' KAZIM ALI MAIK, J.---Nabban (50) son of Rasool Bukhsh caste Gopang, resident of Kotla Androon, Distt. Rajanpur, stands convicted and sentenced by a learned Addl. Sessions Judge, Rajanpur in case F.I.R. No,500, dated 2-11-1999 registered with Police Station Fazil Pur, Distt. Rajanpur, as under:-- Under section 302, P.P.C.---Sentenced to death and also to pay compensation of Rs,1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to further undergo six months rigorous imprisonment.
Under section 449, P.P.C.---Ten years rigorous imprisonment with a fine of Rs,20,000 or in default to further undergo two years rigorous imprisok,;..-nt.
2. The convict challenged his conviction and sentence through Criminal Appeal No, 539 of 2002.
The Court of Session, Rajanpur, made Murder Reference No,589 of 2002 seeking confirmation of the death sentence imposed on the appellant. We find it convenient to dispose of these interconnected matters by this single judgment.
3. On 2-11-1999 at 9-00 p.m. Kaurra (22) son of Gul Bahar, complainant was killed inside a room of his residential house located in village Kotla Androon, 8 kilometers away from Police Station Fazil Pur. The F.I.R. Was lodged at 10-35 p.m. With an allegation that Nabban (appellant) killed the deceased with the abetment of Abdul Hameed and Abdul Hakeem (acquitted accused). Besides Gul Bahar, complainant his sons Mithoo and Nazak claimed to have witnessed the occurrence. On conclusion of trial the accused persons of abetment were acquitted while the appellant was convicted and sentenced.
4. The prosecution case set up in the F.I.R. In brief, is that after taking meal Gul Bahar complainant and his sons Kaurra (deceased), Mithu and Nazak (P.Ws.) were chatting inside a room of their house when at about 9-00 p.m. Nabban, appellant armed with a gun .12 bore entered the room and fired striking Kaurra on his face. Thereafter the assailant fled with gun. The P.Ws. Identified him in the lantern light. Kaurra died of his injury at the spot.
' Motive for the occurrence as disclosed by the complainant was that one year back Nabban, appellant abducted his wife Mst. Subbal (mother of Kaurra, deceased) whose hand had been returned privately with the intervention of local landlords and that the deceased and the P.Ws.
Forbade Nabban, appellant from passing near their house to his annoyance.
5. On the following day of killing i,e, 3-11-1999 Dr. Azhar Hussain, P.W.4 made autopsy on the dead body and found a lacerated fire-arm wound satellite in shape 11 c.m. x 8 c.m. On chin causing damage to the lower lips, lower teeth, madible, front of right side of the neck, larynx and esophagus. On dissection, trachea was also found injured and damaged on the right side.
Mandible was fractured into pieces. The stomach contained semi digested food material the urine bladder was empty. The cause of death in this case was haemorrhage and shock due to the above said injury which was ante-mortem and sufficient to cause death in ordinary course of nature.
Probable time which elapsed between injury and death was immediate and between death and autopsy was 12 to 18 hours. The post-mortem examiner certified under postmortem report (Exh.PC) that Kaurra died of fire-arm injury.
6. On 2-11-1999 at 10-05 p.m. Ashiq Hussain, investigator (P.W.10) recorded statement of Gul Behar, complainant, Exh.P.B. On the basis of which formal F.I.R. (Exh.PB/1) was drawn upon. Thereafter, he reached the spot, prepared injury statement, Exh.PD and inquest report, Exh.PE and then dispatched the dead body to the mortuary through Muhammad Tufail, Constable, P.W.11. The investigator inspected the spot and prepared rough site-plan, Exh.PH. He secured blood-stained earth from the place of murder under memo., Exh.PF. The last worn clothes of the deceased produced by the escorting constable had been seized by means of memo., Exh.P.1. On 14-11-1999 the investigator arrested Nabban, appellant who led to the recovery of his licensed gun (P.1.) which was taken into possession vide memo., Exh.PG. After necessary completion of investigation, the appellant was challaned to the Court to stand trial on the charge of murder.
