' MUHAMMAD ANWAR BHAUR, J.---Yasir son of Muhammad Ashraf, Mst. Rabia daughter of Muhammad Hussain and Muhammad Zafarullah son of Imam Din were tried by the learned Additional Sessions Judge, Bahawalpur for committing murder of Sajjad Ahmad deceased, brother of Mehtab Ahmad-complainant, in case F.I.R.No, 7, dated 6-1-2003, registered with Police Station Civil Lines, Bahawalpur for an offence under section 302/34, P.P.C. The learned trial Judge by virtue of his judgment dated 19-5-2004 found Ysir and Mst. Rabia guilty of the charge, convicted each of them under section 302(b) P.P.C. And sentenced Yasir to death and Mst. Rabia to imprisonment for life with a further direction to pay a sum of Rs,50,000 each to the legal heirs of the deceased as compensation, under section 544-A, Cr.P.C. Or in default thereof to undergo simple imprisonment for six months each. Benefit of section 382-B, Cr.P.C. Was, however, extended to Mst. Rabia-convict.
The said learned Judge by giving benefit of doubt to Muhammad Zafarullah acquitted him of the said charge.
2. Yasir-convict by filing Criminal Appeal No, 173 of 2004/BWP, whereas Mst. Rabia-convict by filing Criminal Appeal No,200 of 2004/BWP have called in question the conviction and sentence awarded to them through the impugned judgment, whereas the learned Additional Sessions Judge has sent Murder Reference No, 921 of 2004 to seek confirmation or otherwise of the death sentence awarded to Yasir-convict/appellant, Mehtab Ahmadcomplainant has filed Criminal Appeal No,202 of 2004/BWP against the acquittal of Muhammad Zafarullah and has also filed a Criminal Revision No, 102 of 2004 seeking enhancement in the sentence of Mst. Rabia-appellant to the maximum. We propose to dispose of all these matters together through this single judgment.
3. Occurrence in the instant case took place on 6-1-2003 at 2-30/3-00 a.m. In the area of Model Town C-Block, situate at a distance of one kilometer from Police Station Civil Lines, Bahawalpur, Mehtab Ahmad-complainant (P.W.1.) reported the matter at the Police Station by making an application (Exh.PA), on the basis whereof Abid Akhtar, Inspector/S.H.O. (P.W.10) drew up F.I.R.
(Exh.PA/1) on the same day at 8-15 a.m. Without any addition or alteration on his part.
4. Concisely the prosecution story as mentioned in the application (Exh.PA), on the basis whereof F.I.R. (Exh.PA/1) was registered, was that Mehtab Ahmadcomplainant (P.W.1.) used to run a jewellery shop at Fawara Chowk, Bahawalpur by the name and style of New Awami Jewellers and his brother Sajjad Ahmad was also running a jewellery shop by the name and style of New Sajjad Jewellers adjacent to the shop of the complainant; his brother Sajjad Ahmad had two wives, his first marriage had taken place about twenty years ago, whereas he contracted second marriage with Mst. Rabia-appellant about twelve years ago; Mst. Rabia was a divorcee from one Fiaz and was mother of a son out of the said wedlock; Yasir Chaudhary-appellant, who was on visiting terms with his brother Sajjad Ahmad used to come to his house in order to develop his friendship; in this garb, he developed illicit liaison with Mst. Rabia and Sajjad Ahmad had a suspicion of the said relationship; a few days before, his brother Sajjad Ahmad had shown anger on coming to know of the illicit liaison between Yasir and Mst. Rabia and had stopped Yasir-appellant from coming to his house and disconnected his affairs with Yasir-appellant; on the last evening at about 6-00 p.m., Yasir-appellant came at the shop of his brother Sajjad Ahmad, whereupon an altercation took place between the two and he was also called by his brother at his shop, where his brother reprimanded Yasirappellant by saying him that he is a "BayGhairat" and he should have no connection with his wife in his absence, whereupon Yasir-appellant left the shop in an angry mood; on 5-1-2003, at about 9-00 p.m. His brother Sajjad Ahmad, taking his cousin Muhammad Afzal and uncle Nazar Muhammad in confidence, informed them that some one by making obnoxious calls in different voices was issuing him threats, due to which he was worried; on that night, his brother Sajjad Ahmad had to spend night in the house of Mst. Rabia; Sajjad Ahmad secretly asked Muhammad Afzal and Nazar Muhammad to stay at upper storey of his house in Model Town-C so as to watch Mst. Rabia; during the night; i.e, on 6-1-2003, at about 2-30/3-00 a.m., on hearing hue and cry, Muhammad Afzal and Nazar Muhammad came down from the upper storey and went to the bedroom of Sajjad Ahmad; they saw that Yasirappellant while armed with a pistol 30-bore was present there, whereas Mst. Rabia caught hold of her husband, i.e, Sajjad Ahmad, while guard/Chowkidar of the house carrying firearm, was present in the door connecting the bedroom of children and Sajjad Ahmad; within the sight of the aforesaid witnesses, Yasir-appellant made three fire shots with his pistol, first landed on left side of neck, second on left arm and third on right arm of Sajjad Ahmad; Yasirappellant and Zafar (since acquitted) due to fear, locked the witnesses in the storeroom, bolted the door from outside and asked them to remain silent, otherwise they will be done to death; after a short while, on hearing voice of starting of the car, the witnesses raised hue and cry, due to which some child opened the door from outside; immediately thereafter, the complainant on receipt of information regarding the incident, reached the spot and saw that a car Honda Civic Model 2000 bearing registration No, BRH/550 was missing and Zafar guard and Mst.
