Muhammad Farrukh Mahmud, J.--This judgment will dispose of Criminal Appeal No.' 707 of 2002 filed by Noor Muhammad and Manzoor Ahmad, who alongwith Abdul Ghafoor, Muhammad Ramzan and Zahoor Ahmad faced trial in case FIR No. 153, registered at Police Station Ahmadpur Sial, on 21.9.1999, for offences under Sections 302/324/148/149 PPC, before learned Additional Sessions Judge, Shorkot, District Jhang, who after conclusion of trial, vide his judgment dated 25.4.2002, while acquitting Muhammad Ramzan, Abdul Ghafoor and Zahoor Ahmad, convicted and sentenced the appellants as under:--
(1) Noor Muhammad Under Section 302(b) PPC DEATH with compensation of Rs. 1,00,000/- or in default six months' S.I.
(2)Manzoor Ahmad Under Section 302 (b) PPC 25 Years R.I: with compensation of Rs. 50,000/- or in default three months' S.I.
2. Murder Reference No. 291 of 2002 for confirmation or . otherwise of death sentence awarded to Noor Muhammad-appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as narrated in FIR Ex.PH are that Ghulam Muhammad-complainant alongwith his brothers, Shahamand and Pehelwan as well as other family members resided at his Dhari situated within the area of Chak No. 7/3/L. On the fateful day after Fajar Prayer while the complainant, Shahamand, Akram and Iqbal were sitting in the courtyard and the other family members were sleeping on their cots, Muhammad Ramzan, Abdul Ghafoor, Zahoor Ahmad, Manzoor Ahmad and Noor Muhammad, all armed with pistols, came there. At that time son of the complainant Muhammad Arif alongwith his wife Ghulam Fatima was sleeping under the tree of Neem. All the accused started firing towards both of them. Muhammad Ramzan caused fire, which hit on the head of Muhammad Arif. Second fire caused by Ghafoor hit on the right side of chest of.
Muhammad Arif, while Manzoor Ahmad fired at Ghulam Fatima, which landed on her right shoulder. Noor Muhammad fired at Muhammad Arif on the left side of his chest The fire caused by Zahoor Ahmad hit Ghulam Fatima on her left picep. On hue and cry of the complainant party, all the family members also got up. Thereafter the accused fled away from the spot. Muhammad Arif succumbed to the injuries at the spot.
4. The motive behind the occurrence was that when Ghulam Fatima was about 2/3 years old, her father had agreed to give her hand to Manzoor Ahmad verbally but when Ghulam Fatima attained puberty, her father refused to give the hand of his daughter to Manzoor Ahmad and got married his daughter with Muhammad Arif, which caused annoyance to the accused.
5. After registration of formal FIR, the investigation of the case was taken over by Muhammad Siddique, Inspector/SHO, who died before commencement of trial, therefore, Muhammad Yasin, ASI, appeared as PW-9 and identified the handwriting and signatures of Muhammad Siddique, Inspector. After completion of investigation, the accused were sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 9 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Ex.PP, Serologist Ex.PQ and that of Forensic Science Laboratory Ex.PR closed its case. The accused in their statements recorded under Section 342 Cr.P.C. pleaded their innocence and false .implication. They did not appear as witness under Section 340(2) Cr.P.C. After conclusion of trial, the learned trial Court, while acquitting Muhammad Ramzan, Abdul Ghafoor and Zahoor Ahmad, convicted and sentenced the appellants as stated above.
