' SHAHID HAMEED DAR, J. The appellant Muhammad Riaz was held guilty under section 302(b), P.P.C.
For the murder of Mst.Arshad Bibi, by learned Additional Sessions Judge, Faisalabad, vide judgment dated 7-4-2006 and convicted/ sentenced to death with direction to pay a sum of Rs,1,00,000 to the legal heirs of the deceased as compensation or in default thereof to undergo imprisonment for six months.
2. The convict/appellant has filed Criminal Appeal No,653 of 2006 against his conviction/sentence, besides,. There is a usual reference (Murder Reference No,422 of 2006) tinder section 374, Cr.P.C. For the confirmation or otherwise of the sentence of death, awarded to the appellant, transmitted by the learned trial Court. We propose to dispose of both the matters together through this single judgment.
3. The facts, as unfurled by Muhammad Anwar-complainant (P.W.9) in complaint Exh.PC, on the basis of which F.I.R. (Exh.PC/1) has been registered are that Mst. Arshad Bibi (deceased), his paternal niece, was married with Muhammad Riaz (appellant), who was his maternal nephew, about 19/20 years back; two daughters and three sons were born out of this wedlock who were alive; Mst. Arshad Bibi due to estrangement of relationship, filed a suit for dissolution of marriage against her husband Riaz before a Family Court, at Faisalabad which was decreed in her favour about 2-1/2 months ago, thus their marriage was dissolved; Muhammad Riaz (appellant) due to this grudge trespassed into the house of Mst. Arshad Bibi being armed with pistol, at 6-30 p.m. On 31-8-2005 and raised lalkara that he would teach her a lesson for having sought a divorce-decree; the alarm raised by the children attracted Muhammad. Anwar complainant (P.W.9), Muhammad Arif (P.W.10) and Muhammad Sarfraz P.W. (not produced) to the spot; accused Muhammad Riaz fired thrice through his pistol and the bullets landed at right lumber area, right hip area and right thigh of Mst. Arshad Bibi; the occurrence was witnessed by Muhammad Anwar (complainant), Muhammad Arif and Muhammad Sarfraz who could not help the deceased out of fear; the accused fled the scene while firing and waving his weapon; Mst. Arshad Bibi succumbed to the injuries soon after she had been shifted to Allied Hospital Faisalabad; the motive behind the occurrence pertained to obtainment of talaq through court by Mst. Arshad Bibi (deceased).
4. After registration of the F.I.R.,Bashir Ahmad, S.-I. (P.W.11) took over the investigation and immediately reached, Allied Hospital, Faisalabad, examined the dead body, prepared injury statement (Exh.PE), inquest report (Exh.PF), handed over the police papers to. Muhammad Arshad, 2680/C (P.W.2) along with the dead body for autopsy; he visited the venue of crime, on the following day i.e, 1-9-2005, inspected the place of occurrence and prepared visual site plan Exh.PJ; collected blood-stained earth .Vide memo. Exh.PG; Muhammad Arshad, constable (P.W.2) produced before him the last worn bloodstained clothes of the deceased along with a sealed phial and an envelope, which were secured by, him through memo. Exh.PB; he got prepared the site plan in scale in duplicate (Exh.PA and Exh.PA/1) qua the place of occurrence, by Aurangzeb, draftsman (P. W.1); he arrested Riaz,- accused on 5-9-2005 and recovered froth him pistol . .30-bore (P5) with two magazines, one containing four live :artridges (P6/1-4), vide memo Exh.PH, attested by Muhammad Ramzan (P.W.8) and Muhammad Ashraf P.W. (not produced). On completion of investigation, the Investigating Officer submitted challan against the accused-appellant for his trial in accordance with law.
5. At trial, prosecution in order to prove its case produced eleven witnesses in all. The ocular account was furnished by Muhammad Anwar-complainant (P.W.9) and Muhammad Arif (P.W.10).
