' HASNAT AHMAD KHAN, J.--Abdus Sattar-appellant and Mst. Nasrin Akhtar, were tried by a learned Additional Sessions Judge, Wazirabad, in case F.I.R. No,298/2000 dated 10-9-2000, registered with Police Station Saddar, Wazirabad, in respect of offences under section 302/34, P.P.C. Vide his judgment dated 27-6-2002, the said learned Addl. Sessions Judge found the appellant guilty for the murder of Abdul Aziz, and convicted and sentenced him to death under section 302(b), P.P.C.
Besides it, he was directed to pay a sum of Rs,50,000 as compensation to the legal heirs of the deceased or in default of payment thereof, he was ordered to undergo Six months year S.I. Mst.
Nasrin Akhtar, co-accused, of the appellant, was, however, acquitted of the charge.
2. Felling aggrieved by the judgment of the learned trial Court, the appellant has challenged his conviction and sentence through Cr. Appeal No,270-J/2002, while the trial Court has sent a reference (M.R. No,910/2002) for confirmation of the sentence, awarded to the appellant. This consolidated judgment will dispose of both the said matters.
3. Briefly, the prosecution story, as per F.I.R. (Exh.PC/1) lodged on the statement/complaint (Exh.PC) of Abdul Hameed (P.W.1), is to the effect that 7/8 days before the occurrence, his nephew Waqar Ahmed aged 10/12 years and Osama son of the appellant were riding their bicycles racing with each other, during which Osama son of the appellant hit his bicycle with a motionless and still trolley and got injures. The mother of Osama submitted an application to Police Station, Sohdara, against Abdul Aziz (Slain). Thereafter, father of Osama, namely, Abdus Sattar alias Tariq-appellant reached there and extend threats to kill Abdul Aziz but on the intervention of the respectables of the village, the matter was patched up between the parties. Thereafter, Abdul Sattar-appellant, visited the house of Abdul Aziz consecutively for 2/3 days asking him to go to P.S. Sohdara in order to reduce into writing a compromise. Abdul Aziz (deceased) said to Abdus Sattar that since he had received Rs,3500 in lieu of compromise, so there was no need to do the same. On 9-9-2000 at 7-00 p.m., Abdul Sattar along with his wife Mst. Nasreen Bibi, allegedly, visited the house of Abdul Aziz and desired to take Abdul Aziz to P.S. Sohdara for executing an agreement but Abdul Aziz refused to accompany them. Mst. Zahida Parveen wife of Abdul Aziz convinced his husband to accompany them to P.S. Sohdara and asked him to within an hour. After waiting for 2/3 hours, when Abdul Aziz did not return, his wife Mst. Zahida Parveen briefed Abdul Hamid / complainant (P.W.3) and Abdur Rashid (P.W.4) about the whole episode. Abdul Hameed (P.W.3) and Abdul Rashid (P.W.4) along with Mahmood-ul-Hassan set forth in search of Abdul Aziz (deceased). They also went to the house of Abdus Sattar to inquire about Abdul Aziz at 9-00 p.m. But the children in the house answered in negative. All the said three persons statedly went Sohdara and Wazirabad, in search of Abdul Aziz.
They also inquired from P.S. Sohdara but Abdul Aziz could not be traced out. Later on, when they reached Wazirabad, they, statedly, got a clue of Abdul Aziz, who had been seen in the company of a woman and two men going towards Mohallah Jalalpura, Wazirabad. The said eye-witnesses, allegedly, reached Mohallah Jalalpura and at a distance of 15/20 yards they saw Abdul Aziz, Abdus Sattar-appellant and Nasrin Akhtar going towards Darbar of Konay Shah. They called Abdul Aziz on which Mst. Nasrin Akhtar clasped Abdul Aziz and Abdul Sattar alias Tariq appellant, reportedly, fired four shots at Abdul Azizdeceased. Due to the fear, the eyewitnesses, allegedly, hide themselves and remained silent for about 5/7 minutes. Thereafter, when they reached the place of occurrence, Abdul Aziz had succumbed to his injuries and was lying in a pond of blood.