7. The learned counsel for the appellants after having read the entire prosecution evidence, statements of the appellants recorded under Section 342 Cr.P.C. and other relevant material available on record in support of this appeal has contended that in fact the occurrence took place during dark of the night and the assailants could not be seen by the witnesses; that the statements of Ghulam Fatima was recorded on the following day, which supported the fact that the witnesses could not see the assailants; that four real brothers and their nephew were involved in the case; that Muhammad Ramzan, Abdul Ghafoor and Zahoor Ahmad, who were attributed specific injuries, have been acquitted by the learned trial Court and their acquittal has not been challenged; and that no independent corroboratory evidence was available on record to justify the conviction of the appellants on the basis of principle of sifting of grain from chaff. While pressing acquittal of Manzoor Ahmad, the learned counsel has submitted that as far as Noor Muhammad was concerned, he did not deserve the extreme penalty of death, as according to his version brought on the record of the case, he committed the murder due to family honour, as Ghulam Fatima in existence of marriage with Manzoor Ahmad married with Muhammad Arif-deceased and Muhammad Arif used to taunt Noor Muhammad when ever he came-across.
8. On the contrary, the learned Additional Prosecutor General submits that the PWs being inmates of the house their presence at the time of occurrence was natural; that Ghulam Fatima received injuries during the occurrence so her presence cannot be denied; that the ocular account is supported by the medical evidence and corroborated by the recovery of empties and their tallying with the weapons recovered at the instance of the appellants; that the acquittal of rest of the accused would not benefit the appellants as the learned trial Court while acting on the principle of safe administration of justice acquitted the rest of the accused, as the empties did not tally with their weapons; and that no mitigating circumstance exists in favour of Noor Muhammad- appellant.
9. We have heard the learned counsel for the parties at length and scanned the entire record minutely with their able assistance.
10. In order to prove the prosecution case Ghulam Muhammad, father of Muhammad Arif- deceased, and Ghulam Fatima, who had allegedly received injurialt during the occurrence and was wife of the deceased, were produced before the learned trial Court. As per FIR, the occurrence took place at 5:00 a.m. on 21.9.1999. The complainant, Shahamand, Muhammad Akram son of Shahamand and Muhammad Iqbal were smoking Huqqa after saying Fajjar Prayer, while rest of the inmates of the house were asleep on their cots when the accused launched murderous assault. Noor Muhammad and Manzoor Ahmad appellants alongwith Muhammad Ramzan, Abdul Ghafoor and Zahoor Ahmad were roped in this case. Noor Muhammad Manzoor Ahmad, Abdul Ghafoor and Zahoor Ahmad are real brothers, while Muhammad Ramzan is their maternal nephew.
Mst. Muridan Bibi, sister of the complainant, was married with father of the appellants. However all the four brothers were sons of Mst. Jannat Bibi, second wife of Ahmad. Sister of the complainant was step-mother of the four brothers. It is, also in evidence that the appellants, Abdul Ghafoor and Zahoor Ahmad were only sons of Ahmad. Both the witnesses have levelled specific allegations and have attributed specific injuries to all the five accused. According to them, all the accused, who were armed with pistols, started firing at Muhammad Arif and his wife Ghulam Fatima, who were sleeping under the shade of a tree. The fire caused by Muhammad Ramzan hit on the head of Muhammad Arif, while fire caused by Abdul Ghafoor hit on the right side of chest of Muhammad Arif. Fire caused by Noor Muhammad also hit on the upper left side of chest of Muhammad Arif. The fire caused by Manzoor Ahmad hit on the left shoulder of Ghulam Fatima, while fire cause by Zahoor Ahmad hit on the left biceps of Ghulam Fatima. The learned trial Court has acquitted Muhammad Ramzan, Abdul Ghafoor and Zahoor Ahmad. No appeal has been preferred against their acquittal. Both the witnesses have been disbelieved qua the acquitted accused. While convicting the appellants the learned trial Court relied upon the recoveries and motive. We will come to that aspect of the case later, as we would like to discuss the quality of the evidence furnished by Ghulam Fatima and Ghulam Muhammad first.
11.As far as examination-in-chief of both the witnesses is concerned, they have made parrot like statements. However, during cross-examination Ghulam Fatima stated that police reached the spot at 6/7:00 a.m. but her statement was recorded under Section 161 Cr.P.C. on the following day of the occurrence. She had received only superficial injuries and was well oriented in time and space.
