' IJAZ AHMAD CHAUDHRY, J.--- Mst. Sajida Bibi, Maqsood Ahmad, Shahbaz Ahmad, Muhammad Ayub and Muhammad Idrees appellants have preferred Criminal Appeals Nos.51 of 2002, 308 of 2002 and 461 of 2002, respectively against their convictions and sentence, who vide judgment, dated 31-1-2002 handed down by the learned Additional Sessions Judge, Gujranwala, were convicted and sentenced as under:-- ' Muhammad Ayyub and Muhammad Idrees appellants under section 302(b)/34, P.P.C. And sentenced to life imprisonment with compensation of Rs,50,000 each to the legal heirs of the deceased Riaz Ahmad. They were also convicted under section 460, P.P.C. And sentenced to R.I. For ten years each. Benefit of section 382-B, Cr.P.C. Was extended to the appellants.
' Mst. Sajida Bibi, Maqsood Ahmad and Shahbaz Ahmad under section 302(b)/109, P.P.C. And sentenced to life imprisonment with compensation of Rs,50,000 each except Mst. Sajida Bibi (appellant).
2. The occurrence in the present case allegedly had been taken place on 8-3-1999 at 11-00 a.m.
Within the area of Mohalah Islampura, situate 4 kilometers away from Police Station Garjakh District Gujranwala and initially the statement (Exh.P.C.) of Mst. Sajida Bibi appellant wife of the deceased Muhammad Riaz under section 154, Cr.P.C. Was recorded by Rana Muhammad Yasin Inspector/S.H.O. (P.W.12) at the place of occurrence on the same night at 12-10 a.m. On the basis of which formal F.I.R. (Exh.P.C./1) was drafted by Muhammad Asghar Moharrar/Head Constable on the same night at 12-30 a.m. (night). However, during the investigation she was implicated as an accused along with others.
3. The brief facts as narrated in the F.I.R. (Exh.P.C./1) by Mst. Sajida Bibi wife appellant are that she was married with Muhammad Riaz deceased in the year 1990 while her husband used to live in America since 1982, who returned in October, 1998 from America to Pakistan and he purchased a shop in Bazar Kharadan, Gujranwala and started its decoration. On the fateful day (8-3-1999), her husband sold the golden ornaments and came back to his house and handed over to her Rs,50,000 for placing in safe custody and she placed it in the drawer of a table. At 11-00 p.m. The deceased went to Bazar and brought bananas for his children, who when entered his house, two persons having the features mentioned in the F.I.R., while armed with daggers while following him entered the house. They grappled with him and said that the sale price of the golden ornaments be delivered to them, who then bolted the door from inside, took the husband of the complainant to bed-room and caught hold of him by throwing him on the bed. One of the said accused took out the amount of Rs,50,000 along with a pistol .30 bore and cartridges. They also snatched a ring worn by the said victim and the golden bracelet from him. In the meantime, the accused started taking off the golden bangles worn by Mst. Sajida Bibi appellant, who resisted, whereupon the said accused caused dagger blows upon her left palm and fingers. In the meantime her deceased husband said that he had got identified the accused and they would have to face the consequences, whereupon the accused inflicted injuries with dagger upon his neck who died at the spot and the accused made good their escape. They locked the door from outer side and on the hue and cry raised by Mst. Sajida Bibi appellant her "Jaith" Muhammad Ishaque (brother of Muhammad Riaz deceased) reached the spot who opened the door and saw the said accused while they were running.
4. After the registration of the case Rana Muhammad Yasin Inspector/S.H.O. (P.W.12) inspected the place of occurrence, recorded the statements of the P.Ws. Under section 161, Cr.P.C. And managed to escort the dead body to the mortuary for post-mortem examination through Qamar Zaman and Muhammad Riaz constables. He also prepared injury statement Exh.P.G. And drafted an application (Exh.P.H.) for the post-mortem examination to know the cause of death. The inquest report Exh.P.J.
