' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,421-J of 2001 filed by Ghulam Qasim, who was convicted and sentenced by the learned Sessions Judge, Bhakkar, in case F.I.R. No,32, registered at Police Station Haiderabad, District Bhakkar, on 10-7-2001, for offence under section 302, P.P.C., vide his judgment dated 28-11-2001 as under:-- ' Death with compensation of Rs,50,000 or in default six months' S.I. Under section 302(b), P.P.C.
' Murder Reference No,772 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
2. Brief facts of the case as narrated in the F.I.R. Exh.PL are that Mst. Kanizan sister of the complainant was married with Muhammad Sadiq, who had agricultural land in Rakh Dingana. Out of wedlock three sons and two daughters had born. Muhammad Sadiq was murdered in 1998.
Thereafter the complainant sent Ghulam Qasim as servant to Mst. Kanizan to look after the affairs of lands. Ghulam Qasim worked satisfactorily for two years. During year 2001 it transpired that Ghulam Qasim misappropriated the crops, resultantly a quarrel took place. Mst. Kanizan asked Ghulam Qasim to leave the house, who refused to do so. Tanvir Sadiq son of the deceased informed the complainant and his uncle. So the complainant along with Mansha Khan went to the house of Mst. Kanizan. In the evening, after tearing Ghulam Qasim, they asked him to leave the house of Mst. Kanizan. During night the complainant, Mansha Khan, Tanvir Sadiq and other family members slept in the house. Ghulam Qasim also slept there. At about 2-00 a.m. Ghulam Qasim took .12 bore gun from a room and fired at Mst. Kanizan. On noise of fire the complainant woke up and saw in the moonlight that Ghulam Qasim was running towards outside the house. They followed Ghulam Qasim but he fled away.
3. After registration of formal F.I.R., the investigation of the case was taken over by Ghulam Akbar, S.-I./P,W.11. He proceeded to the place of occurrence, took over the dead body, prepared inquest report Exh.PC. He took into possession bloodstained earth from the spot vide memo. Exh.PG. On 20- 7-2001 he arrested Ghulam Qasim-accused, who led to the recovery of blood-stained hatchet and gun along with five live cartridges P-6/1-5 and a bag P-7 from a room of chaff, which were taken into possession vide memos. Exh.PK and Exh.PI. After completion of investigation, the accused was sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PP, Serologist Exh.PQ and that of Forensic Science Laboratory Exh.PR closed its case. The accused in his statement recorded under section 342, Cr.P.C. Pleaded his innocence. He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial the appellant was convicted and sentenced as stated above.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support of this appeal submits that it was an unwitnessed occurrence; that the ocular account was in conflict with the medical evidence; that the P.Ws. Made dishonest improvements after knowing about the injuries on the person of the deceased; that Tanvir Sadiq was not present at the time of occurrence as he had gone to the house of his uncle Mansha Khan, similarly Muhammad Yousaf, resident of a place which was at distance of 25/30 k.m., had no occasion to be present at the time of incident; that the F.I.R. Was lodged after a considerable delay and postmortem was also conducted on the next day; that both these factors lead to the conclusion that the P.Ws. Were not present at the time of occurrence; that the recovery evidence is not believable as the appellant had no time to conceal the gun as well as hatchet in the chaff room; and that the prosecution case was not free from doubts.
6. The learned counsel appearing on behalf of the State have submitted that Tanvir Sadiq being inmate of the house was natural witness; that Muhammad Yousaf maternal uncle of Tanvir Sadiq was present at the time of occurrence, as he had come to settle the dispute between the appellant and the deceased; that the hatchet injuries could not be mentioned in the F.I.R. Due to inadvertence as the complainant was very grief due to death of her sister; and that the prosecution version is supported by the medical evidence as well as recovery. They support the judgment passed by the learned trial Court.
7. We have heard the learned counsel for the parties at length and gone through the record minutely. The law was set in motion by Muhammad Yousaf/P.W.9, real brother of Mst. Kanizan- deceased, who reported the occurrence at the police station. According to F.I.R., on the fateful night Ghulam Qasim-appellant, who was servant of the deceased was dismissed due to misappropriation of crop but was allowed to spend night inside the Haveli. At about 2-00 a.m.
Ghulam Qasim picked .12 bore gun from the room and fired at the head of the deceased from point blank range. It was noise of the fire which awakened the complainant and other P.Ws., who identified Ghulam Qasim in the moonlight. During trial Muhammad Yousaf made dishonest improvements and stated that he woke up after hearing noise and saw Ghulam Qasim accused giving hatchet blows to his sister. Firstly the accused inflicted hatchet blows and then he took a gun in his hand and fired at the deceased on the back of her head. The injuries caused by the hatchet are not mentioned in the F.I.R. At all. It was stated in the F.I.R. That after leaving Tanvir Sadiq with the dead body the complainant went to the police station. It clearly means that the injuries caused by the sharp-edged weapon were not in the knowledge of either the complainant or Tanvir Sadiq/P.W.10. The injuries caused by the sharp-edged weapon were mentioned in the supplementary statement of the complainant, which cannot be equated with the F.I.R. The supplementary statements are mostly recorded in order to fill the lacuna in the prosecution case or to add number of accused. In the instant case it is evident that supplementary statement of the complainant was recorded by the Investigating Officer after examination of the dead body.
