' HASNAT AHMAD KHAN, J.---Ali Sher and his brother Sarfraz alias Sharaf appellants were tried by the learned Addl. Sessions Judge, Sahiwal in case F,LR. No, 123, dated 26-3-1996 registered at Police Station Harappa Distt. Sahiwal in respect of offence under section 302/34, P.P.C. Vide judgment, dated 22-5-2000, the said learned Addl. Sessions Judge convicted the appellants under section 302(b)/34, P.P.C. For committing Qatl-e-Amd of Mst. Shehnaz and sentenced each one of them to suffer imprisonment for life. Both the appellants were further directed to pay compensation of Rs,50,000 each to the legal heirs of the deceased and in default thereof to undergo R.I. For Six months Benefit of the provisions of section 382-B, Cr.P.C. Was also granted to the appellants. Being aggrieved of the impugned conviction and sentence, the appellants have filed this appeal.
2. Briefly the facts of the prosecution case as narrated in the F.I.R. (Exh.P.A.) lodged at the instance of Shameer complainant (P.W.1) are that on the night intervening 25/26-3-1996 he along with his brothers Naseer and Kabeer and his daughter Mst. Shahnaz deceased slept in his house whereas his deaf and dumb son, namely, Abbas slept near the cattle. At about 1/2.00 A.M. They woke up on hearing the barking of dogs. In the meantime; All Sher and Sarfaraz alias Sharaf appellants armed with rifles barged into the Haveli of the complainant. Ali Sheraccused/appellant raised a Lalkara/ululation to avenge Mst. Shahnaz for not having married with him. Thereafter Sharaf accused/appellant fired a shot with his rifle hitting arm of Mst. Shahnaz deceased who fell on the ground. After that both the accused/appellants decamped from the spot while raising Lalkara. Mst.
Shehnaz succumbed to the injuries at the spot. Hence the F.I.R.
3. After the investigation both the accused/appellants were found guilty, therefore, they were challaned to the Court to face the trial. Charge was framed against the appellants to which they pleaded not guilty and claimed to be tried.
4. At the trial the prosecution produced nine witnesses to prove its case. Out of said witnesses, Shameer complainant and his brother Naseer appeared as P.Ws.
1. And 4 respectively to give ocular account of the occurrence whereas Dr. Azhar Waheed, appeared as P.W.8 to provide the medical evidence. Alam Sher S.-I.Who had investigated the case appeared as P.W.9. The other witnesses were of formal nature.
5. Kameer complainant (P.W.1) had appeared at the trial and reiterated all the facts mentioned in the F.I.R. Naseer appeared as P.W.4 and tried to corroborate statements made by P.W.1.
6. Dr. Azhar Waheed (P.W.8) was posted as Medical Officer RHC Harappa Distt. Sahiwal on 26-3- 1996 where he conducted post-mortem examination upon the dead-body of Mst. Shehnaz Akhtar and found the following injuries on her body:--
(1) A lacerated wound 3 c.m. x 1 c.m. x subcutaneous tissues deep forming an open track, some blackening was present on back inner lower part of left upper arm.
(2) An inverted lacerated wound 1-1/4 c.m. x 1 c.m. x deep going into chest cavity on back outer middle part of left chest.
(3) An everted-lacerated wound 4 c.m. x 2 c.m. x deep going on front left chest, 7 c.m. Above and medial to left nipple.
' On dissection of track under injury No,2, fracture of 2nd and 7th ribs was found whereas left lung was badly damaged along with pulmonary vessels. In the opinion of the doctor cause of death was due to hemorrhage, shock leading to death due injuries Nos.1 to 3 which were inflicted by the fire arm weapon and were sufficient to cause death in an ordinary course of nature. The duration between injuries and death was immediate whereas between death and post-mortem was within 24 hours.
7. Alam Sher S.-I. (P.W.9) was posted at Police Station Harappaon 26-3-1996 where Shameer complainant appeared before him and madea statement on the basis of which F.I.R. (Exh.P,A.) was recorded. _Thereafter the said S.-I.Went to the place of occurrence. He took into possession dead- body of Mst. Shehnaz deceased, prepared injury statement (Exh.PG) and inquest, report (Exh.PG/1) and sent the dead-body to the mortuary R.H.C. Harappa through Muhammad Mansha C/966 for post-mortem examination. He collected blood-stained earth from the place of occurrence vide recovery memo (Exh.PD),.Lantern (P.5) vide memo. (Exh.PF), cot (P.6), quilt (P.7), Gadda (P.8) and pillow (P.9) vide recovery memo Exh.PE. He inspected the spot and prepared rough site-plan Exh.PH.
He also recorded the statements of the witnesses under section 161, Cr.P.C. On 14-7-1996 he arrested Ali Sher appellant who on 23-7-1996 while being under custody led to the recovery of .7 MM rifle ,(P.10) from inside his house which was taken into possession vide recovery memo. Exh.P.1.
