MAHMOOD AKHTAR SHAHID SIDDIQUI, J.---The appellant Shahzad Tanveer was tried along with his father Tanveer Ahmed and mother Mst. Irshad Beugm under sections 302/34, P.P.C. In case F.I.R.
No,541 dated 19-9-2000 Police Station Model Town, Gujranwala for committing Qatl-e-amd of Mst.
Kaneez Akhtar. At the end of trial, only the appellant was convicted and sentenced to death with a direction to pay Rs,100,000 as compensation to the legal heirs of deceased or in default of payment thereof to undergo simple imprisonment for six months vide judgment dated 27-10-2001. The rest of the accused Tanveer Ahmed and Mst. Irshad Begum were acquitted. Criminal Appeal No,367-J of 2001 was dismissed by a learned Division Bench of the Lahore High Court, Lahore vide judgment dated 25-1-2007. Consequently, Murder Reference No,874 of 2001 made by the learned trial Court seeking confirmation of death sentence was answered in the affirmative.
2. Leave to appeal was granted by this Court on 6-11-2007 for reappraisal of evidence for safe administration of criminal justice.
3. The occurrence took place on 19-9-2000 at about 7-30 a.m. In the residential portion on the shop of Talat Mahmood, husband of Mst. Kaneez Akhtar deceased and younger brother of Muhammad Yaqoob complainant, situated in Mohallah Islamabad, Gujranwala. According to the prosecution Talat Mahmood was in Kuwait. Mst. Kaneez Akhtar lived with her children in the said house which is situated opposite to the house of Muhammad Yaqoob complainant. Muhammad Yaqoob complainant and Fazal Karim (given up P.W.) at the relevant time were standing in the street when they heard hue and cry from the house of the deceased. Both went upstairs. In the meanwhile Rabeel Talat son of Mst. Kaneez Akhtar also came down from upper storey. Shahzad Tanveer appellant within the view of the P.Ws. Gave successive churri blows to Mst. Kaneez Akhtar who was caught hold of by Tanveer Ahmed and Mst. Irshad Begum (since acquitted) The accused then decamped.
4. The motive for the offence was that the appellant and his father Tanveer Ahmed owed certain amount to Mst. Kaneez Akhtar deceased. Two days prior to the occurrence a quarrel had taken place when Mst. Kaneez Akhtar demanded her money back.
5. Mst. Kaneez Akhtar was removed to the District Headquarters Hospital, Gujranwala where she died before she was given medical aid. In the meantime, P.W.14 Sikandar Hayat, SI/SHO, Police Station Model Town reached the hospital and recorded statement of Muhammad Yagoob Exh.PK at 10 a.m. Which formed basis of formal F.I.R. Exh.PK/1. The appellant while in custody got recovered Churri P.3 on 27-4-2001.
6. The learned trial Court formally charge sheeted the accused on 11-6-2001 they pleaded not guilty and claimed trial.
7. The prosecution examined as many as 15 witnesses in order to substantiate the charge which included P.W.7 Muhammad Yagoob and P.W.8 Rabeel Mahmood. Both furnished not only the ocular account of the occurrence but also deposed about the motive for the offence. P.W .9 Doctor Shazia Bhutta who had conducted post mortem examination of Mst. Kaneez Akhtar provided medical evidence. ,
8. The accused, in their statements under sections 342, Cr.P.C. Denied the allegation. They pleaded that the occurrence took place during night; that it was un-witnessed and that they had been falsely implicated because Fazal Karim and Talat Mahmood had taken Rs,100,000 for sending Khurram Shahzad to Dubai, but had failed not only to provide job to Khurram Shahzad but had also not returned the money.
9. The learned trial Court totally discarded the evidence showing abscondence of the appellant, the motive part of the story and recovery of churri P.3 made at the instance of the appellant. The learned trial Court also disbelieved the eye-witnesses to the extent of Tanveer Ahmad and Mst.
Irshad Begum (acquitted co-accused). However, the learned trial Court, relying upon the testimony of these very witnesses and seeking support from the medical evidence held the appellant alone responsible for the murder of Mst. Kaneez Akhtar.
10. Learned counsel for the appellant argued that the medical evidence is not in conformity with the ocular account of the occurrence; that occurrence had taken place during the night and that possibility of the injuries having been caused with different weapons cannot be ruled out. Lastly it is argued that in the absence of any explanation the delay in the post mortem examination also suggests that the occurrence was unwitnessed and the F.I.R. Was lodged after due deliberations which renders the prosecution version highly doubtful.