Rabia were also not present there, whereas the children were present in the room being semi- conscious. According to the complainant, Yasirappellant in connivance of Mst. Rabiaappellant and Muhammad Zafar (since acquitted) has committed the crime in question and has also taken away the dead body of Sajjad Ahmad along with some gold ornaments and cash amount etc. Resultantly, the instant F.I.R. Was recorded.
5. Immediately after registration of the case, investigation into the crime was carried out by Abid Akhtar, Inspector/S. H. O. (P. W.10), who after completing the same submitted challan against the accused before the Court for their trial in accordance with law.
6. On receipt of the challan, the trial Court completed all legal formalities and framed a charge against the accused, to which they pleaded not guilty and claimed to be tried. The prosecution in order to prove its case produced as many as eleven witnesses, namely, Mehtab Ahmadcomplainant (P. W.
1.), Muhammad Afzal (P. W. 2), Saj id Mehtab (P. W. 3), Syed Gul Hassan, Patwari Halqa (P.W.4), Dr. Rao Muhammad Javaid Akhtar (P.W.5), Atta Muhammad (P. W.6), B il al Mustafa, constable (P.W.7), Shah Zarin, MHC (P.W.8), Mazhar Hussain, constable (P.W.9), Abid Akhtar, Inspector/S.H.O. (P. W. 10) and Sajjad Hussain, S.-I. (P.W.11).
7. Learned Prosecutor by giving up rest of the witnesses being unnecessary and tendering in evidence reports of Chemical Examiner (Exhs.PQ to PU), those of the Serologist (Exhs.PV to PY) and report of Forensic Science Laboratory (Exh.PZ) closed the prosecution case.
8. After closure of the prosecution evidence, all the incriminating material was put to the accused under section 342 Cr.P.C. To seek their standpoint, who denied the allegations brought against them and claimed their absolute innocence in the matter. Yasir and Mst. Rabia-appellants, while answering questions "Why this case against you and why the P.Ws. Have deposed against you?" and "Have you anything else to say?" stated as under:- ' YASIR APPELLANT: "The said case is based on enmity and suspicion. All the P.Ws. Produced by the complainant are related inter se and the deceased. So much so the Deputy District Attorney is also related to the P.Ws. Although the P.Ws have deposed falsely and knew nothing about the occurrence. I have been falsely involved as a scapegoat. Complainant party is richest Zargar of Area and the Investigating Officer to satisfy them wrongly involved me.
"Have you anything else to say?
' Ans: I am innocent, I have been wrongly involved in this case, Investigation was conducted dishonestly and cruel in the manner. I was tortured, kept in illegal confinement. The whole process is ridiculous. The F.I.R, was recorded belately. I produced certified copy of Register Dak Bhai dated 6-1-2003 , 8-1-2003 of the P.S. Civil Lines Exh.DN. The Case Diaries were manipulated. The I.O. Was on leave from 8-1- 2003 to 12-1-2003. I produced certified report No,14 of Roznamcha Waqiati of the P.S. Civil Lines, Bahawalpur dated 8-1- 2003 Exh.DL. And Report No,32 of Roznamcha dated 12-1-2003 Exh.DM, but denied in the Court. No case property was handed over as proved by certified copy of Report No,27 of P.S. Civil Lines dated 12-1-2003 Exh. D.N. During the whole investigation, I was kept in illegal confinement and tortured. I was also threatened to be killed".
' He relied upon certain copies of the Rapats, which were produced in defence as Exhs.D0 to DBB to show that he was tortured by the police.
' He neither opted _ to adduced evidence in defence nor to make statement on oath under section 340(2), Cr.P.C.
' Mst. Rabia; "This case is registered against me "Have you anything else to say?
' I am innocent. I led my happy life with my deceased husband and out of our wedlock five children were born. I was second wife of deceased Sajjad and complainant other members of the family were not happy with me. We were not on good terms with the complainant family and complainant did not join in my ceremony celebrated by us. After the death of my husband, my children were sent out of the house and took the possession of the house without my permission.
Complainant concocted his false story mentioned in the F.I.R. And falsely entangled me in the instant case".
' She did not opt to make statement on oath under section 340(2) Cr.P.C., however, she opted to adduce evidence in defence and produced copy of W.P. No,2244 as Exh. DCC and the order of the Hon'ble Judge of High Court dated 29-7-2003 as Exh .DCC/1.
9. Upon culmination of trial, the trial Court proceeded to pronounce verdict of guilt against the appellants, convicted and sentenced them as aforementioned.
10. The learned counsel for Yasirappellant in support of his appeal (Criminal Appeal No,173/2004/BWP) argued that the F.I.R. In the instant case was recorded after due deliberations and consultation, which is clear from the following circumstances:--
(a) In the F.I.R., it is mentioned that Sajjad Ahmad was caused injuries with firearm weapon and thereafter he was removed from the scene of occurrence and the case was registered at 8-15 a.m.
On 6-1-2003 and at that time admittedly it was not in the knowledge of any of the prosecution witnesses that Sajjad Ahmad has died but even then the case was registered under sections 302/34 P.P.C.;
(b) The bare reading of the Inquest Report (Exh.PQ) reveals that the same was admittedly prepared after the registration of the case but in that report in the relevant column of "Mukhtasir Halaat Muqadama" same facts are mentioned as were stated in the F.I.R. There is no mention in the inquest report (Exh.PQ) that dead body was recovered from the car of the deceased at the instance of Yasir appellant and even the name of the person, who as per prosecution, saw the appellant in the car (wherefrom the dead body was recovered) is also not mentioned therein;
(c) All the developments, which, as per prosecution, took place after the registration of the case and prior to the postmortem are not mentioned in the inquest report (Exh. PQ).