8. After closure of the prosecution evidence, the appellants were examined under section 342, Cr.P.C. Ali Sher appellant deposed in his statement that. Sarfraz appellant was his real brother and both of them were sons of Mst. Gaman sister of Shameer complainant who was previously married to one Ghulam Qadir but was abducted by their father Sultan who had subsequently married said Mst. Gaman and out of that wedlock the appellants had born. To a question as to why this case against him and why the P.Ws. Had deposed against him, Ali Sher appellant replied:- "The P.Ws. Are closely related and are inimical towards me as my father Sultan abducted away Mst.
Gaman from her previous husband Ghulam Qadif due to which Shameer and Naseer P.Ws.
Developed grudge. Since that time we are not on talking terms with the complainant party. The P.Ws. Were not present. It was a blind murder wherein many suspects were arrested and Muhammad Ali Sial was also apprehended who was having illicit relations with Mst. Shahnaz deceased due to which Mst. Shehnaz deceased had left house of her husband Abid Hussain son of Shahamad. C.W.1. Muhammad Ali Sial was let loose by the complainant party and the police after receiving huge money I and my brother were falsely entangled. I and my brother were already married. I was married to Mst. Shehnaz daughter of Mohabbat son of Saeed resident of Jhang whereas my brother Sarfraz was married to Mst. Bhrawan. Mst. Shehnaz deceased. Daughter of Shameer was married on 7-2-1994 with Abid Hussain and hence he never nourished any grudge and no occasion had ever arisen to develop such nefarious design in our mind. The complainant and the P.Ws. Have taken revenge of abduction of Mst. Gaman his sister from us. We are innocent."
' Sarfraz appellant also made a similar statement. He further claimed that he had been found innocent during investigation.
9. The appellants also made an application for summoning of Abid Hussain, husband of Mst.
Shahnaz deceased which was accepted and the. Said Abid Hussain was summoned as C.W.1. Who deposed that Mst. Shehnaz was married to him on 7-2-1994 and was his wife till her death.
10. At the end of the trial, the learned trial Court convicted and sentenced the appellants as mentioned-above.
11. Seeking acquittal of the appellants, their learned counsel has contended that the appellants who were as innocent as lamb, had been falsely involved in this case; that the learned trial Court had disbelieved the prosecution story as far as the motive is concerned; that the ocular evidence is not worth reliance; that there was inordinate delay of seven hours in lodging the F.I.R. And that during the investigation both the appellants were found innocent. Learned counsel has emphasized that as a matter of fact it was a blind occurrence which had taken place in the dark hours of the night.
He has further argued that the deceased was a lady of easy virtues and was in fact murdered by Mamand Ali Sial, her paramour. In this regard he has referred to the evidence of Abid Hussain C.W.1., the husband of the deceased who had categorically stated that his wife was murdered by Mamand Sial. On the basis of the said submissions, learned counsel for the appellants has prayed for acquittal of both the appellants.
12. Conversely, the' learned Deputy Prosecutor-General assisted by Rao Muhammad Atif Nawaz, Advocate for the State has opposed the appeal.
13. Heard. Record perused with the assistance of the learned counsel for the parties.
14. After perusal of the record, I have gathered that the prosecution case rests upon the evidence of motive, medical evidence and ocular testimony.
' As far as motive is concerned, according to the prosecution the complainant had decided to give the hand of Mst. Shehnaz deceased to one Nawaz son of Shahamand but the said marriage had not been consummated as according to him her Rukhsati had not taken place. The appellants, statedly, wanted the hand of the deceased for Sharaf appellant and for the said purpose they had allegedly managed her divorce from the said Nawaz. The complainant further alleged that as an exchange of said marriage, he had demanded hand of a lady belonging to family of the accused for his son which was refused whereupon Mst. Shahnaz deceased also refused to marry Sharaf appellant upon which theappellants felt insulted and murdered her. The prosecution version as far as motive is concerned, was disbelieved by the learned trial Court. I have gone -through the reasoning advanced by the learned trial Court in said regard and found the same to be based upon sound material. I have observed that during the trial it was sufficiently proved that the deceased was a married lady. Abid Hussain had appeared as C.W.1. And had claimed himself to be husband of the said lady. He was duly cross-examined by the learned D.D.A. But no suggestion was put to him that the deceased was not his wife. Rather it was put to him that he had divorced said Mst. Shehnaz prior to occurrence. Besides that the defence had brought on record a Nikah Nama (Exh.DB) according to which the deceased was married to Abid Hussain. This fact clearly shows that the story of motive as advanced by the prosecution was nothing but a cock and bull story. So the prosecution's claim that the deceased was a virgin lady stood dislodged. Consequently, I have no hesitation to hold that the prosecution had miserably failed to prove the story of motive. Rather it was demolished and fell like house of cards during the trial.
