JUDGMENT SH. AHMAD FAROOQ, J.---Five accused persons, namely Muhammad Rafiq Butt,.
Kamran, Muhammad Awais, Ghulam Jillani and Murad Tariq, were tried by the learned Additional Sessions Judge, Islamabad, in a criminal case arising out of F.I.R. No.194 dated 25-10-2010, registered in Police Station, Aabpara, Islamabad, under sections 302/109/34, P.P.C., for an occurrence in which one Abid Ali was shot dead. At the conclusion of the trial, the learned trial Court, vide its judgment dated 3-10-2002, while acquitting for accused (1) Muhammad Rafiq Butt
(2) Kamran (3) Muhammad Awais and Ghulam Jillani, has held the fifth accused i.e. Murad Tariq to be guilty `Qatl-e-and' of the deceased Abid Ali, and has convicted and sentenced him to death, under section 302(b), P.P.C. As "ta'zir'. The convicted accused/appellant has also been directed to pay Rs.200,000 to the legal heirs of the deceased as compensation failing which he was to undergo six month simple imprisonment.
2. While the convict/Murad Tariq challenged his conviction and sentence, as aforementioned, by filing Criminal Appeal No.641 of 2002, the complainant/Asad Ali also filed Criminal Appeal No.632 of 2002, against the acquittal of only two accused persons, out of four, namely, Muhammad Rariq Butt and Muhammad Awais, but his learned counsel made a statement in the Court on 14-6-2010, that due to a compromise between the parties, the complainant does not want to pursue the said appeal. In view of the statement of the learned counsel for the complainant/ appellant, dated 14- 6-2010, the Criminal Appeal No.632 of 2002 was accordingly dismissed, vide a separate order dated 27-7-2010. The learned Additional Sessions Judge, Islamabad has also sent Murder Reference No.855 of 2002 for confirmation or otherwise of the sentence of death imposed on the appellant/Murad Tariq. Both the Criminal Appeal. No.641 of 2002 and the Murder Reference No.855 of 2002 are being decided through this single judgment.
3. Succinctly, the prosecution story as narrated in the complaint (Fxh.P.A) and F. I. R . (Exh. P. A/1) is that on 25-10-2000, at about 11-00 a.m., Asad Ali/complainant along with Taimur Shafique and Abid Ali (deceased) was going in a double-cabin Pickup bearing No.IDF/2874, from Convention Centre to Zero Point, on Kashmir Highway, Islamabad, and when they reached opposite to Foreigners Camp (Jasmin Garden), a Suzuki (Margalla) Car No.LOW/1750 overtook (their vehicle and blocked their way. Abid Ali deceased, who was driving the double-cabin Pickup had to stop his vehicle, whereupon, the accused/ Murad Tariq, Muhammad Rafiq Butt, armed with .30 bore pistols, Muhammad Awais, armed with a hockey (who were already known to the complainant), along with an unknown person, armed with .30 bore pistol, (who could be identified by the complainant), came out of their vehicle, Murad Tariq, raising a `lalkara' that Abid Ali would be taught a lesson for pursuing the case of Mst. Kok, fired two successive bullet shots with his .30 bore pistol, which hit Abid Ali, on his right thigh and abdomen. On hue and cry, raised by the complainant and Taimur Shafique, the accused fled away from the scene of crime in their vehicle towards Zero Point. The occurrence was stated to be witnessed by one Taimur Shafique, in addition to the complainant.
The motive behind the occurrence was the grudge, which Murad Tariq/ accused nourished against Abid Ali, who had helped the former were of Murad Tariq, namely, Mst. Kok, in getting divorce from him. Abid Ali/deceased was stated to be the husband of the sister of the said Mst. Kaukab Shafi alias Kok.
4 After completion of investigation, a report under section 173, Cr.P.C. Was submitted before the learned trial Court for taking cognizance of the offences. The appellant and the acquitted co- accused were supplied copies of necessary documents as provided under section 265-C, Cr.P.C.
