' ASIF SAEED KHAN KHOSA, J.-Saif Ali appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 29-6-2000 delivered by the learned Sessions Judge, Sargodha and was sentenced to death and to pay a sum of Rs,2,00,000 to the heirs of Muhammad Hayat deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months. Through the same judgment a son and co- accused of the appellant namely Ghulam Abbas was, however, acquitted by the learned trial Court. The appellant has challenged his conviction and sentence before this Court through the present appeal which has been heard by us along with Murder Reference No,498 of 2000 seeking confirmation of the sentence of death passed by the learned trial Court against Saif Ali appellant and we propose to decide both these matters together through the present consolidated judgment.
2. According to the prosecution's case unfolded in the F.I.R. Amjad Mahmood complainant was a resident of Fazal Colony Dakhli, Chak No,7 Janubi situated within the area of Police Bhalwal, District Sargodha and was a laborer by profession. Two sisters of the complainant were married to two sons of Saif Ali appellant namely Ghulam Abbas and Akhtar whereas a daughter of Saif Ali appellant was married to a maternal uncle of the complainant namely Muhammad Nazir. About 5/6 days prior to the present occurrence the daughter of the appellant had returned to the house of the appellant on account of her estrangement with her husband and the complainant's father had been making efforts to get the appellant's daughter restored to the house of her husband but the appellant was not agreeable to the same as the appellant used to blame the complainant's father for her estrangement with her husband, in order to settle the said matrimonial dispute the complainant's maternal grandfather namely Noor Muhammad and the complainant's maternal uncle namely Muhammad Bashir had come to the complainant's house on 16-6-1998 and at about 2-00 p.m. On that day the complainant, his father namely Muhammad Hayat, his maternal grandfather namely Noor Muhammad and his maternal uncle* namely Muhammad Bashir were proceedings to the house of Saif Ali appellant situated in the same village and when they reached near the house of one Muhammad Iqbal situated near the house of the appellant they saw that the appellant armed with a gun .12 bore and his son namely Ghulam Abbas accused emerged on the roof of their Baithak. The appellant and his co-accused raised a Lalkara warning the complainant's father to go back otherwise he would be fired at. Upon hearing that Lalkara the complainant's father namely Muhammad Hayat respondent by saying that if the appellant was not ready to send his daughter back to the house of her husband then the appellant should return the sister of the complainant to the complainant party. As a result of the response of the complainant's father Ghulam Abbas accused raised a Lalkara that the complainant's father should be fired at and simultaneously Saif Ali appellant fired two shots which hit the complainant's father namely Muhammad Hayat and upon receipt of those injuries he fell down and died at the spot. The appellant and his co-accused-then ran away from the place of occurrence. Muhammad Hayat deceased was handled by the complainant and others but they found him dead. Leaving the dead body of his father at the spot the complainant went to Police Station Bhalwal, District Sargodha and lodged F.I.R. No, 190 thereat in respect of the said incident at 3-00 p.m. On 16-6-1998 for an offence under section 302, P.P.C. Read with section 34, P.P.C.
3. The investigation of this case was conducted by Muhammad Ijaz Ahmad, S.-I. (P.W.12), Muhammad Aslam, Inspector (P.W.10) and Muti Ullah Khan, inspector (P.W.Ll) and during the investigation the place of occurrence was inspected, bloodstained earth and two crime-empties were secured therefrom, a rough site-plan thereof was prepared, the dead body was sent to the mortuary for autopsy and statements of witnesses were recorded. After the post-mortem examination of the dead body the last-worn clothes of the deceased were secured and later on the appellant and his co-accused were arrested and a gun .12 bore was recovered from the appellant's possession. Upon completion of the investigation a challan was prepared and submitted in connection with this case.
4. At the commencement of the trial the learned trial Court framed a charge with one head under section 302(b), P.P.C. Read with section 34, P.P.C. Against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced twelve witnesses in support of its case against the appellant and his co-accused. Amjad Mahmood complainant (P.W.8) and Noor Muhammad (P.W.9) furnished the ocular account of the incident in issue and they also deposed about the motive. Abdul Ghafoor, A.S-I. (P.W.7) stated about recovery of a gun .12 bore from the possession of the appellant during the investigation of this case. The medical evidence was provided by Dr. Muhammad Fazal Rasool (P.W.1). Muhammad Ijaz Ahmad, A.S-I. (P. W.12), Muhammad Aslam, Inspector (P.W.10) and Muti Ullah Khan, Inspector (P. W.11) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In their statements recorded under section 342, Cr.P.C. The appellant and his co-accused denied and controverted all the allegations of fact leveled against them by the prosecution and professed their innocence. They, however, opted not to make statement on oath under section 340(2), Cr.P.C.
