' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,35 of 1995 filed by Tariq Mehmood, Jehangir Akhtar and Muhammad Maskeen appellants, who were convicted and sentenced by learned Additional Session Judge, Rawalpindi vide his judgment dated 16-2-1995 to undergo imprisonment for life and a fine of Rs,25,000 each as compensation to the legal heirs of the deceased or in default six months R.I. Each.
' Criminal Appeal No,50 of 1995 filed by Tariq Tanvir against the acquittal of Zafar Iqbal, Muhammad Irshad and Abdul Khaliq respondents and Criminal Revision No,39 of 1995 filed by Tariq Tanvir complainant against Muhammad Maskeen etc. For the enhancement of sentence shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Tariq Tanvir complainant, are that on 22-4-1992 a case F.I.R. No, 129 dated 9-7-1989 under section 302 P.P.C. Relating to the murder of Mst. Fazelat Jan was pending against Muhammad Ashraf his uncle and others in the Court of Ch. Muhammad Munir, Additional Sessions Judge, Rawalpindi, that after hearing the arguments the cases were adjourned for a while and during that period in front of the Court Room at Ketchery Bus Stop an altercation took place between the parties, that the opponent party, which consists of Tariq Mehmood, Zafar Iqbal, Jahangir, Abdul Khaliq, Yasin and Muhammad Maskeen assaulted upon Mst. Irshad Bibi and caused injuries to her. That Muhammad Irshad @ Shada accused present at the sport, who is also real uncle of Maskeen asked the accused Tariq etc. That if they want to take revenge of murder of Mst. Fazelat their mother, they should murder the wife of Muhammad Ashraf, who is involved in the murder of their mother Mst. Fazelat. That on hearing the instigation and enticing of Irshad accused in the presence of Muhammad Ashraf, complainant Tariq Tanvir went to village Kalri on Taxi to inform his aunt Mst. Sagheer un Nisa, who was not found present in the house but one Mst. Maroof Begum and his son Muhammad Ikhlaq present in the house told that Mst. Sagheer un Nisa has gone in the village on the death of a person. Muhammad Ikhlaq was sent to call for Mst. Sagheer un Nisa, whereas the complainant and Mst. Maroof Begum kept on waiting for Mst. Sagheer un Nisa in front of the house on link road.
' That at about 2-00 p.m. Mst. Sagheer un Nisa, who was being followed by Muhammad Ikhlaq when reached near the land of one Rehmat Hussain, a car from Rawalpindi side stopped on the road and from the said car, which was being driven by Mskeen accused armed with Churri and other co-accused, namely., Tariq armed with .12 bore Carbine, Jahangir and Zafar armed with Churries came out and started running towards Mst. Sagheer un Nisa. That Jahangir inflicted churri blow on the chest, Zafar accused inflicted Churri blow on the back of the head and Muhammad Maskeen accused gave a Churri blow, which hit on his back and the other blow caused injury in the lower portion of the back. That in the meanwhile, Abdul Khaliq accused rushed from his house at the place of occurrence and asked the accused to fire at Sagheer un Nisa and consequently on his "Lalkara" Taiq accused fired a shot, which hit on her left side of the chest and left hand. That Mst.
Sagheer un Nisa fell on the ground and then succumbed to the injuries.
' Motive behind the occurrence was that husband of Mst. Sagheer un Nisa namely, Muhammad Ashraf was facing trial for the murder of Mst. Fazelat the mother of accused Zafar Iqbal, Tariq and Jahangir Akhtar and in order to take revenge of that murder all the accused on the instigation of Irshad @ Shada in furtherance of their common intention committed Qatl-i-Amd of Mst. Sagheer un Nisa.
3. After receiving information about the occurrence, Raza Ali Khan S.-I. P. W.16 proceeded towards the place of occurrence, where he inspected the dead body of Mst. Sagheer un Nisa deceased, prepared injury statement Exh.PL, in quest report Exh.PK, rough site plan Exh.PM, one empty cartridge P.1 of .12 bore Carbine was also taken into possession vide recovery memo. Exh.PB, recorded the statements of P. Ws. Under section 161, Cr.P.C. The recoveries of weapons of offence i.e, Churries and .12 bore Carbine were also effected on the pointation of Jahangir, Maskeen and Tariq Mehmood accused, who were arrested on 27-4-1992 and 2-5-1992 respectively.
