Syed Shabbar Raza Rizvi, J.--This appeal has been filed on behalf of Noor Ahmad alias Malu and Muhammad Nawaz, appellants. They alongwith acquitted co-accused, Sarfraz alias Sharfoo and Ahmad Ali alias Ahmi were tried by the learned Additional Sessions Judge, Faisalabad in F.I.R No,150/96, dated 23.4.1996, under Section 302/34 PPC, registered at P.S. Saddar, Samundri, District.
Faisalabad for murder of Asmat Ullah. After conclusion of the trial, both the appellant were sentenced to death under Section 302(b)/34 PPC. They were also directed to pay compensation of Rs, 25,000/- each to the legal heirs of the deceased under Section 544-A Cr.P.C., in default of payment of the same, to further undergo RI for six months each.
2. The prosecution case in brief is that complainant Zaka Ullah, PW3 got recorded complaint Ex.PE by Muhammad Irshad, ASI stating therein that on 23.4.1996 at 7.30 p.m. he alongwith his deceased brother Asmat Ullah was coming towards village from dera when they reached near the garden owned by Mushtaq Warraich, the accused Muhammad Maalik (Noor Ahmad) alias Malu armed with 12-bore gun, Sharfoo (Sarfraz) armed with 30-bore pistol, Muhammad Nawaz armed with 12- bore carbine and Ahmad Ali alias Ahmi empty handed came out of the garden. Ahmad Ali alias Ahmi raised lalkara that Asmat Ullah be killed. On this, Sharfoo fired in the air with his pistol and Muhammad Maalik (Noor Ahmad) fired with gun on Asmat Ullah hitting him in between his shoulders on back who fell down. Thereafter Muhammad Nawaz fired with carbine hitting Asmat Ullah on his right flank. The complainant ran back and Muhammad Maalik (Noor Ahmad) Nawaz and Sharfoo started indiscriminate firing. On hue and cry of the complainant as well as hearing fire shots, Ali Muhammad, PW4 and Saifullah, who were also going towards the village, ahead deceased and complainant also came there, on which the accused fled away. The complainant, PW3 narrated the motive for the occurrence that sister of Muhammad Nawaz accused married with Asmat Ullah deceased without his consent and due to that grievance all the accused murdered the deceased. On the basis of complainant Ex-PE, F.I.R Ex.PE/1 was registered.
3. After completion of the investigation, the police submitted the challan against four accused persons. The trial Court framed the charge which was denied by the accused/appellants. The accused pleaded not guilty and claimed trial.
4. During the trial, the prosecution examined as many as 13 witnesses to prove the guilt of the accused.
5. Dr.Akram Ali Dogar was examined as PW1. He conducted the post mortem examination on the dead body of Asmat Ullah on 24.4.1996 at 7 a.m. and found the following injuries'.-- 1(a) Wound of entry. Six fire-arm wound of entry each measuring 3/4 cm in diameter x neck and chest cavity. Some continuous with the wound of exit upon the back and upper part of the chest between the upper part of shoulders in an area of 8 cm x 6 cm, margins were inverted, no blackening and scorching was present. The injury was 7 cm from the base of neck.
1(b) Wound of exit. 3 circular wounds 1 cm in diameter 2 front of neck at lower part and one 2.5 cm to its right just above the medial side of clavicle x continuous with the wound of entry.
2(a) Wound of entry. 5 circular wounds 3/4 cm in diameter x abdominal cavity and under the skin in an area of 10 cm x 10 cm on back and outer side of right.fiank, no blackening and scorching was present.
2(b) 5 circular wounds 1 cm in diameter x continuous with the wound of entry, margins were averted on front of right side of abdomen at right hypochondrium.
The doctor opined that Injuries No, 1 and 2 were grievous as well as fatal. These injuries were ante mortem and caused by fire-arm weapon. The time between injuries and death was immeduiate and between death and post mortem examination about 10/12 hours.
