JUDGMENT CH. MUHAMMAD TARIQ, J. This single judgment shall dispose of Criminal Appeals Nos.188 of 2007 and 211 of 2007 filed by accused Muhammad Zahoor and Mst. Asia Kausar respectively against their conviction and sentence as both these appeals arise out of one and the same judgment dated 21-5-2007 passed by Rana Nisar Ahmed Khan, learned Additional Sessions Judge, Rawalpindi who convicted the appellants-accused Muhammad Zahoor and Mst. Asia Kausar under section 302(b)/34, P.P.C. And sentenced to death each, as Tazir with direction , to pay compensation of Rs.2,00,000 each to the legal heirs of the two deceased as required under section 544-A, Cr.P.C. And in default of payment of compensation, to further undergo six months each. Vide the same judgment, both the appellants-accused were also convicted under section 201/34, P.P.C.
And sentenced to 7 years R.I. Each, with a fine of Rs.20,000 each and in default of payment of fine, to further undergo six months' S.I. Each.
2. The learned trial court has sent a Capital Sentence Reference No.333 of 2007 for confirmation of death sentence or otherwise of the appellants-accused, which will also be answered through this judgment.
3. The facts as contained in F.I.R. No.330, dated 7-12-2005, for the offences under sections 302/201/34, P.P.C., registered with Police Station Kallar Syedan, District Rawalpindi at 8-30 p.m. On the complaint of Aftar Ahmed (son of the deceased), the complainant is a labourer by profession and his father was serving as security guard in Atomic Energy Islamabad. On 7-12-2005 at about 4-30 a.m., his father left the house for his duty in routine. Complainant came back to his home in the evening time. At about 4-45 p.m., he received information that dead body of his father is lying in the fields of Sajid Ali. At this information, he along with Muhammad Nazeer son of Ghulab Khan, Raja Hamad Ali son of Said Akbar, caste Gakhar no Bishandot reached in the fields of Sajid. Ali where dead body of his father facing upward was lying. According to the complainant; some unknown culprit or culprits had committed the murder of his father by fire-arm. The complainant averred in the F.I.R. That they had not enmity with anyone.
4. After completion of investigation, the police submitted report under section 173, Cr.P.C. In the learned trial court, copies of challan as required under section 265-C, Cr.P.C. Were supplied to the appellants- accused, the charge was framed against the appellants- accused who denied the charge and professed their innocence. In order to substantiate the charge, the prosecution produced as many as 16 witnesses.
5. During the trial, Aftar Ahmad complainant appeared as P.W.5. And reiterated the contents of F.I.R.
As mentioned above.
6. Pervaiz Iqbal S.-I. (P.W.14.) deposed that after receiving information about the occurrence, he reached in the fields of Sajid Ali, where the- dead body of Shaukat Ali deceased was lying. He took the dead body into possession, prepared inquest report Exh.PE, injury statement/ application for postmortem examination Exh.PD and sent the dead body for autopsy. He secured blood-stained clay vide recovery memo. Exh.PN and after postmortem examination took into his possession the last worn clothes of the-deceased vide recovery memo. Exh.PF. The rough as well as scaled site plans (Exh.PL and Exh.PB) were also prepared. He recorded statements of P.Ws.. Under section 161, Cr.P.C. Remaining investigation was conducted by Muhammad Afzal, S.-I. (P.W.11.) who deposed that he arrested Mst. Asia Kausar on 21-12-2005 from Bishandot and on her disclosure, he took into possession towel P-5, pillow covers P-6/1-3, ladies chaddar P-7 (all blood-stained), one plastic bori P-8 and mobile phone P-9 from the residence of the deceased situated in Dhoke Kalian Dakhili Bishandot vide memo. Ex-PH. He also got Mst. Asia Kausar medically examined and sent her to judicial lockup. P.W.11 further deposed that he arrested Muhammad Zahoor accused on 23-4-2006 and obtained his physical remand or the following day. During the interrogation, on he pointation of Muhammad Zahoor accused, P.W.11. Took into possession- bloodstained any blanket and bloodstained piece of talai (mattress) and pistol along with five live bullets and secured these articles vide recovery memo. Exh.PJ. The .30 bore pistol and bloodstained talai (mattress) were sent to Forensic Science Laboratory, Lahore while bloodstained blanket and bloodstained earth were sent to office of Chemical Examiner for their reports/ analysis. During the investigation, the accused were found guilty and finally report under section 173, Cr.P.C. Was prepared.