The complainant also stated about the motive part of the incident. Muhammad Ramzan (P.W.8) appeared to testify the factum of recovery of pistol .30 bore P-5 vide memo Exh.PH from Riaz- appellant.
6. The medical evidence was presented by Lady Doctor Nageen Sobia (P.W.5), who, conducted autopsy on the dead body of Mst.Arshad Bibi (deceased) vide necropsy report Exh.PD (pictorial diagram Exh.PD/1) and found following injuries thereon:-
7. An entry wound measuring 1 cm x 3/4 cm, 10 cm below the right nipple, front of chest. Margins inverted with blackening around it.
(i) An exit wound measuring. I-1/2 cm x 1 cm margins everted, 9 cm below the scapular blade on the right side of scapula (bone), 4 cm away from the thorax spine.
(ii) An entry wound measuring 1 cm x 3/4 cm on front of right thigh, upper I/3rd part, 10 cm below the iliac spine.
(iii) An exit wound measuring 1-1/2 cm x I .,cm about 11 cm below the pubic bone on the inner side of right thigh upper 1/3rd part.
(iv) An entry wound measuring 1 on x 34 cm, with inverted margins on the outer side of left thigh upper part.
(v) An exit wound 1-1/2 cm x 1 cm margins everted on the outer side of left thigh upper part.
' The cause of death, recorded by the medical officer was massive hemorrhage occurred due to above-mentioned injuries, which were ante-mortem and sufficient to cause death in the ordinary course of nature and time. The probable time that elapsed between injuries and death was within "2 to 4 hours", whereas between death and postmortem examination, it was within 48 to 72 hours.
7. Learned Public Prosecutor by tendering in evidence the report of Chemical Examiner (Exh.PK) and that of the Serologist (Exh.PL), announced the prosecution case closed.
8. In his statement under section 342, Cr.P.C., Muhammad Riaz (appellant) denied and controverted all the allegations of fact, alleged against him,, by the prosecution and professed his innocence while responding to the question as to why this case against him and why the P. Ws.
Had deposed against him, in the following words:-- "Mst.Arshad Bibi had left my house about 1-1/2 year prior to the occurrence and had started living with her mother in Chak No,273/JB Police Station Thikriwala. While living in the house of her mother, Mst.Arshad Bibi started remaining absence from the house and some times she used to remain away from her house for 10/12 days at a stretch and due to that reason her close relatives including the P. Ws. Became annoyed with her. It has been admitted by the P. W.10 i.e, maternal cousin of Mst.Arshad Bibi deceased that, "it is correct that I, my relatives and her mother were angry with Mst.Arshad Bibi for daily going out of the house".
' In fact Mst.Arshad Bibi was missing from her house three days prior to the occurrence and her dead body was found lying in nearby sugarcane fields on 31-8-2005. The said dead body was removed to Allied Hospital on the same day and the complainant party with connivance of local police involved me in this case falsely.
' The mother of Mst.Arshad Bibi and her four children of the ages of 16, 14, 13, 7 years, who were admittedly present in the house at the alleged time of occurrence and the neighbours have not been produced in the court. The deposition of the alleged eyewitnesses suffer from material discrepancies and version of P. Ws. Have been contradicted by the medical evidence. The P. Ws.
Have deposed falsely against me because they are closely related in inter se as well as to the deceased."
' The appellant did not opt to appear as his own witness under section 340(2), Cr.P.C. To repel the charge against him nor he produced evidence in defence.
9. The learned Additional Sessions Judge on culmination of trial proceeded to convict/sentence the appellant as mentioned hereinabove.
