' HASNAT AHMAD KHAN, J.---Muhammad Ijaz-appellant (in Cr.A. No,1262 of 2002) and Muhammad Akbar appellant (in Cr.A.No,110-J of 2003), were tried by the learned Additional Sessions Judge, Bhalwal, District Sargodha, in the case F.I.R. No, 143/2000, dated 17-12-2000, registered at the Police Station Miani, in respect of offences under sections 302/34, P.P.C. Vide his judgment dated 9-7- 2002, he found both the appellants guilty for committing the murder of Mst. Surraya deceased, and, consequently, convicted and sentenced Muhammad Akbar-appellant to death as tazeer, under section 302(b), P.P.C. With a direction to pay Rs,20,000 as compensation to the legal heirs of deceased, whereas Muhammad Ejaz-appellant was convicted and sentenced to life imprisonment under section 302(b), P.P.C. With a direction to pay Rs,1,00,000 as compensation to the legal heirs of deceased, or in default of payment thereof, he was directed to undergo six months' S.I. Extra. Benefit under section 382-B, Cr.P.C. Was also given to the appellant.
2. Aggrieved by the judgment of the learned trial Court, both the appellants have challenged their convictions and sentences by filing afore-referred separate appeals, while the trial Court has sent a reference (M.R.No,670 of 2002) for the confirmation or otherwise of the death sentence, awarded to Muhammad Akbar appellant. The complainant has also filed Criminal Revision No,915 of 2002 for enhancement of convictions and sentences, awarded to the appellants. This consolidated judgment will dispose of all the said matters.
3. Pithily, the prosecution's story, as per the F.I.R. (Exh.PB) lodged at the instance of Karam Ali- complainant (P.W.4), was/is to the effect that his daughter Mst. Surraya Bibi was married to Ijaz- appellant, r/o Chak Sahib Khan, about 3/4 years before the occurrence. His daughter and son-in- law were always at loggerheads over domestic disputes. On the eventful day, i.e . 16-12-2000, the complainant, allegedly, went to the said Chak at the dera of Ijaz his son-in-law, to see his daughter.
On the fateful night, the complainant and his daughter were asleep in a room, while in an adjacent room, Muhammad Iqbal and Muhammad Nazir, residents of the village were asleep. At about 10-30 p.m. Complainant and his said daughter were alarmed by a sudden barking of dogs in the courtyard. Surayya, (slain); after opening the door of the room, went to the courtyard, enlightened by an electric bulb. Simultaneously, Messrs Muhammad Ijaz-appellant, empty handed and Muhammad Akbar-appellant, armed with .12 bore gun, emerged in the courtyard, whereafter, Ijaz appellant shouted a warning to complainant's daughter that he would eliminate here, thereafter, he exhorted his accomplice-Muhammad Akbar-appellant, to shoot her, who fired from his. .12 bore gun, which hit complainant's daughter in front of the left side of her chest. On her hollering, the complainant along with Muhammad Iqbal and Muhammad Nazir, scurried to the spot and witnessed the occurrence. The accused/ appellants, decamped from the venue of the occurrence, on seeing them (eye-witnesses) coming, raising Lalkara and extending threats, as claimed by the complainant. The complainant and others tried to rescue Mst. Surayya Bibi, but she bled to death on the spot.
'The motivating factor behind the occurrence was stated to be domestic quarrels between the spouses, all the time.
4. After completing the investigation, the Investigating Officer found the appellants guilty and challaned them to face the trial.
5. During the trial, the prosecution, in support of its case, produced as many as 9-witnesses.
' Karam Ali-complainant entered into the witness-box as P.W .4 and furnished the ocular account of the occurrence.
' Abdul Razzaq appeared as P.W.5, and tried to corroborate the ocular version given by the complainant.
' Muhammad Nawaz turned up as P.W.2 and deposed about the recovery of weapon of offence, i.e, .12 bore gun (P.1) on the pointing out of Muhammad Akbarappellant.
' Muhammad Iqbal, S.-I., who, besides recording the complainant (Exh.PB) on the statement of the complainant, after reaching the place of occurrence, had investigated the case, appeared in the witness-box as P.W.8.
