JUDGMENT . HASNAT AHMAD KHAN, J.- Shabhir Ahmad- appellant (in Cr. A. No. 144172004), Shaukat Ali and Zahid Mahmood appellants (in Crl. A. No. 1469/2004) and Abid Ali- appellant (in Cr. A.
1442/2004) were tried by the-learned Additional Sessions Judge, Gujranwala, in the case FIR No. 374/2003, dated 19.12.2003, registered at Police Station Wando, District Gujranwala, in respect of offences under Sections 302/392/364/358, PPC. Vide his judgment dated 19.07.2004, he found all the appellants guilty for the murder of Mst. Rehana Kausar-deceased:
(1) SHABBIR-APPELLANT WAS CONVICTED AND SENTENCED AS UNDER:-
(i) U/s. 302(b), PPC - death sentence:
(ii) U/s. 544-A, Cr.P.C, sentenced to pay Rs. 50,000/-, as compensation to the legal heirs of the deceased, or in default of payment thereof, he was directed to undergo six months'S. I.;
(iii) U/s. 392, P.P.C. 10 years' R.I. With a' fine of Rs. 20,000/- or in default of payment thereof, he was ordered to undergo imprisonment for one year;
(iv) U/s. 364, P.P.C. 10 years R.I. With a fine of Rs. 20,000/-, or in default of payment thereof, he was ordered to undergo imprisonment for one year, for commission of abduction of Mst. Rehana Kausar-deceased.
2. SHAUKAT ALI. ZAHID MEHMOOD AND ABID APPELLANTS WERE CONVICTED AND SENTENCED AS UNDER:
(i) . U/s. 302(b), PPC - life imprisonment each;
(ii) U/s. 544-A, Cr.P.C. - each of the appellants was sentenced to pay Rs. 50,000/- as compensation to be paid to the legal heirs of the deceased, or in default of payment thereof, he was ordered to undergo S.I. For six months.
(iii) U/s. 458, PPC - each of the appellants was sentenced to ,10 years' R.I. With a fine of Rs. 20,000/-, or in default of payment thereof, they were ordered to undergo imprisonment for one year (iv) U/s. 392, PPC - each of the .Appellants was sentenced to 10 years' R.I. With a fine of Rs. 20,000/- or in default of payment thereof, they was ordered to undergo imprisonment for one year each 11.
(v) U/s. 364, PPC - each of the appellants was sentenced to, 10 years' R.I. With a fine of Rs. 20,000/- or ' in default of r payment thereof, they were ordered to undergo imprisonment for one year each.
All the sentences of imprisonment awarded to the appellants were directed to run concurrently and benefit of Section 382- B, Cr.P.C was given to them.
2. Aggrieved by the said judgment of the learned Trial -Court,' all .The appellants have challenged their convictions', and .Sentences by filing above-mentioned appeals' while the Trial Court has sent a Reference (M.R. No. 637/2004) for. The confirmation or otherwise of the death sentence, awarded to Shabbir-appellant. This consolidated judgment will dispose of all the said matters.
3. Compendiously, the prosecution's story, as narrated by the complainant-Muhammad Saleem, PW-11, through his statement (Ex.PB/1), which culminated into formal F.I.R (Ex.PB) was/is to the effect that his daughter Mst. Rehana Kausar (deceased) was married to Shabhir Ahmed-appellant about 2 years before the occurrence. About 18/20 days before the occurrence, she visited her parental house. Shabhir Ahmed-appellant, son-in-law of the complainant, had come to his in-law's house two days before the occurrence to escort his wife back. On the night between 18th rand 19th December, the complainant was asleep in his cattle-shed in the area of Mauza Kali Suba while his son-in- law, daughter and wife Mst. Saliman Bibi - were asleep in the house. On hearing noise, the complainant came to his house at about 3.45 aim. He was told by his wife that three tunk nown persons equipped with fire-arms, out of whom, one was tall and the other two with medium height had taken away gold ornaments, a licensed 7 MM rifle and cash etc. alongwith their daughter and son-in-law after barging into the house at 1.00 a.m. The complainant alongwith his brother Nazir, Rahat Ali and others chased the said accused/dacoits. When they reached near the bridge (Pulli) of Khaal Changranwala, they found the dead-body of Mst. Rehana Kausar sprawling with tied hands. Shabbir-appellant who was also present there in lied condition, confirmed the above happening and told that his gold rings and cash amounting to Rs.3000/-were also snatched.