Was also prepared by him and was sent along with the other police papers for post-mortem examination. He also prepared the site plan of the place of occurrence without scale which is Exh.P.U. Signed by him. He took into possession the blood-stained cotton and after the post- mortem examination on the dead body of Riaz deceased, Muhammad Riaz constable produced before him the last-worn clothes of the deceased viz. Shalwar P.1, Qameez P.2 stained with blood which were taken into possession vide recovery memo. Exh.P.E. Attested by the P.Ws. On 9-3-1999 appellant Mst. Sajida Bibi was sent to D.H.Q. Hospital, Gujranwala for her medical examination in the company of Wasil Hussain, A.S.-I., who produced the copy of MLC before him on the same evening at 11-00 p.m. The Draftsman prepared the scaled site plan of the place of occurrence and produced 'the same. (Exh.P.B.) and (Exh.P.B./1) on 14-3-1999. Thereafter the investigation of this case was changed from him. On 3-7-1999 the investigation was entrusted to Muhammad Yousaf Inspector (P.W.11) by the order of the S.S.P. Gujranvvala. He recorded the supplementary statement of Muhammad Nazir P.W. Under section 161, Cr.P.C. The statements of Ishaque, Khadim Hussain, Walayat Khan, Yaqub and Noor Muhammad were also recorded. On 4-7-1999 Idrees, Shahbaz, Maqsood and Ayyub made a disclosure before him about the commission of this occurrence. He arrested the accused and got their physical remand and investigated this case. On 6-7-1999 he was retired from service. On 7-7-1999 the investigation was entrusted to Manzoor Khaliq (C.W.4) by the orders of S.P. Gujranwala. The appellants Idrees, Maqsood and Shahbaz were produced before him. He obtained their physical remand and interrogated them. On 14-7-1999 Idrees appellant led to the recovery of pistol P.5 which he took into possession vide recovery memo. Exh.P.L. He prepared site plan of recovery of pistol Exh.P.L./1. On 16-7-1999 Ayub led to the recovery of a Chhuri P.4, which he took into possession vide recovery memo. Exh.P.N. He also prepared the site plan of recovery of Chhuri Exh.P.N./1. On 19-7-1999 the said accused/appellants were sent to jail on judicial remand. On 17-7-1999 Idrees appellant also led to the recovery of Chhuri P.3 which he took into possession vide recovery memo. Exh.P.O. And prepared the site plan of the said recovery vide memo. Exh.P.O./1 and completed the'investigation.
5. After the completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellants, the charge was framed which was denied by them and they claimed to be tried. The prosecution in order to prove its case produced as many as 14 witnesses. The medical evidence was produced by Dr. Rao Asif Ali Khan (P.W.4) who had 'conducted the post-mortem examination of Muhammad Riaz. P.W.1 Noor Ahmad was the witness of conspiracy allegedly hatched by Maqsood, Mst. Sajida Bibi, Ayub and Shahbaz. P.W.6 Muhammad Nazir father of the deceased and P.W.7 Muhammad Mushtaq brother of the deceased deposed about the motive. P.W.9 Muhammad Ishaque, P.W.10 Khadim Hussain and P.W.14 Muhammad Yousaf were the witnesses of different recoveries. The investigation had been conducted by Muhammad Yousaf Inspector (Retired) P.W.11, Rana Muhammad Yasin (Retd.) Inspector, S.-I./S.H.O. (P.W.12) and Manzoor Khalid S.-I., C.I.A. (P.W.13).
The remaining witnesses are of formal nature and need not to discuss here.
6. After the close of the prosecution evidence the statements of the appellants were recorded under section 342, Cr.P.C. In which they denied the allegations and professed their innocence.
However, to a question that "why this case against you and why the P.Ws. Deposed against you?"
Mst. Sajida Bibi appellant made the following reply which is reproduced as under:-- "The deceased Riaz was my husband, who was brutally murdered by two unknown persons and whose names were later on came to my notice when they were under the custody of C.I.A. Staff, Gujranwala in another case and were pointed out by me as the accused of the murder of my husband in the C.I.A. Staff. I being the witness of the occurrence promptly lodged the F.I.R. The elder brother of my deceased husband namely Muhammad Ishaque was also accompanied me at the time of reporting the matter to the police. There are four children from the wedlock of me and my late husband. My in-laws were not enjoying good relations with my late husband so soon after the murder of my husband my father-in-law Nazir tried his efforts to snatch the belongings of my husband and involved me in a false civil and criminal litigations. Muhammad Nazir the father of my late husband maliciously involved me in this case while twisting the actual facts. So I filed a separate complaint case against the accused who murdered my husband. The P.Ws. Are inter se relations with each other, being their common interest and have deposed falsely against me. And the statements of the P.Ws. Of abetment against me have been manoeuvred at a very belated stage."
