' CH. IFTIKHAR HUSSAIN, J.--- Appellant Muhammad Ishaq and his brother Khizar Hayat alias Hanif were tried under sections 302/324 read with section 34, P.P.C. In case F.I.R. No,207 registered with Police Station Pull-111, Janubi District Sargodha on 4-11-1994 for on that date at about 12-30 a.m.
When Muhammad Ishaq was armed with .30 bore pistol and his said brother empty-handed, in the area of Chak No,114 Janubi falling within the jurisdiction of the aforesaid police station, . In furtherance of their common intention committing the Qatl-e-Amd of Mst. Zaitun Bibi, five years old, the daughter of the complainant Said Alain Khan and attempting on the life of his son Adam Khan, aged about seven years by firing on them with the said weapon.
2. On the conclusion of their trial, the appellant vide the judgment rendered by Muhammad Akram Zaki, learned Additional Sessions Judge-I, Sargodha on 12-6-1999 was found guilty of the charge and so he was convicted and sentenced as follows:--
(i) Under section 302(b), P.P.C. For committing the Qatal-e-Amd of deceased Mst. Zaitun Bibi to death subject to confirmation by this Court and to pay compensation Rs,1,00,00 to the legal heirs of the deceased.
(ii) Under section 324, P.P.C. For attempting the Qatl-e-Amd of Adam Khan to five years' R.I. And to pay Rs,5,000 and in default thereof to further suffer six months' S.I.
While his said brother was acquitted of the charge giving him the benefit of doubt as a matter of abundant precaution.
3. Appellant Muhammad Ishaq through the instant Criminal Appeal (No,639 of 2000) has challenged his conviction and sentence.
4. The Murder Reference (No,385 of 1999) mentioned above was submitted to this Court by the learned trial Court for confirmation of his death sentence as required under section 374, Cr.P.C.
5. As both these matters have arisen out of one and the same case so these are being disposed of by this single judgment.
6. The facts in detail have been incorporated in the impugned judgment. Hence, we avoid to burden this judgment unnecessarily by repeating all those here. However, the facts in brief relevant for the disposal of these matters are that the said case has been registered on the statement Exh.P.A. Of complainant Said Alam Khan (P.W.1). He has mentioned therein that he is doing labour on the hill situated at Chak No,114-Janubi. He has built two Kothas and a Chapher in front of the colony on the hill and is residing there with his family. On that day i.e. 4-11-1994 at about 12-30 a.m.
His wife Mst. Asmat Bibi and five years old daughter Mst. Zaitun Bibi were asleep on the separate cots while his seven years old son Adam Khan and his maternal-nephew Ahmad were sleeping on a cot under the Chappar and he himself inside the room. In the meanwhile, he heard the report of fire from the outside. He got up and saw in front of the door Muhammad Hanif empty-handed and Muhammad Ishaq armed with .30 bore pistol standing. Muhammad Ishaq fired at his dog. The dog was wounded. He also fired burst with the pistol and due to the same Mst. Zaitun Bibi and Adam Khan were wounded and the bullets went through the quilts. On the alarm raised by him and his wife, Muhammad Khan, Ex-Chairman of the village reached there. The accused thereafter fled away. He found the fire had hit the back of the chest of Mst. Zaitun Bibi.And it went through her abdomen, while Adam Khan had received injury on his buttock. He immediately carried them both to the hospital at Chak No,47-Janubi. Mst. Zaitun Bibi succumbed to her injury on reaching there, while Adam Khan was got admitted in the hospital.
' The motive behind the occurrence is that about 1-1/2 years ago these accused had abducted his three daughters namely Mst. Kausar Bibi, Mst. Gulzar Bibi and Mst. Shahzad Bibi. He has got registered the case F.I.R. No,192 of 1993 under section 10 of the Hudood Ordinance with the aforesaid police station. Mst. Kausar Bibi and Mst. Shehzad Bibi were restored to him. The accused had been forcing him to restore Mst. Kausar Bibi to them. He has refused them to do so. The accused, thereupon, had extended him threats of dire consequences. They on account of grudge over the same had murdered Mst. Zaitun. Bibi and seriously injured Adam Khan.
7. The appellant and his said brother after investigation were challaned to the Court. They were formally charged under sections 302 and 324 read with section 34, P.P.C. They pleaded not guilty.