And they did not produce any witness in their defence.
7. Upon conclusion of the trial the learned trial Court acquitted the appellant's co-accused namely Ghulam Abbas but after finding the prosecution' case against the appellant to have been proved beyond reasonable doubt it convicted and sentenced him as mentioned and detailed above.
Hence, the present appeal and the connected murder reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, the appellant is entitled to be acquitted by this Court. As against that the learned counsel for the State have maintained in unison that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightway been noticed by us that the parties to this case were very closely related to each other inasmuch as two daughters of Muhammad Hayat deceased were married to two sons of Saif Ali appellant and a daughter of Saif Ali appellant was married to a brother-in-law of Muhammad Hayat deceased, namely Muhammad Nazir and, thus, Muhammad Hayat deceased and Saif Ali appellant were Samdhi of each other. It is also admitted at all hands that at the time of the sent occurrence the relations between the parties were strained as the appellant's daughter had left the house of her husband and had started residing with the appellant on account of some matrimonial estrangement.
10. Both the eye-witnesses produced in this case, i.e, Amjad Mahmood complainant (P.W.8) and Noor Muhammad (P.W.9) were not only closely related to Muhammad B Hayat deceased but they were also chance witnesses besides 'being interested witnesses. Amjad Mahmood complainant (P.W.8) was the son of Muhammad Hayat deceased and. His house was situated about one mile away from the place of occurrence. His interest against Saif Ali appellant was a foregone conclusion on. Account of the motive set up by the prosecution. Noor Muhammad (P.W.9) was also closely related to Muhammad Hayat deceased as he was a maternal grandfather of Amjad Mahmood complainant and the father-in-law of Muhammad Hayat deceased. The witness had admitted before the learned trial Court that during the days of occurrence he was employed as a Baildar in the Highways Department and he had claimed that on the day of occurrence it was public holiday on account of Chehlum of Hazrat Imam Hussain. The occurrence in this case had taken place at about 2-00 p.m. And in ordinary course of things at that time this witness was supposed to be present on his duty in the Highways Department. It has been admitted before us by the learned counsel for the parties that no public holiday is observed on the Chehlum of Hazrat Imam Hussain. The reason given by this witness for his absence from his duty at the relevant time was, thus, absolutely false. This witness was also inimical towards the appellant inasmuch as he had admitted before the learned trial Court that a daughter of his wife from another husband had been forcibly taken away by the present appellant and was then got married to Muhammad Hayat deceased and this witness and his brotherhood had not participated in that marriage, This witness was, therefore, not only inimical towards Muhammad Hayat deceased but was also inimical towards Saif Ali appellant. He, therefore, had no reason to accompany the deceased to the house of the appellant at the relevant time but he surely had a reason to become a witness in this case because his one enemy namely Muhammad Hayat deceased had been booked in this case as an accused person and by deposing against the appellant this witness could make an effort to get rid of the appellant as well. This witness had been proved to be a liar because he had claimed that his house was situated opposite the house of the present appellant but this fact was not confirmed by the site-plan of the place of occurrence (Exh.PD/A). Apart from that the address of this witness recorded at the top of his deposition before the learned trial Court showed that this witness was a resident of Chak No,7/SB Syedan whereas the house of the appellant was situated in Chak No,7 Janubi.
11. The story of the prosecution deposed by the above mentioned eye-witnesses has been found by us to be even otherwise quite improbable inasmuch as it had been claimed by both the eye- witnesses that at the relevant time they were proceeding with Muhammad Hayat deceased towards the house of Saif Ali appellant in order to bring about a settlement between the 'parties over a matrimonial dispute involving the appellant's daughter and a brother-in-law of Muhammad Hayat deceased. It had never been claimed by them that the appellant and his son namely Ghulam Abbas accused had any prior information about the proposed visit of the complainant party to the house of the appellant. It was, thus, strange and unbelievable that, according to the prosecution's case, when the complainant party reached near the house of the appellant at that time the appellant and his son were present on top of the roof of their Baithak and the appellant was armed with a gun as if they were waiting for the complainant party. The occurrence in this case had taken place at 2-00 p.m. In the month of June and Amjad Mahmood ,complainant (P.W.8) had stated before the learned trial Court that the day of occurrence was a very hot day. We have, therefore, found it to be unbelievable that the appellant and his son would be sitting on the roof of their Baithak- in scorching heat and would be, in the absence of any prior information in that regard, waiting for the complainant party to come that way at the time of the present occurrence.