' The learned counsel further argued that it is the case of the prosecution that the deceased Sajjad Ahmad was caused injuries in his bedroom with fire-arm at about 2-30/3-00 a.m. On 6-1-2003, when he was in his bed and to substantiate this allegation the prosecution has cited two witnesses in the F.I.R., namely, Muhammad Afzal (P.W.2) and Nazar Muhammad (given up P.W.). But both are not inmates of the house. Out of these two, one, namely, Nazar Muhammad was given up and the other, namely, Muhammad Afzal (P.W.2) is admittedly permanent resident of Jalalpur Pirwala, which is at a distance of 60/70 kilometers from the place of occurrence, though he has stated that he was temporarily residing at Bahawalpur in the other house of the deceased, where his first wife was putting up but even that residence is about two kilometers away from the place of occurrence; that the reason advanced by Muhammad Afzal (P.W.2), for his presence at the spot was that he was asked by the deceased to remain present in his house as he had suspicion of the elopement of his wife Mst. Rabia-appellant with Yasir-appellant because Sajjad (deceased) had a strong suspicion that she had illicit liaison with Yasir and that Yasir had even a quarrel with him and extended him threats and also made obnoxious calls. The reason stated by this witness, is not only improbable rather impossible because elopement, in this way, cannot be stopped because Mst.
Rabia-appellant, even as per prosecution's case, was not in confinement of the deceased; that this witness (P.W.2) has made a number of dishonest improvements to justify his presence at the spot and to bring his statement in line with the prosecution story; that in his statement before the police, the reasons given for his presence in the house of the deceased are different from those which he stated before the Court; that in his statement recorded by the police (Exh.DA), he has not stated anything regarding disappearance of Sajjad, but in the Court he has stated that Sajjad (deceased) was also taken away by Yasir and Mst. Rabia-appellants; that this witness has stated that after the incident, he along with Nazar Muhammad (given up P.W.) was locked in the room by the appellant and on his hue and cry the door was opened by one of the children of the deceased, but the name of the child has not been disclosed and even during the investigation, the police has not recorded the statement of any one of the children, who were the most natural witnesses, sleeping in the adjacent room having a door with the bed room of Sajjad (deceased) and even as per prosecution witness the door remained opened during the incident; that the complainant (P.W.1) has admitted in his cross-examination that the deceased had five children from Mst. Rabia and all were putting up with her in the same house, where the occurrence allegedly took place and eldest amongst them was not less than eleven years of age and, as such, the statements of the children of the deceased could be the best evidence for the prosecution but the same has not been recorded during the investigation or produced before the trial Court, therefore, an adverse inference in view of Article 129(g) of the Qanun-e-Shahadat Order, 1984 can be drawn against the prosecution; that statement of Muhammad Afzal (P.W.2) is of such a nature that it should be brushed aside straight away, but if it is to be considered, even then it must be corroborated by other circumstances of the case, which are absolutely missing in this case as there is no corroboration rather his statement as in direct conflict with the medical evidence available on the record because he has stated that Yasir-appellant fired three shots, first landed on left side of the neck of the deceased, second on his right arm and the third on his left arm, whereas as per postmortem report (Exh.PN) there are five firearm wounds on the person of the deceased, which are on the temporal region, neck and both arms and wounds on the neck are exit wounds and are result of the injury which is on the left temporal region of the deceased; that even recovery of piston (P19), taken into possession through memo Exh.PK is of no avail to the prosecution as empties were recovered from the spot on 6-1-2003, whereas pistol was allegedly recovered on 12-1-2003 and both the items were sent to the Firearm Expert together on 18-r-2003, therefore, positive report of the Firearm Expert (Exh.PZ) carries no value and places reliance on the cases of Ali Sher v. The State (2008 SCM R 707) and Mushtaq and 3 others v. The State (PLD 2008 SC 1).
' The learned counsel further submitted that the prosecution case is that the dead body of the deceased was lying in the Diggy of the car at village Feroza, which is admittedly at a distance of 120 kilometers from the place of occurrence and it was witnessed by Atta Muhammad (P.W.6), but the testimony of this witness does not inspire confidence because of the following reasons:- ' He has stated that Feroza is a town and the Police Post is at a distance of one kilometer from the place where the car was struck, but surprisingly there is no mention of this incident or availability of the dead body in the car in the police record of said Police Post despite the fact that this witness (P.W.6) has stated that one person in plain clothes visited the spot, inspected the dead body, went back and then came again, but the record produced by Ghulam Mohy-udDin, S.-I. (C.W.1) of the relevant Police Post shows that no such incident was reported to the police.
' The learned counsel also submitted that the motive part of the prosecution story is that Mst.
Rabia-appellant was having illicit liaison with Yasir-appellant and the relevant witness in this respect was Mehtab Ahmad-complainant (P.W.1), brother of the deceased, who categorically stated that he never saw Yasir-appellant in the house of the deceased and he has no direct information about their illicit relations, and he was told by his father and that he never saw Mst.
Rabia and Yasir-appellants together, but, the father was not cited as a witness and his statement was not even recorded by the police, therefore, there is no evidence on the record, which could prove the motive part of the occurrence. Reliance in this behalf has been placed on the case of Noor Muhammad v. The State and another (2010 SCMR97).
