' SYED SHABBAR RAZA RIZVI, J.---This appeal has been filed on behalf of Noor Ahmad alias Malu and Muhammad Nawaz, appellants. They along 'with 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 P.P.C. Registered at Police Station Saddar, Samundri, District Faisalabad for murder of Asmat Ullah. After conclusion of the trial, both the appellants were sentenced to death under section 302(b)/34, P.P.C. 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 R.I. For six months each.
2. The prosecution case in brief is that complainant Zaka Ullah, P.W.3 got recorded complaint Exh.PE by Muhammad Irshad, A.S.-I stating therein that on 23-4-1996 at 7-30 p.m. He along with 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, P.W.4 and Saifullah, who were also going towards the village, ahead deceased and complainant also came there, on which the accused fled away. The complainant, P.W.3 narrated the motive for the occurrence the 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 Exh.PE, F.I.R. Exh.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 P.W.1. 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 c.m. 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 c.m. x 6 c.m., margins were inverted, no blackening and scorching was present. The injury was 7 c.m. From the base of neck.
1(b) Wound of exit. 3 circular wounds 1 c.m. In diameter 2 front of neck at lower part and one 2.5 c.m. 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 c.m. In diameter x abdominal cavity and under the skin in an area of 10 c.m. x 10 c.m. On back and outer side of right flank, no blackening and scorching was present.
2(b) 5 circular wounds 1 c.m. In diameter x continuous with the wound of entry, margins were averted on front of right side of abdomen at right hypochondria.
' The doctor opined that injuries Nos.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 immediate and between death and post-mortem examination about 10/12 hours.
6. P.W.2 Ahson Saeed, Patwari prepared the site plans Exh.PD and Exh.PD/1 on 13-6-1996 on the pointation of P.Ws. And direction of police. Zaka Ullah, P.W.3 was complainant and eye-witness of the occurrence. He supported the prosecution story as narrated by him in complaint Exh.PE. Ali Muhammad P.W.4 was also an eye-witness of the occurrence. His statement was in line with time of the complainant. P.W.5 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. P.W.6 Sadiq Ali was witness of recovery of pistol, got recovered by acquitted co-accused Sarfraz. P.W.7 Muhammad Asghar identified the dead body of deceased Asmat Ullah at the time of post-mortem examination in Civil Hospital, Samundri. P.W.8 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. P. W.9 Basharat Ali, HC stated he delivered the sealed parcel containing blood-stained earth to the office of Chemical Examiner, Lahore. P.W.10 Khalid Hussain, A.S-I. Recorded the formal F.I.R.
Exh.PE/1 on the basis of complaint Exh.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, A.S-I. Was examined as P.W.11.
While posted at Police Station Saddar Samundri on 23-4-1996 he along with other police officials was present at Hammad Petrol Pump, Tandla Road when the complainant got recorded complaint Exh. PE with him. After recording the complaint, thii 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 Exh.PB and inquest report Exh.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 Exh.PF. He prepared the rough site plan through memo. Exh.PK.
After that; he recorded the statements of the P.Ws. 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. Exh.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/P.W. 12 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 Exh.PG. On the same day Muhammad Nawaz accused while in police custody led to the recovery of carbine P.3 which was taken into possession through memo Exh.PJ. On 13-6-1996, Sarfraz accused while in police custody led to the recovery of unlicensed revolver P.2 which was taken into possession through memo Exh.PH. Thereafter he handed over the file to the S.H.O. For submission of the challan. P.W.13 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 Investigating Officer. The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Exh.PM and that of Serologist Exh.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 P.Ws. Deposed against you" Noor Ahmad, appellant replied as under:-- "The case is false against me and P.Ws 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, D.S.P/SDPO, Tandlianwala and the arrest of Shehbaz alias Kulla is admitted one by P.W.4. 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 produced birth certificate of Mst. Sharm Bibi daughter of Naza resident of Chak No,414/GB, the wife of Asmat Ullah deceased (alleged sister of Nawaz my co- accused) as Exh.DA. It was a blind murder and the occurrence took place in the darkness of nigh and was not witnessed by any P.W."
' 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. Exh.PE/1 as well as in statements of *P.W.3 and P.W.4, 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 eye-witnesses, particularly, P.W.4 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) P.W.2 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) P.W.4 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 P.W.3 and P.W.4 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 P.W.3 i,e, Exh.PE/1 and Exh.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, P.W.3 (complainant) and P.W.4 reiterated the same motive. The record speaks otherwise. According to the statements of P.W.3 and P.W.4, 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 P.Ws. Nor the record shows if there was any third wife of the deceased. Moreover, the P.Ws. Nowhere 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 P.Ws. 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 P.W.3 in his statement before the Court. The same was repeated by P.W.4 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 Exh.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. P.W.2 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. P.W.2 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 Exh.PE and statement of P.W.3 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 someone, he comes in front instead of back. Whereas, according to the doctor, P.W.1 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. P.W.1 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 P.W.3 and Exh.PE this injury was caused by appellant No,2 on the deceased when the latter had fallen on the ground after receiving the first injury caused by appellant No,1 Thus, the narration of Exh.PE and statements of P.W.3 and P.W.4 do not get necessary corroboration from the statements of P.W.1 and P. W . 2 .
14. According to P.W.11, the sunset at 6-30 p.m. On the day of occurrence i,e, 23-4-1996, but according to P.W.4, 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 P.W.4 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 P.W.4 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 P.W.4 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 P.W.4, it may be mentioned herein that he saw 4/5 empties at the spot yet none of the empties were recovered by the Investigating Officer/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 P.Ws. Families who are all close relative. The record also indicates enmity of the deceased with some other people including relatives. P.W.12 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 complaisant Exh.PE and also reiterated by P.W.3 and P.W.4, could not be established. Similarly, the way occurrence has been narrated by the ,P.Ws. Could not be corroborated or supported by P. W,1 and P.W.2. 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 P.W.4 4/5 empties were found/see 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.