Thereafter, the accused/present appellant and the co-accused were charged by the learned trial Court, to which they did not plead guilty and claimed to be tried.
5. To prove its case, the prosecution got recorded as many as sixteen (16) witnesses. Reports of the Chemical Examiner (Exh. P .RR) , Serologist (Exh.P.SS) and the Forensic Science Laboratory (Exh.P.TT) have also been produced in evidence by the prosecution. The ocular account of the incident in question was furnished by P.W.9/Asad Ali/complainant, P.W.10/Farhat Abbas and P.W.11/Syed Mazhar Hussain Shah, and P.W.12/Khushi Muhammad. The medical evidence was provided by P.W.8/Dr. Muhammad Naseer, who conducted postmortem examination of the dead body of the deceased, on 25-10-2000, at 2-30 p.m. P.W.1/Amir Umar recorded the formal F. . R. (Ehx P. A/1) . P.
W.3/Shaukat Ali, A.S.-I., took into possession a hockey from the accused/Muhammad Awais Butt, vide recovery Memo. Exh. P.C. P.W.3 along with Tahir Mahmood, Constable, took into possession .30 bore pistol (Exh.P.2) along with five live bullets (Exh.P3/1-5), which were recovered from the car of Muhammad Awais Butt and Muhammad Rafique Butt/accused. Qamarud-Din/P.W.5, Draftsman, on the pointation of witnesses, and on the instructions of the police, prepared the site plan (Exh.P.17). Muhammad Nawaz, S.-I. (P.W.16) stated that he took various steps during the investigation, including arrest of Murad Tariq. The remaining witnesses are of formal nature.
6. After the closure of the evidence of the prosecution, the statements of the present appellant and the acquitted co-accused were recorded under section 342 Cr.P.C. The appellant denied the prosecution version and in response to a question/why this case against him and why the P, Ws.
Had deposed against him, the appellant replied as under: "Unfortunately my marriage with my ex-were Kaukab alias Kok was ended in shape of divorce that too through Khulla. The respectable intervened and amicably under the Doctrine of Khulla...1 was at Lahore on 25-10-2000 as I am dwelling there and doing business there. Concededly the police came to Lahore on 26-10-2000 and Roznamcha report, statement of the Investigating Officer are confirming this assertion as correct. I was arrested at Lahore on 26-10- 2000 at 4-46 p.m. And brought to Islamabad. The complainant party is filty rich and having their business and abodes in USA. The police succumbed to the wealth from the inception of the case.
Through device of padding and chicanery the evidence was created against me and my false liaison was shown with my co-accused. According to the LOG Book duly maintained by the police and official record is revealing to the effect that deceased was driving Double Cabin vehicle bearing No.IDF-2874 alone when he received two fire arm injuries. He was taken to the Hospital by the police in injured condition. He succumbed to the injuries to the Hospital. Asad Ali complainant was called much later on and shown to be false, complainant.
Raja Farhat Abbas and Mazhar Hussain Shah could not show any justification of their presence at the relevant juncture. Their pretext of going to Mazaar for paying homage on Wednesday and they were coming on foot is chicanery and the same is false. Their place of residence is over 12 kms from the place of occurrence. Their presence according to them is sheer co-incidence. They are not named in the well considered belated F.I.R. They were made witnesses through the device of second supplementary statement. They are men of chequered history and having renowned liaison with the police. The complainant party is filty rich. Their wealth has persuaded them to become false witnesses for pecuniary benefits which they enjoying till date. Khushi Muhammad is a driver of the deceased since decades and his presence according to him at the so-called place of alighting from the car of my co-accused is according to him is a sheer coincidence. He is resident of a quite far away according to his on showing. My relation with the deceased was quite cordial, during the pendency of my wedlock: The complainant could not cite a single instance of my bickering or brawl with him throughout. He never appeared as witness against me nor supported Mst. Kokab alias Cok. The deceased was rich man having many business rivals, at Islamabad and elsewhere. He was assassinated by unknown assailants. The deceased was staunch Shia leader and used to participate in sectarian quarrels. I am innocent and have been made scapegoat in the instant matter. I am totally innocent and was not present at Islamabad on the fateful day but the complainant party persuaded by enmity and prosecuting me without any justification knowing well that I had no liaison with my co- accused and nor responsible for this gory occurrence. I lamented the death of the deceased being my close associate through my in- laws. The were of the deceased persuaded the complainant party to falsely implicate me due to enmity of dissolution of marriage of her sister. I was arrested from my House No.749 Shadman Colony Lahore. Deceased was issueless. The complainant is the main beneficiary of his legacy and he might got assassinated the deceased."