4. At the trial, prosecution in order to prove its case produced 17 witnesses in all, thereafter, learned D.D.A tendered in evidence reports of Chemical Examiner Exhs.P0 and PP, reports of Serologist Exh.PO/1 and PP/1, report of Fire Arm Expert Exh.PQ and closed the prosecution case, then, the statements of the accused under section 342, Cr.P.C. Were recorded in which they pleaded innocence. Muhammad Rashid and Syed Ghazanfar Ali Shah D.S.P. Were examined as C.W.1 and D.W.1 respectively.
' Learned counsel for the appellants after having read the entire prosecution, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record submits that it is most un-natural that the real sons of earlier murder case, namely, Fazelat Jan, whose case was pending on the day of occurrence, would leave the proceedings and would reach at the place of occurrence on an uncertain target. He submits that motive in the present case cannot be accepted without a pinch of salt because Ashraf, who was earlier husband of Mst.
Sagheer un Nisa; the deceased in this case, had deserted her for the last 12 years and there was no reason to murder her. Further submits that at the time of occurrence deceased wasa residing at Morgah and nobody knew that she would visit the village where the occurrence had taken place especially the accused persons. Also submits that Sagheer un Nisa deceased had married her son Abbas with the sister of complainant Tariq Tanvir against the wishes of her husband and brothers, that Ashraf and Riaz, who were real brothers, were involved in the murder of Fazelat Jan, whose case was pending before the Sessions Court on the day of occurrence, that Sagheer un Nisa was ex-wife of Ashraf while Mst. Maroof Begum P.W.8 was wife of Muhammad Riaz and Muhammad Ikhlaq P.W.7 is son of Muhammad Riaz mentioned above. Further submits that conduct of Tariq Tanvir complainant that while leaving the Sessions Court and went to inform Sagheer un Nisa about the intention of the appellant and thereafter, the safe place for Sagheer un Nisa was to remain in the house, where the peoples had gathered to condole the death of some relatives of Sagheer un Nisa and Mst. Maroof Begum and her son Ikhlaq would not dare to come out when they were informed about the intention of the appellants by Tariq Tanvir. Complainant.
' Adds that place of occurrence from Sessions Court, Rawalpindi is 20 to 25 Kms but Tariq Tanvir could not get the Taxi for half an hour and he could not reach earlier than that of accused party at the place of occurrence, that there is a deep footed enmity between the parties, even Mst. Maroof Begum had filed complaint against the present appellants, that on the same evidence three co- accused of the appellants, who are respondents in an appeal against acquittal, have been acquitted by the learned trial Court. He has relied upon PLD 1985 SC 11.
' As far as, recoveries on the pointation of the appellants, ate concerned,' that cannot be relied upon because two blood stained churries were recovered from an accessible place. So far as, medical evidence is concerned, one cannot say that from that the Court can ensure itself about the involvement of the accused, that Zafar respondent in an appeal against acquittal to whom the injury on the back of head of the deceased was attributed, he had been acquitted because there was no such injury in the postmortem report of the deceased. Also submits that version of the appellants before the learned trial Court was that there were not good relations between Ashraf the accused for the murder of Fazelat Jan and deceased of this case so Sagheer un Nisa, on the one hand, after planning he had got committed the murder of Sagheer un Nisa and on the other hand, got involved the present appellants and their acquitted cO- accused, that Ashraf mentioned above is maternal uncle of Tariq Tanvir complainant, that prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt and they are entitled to acquittal.
' On the other hand, learned A.A-G. Submits that he does not press appeal against acquittal for the reasons that Irshad and Khaliq respondents were present in the Court on the day of occurrence while there was conflict between ocular account and medical evidence regarding the involvement of Zafar respondent.
' As far as, Criminal Appeal No,35/95, is concerned, learned A.A-G. Submits that case of the present appellants is entirely different from those acquitted accused because effective roles and causing injuries with sharp edged weapons are attributed to them and they find supports from medical evidence. He submits that this Court cannot disbelieve the presence of Ikhlaq and Mst. Maroof Begum at the spot, that it is a case of promptly lodged F.I.R., that as far as, motive, is concerned, that is not disputed one, that though the recovery of Carbine was effected from Tariq appellant but that is of no consequence, that as far as, recovery from Jahangir and Maskeen appellants, is concerned, that is corroborated to the ocular account, that report of fire-arm expert is positive in nature regarding the recovery of Tariq Mehmood appellant and that prosecution had proved its case against the appellants beyond' any shadow of doubt.
7. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Motive behind the present occurrence was that three years prior to the present occurrence in the year 1989 Fazelat Jan mother of Tariq Mehmood and Jahangir Ahmad appellants was murdered in which case Ashraf and Riaz, who are real brothers inter se, were accused and on the day of occurrence the said case was pending before the Sessions Court, Rawalpindi, the said case was adjourned for some time for the purpose of cross-examination and in the meanwhile, on the asking of Irshad acquitted accused, present appellants along with other accused went to the place of occurrence. Muhammad Ikhlaq P.W.7 is son of Riaz, Mst. Maroof Begum P.W.8 is wife of Riaz while Tariq Tanvir complainant is maternal nephew of Mst. Sagheer un Nisa deceased and also maternal nephew of Ashraf, who had deserted Mst. Sagheer un Nisa deceased about 12 years before the present occurrence. Now the question is that if Tariq and Jahangir appellants had to take the revenge for the murcler of their mother Fazelat Jan, then, their first target should have been Ashraf and Riaz and not Sagheer un Nisa, who was deserted by Ashraf 12 years ago from the day of occurrence. Moreover, Muhammad Ikhlaq P.W.7 whose father Riaz was involved in murder case of Fazelat Jan, why he would leave his father, who was in custody and would got to the place of occurrence. In this regard, we are of the view that his presence has been shown at the place of occurrence only in order to become an eyewitness. The distance between place of occurrence and that of Sessions Court, Rawalpindi is about 20 to 25 Kms. Tariq Tanvir complainant was present in Sessions Court, Rawalpindi in connection with the above said murder case of Fazelat Jan, he got a Taxi after half an hour according to his own statement, after hearing Irshad acquitted co-accused, who asked his co-accused i.e, the appellants, to go and commit the murder of Sagheer un Nisa, who was in fact resident of Morgah while the occurrence had taken place in Kalri, she had gone there to condole the death of her relative and when she was informed about the intention of the appellants, the best way for her to remain in the said house and not to come out from the said house. Moreover, on the same evidence, three co-accused of the present appellants have been acquitted especially Zafar, who was armed with Churri and according to eyewitness account he caused an injury on the back of head of Sagheer un Nisa deceased but as the said injury was not available in the postmortem report of the deceased, so he. Was acquitted by the trial Court and rightly so. Furthermore, there was deep-rooted enmity between the parties; Mst. Maroof Jan P.W.8 had also filed complaint against the appellants so she was inimical towards the appellants. As far as, recovery of Churries from Jahangir and Maskeen appellants, is concerned, that is not believable because the said churries were recovered from an accessible place and no reliance can be placed upon such recovery. So far as, recovery of Carbine from Tariq Mehmood appellant is concerned, only one fire was shot from the said Carbine and there is no evidence that Tariq Mehmood appellant fired another shot. Had he fired the second shot, then, the empty could have been ejected, so on this ground we also disbelieve the recovery of Carbine from Tariq Mehmood appellant. There are no distinguishing circumstances between acquitted accused especially Zafar and the present appellants.
' After having heard learned counsel for the parties and going through the evidence available on record, we are of the opinion that F.I.R. Was recorded after due deliberation and consultation, that is also outside the police station and not inside the police station, eye-witnesses were not present at the spot, after the murder in connivance with the police story was concocted and the present case was registered against the appellants and their acquitted co-accused, .So while accepting this appeal, we set aside the conviction and sentence recorded against the appellants by by the learned trial Court. As Jahangir appellant had died, so this appeal to his extent is abated while rest of the appellants, namely, Tariq Mehmood and Muhammad Maskeen are on bail so they shall be discharged from their bail bonds.
' As far as, Crimipal Appeal No,50 of 1995 filed by Tariq Tanvir against the acquittal of Zafar Iqbal, Muhammad Irshad and Abdul Khaliq respondents and Criminal Revision No,39 of 1995 filed by Tariq Tanvir complainant against Muhammad Maskeen etc. For the enhancement of sentence, are concerned, that are dismissed for the reasons mentioned above. 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.