6. PW2 Ahsan Saeed, Patwari prepared the site-plans Ex.PD and Ex.PD/1 on 13.6.1996 on the pointation of PWs and direction of police. Zaka Ullah, PWs was complainant and eyewitness of the occurrence. He supported the prosecution story as narrated by him in complaint Ex.PE. Ali Muhammad PW4 was also an eyewitness of the occurrence. His statement was in line with that of the complainant. PWs Muhammad Ghani deposed that in his presence accused Noor Ahmad alias Malu led to the recovery of gun P1 lying in the "Kikars" near the Rajbah Killianwala situated within the area of Chak No, 443/GB. PW6 Sadiq Ali was witness of recovery of pistols, got recovered by acquitted co-accused Sarfraz, PW7 Muhammad Asghar identified the dead body of deceased Asmat Ullah at the time of post mortem examination in Civil Hospital, Samundri. PW8 Nazar Hussain was recovery witness of carbine P3, got recovered by Muhammad Nawaz, appellant lying underneath the "Tahli" tree situated within the land owned by Abdul Aziz at Tandlianwala Samundri Road. PW9 Basharat Ali, HC stated, he delivered the sealed parcel containing blood-stained earth to the office of Chemical Examiner, Lahore. PW10 Khalid Hussain, ASI recorded the formal F.I.R Ex.PE/1 on the basis of complaint Ex.PE. He also kept the sealed parcel of blood-stained earth in police malkhana on 24.4.1996, which he handed over to Basharat Ali on 5.5.1996 for its onward transmission to the office of Chemical Examiner. Muhammad Irshad, ASI was examined as PW11.
While posted at Police Station Saddar Samundri on 23.4.1996 he alongwith other police officials was present at Hammad Petrol Pump, Tandla Road when the complainant got recorded complaint Ex.PE with him. After recording the complaint, this witness sent the same to the police station and he himself arrived at the place of occurrence. He inspected the dead body and prepared the injury statement Ex.PB and inquest report Ex.PC. Then he sent the dead body through Fazal Muhammad Constable to Civil Hospital, Samundri for post mortem examination. Thereafter, he collected the blood-stained earth through memo Ex.PF. He prepared the rough site-plan through memo Ex.PK.
After that, he recorded the statements of the PWs under Section 161 Cr.P.C. On 24.4.1996, Fazal Muhammad Constable handed over to him last worn clothes of the deceased which were taken into possession through memo Ex.PL. He searched for the accused who were not available. He further stated that on 10.5.1996 Basharat Ali Constable handed over to him report of Chemical Examiner. On 11.5.1996, the investigation was transferred from him. Manzoor Hussain SI/PW12 was entrusted the investigation of this case on 14.5.1996. On 2.6.1996, Zaka Ullah complainant appeared before him and got recorded supplementary statement regarding correction of name of the accused. On 2.6.1996, he got prepared site-plan through Patwari. On 8.6.1996, he arrested all the accused. On 9.6.1996 he sent Ahmad Ali accused to judicial lock up. On 12.6.1996, Noor Ahmad accused led to the recovery of 12-bore gun P1 which was taken into possession through memo Ex.PG. On the same day Muhammad Nawaz accused while in police custody led to the recovery of carbine P3 which was taken into possession through memo Ex.PJ. On 13.6.1996, Sarfraz accused while in police custody led to the recovery of unlicensed revolver P2 which was taken into possession through memo Ex.PH. Thereafter he handed over the file to the SHO for submission of the challan, PW13 Fazal Muhammad Constable on 23.4.1996 escorted the dead body of Asmat Ullah deceased to the Civil Hospital, Samundri and after post mortem examination he handed over the last worn clothes of the deceased to the 1.O. The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Ex.PM and that of Serologist Ex. PM/1.
7. After close of the prosecution evidence, the statements of the accused were recorded under Section 342 Cr.P.C. The appellants claimed innocence and false implication. In reply to Question No, 7, "why this case against you and why PWs deposed against you Nor Ahmad, appellant replied as under:-- "The case is false against me and PWs have deposed falsely due to relationship with the deceased and complainant and due to enmity with me. Mst. Kausar Bibi, second wife of Asmat Ullah deceased was deserted by deceased prior to this occurrence who is closely related to one Shehbaz alias Kulla Warraich. Actually the murder was committed by said Shehbaz alias Kulla Warraich due to that grudge who was arrested on the same day by police but later on, I and my other relatives/co-accused were involved falsely in this case to save the skin of Shehbaz alias Kulla Warraich who is closely related with the complainant party who is also Warraich by caste. My this version was also accepted correct during the investigation by Fayyaz Muhammad Khan Lodhi, DSP/SDPO, Tandlianwala and the arrest of Shehbaz alias Kulla is admitted one by PW4. The motive for the occurrence is also incorrect because Mst. Sharm Bibi the alleged sister of Nawaz my co- accused is daughter of Naza, Hindlana by caste. Nawaz son of Yar Muhammad my co-accused is Mussali by caste has no sister. I produce birth certificate of Mst. Sharm Bibi daughter of Naza r/o Chak No, 414/GB, the wife of Asmat Ullah deceased (alleged sister of Nawaz my co-accused) as Ex.DA. It was a blind murder and the occurrence took place in the darkness of night and was not witnessed by any PW."