4. After recording the F.I.R. (Exh. PC/1), Muhammad Naw az , S . -I. / Investigating Officer (P.W.10) went to the place of occurrence, prepared injuries statement of Abdul Aziz-deceased (Exh.PG), inquest report (Exh.PH), secured the bloodstained earth from the spot vide memo. (Exh.PA) and drafted rough site-plan of the place of occurrence (Exh.PJ). He dispatched the dead body to the hospital. Through Muhammad Tariq C-1567 for postmortem examination after drafting an application (Exh.PK) for the said purpose and recorded statements of P.Ws. Under section 161, Cr.P.C.
He took into possession the last worn clothes of the deceased, i.e, shirt (P.1) and Shalwar (P.2) along with the police papers vide memo. Exh.PB, which was attested by Razaque and Tariq, P.Ws. He got prepared site-plan (Exh.PF) and Exh.PF/1 from a draftsman. He partially investigated the case and, thereafter, the investigation was entrusted to Gohar Abbas, S.-I./S.H.O, who appeared in the witness-box as P.W.
11. He recorded the statements of Subedar Rehmat Khan and Muhammad Jamil, P.W.s. On 10-10- 2000, on a tip off, he arrested appellant, and on his pointing out, he (the Investigating Officer) recovered .30 bore pistol (P.3) from the fold of his Shalwar along with the licence of the pistol, which were taken into possession vide memo. (Exh.PD). Me sealed the pistol into a parcel. On 14-10-2000, he arrested Mst. Nasrin, acquitted co-accused.
5. After the submission of report under section 173, Cr.P.C. The appellant, along with his co-accused, was indicted on the charge of murder of Abdul Aziz (slain). During the trial, the prosecution, in support of its case, produced as many as 11 witnesses.
' Abdul Hameed-complainant and Abdul Rashid entered into the witness-box as P.W. 3 and P.W.4, respectively and furnished the ocular account.
' Dr. Hafiz Muhammad Akram Gondal, who conducted postmortem examination on the body of the slain entered the witness-box as P.W.17 and proved the following injuries on his person:--
(1) Fire-arm lacerated wound 1-c.m. x 1-c.m. With black and inverted margins, on the left buttock upper part i.e, entrance.
(2) Fire-arm lacerated wound 1.5-c.m. x 1.5 c.m. With everted margins on the front of left thigh upper part, i.e, exit.
(3) Fire-arm lacerated wound 0.5 x 0.5 c.m. With black and inverted margins in front of left knee joint with clinically fracture of patella i.e, (entrance).
(4) Fire-arm lacerated wound 2-c.m. x 2 c.m. With everted margins back of left knee joint i.e, exit.
(5) Fire arm lacerated wound 1-c.m. x c.m. Black and inverted margins, back of right knee joint i.e, entrances.
(6) Fire-arm lacerated wound with everted margins, 1.5 x 1.5 c.m., 1 c.m. Medial to the injury No,5 i.e, exit.
' In his opinion, all the injures were caused with fire-arm weapons and were ante-mortem in nature.
He further opined that Injuries Nos.1 and 3 caused profuse bleeding, leading to death. The time that elapsed between injuries and death, according to the said doctor, was about 5-10 minutes and between death and p.m. Examination was about 12/15 hours.
' Nasir Mehmood, Constable, P.W.6, proved the receipt and delivery of parcels containing blood- stained earth and the pistol to the offices of Chemical Examiner and Forensic Science Laboratory, Lahore respectively.
' Masud Ahmad, Draftsman, who had prepared the site-plan (Exh.PF and Exh.PF/1) appeared before the trial Court as P.W.9.
' Gohar Abbas, S.-I. C.I.A. Staff, Gujranwala, who had partly investigated the case, came forward as P. W.11 and furnished the detail of the arrest of the appellant and proved the recovery of pistol (P.3) from the fold of the Shalwar of the appellant at the time of his arrest. P.W.11 further proved the arrest of Nasreenacquitted co-accused on 14-10-2000.
' Rest of the P.Ws, being formal in nature, need not be discussed here.