10. We have heard learned counsel for the parties and perused the record with their able assistance.
11. Muhammad Riaz (appellant) allegedly committed the murder of his ex-wife Mst. Arshad Bibi in the backdrop of a decree of talaq, obtained by the latter after having developed irreconcilable familial differences with the former. According to complaint Exh.PC, lodged by Muhammad Anwar complainant (P.W.9) Mst. Arshad Bibi after having deserted her husband Muhammad Riaz was living in separation along with her children, two daughters and three. Sons for almost a year. In the meantime she filed a suit for dissolution of marriage against her husband which was decreed by the Family Court concerned in her favour about 2-1/2 months before the unfortunate incident during the course of which, she lost her life at the hands of her ex-husband. The complainant has categorically accused Muhammad Riaz (appellant) of forcibly entering the house of Mst. Arshad Bibi being armed with a pistol and launching an unprovocative attack during the course of which he showered bullets upon the ill-fated lady which landed at various parts of her body including right pelvic region, right lumber region and right, thigh. According to complaint Exh.PC, the injured lady was rushed to Allied Hospital Faisalabad but she could not survive and breathed her last, no sooner was she taker to the said hospital. The motive of course, was the one as stated above.
12. Muhammad Anwar complainant (P.W.9) is the real paternal uncle of the deceased lady and maternal uncle of the appellant. Muhammad Arif (P. W.10) is the maternal nephew of the complainant. The given up eye-witness Muhammad Sarfraz is the real paternal nephew of the complainant. Muhammad Ramzan (P.W.8) is real brother of the complainant and Muhammad Arshad (P.W.2) is also related to him. All the prosecution witnesses obviously, are related to the deceased but they at the same time, cannot be considered alien to the appellant as well. The question arises whether they, in the attending circumstances of the case had rendered credible or trustworthy evidence?
13. The blood-stained earth had been collected by Bashir Ahmad S.-I. (P.W.11) from a spot which was situated just in front of the house of Abdul Majeed, the father of the deceased lady vide memo Exh.PG, which was attested by Muhammad Ashraf P . W . (not produced) and Liaqat Ali (P.W.7). The site plan without scale Exh. PJ and site plan in scale Exh.PA indicate that it was point No,2 where Mst.
Arshad Bibi (deceased) had fallen to the ground in injured condition and it was the same place wherefrom the blood-stained earth was taken into possession by the Investigating Officer. The drawers of both the site plans have shown point No,1 as the place where Mst. Arshad Bibi had been fired at her lumber region by Muhammad Riaz (appellant) and this spot denotes the compound of the house of Abdul Majeed. The Investigating Officer (P.W.11) and the' draftsman (P.W.1) have mentioned in their testimonies that they had drawn the site plans Exh. PJ and Exh.PA as per directions of the eye-witnesses. This version has not been denied or controverted by Muhammad Anwar complainant (P.W.9) and Muhammad Arif (P.W.10) in their testimonies. Both the eye- witnesses have categorically stated that the occurrence had taken place at 6-30 p.m. About 5 months or 5-1/2 months earlier than the date of their examination before the trial Court. For this purpose, so as to know the exact date of occurrence we have to revert to the complaint Exh. PC which shows it as 31-8-2005. The witnesses of ocular account might not have mentioned the exact date of occurrence knowingly, while deposing as P. Ws. During trial as they by that time, must have smelled something boiling at the bottom of the prosecution case, after having fully known the in and outs of the postmortem examination report Exh: PD which shows that the autopsy on the dead body of the deceased had been performed by lady doctor Nageen Sobia (P.W.5) on 31-8-2005 at 12-00 p.m. During the course of which she recorded the crucial details regarding "the time elapsed between injury and death within two to four hours and between death, and postmortem 48 to 72 hours".