Similar answer to the same question was given by the other co-accused, Muhammad Nawaz.
8. The trial culminated into conviction and sentence of the appellants as mentioned above.
9. The learned counsel for the appellants summarized her arguments and formulated the following points:--
(i) That the prosecution story is based on motive mentioned in the F.I.R Ex.PE/1 as well as in statements of PW3 and PW4, which could not be proved;
(ii) It was a night occurrence and there was no source of light;
(iii) The names of two accused including Appellant No, 1 in F.I.R were wrongly given by the complainant which were later on corrected after passage of 22 days in a supplementary statement;
(iv) The eyewitnesses, particularly, PW4 failed to mention reason for his presence at the scene of occurrence. The occurrence is reported to have taken place at 7.30 p.m. At this time, on 23.4.1996, it is dark, therefore, the accused could not have been recognized by the prosecution witnesses as stated by them;
(v) PW2 conceded that several people appeared before him and stated that the appellants were innocent and not involved in the instant occurrence;
(vi) The ocular account is not corroborated by medical account. The recovery is unbelievable as no empties were recovered from the place of occurrence and there is no report of -- Forensic Science Laboratory on the record.
(vii) PW4 stated that he was going ahead of the deceased and complainant. He heard the gun fire and then returned towards the deceased/scene of occurrence cannot be trusted. The site-plan does not show the distance between different points. So much so, it also does not indicate citrus garden which is mentioned in the F.I.R.
10.The learned Deputy Prosecutor General, Punjab supported the impugned judgment and submitted that though he agrees that motive could not be proved yet it does not affect adversely prosecution case and conviction of the appellants in the presence of ocular account as stated by the PW3 and PW4 is sufficient to uphold the order of the learned trial Court.
11.We have heard the learned counsel for the parties and also consulted the record. We allow this appeal for reasons to follow hereinafter.
12.According to the F.I.R and statement of PW3 i,e, Ex.PE/1 and Ex.PE, the deceased was murdered by the accused persons as he had married to the sister of Appellant No, 2 (Muhammad Nawaz).
Since the marriage had taken place without Appellant No, 2's consent, Muhammad Nawaz/Appellant No, 2 and other co-accused, in consultation with each other, killed deceased, Asmat Ullah. Even in the Court, PW3 (complainant) and PW4 reiterated the same motive. The record speaks otherwise. According to the statements of PW3 and PW4, the deceased had married with two women. Name of the first wife is Sharm Bibi daughter of one Nazo Handlana and name of second wife is Mst. Kausar. Sharm Bibi was married to deceased 10/12 years prior to the occurrence.
The deceased married to Mst. Kausar daughter of Sadiq 9 months prior to the occurrence, however, he deserted her few months prior to the occurrence. The later wife was a relative of the deceased and also only daughter of one Sadiq. Neither PWs nor the record shows if there was any third wife of the deceased. Moreover, the PWs no where mention the name of Appellant No, 2's sister who was allegedly married to the deceased. The learned Deputy Prosecutor General, Punjab agreed with the learned counsel for the appellants that motive was not proved. Even the learned trial Court also disbelieved motive part of the prosecution story in Para-30 of its judgment. It is true that failure to prove motive is not decisive factor in murder cases. However, we find a lot of emphasis of PWs that motive of causing death to the deceased was his marriage with the sister of accused Muhammad Nawaz without his consent. This has been reiterated by PW3 in his statement before the Court. The same was repeated by PW4 also. But they also confirmed during the cross-examination the names of two wives of the deceased who have no relationship with accused Muhammad Nawaz. As a matter of fact, Muhammad Nawaz accused has no sister at all. Thus, in the above circumstances, failure to prove motive, at least, creates serious doubt in the prosecution story.