There is no explanation as to why her statement was not recorded either at the spot or in the Hospital. She further stated that her uncle Ghulam Muhammad did not meet her either in the house or in the Hospital. According to her, she had reached Hospital at 7:30 a.m. However in the presence of Investigating Officer and Ghulam Muhammad her statement was not recorded on the day of occurrence and was recorded on the next day.. The delay of more than 24 hours in recording the statement of Ghulam Fatima, without any reason, casts doubt on the veracity of the whole prosecution case. It was observed by the Apex Court in Muhammad Khan's case (1998 SCMR 570) that "credibility of a witness is lookedwith serious suspicion if his statement under Section 161 Cr.P.C. is recorded with delay without offering any plausible explanation." In the case of Syed Saeed Muhammad Shah and another vs. The State (1993SCMR 550) the Hon'ble Supreme Court observed that "statements recorded by the police after delay and without explanation are to be ruled out of consideration."
12. Ghulam Fatima is not shy of telling lies. She stated that she did not know whether Manzoor had filed any application in the Union Council Kassoana stating therein that she was wife of Manzoor.
She further stated that she did not know whether Manzoor had filed suit for restitution of conjugal rights in the Court of Judge Family Court, Shorkot. Perusal of Ex.DC available at page 133 of the paper book reveals that Manzoor had filed suit for restitution of conjugal rights against Ghulam Fatima on 18.6.1999 about three months prior to the occurrence. Ghulam Muhammad complainant admitted it to be correct that father and grand-maternal father of Ghulam Fatima had been appearing in Union Council in connection with application moved by Manzoor, who claimed Ghulam Fatima to be his wife. Ghulam Muhammad further admitted that Ghulam Fatima and her father Shahamand lived in the same Haveli where he lived, so it was not possible for Ghulam Fatima to remain unaware of the application of Manzoor and proceedings thereafter in the Union Council. According to Ghulam Fatima, when she was 2/3 years old her father agreed to marry her with Manzoor, however, when she grew up her parents refused to give her hand to Manzoor and they married her with Muhammad Arif. Her statement is belied by the contents of the written statement Ex.DD, available at page 136 of the paper book, submitted by her on 13.10.1999 before the Judge Family Court, Shorkot, wherein she admitted that her father had given her in Nikah while she was minor and that on 12.5.1999 Manzoor had divorced her thorough oral pronouncements as well as written document. She further stated that as marriage was not consummated Tallaq become effective immediately after pronouncement. Her statement to the effect that accused were at a distance of 1/1-1/2 feet when they fired at the deceased is also not supported by the medical evidence, as no blackening or tattooing was seen by Dr. Ghulam Farid PW-1 around the wounds.
During cross-examination the Doctor stated that minimum distance between the deceased and the assailants would be four feet. As far as the complainant is concerned, he also made improvements during his statement before the learned trial Court and was duly confronted by his earlier statement. As noted above the complainant and Ghulam Fatima have already been disbelieved qua the rest of the accused, whose roles were not distinguishable from that of the roles of convicted appellants . In such like cases the guideline has been laid down by the Hon'ble Supreme Court. Reference may be made to the cases of Tariq Khan vs. The State (1997 SCMR 254) wherein it was observed that "we do find any distinction between the case of prosecution set up against accused Azizullah and the appellant. The case set up by the prosecution against appellant and Azizullah being at part the acquittal of accused Azizullah in the case which has not been challenged either by the State or by the complainant through any acquittal appeal no rationale was available before the High Court for maintaining the conviction and sentence of the appellant."
In the case of Rehmat alias Rehma Mashi vs. The State (1995 SCMR 733) it was observed by the Apex Court that "case of the accused was distinguishable from that of acquitted co-accused and therefore conviction of accused based on the same insufficient evidence could not sustain."