7. At the inception of tiral Nabban, appellant was charged under section 449 P.P.C., for having committed house trespass in order to kill Kaurra and under section 302, P.P.C., for having committed Qatl-i-Amd of Kaurra. Abdul Hameed and Abdul Hakeem (acquitted accused persons) were charge sheeted under section 302 read with 109, P.P.C. For having abetted the murder of Kaurra. The accused persons denied the charge and claimed to be tried.
8. The prosecution examined 11 P.Ws., in all in support of the charge, out of whom Gul Behar, P.W.7 and his son Mithu, P.W.8 furnished ocular account of the incident and also deposed about the motive.
9. When examined under section 342, Cr.P.C. The appellant denied and dismissed each piece of prosecution evidence put to him. In an answer to a question Nabban, appellant put forward his counter version to the effect that it was a blind murder and that he was falsely involved in the case as he contracted love marriage with a brother's wife of the complainant. No witness was examined in defence.
10. Learned counsel for the appellant contended that the prosecution failed to prove the charge with cogent and convincing evidence and that the learned trial Court extended benefit of doubt to the prosecution. On the other hand the learned Law Officer supported the impugned conviction and sentence with the plea that the occurrence took place inside the residential house of the complainant and, therefore, his presence and that of his sons at the spot at relevant time was not in dispute or disputable.
11. We have heard both the sides at some length and have examined the record. The two eye- witnesses deposed that soon after taking meal the deceased was done to death. Their claim stands belied by the medical evidence. The post-mortem examiner found semi digested food in the stomach. Here we must say that the time of death can be ascertained with some degree of certainty from stomach contents of the deceased. Presence of semi digested food in the stomach of Kaurra, deceased is/was evidence to show that he was done to death after 2/3 hours of taking his last substantial meal. Had the deceased suffered death immediately after taking meal, partially digested food would not have been found lying in his stomach on post-mortem examination.
12. The motive part of the incident adversely affected the prosecution case. It was alleged by Gul Bahar, complainant while lodging the F.I.R. That one year prior to the killing, his wife Mst. Subbal, who happened to be the mother of Kaurra deceased had been abducted by Nabban, appellant and that her hands had been returned privately. The complainant further alleged that the deceased and the P.Ws. Forbade Nabban, appellant from passing near their house upon which he got annoyed and killed the deceased. For multiple reasons, we are of the considered and calculated view that motive part of the case does not corroborate testimonies of the two eye- witnesses. Firstly, divorcing mere self assertion that Mst. Subbal had been abducted by the appellant, there is no other material in this regard. On cross-examination, the complainant admitted that no abduction case had been registered against Nabban. Secondly, the P.Ws., claimed that at relevant time Mst. Subbal was also present at the spot and that since her return she had been living with the complainant as his wife. Both the sides are residents of Distt. Rajanpur.
This is a question of common knowledge and is not disputable that residents of Rajanpur have been observing and following centuries old system of private revenge commonly known as KAROKARI. According to the complainant's own version his wife Mst. Subbal was declared KARI as she eloped with her paramour and then came back. The available record does not tell nor the learned Law Officer could explain during course of arguments as to what were the special and compelling circumstances which forced Gul Bahar, complainant and his sons to deviate and disregard the centuries old system of KAROKARI by allowing declared KARI Mst. Subbal to stay in their house. Keeping in view the system of KAROKARI prevalent in Distt. Rajanpur and its adjacent districts even nowadays, we feel no difficulty in saying that if Mst. Subbal had been taken away by Nabban, appellant in the alleged manner, she would have been killed by her husband and sons.
Peaceful stay of Mst. Subbal with her husband and sons is conclusive proof of the fact that she had not been taken away by the appellant before the present occurrence. Thirdly, both the sides admitted at trial that Nabban, appellant developed illicit intimacy with Mst. Saknia, a brother"s wife of Gul Bahar, complainant, took her away, obtained decree for dissolution of her marriage from the Court and then contracted love marriage with her. It has also come in evidence through cross- examination of the complainant that since her elopement Mst. Sakina has been living with the appellant as his wife. She has also appeared before this Court to prosecute the case and cause of husband, Nabban, appellant. In the circumstances it does not appeal to reason that after contracting love marriage with Mst. Sakina, a brother's wife of the complainant, Nabban also chose to take away complainant's wife. In fact the motive, if any, was on the part of the complainant party against the appellant. At the cost of repetition it is noteworthy that the appellant had no grievance against the deceased or the P.Ws. The appellant remained successful in his love affair as he contracted marriage of his choice with brother's ex-wife of the complainant and there was no occasion for the appellant to kill the deceased. Learned Law Officer attempted to argue that the complainant and his sons including the deceased had had forbidden the appellant from passing near their house upon which he got annoyed. For the sake of argument if it is admitted for a moment that the complainant and his sons forbade the appellant to the above effect, even then there is no answer from the prosecution side not the available record discloses as to what were the circumstances which persuaded the appellant to target Kaurra, deceased when allegedly he had motive against the complainant and the eyewitnesses also. Had the alleged motive prompted the appellant to open attack, he would have killed the complainant first being husband of his sweetheart Subbal, particularly when he was present at the spot at relevant time.