6. After recording the prosecution's evidence, both the accused were called upon to make their statements under section 342, Cr.P,C. Like his co-accused, the appellant also denied the charge levelled against him. However, he did not opt to make statement under section 340(2), Cr.P.C. In response to Question No,9, the appellant replied as under:-- "Complainant has involved me in this case, due to suspicion and all the P.Ws. Are inter-related with each other. In fact, it was a blind murder and the alleged P.Ws. Were not present there. The P.Ws.
Have deposed against me due to relationship with the deceased and each other."
' After the conclusion of the trial the learned trial Court convicted and sentenced the appellant as mentioned above.
7. Learned counsel for the appellant has argued that it was an unseen occurrence; that the appellant has been involved in this case only on the basis of a suspicion; that the prosecution failed 'miserably to prove the motive as set-up in the F.I.R; that there is a seeming inconsistency between the medical evidence and the ocular version; that admittedly no crimes empty was recovered from the spot, therefore, the alleged recovery of pistol at the instance of the appellant is useless for the prosecution; that for the same reason while convicting the appellant no reliance was placed by the learned trial Court on the said piece of evidence; that the ocular evidence is replete with contradictions and inconsistencies; that admittedly both the eye-witnesses besides being real brothers of the deceased, are chance witnesses, therefore, no implicit reliance can be placed on their evidence and that on the basis of same evidence Nasreen Akhtar, co-accused of the appellant, has already been acquitted by the learned trial Court, therefore, for maintaining the conviction awarded to the appellant, strong corroboration is required which, in this case, is not forthcoming. The crux of the arguments put forth by the learned counsel for the appellant is that the prosecution has failed miserably to prove its case beyond the shadow of doubt, therefore, the appellant is entitled to acquittal.
8. Conversely, learned Deputy Prosecutor-General has strenuously opposed the prayer made in this appeal. He has argued that both the eye-witnesses had no enmity with the appellant to falsely implicate him and that the prosecution has proved successfully its case against the appellant beyond any shadow of doubt, therefore, he is not entitledto acquittal.
9. We have given ardent hearing to the learned counsel for both the parties and have gone through the record carefully.
10. We have gathered that the prosecution case comprises ocular evidence, motive, recovery of pistol from the possession of the appellant and the medical evidence.
11. Insofar as the apple of discord behind the occurrence is concerned, the prosecution has failed to prove the same. Waqar Ahmad son of Abdul Aziz (deceased), who was involved in the incident, which became the bone of contention between the parties, was not produced by the prosecution in the witness-box. Similarly the prosecution withheld the A very important witness i.e, Zahid Perveen, who had allegedly reported to the complainant about the departure of her husband Abdul Aziz (deceased) along with the appellant and his wife-acquitted co-accused, who had taken him along with them on the pretext of visiting the police station to settle the earlier dispute.
We have further gathered that though according to the prosecution Nasreen Akhtar wife of the appellant, had submitted an application to the police for proceeding against Abdul Aziz (deceased) on account of earlier incident of the quarrel of their children but the prosecution failed to prove the filing of the said application also. Besides, Abdul Hameed P.W.3 while appearing in the witness-box candidly admitted that he had not witnessed the occurrence which became the apple of discord between the parties. Therefore, no implicit reliance can be placed on the evidence of motive provided by the prosecution. Consequently, the said piece of evidence is hereby discarded.
12. As far as the allegation of recovery of the licensed pistol from the possession of the appellant is concerned, in the absence of the recovery of crime empties of the bullets from the place of occurrence and positive report of Forensic Science Laboratory the said recovery cannot advance the case of the prosecution. Even otherwise the recovery of the said pistol from the appellant has not been proved by the prosecution beyond the shadow of doubt. According to the prosecution the said pistol was recovered by the Investigating Officer from the appellant at the time of his arrest from a chowk at Wazirabad, which, admittedly, is a public place but no independent witness from the public was called upon to witness the said recovery rather the said recovery was sought to be proved by producing Abdul Hamid, P.W.3 and Abdul Rashid, P.W.4, who are also the alleged eye- witnesses of the main occurrence. Consequently, we have concluded that the learned trial Court was justified while not placing reliance on the recovery of weapon of offence.