' The learned counsel submits that even the statement of Atta Muhammad (P.W.6), if accepted, does not connect the appellant with the commission of the main offence. Reliance in this behalf has been placed on the case of Zulfiqar Haider v. State 2003, PCr.LJ 1036.
' The learned counsel argued that the prosecution has produced another witness, namely, Sajjad Hussain, S.-I. (P.W.11), who claims that he, on the asking of the Investigating Officer, went to the Feroza along with Sajid Mehtab (P.W.3), took the dead body into possession and seized the car under section 550 Cr.P.C., came back to Bahawalpur and handed over the same to the Investigating Officer, but to the contrary, the Investigating Officer (P.W.10) has not said a single word that he has deputed the said witness to go to Feroza and his evidence is also contradicted by the fact that Sajid Mehtab (P.W.3) has not stated that he accompanied this witness (P.W.11) to Feroza and there was no occasion or jurisdiction for this witness for taking the car into possession under section 550 Cr.P.C. At the end the learned counsel submits that the prosecution case is fully of contradictions and doubts, therefore, Yasirappellant is entitled to the benefit thereof.
11. The learned counsel for Rabiaappellant in Criminal Appeal No, 200 of 2004/BWP while adopting the arguments addressed by Mr. Azam Nazeer Tarar, learned counsel for Yasir-appellant, adds that the prosecution case is that Mst. Rabiaappellant had illicit liaison with her co-accused Yasir- appellant but there is no legally admissible evidence in this respect on the record as none of the witnesses has stated that he ever saw Mst. Rabia with Yasir-appellant in an objectionable condition, so much so, two witnesses, namely, Mehtab Ahmad (P.W.1) and Muhammad Afzal (P.W.2) have not even stated that they saw Yasir and Mst. Rabia together in the house of Sajjad Ahmad deceased, where the occurrence allegedly took place; that the allegation against Mst. Rabia, as per statement of Muhammad Afzal (P.W.2), is that when Yasir-appellant fired at Sajjad Ahmad deceased, she was holding him from his legs, which is not believable as for causing a firearm injury, there is no need to hold a person from his legs; that there is only one statement in this case regarding the occurrence and that is of Muhammad Afzal (P.W.2), who is admittedly related to the deceased and is also his employee; that blood stained dopatta (P14), Shalwar (P15), shirt (P16), bed sheet (P17) along with a cover of pillow (P18) were taken into possession through memo Exh.PJ on 7-1-2003, from the same house (where the occurrence allegedly took place) at the instance of Mst.
Rabia is not believable because it was taken into possession from the same house, wherefrom certain articles were taken into possession by the Investigating Officer on 6-1-2003.
' The learned counsel for both the appellants lastly prays for acquittal of the appellants keeping in view the facts and circumstances revolving around the matter and the evidence available on the record.
12. The learned Additional Prosecutor General Punjab assisted by the learned counsel for the complainant opposes these appeals on the grounds that the prosecution has proved the motive part of the story because Mehtab Ahmad (P.W.1) has clearly stated that Yasir-appellant had developed illicit liaison with Mst. Rabia and his brother Sajjad Ahmad had suspicion thereof; that it is also mentioned in the statement of Mehtab Ahmad-complainant (P.W.1) that in his presence his brother reprimanded Yasir by stating that "you are Baigharat and you should not have any connection with Mst. Rabia", therefore, the contentions of the learned counsel for the appellants that there is no evidence of motive is against the record; that the reasons given by Muhammad Afzal (P.W.2) for his presence in the house where the occurrence took place is natural and in accordance with the prevalent customs of the area; that presence of Muhammad Afzal (P.W.2) in the house of the deceased is probable, if it is seen in the context of the whole scenario as the deceased was receiving obnoxious calls and threats, therefore, in order to protect him and in order to stop the expected elopement of his wife, he asked Muhammad Afzal (P.W.2) and Nazar Muhammad (given up PW) to come to his house and be available at the relevant time and moreover that witness (P.W.2) has no enmity with the appellants to depose falsely against them and in such situation his presence at the place of occurrence, at the relevant time cannot be doubted or disputed; that there is no conflict between the ocular account and the medical evidence as Muhammad Afzal (P.W.2) has stated that Yasir-appellant fired three shots, which hit the deceased on the neck and arms and as per doctor (P.W.5) and postmortem report (Exh.PN) there are three wounds of entry; that the argument of the learned counsel for the appellants that the children of the deceased were not examined is of no avail because it is not the case of the prosecution that the children witnessed the occurrence, and if they were material witnesses, then they could be examined as defence witnesses; that statement of Muhammad Afzal (P.W.2) is very natural and confidence inspiring. He has stated that when he (P.W.2) and Nazar Muhammad (given up PW) were sure that the appellants have gone, they knocked the door, made hue and cry and thereafter the door was opened by one of the children and in his statement before the Court he (P.W.2) has also stated that when he came out, Sajjad Ahmad deceased was not there; that the evidence of Atta Muhammad (P.W.6), cannot be doubted because he is an independent witness having no relation or connection with the complainant and having no enmity towards the appellants. He has categorically stated that he witnessed the dead body of Sajjad Ahmad deceased in the Diggy of a car bearing registration No, BRH-550 and at the relevant time Yasir- appellant was in the car and Yasir (appellant) stated before him that he has committed the murder and thereafter a man from the Police Post wearing plain clothes came there, inspected the dead body and as the case stood already registered at the Police Station Civil Lines Bahawalpur, therefore, no proceedings were conducted at Police Post Feroza; that all the circumstances; if taken into consideration together prove the guilt of the appellants; that the appellants have not produced a single witness to substantiate their stance taken during the cross-examination of prosecution witnesses; that the conduct of Mst. Rabia-appellant is also relevant as occurrence took place in the house, where she was residing with her children but she had not informed any one, which shows that she was involved in this case. In support of his contentions, he places reliance on the cases of Fayyaz Hussain Shah v. The State (2002 SCM R 1848), Muhammad Hanif and another v. The State and another (2002 PCr.LJ 238), Faiz Rasool alias Faisal alias Faizi v. The State (2002 PCr.LJ 551), Ghulam Mustafa v. The State (2003 PCr.LJ 221), Amal Sherin and another v.