13.According to Ex.PE, when complainant and deceased at about 7.30 p.m. left from their Dera to go to their village and arrived near garden owned by Mushtaq Warraich, they were attacked by the accused persons. This statement also fails to get necessary corroboration.
PW2 does not mention in the site-plan if there was any such garden. Even otherwise, he does not mention distance between point 'A' and 2, the site-plan is without any scale. He shows, at the scene of occurrence, presence of only two accused, i,e, present appellants, but omits to show presence of other co-accused. PW2 concedes that he was Patwari of Halqa 471, whereas site-plan relates to 442- Halqa. The above fact cast doubt whether actually he had visited the site or not? According to Ex.PE and statement of PW3 before the Court, when they had reached near the garden, all four accused came out of the garden. When somebody suddenly comes in front of some one, he comes in front instead of back. Whereas, according to the doctor, PW1 both the fires were shot from back side and from 7 to 10 feet away from the deceased. Contradiction in the above two statements cannot be reconciled. PW1 further stated in his cross-examination that Injury No, 2 could not be caused to a person while lying on the ground, whereas, according to PW3 and Ex.PE, this injury was caused by Appellant No, 2 on the deceased when the later had fallen on the ground after receiving the first injury caused by Appellant No,
1. Thus, the narration of Ex.PE and statements of PW3 and PW4 do not get necessary corroboration from the statements of PW1 and PW2.
14. According to PW11, the sunset at 6.30 p.m. on the day of occurrence i,e, 23.4.1996, but according to PW4, a relative of the complainant/deceased, he was 40 to 50 feet ahead towards east when he heard first fire. According to him, after hearing the first fire he heard the voice of Ahmad Ali accused raising lalkara that Asmat Ullah be killed. Malu accused fired hitting Asmat Ullah on his back in between shoulders who fell down on the ground facing downward. Firstly, the PW4 never stated that after hearing the first shot he rushed towards the deceased and saw the occurrence.
He just stated that after hearing the first shot he heard voice of Ahmad Ali raising lalkara and thereafter Malu accused fired the fatal shot hitting the deceased. Whether the sun on 23.4.1996 set at 6.30 p.m. or few minutes later, still it was dark, it was not probable that PW4 would recognize the accused in darkness while he was standing 40 to 50 feet away and that too hitting from backside.
The exact words of PW4 are reproduced as under:-- "Malu accused fired hitting Asmat Ullah on his back in between the shoulders who fell down on the ground facing downward."
The above statement appears to have been coined to make it consistent with the post mortem report. Since we are discussing PW4, it may be mentioned herein that he saw 4/5 empties at the spot yet none of the empties were recovered by the I.O./police? therefore, there is no report of Forensic Science Laboratory, hence the recovery of weapon of offence cannot be given much credence.
15.The record indicates that there were disputes of properties in the deceased's and PWs families who are all close relatives. The record also indicates enmity of the deceased with some other people including relatives. PW12 stated that some notables of the village had appeared before him to support the innocence of the accused persons. Thus, in the above facts and circumstances, the evidence of the prosecution cannot be treated as trust worthy or confidence inspiring. The basis of the prosecution story was motive, narrated by the complainant in Ex.PE and also reiterated by PW3 and PW4, could not be established. Similarly, the way occurrence has been narrated by the PWs could not be corroborated or supported by PW1 and PW2. The trial Court also disbelieved prosecution story to the extent of two co-accused namely, Ahmad alias Ahmi and Sarfraz alias Sharfoo. The motive was also rightly disbelieved by the trial Court which was set up by the prosecution. The acquittal of two co-accused as well as finding of the learned trial Court of motive was never challenged by the complainant party. As noted in the preceding paras, according to the PW4, 4/5 empties were found/seen but they were never recovered by the police and sent to F.S.L, hence recovery of gun was legally inconsequential.
16.In view of the above, therefore, we can hold that prosecution did not succeed- to prove its case beyond any shadow of doubt. As a matter of fact, we find that this case is replete with doubts, thereby, the orders of the learned trial Court cannot be sustained. As a result of that, the conviction and sentence of the appellants is set aside and they are acquitted of the charge. The appellants shall be released forthwith if not required in any other case.
17.In view of the above, Murder Reference No, 245/1999 is answered in the Negative.