' The appellants did not opt to .Make statements under section 340(2), Cr.P.C. And also denied to produce any defence evidence.
7. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of convictions and sentences against the appellants which is being assailed through the instant appeals.
8. Learned counsel for the appellants namely Mst. Sajida Bibi and two others contends that it was a case of no evidence and Mst. Sajida Bibi is the complainant of the F.I.R. Which was got registered immediately after the incident against two unknown persons; that the statement of Muhammad Mushtaq (P.W.7) brother of the deceased had also been recorded under section 161, Cr.P.C. By the police in which he supported Mst. Sajida Bibi; that Muhammad Nazir (P.W.6) admitted during the cross-examination that a case under section 365, P.P.C. Was registered after the incident against Mst. Sajida Bibi etc. Before her implication and the disputt was regarding the property of the deceased and this was the reason that the appellant Mst. Sajida Bibi had been involved in the present case; that sufficient material had not been brought on the record to connect the appellants with the commission of the crime; that the statements of the second set of witnesses had been recorded after 4-1/2 months of the occurrence and if the conspiracy had been hatched in the presence of Noor Ahmad (P.W.1) who being the close relative of the deceased also attended the funeral, visited the place of incident and why he kept silent about the conspiracy for a long period which itself is sufficient to negate his version and he also failed to inform the deceased or any other relative, who could have made preventive measures to save his life; that no recovery had been effected from Mst. Sajida Bibi and Maqsood appellants and other appellants except Idrees and Ayub; that the prosecution had miserably failed tp prove the case against the appellants beyond any shadow of doubt.
9. Learned counsel appearing on bhalf of Muhammad Idrees and Muhammad Ayub appellants has contended that except for Mst. Sajida Bibi, none others was present at the spot and the 'explanation given by them is not acceptable. It is also contended that Mst. Sajida Bibi had allegedly pointed towards the said two appellants before the police, but no identification parade was got conducted; that the appellants were not nominated in the F.I.R. And they were falsely got involved in this case, after she was involved by her in-laws as an accused in the present case in order to save her skin; that the recovered articles were of general pattern which are easily available in the market and had been planted upon the appellants; that the recovery of blood- stained Chhuri effected after four months could not be stained with blood and the report of the Chemical Examiner being false cannot be relied upon. Relies upon Muhammad Ilyas and 5 others v. The State PLD 1967 SC 443 and Abdul Rehman and others v. The State 1983 SCM R 958 in support of his contentions.
10. Learned Additional Prosecutor-General opposes these appeals on the ground that the witnesses have !No previous enmity against Muhammad Ayyub and Muhammad Idrees to falsely implicate them in this case.
11. I have heard the learned counsel for the parties and also perused the record.
12. The occurrence in this case had taken place in the night between 8/9-3-1999 at 11-00 a.m. In the house of Muhammad Riaz deceased and the case was reported promptly by Mst. Sajida Bibi appellant wife of the deceased against two unknown accused, who committed murder with dacoity. However, during the investigation, the case took a turn and Mst. Sajida Bibi was made an accused alleging to have hatched conspiracy with the others for committing murder of her husband Riaz, who used to live in USA and in his absence she developed illicit relations with Maqsood Ahmad appellant.
13. The prosecution produced as many as 15 P.Ws. In support of its case. Admittethy, none of them had seen the main occurrence of murder of Riaz deceased and dacoity committed in his house, when his wife Mst. Sajida Bibi appellant was also present there, who sustained injuries as confirmed by Dr. Muhammad Farooq (C.W.1) on the same night of the occurrence at 4-00 a.m. The prosecution case rested upon the evidence of:-
(i) Motive; (ii) Conspiracy/abetment; (iii) recoveries; and (iv) medical evidence.
