JUDGMENT MAZHAR HUSSAIN MINIAS J. - Ghazanfar Abbas son of Mehmood Shah, was tried by Ch. Javed Iqbal Saif, learned Additional Sessions Judge, Vehari in case F.I.R. No. 70, dated 2.7.1993, under Sections 302/34, P.P.C., registered with Police Station. Miranpur, District Vehari, for committing Qatl- i-Amd of Rab Nawaz deceased. Vide judgment dated 26.9.2001, the learned Trial Court convicted the appellant under Section 302(b) and sentenced him to death with compensation of Rs. 50,000/- to be. Paid to be legal heirs of the deceased and in default thereof to further undergo Rigorous Imprisonment for six months.
2. Murder Reference No. 636 of 2001, seeking confirmation or otherwise of death sentence awarded to' Ghazanfar-appellant has also been sent to. This Court. The appellant .Has approached this Court by filing Criminal Appeal No. 712 of 2001 through Superintendent, New Central Jail, Multan against his conviction and sentence passed by the learned Trial Court. Both these matters are being disposed of together through this single judgment.
3. Brief facts of this case are that on 2.7.1993 at about 8^00 a.m. Rab Nawaz deceased, who was private servant of Mumtaz Hussain Shah (P.W.14), was grazing cattle in latter's field while his brother-in-law (Sala) Muhammad Iqbal-complainant (PW.9), who had come to see his sister from Arri Wala village Muradpur was sitting with him. In the meantime, the appellant armed with .12 bore gun and his co-accused Mehmood Shah (PO) armed with rifle raised lalkara to deceased as to why he was grazing cattle in that field. Rab Nawaz deceased asked them that he was grazing cattle in Mumtaz Shah's own land. Thereupon, Mehmood Shah (PO) raised lalkara to the appellant to teach him. a lesson for not obeying his order. Upon lalkara of his co-accused, the appellant fired two gun shots at Rab Nawaz hitting on his head, neck and face. Mehmood Shah (PO) also fired three shots. On receiving fire shot injuries, Rab Nawaz expired there and then. Occurrence was witnessed by Zawar HuSsain (GPW) and Allah Bakhsh (PW.10) also besides the complainant.
Motive behind the occurrence was that Mehmood Shah (PO) married with step-sister of Mumtaz Hussain Shah wanted to forcibly get share of his wife- in the landed property from Mumtaz Shah.
4. After the occurrence Muhammad Iqbal- complainant (PW.9) lodged F.I.R. (Ex.PF) at Police Station Miranpur, which was recorded by Nawaz Ahmed, S.I./S.H.O. (PW.12). After registration of case, Nawaz Ahmed, S.I. /S.H.O. (PW.12) proceeded to the place of occurrence where he carried spot inspection, prepared injury statement (Exh.PD) of the deceased, inquest report (Exh.PH) and sent the dead- body to the mortuary for autopsy under the escort of Ali Akbar 762/C(PW.5). Then he collected blood-stained earth from the spot, sealed it into parcel and took the same vide recovery memo.
(Exh.PG). After post-mortem examination, Ali Akbar 762/C (PW.5) produced before him last worn- clothes of the deceased, which Were taken into possession by him vide recovery memo. (Exh.PA) and statements of the PWs were, recorded under Section 161, Cr.P.C. Thereafter, investigation was entrusted to Malik Zia Feroze .D.S.P. (PW.6) under the orders of Superintendent of Police, Vehari. He recorded statements of Riaz Hussain and Mumtaz Hussain PWs as well as supplementary statement of the complainant. During investigation, he came to know that the accused fired at Riaz Hussain and Mumtaz Hussain PWs also, therefore, he added offence under Section 324, P.P.C.
Remaining investigation was conduced by Sabir Hussain, A.S.I. (PW-13), who arrested the appellant and his co-accused Mehmood Shah and obtained their physical remand. During investigation, Mehmood Shah (PO) got recovered rifle P-5 while appellant got recovered .12 bore gun P.6 from their residential houses, which were sealed into separate parcels and were taken into possession vide recovery memos. (Exh. P)) and (Exh.PJ), respectively. After due investigation, both the accused were challenged to face - trial.
5. Before commencement of trial, accused Mehmood Shah absconded and after necessary proceedings was declared a proclaimed offender. Formal charge against the appellant was armed by the learned Trial 'Court to which he pleaded not guilty and claimed his trial.
6. In order to prove its case, the prosecution examined as many as fourteen witnesses, out of whom Liaquat Ali, A.S.I. (PW.I), Khizar Hayat 7-39/HC (PW.2), Muhammad Akhtar 235/HC (PW.3), Abdul Rauf 350/C (PW.4), Ali Akbar 762/C (PW.5), Muhammad Abbas, Patwari (PW-7) and Ahmed Bukhsh (PW- 11) are formal witnesses, Malik Zia Feroze, D.S.P. (PW.6), Nawaz Ahmed, Inspector (PW.12) and Sabir Hussain, A.S.I. (PW.13) are Investigating Officers. Muhammad Iqbal-complainant (PW.9), Allah Bukhsh (PW.10) and Mumtaz Hussain Shah (PW-14) are eye-witnesses of the occurrence. P.W.14 is recovery witness of weapons also.