7. Dr.Khalid M. Wani THQ Hospital, Kahuta conducted the autopsy of the deceased Shaukat Ali and found following injuries on his person: --
(a) Fire-arm entry wound was 1/2 cm in diameter with surrounding ecchymosis/4 cm from lateral edge of left eye/left temporal region.
(b) Exit fire-arm wound was 2 cm x 1 cm, 2.5 cm behind right mid of ear. Bleeding was present.
(c) Scalp entry and exit wound had bleed, skull, fractured at the side of entrance and also at the side of exit.
(d) Lyrnx and tracheae, blood clots were present. Blood vessels, at the entry side and exit side were damaged. Remaining organs of thorax were found normal.
(e) Blood was present in mouth, pharynx and esophagus. Stomach was normal and healthy and contains liquid diet, full of stomach. Small intestines, contained very little digested food and gases.
Large intestine contained very little digested food and it was full of gases. Urine bladder, normal and healthy but it was full of urine. Remaining organs of abdomen were found normal According to his opinion, the bullet damaged the vital organ i.e. Brain which resulted into brain hemorrhage and the death was immediate in result thereof.
8. During the trial, P.W.7. Zulfiqar Ali stated that he used to go on his duty from Bishandot at about 5-30 a.m. And on the fateful day, i.e. On 7-12-2005, he left his home. During the way, Ajmal Tashneez came across him. He exchanged views with Ajmal Tashneez P.W. Who was going to Rawalpindi.
When they reached near Dhoke Kalian, they saw accused Muhammad Zahoor carrying a person on his shoulder and accused Mst. Asia Kausar was holding hand of accused Muhammad Zahoor.
He further deposed that due to fear, they kept silence and thereafter, he went to Wah Factory. On the same evening, when he came back to his village, he overheard the news of murder of Shaukat Ali. He reached at the place where the dead body was lying and gave aforesaid information to the police. According to him, accused Muhammad Zahoor and Mst. Asia Kausar had illicit relations between them who have cleared their way by murdering Shaukat Ali (husband of Mst. Asia Kausar).
9. P.W.9. Amar Ali deposed that on 18-12-2005, when he was present in the house of Habib Ahmad, accused Mst. Asia Kausar, at about 1-00 p.m., came there and stated that she had developed illicit relations with Muhammad Zahoor accused and few days prior to the fateful day, accused Muhammad Zahoor had proposed her to which she responded that in the presence of her husband, she cannot do so. Thereafter, they planned to kill Shaukat Ali (her husband). According to the plan, Muhammad Zahoor accused came to her house on the mid night of 6/7-12-2005, they entered into the bedroom of Shaukat Ali and bolted it from inside, Muhammad Zahoor accused flapped the pistol with the towel and fired on the head of Shaukat Ali who died at the spot.
According to him, Mst. Asia Kausar further stated that she cleaned blood from different parts of the room and then, they threw the dead body of accused Shaukat Ali in the nearby fields.
10. P.W.12 Shah Mir deposed that on 15-4-2006 when lie was present in the house of Muhammad Ilyas at POF colony, Muhammad Zahoor accused came there and stated that on the fateful day, at about 11-30 p.m., lie went to the house of Shaukat Ali deceased, put the red colour towel on the head of Shaukat Ali, fired upon Shaukat Ali who succumbed to the injuries at the spot and thereafter they (accused Shaukat Ali and his co-accused Mst.Asia Kausar) clearfie the blood with different clothes and at about fajar vela, they threw the dead body in the nearby fields.
11. The other prosecution witnesses being formal in nature are not required to be discussed here.
12. After close of prosecution evidence, the accused Muhammad Zahoor and Mst. Asia Kausar were examined under section 342, Cr.P.C. Both of them denied the charge and pleaded not guilty. In reply to question as to why the P.Ws. Had deposed against you, they stated as under:-- ACCUSED MUHAMMAD ZAHOOR "I have been falsely implicated in this case. I have got nothing to do with the instant occurrence. He witnesses are related to Shaukat Ali deceased. The story put up by the prosecution is belied by the evidence."
