' SH. NAJAM-UL-HASAN, J.---Muhammad Akram son of Allah Bakhsh, appellant, was tried by learned Additional Sessions Judge, Bhalwal in case F.I.R. No,325 of 2003 dated 25-11-2003 for the offence under section 302 PPC registered at Police Station Bhera. The learned trial court vide judgment dated 20-4-2005 convicted the appellant under section 302, P.P.C. And sentenced him to death. He was also directed to pay Rs,100,100 (rupees one lac) as compensation to the legal heirs of the deceased or in default thereof to undergo six months SI.
2. Feeling aggrieved by the impugned judgment, the appellant has filed appeal through jail i,e, Criminal Appeal No,24-J of 2006, whereas the trial Court has sent reference (M.R.No,326 of 2005) seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together through this single judgment.
3. In brief the facts of the prosecution case as narrated in the F.I.R. (Ex.PG) are that complainant Muhammad Yousaf contracted marriage with Mst. Zareena twenty two years ago who gave birth to four sons and one daughter; Muhammad Akram appellant tried to develop illicit relations with the wife of complainant against her wishes. About two months prior to the registration of case, Muhammad Akram did obscene acts with the wife of the complainant in the Bazar on which she abused and insulted him. For that the appellant bore grudge against her, so on 25-11-2003 at 5-45 a.m., when Mst. Zareena Bibi wife of complainant went outside the house to ease herself and as she opened the door, Muhammad Akram who was already hiding there came in front of her and apprehended her by saying that he had come to take revenge of his insult. Mst. Zareena Bibi turned back upon which the accused Muhammad Akram fired on her which hit on her back under the right shoulder. She raised hue and cry on which the complainant, Muhammad Ashraf and Muhammad Akram were attracted to the spot and they witnessed the occurrence. On seeing them Muhammad Akram accused succeeded to flee away. The complainant along with his companions attended Mst. Zareena Bibi who succumbed to the injuries at the. Spot.
4. The matter was reported to the police who took the dead body in possession and sent the same to the mortuary for postmortem examination. Lady Doctor Saira Ishitaq (P.W.9) performed autopsy on the dead body of Mst. Zareena Bibi on 25-11-2003 at 3-00 p.m., and found the following injuries on her person:--
(1) A lacerated wound 1/2. x 1/2 cm, wound of entry on right front of chest, 8 cm above the right nipple 10 cm outer to midline. Margins were inverted with blackening around it, with a corresponding hole in a shirt.
(2) A lacerated wound of exit 1 cm x 1 cm, with everted margins situated on back and upper part of chest, 13 cm outer to midline.
' As per opinion of the doctor, the death in this case had occurred due to haemorrhange and shock on account of injuries Nos.l and 2 caused with fire arm. Both the injuries were fatal in nature and were sufficient to cause death in ordinary course of nature. Both the injuries were ante-mortem; probable time that elapsed between injuries and death was immediate while the ' time between death and postmortem examination was within twelve hours.
5. Initially this case was investigated by Zawar Hussain S.-I. (P.W.11). On 25-11-2003 upon the statement of Muhammad Yousuf complainant, he registered the formal F.I.R. Ex.PG. Then he visited the place of occurrence, prepared injury statement Ex.PJ, inquest report Ex.PK and dispatched the dead body through constable to the mortuary for postmortem examination. During spot inspection, he secured blood stained earth vide recovery memo. Ex.PA and one crime empty of .30 bore pistol P.7 vide recovery memo. Ex.PB. After the postmortem examination the last worn clothes of the deceased were handed over to this police officer which were taken into possession vide recovery memo. Ex.PC. As the whereabouts of Muhammad Akram appellant were not known, he obtained his warrants of arrest as well as obtained proclamation under section 87 of Cr.P.C., against Muhammad Akram accused. On 6-4-2004, Hasan Aziz Inspector the then S.H.O. Prepared challan under section 512, Cr.P.C., against Muhammad Akram accused.
6. This case was also investigated by Muhammad Matah S.-I. (P.W.12). He arrested the appellant on 24-6-2004 and on 27-6-2004, he got recovered pistol P.1 along with five 30 bore bullets P.2/1-5 from his house in village Nabba and these articles were taken into possession vide recovery memo.