Ghulam Akbar S.-I./P.W.11 admitted that first of all he examined the dead body and prepared injury statement as well as inquest report. He found two sharp-edged injuries and a fire-arm injury on the dead body. Thereafter he recorded the supplementary statement of the complainant. He further admitted that the statements of other P.Ws. Were recorded thereafter at the spot. It clearly shows that both the witnesses did not know about the injuries caused by the sharp-edged weapon and came to know about it after the Investigating Officer examined the dead body of Mst. Kanizan. It was concealed in the F.I.R. That Ghulam Qasim, who was a boy of 16/17 years was cousin of the deceased. Both the P.Ws. Have also contradicted each other on material points. Muhammad Yousaf P.W.9 stated during trial that at 2-00 a.m. He woke up on hearing noise of fire and saw Ghulam Qasim giving hatchet blows to his sister, then Ghulam Qasim took a gun in his hand and fired at his sister. While in the F.I.R. It was stated that the appellant lifted a gun from the room and then caused fire. On the same point Tanvir Sadiq P.W.10 stated that Ghulam Qasim slept having gun along with him. He further stated that while inflicting hatchet blows the accused had placed the gun nearby. Both the witnesses are not shy of telling lies. The factum of hatchet as noted above, was never mentioned in the F.I.R. And in any ease there was no reason for the assailant to use two weapons to cause death of Mst. Kanizan. The assailant could have easily escaped after causing injury No,1 with hatchet, which was sufficient to cause death in ordinary course of nature.
Undeniably, the complainant lived at distance of 25/30 km. From the place of occurrence, while Mansha Khan uncle of Tanvir Sadiq, who was not produced during trial, lived in Multan. Tanvir Sadiq P.W.10 had left his house to fetch Mansha Khan and Muhammad Yousaf. According to P.W.10, he along with Muhammad Yousaf and Mansha Khan returned to his house at about 8-00 p.m. On the fateful day. On the contrary, according to F.I.R., Tanvir Sadiq had informed Muhammad Yousaf and his uncle Mansha Khan about the dispute over misappropriation of crop and on receipt of information the complainant and Mansha Khan went to the Dera of the deceased and heard the version of the appellant and the deceased in the evening.
8. According to medical evidence, the deceased received three injures on her person. Injuries Nos.1 and 2, which were on the head region were caused by a sharp-edged weapon, while Injury No,3, which was also on the head, was caused by a fire- arm. It has been noted above that the injuries caused by the sharp-edged weapon were not mentioned in the F.I.R. At all, which leads to the conclusion that it was an unwitnessed occurrence.
9. The motive behind the occurrence, according to F.I.R., was that the appellant, who was serving the deceased for a period of three years, had misappropriated the crop which led to the dispute and Ghulam Qasim was dismissed, who refused to leave. In their statements the P.Ws. Stated that the dispute was over gram crop. However, P.W.10 had to admit that the gram crop was harvested in the months of April and May, while the occurrence took place in the month of July on 10th.
Undeniably, the accused was about 16/17 years of age and P.W.10 admitted that he was stronger in physique than the appellant. Hence P.W.10 could have easily kicked Ghulam Qasim out of the house and did not require the help of anyone else.
10. As far as the recovery of gun and hatchet from the chaff room at the instance of the appellant is concerned, it is a piece of fabrication on the part of the Investigating Officer. In F.I.R., it was stated that the accused after causing fire ran away from the Haveli and was followed but he made good his escape. It was not mentioned whether he took away gun along with him or not. It was also not mentioned whether gun was double barrel. During trial the witnesses stated that the accused after occurrence ran away through door while having hatchet and gun in his hands. It was stated that the P.Ws. Tried to catch hold of the accused but he ran away. The question would be if the accused ran away from the spot along with gun and hatchet in his hand and was also followed by the P.Ws.
Then, when he got a chance to hide both the weapons in the chaff room of the deceased.
Furthermore, no independent witness was produced to prove the recovery. As far as Muhammad Iqbal P.W.8 is concerned, he was first cousin of the deceased's husband and lived at distance of 100 k.m. From the spot. It is also noteworthy that according to Ghulam Akbar S.-I./P.W.11 he arrested Ghulam Qasim on 20-7-2001 and on the same day the accused led to the recovery of gun and hatchet from a Kotha of chaff, which was near the place of occurrence. The empty recovered, on 10-7-2001 from the spot was not sent to the Forensic Science Laboratory and the same was sent along with gun after its recovery. In these circumstances no reliance can be placed on the evidence of recovery. At the cost of repetition it may be added that it was not mentioned in the F.I.R.
That the accused was holding a double barrel gun.
11. In the above noted circumstances, we have concluded that the prosecution case was replete with doubts. Hence we allow this appeal and set aside the judgment passed by the learned trial Court. The appellant is acquitted of all the charges. He would be released forthwith, if not required in any other case.
12. Murder Reference is answered in the negative. Death sentence is not confirmed.