' MUHAMMAD AHSAN BHOON, J.-This appeal is directed against the judgment 'dated 30-9-2004 passed by the learned Addl. Sessions Judge, Depalpur District Okara whereby Muhammad Ramzan and. Taj Muhammad appellants were convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with a direction to pay Rs, 30,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default whereof to further undergo six months' S.I.
Each.
2. As per F.I.R. (Exh.PA/1), brief facts of the case as narrated by complainant Hakim Ali (P.W.l) are that his sister Mst. Mukhtaran Bibi was residing at chowk Qainchi Amer Siddhu, Lahore. Mst. Safia Bibi alias Naziran Bibi was residing with their parents for the last 9/10 months because of family disputes. Mst. Mukhtaran Bibi along with her children had come to Mauza Beesukay to see her daughter Mst. Fehmeeda Bibi and to pay her Eidi. On 30-11-2002 at about 12-30 p.m. She along with her children was on her way back to Mandi Ahmadabad from Mauza Besukay, when they reached near the Pakka Road in the area of Bunga Ameer Singh at 1-00 p.m. On a tonga, appellant Taj Muhammad armed with pistol .30 bore and Muhammad Ramzan armed with carbine .12-bore intercepted the tonga. Muhammad Ramzan appellant raised a lalkara that he would teach a lesson to Mst. Mukhtaran Bibi, who was sitting on the front seat 6f the tonga, for not sending his wife to his house. Thereafter Muhammad Ramzan appellant fired a shot with his carbine .12 bore which hit her on the back side of head and right shoulder. Taj Mulfammad appellant made two fire shots with his pistol .30 bore from front which hit Mst. Mukhtaran Bibi on the left side of her chest and abdomen and went through and through. She fell down in the tonga. Meanwhile, the complainant Hakam Ali along with P.W. Muhammad Mansha reached at the spot on a motorcycle. The appellants fled away from the spot towards sugarcane crop. Mst. Mukharan Bibi succumbed to the injuries at the spot.
3. The investigation of this case was initially conducted by Muhammad Rafique S.I. (P.W.14). On 30- 11-2002 after receiving the information of the occurrence he proceeded to the spot where he recorded the statement of the complainant (Exh.PA), prepared rough site plan of the place of occurrence (Exh.PJ) inspected the dead body, prepared injury statement (Exh.PK) and inquest report (Exh.PL). He drafted the application for postmortem examination (Exh.PM) and despatched the dead body through Muhammad Amin constable (P.W.6) for postmortem examination to the mortuary at Hospital. Then he recorded the statement of the P.Ws. Under section 161, Cr.P.C. He collected crime empties, one of gun .12 bore P.l and two of rifle P.2 and P.3 which were taken into possession vide recovery memo. (Exh.PC). He took into possession tonga P.4 vide recovery memo.
Exh.PD. He secured the blood stained earth from the spot and took into possession the same vide memo. Exh.PB. Aforesaid Muhammad Amin P.W handed over to him last worn clothes of the deceased shirt P.5, Shalwar P.6, Doppata P.7 and brassiere P.8 which were taken into possession vide memo. (Exh.PE) along with phials P.Ll and P.12. He recorded the statement of Muhammad Arif and Muhammad Mansha under section 161 Cr.P.C. On 25-1-2003 the investigation of this case was entrusted to Muhammad Ashiq S.-I. (P.W. 12). On 22-2-2003, Tahir Khan S.-I./S.H.O. (P.W. 13) arrested Taj appellant who led to the recovery of pistol P.10 from underneath the Shesham tree within the area of Mauza Harrel along with four live bullets P. 11/1-4 which were taken into possession vide recovery memo. Exh.PG. He also prepared site plan of the place of recovery (Exh.PG/1). Muhammad Ramzan appellant while in police custody led to recovery of carbine P.9 from underneath a kikar tree near the crop of sugarcane situated in the area of Bonga Ameer Singh which was taken into possession vide recovery memd. Exh.PF. After completing all the legal formalities the challan was submitted in the Court.
4. The learned trial Court framed formal charge against the accused to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution produced as many as 15 witnesses.
5. When examined under section 342, Cr.P.C. The appellants in their statements denying the charge pleaded innocence and claimed false implication. Muhammad Ramzan appellant tendered in his evidence order dated 26-4-2001 passed by the Honourable Lahore High Court, Lahore in Cr.Misc.
No, 1442-H/2000 as Exh.DD interim order Exh.DE, petition for habeas corpus NO.1442-H/2000 as Exh.DF, report of bailiff dated 18-9-2000 Exh.DG, order dated 31-3-2004 in Cr. Rev. No, 162/04 as Exh.DH and application for registration of case submitted to the S.H.O. P.S Kanganpur by Muhammad Ali (P.W.8), against Mst. Mukhtaran Bibi deceased as Mark-I and closed his defence evidence. However, both the appellants did not opt to appear their own witnesses to make statement on oath under section 340(2), Cr.P.C.