Ex.PF. He also got registered a separate case for the offence under section 13 of Pakistan Arms Ordinance XX of 1965. Upon the completion of investigation, the challan was submitted before the trial Court.
7. Finally the learned trial Court proceeded with the matter and at the commencement of trial framed charge against appellant to which he pleaded not guilty and claimed for trial. During the trial the prosecution produced as many as thirteen witnesses to prove charge against the appellant, out of them Muhammad Yousaf complainant (P.W.7) and Muhammad Akram (P.W.8) appeared as eye-witnesses of the occurrence, whereas Lady Doctor Saira Ishitiaq (P.W.9) produced the medical evidence.
8. After recording of evidence, learned trial Court also examined the appellant under section 342, Cr.P.C. Who took the stand that false case has been registered against him due to local enmity of Riaz Gudgor and Ghulam Mustafa Nazim of Union Council and the complainant was under their influence. He further stated that Mst. Zareena Bibi was murdered by Shaukat Bhanja of Muhammad Yousaf complainant in the darkness of the night; Shaukat produced the pistol to Ghulam Mustafa Nazim of Union Council who produced the same to the police for fabricating the recovery; one day prior to the occurrence the mother of said Shaukat and Mst. Zareena had quarreled with each other due to this grudge, Shaukat committed the murder of Mst. Zareena Bibi. Neither the appellant made statement under section 340 (2), Cr.P.C. Nor produced any evidence in his defence. Learned trial court after appraisal of evidence vide judgment dated 20-4-2005 convicted and sentenced the appellant as narrated earlier, hence this appeal.
9. Learned counsel for the appellant contends that in this case the occurrence has taken place at 5-45 a.m., i,e, in the early hours of the day and there was no sufficient light; in the F.I.R. It is stated that the deceased was to go to ease herself and when she opened the door she was fired at by the appellant. Learned counsel contends that the bladder of the deceased was found empty by the doctor and this circumstance belies the prosecution case. It is also pointed out that in the site plan of the place of occurrence there is presence of latrine in the house of the deceased, so there was no occasion for the deceased to go outside the house for easing herself; in the F.I.R. It is clearly mentioned that the appellant fired at the deceased which hit on her back near the shoulder; in the inquest report and even in the injury statement the position is the same that the fire was made at back of the deceased but the doctor who conducted the postmortem examination has stated that the fire was made on the chest of the deceased which exited from its back. Learned counsel has also argued that while appearing in court the witnesses have changed their version and have stated that the fire was made on the chest of the deceased and in such a situation the statements of the witnesses are not worth relying; so far as the recoveries are concerned, the crime empty was recovered from the place of occurrence on 25-11-2003 which was sent to the fire arm expert on 9- 12-2003; the appellant was arrested on 24-6-2004 and he allegedly got recovered pistol on 27-6- 2004 and challan was submitted in the court and after framing of charge while the evidence was being recorded the pistol was allegedly sent to the fire arm expert i,e, on 17-1-2005 and later on the report from the said office received which is positive. Learned counsel contends that there is no provision of law of investigating the matter when the case is being tried by the competent court; the Investigating Officer who kept the parcel in his custody in Malkhana was not produced by the prosecution and the witness who took the pistol to the fire arm expert was examined as P.W. 2 and he was examined on 9-12-2004 by the Court when he did not make any statement regarding the deposit of pistol before the fire arm expert, later on he was recalled and re-examined on 5-3-2005 and he stated that he deposited the pistol in the office of Forensic Science Laboratory on 17-1-2005 i,e, after the recording of his statement by the trial Court; it is strange that the statement of this witness in support of the deposit of the pistol in the office of fire arm expert was not recorded by the police obviously there was no Investigating Officer at that time and challan was pending in the court and evidence was being recorded. In these circumstances learned counsel contends all these proceedings have got no legal value. Learned counsel has also contended that only two witnesses i,e, one husband of the deceased and the other brother of the complainant were produced and no independent witness was produced before the trial Court; in the. F.I.R. No weapon has been described and it is only stated that the accused was armed with fire arm. Learned counsel has pointed out that while appearing in Court the witnesses have tried to improve the case and have stated that the appellant was armed with pistol; as, per prosecution case the deceased was at some distance of the accused when she was fired upon but the of blackening around the injury indicates that the fire was made from a close range. Learned counsel lastly contends that the appellant has been falsely involved in this case and that as the prosecution has failed to prove the case against the appellant he is entitled to clean acquittal.