7. Murad Tariq/accused did not opt to make his on statement on oath in disproof of the charges or allegations made against him, as envisaged under section 340(2), Cr.P.C. However, in his evidence in defence, the appellant produced two witnesses i.e. D.W.1 and D.W.2.
8. Upon conclusion of the trial, the learned trial Court, holding the present appellant guilty of the charge of commission of qatl-e-and of deceased Abid Ali convicted him under section 302(b), P.P.C. And awarded him the sentence as aforementioned.
However, the other four accused, who were also facing trial along with the present appellant, were acquitted of the charge. Through the instant criminal appeal, the present appellant-has challenged the legality and validity of his conviction and sentence, whereas the learned Additional Sessions Judge, Islamabad has sent Murder Reference No. 855 of 2002 for confirmation or otherwise of the sentence of death imposed on the appellant/Murad Tariq.
9. The learned counsel for the appellant contended that during the trial it was proved that the deceased was driving a vehicle alone when unknown persons launched murderous attack on him, wherein he sustained firearm injuries, He further submitted that neither the complainant/Asad Ali (P.W.9) nor P. W. 10/Farhat Abbas and P.W.11/Syed Mazhar Hussain Shah were present at the time of the occurrence. He maintained that the names of the alleged eye-witnesses/Farhat Abbas and Syed Mazhar Hussain Shah did not appear in the F.I.R. And the same were introduced through the second and third- supplementary statements of the complainant, which were the result of deliberations, paddling by the police and dishonest improvements. He also maintained that P.
W.12/Khushi Muhammad, who had served the deceased as a driver for a long time, was not present, on the day of occurrence, at Garden Chowk, Islamabad, and falsely claimed himself to be a chance witness. The learned counsel for the appellant argued that the deceased was alone at the time of occurrence as is evident from the copy of the Log Book (Exh.D.C/1 and Exh.D.C/2), and was transported to Federal Government Services Hospital, Islamabad by Arif, Constable, Rescue-15, in an ambulance, in an injured condition. He denied the death of Abid Ali deceased at the spot. He claimed that Abid Ali died in the hospital as proved from Log Book (Exh.D.C/1 and Exh.D.C/2), at about 11.43 a.m. He asserted that a Suzuki Margalla 1000 CC car cannot possibly overtake a 2400 CC double cabin Pickup and the bullets fired by a .30 bore pistol could not pierce the hard metal of said vehicle before hitting the accused. The learned counsel for the appellant further argued that the seat of injury i.e. Abdomen and thigh were not believable as assailants could have fired on the exposed vital parts of the body of the deceased i.e. Head, neck and chest. The learned counsel emphasized that neither any weapon of offence has been recovered from the appellant/convict nor the motive for the occurrence could be proved beyond doubt. He contended that the ocular account is not corroborated by the medical evidence. Lastly, he argued that the prosecution has miserably failed to prove the guilt of the present appellant beyond any shadow of doubt and the impugned judgment is the result of non-reading and misreading of the evidence available on the record and as such, the conviction recorded and death sentence awarded thereon could not be maintained and upheld: He pleaded that the appellant may be acquitted.
