' SHAHID BILAL HASSAN, J. --- Jarray Khan appellant has filed Crl. Appeal No, 162-J of 2010/BWP through jail, who on conclusion of the trial in case F.I.R. No, 443, dated 21.10.2008 registered at P.S. Kotsabzal, vide judgment dated 7.4.2010 passed by the learned Additional Sessions Judge, Sadiqabad, was convicted for an offence under Section 302(b), P.P.C. For committing 'Qatl-i-Amd' of Umar Wada and was sentenced to death with direction to pay a sum of Rs, 2,00,000/- to the heirs of the above-said deceased by way of compensation under Section 544-A, Cr.P.C. Or in default of payment thereof to undergo SI for six months. Through the same judgment, co-accused namely Mst. Fatima Bibi, Shah Nawaz and Qadir Bakhsh were acquitted of the charge by the learned Trial Court while extending them the benefit of doubt. Ghulam Muhammad complainant has filed Crl. Appeal No, 191 of 2010/BWP against the acquittal of Mst. Fatima etc. Both these appeals have been heard by us alongwith Murder Reference No, 15 of 2010/BWP sent by the learned Trial Court under Section 374, Cr.P.C. Seeking confirmation of the sentence of death passed by it against Jarray Khan appellant. We intend to decide all these matters jointly through the present consolidated judgment.
2. Succinctly the facts of the prosecution's case unfolded in the complaint (Ex.PD) reported by Ghulam Muhammad complainant (PW4) on the basis whereof the formal F.I.R. Was drafted are that he was resident of Mauza Kandair. Umar Wada father of the complainant about 9/10 years ago had contracted second marriage with Mst. Fatima Bibi (acquitted accused), who was not having good character and as such the whole family was worried due to which Umar Wada alongwith Fatima Bibi shifted to Chak No, 200/P. According to the complainant Fatima Bibi did not leave her bad habits, who developed illicit relations with Jarra appellant as he was on visiting terms in the house of Umar Wada. On having knowledge about the said relations, Umar Wada passed such information to the complainant and forbade Jarra from visiting his house, but he continued to meet Mst. Fatima Bibi secretly. In the preceding night of 21.10.2008 the complainant (PW4) accompanied by Ghulam Mustafa (PW4) and Mehar Din (given up PW) arrived in Chak No, 200/P for shifting Umar Wada back to Mauza Kandair. All the PWs slept in the street outside the house of Umar Wada. After hearing hue and cry at about midnight they went inside the house and found that Mst. Fatima Bibi was not present at her cot. Then they were attracted to the adjacent room and saw that Jarra appellant, Chandi, Shah Nawaz, Fida Hussain and Qadir Bakhsh accused, causing injuries on the head of Umar Wada, who also hurled threats when the PWs attempted to catch hold of them. Mst. Fatima Bibi deceased was also found catching hold of Umar Wada from the legs. The complainant also alleged that they i,e, complainant and P.Ws. Could not go near the assailants due to fear of life, who while extending threats to them succeeded in fleeing from the spot. They attended Umar Wada, who was smeared with blood being unconscious and died at the spot due to the injuries.
3. The investigation of this case was conducted by Liaqat Ali, S.I. (PW-8), who reached the place of occurrence on having knowledge about the occurrence and the dead-body was found lying in the house; he recorded the statement of the complainant (Ex.PD) and sent it to the Police Station for drafting the formal F.I.R. Then during the investigation, the dead-body of the deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under Sections 161, Cr.P.C. Were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site-plan of the place of occurrence was prepared, the dead-body was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, formal site-plan of the place of occurrences was got prepared, Jarray Khan appellant as well as the other co-accused were arrested and different recoveries were effected at their instance. Then after completion of the investigation challan was submitted in the Court.
4. At the commencement of the trial, the learned Trial Court after supplying copies of the documents required under Section 265-C, Cr.P.C. To the appellant and his co-accused framed charge under Section 302/34, P.P.C. On 22.10.2008 to which they pleaded not guilty and claimed a trial.