ACCUSED ASIA KAUSAR, "I have been falsely implicated in this case. I have got nothing to do with the instant occurrence.
The prosecution story has been concocted against me, which is belied by the prosecution evidence."
However, both the accused neither opted to appear as their on witnesses under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
13. After culmination of the trial, the learned trial court found both the accused guilty of Qatl-e-Amd of Shaukat Ali and convicted and sentenced them as mentioned in para 1 above.
14. Learned counsel for the appellant-accused contends that neither the appellants-accused have been nominated in the F.I.R. Nor the prosecution could prove motive against the appellant. Further contends that the recoveries of bloodstained towel, three pillow covers chaddar and a plastic bori effected from the appellant- accused Mst. Asia Kausar after 14 days of the occurrence themselves prove that these are fake and planted recoveries as 14-days time was enough for the accused to remove them easily. Further contends that according to prosecution, the towel recovered was put on the face of the deceased before making fire, but there is no fire hole in the recovered towel.
Further contends that the P.Ws. Are related to the deceased and inter se as well. Further contends that the police has failed to arrest the actual culprit(s), so they have made the appellants- accused scapegoats. Further contends that the prosecution evidence is circumstantial, materially discrepant and untrustworthy which cannot be believed upon. Further contends that if the occurrence had taken place in the house, somebody else in the neighbourhood must have heard the noise of fire-shot which is not the case. Further contends that the prosecution has miserably failed to prove its case and the impugned judgment is bad in both law and facts which be set aside and the appellants-accused be acquitted of the charge.
15. On the other hand, learned Deputy Prosecutor-General Punjab assisted by the learned counsel for the complainant has vehemently opposed these criminal appeals and has contended that the impugned judgment is well-reasoned, unexceptional and is based on facts. Further contends that no son in our society can dare to blame her mother for adultery until and unless there are sufficient reasons to do so. Further contends that the prosecution has fully proved its case beyond any shadow of doubt and the prosecution witnesses could not be shattered during cross-examination and the learned trial court has rightly convicted and sentenced the appellants-accused, therefore, the criminal-appeals be dismissed.
16. We have carefully considered the arguments advanced by the learned counsel for the parties as well as the learned Deputy Prosecutor-General and have also gone through the evidence as well as the impugned judgment.
17. The prosecution case rests on circumstantial evidence and two versions. The prosecution has mainly relied on the last scene evidence, supplementary statement of P.W.5 and extra judicial confessions made by the accused and report of hand writing expert. According to the F.I.R.
Recorded on 7-12-2005 at 9-00 p.m., the time of occurrence and the accused are unknown. The contents of F.I.R. Show that the deceased Shaukat Ali left for his duty at Wah Factory at 4-45 p.m.
When the complainant returned home, he came to know that the dead body of his father is lying in the field of Sajid Ali whereupon he went there and found that the dead body of his father was lying in the field of Sajid Ali facing upward. He informed the police that some unknown person or persons have committed the murder of his father by making fire shot on his head. On the same day, i.e. On 7-12-2005, P.W.5. Aftar Ahmed son of deceased made a supplementary statement in which he implicated the appellants as the culprits. It is important to note that the appellant Mst. Asia Kausar is the real mother of the complainant and the legally wedded were of deceased Shaukat Ali. The complainant states that the accused Muhammad Zahoor son of Bostan has illicit relations with her mother Mst. Asia Kausar and as a result of these illicit relations both the accused persons planned to remove the deceased from their way and on the fateful day, Mst. Asia Kausar put a towel upon the face of the deceased Shaukat Ali while he was sleeping in his room and accused Muhammad Zahoor made a fire and the bullet entered in the skull from left side and exited from the skull and brain from right side. The prosecution has further relied upon the statement of P.W.7. Zulfiqar Ali who is phuphizad of the deceased Shaukat Ali. He deposed that he is serving in Wah Factory and goes to Wah Factory for his duty from Bishandot. On 7-12-2005 at about 5-30 a.m. When he left his house, Ajmal Tashneez came across him. When they reached near Dhoke Kalian, they saw accused Muhammad Zahoor carrying a human body on his shoulder while Mst. Asia Kausar accused was holding the hand of accused Zahoor who were going towards fields. According to P.W.7, they remain silent due to fear. Thereafter P.W.7. Went to Wah Factory. Similarly, the prosecution has relied upon the extra-judicial confession made by accused Mst. Asia Kausar and Muhammad Zahoor before P.W.9. Amar Ali and P.W.12 Shah Mir respectively. According to prosecution story, on 18-12-2005, Mst. Asia Kausar accused made a confession before P.W.9. While on 15-4-2006, the accused Zahoor made confession before Shah Mir P.W.12. The prosecution has emphasized more on this aspect that complainant Aftar Ahmed is the real son of Mst. Asia Kausar accused and in our society, a son cannot level allegations of adultery against his real mother. Learned counsel has also put much stress on the abscondence of both the accused.