7. Dr. Abdul Ghafoor Khan, Medical Officer, T.H.Q. Hospital, Mailsi (PW.8) conducted autopsy of dead- body of Rab Nawaz deceased vide post-mortem report (Exh.PC). Following injuries were found on the person of deceased:-
(i) A fire-arm entry would 1 cm x 1 cm on the left side of the head going deep through the skull.
(ii) A fire-arm entry wound on the front of the .Neck measuring 11/2 cm x 1 cm going deep.
(iii) A fire-arm entry wound 1 cm x 1 cm on the right side of face near nose.
Cause of death had been given by the doctor as injury to brain matter and major blood vessels (aorta). According to him, all injuries were ante-mortem and collectively were sufficient to cause death in ordinary course of nature and were caused by fire-arm. Probable time between injuries and death was instantaneously and between death and postmortem was within six hours. During post-mortem, a pellet was recovered from injuries, which was sealed into a parcel and handed over to the police.
8. Besides the above oral evidence, reports of Chemical Examiner and Serologist pertaining to bloodstained earth and report of Forensic Science Laboratory pertaining to weapons were also tendered by the prosecution. 1
9. After recording of prosecution evidence, the appellant was examined under Section 342, Cr.P.C;, whereby he denied his participation in the occurrence and pleaded his innocence. He recorded that Mumtaz Shah PW is step-brother of his mother Mst' Sajjad Bibi. He has dishonestly got mutated whole land of his father in his favour and in favour Of his brothers and deprived his sisters.
Howevei#that mutation was challenged by his sisters and was ultimately cancelled. He is in possession of the whole land and has filed a civil suit also. On account of above- mentioned litigation and enmity, Mumtaz Shah has got him and his- father falsely implicated in this case. The appellant has further alleged that Mumtaz Shah alongwith others has abducted and murdered his father Mehmood Shah for which a case under Section 364, P.P.C, has been registered at Police Station City Lodharn, which is pending. The appellant tendered in his defence documents (Exh.DH) to (Exh.DS), however he did not make his own statement on oath, under Section 340(2), Cr.P.C.
10. After hearing arguments of the parties, learned Trial"Court convicted and sentenced the appellant as above. Hence, the above Murder Reference and Criminal Appeal.
11. We have heard learned counsel for the appellant, learned Deputy Prosecutor General for the State and have gone through the record with their assistance.
12. Learned for the appellant has contended that F.I.R, in the present case has been registered after preliminary investigation at the place of occurrence. Muhammad Iqbal-complainant (PW.9) is brother-in-law (Sala), of the deceased -and is resident of Chah Arri Wala.. He has not plausibly explained his presence at the place of occurrence at the relevant time. Similarly Zawar Hussain
(GPW) was working on the day of occurrence at Bus Stand, Mailsi about 14/15 miles away from the place of occurrence and he has also been introduced as an eye-witness fictitiously. Allah Bukhsh (PW.10) is also related to the complainant and as such is an interested witness. There are material contradictions and discrepancies in their statements. Mumtaz Hussain Shah (PW, 14), who is inimical against the appellant and his family, has arranged the murder of his private servant himself or through some other persons and put the dead-body near the house of appellant to falsely implicate them in this case. Learned counsel has further contended that during trial, Mehmood Shah, father of the appellant, has .Been abducted and murdered by Mumtaz Shah alongwith others for which case under Section 364, P.P.C, has been registered against ' him a police station City Lodhran. Recovery ,of appellant's licensed gun has been planted against him. Any empty has not been recovered from the spot. Therefore, recovery of gun is of no legal effect. Lastly, learned counsel has contended that even if the prosecution version against the appellant is believed, it is a case of lesser penalty as the appellant acted under the direction and influence of his father Mehmood Shah, In support of his contention, reliance has been placed on "Ziaullah v. The State" (1993 SCM R 155)% "Tariq and 2 others v. The State" (1995 SCM R 168), "Sultan and another v.
The State" (2000 SCM R 1818) and "Mehboob Sultan and 2 others v. The State and others" (2001 SCM R 163).
13: Conversely, learned Deputy Prosecutor- General for the State has contended that Muhammad Iqbal- complainant: (PW.9) and Allah Bukhsh (PW.10) are independent, and disinterested witnesses having no motive to falsely depose against the applicant. Their evidence is .Corroborated by the medical evidence as well as recovery of gun on the pointation of appellant. According to the learned D.P.G., the appellant has been rightly convicted and sentenced by the learned Trial Court and there is, no mitigating circumstance on the file to commute the sentence awarded to him.
14. Firstly, we propose to discuss and evaluate the ocular evidence furnished by Muhammad Iqbal- complainant (PW.9), Allah Bakhsh (PW.10) and Mumtaz Hussain Shah (PW.14). Muhammad Iqbal- complainant (PW.9) is admittedly close relative of the deceased and is resident of village Arri Wala and is not resident of village Muradpur where the occurrence took place. According to him, on the day of occurrence he came to see his sister and after seeing her, he went to Chah Daras Wala to see Rab Nawaz deceased, who was employed with Mumtaz Hussain Shah as his private servant.
