death sentence, had committed murder of his wife Mst. Shah Balqees and Abdul Ghafoor; that as far as recoveries are concerned, the report is positive, while other incriminating weapons recovered from the accused persons were found to be stained with human blood; that three accused except Ali Akbar could not prove malice against the prosecution; and that Ali Akbar has taken two stances before the learned trial Court one in cross-examination that he had committed murders of both the deceased due to grave and sudden provocation, while in his statement recorded under section 342, Cr.P.C. He raised plea of alibi, so he cannot be believed.
8. We have heard the learned counsel for the parties and gone through the record of the case. The occurrence had taken place on 26-3-1998 at Eshawela in the house of Ali Akbar. The matter was reported to the police after about 9 to 10 hours i.e, 5-45 a.m. On 27-3-1998. The distance between the place of occurrence and the Police Station is 16 Km. In our view it is a case of delayed F.I.R. It has not been denied that the occurrence had taken place in the house of Ali Akbar, one of the appellants, one deceased Mst. Shah Balqees is his wife. Abdul Ghafoor, the other deceased, was resident of a far place. His cycle was taken into possession from the house. He had no business to be present in the house of Ali Akbar, appellant. Dr. Muhammad Akram, who conducted postmortem on the dead-body of Abdul Ghafoor, deceased, had found no clothes on his body but the same was wrapped in a Chadar. As far as post-mortem conducted by lady Dr. Rahat Sultana is concerned, she observed that on the dead-body of Mst. Shah Balqees only Bunyan and Dhoti were present. It appears that either they were lying together or in compromising position. Zahoor Ahmad, Muhammad Irshad and Muhammad Munir, appellants had no interest to join hands with their co-accused Ali Akbar in the murder of the deceased. The contention of the learned counsel for the State that the appellant Ali Akbar had taken two pleas one during cross-examination and the other at the time of recording of his statement under section 342, Cr.P.C., we may observe here that accused can taken hundred pleas and it is the duty of prosecution to prove its case against the accused. In our considered opinion the eye-witnesses namely Abdul Sattar, P.W.7 real brother of the deceased, Falak Sher P.W.10 first cousin of the deceased and Rehmat Ali, P.W.11 from the brotherhood of the deceased, had no business to be present in the house of Ali Akbar at the time of occurrence and the reasons given by them for their presence are not believable and convincing.
This Court has powers to draw its own inference in such like cases. Reliance is placed on the case of Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502. After having heard the learned counsel for the parties and going through the record we disbelieve the eye-witness account in this case and are of the opinion that it is only Ali Akbar who had committed the murder of deceased due to grave and sudden provocation. He was arrested on 5-4-1998. He is behind the bars since then. In the circumstances, sentence already served out by him would meet the ends of justice. As far as compensation is concerned, no compensation can be imposed in such like cases. Reliance is placed on the case of Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294. He would be released from Jail forthwith, if not required in any other case.
9. As far as other three appellants are concerned, while giving benefit of doubt they are acquitted of all the charges. They would be released from Jail forthwith, if not required in any other case.
10. As a sequel to above Murder Reference No,121 of 2001 is replied in the negative. Death sentences are not confirmed. The appeals stand disposed of