Kh. Muhammad Sharif, J.--The appellants Rizwan Ahmad and Faqir Muhammad were tried by the learned Additional Sessions Judge, Rawalpindi, in case FIR No. 134 registered at P.S Saddar Barooni, Rawalpindi, on 4.7.1997 for offences under Sections 302/392/411/34 PPC. Vide judgment dated 25.4.2000, the learned trial Court convicted and sentenced the appellants as follows:-
(I) For offence under Section 302/34 PPC to death each plus payment of rupees one lac each as compensation to the legal heirs of Mst. Razia Bibi deceased, in default whereof to undergo S.I for six months each;
(II) For offence under Section 392 PPC to undergo R.I for ten years each plus payment of Rs.
20,000/- each as fine, in default whereof to suffer further S.I, for six months each; and
(III) For offence under Section 411 PPC to undergo R.I for three years each plus payment of Rs.
10,000/- each as fine, in default whereof to suffer further S.I for six months each.
2. The appellants have challenged their above noted convictions and sentences through the instant appeal. Sher Muhammad complainant has brought Criminal Revision No. 67 of 2000 seeking enhancement of the amount of compensation inflicted upon the appellants. Murder Reference No. 365 of 2000 seeking confirmation of otherwise of death sentence imposed upon the appellants has also been placed before us. We propose ,to decide all these matters through this consolidated judgment.-
3. Briefly the facts of the prosecution case per FIR Ex.PK recorded by Ghazanfar Ali, ASI/PW-16, at the instance of Sher Milhammad complainant/PW-14, are that the complainant, a retired employees of the Army, was resident of wench Bhata, Rawalpindi. His sister Mst Razia Bibi widow of. Raja Muhammad Akram was living in Street No. 3 Ahmadabad Dhamial Camp Rawalpindi. Since her husband had died; her elder son Muhammad Saleem was living in Saudi Arabia alongwith his family members and her younger son Azhar Mahmood, an employee in the Police Department, was living in Karachi alongwith his family, the complainant used to look after her off and an 4.7.1997 at about 8:30 p.m as usual, the complainant went to the house of his sister and was worried to see that the door was open, her dead body was lying smeared with blood in the room adjacent to the kitchen. The hue and cry raised 4.y him attracted a number of people of the locality. Strong suspicion was expressed that the appellants, who often used to visit the house of her sister, had committed her murder. It was further alleged that Rizwan Ahmad appellant, being a neighbour, was on visiting terms with his sister for the last 13/14 years and also used to drive her car. Both the appellants with a view to looting her car and jewellery had committed her murder. The accused had taken away alongwith them the Suzuki car and golden ornaments consisting of two Karas, six bangles, two ear rings and a locket.with its chain, weighing about 8/9 Tolas. The complainant while on his way to the police came across Ch. Muhammad Afzal and Haji Ghulam Hussain who told him that they had seen the appellants going towards Rawalpindi city on a Suzuki car belonging to the deceased.
4. On 4.7.1997, after.registration of the case at the instance of the complainant, Ghazanfar Ali, ASI/PW-16, alongwith other police officials went to the spot; inspected the dead body of the deceased; prepared its inquest report Ex,PM and injury statement Ex.PN and sent the dead body for post-mortem examination. On spot inspection, he took into possession blood stained Dopatta P-5 of the deceased vide memo Ex.PD. He also took into possession blood, stained chaddar P-10, two blood stained Khais P-11 and P-12, one lead of tape recorded P-13 and a bread roller P-14 through memo Ex.PF. He prepared the site-plan of the place of occurrence Ex.PP. He also got prepared the scaled site-plan Ex.PJ & PJ/1 from the. Draftsman. Rizwan Ahmad appellant was arrested on 26.7.1997. On 30.7.1997, Rizwan Ahmad appellant, while in custody, led to the recovery of golden ornaments consisting of Kara P-6, two bangles P-7/1-2, a locket P-8, which were taken into possession through memo EX.PE. On 3.8.1997, the appellant also led to the recovery of blood- stained Banyan P-15 and keys P-16/1-3, which were taken into possession vide memo Ex.PG. On 5.8.1997, Faqir Muhammad, accused/appellant was arrested and while in custody on 7.8.1997, led to the recovery of two golden bangles P-17/1-2 and two ear rings P-18/1-2 froni his house situated in Chak No ,108 (South Sargodha), which were taken into possession vide memo Ex.PI. The car P-4 alongwith memo under Section 550 Cr.P.C. Ex.PC was taken into possession from Muhammad Riaz, HC of Police Post, by Asghar Ali, SI/PW-15, vide memo Ex.PL. After completion of investigation, both the appellants were challenged to face the trial.
