' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellant Nazeer alias Nazru along with Muhammad Ishfaq alias Shafu, Ghulam Rasool and Muhammad Razzaq was tried for the murder of Muhammad Ashraf in case F.I.R. No,206 dated 30-5-1996 registered under section 302/34 at Police Station Khurrianwala by the Addl. Sessions Judge. Faisalabad who vide judgment dated 20-11-1999 while - acquitting co-accused convicted the appellant under section 302(a) P.P.C. And sentenced him to death as Qisas.
2. Challenging his conviction and sentence appellant filed Crl. A.1201 of 1999 while trial Court has made a reference (MR 14/2000) under section 374 Cr.P.C. Seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together by this judgment.
3. Succinctly the prosecution case is that Muhammad Arif was a resident of village Feroz Wattooan District Sheikhupura, Muhammad Ashraf deceased, resident of the same village was his uncle. One night prior to the occurrence Muhammad Ashraf being annoyed with his family members went to the dera' of Muhammad Sadiq son of All Muhammad in Chak No, 150/RB, District Faisalabad. On the next date i.e, 30-5-1996 at about 10-00 a.m. Complainant along with Muhammad Ismail and Ibrahim, residents of village Feroz Wattooan came to Chak No,150/RB for compromise and bringing back Muhammad Ashraf to home. At the house of Sadiq they came to know that Muhammad Ashraf had gone to the fields of Sadiq along with Mst. Kalsoom wife of said Sadiq. On this information prosecution witnesses went to the agricultural land of said Sadiq and found Mst.
Kalsoom Bibi and Mst. Parveen, wife and daughter of Sadiq respectively, sitting at the Dera. The ladies pointed out that Muhammad Arshad was lying under a tree near the dera. All of them sat along with ladies and started chatting suddenly Nazeer alias Nazru appellant armed with .7 MM Rifle, Muhammad Razzaq armed with gun, Ishfaq armed with Pistol and Ghulam Rasool empty handed emerged there. Ghulam Rasool raised a lalkara that they had come to teach a lesson to Muhammad Ashraf for asking the hand of Mst. Parveen upon which. Nazeer appellant fired two shots from his rifle which hit Muhammad Ashraf on the left side of his head and chest. Complainant and the P.Ws. Rushed towards the spot but on seeing them the appellant and his co-accused fled away. Statedly Muhammad Ashraf succumbed to the injuries at the spot.
' Motive for the occurrence , as narrated in the F.I.R. Was that Nazeer appellant had asked for the hand of Mst. Parveen daughter of Muhammad Sadiq but Muhammad Sadiq did not agree to that Statedly, appellant suspected that Muhammad Sadiq had refused
4. On the same day at about 5-00 p.m. Atta Uilah S.-I. P.W. 9 along with other police official was present at Adda Chowk Khurrianwala when Arif P.W.7 met him and made statement Exh.PD. A copy of the same was sent to the police station for registration of formal F.I.R. Exh,PD/1. After recording the statement of complainant said police officer went to the place of occurrence. He after examining the dead-body, prepared injury statement Exh.PB, inquest report Exh.PC and sent the dead-body to mortuary for post-mortem examination. He also prepared rough site plan Exh.PI as well as took- blood-stained earth from the spot and secured the same vide recovery memo Exh.PF. -During the investigation after his arrest Nazeer appellant led to the recovery of rifle P.2 from his residential room which was taken into possession vide memo. Exh.PG whereas Muhammad Ashfaq accused led to the recovery of .30 bore pistol P.3 which was taken into custody vide recovery memo. Exh.PH.
The Investigating Officer also got prepared scaled site plan Exh.PE and PE/1 through draftsman and after complying with legal formalities submitted challan before the trial Court where prosecution produced nine witnesses to prove the charge against the appellant.
5. Dr. Capt. Muhammad Akram P.W.1 conducted post-mortem examination on the dead-body of Muhammad Ashraf deceased and observed the following injuries:---
(1) A lacerated firearm wound of entrance 1/2 c.m. x 1/2 c.m. With inverted and black margins on the left temporal region of the head. On dissection of this injury that penetrated through skin muscles blood vessels fractured the left temporal bone occipital bone and made its exit on the right side back of head.
