' MUHAMMAD FARRUKH MAHMUD, J.-This judgment will dispose of Criminal Appeal No,1716 of 2001 filed by Noor Hussain, who along with Wali Muhammad faced trial in case F.I.R. No,365, registered at Police Station Hujra Shah Muqeem, on 28-6-2000 for offences under sections 302/34, P.P.C., before learned Additional Sessions Judge, Depalpur, who after conclusion of trial, vide his judgment, dated 31-10-2001 while acquitting Wali Muhammad, convicted the appellant under section 302(b), P.P.C.
And sentenced him to death.
2. Murder Reference No,718 of 2001 for confirmation or otherwise of death sentence of appellant shall also be decided through this single judgment.
3. Succinctly, the facts of the case as narrated in F.I.R. Exh.PA/1 are that on the fateful night at about 12-00, while Khushi Muhammad-deceased was sleeping on a cot and the complainant along with her daughter Mst. Azra Pervin was sleeping on another cot on roof top of their house, the complainant and her daughter woke up after hearing fire noise and saw that Noor Muhammad armed with .12 bore gun and Wali Muhammad ertipty-handed were running away from the roof; The accused were also seen by Muhammad Tufail, while they were running, in the electric light.
Khushi Muhammad was attended to by the complainant party, : who after receiving injury on his back had died at the spot.
4. The motive behind the occurrence was that Khushi Muhammad-deceased had 9-1/2 acre agricultural land and had no male issue. For that' reason he had contracted second marriage with Mst. Azizan. 13/14 days prior to the occurrence Noor Hassan (nephew of the deceased) tried to bore in the land belonging to Khushi Muhammad for the purpose of tube-well. Khushi Muhammad restrained Noor Hassan, who aimed his gun towards Khushi Muhammad but the people of the locality rescued him. For that revenge the accused had murdered his uncle Khushi Muhammad.
5. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Bashir Bhatti, S.I./P.W.10, who conducted through investigation, arrested the accused and after effecting recovery of weapon used during the occurrence, sent them to face trial.
6. At the trial, the prosecution in order to prove its case produced 10 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PM and that of Serologist Exh.PN closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication. They did not appear as witness under section 340(2), Cr.P.C. HoweVer, Muhammad Hanif was produced as D.W.l. The appellant after tendering in evidence copy of Mutation No,985, dated 28-10-2000 Exh.DE and copy of death register Exh.DF closed his defence. After conclusion of trial, the learned trial Court while acquitting Wali Muhammad convicted and sentenced the appellant as stated above.
7. The learned counsel for the appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record in support of this appeal has contended that it was a night occurrence; that P.Ws. 1 and 2 made dishonest improvements before the learned trial Court by stating that the accused fired at in their presence and within their view, while according to F.I.R. And their first statements the witnesses got up after hearing the noise of fire and then saw the accused running; that the motive set in the F.I.R. Could not be proved before the learned trial Court; that the P.Ws.
Also made dishonest improvements about the motive and were duly confronted with their earlier statements; that the matter was not reported to the police for seven long hours, which clearly denotes that it was an unwitnessed occurrence; and that the recovery evidence was of no value as no empty or weapon was sent to Forensic Science Laboratory and the recovered gun was a licensed gun.
8. On the other hand, the learned counsel appearing on behalf of the complainant submits that the place of occurrence, which is house of the deceased, has not been challenged, therefore, P.W. 1 was the natural witness being wife of the deceased; that the witnesses have given a very truthful account of the occurrence and if there are any improvements, in fact those are the details of the occurrence; that the house of Muhammad Tufail was adjacent to that of the deceased, so he was natural witness and could easily see the\occurrence; that the prosecution would not suffer for the incompetence of the Investigating Officer; that both the witnesses being relatives' knew the accused very well and there was no question of mistaken identity; that both the witnesses had no personal enmity with the appellant so as to involve him in a false case; that story of motive could not be brushed aside for the reason that the matter was not reported to the police earlier about the motive; that the absence of motive or weakness of motive or non-proving of motive would not help the accused and relies upon 2005 SCM R 427; that delay stands fully explained by the fact that the first informant has no male issue and had only a daughter, so she waited till morning and while she was proceedings towards Thana, S.H.O. Met her; that since the real nephew had murdered his uncle; the time was consumed before reporting the matter and it was observed in 1987 SCM R 136 that there was no enmity the delay would not matter; that the appellant killed his real uncle and deserves no leniency; and that the learned trial Court has correctly inflicted capital sentence upon the appellant.
9. The learned Additional Prosecutor General adopts the line of arguments advanced by the learned counsel for the complainant.
10. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.
11. The occurrence took place in the middle of night at 12-00 on the roof of the house of Khushi Muhammad-deceased, where the deceased was sleeping on a cot, while his wife Mst. Sharifan Bibi P.W.l along with her daughter Mst. Azra Pervin was sleeping on another cot. According to F.I.R., Mst.