18. The scrutiny of evidence produced by the prosecution is not confidence inspiring. P.W.7. Zulfiqar Ali who is witness of last scene occurrence has deposed during his cross-examination that accused Zahoor is a married man and while accused Asia Kausar is mother of seven children from her husband Shaukat Ali. According to the statement of P.W.7. Zulfiqar Ali on 7-12-2005 at 5-30 a.m.
While he was going to Wah Factory, he saw Muhammad Zahoor accused carrying a person upon his shoulder while accused Mst. Asia Kausar was holding the hand of accused Muhammad Zahoor but Zulfiqar Ali P.W.7. Remained silent and did not inform the police rather he proceeded towards Wah Factory. According to the second version of the complainant when he inquired from his mother, she told that his father has left for duty at 6-30 a.m. Meaning thereby that at 6-30 a.m. His father was in the house and when he was present at home it was who to whom accused Muhammad Zahoor and Mst. Asia Kausar were carrying is a question which could not be answered by the prosecution. Similarly, according to P.W.12 Shahbaz, Muhammad Zahoor accused made a confession before him on 15-4-2006. On the other hand, according to the statement of I.O. Accused Muhammad Zahoor was arrested on 23-4-2006 and on 14-4-2006; a proclamation under section 87 of Cr.P.C. Was published, as accused Muhammad Zahoor was declared as a proclaimed offender who was arrested on 23-4-2006 so it cannot be believed that on 15-4-2006, he made a confession before P.W.12. When admittedly, appellant Zahoor Kiyani was a proclaimed offender till 23-4-2006 when he was arrested. It is also important to point out that while recording the F.I.R., nothing was mentioned in the contents of F.I.R. About the last scene occurrence. The record further reveals that no empty was recovered from the room where Shaukat Ali was allegedly murdered.
According to the second version of the prosecution, deceased Shaukat Ali was sleeping on his cot when accused Mst. Asia Kausar put a towel on his face while accused Zahoor fired at his head but the prosecution could not produce the towel or the pillow whereupon the deceased Shaukat Ali put his head and was sleeping by showing the corresponding hole of fire. According to the medical evidence, there is entry and exit injury on the head of the deceased but it does not contain blackening or burning.
19. The outcome of the above discussion is that the prosecution has badly failed to prove its case beyond any shadow of doubt. There are certain minor discrepancies which are natural but not fatal to the defence case. So far as the question of abscondence of appellant is concerned, the appellant Muhammad Zahoor Kiani has explained that he remained in Karachi while Mst. Asia's version was that she remained away. The prosecution failed to rebut the above versions. Definitely, when the real son is a complainant against his mother in a case of murder of his father and has further levelled the allegations of adultery against his real mother, such woman will left with no alternative except to abscond from the house. However, the prosecution further could not produce any evidence that during the period of abscondence, both the appellants remained together.
Resultantly, the Criminal Appeal No.188 of 2007 filed by Muhammad Zahoor and Criminal Appeal No. 211 of 2007 filed by Mst. Asia Kausar are ACCEPTED, the impugned judgment dated 21-5-2007 passed by Rana Nisar Ahmed Khan, learned Additional Sessions Judge, Rawalpindi is set aside and the appellants-accused Muhammad Zahoor and Mst. Asia Kausar are ACQUITTED of the charge.
Murder Reference No.333 of 2007 sent by the learned trial Court for confirmation of death sentence or otherwise of appellants-accused Muhammad Zahoor and Mst. Asia Kausar is answered in NEGATIVE. The appellants-accused Muhammad Zahoor and Mst. Asia Kausar who are in jail shall be released forthwith if not required in any other case.