10. Conversely, the learned DPG contended that it was a promptly lodged F.I.R. As the occurrence took place at 11-00 a.m. And the case was registered at 12-00 noon, on 25-10-2000, and as such, there is no question of any deliberation. He further contended that the prosecution has succeeded in proving the guilt of the appellant to the hilt through the statements of the P.Ws., who have fully supported the prosecution version. Further contended that there are no major discrepancies in the statements of the prosecution witnesses. The learned DPG next contended that though the names of P.Ws. Farhat Abbas and Syed Mazhar Hussain Shah are not mentioned in the F.I.R. But the same is not the conclusive prove of their being not present at the site of the occurrence. He maintained that the motive behind the occurrence stood proved as the deceased had helped Mst. Kaukab alias Kok, who was his sister-in-law, in the suit which she had filed for dissolution of her marriage against her husband/Kh. Murad Tariq/ present-appellant. He argued that the complainant had no motive to falsely implicate the appellant in the instant case. He further argued that no credence could be attached to the record of the wireless messages as the concerned persons were not produced as witnesses and the original record had been destroyed after the fixed period, according to the rules. He contended that the co-accused Muhammad Rafique Butt and Muhammad Awais Butt were arrested immediately after the occurrence, which proved the guilt of all the accused. Lastly, he argued that the ocular account is fully corroborated by the medical evidence and the prosecution had succeeded in proving the guilt of the appellant to the hilt. He submitted that the conviction and sentence of death awarded to the appellant by the learned trial Court do not warrant any interference by this Court.
11. We have heard the learned counsel for the parties, in addition to examining the oral as well as documentary evidence minutely available on the record.
12. The version of the complainant as revealed from the complaint (Exh.P.A) and F.I.R. (Exh.P.A/1) is that on 25-10-2000, at 11-00 a.m., he along with Taimoor Shafique, (given up P.W.) and Abid Ali deceased was going from Convention Centre to Zero Point, sitting in a double Cabin Pickup No. IDF/2874, which was being driven by Abid Ali deceased, and when they were on Kashmir Highway, their vehicle was overtaken by a Suzuki Margala No. LOW/1750, whereupon Abid Ali/deceased had to stop his vehicle. The complainant/Asad Ali, during the course of his cross-examination while appearing as P.W.9 could not satisfactorily explain as to how a double Cabin Pickup having 2400- CC engine could be overtaken and stopped by a Suzuki Margala 1000-CC car and that too on Kashmir Highway, which is a double carriage road, in a broad-daylight, at 11-00 a.m. There are many contradictions in the statements of P.W.9 and P.W.10 and P.W.11 regarding the exact location where the Suzuki Margala car was parked at the time of the occurrence vis-a-vis the double cabin pickup being driven by the deceased. In the F.I.R. As well as in the statement of Asad Ali/P.W.9/complainant, it is mentioned that Suzuki Car was parked in front of the said double Cabin Pickup, which blocked their way but P.W.10/Farhat Abbas and P.W.11/Syed Mazhar Hussain Shah deposed that the vehicle of the deceased and Suzuki Car of the accused were stopped parallel to each other. These contradictions in the statements of the eye-witnesses A negate their presence at the spot at the time of occurrence. Furthermore, according to the F.I.R. (Exh.P.A/1), there were only two eye-witnesses of the occurrence, namely, Asad Ali/complainant and Taimoor Shafique (given up P.W) but during the trial the prosecution produced three eyewitnesses of the occurrence, namely, Asad All (P.W.9), Farhat Abbas (P.W.10) and Syed Mazhar Hussain Shah (P.W.11), in addition to P.W.12/Khushi Muhammad, who statedly saw Murad Tariq/appellant along with an unknown person alighting from vehicle No. LOW/1750, at Garden Chowk, on 25-10-2000. It is worth- consideration that the names of Farhat Abbas (P.W.10) and Syed Mazhar Hussain Shah (P.W.11) did not figure in any manner in the F.I.R. And even in the proceedings conducted by the police (police karwai') their presence was not mentioned. It has specifically been mentioned in the F. I. R. (Exh. P.
