' IJAZ AHMAD CHAUDHRY, J.-We, through this consolidated judgment, propose to decide Murder Reference No, 531 of 2001 sent by the learned Trial Court under section 374, Cr.P.C. Seeking confirmation of death sentence awarded' to the convict-appellant alongwith Criminal Appeal No, 1140 of 2001 filed by Kashif Shafique appellant against his conviction and sentence, together as both these matters have arisen from the judgment dated 10.7.2001, delivered by the learned Additional Sessions Judge, Lahore .Whereby Kashif Shafique appellant was convicted under section 302(b), PPC and sentenced to death as Taz'ir for committing the murder 61 Munawar Bibi deceased alongwith direction for payment of Rs, 50,000/- to the heirs of the deceased. By way of compensation under section 544,-A, Cr.P.C. Or in default of payment thereof to undergo six months'
S.I. However, through the same judgment Mst. Naheed Begum co-accused was acquitted.
2. Concisely the facts of the prosecution case set up in the F.I.R. (Ex. PB/1) got lodged by Inayat Ullah complainant (PW.2) are that he, was zamindar by profession and his daughter Mst.. Munawar Bihi aged about 40 years (deceased) was residing at House No, 68-B Street No, 171 Madina Colony alongwith her husband. HoWeyer, her husband Muhammad Rafique and son Muhammad Arshad were in abroad for the purpose of employment and one younger boy,' and two girls were living with her. The daughter of the complainant about 5/6 months prior to the incident had rented . Out two rooms of his house to Mst. Naheed Begum for a consideration of Rs,. 1200/- per month. The reputation of Mst. Naheed Beguam and her girls was not good whereupon two months earlier they were asked to vacate the house but they did not do-so. In this connection, Mst. Munawar Bibi deceased called the complainant from village one day earlier. The complainant asked Mst.Naheed Begum and his son' Kashif Shafique appellant to vacate the house who refused to do so whereupon hot words were exchanged. On the night the complainant and his son: Muhammad Asghar had slept in the courtyard of the house while Mst. Munawar Bibi daughter of the complainant had slept in a room alongwith the children. At about 4:30 a.m. Suddenly on hearing shrieks the went inside and saw that Kashif Shafique having Chhurri in his hand was inflicted blows to Mst. Munawar Bibi daughter of the complainant while his mother Mst. Naheed Begum was saying in a loudly voice to teach her a lesson for vacating the house. They tried to catch hold of Kashif Shafique appellant who also tried to beat them and while brandishing Chhurri in the air ran away. When the complainant lifted his daughter she had already succumbed to the injuries and blood was oozing from her body due to causing of injuries on her abdomen and other parts of the body. Besides the complainant the occurrence was witnessed by his son Muhammad Asghar and Munir Ahmad (PW-9), Kashif Shafique appellant in consultation with his -mother had murdered Mst. Mtmawar Bihi daughter of the complainant who wanted to take possession over their house
3. The investigation of this case was conducted by Abdul Shakoor, S.I. (PW-10) and during the investigation, dead. Body of the deceased was inspected. Injury statement and inquest report were prepared, statements of the witnesses under section.
161. Cr.P.C. Were ,recorded, the place of occurrence as inspected, blood-stained earth was Secured, rough site-plan of the place of occurrence was prepared, the dead-body of the deceased was , sent to the mortuary for autopsy; the last-worn clothes of the deceased were received, a formal site-plan of the place of occurrence was got prepared;the appellant was arrested by him on 15.7.1998, recovery of Churri (P.1) from the appellant's possession was effected and after completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court.
4. At the commencement of the trial the learned Trial Court framed a charge under sec ions 302/34, PPC against, the appellant and the co-accused to which they pleaded not guilty and claimed a trial.
5. The prosecution in order to prove their guilt produced -.As many as 10 witnesses. The ocular account of the incident in question was furnished by Inayat Ullah, complainant (PW-2) and Munir Ahmad (PW-9) who also deposed about the motive while the medical evidence was provided by Dr. Imran Jawad (PW-7}. Abdul Shakoor, S.I./SHO (PW-10) had stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was mere or less formal in nature.
6. In his statement recorded under section 342', Cr.P..C.The appellant had denied the allegations levelled against hint by the complainant and professed his innocence. However, to a question that "Why this case is against you and why the PWs have deposed against you'?" . Kashif Shafique appellant replied in the following term. I am quite innocent in this very case. I have not committed the murder of Mst.