12. Instead of providing support teethe ocular account the medical evidence had gone a long way in contradicting and discrediting the eye-witnesses produced by the prosecution in this case. It is of critical importance to mention here that according to the statement made by Dr. Muhammad Fazal Rasool (P.W.l) both the injuries sustained by the deceased had blackening around their margins which is indicative of a fact that the deceased had been fired at from a very close range.
The site plan of the place of occurrence (Exh.PD/A), however, showed that Saif Ali appellant was present about 31 feet away from the deceased. Muhammad Hafeez Draftsman (P.W.2) had given that distance before the learned trial Court to be about 40 to 45 feet.
' Apart from that Dr. Muhammad Fazal Rasool (P.W.l) had found that injury No,l sustained by the deceased had been caused from a "straight direction" indicating that the assistant was on the same level with the deceased but according to the ocular account the appellant had fired at the deceased from the roof of his Baithak at a time when the deceased was present on the ground in a street. Noor Muhammad (P.W.12) had stated that the appellant's Baithak was about 11/10 feet high.
We have further noticed that the occurrence in this case had taken place at about 2-00 p.m. On 16-6-1998 and an F.I.R. In that regard had statedly been registered at 3-00 p.m. On the same day but post-mortem examination of the dead body was conducted at 7-00 a.m. On 17-6-1998 i.e, on the following morning. Asif Mahmood, . FC (P.W.3) had confirmed the fact that he had taken the dead body to the mortuary, at about 3/4-00 p.m. On 16-6-1998. There is no explanation available on the record of this case as to why post-mortem examination of the dead body was conducted with such a delay. Such delay is generally suggestive of an unwitnessed occurrence wherein time is utilized by the copiplainant party and the police to procure and plapt eye-witnesses and to cook up a story of the prosecution. For all these reasons we have found the medical evidence to be completely destructive of the ocular account furnished by the prosecution in this case.
14. The motive set up by the prosecution had not been proved by it through any independent evidence. In his statement recorded under section 342, Cr.P.C. Saif Ali appellant had admitted that his daughter had come to his house during the days of the present occurrence but he had denied that she had come to his house due to any estrangement with her husband. The prosecution failed to bring any independent evidence on the record to establish any estrangement between the appellant's daughter and her husband and its assertions in. That regard had failed to travel beyond mere verbal assertions. In these circumstances no corroboration to the ocular account was forthcoming on this score.
15. Although a gun .12 bore allegedly recovered from the appellant's possession during the investigation of this case had statedly matched with two crime-empties recovered from the place of occurrence yet such recoveries were legally inconsequent because admittedly the gun and the crime empties had been sent to the Forensic .Science Laboratory simultaneously: and together. The report of the Forensic Science Laboratory (Exh.PL) confirms that the gun and the crime empties had been received together on 31-8-1998. According to the statements made by Ghulam Hussain, FC (P.W.5), Ghulam Hussain, FC (P.W.6) and Muhammad Aslam, Inspector (P.W.10) the crime empties had been sent to the Forensic Science Laboratory on 28-7-1998 and the same had been deposited at the Forensic Science Laboratory on the following day. This was completely belied by the above mentioned report of the Forensic Science Laboratory according to which the crime empties had been received on 31-8-1998. There is no evidence available on the record to explain where such crime empties had remained between 28-7-1998 and 31-8-1998. Saif Ali appellant had been arrested in connection with this case on 12-8-1998 and a gun had statedly been recovered from his possession on 18-8-1998. No prosecution witness had uttered even a single word before the learned trial Court explaining as to when and by whom the recovered gun had been taken to the Forensic Science Laboratory. Admittedly the gun recovered from the appellant's possession was his licensed gun. The statements made by Ghulam Hussain, FC (P.W.5) and Ghulam Hussain, FC (P.W.6) shows that only one crime empty had been recovered in this case and not two crime empties as maintained by the prosecution. In view of such infirmities in the prosecution's case vis- a-vis the said recoveries we have not felt persuaded to lend any credence to the same and, thus, no corroboration to the. Ocular account was available to the prosecution through the said recoveries.
16. The statement made by Amjad Mahmood complainant (P.W.8) before the learned trial Court had confirmed the fact that Muhammad Hayat deceased had many enemies and he had remained involved in many criminal cases including that of murder. The discussion made above show that both the eye-witnesses produced in this case by the prosecution were related, change and interested witnesses who had failed to receive any independent corroboration or support. In that backdrop a possibility of false implication of Saif Ali appellant after due deliberations by the complainant party cannot safely be ruled out of consideration.
17. The upshot of the discussion made above is that-the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the charge by extending the J benefit of doubt to him. He shall be released from the jail forthwith if not required in any other case.
18. Murder Reference No,498 of 2000 is answered in the negative and the sentence of death passed by the learned trial Court against Saif Ali appellant is not confirmed.