A/1) that the complainant, after leaving Taimoor Shafique, at the spot near Abid Ali deceased, went to seek the help of police. On the other hand, P.W.10/Farhat Abbas and P.W.11/Syed Mazhar Hussain Shah stated in their respective cross- examination that the complainant asked them to look after the dead body of Abid Ali/deceased, prior to leaving the place of occurrence to approach the police. The complainant/Asad Ali, during the course of his cross-examination stated that he asked Farhat Abbas/P.W.10 and Syed Mazhar Hussain Shah/P.W.11 to remain at the spot while leaving from the scene of crime to seek police help. Similarly, P.W.10 and P.W.11 also deposed in their respective statements regarding their presence at the spot along with the dead body of Abid Ali, when the complainant left the place of occurrence to approach the police. The said contradiction is neither insignificant nor could be ignored as the presence of a person at the spot, particularly when the dead body of a person was lying in a vehicle on a busy road in broad-daylight, can never be forgotten or incorrectly reported. Khushi Muhammad/ P.W.12 remained the driver of the deceased for a long time and as such, he is not only an interested witness but also his statement, which is not corroborated by any other independent witness regarding the alighting of Murad Tariq from vehicle No. LOW/1750 at Garden Cho.Wk cannot be believed. The complainant who knew driving, did not make any effort to shift Abid Ali while he was injured from the place of occurrence to the hospital. He did not provide any medical assistance to the deceased as admittedly his clothes were not blood stained. The double Cabin Pickup was still in running condition and as such, there was no necessity of shifting Abid Ali to the hospital in an ambulance, which was requisitioned by a police constable. There is also discrepancy between the statements of the so called eye-witnesses regarding the distance from where the present appellant fired bullet shots at the deceased. P.W.10 and P.W.11 deposed that Murad Tariq fired at the deceased from a distance of 6/7 feet, whereas P.W.8/Dr. Muhammad Naseer admitted that the bullets were fired from a distance of more than 10 feet and it could be more than 20 feet. Additionally, P.W.10 stated that he was at a distance of 100/150 feet, whereas, according to P.W.11, they were at a distance of 23/24 yards away from the place of occurrence at the time of firing of bullet shots.
13. The ocular account of the occurrence, as narrated by the witnesses of the prosecution is highly improbable and not proved when put in juxtaposition with the statements of D.W.1 and D.W.2, who are public servants having no enmity with the complainant, coupled with the documents Exh. D .C/1-2 to Exh. D. C/1-3 and Exh.D.D. It is established from Exh. D.C/1 (Log Book) that a police official found a person hit by bullet in a double Cabin Pickup, on Kashmir Highway Road, at 11-13 a.m. And a request for sending an ambulance was made on the wireless. The remaining entries in, the Log Book Exh. D. C/1 to Exh. D .C/1-3, also establish that the injured was alive when he was taken to Federal Government Services Hospital, Islamabad, by Rescue 15 Police, where he died.
D.W.2/Muhammad Usman also placed on record the copy of the Out Patient Register, dated 25-10- 2010, which proves that the patient/Abid Ali was brought in the Federal, Government Hospital, Islamabad, at 11-25 a.m. By Arif, Constable of Rescue 15 Police.
14. There is no plausible explanation as to why the prosecution gave up Taimoor Shafique as a witness, who was allegedly travelling with Abid Ali/deceased at the time of the occurrence. In a case reported as Riaz Ahmed v. The State (2010 SCM R 846), it has been held that a presumption could be drawn in the light of illustration (g) of Article 129 of the Qanun-e-Shahadat Order, 1984, that had the given up eyewitness been examined in the Court, his evidence would have been unfavourable to the prosecution. On the other hand, the prosecution introduced and got examined two Chance witnesses, namely, Farhat Abbas P.W.10 and Syed Mazhar Hussain, P. W.11, whose presence at the spot could not be proved beyond doubt as P.W.10 is a resident of Shakrial Village, which is at a distance of 11/12 k.m. From the place of occurrence. Likewise, the residence of P.W.11/Syed Mazhar Hussain Shah is about 9/10 k.m. Away from the scene of crime. The said P.Ws.