The State through A.G. N.-W.F.P. (PLD 2004 SC 371, Gharib Alam alias Gharibu v. The State (2004 SCM R 299), Jawed Malik v. The State (2005 SCM R 49), Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCM R 427) and Mirza Khan and another v. The State (2005 SCMR1110).
13. Mr. Mumtaz Hussain Bazmi, the learned counsel for the appellant (Mehtab Ahmad) in support of Criminal Appeal No,202 of 2004, filed against the acquittal of Muhammad Zafarullah contended that the prosecution has produced sufficient incriminating evidence against Muhammad Zafarullah, who was present at the spot while duly armed though he has not caused any injury either to the deceased or any of the witnesses, but he facilitated the commission of crime by standing in the door intervening the room of the kids and the deceased, therefore, provisions of section 34 P.P.C. Quo said respondent are fully attracted.
14. In support of Criminal Revision No, 102 of 2004/BWP, the learned counsel for the complainant/petitioner contends that since the prosecution has proved its case to the hilt against both the appellants and there was no extenuating circumstances qua the case of Mst. Rabia, therefore, in the circumstances of the case, she deserves maximum punishment as she not only betrayed her husband but also deprived her own children of their father. He places reliance on the case of Muhammad Akram v. The State (2003 SCM R 855).
15. We have heard the learned counsel for both the sides and have gone through the record with their able assistance.
16. In this case, as per prosecution, the occurrence had taken place on 6-1-2003 at about 2-30/3- 00 a.m. In the area of Model Town-C, Bahawalpur and the matter was reported by Mehtab Ahmad- complainant (P.W.1), real brother of Sajjad Ahmad deceased at Police Station Civil Lines, Bahawalpur on the same day at 8-15 a.m. The distance between the place of occurrence and the Police Station was one kilometer.
17. Prosecution case, according to the complainant (P.W.1), was that on receipt of the information regarding the incident he reached the spot and Muhammad Afzal (P.W.2) and Nazar Muhammad (given up PW) narrated before him the story. He has further stated that on 15-1-2003, at about 9-00 p.m., his elder brother (Sajjad) informed Muhammad Afzal, his cousin, and Nazar Muhammad, his uncle, that he was receiving threatening telephone calls with different tunes and voices. He also secretly asked the said two witnesses to stay with him and to sleep in the upper storey of his house in a secret manner. At about 2-30/3-00 a.m., they (Muhammad Afzal and Nazar Muhammad) on hearing some noise from the bedroom on the ground floor came down through the stairs and saw Yasir-appellant while armed with a pistol, 30 bore standing on the head side of Sajjad Ahmad deceased, whereas Mst. Rabia had caught hold of Sajjad Ahmad, Zafar guard (since acquitted) while carrying a rifle was also standing in the door, which connects the room of the children with the room, where the occurrence took place. Within their view, Yasir-appellant fired three successive shots with his weapon at Sajjad Ahmad. The first fire hit him on the left side of his neck, the second shot landed on the left arm and the third struck on the right arm. Yasir-appellant and Zafar (since acquitted) locked them in the store on gunpoint and bolted the door from the outside. When they heard noise of starting of the car, then they made hue and cry and knocked the door with full force, whereupon after some time, one of the child opened the door of the store. According to the complainant, when he reached the spot, the car bearing registration No,550/BRH belonging to the deceased was missing. At that time, Mst. Rabia and Zafar guard as well as Sajjad Ahmad were also not present there. The children were present in the room in semi-sleeping position.
' The motive alleged by the complainant was that the deceased had a suspicion that Yasir- appellant had developed illicit liaison with Mst. Rabia, second wife of the deceased, who reprimanded him (Yasir-appellant) one day before the occurrence i.e, on 5-1-2003 and asked him not to visit his house again by stating that he is a "Baighairat" and he should not have any connection with his wife Mst. Rabia. According to the complainant (P.W.1), it was all done in his presence and also in the presence of others, whereupon an altercation took place and abusive language was exchanged between them. Thereafter, Yasir-appellant left the shop of the deceased in an angry mood and in the night i.e, on 6-1-2003 at about 2-30/3-00 a.m., the alleged occurrence had taken place.
18. Admittedly, the complainant (P.W.1) was not present at the time of occurrence. He got registered the F.I.R. On the basis of informations furnished to him by Muhammad Afzal (P.W.2) and Nazar Muhammad (given up P.W.). The prosecution's case is that the occurrence took place at 2-30/3-00 a.m. On 6-1-2003, whereas the application for registration of case was admittedly submitted by the complainant on 6-1-2003 at 8-15 a.m. At the Police Station, which means that the case was registered five hours after the occurrence. The reason given for his delay is that two witnesses, namely, Muhammad A Afzal (P.W.2) and Nazar Muhammad (given up P.W.), who were present at the relevant time at the place of occurrence, were locked in the store by Yasir-appellant and Zafar (since acquitted) and were released when the door of the store was opened by one child at 6-00 a.m. It has been noted that in the F.I.R., it is mentioned that Sajjad Ahmad received firearm injuries and he was taken along by the appellants but there is no mention that he died because of the injuries but surprisingly the case was registered under section 302/34 P.P.C., therefore, in this case, possibility of 'deliberations and consultations prior to the registration of the case cannot be ruled out.