14. The lady doctor while appearing as P.W.5 stated that she had dissected the dead body at 12-00 on 31-8-2005 without mentioning whether it was 12-00 noon or zero hour. She, however, mentioned in her examination-in-chief, after having been reexamined on 30-1-2006 that she had conducted the postmortem examination upon receipt of reference Exh.PE/1 transmitted by a medical officer RHC, Chak 30/JB dated 1-9-2005 which bore an endorsement Exh.PE/2, made by her and it showed that she had dissected the dead body on 1-9-2005. The medical officer of RHC, Chak 30/JB however, did not appear at trial as a prosecution witness. The document Exh. PE in fact is the injury statement qua the deceased lady which bears an uncustomary. 'Note' (Exh.PE/1) by the above said medical officer with following description:--- "As ordered by respected DOH Faisalabad dead body is Ref to Chak Ghumra RHC For postmortem W.M.O seat is vacant at RHC 30 JD ORDERED BY ALLAHO/ALL MIGHTY "
' The above 'Note' bears the signature of a medical officer of RHC 30 JB and the date as 1-9-2005.
The entire 'Note' (the signature of the medical officer and date inclusive) has been cancelled with parallel oblique lines by someone (probably by the same medical officer) to annul the validity thereof. The endorsement (Exh. PE/2) "Examined vide PM No, 5/05 dated 1-9-2005" does not bear the same signature of lady' doctor Nageen Sobia (P.W.5) as we find on the necropsy report Exh.PD.
It might be a clever skirmish on the prosecution's part so as to bridge up the gap and inconsistencies between the ocular account and the medical evidence.
15. Muhammad Anwar P.W.9 has stated in his testimony that Riaz accused while armed entered the house of Arshad Bibi and raised lalkara that he would teach Mst. Arshad Bibi (deceased), a lesson for having gotten divorce from him; on hearing the noise of the children, the complainant joined by Arif (P.W.10) and Sarfraz P.W. (not produced) rushed to the house of Mst. Arshad Bibi and saw that Riaz fired a shot with 30 bore pistol whin hit the right flank of Arshad Bibi who ran outside the house and fell in the street in injured condition; Riaz accused fired two more shots which landed on the right hip and right thigh of fallen injured; the accused-appellant ran away still firing and waving his pistol; the complainant and other eyewitnesses shifted Mst. Arshad Bibi in injured condition to Allied Hospital Faisalabad but she succumbed to the injuries near the said hospital.
16. Muhammad Arif P.W.10 stated that he reached the spot on hearing the noise and saw the accused running away while firing; he immediately corrected' himself and stated that accused made three, fire shots on Mst. Arshad Bibi which landed on her right flank, right hip and left thigh; he along with others shifted the injured lady to Allied Hospital but she succumbed to the injuries before she could be taken to the said hospital. This witness did not depose about the place of occurrence nor he stated about the mode of occurrence as to how many fire shots had been received by the deceased lady inside the house and how many in the street.
17. The improvements made by Muhammad Anwar complainant in his testimony are crucial and calculated which cannot be overlooked easily. He did not contend at all in complaint Exh.PC that one of the fire shots had been received by the deceased lady in the courtyard of her house and the rest in the street. The changed version in aforesaid terms, might have been adopted by the complainant as blood-stained earth was collected by the Investigating Officer Bashir Ahmad S.-I.
(P.W.11) from the street. The complaint Exh.PC(' categorically reveals that the occurrence had taken place inside the house of the deceased lady and she had been done to death there. He was confronted with his previous statement Exh.PC in his testimony and it was found that he had stated nothing about Mst. Arshad Bibi to have run outside the house after receipt of first fire. Shot and fallen in the street in injured condition where she was fired at twice by the accused. It appears from the testimony of Muhammad Anwar P.W.9 that mother and two children of the deceased lady aged 16 years and 14 years resisded with her at the time of occurrence. The other children aged 13, 11 and 7 also lived in the same house. He has admitted in his statement that he was present at the time when the I.O. And the draftsma n visited the place of occurrence for preparation of the site plans and that he had pointed out various spots to both of them along with Sarfraz and Arif P. Ws.