13. In the instant case the learned trial Court has relied upon the recovery evidence. As according to report of the Forensic Science Laboratory Ex.PR six empties C-1 to C-6 were collected from the spot and were sent to the Laboratory. Out of six four empties C-1, C-3, C-4 and 0-5 were found, had been fired by the pistol recovered at the instance of Manzoor. The other empty C-2 was found, had been fired by the pistol recovered at the instance of Noor Muhammad. No opinion was given about the empty C-6 as the same was without percussion cap. The learned trial Court failed to take notice of the fact that according to prosecution Manzoor fired a single shot, which hit on the left shoulder of Ghulam Fatima. No other fire was attributed to Manzoor. Even if the recovery evidence was to be believed, it did not support the prosecution case. However, recovery evidence in the instant case was not worthy of any credence for the reasons that the empties were collected on 21.9.1999 but according to PW-7 he handed over sealed parcel containing empty cartridges to Muhammad Ramzan, Constable, for onward transmission to the Laboratory on 24.11.1999. According to the report of Forensic Science Laboratory the empties were received on 30.11.1999. Why the empties were kept at Thana for two months! No reasons are available on record. It is the duty of the Investigating Officer to send the empties to the Laboratory as soon as possible preferably within a week, but in this case the empties were kept for two months at the Thana. Furthermore on 30.9.1999 the parcel containing blood-stained earth was sent to the Office of Chemical Examiner. The alleged recovery of pistols was effected on 29.10.1999, so the empties were sent after a month of alleged recovery of pistol in order to show that the empties and the pistols were not sent together.
The pistols were sent to the Laboratory on 13.12.1999 and were received at the Laboratory on the same date. In these circumstances, no reliance could be placed on the evidence of recovery. It is also noteworthy that Ghulam Muhammad, who was eyewitness, was produced to support the evidence of recovery. It was observed by the Apex Court in the case of Muhammad Tasneem vs. The State (1985 SCMR 160) that "recovery evidence was weak inasmuch as recovery witness was himself a very close relative of deceased and as such was an interested witness whose testimony required. corroboration." Even otherwise the mandatory requirement of Section 103 Cr.P.C. is that the witnesses of recovery should be respectable inhabitants of the locality.
14. As far as the medical evidence is concerned, it supports the prosecution case only to the extent that Muhammad Arif lost his life due to fire-arm injuries and it does not lead to the assailants. As far as the injuries of Ghulam Fatima are concerned, according to medico-legal report both the injuries were superficial laceration wounds, one on the upper part of left arm and the other on the top of left shoulder. Doctor did not mention whether the injuries were entry wounds and what was their depth. The column relating to "kind of weapon used" was also left blank and subsequently through blue carbon-paper weapon was added. There is no record of corresponding holes on the shirt worn by Ghulam Fatima. Doctor admitted that he did not mention the corresponding holes on the clothes of Ghulam Fatima. In these circumstances whether Ghulam Fatima received fire-arm injuries during occurrence is not free from doubt.
15.As far as the motive is concerned, according to prosecution case while Ghulam Fatima was 2/3 years, old her parents had engaged her with Manzoor-appellant However, Ghulam " Fatima on attaining majority was married with Muhammad Arif-deceased one month prior to the occurrence and this caused annoyance to Manzoor and his other relatives. On the contrary Manzoor claimed that Ghulam Fatima was married:with him and he had not divorced Ghulam Fatima. According to him, Ghulam Fatima married with Arif in the existence of earlier Nikah. In order to appreciate the claims of the parties, we have gone through the oral and documentary evidence available on record. As noted above, Manzoor filed suit for restitution of conjugal right (Ex.DC) against Ghulam Fatima, wherein he claimed that the marriage was consummated and Ghulam Fatima had been living in his house as his wife. Ghulam Fatima in her written statement Ex.DD admitted that the was given in Nikah to. Manzoor by her father when she was minor. She further stated that on 12.5.1999 the complainant (Manzoor) annulled the marriage through written divorce as well as pronouncement of divorce orally three times. However, no divorce deed was brought on the record of the case. Ex.DF at page 140 of the paper book is copy of Nikah Nama of Muhammad Arif with Ghulam Fatima, in the relevant column of Nikah Nama Ghulam Fatima has been shown to be a divorcee. The above noted documentary evidence belies the claim of the prosecution that only the promise of marriage was made and Ghulam Fatima was never given in Nikah of Manzoor Ahmad, so motive as set by the prosecution has not been proved.