13. The prosecution case is to the effect that the complainant and his three sons including the deceased were present in a small room when the appellant fired at the deceased from a very close range. The post-mortem examiner did not observe blackening, tattooing or scorching in or around the injury. Had the assailant fired in the alleged manner with a .12 bore gun, the P.Ws. Sitting close to the deceased in a small room would have received fire-arm injuries. This is a matter of record that excepting Kaurra deceased no one was injured. The claim of the witnesses that despite a fire with .12 bore gun, from a distance of one karam the P.Ws. Present with the deceased in a small room remained unhurt, is not worthy of credence.
14. Admittedly the two eye-witnesses were/are inimical towards the appellant. The appellant assaulted family honour of the complainant by contracting run away marriage with ex-wife of his brother. The complainant also stated that his wife Mst. Subbal had also been abducted by the appellant. In the circumstances, it would not be safe to believe the inimical witnesses, particularly when their testimonies are not receiving support from any corroborative piece of evidence.
15. The deceased was also not Masoom-u-Dam. His father Gul Bahar, complainant deposed that Kaurra. Deceased had been declared KARO after having developed illicit relations with wife of one Haji, a sister's son of the mother of the deceased. It has come in evidence that the house of said Haji was located adjacent to that of the deceased. Gul Bahar, complainant stated that he contracted marriage with Mst. Subbal, mother of the deceased after abducting her and, therefore, parents of the abductee were also inimical towards the complainant and the deceased. The father of Abdul Hameed, acquitted accused contracted love marriage with Mst. Asho, a sister of the complainant after having abducted her. Before her love marriage Mst. Asho was the wife of complainant's brother-in-law Abdul Raheem. Abdul Hakeem, acquitted accused was also involved by the complainant on account of previous enmity. One Allah Bukhsh in brother-in-law of the complainant being husband of his sister. Abdul Hakeem, acquitted accused abducted daughter- in-law of said Allah Bukhsh. Abdul Hameed (acquitted accused) also helped Abdul Hakeem in taking away daughter-in-law of Allah Bakhsh. The complainant admitted in cross-examination that he developed grudge against both of them. The learned trial Court acquitted Abdul Hameed and Abdul Hakeem vide judgment, now under challenge at the instance of Nabban, appellant. The complainant accepted the order of their acquittal. In the circumstances, it can be safely said that the complainant falsely involved Abdul Hameed and Abdul Hakeem (acquitted accused persons) as they abducted women of his family. The case of Nabban, appellant is also at par with that of the acquitted persons in the manner that he also abducted a brother's wife of the complainant. In other words the complainant and his sons were badly locked in sex related enmities with so many others. After having been declared as KARO as a result of illicit intimacy of the deceased with the wife of afore-mentioned Haji residing in the neighbourhood, his life was under constant threat, in this background it cannot be said with certainty that the appellant and none else had killed the deceased in the darkeness of night.
16. For what has been stated above, we are of the view that the prosecution failed to prove the charge of house trespass and murder against the appellant beyond any shadow of doubt.
Needless to add that benefit of doubt, howsoever slight, is right of the accused. We, therefore, accept Criminal Appeal No, 539 of 2002, set aside the conviction and sentence and acquit Nabban, appellant of the charge by giving him benefit of doubt. He be set at liberty forthwith, if not required to be detained in any other case.
17. Murder Reference No,589 of 2002 is answered in negative.
18. Death sentence imposed on the appellant by the trial Court is Not Confirmed.