'Dr. Fazal Rasool, MO, THQ Hospital, Bhalwal, who had conducted autopsy on the dead-body of Mst.
Surayya (deceased), came forward as P.W.7 and furnished the detail of injuries, observed by him on the corpse of deceased, as under:--
(1) A lacerated wound of entry 5 c.m. x 4 c.m. Going into with everted margin blackening around the wound was present. Wound was situated just above the left nipple. 3 c.m. Outer to mid line on left chest. Corresponding hole in Qameez and Bunyan was present.
(2) A lacerated wound of exit 1 x 1 c.m. With everted margin situated on the back of left shoulder.
' According to his opinion, death in this case had occurred due to excessive haemorrhage and shock as a result of 'injury No,l, which was sufficient to cause death in ordinary course of nature.
' Rest of the witnesses, being formal in nature, need not be discussed.
4. After tendering in evidence the reports of Chemical Examiner (Exh.PJ) and that of Serologist (Exh.PK), the learned D.D.A, closed the prosecution's evidence.
5. The appellants made their statements under section 342, Cr.P.C, they denied the prosecution's version and claimed that they were innocent and termed the prosecution's version as fake and fictitious. While responding to question No,7, Akbar-appellant stated as under:- "Both the eye-witnesses are father and son who were not present at the time of any occurrence.
They have made false statements. The deceased was of immoral character and she used to leave her house with her paramours in absence of her husband at night time. Some unknown paramour killed her because she was not willing to accompany him and was going with some other paramour. I have been falsely implicated in this case due to this grudge that I facilitated the elopement and Karam Ali complainant in coimivance with her brother who is police inspector concocted this case against me. I have produced many defence witnesses, but the police did not hear me."
'Ijaz-appellant, toed the line of Akbar-appellant, while replying to the similar question. The appellants, however, denied to appear as their own witnesses under section 340(2), Cr.P.C.
6. In support of this appeal, appearing on behalf of Muhammad Akbar-appellant, Ms. Aliya Neelum-learned defence counsel, appointed on State expenses, has argued that the prosecution has failed miserably to prove the motive as set up by the prosecution while lodging the F.I.R; that during the trial, prosecution tried its level best to improve the motive version set up by it, initially, but failed to achieve the said target, miserably; that Mst. Surayya Bibideceased was gunned down in the dead of night; that it is a case of blind murder, which was never witnessed by the eyewitnesses produced by the prosecution; that the prosecution remained totally unable to prove the case to the hilt, therefore, the appellant is entitled to a clean acquittal of the charge.
7. Mr. Munir Ahmed Bhatti, while appearing on behalf of Muhammad Ejaz- appellant has added that the prosecution dropped two of the eye-witnesses mentioned in the F.I.R, but has relied upon the evidence of Karam Ali-complainant and his son, namely, Abdul Razzaq, though, name of the latter one was not even mentioned in the F.I.R, which is the basic document of prosecution; that the investigation was conducted dishonestly by showing Abdul Razzaq-son of the complainant-as one of the eye-witnesses; that the occurrence was reported to the police with an inordinate delay of 3- 1/2 hours, which also shows that the occurrence was, indeed, an unwitnessed affair; that Muhammad Iqbal and Muhammad Nazir, P.Ws, whose names were mentioned in the F.I.R, were dropped by the prosecution, which fact raises a presumption that they were not ready to support the prosecution's false version and that, admittedly, Ejaz-appellant was not armed with any weapon and the only role ascribed to him is that of exhorting Muhammad Akbar, co-accused to shoot Mst. Surayya-deceased.
8. Conversely, learned D.P.G, has opposed both the appeal, contending that prosecution's story has been supported fully by the ocular evidence comprising Karam Ali (P.W.4)-father of the deceased and Abdul Razzaq (P.W.5); that both the eyewitnesses gave due explanation for their presence at the time of occurrence, that, though, both the eye-witnesses are not residents of the village in which the Occurrence took place but they being father and brother of the deceased, respectively, were present in the house of Surayya- deceased, as they had visited her in the background of domestic dispute between the couple, i.e, Mst. Surayya Bibi and Ejaz- appellant, therefore, it cannot be claimed that they are not the natural witnesses; that both the appellants have been convicted and sentenced rightly by the learned trial Court and that in absence of any mitigating circumstanee, the death sentence awarded to Muhammad Akbar-appellant is liable to be confirmed.