' As far as medical evidence is concerned that only shows that the deceased had died due to fire- arm injuries. Medical evidence cannot pinpoint the assailants. According to the prosecution the occurrence had taken place at 1/2.00 a.m. On the night intervening 25/26-3-1996 while the post- mortem was conducted at 10-00 a.m. On 26-3-1996. According to Dr. Azhar Waheed (P.W.8) duration between death and post-mortem examination was between 24 hours. While during his cross-examination he had conceded that it could be upto 36 hours. However, he had emphatically denied that duration between death and post-mortem could be 7/8 hours. This aspect of the matter makes the prosecution story of occurrence having taken place at about 1/2-00 a.m. On 26- 3-1996 doubtful. Besides that according to the doctor possibility could not be ruled out that the deceased had received the injury while in standing position though according to the prosecution she was murdered while lying on the Bet net result of the discussion made above is that the medical evidence has not fully supported the prosecution case.
' As far as the ocular testimony is concerned, that was provided by Shameer complainant who appeared as P.W.1 and Naseer P.W.4. According to the said witnesses the occurrence had taken place in the dark hours of night and the assailants were identified by them in the light c of lantern.
The source of light is thus lantern which is considered to be a weak source to identify a person under stress and emotion. There is nothing on the record to show as to where the lantern was lying at the relevant time. Though according to the prosecution, the said lantern was taken into possession yet while preparing the site-plan the location of the lantern was not shown in the same.
Naseer P.W.4 who is an old person of 80 years had candidly admitted that his eye-sight- was weak but,apparently with mala fides, during the cross-examination he had stated that his eye-sight had become weak after the murder of Mst. Shahnaz. As far as testimony of P.W.1 another eye-witness is concerned, he had admitted during cross-examination that the assailant who had shot dead his daughter was having his back side, towards him. In the back drop of the said circumstance the identification of the murderer/murderers at the relevant time becomes highly doubtful. As , far as the point of identification in the light of lantern in concerned, reliance is placed on the cases of All Nawaz v. The State 1988 PCr.LJ 1736; Gullan v. The State 1990 M LD 1110 and Muhammad Arshad v. The State (PLD 1995 SC 475).
14A. Ocular evidence is not found to be worthy of any reliance. It appears that to falsely implicate the appellants the eye-witnesses had made totally false story of motive which was nutrightly discarded by the documentary evidence as well as the evidence of C.W.1. As has been held above.
According to the defence there was illwill between the eyewitnesses and the accused as father of the appellants had married their mother who was sister of the complainant after abducting her and for this reason they were not on visiting terms. In this backdrop, chance of false implication cannot be ruled out. According to the defence one Mamand who had illicit relations with Mst.
Shehnaz deceased had murdered her. The said story was corroborated by an independent witness i,e, husband of the deceased who had appeared as Court-witness. While deposing before the Court he had emphasized that Mamand Sial had murdered his wife. During cross-examination he had deposed that said Mamand had destroyed his matrimonial life as he was having illicit relations with Mst. Shahnaz deceased. On Court's query he submitted that he had not secured registration of case on account of fear and humiliation. He further admitted that Mst. Gaman mother of the appellants was abducted by their father from the house of his previous husband.
While in the witness-box he had further deposed that during investigation he had informed Rab Nawaz Inspector and Dilshad Khan D.S.P. That in fact Mamand Ali Sial had murdered his wife.
According to him during the investigation the said Mamand All Sial was apprehended by the police. This fact got further support from the deposition of Shameer P.W.1 who had admitted during the cross-examination that during the investigation the trackers had secured the moulds and guarded the foot-prints of the accused. That shows that they had not in fact seen the actual murderers. Besides that perusal of the evidence shows that both the eye-witnesses while appearing as P.W.1 and P.W.4 had made a lot of contradictions. During the evidence it had also come on record that the said eye-witnesses were not persons of clean slate as they were also involved in criminal cases previous to the present occurrence. Shameer complainant was involved in a murder case as admitted by Naseer P.W.4 who hadfurther admitted that in the days of British empire he himself was involved in theft cases. During investigation nothing incriminating was recovered at the instance of the appellants. In absence of any corroborating evidence no implict reliance can be placed on such like evidence furnished by the alleged eye-witnesses.
15. For what has been noticed and discussed above, I have come to the conclusion that the prosecution has failed to prove the case against the appellants beyond shadow of doubt.
Therefore, while giving the benefit of doubt to the appellants, the appeal is accepted and impugned Conviction and sentences are set aside. The appellants are acquitted of the charge. Ali Sher appellant is on bail. His bail bonds stand discharged. Sarfaraz alias Sharaf appellant is in jail.
He be set at liberty forthwith if not required to be detained in any other case.