19. Now coming to the merits of the case, it has been noticed that the prosecution in order to prove its case has produced eleven witnesses, out of whom Mehtab Ahmad-complainant (P. W. 1), Muhammad Afzal (P.W.2), Sajid Mehtab (P.W.3), Dr. Rao Muhammad Javaid Akhtar (P.W.5), Atta Muhammad (P.W.6), Abid Akhtar, Inspector/S.H.O. (P.W.10) and Sajjad Hussain, S.-I. (P.W.12) are relevant.
'Mehtab Ahmad (P.W.1) is complainant of the case. He narrated the story of the occurrence mainly relying on the basis of informations, furnished to him by Muhammad Afzal (P.W.2) and Nazar Muhammad (given up P.W.). Admittedly he was not present at the spot. He, at the most, be a witness of motive, but even in this respect, in his cross-examination, he has stated as under:- "...Yasir accused present in the Court did not visit the house of Sajjad in my presence. I did not see the present accused Rabia with Yasir. I was informed by my father about the suspicion which was going to be casted by the deceased at the relationship of present accused Rabia with the accused Yasir. My brother Sajjad did not disclose about this suspicion before me. My father disclosed about this suspicion a month or two months prior to this occurrence. My deceased brother did not sent her out from the house prior to this occurrence due to this suspicion".
Therefore, his statement does not inspire confidence even qua motive part of B the story. It is settled law that if the motive is not proved, then ocular evidence required to be scrutinized with great caution. Reliance in this behalf is placed on the case of Noor Muhammad v. The State and B another (2010 SCM R 97), wherein it has been held as under:-- "...Thus, the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar 1979 SCM R 214 that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State 1971 SCM R 432 it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State PLD 1976 SC 629 it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story".
20. The next evidence is of Muhammad Afzal (P.W.2), who has given a novel reason for his being present at the spot. He stated as under:- "On 5-1-2003, after Easha Wela Sajjad came in the house and stated to me secretly that accused Yasir came at my shop at evening time and quarrelled with me later on he also received obnoxious calls with different tunes and voices. He also stated to me that he got the suspicion of illicit relations of Mst. Rabia Bibi with Yasir. He also stated to me that they had made a plan to elope. He also stated to me that Yasir exposed his intention in this respect on the telephone. He also stated to me for sleeping at the upper storey along with Nazar Muhammad. He also stated to us that Rabia Bibi accused present in the Court would do any act he would make a noise and you should step down. I and Nazar Muhammad went on the upper storey in a room. At about 2-30/3-00 a.m., we heard a noise in the room of Sajjad. We came down through the inner stairs in the room. Rabia accused present in the Court caught hold the legs of Sajjad. Yasir accused while armed with pistol made a fire on the left side of neck of Sajjad. He again made a fire with his pistol on the left arm. He inflicted third fire on his right arm. Nazar Muhammad and I made the hue and cry. Accused Zafar present in the Court was present in the room of children and he made the threat to us if we made a hue and cry he would murder us. All the accused persons at the pointation of weapons booked us in a store room situated in front of bed room. We heard the different voices. We presumed that the accused persons were eliminating the signs of commission of offence. After two/2-30 hours we heard the voice of starting of the car and opening of gate. We got sure that the accused persons have left the house. We knocked the door with force. One of the children from the room unbolted the door of store from out side. We came out from the room. All the accused persons present in the Court were not present. Sajjad who received the injuries was also not present there. Nazar Muhammad PW asked to me to furnish the information to the brother of Sajjad, Mehtab Ahmad.
Informed him in his house. Mehtab came at the spot. We narrated all the facts to him and he left us and proceeded towards the P.S."
'The first point, which is to be considered, is whether the reason for his presence at the spot is probable and believable by a prudent man. If Mst. Rabia (appellant) wanted to elope, how she could be stopped? It is not the case of the prosecution that Mst Rabia (appellant) was in confinement or under some restraint of the deceased and for that reason this witness was called to watch the expected elopement, therefore, the reason given by the witness to justify his presence in the house, where the occurrence allegedly took place does not appear to be plausible. Moreover, his presence at the place of occurrence is also belied by the other circumstances because it is the case of the prosecution that the deceased Sajjad and Mst. Rabia (appellant) were in one room of the house and in the adjacent room, children were also sleeping but surprisingly no child woke up during the firing or commotion although there was a door between their bedrooms which, as per P.W.2 was opened. Admittedly, Muhammad Afzal (P.W.2) is a chance witness. The question of placing reliance on the testimony of a chance witness came up for consideration in the case of Zafar Hayat v. The State (1995 SCM R 896), wherein it has been held as under:-- "As regards P.W.8 the admitted fact is that he is a chance witness. He lives about 18 km away and met P.W.7 at the bus-stop in the late hours and decided to accompany him to his village to enquire about his U.S.A. Visa from one Raja Abbas whom he had paid money for that purpose which according to P.W.8 was returned by him. He had also spoken about the light of the bulb in which he has identified the appellant. From his statement, it is clear that the purpose for visiting Chak No,58 along with P.W.7 and the deceased at the dead of night is not at all convincing. There is no evidence to corroborate his testimony and, therefore, it has to be excluded from consideration".