10. On the other hand, learned Additional Prosecutor General assisted by learned counsel for the complainant states that in this case at least two witnesses namely Ashraf and Akram saw the occurrence; Akram appeared as P.W.8 and he has categorically stated that the appellant fired at the deceased; so far as the complainant is concerned, he was residing in the same house and was husband of the deceased; his presence at the place of occurrence is natural and he is the most natural witness of the occurrence; the complainant came at the place of occurrence and saw the appellant with the fire arm weapon in his site and in such situation the only conclusion would be that it was the appellant who had fired at the deceased. Learned counsel further contends that one empty was recovered from the place of occurrence on the same day and was sent to the fire arm expert on 9-12-2003 the appellant was arrested on 24-6-2004 and later on he got recovered pistol which was sent to the fire arm expert and report from the said office is positive, such circumstances implicate the appellant in this case; the motive part of the occurrence is proved through the evidence of the eye-witnesses; the deceased insulted the appellant in the Bazar and as such this thing was in the knowledge of all the persons of the locality, as such no specific person was required to prove the motive; the presence of injury on the person of the deceased indicates his intention to kill as the same was inflicted on the chest and there was no reason to repeat the fire; the difference in the seat of the injury is the result of the fact that the witnesses and the complainant came at the place of occurrence when the fire was made, as such said discrepancy does not spoil the whole prosecution case. It is further contended that the appellant has brutally murdered the deceased, thus he is not entitled to any exception.
13. We have heard the arguments of learned counsel for the parties and have also gone through the record.
14. This is a case in which the occurrence took place just on the gate of the house of the deceased and the complainant at 5:45 a.m., in the end of the month of November, so, there is a possibility that there was not sufficient light available at that time. In the F.I.R. It is mentioned that A the complainant was in his room while the deceased had opened the door for going out for easing herself when she was fired at by the appellant and thereafter the complainant came out and saw the occurrence. Similar is the position regarding the other two witnesses; who were stated to have attracted after hearing the noise. So it is clear that all the witnesses came after the firing. In the F.I.R.
It is clearly mentioned that the appellant fired at the deceased which hit on her back near the shoulder. We have observed that in the inquest report it is mentioned that the deceased was having a single firearm injury on the back near her shoulder. Similar is the position in the injury statement prepared by the investigating officer. It is mentioned in the recovery memo of the last worn clothes of the deceased that there was only one cut on the back of the shirt of the deceased.
In the postmortem report the doctor has clearly observed that the fire was made from the front on the chest of the deceased near her neck on the upper side of the chest which made its exit from the back near the shoulder. While appearing in the court the witnesses changed their version and made statements that the fire was made on the chest of the deceased. Thereafter the complainant was duly confronted with the F.I.R. And even the other witness was confronted with his statement under section 161, Cr.P.C. Where he has stated that the fire was made from the back.
Such a change in the statements of the witnesses clearly indicates that they have made improvements in their statements just to bring the case in line with the medical evidence.
15. In the F.I.R. No weapon of offence was mentioned and it was only stated that the accused was armed with firearm whereas while appearing before the court they stated that at the relevant time appellant was armed with pistol. We have observed that the doctor has observed the presence of blackening around the wound of injuries which indicates that the fire was made from a very close range. If the witnesses had seen the occurrence there was no reason for them to get confused regarding the seat of injury especially when the firing was made from a close range. So this circumstance indicates that the witnesses have not seen the occurrence.
