Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 404 of 2004 filed by Muhammad Ramzan appellant, who was convicted and sentenced by learned Addl: Sessions Judge, Rawalpindi vide impugned dated 31.7.2004 Under Section 302 (b) PPC to Death penalty two times for both murders in a case bearing FIR No, 95 dated 27.04.2002 offence under Sections 302/324 PPC registered at Police Station kallar Syedan District Rawalpindi. Murder Reference No, 759 of 2004 for confirmation or otherwise of death sentence of the appellant and Criminal Revision No, 166 of 204 filed by the complainant shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Ghulam Sarwar complainant are that on 27.4.2002 at about 1.30 p.m. he alongwith his sister Mst. Jamila Begum (deceased) and their brother Tariq Mahmood were sitting on the cots lying under the tree in the Courtyard of their residential house and were taking tea. Muhammad Ramzan (accused) his Chachazad to whom Mst. Jamila (deceased) had married and the accused had divorced her 8/9 years before. The accused as well had been living in the same Havaili/house and the Courtyard of the accused and the complainant party is common. The accused appeared at 11.30 a.m., from his room having rifle .8 mm with him.
The complainant caught sight of him and he warned his sister Jamila and brother Tariq Mehrnood.
At the same time Manzoor Hussain (PW) s/o Noor Khan Caste Bangial r/o the same village was standing at the gate of the house of Muhammad Rasool. The accused Muhammad Ramzan fired one after the other four shots, one of which hit at the left shoulder of Mst. Jamila Begum and she fell down on the cot. Another shot fired by the accused Ramzan hit at index finger of the complainant's right hand and caused a trivial injury. The complainant and his brother Tariq then ran into adjacent house of Abdul Khaliq to save their lives. The said Abdul Khaliq s/o Noor Khan caste Bangial was then lying on a cot. He got up and attempted to preclude the accused Ramzan, but the accused fired successive four shots, the first of which hit at the right side of chest of Abdul Khaliq, second shot hit at outer side of his right thigh, third shot hit at inner-side of his right calf. Due to such three shots fired by the accused the said Abdul Khaliq succumbed to the injures at the spot. On hearing reports of firing many people male and female gathered there and the accused Ramzan raising his rifle high ran away towards Eastern side of the village. The motive as narrated in the FIR is that the deceased Mst. Jamila had two daughters from the loins of Muhammad Ramzan accused and a suit for maintenance allowance of such daughters' was pending disposal in the Court, which annoyed the accused and he launched a murderous attack on the complainant and others and caused murder of Mst. Jamila and Abdul Khaliq. Such statement under Section 154 Cr.P.0 is Ex.PJ.
3. The investigation of this case was taken over by Malik Muhammad Afsar Inspector PW-18. He recorded the statement of Ghulam Sarwar who was injured during the occurrence and sent his statement to the P.S. for recording of formal FIR. He sent Ghulam Sarwar injured to the hospital for medical examination. He inspected the place of occurrence and took into possession blood- stained earth from the place of occurrence where the dead body of Mst. Jarnila was lying and after that from the place where the dead body of Abdul Khaliq deceased was lying. He also took into possession four empties from the place of occurrence from where Mst. Jamila was murdered and four empties where Abdul Khaliq was murdered vide memo. EX P.D. and Ex P.B respectively. He sent both the dead bodies to the hospital Kahota for post-mortem examination. He prepared the inquest reports of the dead bodies of both the deceased vide Ex PP, and Ex PR respectively. He prepared the site-plan Ex PT. On 03.05.2002, he arrested the accused, who got recovered his N.I.0 No, 214-63-323577 Ex P-22, one currency note valuing Bs. 500/- Ex P-23, two keys P-24/1-2 vide recovery memo. Ex P.L. During the remand, the accused got recovered pistol .30 bore P-30, which was taken into possession vide recovery memo. EX P-F. He also got recovered Rifle .8 mm P-9 alongwith two magazine P-10/1-2 on the pointation of the accused vide recovery memo. Ex P.E. He recorded the statements of PWs and after completion of formal investigation, the accused was sent to face the trial.
4. At the trial, the prosecution in order to prove its case produced 18 witnesses in all, thereafter, learned SPP after tendering in evidence report of Chemical Examiner Ex.PV, report of Serologist Ex.PX and that of F.S.L Ex.PY closed the prosecution case, then, the statement of the accused was recorded u/S. 342 Cr.P.C. in which he pleaded false implication. However, after conclusion, of trial, the appellant was convicted and sentenced as mentioned above.