6. After conclusion of trial, the learned trial Court passed the above said convictions and sentences which are being assailed through this appeal.
7. After hearing the learned counsel for the parties and going through the record, I have seen that crucial point involved in the present appeal is whether the eye-witnesses appeared before the leaned trial court had seen the occurrence or not. Hakim Ali (P.W.l) real brother of deceased Mst.
Mukhtaran Bibi and Muhammad Zikarya (P.W.10) son of the deceased, appeared as eye-witnesses.
Hakim Ali (P.W.l) claimed that when deceased along with her children had left for Lahore at about afternoon, he along with Mansha (not examined) was following them on a motorcycle. But he is unable to justify his place of presence. He stated that his village Garha Singh is at a distance of % kilometers from the place of occurrence. Although he tried to explain that he was also going to Lahore from his village but in cross-examination he admitted that the other way to Lahore from his village via Kanganpur was short cut than the way adopted by him. In cross-examination he was asked about the litigation of Mst. Mukhtaran Bibi deceased with her husband Muhammad Ali (P.W.8) but he did not speak the truth and tried to suppress the admitted facts which were brought by the defence through documentary evidence in the shape of Exh.DD to Exh.DH and these were the orders passed by this Court in Cr.Misc. No,l44-H/2000 on an application. Exh.DF filed by Mst.
Mukhtaran Bibi deceased, as in Exh.DF Mst. Mukhtaran Bibi levelled serious allegations against her husband Muhammad Ali (P.W.8) regarding snatching of her children, manhandling and also the threats of murder of Mst. Mukhtaran Bibi (deceased) and all these facts were not answered by Hakim Ali (P.W.l). He also denied about the application mark 'A' available on the file moved by Muhammad Ali (P.W.8) dated 15-9-2000 wherein he stated that his wife Mst. Mukhtaran Bibi (deceased) had developed illicit relations with one Abdul Hafeez and when he left for Karachi along his wife and children the above said Abdul 'Hafeez reached there and ultimately he under compulsion came back and finally his wife Mst. Mukhtaran Bibi went away along with Abdul Hafeez.
Regarding all these facts Hakam Ali (P.W.l) answered that he did not know. Although according to the F.I.R. His statement (Exh.PA) was recorded at the place of occurrence but this fact was belied by his own evidence. He stated in his cross-examination about the recording of his statement (which is F.I.R.) at page 7 which is reproduced as under:--- ' "My statement for the registration of the case was also recorded at the Police Station."
' Muhammad Rafique (P.W.14) ^ stated that it was correct that he had not mentioned in his investigation dated 30-11-2002 that he had not recorded the statement (Exh.PA) of Hakim Ali complainant at the spot. Even complainant P.W.l in his cross-examination at page 5 stated as under:- ' "Mst. Mukhtaran Bibi was accompanied with her daughter Mst. Nafeesa, and Mst. Sakina Bibi (sister-in-law Bhabi) of Ramzan accused when started from Beesuke for Mandi Ahmadabad. No other passenger was present in the tonga when he started from village Beesoke."
' The above quoted portion would show that even Muhammad Zikarya (P.W.10) son of the deceased was also not present at the spot. Further he was unable to tell who had informed the police about the occurrence as reflected from last para of page 6 of his cross-examination and he C stated that dead body was kept at police station at night and they also remained at Police Station during the night and the same was dispatched to the hospital for postmortem on the next day and the statement of P.Ws were recorded on the same day at police station.
' The above quoted portions of cross examination of the complainant would show that Mst.
Mukhtaran Bibi (deceased) was murdered and her dead body was found lying on the road as mentioned in the inquest report in the column of place of recovery of the dead body and that might be the reason that postmortem was conducted the next day after summoning of the P.Ws.
The above stated evidence shows that Hakim Ali (P.W.l) was unable to justify his presence at the spot and similarly he negated the presence of Muhammad Zikarya (P.W.10) who claimed in his cross- examination that he was sitting on rear seat of tonga when her mother was murdered whereas his two sisters were sitting along with the deceased but none of them suffered any injury at the hands of the accused when allegedly she was fired at while sitting in the Tonga. It would be pertinent to mention here that statement of Hakim Ali (P.W.l) was recorded in the Court on 5-1- 2004 but the statement of Muhammad Zikarya (P.W.10) was recorded on 10-4-2004 because his evidence was closed for the reason that he was present outside the Court at the time of recording of statement of the complainant but he became absent and his evidence was closed and later on after filing a revision petition before this Court his statement was allowed to be recorded and he was asked specific question about his presence outside the Court on 5-1-2004 which he admitted but he stated that due to illness he could not appear before the learned trial Court on 5-1-2004, that is why, the learned defence counsel suggested him that just to cover up the lacunas of complainant he intentionally absented on 5-1-2004. Although the same suggestion was denied by Muhammad Zikarya (P.W.10) but on perusal of the evidence the suggestion seemed plausible.