Munawar I3ibi on 11.7.1998 at 4/4.30 a.m. In her house and as a matter of fact there was no dispute on the vacation of the house with Mst. Munawar Bibi landlady of the house as alleged by the prosecution and in addition to this there was no visiting of strangers in my house and there was no grievance against me on behalf of the deceased lady and in fact neither Inavat Ullah complainant nor his son Asghar Ali PW came on 10.7.1998 one day prior to the date of occurrence toe the vacation of the house nor they were present in the house on 11.7.1998 for witnessing the occurrence but after. The occurrence both of them were summoned by local police from Rahwali District Gujranwala in order , to become witness and ho PW was present at the spot at 4:30 a.m. Quite early in the morning at the time of Azan. PW Munir Ahmad used to conic to the house of the deceased as the husband of the deceased was out of the country and all the three children lived with the deceased and Munir Ahmad PW used to manage the household affairs of the deceased and Muhammad Rafique husband of the deceased used to send money to the deceased through Munir Ahmad PW was misappropriated Rs, 3,50,000/- of the deceased and constructed a new house in the same vicinity, and the deceased demanded this amount of Rs, 3,50,000/- from Munir Ahmad PW who was not prepared to pay the same to her and besides this there was also a dispute between Munir Ahmad PW and the deceased about the visiting of Muhammad Asif younger brother of Munir Ahmad PW. In the house of the deceased and in this way Munir Ahmad PW managed the murder of Mst. Munawar with the help of two unknown persons and have been falsely involved in this case alongwith my mother who has been declared innocent by the local police."
' However, neither the appellant nor the co-accused had opted to make statement under section 340(2), Cr.P.C. On oath, nor they produced any evidence in their defence.
7. The learned Trial Court, after hearing the arguments of the learned counsel for the parties, had passed the impugned judginent of conviction and sentence against the appellant as 'detailed in para 1 ante. Hence, these matters before this Court.
8. The learned counsel for the appellant contends that Inayat Ullah complainant (PW-3) was father of Mst. Munawar Bibi deceased, who was resident of Gujranwala which was at a 'distance of more than 65 k.m, but he had failed to show any reason for his presence at the spot and the reason give by was falsified; that the post-mortem examination had been conducted on the next day with the delay of more than 36 hours and the possibility cannot. He ruled out that the complainant and other eye-witnesses Were summoned from far off place to introduce them as eye-witnesses; that the story introduced by the prosecution . Was concocted one; that according to the complainant he .Had gone to the place of occurrence after hearing the voice of shrieks of the deceased and when he saw the deceased she was unconscious; that the complainant had failed to prove his presence at the spot; that PW-9 Munir Ahmad was another eye-witness who had claimed that he was going to say 'Fajar' prayer at the time of occurrence and his house was at a distance of 4/5 houses, but from the immediate negihbourers nobody had attracted to the spot; that PW-9 claimed that when he went inside he saw .The incident, the appellant in his presence gave 3/4 chhurri blows on the person of the deceased; that according to PW-9 he did not know the deceased or her husband and also came to know about the dispute of vacation of house between them at the place of incident how he could know the name of the appellant and his mother who had come there as tenants only 5/6 months earlier; that PW-12 was posted as a guard at the Bungalow of Ombudsman during the days of occurrence and he was not present at the spot but he was summoned subsequently to become a witness by the police; that the prosecution evidence is not trustworthy and chhurri which was allegedly recovered from the appellant was not sent to the office of Chemical Examiner for determination whether it was stained with human blood or not and as such the recovery was useless because it could not be proved that the said weapon was used during the incident and that motive was also not proved against the appellant. It has, thus, been canvassed by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt entitling him to acquittal by this Court.
9. On the contrary, the learned counsel for the State have vehemently opposed the appeal on the ground that both the eye-witnesses had no previous enmity or grudge to falsely implicate the appellant in the present case; that both the eyewitnesses were independent and natural witness who had given reasonable explanation for their being present at the spot and they remained consistent on material points; that the appellant was the single accused who had caused injuries to the deceased and there was no reason for substitution of the appellant by letting off the real culprits if he had not committed this occurrence as the PWs had no previous enmity or ill-will against the appellant, who acted in a brutal manner by causing as many as 48 injuries on the person of the deceased.