(2) One firearm lacerated wound of exit 7 c.m. x 4 c.m. On the right side back of head with a brain matter was coming out.
(3) One firearm lacerated wound of entrance 1/2 c.m. x 1/2 c.m. With inverted and black margins on the left side of upper part 1 c.m. x 1 c.m. With inverted and black margins on the left side of chest upper part 6 c.m. Above and lateral to left nipple. On dissection it had penetrated through skin, muscle, entered into the chest cavity through 3rd and 4th intercostals space, penetrated through the left lung, right lung, fractured the 5th and 6th rib of right side and made it exit on the right side back of chest. Chest cavity was full of blood.
(4) One firearm lacerated wound of entrance 4 c.m. x 2 c.m. On the right side back of chest. (In the post-mortem report this is exit wound).
' In the opinion of doctor cause of death was due to shock and haemorrhage and injuries to the brain matter caused by injuries Nos.1 and 2 were sufficient to cause death in the ordinary course of nature.
' Nazim-ud-Din FC P.W.2 took the parcel (case property to the office of Chemical Examiner and delivered the same intact. Muhammad Mansha HC P.W.3 kept the parcels (case_ property) in Malkhana for safe custody and later on handed over the same to the constables for onward transmission to the relevant office. Muhammad Ansar FC P.W.4 entered formal F.I.R. Exh.PD/1 at the police station Ali Ahmad Patwari P.W. 5 prepared scaled site plan Exhs.PE and PE/1. Ismail P.W.6 and Muhammad Arif P.W.7 being the eye-witnesses of the occurrence while supporting the prosecution case narrated the circumstances under which the appellant and his co-accused in furtherance of their common intention committed the murder of Muhammad Ashraf. Ismail P.W.6 was also present when recoveries were effected from the spot. Muhammad Arif P.W.7 was present when crime weapon (rifle P.2) was recovered at the instance of appellant. Muhammad Ashraf FC P.W.8 was present when complainant made statement before the Investigating Officer for the registration of case. This police official also took the dead-body to they mortuary for postmortem examination and after the same produced last worn clothes of the deceased before the Investigating Officer. Atta Ullah S.-I. P.W.9 conducted the investigation as narrated earlier.
' Learned ADA tendered in evidence report of Chemical. Examiner Exh.PN and that of Serologist Exh.PP and closed the prosecution case.
6. Trial Court also examined the appellant under section 342 Cr.P.C. Who gave the following reasons for his involvement:--- ' "I have been falsely implicated in this case with the connivance of complainant and eye- witnesses, Sadiq and Mst. Kalsoom and the local police with each other as I informed Sadiq about the illicit relations between deceased and Mst. Parveen daughter of said Sadiq and Mst. Kalsoom who are also my relatives and I also asked said Sadiq to relinquish his relations with deceased as both were men of bad character. Deceased was involved in various criminal cases like theft, harabah etc. While said Sadiq was also partner with him, otherwise it was blind and un-witnessed murder. Said Sadiq and Kalsoom due to above said grudge involved me in this case with the help of so-called eye-witnesses who are inter se related with each other. I never asked for the hand of Mst. Parveen as I am already married person. None of my co-accused as well as I was present at the place of occurrence, nor I used any rifle."
' Neither the appellant nor his co-accused made any statement under section 340(2), Cr.P.C.
However, appellant produced Ali Muhammad D.W.1 and Shabbir D.W.2. The crux of statements of both these witnesses is that none of the eyewitnesses was present when this occurrence took place and they were summoned later on during the investigation.
7. Trial Court after appraisal of evidence available on record, vide judgment dated 20-11-1999 convicted and sentenced the appellant as narrated earlier.
8. ,Learned counsel for the appellant while challenging the legality of impugned judgment argued that F.I.R. In this case was registered after consultation and deliberation; it was an unseen occurrence, the eye-witnesses who were related to the deceased were introduced later on during the investigation just to strengthen the prosecution case; motive for this occurrence was never proved by the prosecution during trial; the evidence of recovery of crime weapon at the instance of appellant was tailored during the investigation and the said piece of evidence had already been disbelieved by the trial Court. It was lastly argued that trial Court in the circumstances of this case had erroneously convicted and sentenced the appellant. Conversely, learned counsel for the State while supporting the impugned judgment vehemently opposed the contentions raised by learned counsel for the appellant.