Also could not satisfactorily explain the reason for their being present at the spot at the time of the occurrence at 11-00 a.m. On a working day. It is also significant to note that Farhat Abbas (P.W.10) and Syed Mazhar Hussain Shah (P.W.11) along with complainant/ Asad Ali were members of a lirga', constituted in the year, 1999 to find out a solution regarding the differences between Murad Tariq/present appellant and his were Mst. Kaukab alias Kok. From the entries existing in the Log Book (Exh.D.C/1 to Exh.D.C/1-3) it is proved beyond doubt that Abid Ali deceased was alone in his double Cabin Pickup when he was injured and was taken to the hospital by the Rescue 15 police.
The prosecution also introduced another chance witness, namely, Khushi Muhammad whose statement was recorded as P.W.12. He deposed that he saw Murad Tariq alighting from vehicle No.LOW/1750 at Garden Chowk, which is situated between Zero Point and Faizabad. P.W.12 also stated that he saw two persons, namely Muhammad Rafique Butt and Muhammad Awais Butt/accused driving a vehicle LOW/1750 towards Faizabad on 25-10-2000, after dropping Murad Tariq/ accused in Garden Chowk. From the above narration of events and circumstances, the presence of the complainant as well as the two eye-witnesses i. e . P. W . 10 and P. W . 11, at the time of occurrence could not be proved beyond reasonable doubt. Likewise, the statement of P.W.12/Khushi Muhammad; who had remained driver of the deceased for a sufficient long time, regarding his presence at the spot where Murad Tariq allegedly alighted from the Suzuki car (which was used during the occurrence) could not be accepted. In arriving at this conclusion, we are fortified by the case cited as Khalid Javed and another v. The State (2003 SCM R 1419), wherein it has been held that supplementary statement recorded during the investigation by the police could neither be equated with the F.I.R. Nor read as part of the same. It has also been held that the evidence of a chance witness, who had not proved through specific reason for being present at the time of occurrence, without any corroborative evidence, had to be excluded from consideration.
Hence, the prosecution could not connect the present appellant with the commission of the crime beyond, reasonable doubt through its ocular account.
15. As far as the medical evidence is concerned, the same is also not confidence inspiring because the appellant/Murad Tariq allegedly fired two shots with his .30 bore pistol, one after the other, which hit Abid Ali/deceased on his right thigh and abdomen, while he was sitting in his double cabin pickup/'dala'. According to the F.I.R. Murad Tariq came out of his Suzuki car before firing at Abid Ali/deceased. Ordinarily, a person would open fire on his opponent, who is sitting in a vehicle, on the exposed vital parts of body i.e. Head, neck and chest. In the instant case, the version of the prosecution is that the bullets fired by Murad Tariq with a pistol .30 bore pierced, through the hard metal body of the double Cabin Pickup before hitting Abid Ali/ deceased on his thigh and abdomen. It is not believable that a bullet fired by a .30 bore pistol and that too from a distance of more than 10 feet would pierce through the hard metal of the body of a double Cabin Pickup and thereafter penetrate through and through the body of the deceased after making an exit wound. In such like situation, a led bullet after hitting hard surface would get mutilated and snubbed nose, resulting in a gaping wound of broad dimension. But in this case, according to the statement of P.W.8/Dr. Muhammad Naseer, dimension of the entry wound was 1.05 c.m. x 1.00 c.m., which negates the version of the prosecution that the deceased was hit by bullets, which had already pierced the metalled door of a double cabin `dala'. Furthermore, the dead-body of Abid Ali was handed over to Dr. Muhammad Naseer (P.W.8) at PIMS, Islamabad on 25-10-2000, who delivered the dead-body of the deceased to his legal heirs alter conducting postmortem, on the same day but the postmortem report was given to the police on 31-10-2000. According to P.W.8/Dr. Muhammad Naseer, the dead- body of Abid Ali at the time of the postmortem was identified by Asad Ali/complainant (P.W.9) and Dr. Haris. There is no mention of Dr. Haris anywhere in the whole prosecution story. P.W.8/Dr. Naseer has also admitted that Dr. Rukhsana and Dr. Yawar had remained his colleagues, who are sister in law and brother in law, respectively of the deceased.