5. To substantiate its version at the trial prosecution produced nineteen witnesses. After tendering in evidence the reports of Chemical Examiner Ex. PQ, PR, PS and that of the serologist Ex.PQ/1, PR/1, PS/1, closed its side. Thereafter, the statements of the appellants under Section 342 Cr.P.C. were recorded, wherein they pleaded their innocence and false implication.
6. Learned counsel for the appellants in support of this appeal submits that it was an unwitnessed and there was no eye-witness in this case; that as far as witnesses of Wajtakkar namely Nasir Mahmood/PW10 and Ghulam Hussain/PW-11 are concerned, they are closely related to the deceased and the complainant; that it was impossible for both the PWs to have seen both the appellants while sitting in the car at 4:00 a.m. when the head lights of the car were on; that the car was taken into possession on the same day by Muhammad Arif, ASI/PW-19, under Section 550 Cr.P.C. and the recovery witnesses were Faiz Ahmad and Sikandar, Constables/PW-6 and 7. The learned counsel further submits that in spite of the fact that the seizure of the car was told through wireless messages to the police station in Rawalpindi but after one month of the occurrence, the car was taken into possession by the concerned police station; that as far as recovery of golden. ornaments is concerned, the same is violative of the provisions of Section 103 Cr.P.C.; that on the one hand, Rizwan Ahmad-appellant was alleged to., have led to the recovery of ornaments from his house on 30.7.1997 but on the other hand, he did not get record the vast which was got recovered on 3.8.1997. The learned counsel further submits that Tahir Mahmood Sheikh PW-12 is the recovery witness. He even went to Sargodha alongwith the police, although he was also witness of recovery against Rizwan Ahmad appellant; that as far as recovery is concerned, that was not in the exclusive possession of the appellant. It was in joint possession, so no reliance could be placed upon the same; that neither any independent witness was cited nor was produced before the trial Court. The learned counsel further submits that in fact, it is a case of no evidence coupled with the fact that PW-4 Dr. Muhammad Imdad conducted post-mortem examination of the deceased on 5.7.1997 at 12:30 p.m and the time between death and post-mortem examination was within 48 hours and between injuries and death was one hour; that there is only one fatal injury on the head of the deceased and it cannot be said with certainty as to which of the accused had caused the same; that when this is the position, then this is not a case of capital punishment; that if the above submissions are not accepted, then this Court can interfere regarding the quantum of sentence, as there are two sentences provided in Section 302(b) PPC: one is death and the other is imprisonment for life.
7. Conversely the learned Assistant Advocate General, Punjab, Rawalpindi, assisted by the learned counsel for the complainant submits that it has not been denied by Rizwan Ahmad that he was the driver of the deceased; that even on 1.7.1997 both the appellvits were seen in the house of the deceased by Sher Muhammad complainant. The learned counsel for the complainant submits that it is mentioned in the FIR that on the same day at 4:00 a.m two persons Nasir Hussain ands Ghulam Hussain had seen Rizwan Ahmad and Faqir Hussain, appellants, in the car belonging to the deceased; that on the same date at 5:00 a.m the car was intercepted and taken into possession under Section 550 Cr.P.C. by Muhammad Arif, ASI. At this stage, the learned counsel has referred to page 230 of the paper Book which is Ex.PL. The learned counsel submits that Ex.PL shows that it was only Rizwan Ahmad who was driver of the car which was taken into possession under Section 550 Cr.P.C. He further submits that Rizwan Ahmad had told the police that Faqir Muhammad/co- accused was his guest; that the case was registered in the evening of 4.7.1997 and that Rapat is a natural one; that it was Rizwan Ahmad-appellant, who , after his arrest, told the police that the car was taken into possession by Muhammad Arif/ASI. Learned counsel further submits that Nasir had told the police that Ghulam Hussain Was his co-driver; in the morning some body drives the car while in the evening he drives the car; that it was natural on the part of the two Wajtakkar witnesses Nasir Mahmood and Ghulam Hussain that they had seen both the appellants in the car after the occurrence; that at 4:00 a.m there was no dark on the day of occurrence; that the car which had been taken into possession goes a long way to prove the guilt of the appellants; that the complainant had no suspicions that Rizwan Ahmad appellant had any illicit relations with the daughter of the deceased; that Dhamial Morr and Chungi No. 22 are the same thing; that it was not asked by the defence counsel that Dhamial Chowk is different from Chungi No. 22; and that there is no reason of false implication of the appellants.
