' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,651 of 2002 filed by Abdul Wahid, who along with Siddaq Hussain and Muhammad Aslam, faced trial in case F.I.R. No,359, registered at Police Station Saddar Pattoki, on 4-10-1999 for offences under sections 302/109, P.P.C., before learned Additional Sessions Judge, Pattoki, who after conclusion of trial, vide, his judgment dated, 30-3-2002 while acquitting Siddaq Hussain and Muhammad Aslam, convicted the appellant under section 302(b), P.P.C. And sentenced him to death with compensation of Rs,1,00,000 or in default six months' S.-I.
2. Murderer Reference No,247 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Briefly, the facts of the case as narrated in F.I.R., are that Zohrah Bibi daughter of Muhammad Yaqoob (complainant/P.W.4) was married with Muhammad Akram one year prior to the occurrence. As Muhammad Akram was serving in Army, the complainant used to sleep in the house of his daughter at Mouza Gohar Chak No,8. As usual, on 3-10-1999 the complainant along with his son Muhammad Aleem and one Muhammad Siddique reached the house of Zohrah Bibi at 10-30 p.m. Zohrah Bibi started to prepare tea for them at about 10-45 p.m. Outer gate was knocked, which was opened by Siddaq Hussain and Abdul Wahid entered the house and after just coming in the house, he caused six pistol shots, which hit Zohrah Bibi on different parts of her body, on hue and cry of the complainant party, the accused fled away from the spot. The occurrence was witnessed by the complainant, his son Muhammad Aleem and Muhammad Siddique son of Muhammad Din. Zohrah Bibi succumbed to the injuries at the spot.
4. The motive as set down in the F.I.R. Was that Abdul Wahid demanded the hand of Zohrah Bibi for his relative, which was refused. For that revenge Abdul Wahid at the instance of Siddaq Hussain and Muhammad Aslam committed the murder of Zohrah Bibi.
5. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Maqsood, S.-I./P.W.7, who conducted thorough investigation, arrested the accused and after recovery of .45 bore pistol at the instance of Abdul Wahid, sent them to face trial.
6. At the trial, the prosecution in order to prove its case produced 11 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.PK, Serologist Exh.PL and that of Forensic Science Laboratory Exh.PM 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. However, Muhammad Moosa appeared as D.W.1.
' After conclusion of trial, the learned trial Court while acquitting rest of the accused, convicted and sentenced the appellant as stated above.
7. The learned counsel for the appellant 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 in support of this appeal has contended that the prosecution failed to prove the motive; that the witnesses were chance witnesses and they could not plausibly explain their presence at the time of occurrence; that their statements are neither supported by the medical evidence nor any other reliable incriminating evidence; and that the prosecution case is replete with doubts.
8. On the other hand, the learned Deputy Prosecutor General submits that presence of the witnesses was natural; that they had no previous enmity with the appellant to involve him in a false case; and that the ocular account is supported by medical evidence and corroborated by the recovery of pistol, which was semiautomatic and was in working order. He supports the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties and scanned the entire evidence.
10. The prosecution case revolves around the statements of Muhammad Yaqoob father and Muhammad Aleem brother of the deceased. Both of them were residents of Mouza Dhulan Chak No, 7, while the occurrence took place in Mouza Gohar Chak No,8. In order to justify their presence in the house of the deceased during the late hours an impression was given in the F.I.R. That Muhammad Akram husband of the deceased was an Army Personnel, who used to be away from his house, hence the complainant used to sleep in the house of his daughter. The impression was totally washed out during recording of evidence, as .It was brought on record that the deceased was not the lone resident of the house rather three brothers, parents and two sisters of husband of the deceased also lived with her. In the presence of so many relatives of the husband of the deceased there was no need for the father or brother to leave their house and sleep in the house of their daughter, so very reason for P.Ws. Being present in the house of the deceased at the time of occurrence is belied by the evidence. Both the witnesses in order to become sole witnesses of the occurrence told many indigestible lies. For example P.W.3 Muhammad Aleem stated that parents of Muhammad Akram were present in the adjacent room but they did not come out of the room.
He further stated that police was contacted on telephone and having come to know that police was present in the Village Hussain Khanwala Chowk his father went there. Muhammad Aleem insisted that his statement was recorded at the place of occurrence in .Between 12-00 p.m. To 1-00 a.m. (during night). This is falsified by the fact that statement of the complainant was recorded at Hussain Khanwala Ghowk at 1-30 a.m. And thereafter Muhammad Masood, S.-I./P.W.7 reached the place of occurrence, so his statement could not be recorded in between 12-00 p.m. To 1-00 a.m. He also stands contradicted by the statement of complainant. According to him, he reached Hussain Khanwala Chowk at 1-30 a.m. (during night) and statements of Aleem, Siddique, Moosa and Ghulam Nabi were recorded at about 2-00 a.m. It is noteworthy that according to Aleem he took the dead body to the Hospital and started for the Hospital at 1-30 a.m. (Night). He further stated that he along with other residents of locality reached THQ Hospital, Pattoki, at about 2-00 a.m.
