' SYED HUSSAIN MAZHAR QALEEM, J.---The above titled appeals have been directed against the judgment of District Court of Criminal Jurisdiction, Sudhnoti/Pallandri , dated 9-12-2006 whereby the appellant was convicted and sentenced 14 years simple imprisonment under sections 302, A.P.C. And Arms Act.
2. Brief facts leading to the background of the appeals are that a case under section 302/34, A.P.C.
Was registered against the appellant, and others at Police Station Baloch on the complaint of Muhammad Arshad. It was reported that on October 6, 2005 at 1-00 a.m. The complainant a bus driver left Rawalpindi and came to Grand Dhmkian. At 7-00 a.m. He was informed that Muhammad Mustafa with the connivance of his son-in-law killed Muhammad Amjad and dead body was lying in his house. Upon this the complainant along with his uncle Mazzam Hussain and Muhammad Razzaq came there and saw the dead body lying in pool of blood. He noticed fire-arm injuries at his head. Motive behind the occurrence was that deceased and Mst. Zainab Bibi were in love and they wanted to marry. The complainant party asked for her hands but it was refused and she was - married to Muhammad Saeed. One and a half months prior to the occurrence her husband came to the house of the complainant in presence of Muhammad Ajmal and Tariq. He threatened to kill Muhammad Amjad as he was still having illicit relations with his wife. It was alleged that Muhammad Mustafa and Saeed invited Muhammad Amjad through Mst. Zainab Bibi and committed the offence.
3. After commission of offence Muhammad Saeed and Mst. Zainab Bibi absconded and were proceeded under section 512, Cr.P.C., however, challan for commission of offences under section 302/34, A.P.C. And 13/20/1965 A.A was submitted against Muhammad Mustafa before District Court of Criminal Jurisdiction, Sudhnoti/Pallandri. On conclusion of trial, the Court convicted the appellant and sentenced 14 years simple imprisonment under section 302, A.P.C. And Arms Act through the impugned judgment. Hence these appeals.
4. Learned counsel for the convict-appellant argued that an enmity was prevailing between the parties. Muhammad Amjad was a professional criminal. He was convicted by Tehsil Court of Criminal Jurisdiction, Sudhnoti/Pallandri for commission of offences under section 457/34, A.P.C.
And 20, E.H.A. P.W. Muhammad Ajmal was also convicted in the same case by the Court. The deceased was after modesty of daughter of the appellant. On the night falling between October 5 and 6, 2005 he along with others by breaking door entered the room of Mst. Zainab Bibi to abduct her and commit dacoity. There was an exchange of fires and due to darkness the victim suffered bullet injuries at the hands of his companions. He further argued that report was lodged after considerable delay and no satisfactory explanation was given by the prosecution. The true account was suppressed and in fact during this period a story was concocted to rope the appellant in a false case on account of the enmity. Alleged motive was not proved during trial.
Recovery of weapon of offence was highly doubtful. Admittedly the occurrence was not witnessed by any body and circumstantial evidence brought on record against the convict-appellant was of no credibility. Mere fact that the occurrence took place in house of the appellant and dead body was found there was not sufficient to convict him. The trial Court failed to appreciate that the prosecution story being highly doubtful was not worth consideration. The impugned judgment being incorrect and based upon conjectures and presumptions was not maintainable; therefore, by accepting the appeal, the convict may be acquitted of the charge.
5. On the other hand, it was argued that Mst. Zainab and the victim were in love with each other but the convict appellant forcibly got her married with Muhammad Saeed. The convict appellant and his son-in-law were suspecting illicit relations between the deceased and Mst. Zainab Bibi. On October 5, 2005 they hatched a conspiracy, invited the victim through Mst. Zainab Bibi at their residence and killed him. He further argued that dead body was found in a room of house of the convict appellant. Six crime empties were seized from the place of occurrence. Weapon of offence .30 bore pistol was recovered at instance of the convict appellant. Forensic Science Expert's report shows that the empties seized from the place of occurrence were fired from the said weapon. Post- mortem report also confirmed the claim of prosecution that the deceased died of fire-arm injuries.
He contended that place of occurrence was not disputed. Motive and recovery of weapon of offence were proved during trial. Though the occurrence was not witnessed but the prosecution successfully proved its case against the convict appellant through circumstantial evidence.
According to the learned counsel the trial Court arrived at correct conclusion by appreciating the evidence in a judicial fashion but fell in error while awarding lesser punishment of 14 years simple imprisonment, therefore, by accepting the appeal, the sentence may be enhanced and normal penalty of death sentence provided for the offence be awarded to the convict.
6. Learned Additional Advocate-General supported the arguments advanced by the learned counsel for the complainant.
7. Since both the appeals arise out of the same order, therefore, these shall be disposed of through this common judgment.