14. Muhammad Nazir (P.W.6) and Muhammad Mushtaq (P.W.7) deposed that Mst. Sajida Bibi and Maqsood Ahmad appellants had illicit relations with each other in the absence of the deceased, who had been working in U.S.A. P.W.6 Muhammad Nazir was father of the deceased while P.W.7 Muhammad Mushtaq was real brother of the deceased. Their statements cannot be relied upon as it was explained by P.W.6 that his statement and the statements of the other witnesses had been recorded by C.I.A. Police after four months of the incident. He also stated during the cross- examination that a case was registered against Mst. Sajida Bibi and her brother under section 395/452, P.P.C. After the occurrence of murder of Riaz deceased and afterwards Mst. Sajida Bibi was involved in the present case for the murder of deceased Muhammad Riaz. P.W.6 further explained that the case got registered by him under section 395/452, P.P.C. Was in respect of the property belonging to Riaz deceased and the same was cancelled by the D.S.P. According to P.W.6 he had been living in the same house where Mst. Sajida Bibi was residing along with children of the deceased. He also stated that all his sons were residing in the same house but then changed his statement by stating that they were firing in separate houses. P.W.6 could not deny that on the night of occurrence Mst. Sajida Bibi appellant made statement before the police and at that time he along with other witnesses was also present and the police had been visiting the house for about ten days to inquire about the incident but they did not make any statement regarding the illicit intimacy between Maqsood Ahmad and Mst. Sajida Bibi, who according to the version of the witness in examination-in-chief was the main accused for the murder of the deceased. Similarly the statement of Mushtaq Ahmad (P.W.7) cannot be relied upon, who had also made such statement before the police after more than four months of the occurrence. Both the P.Ws.6 and 7 failed to give any instance when they had seen Mst. Sajida Bibi and Maqsood Ahmad while committing adultery or what was their source to level such an allegation. After perusal of the statements of P.Ws.6 and 7 I am of the view that the allegation was based on suspicion and the same could not be proved. The possibility of making such statements by P.Ws.6 and 7 in order to grab the property of the deceased by involving the appellant Mst. Sajida Bibi in the murder case of her deceased husband cannot be ruled out. Thus, the statements of P.Ws.6 and 7 cannot be held sufficient to prove the motive, rather it has been smelt from their statements that they having become inimical towards Mst. Sajida Bibi appellant got her involved in this case, who is mother of four children of the deceased and also sustained injuries during the occurrence.
13. The next piece of evidence was conspiracy allegedly hatched between Mst. Sajida Bibi and other appellants for the murder of her husband Riaz deceased. To prove the same, the prosecution produced Noor Muhammad (P.W.1), who stated that on 3rd March, 2004 he along with Muhammad Yagoob (not produced) was coming from Cold Storage, Wannianwala and in the way stayed at a Hotel situate at Bus Stop Chachharwali to take a cup of tea, when they saw Maqsood and Mst.
Sajida appellants along with three unknown persons who were later on known to him, as the accused present in the Court. Their names were disclosed by him as Shahbaz and Ayub and the name of the third appellant he could not disclosed at the first juncture but later on stated that he was Idrees. According to P.W.6, they heard Mst. Sajida saying to the other appellants that her husband Muhammad Riaz (deceased) was teasing her all the times, therefore, he should be eliminated and Maqsood Ahmad appellant told Mst. Sajida that he and other co-accused would murder Riaz for payment of Rs,50,000 as advance money and the remaining amount would be received later on. After bare perusal of the statement of P.W.1, he is found to be unreliable and untruthful witness. First of all he stated that the alleged conspiracy had been over heard by them on 3-3-2000, but it is strange that the occurrence had taken place much earlier on 8-3-1999. This cannot be a typographic mistake as at the end of examination-in-chief of P.W.1, the Prosecutor being conscious of the factum of wrong date stated by the P.W. Attempted to recollect him that the conspiracy had been heard by them in the year 1999 about two years earlier when his statement was recorded in the Court. Then P.W.1 failed to disclose any reason for coming to the hotel and staying there, which was at a distance of two and a half kilometers from the Cold Storage and at the most he reached there per chance, when the conspiracy was being hatched between the appellants while present at the hotel widely and openly, but it is strange that P.W.1, who was Mohallandar and also related to the deceased had not immediately approached the deceased or any of his other close relatives like father and brother to inform about the alleged, conspiracy hatched by the appellants, who could make preventive measures. Even no complaint was made to the police. This was an unnatural conduct on the part of P.W.1, who also failed to disclose about the alleged conspiracy immediately after the murder of Riaz deceased to anybody and admittedly, his statement for the first time had been brought on the police file, when the investigation of this case was got transferred to C.I.A. Staff. P.W.1 also failed to give the time of conspiracy between the appellants. Even otherwise according to P.W.1 only Mst. Sajida Bibi appellant was known to him previously and he failed to disclose the source of information through which he came to know about the names of other appellants, who were unknown to him. The prosecution failed to bring on record any source through which the accused involved in this case had been traced out and no identification parade had been got conducted. Moreover, mere statement of P.W.1 was not sufficient to connect the appellants with the alleged crime of murder of Riaz deceased as the prosecution failed to produce any witness, who had seen any of them while committing this occurrence. In these facts and circumstances, the evidence of P.W.1 does not inspire confidence and with the exclusion of the same, the prosecution has left with no other evidence to connect the appellants with the alleged crime.