For the preparation of site plans Exh.PJ and Exh.PA. He has admitted in his statement that his house was at a distance of 90 feet from the house of occurrence and situated in a bazaar, across the road and the bazaar was about 30 feet wide. 'The house of Sarfraz P.W. Was at a distance of 150 feet towards north from his house. He has further deposed that he heard the noise of the children and also heard the report of three fire shots one minute thereafter.
18. Muhammad Arif P.W.10 stated that mother of Mst. Arshad Bibi was present at his house at the time of occurrence. He further stated that he along with Sarfraz P.W. Was present at the door step of Muhammad Anwar complainant when they heard the reports of fire shots. He could not mention anything worthwhile which could establish his presence at the place of occurrence at the relevant time. Both the eye-witnesses (P.W.9 and P.W.10) were put the suggestions that the deceased was a lady of easy virtue who remained away from her house frequently for days and her family members were annoyed over her conduct and that she had been missing from her house for some days prior to the occurrence and that her dead body was found from the sugarcane fields whereafter, the complainant and others joined hands under a conspiracy to fabricate a false case against the appellant to blackmail him but these suggestions have been denied by these witnesses.
19. The departure made from his previous statement by Muhammad Anwar complainant clearly establishes the fact that he was neither present at the spot at the C relevant time nor he had witnessed the occurrence. The distance of his house from the place of occurrence and his contention to have heard the report of firing therefrom is sufficient to hold that he had not rendered the credible depositions. Why would he change his stance as contained in his complaint Exh.PC to the one that Mst. Arshad Bibi after having received the first fire shot ran outside her house and fell in the street? It is a dishonest improvement which badly dents the prosecution case. Why did the complainant and others could not shift Mst. Arshad Bibi to the hospital for treatment in injured condition and what obstructed them to do so, has also not been accounted for by them in their testimonies. The deceased lady according to the medical evidence remained alive for about two to four hours after having received the fire arm injuries and this time was sufficient for the eye- witnesses, if they were present at the place of occurrence at the crucial hour, to make it to the hospital along with the injured lady. The witnesses took another somersault in their testimonies when they contended that the injured lady died on way D to the hospital, in contrast to their earlier version that she expired after she had been taken to the hospital.
20. The medical evidence as discussed in preceding paragraphs does not corroborate the ocular account in any manner rather it severely jolts the same as the time elapsed between death and postmortem examination has been mentioned by the medical officer (P.W.5) as 48 to 72 hours in the postmortem examination report. Regardless the controversy discussed hereinbefore, qua the date and time of autopsy, the fact remains that the time elapsed between death and postmortem examination, as is manifest from the postmortem examination report Exh.PD, it can be held that the ill-fated lady had been done to death much earlier than the time mentioned in complaint Exh.PC.
Even if the time 12-00 or 12-00 p.m. Are taken into consideration or the controversial 'Note' (Exh.PE/1) or the endorsement Exh.PE/2 are pondered over, the gulf created by the medical evidence, as to the time of death of the deceased, cannot be reconciled by any argument. The medical evidence can disclose, the number of injuries, the seat of injuries, the Weapon used for infliction of such injuries, the probable time of the occurrence or the other allied details but it cannot identify the perpetrator of the crime. The medical evidence in its present form is not only fatal to the ocular account but also to the prosecution case as a whole. The eyewitness account presented by Muhammad Anwar P.W.9 and Muhammad Arif P.W.10 is filled with countless contradictions and discrepancies which have badly marred the intrinsic believability of their testimonies, so these (statements) cannot be relied upon for .Sustaining the impugned judgment which we hold to have been passed merely on conjectures and surmises by the learned trial Court without caring for the inconsistencies and fallibility of the prosecution case.
21. Considering all the circumstances, we feel constrained to allow the appeal (Criminal Appeal No,653 of 2006) which we hereby allow and set aside the conviction and sentence of the appellant and acquit him all of the charges against him. We direct that the appellant be set at liberty forthwith, if not wanted in any other connection.
22. The Reference (M.R. No,422 of 2006) is rejected, death sentence not confirmed.