13. Now coming to the ocular evidence. We have gathered that at the first blush the same seems to be very sound because outwardly, it comprises disinterested witnesses who apparently have got no enmity with the appellant but on a detailed, deeper and close scrutiny we have come to an inescapable conclusion that no implicit reliance can be placed on the evidence of both the eye- witnesses because both of them are chance witnesses. They have miserably failed to establish that they C indeed were present at the time of occurrence. Admittedly the place of occurrence is situated at 6/7 kilometers from their abode, as has been admitted by P.W.4 (see page 33 of the paper book). It is an admitted fact that the occurrence took place early in the morning on the fateful day. According to the eye-witnesses on the fateful night they got the information from the wife of Abdul Aziz (deceased) that he was taken along with them by the appellant and his wife on the pretext of visiting the police station for a compromise with an understanding to return within an hour but they did not return even after three hours, which worried the wife of Abdul Aziz (deceased).
According to the said eyewitnesses, on asking of wife of Abdul Aziz, they set forth in the search for Abdul Aziz (deceased) at about 9/10 p.m. On 10-9-2000. They allegedly had been searching for Abdul Aziz (deceased) in different villages for the whole night. They claimed that at about 5-30, in the morning, they succeeded to locate Abdul Aziz (deceased), who at that time was in the company of the appellant and his wife. Interestingly enough, for the whole night, according to the prosecution, Abdul Aziz (deceased) remained in the company of both the accused but they did not cause any harm to him but according to the eye-witnesses just after seeing them Nasreen Akhtar caught hold of Abdul Aziz (deceased) whereupon the appellant shot him dead right in the presence of the eye-witnesses. One would take such an allegation with a pinch of salt because it does not appeal to reason that after choosing the night time for committing the crime why would the appellant have done Abdul Aziz to death after creating ocular evidence against them? Were they waiting for the arrival of the eye-witnesses to commit the murder of their sibling right in then.
Presence? The story of catching hold of Abdul Aziz by a lady co-accused, namely, Mst. Nasreen Akhtar, also is not believed and for the same reason she was acquitted by the learned trial Court.
The place of occurrence is admittedly located near a shrine at a distance of 40/50 yards from the Road (see page 25 of the paper book). It was also admittedly by P.W.3 that it was time of Fajar prayer, but interestingly no person from the said locality came forward to support the ocular version. Besides, there Are material contradictions and inconsistencies in the evidence of both the witnesses.
14. There is another reason for disbelieving the ocular evidence i.e, the medical evidence has outrightly contradicted the version put forth by the so-called eye-witnesses, inasmuch as, according to them the appellant had fired four shots from his pistol hitting Abdul Aziz (deceased) but according to the medical evidence Abdul Aziz (deceased) had suffered only there fire-arm injuries. Said seeming inconsistency between the medical evidence and the ocular evidence clearly indicates that the occurrence was a blind and un-witnessed one. It is true that the eye- witnesses had no enmity to falsely implicate the appellant but the appellant cannot be sent to gallows only on the said ground. For relying upon the ocular evidence mere disinterestedness of the witnesses is not the sole criterion. As a matter of fact for relying upon the ocular evidence the Court has to see the intrinsic value of the statements of the eyewitnesses. The scrutiny of the evidence of said witnesses clearly indicates that the eyewitnesses are neither reliable nor truthful witnesses. Even otherwise after having been disbelieved by the learned trial Court qua Nasreen Akhtar-acquitted co-accused, the said eye-witnesses require strong independent corroboration for maintaining the conviction of the appellant but the said corroborative evidence is not forthcoming from any other independent source whatsoever. Moreover, it is an established principle of criminal jurisprudence that one F tainted piece of evidence cannot corroborate another such piece of evidence. Therefore, we have come to a definite conclusion that G the prosecution has failed to prove its case against the appellant beyond the shred of doubt rather the prosecution has failed miserably to prove its case against the appellant.
15. Consequently, the appeal in hand is accepted and the appellant is acquitted of the charge. He shall be set at liberty, if not required in any other case. Murder reference is answered in negative.