' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,397-J of 2001 filed by Zulfiqar alias Gulzar son of Alam Sher, who, along with his father Alain Sher, uncle Abdullah and brother Wali Muhammad, faced trial in case F.I.R. No,603, registered at Police Station Chak Jhumra, Faisalabad, on 20-9-1997, for offences under sections 302/34/109, P.P.C., before learned Additional Sessions Judge, Faisalabad, who after conclusion of trial, vide his judgment dated 29-9-2001, while acquitting rest of the accused, convicted the appellant under section 302(b), P.P.C. And sentenced him to Death with compensation of Rs,20,000 or in default six months'
R.I.
2. Murder Reference No,692 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as narrated in F.I.R. Exh.P.F. By Aurangzeb complainant/P.W.7 are that on 20-9-1997 at about 7-00 a.m. His mother Mst. Sattan Bibi was going towards Bus-stop Jandawala for shopping. When she reached Pull Naweenwala, Zulfiqar alias Gulzar armed with carbine and his father Alam Sher armed with .12 bore gun came out from the nearby sugarcane crop. Zulfiqar fired with his carbine, which hit Mst. Sattan Bibi on the backside of her left ear, who fell down. Zulfiqar also caused second fire, which hit mother of the complainant on left side of her chest. At that time the complainant along with Asghar Ali son of Abdul Hameed and Noubahar son of Pehalwan were going towards Railway Station for some labour/work. They witnessed the occurrence from a distance of 1/2 acre and ran towards the spot. Zulfiqar and Alam Sher ran away from the scene of occurrence brandishing their weapons. Mst. Sattan Bibi succumbed to the injuries at the spot.
4. The motive behind the occurrence as set down in the F.I.R. Was that about 1-1/2 years prior to the occurrence sister of the complainant Mst. Pervin Bibi was married with Zulfiqar but due to strained relations she was residing in the house of her parents. In the month of May Mst. Pervin Bibi filed a suit for dissolution of marriage. Prior to the occurrence both Zulfiqar and Alam Sher had been extending threats of murder to the deceased. Due to grievance of strained relations, the accused had murdered Mst. Sattan Bibi in furtherance of their common intention.
5. After registration of formal F.I.R., the investigation of the case was taken over by Rab Nawaz, Inspector/S.H.O./P.W.9. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.D. And inquest report Exh.P.E. He took into possession blood-stained earth from the spot vide memo. Exh.P.G. On 11-12-1997 he arrested Zulfiqar alias Gulzar and on 19-12- 1997, while in custody, Zulfiqar led to the recovery of carbine P.4 and two live cartridges P.5/1-2. He took the same into possession vide memo. Exh.P.B. During investigation P.W.9 found Alam. Sher, Abdullah and Wali Muhammad to be innocent and did not arrest them, therefore, after completion of investigation while placing them in Column No,2 of the challan only Zulfiqar alias Gulzar was 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 Exh.P.J. And that of Serologist Exh.P.K.
Closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court, while acquitting Alam Sher, Abdullah and Wali Muhammad, convicted and sentenced Zulfiqar alias Gulzar-appellant as stated above.
7. 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 both the witnesses were chance witnesses, who could not plausibly explain their presences at the time of occurrence; that the witnesses had grudge against the appellant; that the ocular account is not supported by the medical evidence; that the recovery of carbine also negates the story of the prosecution that the appellant was equipped with .12 bore gun; that the prosecution case was not free from doubt.
8. The learned counsel appearing on behalf of the State have contended that the occurrence took place when the daylight was available; that the appellant was known to the P.Ws.; that the prosecution has successfully proved motive against the appellant; that the story put forward by the P.Ws. Is supported by the medical evidence and corroborated by the circumstances of the case; and that the recovery of carbine reflects on the inefficiency of the Investigating Officer and would not benefit the appellant in this case nor acquittal of rest of the accused would benefit the appellant as they were assigned different roles to that of the appellant. They support the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties at length and scanned the entire evidence minutely. In order to support its case the prosecution produced two eye-witnesses namely Aurangzeb, who is son of the deceased and his maternal-uncle Asghar Ali as P.W.7 and P.W.8 respectively. Both of them lived together at a distance of six acres from the place of occurrence.
They were chance witnesses and had strained relations with the appellant, as sister of Aurangzeb, who was wife of Zulfiqar, had filed suit for dissolution of marriage against the appellant while Zulfiqar used to demand the share of her mother in the property from Asghar Ali. According to the prosecution case, the occurrence took place at 7-00 a.m. While Mst. Sattan Bibi was going to Bus- stand in order to purchase some household articles. She was done to death in the Chowk in the middle of road. Both the witnesses stated that per chance they were going towards Railway Station in order to earn their living when they saw the occurrence from 1/2 acre and rushed to the spot.
During cross-examination Asghar Ali P.W.8 admitted that he and Aurangzeb were going towards Gatti Railway Station in search of labour, which was at a distance of 7/8 squares from their residence. He further admitted that the place of occurrence, which was at a distance of six acres from their residence was towards South, while Gatti Railway Station was towards North of their residence. In that case they must be moving towards opposite direction and not towards the spot.
10. The deceased received two injuries. The witnesses did not mention that the appellant reloaded his carbine. No empty was recovered from the spot. Two injuries could not be caused by a carbine without reloading it. In case the P.Ws. Would have been there they would not have allowed the assailant to reload his carbine.According to doctor, injury No,1 was caused from within a distance of three feet while according to site plan the assailants were at a distance of six Karams (30 feet) from the deceased. During trial the witness made dishonest improvement by stating that injury was caused from a distance of one yard in order to bring their statements in conformity with the medical evidence. According to doctor, stomach contained semi-digested food, small intestines contained chime, large intestine contain faecal matter and bladder contained few ounce of urine.
The observations of the doctor suggest that the occurrence took place much earlier that the time narrated by the P.Ws.
11. As far as motive is concerned, it cuts both ways. In the instant case and in an unwitnessed occurrence it was most likely that the P.Ws. Would implicate a person against whom they had grudge. It is pertinent to note that any independent witness available near the spot was never produced during trial.
12. The recovery of carbine is of no consequence, as no one from the public was associated with the recovery proceedings. No empty was recovered from the spot and the weapon was never sent to the Forensic Science Laboratory.
13. In the above noted circumstances, we have concluded that the prosecution had failed to prove its case beyond doubt against the appellant. Hence we allow this appeal, set aside the judgment passed by the learned trial Court and acquit the appellant from all the charges. He would be released from jail forthwith, if not required in any other case.
14. Murder Reference is answered in the negative. Death sentence is not confirmed.