4. After completing the investigation, the I.O. Found the appellants guilty and challaned them to Court to face the trial.
5. During the trial, the prosecution, in support of its case, produced as many as 15-witneses.
Muhammad Salim-complainant entered into the witness-box as PW-11 and reiterated his version about the occurrence as mentioned in the complaint (Ex.PB/1). Mst. Saliman Bibi appeared as PW- 12 and gave the ocular version about the occurrence. Maqsood Ali appeared as PW-6 and deposed that he alongwith Ansar, was present at their outhouse (dera). He further claimed that feeling some activity, they came out whereupon, the accused, who were variously armed, were seen by them while passing their outhouse (dera), and after 10 minutes, they (PWs) heard two fire shots, whereafter, Salim, Nasir and Rahat came there and told that a dacoity coupled with Mst.
Rehana abduction had been committed in Salim's house. He (PW-6) and Ansar accompanied them and saw bullet riddled Mst. Rehana Kausar lying dead.
Munir Ahmed appeared as PW.7 and stated that while returning from his brother's house, when he reached near Salim-complainant's house, he identified the accused in the light of an electric bulb, who were present with fire-arm weapons while their faces were muffled. He further stated that Shabbir-appellant was already present in complainant's house on the fateful night.
Abdur Rehman, before whom Shabbir-appellant allegedly made an extra-judicial confession, appeared as PW.8.
Ghulam Bari, who had attested recovery memos. Ex.PI, PJ, PK, entered the witness-box as PW-13.
Zulfiqar appeared as PW-14 and deposed about the recovery of the weapon of offence and other incriminating articles on the pointing out of Shabbir/accused-appellant. Abdu! Hameed, S.I. /I.O., who apart from recording the statement of the complainant, had investigated the case, appeared as P.W.15 and gave the detail of the investigation conducted by him.
Dr. Roohi Yasmin, who had conducted autopsy on the dead-body of Mst. Rehana Kausar (deceased), came. ?Forward as PW.9 and furnished the detail of injuries, observed by her on the corpse of deceased, as under:-
1. Fire-arm lacerated wound of entry 8 c.m. x 6 c.m. With splitting of underline frontal bone and eye socket at right eye and brain matter coming out.
2. Corresponding exit wound at the back with splitting of occipital bone and brain matter coming out 10 c.m. x 10 c.m.
According to the opinion of the doctor, the death occurred in this case due to injury to vital center brain leading to final shock under injury No. 1, which was fatal and ante-mortem in nature, caused by fire-arm weapon, and was sufficient to cause death in ordinary course of nature Rest of the witnesses, being formal in nature, need not to be discussed.
5. After tendering in evidence the report of the Chemical Examiner (Ex.PS), report of the Serologist (Ex.PT) and the report of Forensic Science Laboratory, (Ex.PU), the learned D.D.A, closed prosecution's evidence,
6. 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 the question, why this case against them, the appellants stated as under:
1. Statement of Shabhir Ahmad-appellant: "I have been falsely involved in this case. Rehana Kausar was murdered by some unknown persons.
I was implicated only to deprive me of inheritance of her legacy. The complainant owed Rs.
50,000/- to me. I was got involved to usurp this amount also. Private PWs were related inter se who deposed falsely against me. Official PWs made statements in routine and they also did so falsely."
Statement of Shaukat Ali-appellant: "This is a false case against me and the PWs deposed against me falsely. I was involved only for being cousin of Shabhir my co- accused."