10. We have heard the learned counsel for the parties and perused the record with due care and caution.
11. The occurrence in the present case had taken place at 4:30 a.m. On 11.7.1998 at House No, 68-B, Street No, 171 Madina Colony situate 11/2 k. m. Away towards North from Police Station Baghbanpura Lahore. The matter was reported by Inayat Ullah complainant (PW-2) father of the deceased while making his statement (Ex. PB) to Abdul Shakoor, S.I./SHO (PW-10) at Street No, 171 Madina Colony the same day at 5:25 a.m. On the basis of which formal F.I.R. No, 364 of 1998 was subsequently drafted by Muhammad Saeed Khan, S.I. (PW-6) at 5:35 a.m. On 11.7.1998 at the Police Station under sections 302/34, PPC. The claim of the prosecution was that F.I.R. Was registered without any inordinate delay and according to Abdul Shakoor, S.I./SHO (PW-10), he went to the spot and recorded the statement of the complainant, prepared the injury statement and inquest report and sent the dead-body of the deceased to mortuary under the escort of Tariq and Muhammad Ashraf Constables (PW-5). So the dead-body must have reached the mortuary before 7:00 a.m. But the post-mortem examination on the dead-body of the deceased had been conducted by Dr. Imran Jawad (PW-7) on 12.7.1998 at 10:45 a.m. And according to him the time between death and post- mortem examination was 24 to 36 hours. So the delay in conducting of the post-mortem examination has falsified the story of the prosecution that the F.I.R. Was got registered immediately after the occurrence. The possibility cannot be ruled out that the time was consumed in concocting the story and summoning the witnesses, otherwise there was no justification for such a delay in postmortem examination. It has created sufficient doubt in the prosecution version that the F.I.R. Was got lodged with promptitude and no time was left with the prosecution to concoct the story. As such we have to see the prosecution evidence with utmost care and caution.
12. The prove the ocular account the prosecution had produced Inayat Ullah complainant (PW-2) and Munir Ahmad (PW-9). Inayat Ullah complainant. (PW-2) was resident of Cantt. Rahwali District Gujranwala while his daughter Mst. Munawar Bibi deceased was residing in a house situate in Madina Colony, Lahore where the occurrence had taken place, so presence of Inayat Ullah complainant (PW-2) at the place of occurrence at the time of occurrence was per chance. No doubt the other eye-witnesses Munir Ahmad (PW-9) claimed that he was residing in the same Mohallah in a house situate at a distance of 4/5 houses from the place of occurrence, but he was a police official and during the days of incident he was performing his duty at the Bungalow of Ombudsman. According to. PW-9 he was going for saying 'Fajar' Prayer when he attracted to the place of occurrence after hearing the shrieks and as such he was also a chance witness.So both the eye-witnesses were bound to explain their presence at the place of occurrence with sufficient reasons. Inayat Ullah complainant (PW-2) in the F.I.R. Had given the reason for his being present at the spot that 5/6 months ago, Mst. Munawar Bibi his daughter had given two rooms of her house on rent to Mst. Naheed Begum mother of the appellant for a consideration of Rs, 1200/- per month and as Mst. Naheed Begum and her daughters were not carrying good character, two months ago they were asked to vacate the premises but she was not doing so. Due to this reason, Munawar Bibi deceased had summoned the complainant from the village and the complainant had asked Mst.
Naheed Begum and his son Kashif Shafique appellant to vacate the house who refused to vacate the same. Thereupon hot words were exchanged between them. On the night of the occurrence the complainant and his son Muhammad ,Asghar had slept in the courtyard of the house while Mst.
Munawar Bibi deceased had slept in the room alongwith the children and at about 4:30 a.m. The incident had taken place.
13. During the cross-examination PW-2 Inayat Ullah complainant explained that house had been rented out about 5/6 months ago and at the time of commencement of tenancy he was not present in the house of the deceased but the deceased had informed him about the tenancy about 2/3 months ago, who after the tenancy had visited the house first time at the time of incident. So the extent of conmencement of the tenancy and giving the house on rent, statement of PW-2 Inayat Ullah is based on hearsay which is inadmissible in evidence. He also claimed that he was called on telephone on 10,7.1998 at. 12 mid day by the deceased but admitted that no telephone was installed in his house. He also conceded that the deceased had not filed any suit for eviction of the accused party from the house.