16. It is the prosecution case that the deceased had opened the door for going outside for easing herself. I have observed that in the site plan it is clearly mentioned that the presence of latrine and word latrine is mentioned in Urdu in the site plan which clearly denotes that there was a latrine in the house and no reason for the deceased to go outside for easing herself when latrine was available inside the house has come on the record. Even otherwise the site plan shows that it was a thickly populated area and there were houses on all the three sides of the house of the deceased and there was main road in front of the house and across the road, so there was no place for the deceased for easing herself available on the record. It is the prosecution case that there was sufficient light so in these circumstances the story put forward by the prosecution in this respect is not worth relying, and does not appeal to prudent mind.
17. As far as the motive is concerned, no one has been produced by the prosecution as to who had witnessed the earlier occurrence in which the deceased insulted the appellant and in the absence of such evidence in this respect the motive part of the prosecution cannot be said to have been proved. Even the trial court has disbelieved the motive put forward by the prosecution.
18. Only the main evidence which left for the prosecution is the recovery of incriminating articles and the positive report of the fire arm expert. We have carefully seen the whole evidence and this is very strange in this case that the crime empty was taken into possession by the Investigating Officer on 25-11-2003 which was later on sent to the firearm expert on 19-12-2003, appellant was arrested on 24-6-2004 and pistol was recovered on his pointation on 27-6-2004; the challan was submitted in the court and the charge was framed against the appellant on 23-11-2004 thereafter the evidence was being recorded and the statement of Muhammad Riaz Constable (P.W.2) was recorded on 9-12-2004 where he did not made statement regarding the delivery of pistol to the fire arm expert but only stated that he took the empty to the office of Forensic Science Laboratory. On 17-1-2005 said pistol allegedly recovered from the appellant was sent to the fire arm expert so at that time the evidence was being recorded by the learned trial Court and the investigation was not pending before anyone but any how the said pistol was sent to the firearm expert through some Muhammad Riaz who appeared in Court once again on 5-3-2005 and stated that he deposited B the pistol in the office of fire arm expert on 17-1-2005. So there is no evidence in the prosecution case that as to whose custody this pistol remained after its recovery and till it was sent to the firearm expert. Such broken chain regarding the custody of the crime weapon makes the whole recovery proceedings highly doubtful. Even otherwise, it is the stance of the appellant from the very beginning that the pistol was given by one Shaukat who was nephew of Muhammad Yousaf as he is the one who killed the deceased and in connivance with Ghulam Mustafa Nazim of the Union Council, the pistol was planted on the person of the appellant due to enmity and just to save the real culprit and that is the reason that only the husband and his brother were made the witnesses of the occurrence. In these circumstances, the recovery and the positive report of the firearm expert cannot be relied upon especially in the circumstances under which the pistol was sent to the firearm expert during the pendency of the trial without obtaining permission from the trial Court.
19. The doctor who conducted the postmortem examination took vaginal swabs of the deceased and the same were sent for the detection of semen but there is no report available on the record and the presumption shall be that the report was against the prosecution
20. While considering all this evidence together, we have observed that there is clear conflict in the statements of the eye-witnesses with the medical evidence, the witnesses have tried to change their version just to bring the case in line with the medical evidence; the recovery is highly doubtful and report of the firearm expert is not worth relying and in the circumstances mentioned above the motive has not been proved. It has been held by the honourable Supreme Court in case titled Muhammad Akram v. The State (2009 SC 230) that single circumstance is sufficient to discard the evidence of the prosecution, if the same does not appeal to prudent mind. Similarly in cases titled Muhammad Rafique and others v. The State and others (2010 SCM R 385) and Syed Saeed Muhammad Shah and another v. The State (1993 SCM R 55), it was held by the honourable Supreme Court that when the witnesses of the case change their version and try to bring their case in line with the prosecution evidence, then their statements lose the sanctity and reliability. In the present case, the witnesses have not seen the occurrence or that the occurrence has taken place in some other way and the prosecution is not telling true facts. In these circumstances, while considering that the prosecution has not proved its case against the appellant beyond reasonable doubt, we extend benefit of doubt in favour of the appellant, accepts his appeal (Criminal Application No,24-J of 2006). Conviction and sentence of the appellant is set aside and he is acquitted of the charge. Appellant shall be released forthwith if not required to be detained in any criminal case.
21. Resultantly death sentence awarded to the appellant is not confirmed and reference (M.R.No,326 of 2005) is answered in the negative.