14. Now comes the recovery evidence. Admittedly nothing had been recovered from Maqsood Ahmad, Mst. Sajida Bibi and Shahbaz appellants during the investigation. Muhammad Ishaque P.W.9 was the witness of recovery of Chhuri allegedly got effected by Ayub and Idrees appellants. I am unable to understand that how this recovery could be treated as a piece of evidence against .Them because none had seen them while using the same in the occurrence. Moreover, the alleged place of recovery was not exclusively owned and possessed by the appellants, which was accessible to every one and it cannot be expected the accused/ appellants could have preserved the alleged weapons of offence stained with blood for a period of more than four months for subsequently producing the same before the police to use as a piece of evidence against them.
Even otherwise after such a long period the blood could not be detected on the Chhuris. The case- law cited by the learned counsel for the appellants supports this view.
15. Idrees appellant on 14-7-1999 was also claimed to have got recovered a pistol allegedly belonging to the deceased from the graveyard. The said recovery was witnessed by Khadim Hussain P.W.10. The prosecution failed to bring anything on the record that the said pistol belonged to Riaz deceased. Moreover, none had seen Idrees appellant while stealing the same. Ayub appellant was also alleged to have got recovered bracelet on 16-7-1999 from the house of Shahbaz appellant and recovery witness was Muhammad Yousaf P.W.14. There is nothing on the record that it was owned by Riaz deceased. Mere statement of Khadim Hussain P.W.10 that he had identified the pistol and golden chain belonging to Riaz deceased- cannot be taken as a sufficient evidence to prove the same because no distinguishable features of the alleged recovered articles for claiming the property of Riaz were not disclosed.
16. From the above discussion I am of the view that recovery evidence was useless and could in no-way connect the appellants with the alleged crime. The alleged disclosure by Ayub and Idrees appellants before the Investigating Officer about 'commission of the occurrence while getting recovered different articles was inadmissible in evidence and the learned trial Court had erred in law while placing reliance on the same.
17. So far as medical evidence is concerned, it only discloses about the nature of injuries, the weapon used and the cause of death, but it cannot lead to the accused involved in causing of these injuries. The medical evidence cannot be used against the appellants against whom no evidence has been brought on the record that they had caused 11 incised wounds on the, person of the deceased, which were observed by the doctor (P.W.4) while conducting-the post-mortem examination of Riaz deceased.
18. From the above discussion and after going through the whole evidence on the record I am of the considered view that it was a case of no evidence and the prosecution failed to bring on record any sufficient evidence to connect the appellants with the alleged crime beyond any shadow of doubt. The learned trial Court committed material illegality while recording conviction and sentence against the appellants. I am unable to understand that how it was gthered merely from the alleged recovery of Chhuris from them at the belated stage that they were actually involved in the murder of Riaz deceased at the spot while causing injuries to him, when no witness appeared, who had seen them while doing so. In such circumstances the impugned conviction and sentence recorded against all the five appellants cannot be sustained in the eyes of law. Resultantly, all the three criminal appeals are accepted, the impugned judgment is set aside and all the five appellants are acquitted honourably. Muhammad Ayub and Muhammad Idrees appellants are in jail, who shall be released forthwith if not required in any other case while the remaining appellants are discharged of the liability of surety bonds.