14. Abdul Sahkoor, S,I./SHO (PW-10) had investigated the case, who during the cross-examination stated that he never received any information about the loose character of Mst. Naheed Begum or her daughters and neither the. Mohalladars ever made any complaint in this regard nor any application whatsoever was never filed by the deceased herself about any quarrel with, the appellant or with his mother. He also conceded that matter regarding. Quarrel between the parties in the presence of the complainant on 10.7.1998 was also not reported to the police and no documentary evidence had been produced about the commencement of the tenancy between the parties and no suit or any application was ever filed by the deceased for eviction of the accused party from the house. The reason advanced by the complainant for being present at the place of incident is not supported by any evidence. It was only oral statement of the complainant which can only be relied upon` if the complainant succeeded in showing that he was truthful witness.
15. Similarly, Munir Ahmad (PW-9) was also a chance witness, who resided at a distance of 4/5 houses from the place of incident and he per chance while going to say 'Fajar Prayer' on the hearing the shrieks went inside the house and saw the appellant causing injuries on the person of the deceased. He during the cross-examination claimed that 'Namazis' and other persons had also visited the place of occurrence but surprisingly after the occurrence the immediate neighbourers residing in the adjacent houses or in front of the house of the deceased had not attracted to the spot after hearing shrieks of the deceased. PW-9 explained that he was serving as a guard at the Bungalow of Ombudsman. He failed to give reasonable explanation for being present at the spot when the other people had not heard the shrieks of the deceased and nobody from the neighbourhood had attracted to the spot. How PW-9 had seen the incident is the question which can be resolved after detailed scrutiny as to whether he was present at the spot or not?
16. Now we come to the question regarding truthfulness of the eye-witnesses. The occurrence had taken place at 4:30 on '11.7.1998 and the F.I.R. According to the, prosecution version was registered the same day at 5:35 a.m., but the postmortem examination on the dead-body of the deceased had been conducted with the delay of about 30 hours after the occurrence. Had the statements of the .Witnesses recorded immediately and the other proceedings completed thereafter as claimed by the Investigating Officer at the spot after 5:30 a.m. On 11.7.1998, why the dead-body of the deceased has been dispatched to the mortuary on 12.7.1998 and the post-mortem examination had been conducted on 12.7.1998 at 10:45 a.m. The delay in conducting the post-mortem examination has led us to draw an inference that the police' papers were not prepared immediately and the time was consumed in concocting the prosecution story and introducing the relatives of the deceased as witnesses, who were residing at far flung area. There is nothing on the record to show about non-availability of any doctor for conducting of post-mortem examination at the mortuary at Lahore on the said 'date. Even otherwise, Inayat Ullah complainant (PW-2) during the cross-examination stated that the deceased had two. Daughters and two sons. Ali and Arshad were sons of the deceased and Arshad was aged about 17 years while her eldest daughter was aged about 13/14 years. It was claimed by him that children of the deceased were also present in the house but the Investigating Officer did not join them during the investigation to unearth the true facts. It was explained that Arshad was abroad, but even then statements of eldest daughter and other children could have been recorded by the Investigating Officer as they were the most natural and independent witnesses being resident of the same house where the occurrence had taken place. Similarly, according to the complainant Mohalladars had also attracted to the spot but the immediate neighbourers according to PW-9 Munir Ahmad did not attract to the spot, after hearing the shrieks. The witnesses had failed to give the names of the persons who immediately came to the. Spot. The failure of the Investigating Officer to join the independent persons from the vicinity or the children of the deceased during the investigation poles of part about the genuineness of the prosecution version.
17. The complainant (PW.2)' claimed that the deceased had slept in the room while he (PW-2) alongwith his son had slept in the courtyard of the house, but he did not know whether the deceased had bolted the door of her room and when he heard the shrieks of the deceased Munir Ahmad (PW9) followed him and door was opened. PW-2 also failed to explain that who had opened the door and how Munir Ahmad (PW-9) came in, which is mystery and has not been resolved by the witnesses. It appears this fact was introduced in order to show Munir Ahmad (PW- 9) as an eye-witness. It is also claimed that three eye-witnesses were present in the room and there were only one door of the house but no effort were made for apprehending the appellant who was not armed with any fire-arm or saving the deceased froth the clutches of the appellant.