Apart from above, the presence of the children is not disputed and rather it is case of the prosecution that children were present there. The complainant (P.W.1) in his cross-examination has given the ages of the children and the relevant portion is reproduced as under: "Five children were born during the marriage of Rabia and Sajjad. They are namely Ramsha aged 11 IE years, Meshaal aged 8/9 years old, Sajawal aged about 7/8 years, Kinza aged 6/7 years old, Talha aged 5/6 years old".
'So the children were not so small and their statements could have been recorded, but they were neither associated with the investigation nor the prosecution has produced them during the trial despite the fact that they were most natural witnesses.
21. Another circumstance, which makes presence of this witness (P.W.2) at the spot doubtful is that he has stated that Yasir-appellant fired three shots, which hit Sajjad (deceased) him on left side of his neck, left arm and right arm, but as per medical evidence furnished by Dr. Rao Muhammad Javaid Akhtar (P.W.5) there were seven injuries on the person of the deceased, out of which three were entry wounds and three were exit wounds and one was abrasion and those are such as:-
(1) There was an oval shape penetrating wound 1 cm x 0.8 cm x blind deep with inverted margins and blackening around the wound and area of scorching on the entro sperior . Aspect of the wound situated on the left temporal of the head just medial to tragus of left ear (entry wound). On dissection of injury, clotted blood was present in the underlying muscle left temporal bone was damaged. On further dissection the posterior part of left orbit was damaged. Right part of the soft palate was having a hole. Right carotid artery was ruptured. The projectile travelled from supero lateral part of left side of face towards the infero lateral part of right neck upper part.
(2) There was an oval shape lacerated wound 2 c.m. x 1.5 c.m. Blind deep with everted margin's on the right upper neck, 3.5 cm below right ear lobule. On dissection clotted blood was present in the underlying muscles. Right carotid vessels were damaged. The injury was continued with injury No,1 (exit of injury No,1).
(3) There was an oval shape lacerated wound 1 cm x 1.5 cm x skin deep, 1. c.m. Lateral to injury No,2 on the left upper neck with everted margins (continuation of injury No,2).
(4) There was an oval shape penetrating wound 1 cm x 0.75 cm x blind deep with inverted margins and blackening around with area of scorching on the supero lateral aspect of left upper arm 2.5 c.m. Below tip of left shoulder (entry wound). On dissection of wound clotted blood was present in the underline muscles, under line bone was fractured. On further dissection left upper lobe of the lung was damaged with semi clotted blood present in the left thoracic cavity. Right lung upper lobe was also damaged. The distorted bullet recovered from the posterior aspect of right shoulder on medical aspect. Second rib on the lateral aspect was fractured.
(5) There was an oval shape penetrating wound 1 c.m. x 0.8 cum x muscle deep with blackening and inverted margins with area of scorching on the infero lateral aspect situated on the anterolateral aspect of right upper arm 6.Cm below the tip of right shoulder (entry wound).
(6) There was an oval shape lacerated wound 1.2 c.m. x 1.00 c.m. x muscle deep on the posteral lateral aspect of right upper arm with everted margins at the same level of entry. This was exit wound of injury No,5, on dissection of injury Nos.5 and 6 clotted blood was present in the underline muscle with underlying bone healthy.
(7) There was an abrasion (pressure impact) measuring 3 c.m. x 2.5 on the lateral aspect of right upper arm on dissection clotted blood present in the underline muscle with underline bone healthy.
It is clear from the above that there was no entry wound on the neck of the deceased. 'Thus, there is a clear contradiction between the ocular account and the medical evidence. This witness also made dishonest improvements in his statement before the Court as in his statement recorded by the police (Exh.DA), he has not stated anything regarding disappearance of Sajjad but in the Court he has stated that Sajjad (deceased) was also taken away by Yasir and Mst. Rabiaappellants. He was duly confronted with his previous statement (Exh.DA).
' Because of the above stated circumstances and reasons, no reliance can be placed on the statement of this witness.
22. In this case, crime empties and the weapon of offence i.e, pistol (P19) were taken into possession by the Investigating Officer on 6-1-2003 and 12-1-2003, respectively, but both the items were sent to the Forensic Science Laboratory for G comparison on 17-1-2003, as is clear from the statement of Shah Zarin, MHC (P.W.8). Thus, although there is a positive report of the Forensic Science Laboratory, but it has no evidentiary value. Reliance in this behalf can profitably be made to the cases of Ali Sher and Mushtaq (Supra). In Ali Sher's case (2008 SCM R 707), it has been held as under:-- " The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the Police Station and having been sent to the F.S.L. Along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destrqs evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony".
'In Mushtaq's case (PLD 2008 SC 1), the Hon'ble Supreme Court of Pakistan proceeded to observe that the positive report of Forensic Science Laboratory cannot be taken into consideration for the simple reason that crime weapon and empties were sent together to the Forensic Science Laboratory.