According to the statement of P.W.8/Dr. Muhammad Naseer the probable duration between injury and death was 3/5 minutes, whereas according to the document Exh.D.C/1, a person received bullet injury at 11-13 a.m., who was brought to the hospital at 11-25 a.m., as per Exh.D.D. While he was alive and died at 11-43 a.m. (Exh.D.C/2). Lastly, the bullet which was recovered from the dead body of Abid Ali/deceased during the postmortem was not got examined from the Forensic Science Laboratory, Lahore as no weapon of offence was recovered from the possession of the present appellant/Murad Tariq. All these events prove that Abid Ali was alone at the time of the occurrence and was brought to the hospital in an injured condition where he died. The relatives of the deceased were informed on the basis of the information discovered from the personal search of the deceased and the F.I.R. Was fabricated after due deliberations and consultation. This conclusion is further strengthened from the fact that P.W.8./Dr. Muhammad Naseer handed over the postmortem report and the bullet extracted from the dead body to the police on 31-10-2000 i.e. Six days after conducting the postmortem examination. The explanation regarding the said delay given by the said Dr. Muhammad Naseer/P.W.8 that the police did not approach him till 31-10-2000 is not plausible as the dead-body was handed over to the police on 25-10-2000. The above discrepancies in the statement of P.W.8 Dr. Muhammad Naseer seems to be the result of his collusion with the complainant party, which is evident from his admission that Dr. Yawar and Dr. Rukhsana, who are close relatives of the deceased, had remained his colleagues.
16. The crime empties recovered from the place of occurrence, and got examined from the Forensic Science Laboratory Lahore, were not found to have been fired from the pistol .30 bore, which was recovered from Suzuki Margala bearing No. LOW/1750 being driven by Muhammad Rafique Butt.
The accused/Muhammad Rafique Butt and Muhammad Awais, who were apprehended while driving Suzuki Margala Car No. LOW/1750 by the police immediately after the occurrence have not only been acquitted by the learned trial Court but also the complainant has already withdrawn the appeal (Criminal Appeal No.632 of 2002) filed against their acquittal.
17. Even the motive for the occurrence could not be proved by the prosecution. The best witness, to prove the said motive was Mst. Kaukab Shafi alias Kok, but she was given up by the learned DDA through his statement dated 17:6-2002 being unnecessary, despite being cited as a witness in the calendar of witnesses. The witnesses of the prosecution did not mention any occasion prior to the occurrence wherein Murad Tariq/present appellant had admonished or threatened Abid Ali for helping Mst. Kaukab Shafi alias Kok. In fact, the marriage between Mst. Kaukab alias Kok and the present appellant ended in a divorce by way of `khula' through the intervention of respectable of the family. The accused, during the course of his statement under section 342, Cr.P.C. Explained that his relations with the deceased were quite cordial. He also denied that the deceased appeared as a witness against him in a suit; E for dissolution of marriage. In this backdrop motive set up by the prosecution for committing `qatl-e-and' of Abid Ali deceased by the present appellant could not be established.
18. For the foregoing reasons, we have arrived at an inescapable conclusion that the prosecution has failed to establish beyond reasonable doubt the charge of the commission of `qatl-e-and' of Abid Ali against the present appellant. Resultantly, the instant appeal is allowed and the conviction and sentence recorded by the learned trial Court against the present appellant is set aside and he is acquitted of the charge. He shall be released forthwith, if not required in any other case. Murder Reference No.855 of 2002 is answered in Negative and the sentence of death is Not Confirmed.