Rab Nawaz was grazing cattle in the field owned by Manzoor Hussain Shah, father of Mumtaz Shah.
They were talking while sitting on a watercourse, when appellant and his co-accused launched attack and caused fire-arm injuries to Rab Nawaz due to which he died at the spot. The purpose of visit of the complainant in village Muradpur and his presence at the spot at the relevant time does not seem plausible. According to his own version, he was present there just by chance. Allah Bakhsh (PW.10) is also brother-in-law of the complainant.. Therefore, evidence of both these witnesses cannot be relied upon in the absence of strong corroborative evidence, which is lacking in this case. Mumtaz Hussain Shah (PW.14), as per Karwai recorded by Nawaz Ahmed, S.I./S.HO'.
(PW.12) on the bottom of F.I.R., was accompanying the complainant at the time of registration of case. He himself did not lodge report nor complainant mentioned in the F.I.R, that he also witnessed the occurrence. However, subsequently he approached Superintendent of Police, Vehari and got transferred investigation to Malik Zia Feroze, D.S.P. (PW-6), who recorded his statement as well as statement of his brother Riaz Hussain Shah. On the basis of their statements, and supplementary statement of complainant, Malik Zia Feroze, D.S.P. (PW.6) recorded in the case diary that Mumtaz Hussain Shah and his brother were also fired upon by the accused and added offence under Section 324, P.P.C, against the accused, Although statement of Mumtaz Hussain Shah (PW.14) about the occurrence has not been believed by the learned Trial Court, but above manoeuvring by Mumtaz Hussain Shah clearly shows that he was after the appellant and his co-accused to settle his score on account of civil and criminal litigation with them, which is not denied. 1h his statement under Section 342, Cr.P.C, the appellant has got recorded that Mumtaz Hussain Shah fraudulently got alienated property of his father in his own favour and in favour of his brothers and deprived his sisters including Mst Sajjad Bibi, mother of appellant. The mutation was challenged by his sisters.
And the same was ultimately cancelled. Therefore, he filed a civil suit regarding that land. The appellant has further alleged that his father Mehmood Shah has been abducted and killed by Mumtaz Hussain Shah alongwith others for which case under Section 364, Cr.P;C. Has been registered against them. Registration of this case against himself, Riaz and one Dr. Aamir has been admitted by Mumtaz Hussain Shah (PW-14), In this inimical background, the prosecution case becomes highly doubtful. Medical evidence furnished by Dr. Abdu! Ghafoor Khan (PW.8) is also at variance with ocular evidence narrated by Muhammad Iqbal-complainant. (PW.9) and Allah Bakhsh (PW.10). According to both these witnesses, appellant fifed two gun shots hitting Rab Nawaz on his head, .Neck and face, while co-accused Mehmood Shah fired three rifle shots. As per post- mortem report (Exh.PC), three injuries were found on the dead-body one on left side of head, second on front of neck and third on right side of face near nose. From the locale and dimension of these injuries, it appears that these were caused by a single gun shot and were not caused by three independent shots. This inference is supported by statement of Dr. Abdul Ghafoor Khan (PW.8) also, In cross-examination, he has stated that there is possibility that all the three injuries mentioned in the postmortem examination report was caused by one fire. Thus, medical evidence does not lend support to the ocular account furnished by the eye-witnesses.
15. Now we come to the recovery of. Weapons. According to Sabir Hussain A.S.I. (PW.13), on 8.8.1993 the appellant led to recovery of .12 bore gun from a trunk lying in his house in the presence of Mumtaz Hussain Shah (P.W.14) and his brother Riaz Hussain Shah. As earlier mentioned, both these witnesses are highly inimical against the appellant and are not independent witnesses. Moreover, this recovery has not been put to the appellant during recording of his statement under Section 342, CrP. C! Therefore, it cannot be used again him. Reliance in this respect may be made to "Abbas and 4 others v. The State" (1991 P.Cr.L.J. 122), whereby it has been held that recovery of weapons cannot be used against the accused if same is not put to him at the time of examination under Section 342, Cr.P.C. Apart from the above, any empty has not been recovered from the spot, therefore, recovery of gun even if believed is of no legal significance, In this respect, reliance may be placed on "Muhammad Iqbal v: Abid Hussain alias Mithu and 6 others" (1994 SGMR 1928). it has been laid down by the Hon'ble Supreme Court of Pakistan that in the absence of recovery of any empty from the spot, the recoveries of fire-arms from the accused were of no consequence.
16. The sequel of above discussion is that the prosecution has not successfully proved its case by adducing' independent and confidence inspiring evidence and has failed to bring charge home to the applicant beyond reasonable doubt. Therefore, we allow this appeal, set aside conviction and sentence of the appellant, and acquit him from the charge. He shall be released forthwith if not legally required in any other case.
17. Death sentence awarded to the appellant by the learned Trial. Court is NOT confirmed and Murder Reference is answered in the negative.