8. Learned counsel for the complainant further submits that for eighteen days and one month respectively the appellants were not traceable, although the house of Rizwan Ahmad appellant was adjacent to the house of the deceased. He submits that as far as non-recovery of Banyan on the day of recovery of golden ornaments is concerned, it was concealed in a shopper underneath the lower portion of the almirah; that there is no violation of Section 103 Cr.P.C., as the recovery on the disclosure and pointing of the accused was a natural one; that it was not the job of one man but more than one so far as the injuries on the person of the deceased are concerned. The learned Assistant Advocate General submits that three police officials who had taken the car into possession under Section 550 Cr.P.C. appeared before the trial Court and submitted that these are the two appellants who were seen in the car when the said car was taken into possession.
9. We have heard the learned counsel for the parties at a great length and gone through the record of the case.
10. First of all we may state here that it is a case of no eye witness as no body had seen any body while committing the murder of the deceased.
' In this case, three types of evidence has been produced by the deceases prosecution i.e. Wajtakkar consisting of Mahmood and Ghulam Hussain who appeared as PW-10 and PW-11 respectively. Nasir Mahmood is real maternal nephew of the deceased while Ghulam Hussain is not only nephew of the deceased but also son in law of Sher Muhammad complainant. Both of them stated that they had seen both. the appellants going through car from near them at 4:00 a.m when the head-lights of the car were on. We are not going to believe this version of these witnesses for the reason that one of the witnesses stated that the car was going at high speed on the day of occurrence at 4:00 on the dark. Then how it was impossible, especially when the head-lights were on, that the driver or the person sitting with him could be identified at that nick of the time. As far as recovery of the car under Section 550 Cr.P.C. is concerned, we may state here that it has also come on record that - Rizwan Ahmad appellant had no driving licence. In that event, the police should have apprehended at least Rizwan Ahmad or challaned him in that regard. Then how did the police let off the appellants who were not having papers relating to the said car. Moreover, if the appellants after committing. the murder of the deceased had also looted jewellery from her house and they were apprehended immediately, then that jewellery must have been in the car and could not have been recovered from Sargodha. According to the learned counsel for the complainant, the place of recovery of jewellery is, at a distance of six hotirs from Rawalpindi. Either the said jewellery should have been recovered from searching the appellants or from the seats or dickey of the car. The car was not taken into possession on the day it was apprehended althohgh a case was registered on 4.7.1997 at 10:45 p.m. The car was taken into possession after one month and two days of the registration of FIR, Ce although it was told on the wireless that such and such car had been taken into possession. Then the recovery of golden ornaments first on the pointation of Rizwan has no value. The same argument can be advanced here that when the jewellery was not recovered from the car or froth the appellant immediately after he was apprehended, then how the same had been recovered from his house. The golden ornaments were got recovered on 30.7.1997, while the vest was recovered on 3.8.1997 from the same house. The blood stained vest was not such a precious article that could not have been washed away or burnt away. As far as recovery on the pointation of Faqir Muhammad is concerned, the same was affected from Sargodha which is at a very long distance and the witness is Tahir Mahmood Sheikh who is also a witness of recovery affected at the instance of Rizwan Ahmad appellant. No body from the locality was even cited or associated at the time of recovery of alleged articles on the pointation of Faqir Muhammad. No weapon of offence was recovered on the pointation of any of the appellants after their arrest. The case against the appellants is not free from doubt. So while extending the benefit of doubt, we accepted this appeal and set aside the judgment passed by the learned trial Court.
The appellants are acquitted of all the charges. They would be released forthwith of not required in any other case. The death sentence is not confirmed. The murder reference is answered in the negative. For afore-referred conneeted revision petition is dismissed.