8. The prosecution at their trial had produced its eight witnesses. The report of the Forensic Science Laboratory Exh.P.M. Was tendered in the evidence. The appellant and his brother had denied the allegation appearing against them in the prosecution evidence. The appellant also denied the recovery of .30 bore pistol P.9 on his pointation. He in reply to the question that as to why this case is against him and why the P. Ws. Have deposed against him has stated that he has falsely been roped in due to the case against them of 'abduction of the daughters of the complainant. He produced the photocopy of F.I.R. No,192 of 1993 Police Station Pull-111, Sargodha Mark "A" and photocopy of remand paper dated 15-8-2003 Mark "B". He and his brother did not depose on oath in disproof of the allegation appearing against them in the prosecution evidence.
9. The learned trial Court after hearing the parties came to the conclusion that the case of the prosecution against him stood proved on the record while not against his said brother beyond any shadow of reasonable doubt. It so has acquitted his brother and convicted and sentenced him as mentioned above.
10. It has been contended on his behalf that it was a night occurrence; that the identity of the assailants has not been established on the record beyond any shadow of reasonable doubt; that the eyewitnesses were not only related inter se and to the deceased and the injured but also inimical towards them due to the case of abduction of the daughters of the complainant and so were interested witnesses in every sense of the word; that no independent corroboration has come forth to their testimony and so the same could not be relied upon; that the motive has always been considered as double-edged weapon and that the stated, motive in this case in fact was with the complainant to falsely involve them due to the grudge over the case of abduction of his daughters and so the same has neither been proved on the record nor the same could be received as of any corroborative value to the ocular testimony; that the medical evidence in the above circumstances, when the ocular testimony was not reliable could not be received as supportive to the same; that the trial Court itself has not believed the evidence of the recovery of pistol P.9 from the appellant; that in such circumstances their alleged absconsion could also not be received as a circumstance of corroboration to the ocular testimony; and that in any case the prosecution could not bring home the guilt to him beyond any shadow of reasonable doubt and so he has not rightly been convicted and sentenced.
11. As against the same, the learned State counsel has supported the impugned judgment of his convictior, and sentence saying that the eye-. Witnesses were natural witnesses of the incident as they were inmates of the house where the incident had taken place; that though it was night occurrence but it has been proved on the record that lantern was lit there at the time of the occurrence and the appellant and his brother were well-known to them and so their identity 'stood established on the record above doubt; that promptly lodged F.I.R. Is also ai circumstance to corroborate the complainant, that the medical evidence has also lent support to the testimony of the eye-witnesses; that the motive also stood proved on the record and it was a strong circumstance of corroboration to the eye-witnesses account and. Hence, the guilt of the appellant has fully been proved on the record, and that in any case the impugned judgment of his conviction and sentence is unexceptionable.
12. We have carefully considered the submissions made from both the sides with the help of available record.
13. The prosecution in this case has mainly relied upon its ocular testimony, motive, recovery of crime weapon pistol P.9 from the appellant and the medical evidence.
14. The stance Of the appellant is of his false implication in the case due to prior Hudood case against him and his said brother. The learned trial Court has believed the eyewitness account against them and has received the medical evidence and the motive supportive to the, same. It while has rejected his plea of false implication on the above account.
15. The ocular account has been rendered by the complainant Said Alam (P.W.1) and his wife Mst.
Asmat Bibi (P.W.2). They both have narrated the incident. It is the contention from the appellant's side that they are not only related inter se and to the deceased and the injured but were also inimical towards them, and so were the interested witnesses. This contention has been found to be with force because both these eye witnesses are husband and wife to each other. They are also father and mother respectively to the deceased and injured Adam Khan. So, their A relation inter se and to the deceased and the injured is admitted fact on the record.
16. Complainant Said Alam had stated that they had abducted his three daughters namely Mst.
Kausar Bibi, Mst. Gulzar Bibi and Mst. Shehzad Bibi about 1-1/2 years prior to the occurrence and out of them Mst. Kausar and Mst. Shahzad were restored to him while not Mst. Gulzar Bibi. He has admitted that he got registered the case in respect of the abduction of his these daughters and the police has arrested the appellant and his brother in the same. This shows that there existed a background of hostility between the appellant's side and the complainant party at least over the said matter of abduction of the daughters of the complainant. It may be mentioned here that hostility or enmity has always been considered as a double-edged weapon. It if plays as a factor to cause harm to one's adversary, the same can also give cause to other to falsely rope in him.
Anyway, due to the existence of such background of hostility between the parties, it could validly be said that the eye- B witnesses were inimical towards the appellant's side prior to the present occurrence. They, therefore, were interested witnesses in every sense of the word. The evidence of an interested witness deserves to be scrutinized cautiously.