Muhammad Zikarya (P.W.10) who is son of the deceased absolutely denied about the litigation between his father and mother but the same is reflected from the orders and defence evidence Exh.DD to Exh.DH. It is reflected from Exh.DG that a bailiff was deputed by this Court and he raided the house of Muhammad Ali (P.W.8) husband of the deceased and recovered Mst. Fareeda Bibi, Mst. Safia Bibi, Mst. Kalsoom Bibi, Mst. Naseem Bibi, Mst. Parveen Bibi, Muhammad Zikarya (P.W.10) and Mst. Nafeesa Bibi. Exh.DG, is the report of bailiff deputed by this Court who on the next day produced the said persons before the Court. All these admitted and proved facts were denied by Muhammad Zikarya (P.W.10). Even the improvements made by him were also duly confronted by the learned defence counsel. The above whole discussion would show that none of the eye- witnesses saw the occurrence and it seems that dead body of the deceased was1 found on the road which was brought at police station and thereafter the legal heirs were summoned and the case was registered. The evidence of such witnesses who are close relatives but at the same time have enmity with the deceased, cannot be relied upon, particularly when they were not ready to speak truth about admitted facts.
7-A. As far as the recovery of carbine P.9 effected at the behest of Muhammad Ramzan is concerned, Muhammad Ali (P.W.8) husband of the deceased and Muhammad Asghar (P.W.9), a brother of the complainant deposed about the same. The aforesaid P.W. 8 stated in his cross- examination that same was recovered from the sugarcane crop owned by one Muhammad Aslam Sial whereas aforesaid P.W.9 said that it was an open place accessable to any person. Similarly aforesaid P.W.8 denied about the litigation proved through documentary evidence. Likewise another brother of the complainant Bilal Ahmad (P.W. 11) deposed about the recovery of .30 bore pistol stated in his cross-examination that the place of recovery was owned by one Hashmat Ali Fauji and that was an open place. Out of the two empties of .30 bore pistol collected from the spot, one was found matched with the weapon of offence allegedly recovered from Taj Muhammad appellant but both were sent together after the arrest of the accused to the Forensic Science Laboratory. So positive report of one empty is of no consequence whereas one empty of .12 bore carbine recovered from Muhammad Ramzan appellant was sent to Forensic Science Laboratory for comparison with the carbine recovered from the aforesaid appellant but the same was found not matched with the weapon of offence (carbine). The above explained circumstances would show that the evidence of recovery was furnished by the interested as well as inimical witnesses and the same was alsp in violation of the provisions of section 103, Cr.P.C.
8. Dr. Lubna Khan W.M.O. (P.W. 15) conducted postmortem examination of the dead body of Mst.
Mukhtaran Bibi and she found the following injuries on her person:-
(1) Lacerated fire-arm wound 13 c.m. x 7 c.m. x going deep on back of head, fracture of occipital bone.
' Brain matter coming out (entry wound).
(2) Fire-arm lacerated wound 1 c.m. x % c.m. x going deep on front and lower end of left chest, 10 c.m. From umbilicus at 1-00 O' clock position with blackening 3 c.m. x 3 c.m. Around (entry wound).
(3) Fire-arm lacerated wound 1 V6 c.m. x 1 c.m. x going deep with blackening 4 c.m. x 4 c.m. Around the wound at left side of abdomen 11 c.m. From umbilicus at 3-00 O' clock position (entry wound).
(4) Lacerated fire-arm wound 1 c.m. x 1 c.m. x going deep with blackening around on back of right shoulder (entry wound).
(5) Fire-arm lacerated wound 1 V2 c.m. x 1 c.m. x going deep with everted margins at back and lower end of right chest, 8 c.m. Away from midline (exit wound).
(6) Fire-arm lacerated wound 2 x 1 c.m. On back of right lumber region 6 c.m. Away from midline (exit wound).
' Out of the above six injuries, Injuries Nos. 1 to 4 are entry wounds whereas Injuries Nos.5 and 6 are exit wounds. Injury No;4 was allegedly caused by Muhammad Ramzan with .12-bore carbine the same injury had not any exit, so a bullet was recovered at the time of postmortem examination from injury No,4 which also contradicts the version given by the eye-witnesses as they said that weapon used was 12-bore carbine.
9. In view of what has been discussed above, it can safely be concluded that it was a case of unseen occurrence and prosecution has failed to prove its case beyond any shadow of doubt.
Resultantly, this appeal is allowed and the convictions and sentences of the appellants are set aside. The appellants are acquitted of the charge. They shall be released forthwith, if not required in any other criminal case.