Sharifan Bibi complainant and Mst. Azra Pervin woke up after hearing noise of fire and saw that Noor Hassan, who was holding a . 12 bore gun in his hand and Wali Muhammad who was empty- handed, were running away from the roof. It was also stated that occurrence as also seen by Muhammad Tufail P.W.2. During trial the complainant made dishonest improvements by stating that Noor Hassan fired within her view. During cross- examination she reiterated that at about 12- 00 midnight she and her daughter woke up after hearing some noise and saw Noor Hassan armed with . 12 bore gun and Wali Muhammad empty-handed standing near the cot of Khushi Muhammad. She deliberately did not state that she woke up after hearing noise of fire and was duly confronted with her earlier statement (F.I.R.), wherein she stated that she and Mst. Azra Pervin had woke up on hearing of fire shot and had seen the accused only while they were running away.
She further improved her statement by stating that she and Azra had raised alarm, which attracted Muhammad Tufail P.W. To the spot. Of course she was duly confronted with her earlier statement, wherein it was not recorded. Undeniably Muhammad Tufail P.W.2 was sleeping in the cattle-shed of his house at the time of occurrence. The accused caused single fire and ran away. The whole occurrence ended within a minute or two, so it is not believable that Muhammad Tufail, who was sleeping in his house would be able to climb over the roof and see the accused before causing of fire. The accused, who had chosen mid of the night, would not wait un-necessarily in order to get identified. In his statement Muhammad Tufail also made improvements and was duly confronted with his earlier statement recorded by the police during investigation, while P.W.l stated that Muhammad Tufail was attracted to the spot due to the alarm raised by her and Mst. Azra Pervin.- According to P.W.2, he. Woke up after hearing some noise and suspecting that some person was present on the roof, went there. According to P.W.2, prior to the. Shot none of the P.Ws. Raised any alarm. However, he conceded that' only one shot was fired within a moment.
12. The matter was not reported to the police for seven long hours. No plausible explanation is available on record of the case. P.W.2 stated that after the occurrence neither he nor Mst. Sharifan went to police station to report the matter. He further stated that he did not know as to who had informed the police regarding the occurrence and the police reached the spot at 6-00 a.m. On the same point the complainant after standing that the police station was at a distance of four miles from the place of occurrence added that neither she nor Muhammad Tufail went to police station for reporting the matter. She also stated that she did not know as to who has informed the police about the occurrence and the police reached the spot on its own at about 7-30 a.m. This portion of her statement is contrary to the portion of her statement before the police, wherein it was stated that she was about to go to the police station when the police arrived there. The fact remains that the matter was not reported to the police for seven long hours and no plausible explanation is available on record. In case the witnesses had seen the occurrence Muhammad Tufail could easily . Go and report the matter to the police within an hour. It is also noteworthy that Mst. Azra Pervin, who was the best witness q of the case, was not produced before the learned trial Court. The unexplained delay leads to the logical conclusion that the delay was occurred because P.Ws. Were not h sure that as to who had murdered Khushi Muhammad.
13. As far as medical evidence is concerned, it supports the prosecution case to the extent that Khushi Muhammad lost his life due to fire-arm injury, which was caused from a very close range but it does not lead to the killer.
14. The motive behind the occurrence, according to F.I.R., was that Khushi t Muhammad-deceased had no male issue and for that reason seven years prior to the occurrence he entered into second marriage with Mst. Azizan Bibi. However, no child was born out of the wedlock. Khushi Muhammad owned 9-172 acres of agricultural land and his nephews were for the land. 13/14 days prior to the occurrence Noor Hassan appellant wanted to install tube-well in the land belonging to the deceased. He was stopped by the deceased, feeling aggrieved Noor Hassan took out his gun and aimed it at the deceased. However, no untoward incident was happened due to the intervention of the P.Ws. It was further stated that Noor Hassan got a bore for the tube-well in the land of Khushi.
Muhammad. However, the complainant did not state about the boring of tube-well in the land of Khushi Muhammad before the learned trial Court. There is no evidence available on record as to whether any bore was made in the land of deceased by Noor Hassan. The Investigating Officer/P.W.lO stated before the learned trial Court that he did not visit the place of motive mentioned by the complainant and did not record any witness about it. Except for the statement of the complainant no independent evidence is available on record that any altercation had taken place between the deceased and the appellant for the bore, of tube-well and that the appellant had pointed his gun towards Khushi Muhammad. P.W.2 Muhammad Tufail after stating about the motive conceded that he was not present at that time and the motive story was told to him by his wife. Thfrre is nothing on record that by what means the appellant wanted to acquire the land of Khushi Muhammad- deceased.
15. As far as the evidence of recovery of gun is concerned, the same cannot be used against the accused for the reason that J no empty was recovered or sfcnt to Forensic Science Laboratory and it was a licensed gun of the appellant, which was lying in his house. The licence was also taken in to possession at the time of recovery.
16. After scanning the whole evidence it appears that after seven hours deliberation the appellant was roped in this case on the basis of suspicion. It is settled law that suspicion however strong it may be cannot take shape of proof.
17. For reasons stated above, we are of that opinion that the prosecution case is. Not free from doubt. Thus, we allow this appeal, set aside the judgment passed by the learned trial Court and acquit the appellant form all the charges. He would be released from jail forthwith, if not required in any other case.
18. Resultantly, sentence of death is not confirmed. Murder reference is answered in the negative.