16.The upshot of the whole discussion is that no reliance can be placed on the statement of Ghulam Fatima and Ghulam Muhammad. Their statements have been rightly disbelieved qua the acquitted co- I accused. They cannot be believed against the present appellants as well in the absence of reliable corroboratory evidence, which is lacking against Manzoor Ahmad-appellant.
This appeal to the extent of Manzoor Ahmad-appellant is accepted and the judgment passed by the learned trial Court to his extent is set aside, He is acquitted of all the charges and would be released from Jail forthwith if not required in any other case.
17.Now coming to the case of Noor Muhammad-appellant It was suggested to complainant that Muhammad Siddique SHO/I.O. investigated the case while sitting in the mosque. It was also suggested to him that only Noor Muhammad accused was found guilty, however, that suggestion was denied. Muhammad Yasin, ASI, who identified the handwriting of Muhammad Siddique SHO, appeared as PW-9. During his cross-examination the first version of Noor Muhammad was brought on record of the case by the learned Defence Counsel himself. PW-9 admitted it to be correct that Muhammad Siddique, Inspector, recorded the statement of Noor Muhammad accused on 29.10.1999,- He also admitted it to be correct that first version of Noor Muhammad accused was that Mst. Fatima was engaged with his brother Manzoor but later on she was married with Muhammad Arif since deceased. Muhammad Arif used to tease him by taunting that he had married his would be Bhabhi. He initially controlled himself but later on could not pocket the insult and in the heat of passion committed the murder of deceased Muhammad Arif and injured Mst.
Fatima all alone. At the time of commission of the offence no other accused was with him. The statement of the accused before the Investigating Officer cannot be used by the prosecution at all nor the Court can convict a person on the basis of his statement before the police as the same is inadmissible in evidence, but the accused, if he chbse so, could bring his statement on record of the case and then the same could be relied upon. Reliance is placed on the case of Hasil Son of Qabul vs. Emperor (AIR 1942 Lahore 441) wherein the learned Court` observed that "the prohibition contained in Section 25 (of the Evidence Act) can be treated as applying only to confessions which are to be proved as against the accused, that is, in support of the prosecution case, and cannot apply to statements on which the accused himself wishes to rely in connection either with his conviction or his sentence. In cases of this kind, when two versions of the same incident are being put forward, it is. often of the greatest importance for an accused to be able to show that his own explanation was put forward at the earliest possible opportunity, and we do not think that it can ever have been the intention of the Legislature that an accused person should be deprived of the right to make use of such a statement, merely because to a certain extent it goes against him."
Similar view was expressed by the learned Division Bench of this Court in the case of Muhammad Yaqub vs. The State (PLD 1969 Lahore 548), wherein it was observed that "we would like to make it clear that under Section 25 of the Evidence Act, confession is not to be received or treated as evidence against the person making it, if it criminates him, but if the accused himself wishes to rely on his statement which exculpates him he cannot be deprived of the right to make use of such a statement." In the instant case Noor Muhammad has brought his first version on record,which shows that he caused murder because of provocation. The provocation on the part of the accused is also spelt out from the circumstances of the case that Ghulam Fatima had married with Arif deceased without obtaining any divorce from Manzoor. In the above noted circumstances we agree with the learned counsel for the appellants that Noor Muhammad did not deserve the extreme penalty of death. Hence, while maintaining conviction under Section 302(b) PPC we alter his sentence to imprisonment for life. Benefit of Section 382-B Cr.P.C. is extended to him. However, in the light of the judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Miraj Begum vs. Ejaz Anwar and others (PLJ 1982 SC 435) the complainant party is not entitled to any compensation in the circumstances of the case. Hence the order passed by the learned trial Court under Section 544-A Cr.P.C. is set aside.
18. Consequently, Murder Reference is answered in the negative and the sentence of death is not confirmed.