9. With the able assistance of learned counsel for the parties we have minutely gone through the record of this case. The entire case of the prosecution rests upon the statement of two eye- witnesses namely Ismail P.W.6 and Muhammad Arif P.W.7 motive for the commission of this offence, recovery of crime weapons at the instance of appellant and the medico-legal reports.
' As far recovery of .7MM rifle (crime weapon) at the instance of the appellant is concerned, admittedly there is no evidence on the record to show that the said weapon was the same which was used during the occurrence. In this view of the matter this piece of evidence is of no legal value and the trial Court had rightly not relied upon the same.
' Statedly the appellant had committed the murder of Muhammad Ashraf (deceased) because he (appellant) was suspecting that Muhammad Sadiq wanted to give the hand of his daughter Mst.
Parveen to the deceased instead of him (appellant). It is interesting to note that except the statement of Muhammad Arif P.W.7 there is nothing on the record in support of this part of the prosecution case. During investigation no efforts were made by the agency to collect any direct evidence in support of the motive for the murder of Muhammad Ashraf deceased. The sole statement of Muhammad Arif P.W.7 in the absence of any supporting evidence is not sufficient to be relied upon with regard to the motive part of the prosecution case. Even otherwise, admittedly, Nazeer appellant is a married man and there was no occasion for the appellant to ask for the hand of Mst. Parveen.
' The ocular account has been narrated by Ismail P.W.6 and Muhammad Arif P.W.7. Both of them were the residents of village Feroze Wattooan in District Sheikhupura and not the place of occurrence. Statedly one day prior to the occurrence the deceased after quarrelling with Ibrahim his uncle (chacha) left home and went to the dera of one Muhammad Sadiq in Chak No, 15/RB in District Faisalabad. On the day of occurrence both the witnesses along with Ibrahim (given up) went to the dera of said Muhammad Sadiq to bring back the deceased when this occurrence took place. For the reasons best known to the prosecution Ibrahiam (uncle of the deceased) was never produced before the trial Court to explain the cause of quarrel nor during the investigation any evidence in this regard was collected by the agency. What compelled the deceased to leave his house and take refuge at the dera of Muhammad Sadiq is shrouded in mystery. Similarly neither the said Muhammad Sadiq or his wife and daughter who statedly had also seen the occurrence were made to join the investigation nor any of them was produced before the trial Court.
Admittedly prior to the occurrence the accused were not known to Ismail P.W.6 and statedly Ibrahim (uncle of the deceased) had told him about the names of the accused but after their arrest neither the appellant nor his co-accused were put to the test of identification parade to rule out the possibility of their false involvement. Similarly according to the eye-witnesses the deceased received injury when he was lying on the ground but contrary to that during the cross-examination Dr. Capt. Muhammad Akram P.W.1 had admitted
1. No cranial vault bony lesion seen. That injury on the person of deceased could have been sustained while in standing position. This occurrence took place at 11-00 a.m. The deceased succumbed to the injuries at the spot but the matter was, reported to the police after six hours when the police station was only 7 miles away from the spot. Similarly the witnesses have also admitted that instead of taking the dead body to the mortuary for post-mortem examination the police official took the same to the police station first and thereafter the same was sent to the hospital.
' In the absence of any plausible explanation the presence of the eyewitnesses at the relevant time is doubtful. Similarly the F.I.R. Also Seems to have been registered after deliberation. Even otherwise the ocular account has already been disbelieved by the trial Court with regard to the co-accused and the same in the absence of any independent corroborative piece of evidence cannot be relied upon qua the appellant.
' The crux of the above discussion is that case against the appellant is full of doubts and he is entitled to get the benefit of the same. Accordingly, the instant appeal is accepted, conviction and sentence of the appellant is set aside and he is acquitted of D the charge. The appellant who is in jail shall be released forthwith if not required in any other case.
' Death sentence is not confirmed and the murder reference is answered in the negative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.