Statement of Abid Ali-appellant: 'A "I am a friend of Shaukat co-accused and has been involved in this case falsely. I am absolutely innocent."
Statement of Zahid Mahmood-appellant: "I am tenant of Shaukat my co-accused, who was closely related to Shabhir co-accused. I have been falsely .Involved in this case, for My relations of tenancy with Shaukat my co- accused. I am innocent."
The appellants, however, denied to appear as their own witnesses under Section 340(2), Cr.P.C.
7. Learned counsel appearing on behalf, of Shabhir Ahmad appellant (in Crl. A. No. 1441/04) & on behalf of Shaukat Ali & Zahid Mehmood (appellants in Crl. A., No. 1469/04), has contended that the impugned judgment is against the weight of evidence on the record; that in fact it was an unseen occurrence but the appellants were involved on the basis of a tailored story and fabricated evidence; that different pieces of evidence were created and fabricated with the assistance of the Investigating Officer but even then the prosecution has failed miserably to prove its case against the appellants; that the evidence is self-contradictory and inconsistent, therefore, is liable to be rejected; that the alleged recoveries of crime weapons were effected from the open places accessible to all, therefore, the same cannot furnish any corroboration to the ocular evidence which, by itself, is neither convincing, nor plausible. Learned counsel appearing on. Behalf of Abid Ali Ali appellant (in Cri. A. No. 1442/04), has. Adopted the arguments put forth by the former, "
8. Conversely, the learned Additional Prosecutor General has strenuously opposed the arguments advanced by the learned counset for the appellants. He submits that to prosecution has succeeded to prove its case against the appellants beyond any shadow of doubt while producing ocular evidence, medical; evidence, witnesses of extrajudicial confession (made by Shabhir Ahmad appellant) and other pieces of evidence; that the ocular evidence comprises disinterested witnesses, therefore, there is no . Reason to disbelieve the same and that the complainant had no earthly reason to falsely implicate the appellants.
9. Having gone through the entire evidence and the other material available on record with the able assistance of learned counsel for the parties, we have straightaway gathered that the unfortunate occurrence took place in the dead hours of the night, it is an admitted fact that the appellants were not named in the F.I.R as assassins of Rehana Kausar (slain). A perusal of the case file reveals that the prosecution case hinges on ocular evidence, recovery of crime weapons & the ornaments allegedly looted in this crime, extra-judicial confession, last seen & Wajtakkar evidence and the medical evidence coupled with the positive report of the Forensic Science Laboratory.
10. A perusal of the F.I.R, reflects that at 1.00 a.m. On 19.12.2003, three un-identified dacoits, after committing dacoity, took Rehana Kausar (deceased) and Shabhir Ahmad appellant (son-in-law of the complainant) alongwith them. This information was allegedly imparted by Mst. Saleeman Bibi (complainant's wife) to the complainant, who, alongwith other PWs chased the dacoits and after reaching Changranwali Pulli, found the dead-body of his daughter Rehana Kausar (deceased), with tied hand and foot. Shabhir Ahmad appellant was also found there in a tied position.
11., Although, the appellants* were riot nominated as accused in the FIR, yet during, the investigation, all the appellants were implicated in this case as killers of Rehana Kausar (deceased).