5. It is contended by the learned counsel for the appellant that at the time of occurrence the appellant was not in proper mental position and in this regard he has produced Ex.DA/1 and Ex.DB; that the learned Trial Court has relied upon Ex.C-1; that the board which had examined the appellant did not belong to psychiatry department; that the time of occurrence is not 11.00 am; that in the post-mortem report of Mst. Jamila Begum Ex.PM in column "Examination of body" there is cutting about the date and time. Then he referred to Page-155 and submits that Ex.PJ/2 post- mortem report of Abdul Khaliq bears interpolation in the date in the column "examination of body" and also in the column of death. He referred to inquest report of deceased Mst. Jamila Bibi Ex.PP Page 170 and Column Nos, 22 and 23 and submits that those are blank; that Column Nos, 22 and 23 at Page 175 inquest , report of deceased Abdul Khalid Column Nos, 22 and 23 are blank. Then he has referred to report of Forensic Science Laboratory Ex.PY, and submitted that it is manoeuvred. one. He further submits that if both the versions one put forth by the prosecution and other brought forward by the appellant are put in juxta position, the case-of appellant seems to be more plausible and convincing one.
6. On the other hand, learned DPG assisted by learned counsel for complainant submits that it was a broad-day-light occurrence; that presence of eye-witnesses at the place of occurrence was natural; that both the eye-witnesses have got no previous enmity with the appellant; that besides Manzoor Hussain complainant PW-8, Ghulam Sarwar PW7 injured witness and the defense has himself suggested that he suffered injury during firing; that ocular account is corroborated by medical evidence; that 8 empties were found at the spot; that rifle was licensed rifle of accused and same was admitted by him; that there is no discrepancy in the statements of eye-witnesses; that the suggestions put by the defense to the eye-witnesses are bald suggestions; that onus lays on the appellant to prove that he was mentally deranged at the time of occurrence. Reliance has been placed upon 2005 Crl.L.J.1864 (DB). Learned counsel submits that the appellant made an application to the Court on 13.11.2002 for medical examination and report of which came on 17.12.2002 and in the medical report it was stated that the appellant was perfectly alright. Then another application was submitted, Board was constituted and the report in this regard is Ex.C/1 at Page 186 and the Board was of the opinion that on current mental state examination there is no evidence of any mental illness"; that from the very start of trial till the end of same, the appellant was capable to defend himself; that there is no evidence on the record to the effect that at the time of occurrence the appellant was insane person; that the prosecution has proved its case beyond any shadow of doubt; that non-mentioning of articles in Column Nos, 22 and 23 of inquest reports is not requirement of law. Reliance is placed upon 2001 SCM R 241.
7. We have heard the learned counsel for the appellant at great length and gone through the impugned judgment.
8. Occurrence in this case has taken place on 27.4.2002 at 11.30 a.m. Complaint was recorded at the spot by the I.O. at 1.30 p.m. after gaining information and formal FIR was recorded at the Police Station at 2.15 p.m. There are two deceased Mst. Jamila Begum and Abdul Khaliq. It may be mentioned that Mst. Jamila Begum is ex-wife of appellant. Muhammad Ramzan and he had divorced her 8/9 years prior to the occurrence. There are two eye-witnesses of the occurrence namely Ghulam Sarwar PW.7, who also claims to be injured in this occurrence. Manzoor Hussain PW-8 is the brother of Abdul Khaliq deceased. From the place of occurrence dead body of Mst.