23. The prosecution has produced another witness, i.e, Atta Muhammad (P.W.6), who claims; that on the fateful day, he was going towards Shandar Petrol Pump while riding on a motorcycle, when a car bearing No, 550 passed him in a high speed. There was turning at some distance and the driver could not control the car, which went astray in a ditch (Khataan). Jam Mustafa and some other persons attracted to the spot. He along with others drew the driver from the car and inquired from him, who told his name as Yasir son of Muhammad Ashraf, a retired Inspector Police and that he is resident of Model Town-C, Bahawalpur. The front wheel of the car from driver side was punctured. They offered him assistance in changing the wheel and on their asking for getting the tool (Pana), he became perplexed and tried to run away, but they apprehended him. On their asking, he told that the dead body of Sajjad Sunara was lying in the diggy. The appellant confessed his guilt before this witness (P.W.6) that he has committed the murder of Sajjad deceased with the help of his wife Mst. Rabia and Zafar. According to this witness, he after apprehending the appellant sent a message to Police Post at Feroza. Thereafter, one person in the civilian dress came there, opened the Diggy, saw the dead body lying therein. The said person went to the police post and again came at the spot after consuming one hour and informed them that he has already informed at Bahawalpur in respect of the dead body, where the case has been registered and the police would come soon. The statement of this witness is also belied by the circumstance. He has stated that Police Post is at a distance of one kilometer from the place where the car was parked and a person from the Police Post came there and inspected the dead body, but surprisingly there was no entry in the record of the relevant Police Post regarding this incident as is clear from the documents, i.e, copies of Register Roznamcha, dated 6-1-2003 and the log book of the same date (Exhs.CW1/1 & CW1/2) produced before the Court by Ghulam Mohy-ud-Din, S.-I. (C.W.1).
24. There is another witness, namely, Sajjad Hussain, S.-I. (P.W.11), who claims that on 6-1-2003, he went to Feroza, where he met Atta Muhammad and Ghulam Mustafa P.Ws. Yasir-appellant along with car bearing registration No,550/BRH was also there. Atta Muhammad and Ghulam Mustafa P.Ws. On his introduction handed over to him Yasir-appellant and on opening the Diggy of the car, dead body of Sajjad Ahmad was found, which was wrapped in a cover of the car. He took the car into possession under section 550 Cr.P.C. And brought the appellant as well as the dead body along with the car at Model Town-C, Bahawalpur and handed over the appellant, dead body of the deceased and car to Abid Akhtar, Inspector/S.H.O. But his statement is belied from the fact that Abid Akhtar, Inspector/S.H.O. (P.W.10), who is the Investigating Officer of the case, has not stated that he deputed this witness for the job, which he did. Moreover, Sajid Mehtab (P.W.3), who as per Sajjad Hussain (P.W.11) accompanied him to Feroza, has made dishonest improvements while appearing before the Court. During his cross-examination at page-67 of the paper book he stated as under:- "Police recorded my statements for six time. I did not mention in my statements before the police in all my statements that I went with the police at Feroza. I did not mention in my statement that when we reached at Feroza there was a crowd and Yasir accused was apprehended by the public there. I did not get recorded in all my statements that Car No,550/BRH was also available at Feroza and after opening the diggy dead body of Sajjad was lying there and the I.O. Prepared necessary papers there i.e,Feroza. Similarly I have not got recorded in my statements that the police took the dead body as well as car and came back at Bahawalpur".
'It is also not understandable as to how this witness (P.W.11) took the car into possession under section 550 Cr.P.C. When it was not within the jurisdiction of his Police Station, rather it was in another district i.e, Rahimyar Khan, therefore, his evidence is of no avail to the prosecution. Even otherwise, it is settled law that when the ocular account is not reliable then merely on the basis of supporting pieces of evidence, conviction cannot be made. Reliance has been placed on the case of Riaz Ahmad (Supra) (sic), wherein the Hon'ble apex Court has observed as under::- "The prosecution also produced the positive F.S.L. Report meaning thereby the crime empties secured from place of incident matched with the gun recovered from the possession of the appellant. This being a corroborative piece of evidence, which by itself is insufficient to convict the appellant in absence of substantive piece of evidence. Reference is invited to Ijaz Ahmad v. State 1997 SCM R 1279. It was held in the case of Asadullah v. Muhammad Ali PLD 1971 SC 541, that corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. In the case of Saifullah v. The State 1985 SCM R 410, it was held that when there is no eyewitness to be relied upon then there is nothing, which can be corroborated by the recovery. It has been held in the case of Riaz Masih v. The State 1995 SCM R 1730 that recovery of crime weapon by itself is not sufficient for conviction on murder charge. In the case of Siraj v. Crown PLD 1956 Federal Court 123, it was held that recovery of the handle of blood-stained hatchet at the instance of the accused, when other evidence was disbelieved, then it was not enough for conviction".
25. It is well settled, that the prosecution has to prove its case beyond any shadow of doubt and it is not for the accused to show that he was innocent and if there are doubts in the prosecution case, the benefit thereof will go to the accused, who is entitled to the same as a matter of right and not as a grace. Reliance in this behalf can profitably be made to the case of Muhammad Akram v. The State (2009 SCM R 230), wherein the Hon'ble apex Court proceeded to observe as under: "13....It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
26. The precedent cases cited by the learned counsel for the complainant are distinguishable on the factual as well as legal plane and are of no avail to him.
27. Therefore, considering the case of the prosecution from all the angles, we are of the view that the same is full of doubts and accordingly following the principle of K law in the afore-cited judgment, we extend the benefit of doubt to the appellants in both the appeals and by setting aside their conviction and sentence acquit them of the charge. Yasir (appellant in Criminal Appeal No,173/2004), who is in custody, is directed to be released from jail forthwith, if not required in any other case, whereas Mst. Rabia (appellant in Criminal Appeal No,200/2004) is on bail and stands discharged of her bail bonds. Both these appeals stand allowed.
28. Death sentence awarded to Yasirappellant by the learned trial Court is NOT confirmed and Murder Reference is answered in the negative.
29. Insofar as Criminal Appeal No,202/2004/BWP and Criminal Revision No,102/2004/BWP are concerned, the same are dismissed in view of the observations made hereinabove.