17. It was a night occurrence. According to the eye-witnesses, the occurrence had taken place on 12-30 a.m. On the relevant day. The complainant's house was at lonely place in the fields.
According to the site plan Exh.P.H., there were fields on its two sides and a Rajbah intervenes the two. According to him, his house consisted of two rooms and a Chappar. They as per their showing were asleep there at that time. Their plea is that they woke up on the report of the fire and they saw that the appellant had fired at the dog and the dog was wounded due to the same. Complainant Said Alam Khan has admitted that there was no electricity there in his house and there was also no moonlight on that night. According to both of them, they had identified the appellant and his brother in the light of the lantern. The Investigating Officer in his evidence has not stated that he took lantern into possession from the spot. This shows that the lantern was not lit at the spot at the time of the occurrence. It was the dark hour of the night when the occurrence had taken place. The question of identity of the assailants, therefore, had remained not above doubt.
18. According to Said Alam Khan, the dog had died due to the injuries caused to him by the fire. It is but nowhere available in the evidence that the medical examination on the dead body of the dog was conducted to establish that the dog had in fact died at the spot due to the fire-arm injuries on its body. The killing of an animal is an offence. The dog, if had died at the spot by the fire allegedly made by the appellant, then it was essential for the Investigating Officer at least to get conducted post-mortem or examination on the dead body of the dog. Had it been so, it then could be said that the story of the fire at the dog was true. Only in that event it could be said that really the eye- witnesses had woke up on the report of fire at the dog. They only in that event could happen to see the occurrence as otherwise they according to their own showing were asleep at the time of occurrence. The non-conduct of postmortem examination the dead body of the dog heavily suggests that such story was made up to show that the eye-witnesses had woke up from the sleep and so had seen the occurrence. This story, if had not been made up, then it could be hard to think that they were sleep and so could not wake up before the happening of the actual occurrence. It when was a night occurrence and there was no light available at the spot, hence could not be readily believed that the eye-witnesses were in position to identify the assailants at the time of the occurrence. So, the question of mistaken identity the assailants in this case could not be ruled out.
19. In the above background, when the eye-witnesses were interested and it is doubtful that they had identified the assailants, then it was not safe to place implicit reliance upon their testimony.
The learned trial Court, therefore, has erred in relying upon them.
20: The motive part of the prosecution story in this case is also not readily believable. It is because of the fact that the appellant and his brother, if had abducted those daughters of the complainant and two out of them were restored to him and not the third and the appellant and his brother had been demanding the-restoration of Mst. Kausar Bibi to them, it then was the complainant to have an occasion to implicate them in the instant case falsely to get rid of them.
21. The appellant, if at all for the sake of arguments had any grudge against the complainant on the restoration of his two daughters, he could take away the life of his ownself or his wife or his daughter in whose restoration they were interested. They had no occasion to take away the life of innocent girl and boy of a tender age. They not at all on that count could be expected to resort to firing at his house without any aim. So the said story of the motive is not readily believable. It, therefore, could not be received as of any corroborative value to the ocular testimony. The learned trial Court, therefore, has erred in receiving the same as so.
22. The recovery of the crime weapon P.9 has not been believed by the learned trial Court itself.
Hence, hardly any discussion is needed on that aspect of the prosecution case. We, therefore, leave this question to be attended any more.
23. As regards the medical evidence, it simply has established that the death of the deceased had taken place due to the fire-arm injury caused to her and that the injured P.W. Had received similar injury. It has established nothing more. There when was not available any reliable ocular testimony in the case, the medical evidence could not be of any consequence. It, therefore, could not be received as of any corroborative value to the same.
24. In these circumstances, the alleged abconsion of the appellant, if it may be so, could also not be used as of any corroborative value. It may be mentioned here that people do abscond after murder whether charged rightly or wrongly. In this regard reference is made to the cases of Basharat and another v. The State 1995 SCM R 1735 and Abdul Rahim v. The State 1999 PCr.LJ 1305.
25. As a consequence of the above discussion, we are constrained to hold that the prosecution has failed to prove the charge against the appellant too beyond any shadow of reasonable doubt. The impugned judgment to the extent of his conviction and sentence, therefore, is also not liable to be sustained. The Criminal Appeal No,631 of 1999 of the appellant, therefore, is accepted, the impugned judgment to the extent of his conviction and sentences is set aside and he is acquitted of the charge giving him the benefit of doubt. He is in custody. He be set at liberty forthwith, if not required in any other case. The Murder Reference is answered in the negative. The sentence of death is not confirmed.