12. During the trial, the prosecution, in order to bring home the guilt. Of the accused-appellants, relied Upon difference piece of evidence. The last seem evidence was provided by Maqsood AM (PW6) who claimed that he had seen Rehana Kausar (deceased) in the Company of alt the appellants on 19-12-2003 at about 2.30 a.m. He further claimed that at that time, all the appellants, were armed with fire-arm weapons. His claim of seeing Rehana Kausar (deceased) lastly in the company of the appellants, at the exact time of 2.30 a.m., appears to be doubtful, because according to the contents of the FIR, occurrence took place at 1.00 a.m. He further admitted that at *that time, he did not ask Shabhir Ahmad appellant as to where were they going? One would take the said plea/stance of this PW with a pinch of salt because it is against the natural, conduct of a man of normal prudence, who witnesses a woman escorted by some armed men in the night odd hours of the night but fails to react or make any inquiry from them. Besides, it contradicts the prosecution's own version inasmuch as, according to Maqsood (PW-6), when he reached the venue of the recovery of the dead-body of Rehan Kausar (deceased) alongwith Saleem complainant, Shabhir Ahmad, appellant was not present there at that time whereas the complaint claims that Shabhir Ahmad appellant was lying there with tied hand and foot. (PW-6 further claims that Shabbir-appellant was not seen there for the whole day. This -statement is in direct contradiction to the statement of Munir Ahmad (PW-7) who admits during his cross-examination that Shabhir Ahmad appellant remained in the village for two days. Further, according to PW.6, he had reached the place of occurrence before lodging of F.I.R.. Had he witnessed the deceased in the company of the appellants, as claimed by him, he would have disclosed this fact to complainant who lodged the F.I.R, against un-known accused. Therefore, we are not inclined to rely upon the statement of Maqsood Ali (PW-6).
13. Coming to the evidence of Munir Ahmad (PW- 7), according to him, Zahid. -Shaukat and Abid appellants were seen by him near complainant's house on 19-12-2003 at 12.30 (mid-night).
According to him, the said appellants were armed with fire-arms. The said witness is admittedly real brother of the complainant. His statement is also not believable for multiple reasons. Firstly, his conduct of not asking any question from the appellants, who were seen by him in mysterious circumstances at odd time near his brother's house, is not believable. Secondly, he failed to give any satisfactory explanation regarding his presence near the complainant's house at odd hours of chilly night. Thirdly, according to this witness, he had seen Zahid, Shaukat and ,Abid appellants armed with - fire-arms in a suspicious condition at odd hours of night, but, he also failed to convey the said information to the complainant, though, according to him, he had come to know about the crime before the lodging of the FIR. HPD he seen the appellants, as claimed by him, he would have certainly disclosed this fact to his real brother, who in turn could have named the said appellants in the F.I.R., at least as suspects of the murder of Rehana Kausar (deceased). So, for the afore-referred reasons, we are not inclined to place reliance on the testimony supplied by the said witnesses, as well.
14. Now adverting to the evidence of extra-judicial confession, we find that the same has been furnished by Abdu Rehman (PW-8) who is son-in-law of the complainant. He claims that after the occurrence, Shabhir Ahmad appellant visited him and disclosed that he. Alongwith his co- accused had eliminated his wife. During his cross- examination, he (PW.8) was confronted with his statement under Section 161, Cr.P.C. (Ex.DD), which shows that he had made certain improvements to bring his evidence in line with the prosecution's case. Besides, he conceded that before making of confession by Shabhir Ahmad appellant, he (PW-8) was already aware of Rehana Kausar's murder.
He further conceded that at the time of making of the said confession, he was flanked by Abbas, another witness, yet he did not try to confine or detain Shabhir Ahmad appellant, who had confessed to have kited his (Abdur Rehman's) sister-in-law i.e. Rehana Kausar (deceased). This, conduct of PW.8 is quite unnatural. He, it appears, being closely related to the complainant, has tried, to support- the prosecution's case, therefore, his evidence is also not worth reliance. Even otherwise, extra-judicial-'confession is always treated as a weak type of evidence.