11. On the other hand, learned D.P.-G. Punjab reiterated that F.I.R. Was promptly lodged and that the P.Ws. Have no motive to falsely implicate the appellant.
12. We have considered the arguments advanced by learned counsel for the parties and perused the record. The conviction of the appellant is primarily based on the evidence furnished by P.W.7 Muhammad Yagoob who is elder brother of the husband of the deceased Mst. Kaneez Akhtar and P.W.8 Robeel Mahmood the younger son of the deceased. During cross-examination P.W.7 Muhammad Yagoob disclosed the relationship of Fazal Karim that he happens to be the husband of the sister of the deceased. Muhammad Yaqoob admitted that Khurram Shahzad brother of the appellant was also working at Dubai. He did not deny the suggestion that Fazal Karim had taken Rs,100,000 from Tanveer Ahmed and that the same had not been returned. This witness admitted that Tanveer Ahmed accused is his cousin (Tayazad), however, he expressed his lack of knowledge if Fazal Karim and Talat Mahmood had refused to return money to Tanveer Ahmed. In view of these admissions and evasive replies, the failure of the prosecution to produce Fazal Karim in the witness box appears to be intentional. Therefore, it was not safe to implicitly rely upon the testimony of both the highly interested witnesses.
13. According to the prosecution, the appellant, his father Tanveer Ahmed and mother Mst. Irshad Begum had gone upstairs and assaulted Mst. Kaneez Akhtar. It is strange that none of the accused carried any weapon except a small kitchen knife, the total length and width of which was "6-1/2 x 1/2" including its handle while going to commit a capital offence. It is also more strange that none of the P.Ws. Dared to physically intervene in order to save the victim or apprehend the accused at the spot. Neither the clothes of any P.W. Got stained with blood nor had they received any scratch on their persons. In this view of the matter the presence of the P.Ws. At the time of occurrence appears to be doubtful.
14. Now we take up the medical evidence furnished by P.W.9 B Dr. Shazia Bhutta. According to the prosecution the occurrence had taken place at 7-30 a.m. And the dead body of Mst. Kaneez Akhtar had been removed to the District Headquarters Hospital, Gujranwala immediately after the occurrence where P.W.14 Sikandar Hayat recorded statement of Muhammad Yagoob at 10-00 a.m.
Which formed basis of formal F.I.R. Exh.PK/1 whereas the post mortem examination was conducted at 5-30 p.m. Admittedly the inquest report Exh.PT does not bear the F.I.R. Number nor does it bears the signatures of P.W.9 Dr. Shazia Bhutta. This omission on the part of investigating officer suggests that F.I.R. Had been lodged much after the post mortem examination.
15. The medical evidence can be analyzed from another angle. In the opinion of the doctor the time between the death and post mortem examination was 6 to 12 hours. She further opined that the rigor mortis starts after two hours of the death in the month of September and it is completed within 12 hours. In the instant case the rigor mortis was also completed in the dead body. She also opined that time between death and post mortem might be 14 hours. It can, therefore, be concluded that the I occurrence had taken place between 3-30 a.m. To 5-30 a.m. She further stated that deceased might have taken last meals 2/3 hours prior to the occurrence. Thus, keeping in view the condition of rigor mortis and the faucal matters, the occurrence appears to have taken place between 11-30 p.m. To 3-00 a.m. There is also no explanation as to why post mortem examination was conducted at 5-30 p.m. When dead body had been received in the hospital between 8-30 a.m. To 9-30 a.m. The cumulative effect of all these lapses leads to an irresistible conclusion that the occurrence which had taken place during the night between 19-9-2000 and 20-9-2000 was un-witnesses. Both the parties are some how related to each other. P.W.7 Muhammad Yaqoob, while admitting partly the suggestion given by the accused, stated that Fazal Karim (given up P.W.) had only undertaken to send Khurram Shehzad to Dubai and had not promised to provide him a job as well. The failure of the prosecution to get this witness examined during the trial without any reason appears to be intentional due to which the appellant has been prejudiced at the trial. Both the eye-witnesses have already been disbelieved qua the acquitted co-accused being highly interested in the decision of the case. Their statements cannot be implicitly relied upon without strong corroboration. The medical evidence as discussed above, does not fully support the prosecution case with reference to the time of occurrence and the weapon used in the crime.
16. For what has been discussed above, we are of the considered view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Accordingly, we accept this appeal and set aside the impugned judgment: Shahzad Tanveer appellant stands acquitted.
He shall be released forthwith, if not required in any other case.