(during night). His statement stands contradicted by the statement of the Investigating Officer as well as by the contents of Exh.PA (postmortem report), according to which, dead body was taken to Hospital by Muhammad Yaqoob, Constable No,39 and Muhammad Yaqoob, Constable No, 1074, which was identified by Rana Muhammad Arshad and Muhammad Iqbal. In telling lies the complainant is not far behind from his son, as after admitting that the parents of Muhammad Akram, husband of the deceased, lived in the same house and three brothers and two sisters of Muhammad Akram also lived in the same house and were present at the time of occurrence, he stated that residents of the house came out of their room when the residents of the locality had gathered there. He added that residents of the house did not come out of the room for the reason that the occurrence had taken place with their connivance and male members of the house had fled away after the occurrence, but he had to concede the Ismail father of Muhammad Akram was not able to walk due to paralysis. The complainant implicated Muhammad Aslam (acquitted co- accused), as one of the abetters but during investigation he submitted affidavit written on stamp paper to the Investigating Officer, wherein he exonerated Muhammad Aslam. The conduct of the complainant reflects on his veracity. The occurrence took place at 10-45 p.m., so it was stated in the F.I.R. That both the P.Ws. Reached the house of the deceased at 10-30 p.m., who started preparing tea for them. However, in both the site plans prepared by the Investigating Officer and Nazir Ahmad, Draftsman/P.W.5, nothing has been mentioned about the kitchen or about preparation of tea. It is common , knowledge that the villagers normally do not take tea at late hours of night.
11. It was mentioned in the F.I.R. That Abdul Wahid caused six fires with his pistol, all of which hit on different parts of body of Zohrah Bibi. The seat of injuries was not mentioned in the F.I.R. According to medical evidence, the deceased received eight injuries in total. Injuries Nos.l, 2, 5 and 7 were entry wounds while rest of the injuries had averted margins and were exit wounds, so according to medical evidence, the deceased had received four fire-arm injuries and not six. It is also pertinent to note that according to post-mortem report the blackening was observed around the entry wounds, while according to Aleem, the fires were caused from a distance of 6 Karams i.e, 30 feet. If the fires would have been caused from a distance of 30 feet then there would have not been any blackening around the wounds.
12. As far as the motive is concerned, prosecution miserably failed to prove it against the appellant.
According to F.I.R., the appellant committed murder as he had asked the hands of Zohrah Bibi for some of his relative, but the complainant refused. However, the name of the relative was not mentioned at all and why should a person commit murder of a married lady when he himself was not interested in her. It was not disclosed in the F.I.R. That Abdul Wahid was son-in-law of the complainant, but during evidence both the P.Ws. Had to admit that the appellant was a matured man of 50 years, he was married with Siddiqan Bibi sister of Aleem/P.W. And daughter of Muhammad Yaqoob/complainant. There is nothing on record that any altercation took place after marriage of the deceased with Muhammad Akram, between Abdul Wahid and the complainant.
Admittedly Abdul Wahid lived in a different village, which was at a distance of 12/14 miles and no reason has been brought on record justifying the coming of appellant at late hours in the night and killing of Zohrah Bibi in her own house. The prosecution miserably failed to prove conspiracy on the part of the acquitted co-accused.
13. During investigation, according to prosecution, the appellant led to the recovery of pistol from his house. This recovery is of no consequence and cannot be used against the appellant for various reasons firstly no empty was recovered from the place of occurrence; secondly no one from the locality was associated with the recovery proceedings; thirdly it was a licensed pistol; and fourthly P.W.7 Muhammad Masood, S.-I./I.O. And Fateh Muhammad, HC/P.W.9 contradicted each other on material points, as according to Muhammad Masood P.W.7 no person from the family of Abdul Wahid was present inside the house at the time of recovery of pistol, . While according to Fateh Muhammad/P.W.9 family members were present inside the house at the time of recovery.
14. The occurrence took place at 10-45 p.m., while the matter was reported to the police at 1-30 a.m.
After about three hours of the occurrence at Chowk Hussain Khanwala and the case was registered at police station at 2-00 a.m. The factum that the F.I.R. Was not registered at police station casts doubt on its veracity, as in most of the cases such like F.I.Rs, are recorded at the spot after due deliberations.
' In the instant case the complainant himself admitted that from Chowk Hussain Khanwala he returned in police van and the statements of the P.Ws. Including his statement were recorded at 2- 00 a.m. At the spot.
15. The upshot of the whole discussion is that in our opinion the P.Ws., who lived in different Chak were summoned after the occurrence and the story was cooked up after due deliberations; and that the prosecution case is replete with doubts. Consequently, while extending benefits of doubt in favour of Abdul Wahid/appellant, we allow this appeal, set aside the impugned judgment and acquit the appellant of all the charges. He would be released forthwith, if not required in any other case.
16. As a result of above discussion, Murder Reference is answered in the negative and the sentence of death is not confirmed.