The conduct of the witnesses at the time of the occurrence was unnatural, which creates doubt about their presence at the spot. The complainant also claimed that when they came inside the room, the deceased was unconscious and the appellant was causing injuries on her person and according to both the eye-witnesses at that time she was not raising any hue and cry. So possibility cannot be ruled our that she had already become unconscious and there was no occasion for raising shrieks by the deceased attracting the witnesses to the place of the occurrence. Even otherwise, the complainant and Munir Ahmad (PW-9) stated that the appellant had only given 2/3 blows in their presence on the person of the deceased but the Medical Officer had observed 48 Injuries on the person of the deceased with sharp-edged weapon. It appears that the appellant would have been causing injuries much before the alleged coming of the witnesses to the place of incident while the deceased might have raised hue and cry when the occurrence had taken place and according to the Medical Officer such number of injuries could not have been caused within 2/3 minutes, but reasonable time must have been consumed in causing injuries on the person of the deceased. The time of the incident is also not supported from the statement of Dr. Imran Jawad (PW-7), who had conducted post-mortem examination on 12.7.1998 at 10:45 a.m. And the probable time between death and postmortem examination was opined to be 24/36 hours. In such facts and circumstances the possibility of taking place of the occurrence in a different manner on the time other than narrated by the PWs cannot be ruled out.
18. We have also noticed that no doubt Munir Ahmad (PW-9) was resident of the same Mohallah, but during the cross-examination he claimed that he did not know the deceased previously and had seen her first time at the time of incident and he also did not know her husband. If said PW Munir Ahmad did not know the deceased previously who was owner of the house how it could be believed that he was aware of the name of the appellant or his mother who alongwith other family members had occupied the premises on rent according to the prosecution's own case just 5/6 months earlier to the occurrence. PW-9 also claimed that he came to know after the incident that the accused were tenants. It was also mystery that how PW-9 came to know about the names of Muhammad Asghar son of the complainant and Inayat Ullah complainant father of the deceased as they were not known to each other. However, while recording his statement under section 161, Cr.P.C. PW-9 had given the names of Muhammad Asghar and father. Of the deceased, who were present there and they had witnessed the occurrence. The - evidence of Munir Ahmad (PW-9) and the complainant (PW2) regarding seeing of the incident has been found doubtful by us and also in contradiction with the medical evidence regarding number of injuries on the person of the deceased and time of incident as well. After perusal of the statements of the alleged eye- witnesses we are satisfied that it is not safe to rely upon their statements for maintaining the conviction of the appellant in a case entailing capital punishment.
19. The prosecution had produced Muhammad Nawaz, FC (PW-3) who claimed that churri was recovered on 17.7.1998 from the. North side of Shalamar Garden after digging earth and it was not stained with blood. PW-5 Muhammad Ashraf was also produced to prove the said recovery and the Investigating Officer also appeared to prove the recovery but the said weapon of offence was not sent to the office of Chemical Examiner and that of Serologist. So the alleged recovery of weapon from the appellant was useless as it cannot be said that the said weapon was used during the incident.
20. The motive of the incident also could not be proved as no documentary evidence had been produced that there was any dispute regarding ejectment of the accused party from the house rented out to them by the deceased and only statement of the complainant has been relied upon in this regard. Admittedly no ejectment petition had been filed by the deceased against the accused party and oral assertions of the complainant are not acceptable, who was even not present. At the time of giving the house on rent to the appellant and his mother and he had also visited the post first time after commencement of tenancy on the day of incident and his statement regarding seeing of the occurrence and presence at the spot has been found doubtful in the preceding paragraphs. Even otherwise we have already observed that the occurrence had taken place in different circumstances and it cannot be believed that merely on the dispute of ejectment the appellant could have acted in such a brutal manner, as 48 injuries with shar-edged weapon were found on the person of the deceased.
21. In view of above discussion, we have no hesitation in holding that the prosecution had not been able to prove the case against Kashif Shafique appellant beyond any shadow of doubt. Hence, this Criminal Appeal No, 1140 of 2000 is hereby accepted, the impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charge by extending the benefit of doubt to him. He shall be released from jail forthwith if not required in any other criminal case.
22. Consequently, the death sentence awarded to Kashif Shafique appellant is not confirmed and Murder Reference No, 531 of 2001 is replied in the negative.