Jamila Begum and 4 crime empties of .8 mm were recovered and from the place of occurrence where Abdul Khaliq had been murdered, 4 empties of .8 mm were recovered. Appellant was arrested on 3.5.2002 and .8 mm rifle was recovered on 5.5.2002. There is report of Forensic Science Laboratory Ex.PY which is stated to be positive in nature. In our considered opinion, the case hinges on the medical evidence and ocular account which we are going to discuss below. PW-9 Dr. Sajjad Hussain Raja had conducted postmortem examination of the dead body of Abdul Khalid deceased on 27.4.2002 at 3.30 p.m. He has given time between injury and death 1 to 10 minutes. We see column of death, wherein the date is visible as 27.4.2002 and some interpolations have been made but no time of death has been given. As far as column of "examination of body" is concerned, again there is interpolation in the date 27.4.2002. However, time of examination of body is 3.30 p.m. The important point in this case is duration given by the doctor between death and post-mortem i,e, 2 to 10 hours. If we would presume the time between death and post-mortem as 10 hours, then occurrence could not have taken place at 11.30 a.m., which prosecution wants us to believe. Same is the case about the postmortem report of Mst. Jamila Begum which is at Page 163 Ex.PM. It was the case of prosecution that police came at the spot at 1.30 p.m. and statement was completed by the I.O. after recording statement of Ghulam Sarwar PW.7. In this case in column "examination of body" some interpolations has been found and the Doctor has opined that time between injury, and death is 2 to 10 hours. If the post-mortem had taken place of both the deceased at 3.45 p.m., then the time should be 4 to 6 hours but the time is 2 to 10 hours and according to medical jurisprudence two hours on either side can be extended which also does not fit in with the time of occurrence which is 11.30 a.m. Now we go through the inquest report. In column No 3 of inquest report of Mst. Jamila Begum where it is written " {{URDU TEXT}} no time has been given, although it has been claimed by the I.O. that he completed the statement of complainant Ghulam Sarwar at 1.30 p.m. If he came to know about the death well in time then he should have given the time at 1.30 p.m. but he did not give the time. The same is the position in the inquest report of Abdul Khaliq Ex.PR. It is rightly pointed out by the Learned counsel for the appellant that column No, 22 and 23 in both the inquest reports are blank.
9. Now, according to the FIR, the appellant fired 4 shots simultaneously and one fire hit Mst. Jamila Begum on his left arm and one fire hit Ghulam Sarwar PW-7 on finger of right hand. Now, again we go through the brief facts of inquest report of Mst. Jamila Began in the inquest repot it is mentioned that {{URDU TEXT}} It means that she received more than one fire-arm injuries but there is only one fire-arm injury on her person.
10.Now we take up the injury of Ghulam Sarwar complainant PW-7, which claims himself to be injured at the spot. We would like to re-produce his injury which has been given by PW-16 Dr. Shahzad Hussain as under: "A super ficial laceration on terminal phalanx of right index finger posteriorly laterally.
Outer aspect near to bed of nail 3x4 cm x 0.2 cm with no bleeding and mildly tender."
When cross-examined he replied Such type of injury may be caused by any sharp edged object, just like a piece of iron". He further stated that possibility of self infliction cannot be ruled out in this case. The duration of injury given by the doctor also shows that occurrence had not taken place at 11.30 a.m. Doctor had examined him on 27.4.2002 at 4.00 p.m. Duration between injury and examination has been given as 8 hours, which means that occurrence had not taken place at 11.30 a.m. and then there is no fire-arm injury on his person. It is correct that learned counsel for the complainant while arguing the case has submitted that Ghulam Sarwar complainant had also received fire-arm injury but in medico legal report there is no fire-arm injury. We cannot maintain conviction on capital charge on single suggestion put by defense counsel when the case is otherwise not proved by the prosecution.
We take up the case of Forensic Science Laboratory, wherein it was stated that it was positive report. Dates are very important. Occurrence in this case took place on 27.4.2002. Appellant was arrested on 3.5.2002. According to prosecution 8 crime empties of .8 mm were taken into possession on 27.04.2002 and those were sent to Laboratory on 15.5.2002 i,e, after 10 days. Weapon of offence which was recovered on 5.5.2002 and crime empties which were recovered on 27.4.2002 remained with the Police Moharrir together and the rifle was sent to the Laboratory on 20.5.2002. In the above mentioned circumstances, report of Forensic Science Laboratory cannot be relied upon.
It is correct that it is a double murder case but we have to see that no innocent person is punished without committing any offence and the prosecution has to prove its case through un- impeachable source and beyond any shadow of doubt, which is lacking in this case. The version put forth by the defense is much more plausible that there were illicit relations between Mst. Jamila Begum and Abdul Khaliq and on the day of occurrence Abdul Khaliq was seen coming out of house and both were killed.
11.We may also discuss here the statement of Manzoor Hussain PW-8. He says that he is a shop keeper and his shop opens at 8.00 am. But on the fateful day, he remained in the house till 11.30 a.m. He has given the reasons for being present there by stating that his shop is usually opened at 8.00 a.m. by his servant.
12.For what has been discussed above, while granting benefit of doubt to the appellant, the appeal is accepted, conviction and sentence is set aside. The appellant be released from jail forthwith if not required to be detained in any other case. Death sentence on both counts is not confirmed. The Murder Reference is answered in Negative.
13.Crl. Rev.No, 166-04 is dismissed for the reasons recorded in this Criminal Appeal.