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. The prosecution story appears from the record that the deceased and Mst. Zainab were in love with each other. The complainant and the deceased asked for her hands but the convict appellant refused and forcibly married her with Muhammad Saeed, however, the husband and the father were suspecting illicit relations between them. On October 5, 2005 they invited Muhammad Amjad through Mst. Zainab Bibi at their residence and killed him with .30 bore pistol. The dead body was found in a room of house of the convict appellant. Six crime empties were seized from there and weapon of offence .30 bore pistol was handed over to Investigating Officer by the convict- appellant. The trial Court considered post-mortem report and Forensic Science Expert's report in support of the above mentioned story, consequently the appellant was convicted under section 302, A.P.C. And Arms Act, but in opinion of the Court due to weak type or circumstantial evidence, the capital punishment was not warranted, therefore, he was awarded lesser sentence of 14 year's S.I.
10. A careful consideration of the record shows that the occurrence took place on the night falling between October 5 and 6, 2005. Report Exh.PB was lodged on October 6, 2005 at 8-30 a.m.
According to the statement of P.W. Muhammad Razzak, at 11-00 p.m. The convict appellant came to his house and told that three thieves entered into his house. One of them was killed while the others ran away and requested him to tell Numberdar Muhammad Anwar about the incident. As per statement of P.W. Muhammad Anwar, Muhammad Razzak came to him at 12-30 a.m. And informed about the occurrence. Thus it implies that the incident took place on October 5, 2005 before 11-00 p.m. And on October 6, 2005 by 12-30 a.m. It was in knowledge of both the P.Ws. But surprisingly they did not bother to inform the police. According to the statement of P.W. Complainant, on October 6, 2005 at a 7-30 a.m. As he arrived near his house, Mazzam Hussain and Razzak told him about the occurrence. Upon this he came to the house of convict appellant where his brother was lying dead in a room he made written complaint at 8-30 a.m. It clearly indicates that the matter was reported to the A police 10 hours after the occurrence but no explanation regarding the delay was given by the prosecution.
11. According to the prosecution case, Mst. Zainab Bibi " was involved with Muhammad Amjad. Later on she married Muhammad Saeed and according to the complainant convict-appellant and his son-in-law were suspecting illicit relations between them because of which they invited the deceased at their residence and killed him. In support of the claim a photo of Mst. Zainab and letter written on 9-9-2004 was produced in the evidence but the prosecution failed to prove that letter was written by her. Even otherwise Mst. One married with Muhammad Saeed one year prior to the occurrence and no evidence indicating continuity of the relations between them during this period was brought on record. Mere recovery of photograph and letter written on 9-9-2004 was not sufficient to prove, the relations particularly in view of the fact that no proof showing that Mst.
Zainab Bibi invited the deceased on the night of occurrence was available on record.
12. According to the record weapon of offence .30 bore pistol was handed over to the Investigating Officer by the convict-appellant in presence of P.Ws. Muhammad Anwar and Muhammad Bashir Khan. As per statement of P.W. Muhammad Anwar the convict-appellant gave the weapon to Investigating Officer and seizer memo. Exh.PG was prepared at the spot. He signed it and also signed further copies of the memos. At police station while P.W. Muhammad Bashir Khan who was declared hostile, categorically stated that he saw the pistol in hands of Investigating Officer and signed recovery memo. Exh.PG at Police Station. Even otherwise in light of circumstances of the case it is hard to believe that the convict appellant kept the weapon of offence in his custody for more then ten hours and after registration of the case handed it over to the Investigating Officer. It may be stated here that six crime empties seized from the place of occurrence and weapon of offence were sent to Forensic Science Laboratory. The report shows that five crime empties were fired from .30 bore pistol allegedly handed over to the Investigating Officer by the convict appellant while the one marked as C.4 was not fired from the said weapon. Thus it indicates that two pistols of same bore were used during the occurrence. Recovery of crime empties also shows that six fires were made during the occurrence while the deceased suffered two bullet injuries but surprisingly no sign of firing or any led bullet was found in the room where the occurrence took place.
13. It will be worth-mentioning that during examination under section 242, Cr.P.C. The convict appellant stated that at 11.00 p.m. He was sleeping in his room. On hearing the sound of fires he rushed towards the room where his daughter and son-in-law were sleeping and saw Muhammad Amjad lying dead while Muhammad Saeed was standing there. He told the convict that Muhammad Amjad and others came to abduct Mst. Zainab Bibi. The fires were made from both sides and he did not know that whose fire hit the deceased. Upon this he became unconscious.
However, during his examination under section 342, Cr.P.C. The convict pleaded not guilty and showed his innocence.
14. In view of the aforesaid, it is clear that story regarding relations between the deceased and Mst.
Zainab was doubtful. The claim of the prosecution that she invited the victim at the place of occurrence on instigation of the convict-appellant and Muhammad Saeed was not proved. The victim was previously convicted by Tehsil Court of Criminal Jurisdiction; Pallandri for committing theft and in this view of the matter, his presence in the house of appellant at odd hours of the night was suspicious. Recovery of weapon of offence from the convict-appellant was also B doubtful. The report of Forensic Science Expert clearly indicates that two pistols of same caliber were used in the occurrence which also creates a serious doubt in truthfulness of the prosecution story. Mere fact that dead body was found in the house of the appellant was not sufficient to convict him. In my view, the trial Court failed to appreciate the above mentioned facts while convicting the appellant.
The prosecution story being highly doubtful was not worth consideration, therefore by accepting the appeal filed by the convict-appellant he is acquitted of the charge while the appeal filed by the complainant is hereby dismissed.