5. During the trial, the prosecution produced as many as, nine witnesses in support of its case. The ocular account of the incident in question was furnished by Ghulam Muhammad complainant (PW-4) and Ghulam Mustafa (PW3) while medical evidence was provided by Dr. Reham Din (PW5), who conducted the post-mortem examination on 22.10.2008 at 9.00 a.m. On the dead-body of Umar Wada, who was an old man and post-mortem staining were present, eyes were closed and mouth open. Blood clotted on head with matted hair. The following injuries were found:- "(1) A lacerated wound of 3 x 21/2 cm on right side of forehead. Wound was skin deep and was 5 cm above the right eye brow.
(2) A lacerated wound of 3 x 2 cm on left side of head. Wound was skin deep and was 11 cm above the left eye brow.
(3) A lacerated wound of 21/2 x 1-1/2 cm on the left side of forehead and was skin deep and 1 cm above left eye brow.
(4) A lacerated wound of 1-1/2 cm x 1 cm in front of left ear. Wound was skin deep.
(5) A swelling of 10 x 7 cm above the right ear blood was coming from the ear on dissection of skull. There was heamatoma formation below the scalp on both side of head and heamatoma formation in the skull on right side. Skull was fractured on the right side. "
6. According to the doctor, the death occurred due to shock and haemorrhage of head injury and all the injuries individually and collectively were sufficient to cause death in the ordinary course of nature, which were ante-mortem having been caused by blunt weapon. The hyoid bone of the deceased was sent to Histopathologist for ascertaining fracture. The probable time between the injuries and death was within half to one hour and between death and post-mortem was within 10 hours. According to the doctor the hyoid bone section revealed bony fragment and the final cause of death was head injury. The investigation of this case was conducted by Liaqat Ali, S.I. (PW-8), who stated about the various steps taken by him during the process thereof. The remaining evidence produced by the prosecution was more or less formal in nature.
7. In their statements recorded under Section 342, Cr.P.C., the appellant and the co-accused had denied and controverted all the allegations of fact revelled against them by the prosecution and had professed their innocence. However, to a question that "Why this case against you and why the PWs deposed against you?" Jarray Khan appellant replied in the following terms:- ' "I have been involved in this case due to suspicion and enmity. The PWs are closely related to the deceased and also related inter se. They are tutored PWs and were not present at the spot at the time of occurrence. They were called later on and the present case was registered much later after the post-mortem examination and the story of the prosecution is concocted and fabricated one. No independent person of the locality has been produced by the prosecution in evidence."
' In reply to the aforesaid question, Mst. Fatima Bibi (acquitted accused) replied as infra:--- ' "The real facts of this case are that on the fateful night I along with my daughter aged about 8/9 years were sleeping near the deceased Umar Wada my husband in my house. The other accused persons of this case entered in my house with the intention of theft / dacoity and we woke up and my husband Umar Wada made hue and cry so the other accused of this case committed murder of my husband and fled away from the spot. I took my husband in my lap and my clothes were completely blood-stained with the blood of my husband deceased. He died due to the said injuries. I also received injuries during the said occurrence from the other accused of this case. Police arrested me on the same day without any female police officer or female constable. The 1.0. Also collected my blood-stained earth from the spot, but he did not make the same part of the prosecution evidence and mala fidely implicated me in connivance with the complainant party in this case after receiving bribe from the complainant. The 1.0. Of this case also removed my blood-stained clothes at P.S. And taken in his possession, but the said clothes were not made part of prosecution evidence. During the course of investigation police seriously tortured me to get their desirable answer and my first statement regarding the occurrence was recorded by the 1.0. Him-self against my real statement. The 1.0. Of this case investigated me alone at police station without presence of any female police officer or constable. When the 1.0. Of this produced me before the Ilaqa Magistrate for permission to get me medically examined, I refused my medical examination under the threat of the 1.0. That if 1 got myself medically examined, he would involve me in this false case. 1 have no immoral relations with any of the other co-accused persons. The complainant of this case is my step- son. He was not happy with my marriage. He also wants to deprive me from the legal share of my husband. He also wants to sell my minor daughter so he falsely implicated me in this murder case, other prosecution witnesses are close relatives of the complainant."
' The other acquitted co-accused also refuted the allegations. However, they did not opt to make statements on oath under Section 340(2), Cr.P.C. Or produce the defence evidence except Mst.
Fatima Bibi co-accused, who got examined Abida Parveen her daughter aged about 8/9 years (DW1) and Abdullah (DW2).