9. After giving an ardent hearing to the respective learned counsel for the parties and going through the evidence, oral as well as documentary, with the able assistance of the respective learned counsel for the parties, we have found that in this case Mst. Surayya Bibi-wife of Ijaz- appellant was shot dead during night time. According to the complainant, Muhammad Ijaz- appellant got his wife assassinated by hiring the services of his servant, namely.
'Muhammad Akbar-appellant. The contents of the F.I.R, further reveal that Mst. Surayya Bibi- deceased was done to death in her home. The occurrence was allegedly witnessed by Muhammad Iqbal and Muhammad Nazir-given up P.Ws, besides the complainant himself.
According fo the complainant, the motivating factor behind the occurrence was an estranged relationship between the couple over domestic affairs. According to the complainant, his daughter was shot dead at 9.30 p.m. However, both the appellants denied all the allegations levelled against them.
10. In order to plumb the depths of the prosecution's version, we have considered and analyzed the evidence regarding thfe motive behind the occurrence. After doing so, we have observed that according to the complainant, his daughter Mst. Surraya Bibi and son-in-law - Muhammad Ijaz were always quarrelling with each other over petty domestic disputes. However, while appearing in the witness-box as P.W.4, the complainant made an unsuccessful attempt to improve his version, as set up in the F.I.R, regarding the motivating factor behind the occurrence. He stated that Muhammad Ejaz wanted to contract another marriage and used to quarrel with his wife, who was against the said desire of Ijaz- appellant. On the other hand, the defence claims that Mst. Surraya Bibi-deceased had married Ijaz-appellant after eloping with him. During his cross-examination, Karam Ali-complainant (P.W.4) claimed that one Machhi of his village had informed him about the quarrel between the said couple but the said Machhi was never produced in the witness-box.
11. Insofar as the improved version of prosecution regarding the desire of Ijaz-appellant to contract second marriage is concerned, it has come on the record that before marrying Surayya, he was already married. This fact was candidly admitted by Abdul Razzaq (P.W.5)-brother of the deceased, who further admitted that they were fully aware about the first marriage of Ijaz. He further conceded that Ijaz-appellant had a child from his first wife. In these circumstances, we have concluded that the motive story as put forward by the prosecution, is a bit hazy, rather, doubtful, and the prosecution has failed to prove the same to the hilt.
12. As far as the medical evidence furnished by P.W.7, is concerned the same reveals that the sole injury, i.e, injury No, 1 received by the deceased had a blackening around the wound, therefore, the medical evidence is in direct conflict with the ocular evidence, according to which the deceased was shot dead from a distance of 11 feet. Even after excluding the length of barrel of the gun, the nature of injury does not reconcile with the prosecution's version. Besides, according to the post- mortem report and the statement of the concerned doctor, the time of death of Mst. Surayya Bibi- deceased was 2-5 a.m. Whereas, according to the prosecution, she was shot dead at 10-30 p.m. In these circumstances, we hold that the medical evidence is not kilter with the scheme of things presented by prosecution, therefore, it cannot render any corroboration to the ocular version.