15. Now, coming to the ocular evidence, we have noted that the same has been provided by Mst.
Saliman Bibi% (PW-12), who is the real mother of Rehana Kausar (deceased). According to the contents of the FIR, Rehana Kausar (deceased) was abducted by unknown dacoits after committing dacoity. On the information provided by her, the complaint (Exh.PB) was made by her husband, i.e. The complainant. Contents of the FIR further reveal that she did not implicate Shabhir Ahmad appellant even as a suspect of the dacoity, rather, according to her, he (Shabhir Ahmad) himself was also abducted by the dacoits. Similarly, neither the complainant nor the said woman, i.e. PW-12 gave any motive for the murder of Rehana Kausar (deceased) at-the hands of Shabhir Ahmad-appellant. While appearing in the witness-box, she took a somersault giving a new dimension and version of the occurrence. She claimed that relations between the couple i.e. Rehana Kausar (deceased) and her husband Shabhir Ahmad appellant, were strained. According to her, Rehana Kausar (deceased) used to reprimand Shabhir Ahmad-appellant for his misdeeds.
She (PW-12) gave another story of a meeting regarding hatching of conspiracy between Shabhir Ahmad appellant and his co- accused who, as claimed by Saleeman Bibi, were asked by* Shabhir Ahmad appellant, to accomplish the design. She further claims that on the night of occurrence all the appellants entered into complainant's house forcibly and after committing dacoity, they abducted, Rehana Kausar (deceased). During her cross-examination, she was confronted with her statement (Exh.DC), where the said story 338 Cr.C Key Law Reports Vol. XXVIHwas not mentioned by her. Though at the time of making her examination-in-chief, she claimed to have identified all the assailants/appellants at the time of dacoity &. Abduction of her daughter blit, during her cross- examination, she claimed that all the accused had muffled their faces, therefore, naturally, she could not identify them. All the said circumstances leave no doubt in our mind that the statement of PW-12 is not worth reliance. We believe that she improved her statement made under Section 161, Cr.P.C, to ensure sending of the appellants to gallows.
16. Now we are left with the statement of Muhammad Saleem. (PW-11) who, admittedly, is not an eyewitness and F.I.R, was lodged by him on the basis of hearsay evidence, therefore, no reliance can be placed on his statement
17. Insofar as medical evidence is concerned, this does not corroborate the ocular evidence and the other pieces of evidence provided by the prosecution case because, admittedly, it was an unseen occurrence. Medical evidence can only demonstrate the number and nature of injuries received by the slain besides telling the nature of weapon of offence used during the crime but it cannot go beyond that. Therefore, in this case, the medical evidence does not lead us anywhere.
18. . After disbelieving the entire evidence provided in the shape of ocular testimony, extra-judicial confession, last seen & Wajtakkar evidence, the conviction cannot be .Maintained merely on the basis of recovery of weapons of offence coupled with positive report of Forensic Science Laboratory, because the said piece of evidence can . Only prove corroboration to the ocular or circumstantial evidence, which' in this case has already been disbelieved by us. Besides, admittedly, all the weapons of offence were recovered from the open places beneath the heaps of hay of rice (Parali) in one and the same manner. The places of recovery, being accessible to the public, no reliance can be placed on the said recoveries.
19. As far as recovery of mobile-phone at the instance of Shabhir Ahmad appellant is concerned, that, of course, cannot connect him with the alleged crime. Further, one tainted piece of evidence cannot corroborate another tainted piece of evidence.
20. For all the reasons mentioned above, we have concluded that the prosecution has-failed to prove its case against the appellants beyond any shadow of doubt, rather, the doubts are floating on the surface of the prosecution's case. Therefore, all the three appeals i.e. Cr. A. No. 1441/2004 filed by Shabhir Ahmad-appellant, Cr. A. No. 1469/2004 filed by Shaukat Ali and Zahid Mahmood- appellants and Cr. A. No 1442/2004 filed by Abid Ali- appellant, are accepted, the impugned judgment of conviction dated 19.07.2004 passed by the learned Addl. Sessions Judge, Gujranwala, is set aside and all the above- mentioned three appellants are acquitted of the charge. They are ordered to be released from Jail, if not required to be detained in any other case.
21. Murder Reference is answered in the NEGATIVE and death sentence awarded to appellant Shabbir Ahmad is NOT CONFIRMED.