13. Insofar as ocular account is concerned, the same as observed above, comprises the statements of Karam Ali (P.W.4) and Abdul Razzaq (P.W.5). As far as Abdul Razzaq (P.W.5) is concerned, his name was not mentioned by the complainant in the F.I.R as one of the eye-witnesses. On the other hand, Muhammad Iqbal and Muhammad Nazir, the alleged eyewitnesses of the occurrence, were given up by the D.D.A, on the ground of their being very closely related to Ijaz-appellant. It appears that after lodging the F.I.R, the complainant and the Investigating Officer anticipated that the said witnesses being closely related to Ijaz, were not likely to support the prosecution's case at the end of the day, therefore, they brought the complainant's son into picture as an eyewitness. Pertinent to mention here that admittedly real brother of the complainant had been serving as Inspector police in the days of occurrence (See Page 23 of the Paper Book), therefore, the possibility of accommodating the said colleague by the Investigating Officer of this case, cannot be ruled out. In these circumstances, the statement of the said witnesses is liable to outright rejection. I6. After discarding the statement of Abdul Razzaq, the prosecution is left only with the statement of Karam Ali (P.W.4). While discussing the motive part of the story, we have already disbelieved the said witness qua the motive, therefore, at the outset it has been noticed that he is not a fully reliable witness. After scrutinizing his evidence in detail, we have gathered that admittedly, the complainant is not the resident of the village in which the occurrence took place. During his cross- examination, denied the suggestion that Iqbal and Nazir, P.Ws, had informed him about the occurrence. Both the said witnesses, who according to the complainant are also eye-witnesses of the unfortunate occurrence, were withheld by prosecution, though, the said witnesses being the residents of the concerned village, were most natural witnesses. Withholding of the said eye- witnesses gives an adverse resumption. According to the complainant, the occurrence took place at 10-30 p.m. But the F.I.R, was lodged after 3-1/2 hours, though the distance between the place of occurrence and the police station is only 1-1-/2 kilometers. The said delay in lodging the F.I.R, is suggestive of the fact that the occurrence was not seen by the complainant, rather, after the occurrence, he was called from his village for lodging the F.I.R. The time of occurrence as narrated by him does not reconcile with the time of occurrence as given by the doctor, who conducted the postmortem. Admittedly; the complainant's real brother, namely, Allah Yar was serving as Inspector Police during the days of occurrence. According to the defence, this was a reason for padding by the police, who made Abdul Razzaq emerge as another eye-witness, although, his name was not mentioned in the F.I.R. The answer of the complainant during the cross-examination reveals that Mst. Surayya-deceased had married Ijaz- appellant, knowing that he was already a married man and that he has a son from the said wedlock. The defence claims that the deceased, being a lady of easy virtue, had so many paramours, out of whom somebody killed her in the dead of the night.
On the point of solemnizing of marriage between the said couple, in a customary and conventional manner, the complainant failed to answer satisfactorily. None of the eye-witnesses apart from the complainant mentioned in the F.I.R, were produced by the prosecution. Similarly, nobody from the vicinity came forward to support the prosecution's version. Even, otherwise, the prosecution's version appears to be economical with truth, inasmuch as, had appellant intended to get his wife eliminated/assassinated, he could have chosen some other day for the said job. It is not believable that he would have got the said design accomplished when the father of Surayya (deceased) was sleeping in his house after visiting the same. Admittedly, Muhammad Akbar-appellant had no motive, whatsoever, to bump off Mst. Surayya-deceased.
17. Be that as it may, the sole, shaky and unreliable testimony of Karam Ali, P.W. Which has not been corroborated by any other independent source, cannot be relied upon for maintaining the conviction awarded toe the appellant. The motive story has already been disbelieved by us like the medical evidence, which has also been found contradictory to the prosecution's version. Insofar as the recovery of crime weapon is concerned, in the absence of the report of Forensic Science Laboratory, the same is useless for the prosecution's purposes. Even, otherwise, one tainted piece of evidence cannot corroborate another tainted" piece of evidence. Therefore, we have come to the conclusion that the prosecution has failed to prove its case to the hilt and the prosecution's story has been found doubtful. It is an established law that benefit of doubt howsoever light it may be, has to go to the defence and not to the prosecution. All the more, it is better to err in acquittal, rather than to err in conviction. Reliance in this regard is placed on the case Tahir Khan alias Niazi v.
State 2005 YLR 2220.
18. For what has been stated above, both the appeals filed by the appellants, respectively, are accepted. Consequently, both the appellants are acquitted of the charge. They be immediately released from jail if not required in any other case. Death sentence is not confirmed. Murder Reference is answered in negative. In view of the finding returned on Cr. Appeals filed by the appellants, Cr. Revision No,915 of 2002 stands dismissed on merits as well as due to non- prosecution. 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.