8. Upon conclusion of the trial the learned Trial Court after finding the prosecution's case against Jarray Khan appellant to have been proved beyond reasonable doubt, he was convicted and sentenced by it as mentioned and detailed above while three co-accused were acquitted. Hence, the present matters before this Court.
9. The learned counsel for Jaray Khan appellant contends that both the eye-witnesses were chance witnesses and also inimical towards the appellant as well as the acquitted accused due to previous enmity, who on the one hand cannot be relied upon without receiving corroboration from the independent source and on the other hand they were bound to give reasonable explanation for being present at the spot, which was not their usual place of residence or business; that there are contradictions in the statements of both the eye-witnesses; that motive part has already been disbelieved by the learned Trial Court; that the eye-witnesses' were not present at the spot, who Iater on were introduced as such being close relatives of the deceased; that co-accused with similar role of causing injuries to the deceased have already been acquitted by the learned Trial Court and the appellant is also entitled to the same treatment as his case was not distinguishable, but the PWs made dishonest improvements for attributing specific injury on head to the appellant; that recovery evidence was planted against the appellant with male fide intention; that the F.I.R.
Was got lodged with delay and after conducting preliminary investigation which fact is proved from the factum that the post-mortem was conducted on 22.10.2008 at 9.00 a.m. With the delay of about 33 hours after the occurrence, which was alleged to have taken place during the midnight preceding to 21.10.2008; that the conduct of the eye-witnesses who were closely related to the deceased was unnatural as they did not make any effort to save the deceased from the clutches of the assailants, who were not armed with any fire-arm weapon and it also creates serious dent about their presence at the spot; that the occurrence was alleged to have taken place during odd hours of night, but no source of light was disclosed in the F.I.R. And dishonest improvement about the same was also made during the trial; that the medical evidence is in contradiction with the ocular account as only five injuries were observed on the body of the deceased, which were not found in consonance with the assailants, who were five in number and each of them was attributed at least two blows; that the prosecution has to stand on its own legs, which miserably failed to prove the charges against the appellant or the co-accused beyond any shadow of doubt; that the exculpatory statement of the co-accused cannot be taken into consideration having no evidentiary value and the appellant is liable to be acquitted.
10. On the contrary, the learned DPG assisted by learned counsel for the complainant has opposed the Criminal Appeal on the grounds that both the eye-witnesses have fully explained their presence at the spot, who were not previously inimical towards the appellant or the co-accused; that minor contradictions in their statements cannot be taken into consideration being the lapses of time and even otherwise each and every fact cannot be explained in the F.I.R., which is only a tool to put the criminal machinery into motion; that the F.I.R. Was got lodged with promptitude and the number of the injuries on the person of the deceased would show that the occurrence had taken place by several assailants, but the learned Trial Court has wrongly acquitted the co- accused as all of them had committed the occurrence in connivance with Mst. Fatima Bibi widow of Umar Wada deceased, who had developed illicit relations with Jaray Khan appellant, which fact was in the knowledge of the other relatives; that the learned Trial Court has wrongly disbelieved the motive part; that the appellant alongwith the acquitted co-accused had committed the murder of Umar Wada deceased in a brutal manner and the acquitted co-accused may also be awarded the legal sentence besides the appellant, who is not entitled for any leniency as the fatal injury on the head was attributed to him and the occurrence was committed in a premeditated manner, hence the death sentence is liable to be confirmed while dismissing appeal of Jaray Khan appellant and the appeal filed by the complainant against acquittal be allowed.
11. We have heard the learned counsel for the parties at length and have also gone through the record of this case with due care and caution.
12. The occurrence in the present case according to the prosecution had taken place during the midnight preceding to 21.10.2008 within the area of Chak No, 200/P, which is situated at a distance of 14 kilometers from PS Kotsabzal whereas the matter was claimed to be reported by Ghulam Muhammad complainant (PW4) through statement (Ex PD) recorded by Liaqat Ali, S.I. (PW9) at the spot on 21.10.2008 at 4.30 a.m. On the basis of which formal F.I.R. Was drafted under Sections 302/34, P.P.C. The same day at 5.15 a.m. At the Police Station. However, it is found doubtful whether the F.I.R. Had been recorded at the given time as according to the I.O. (PW8) after recording the statement of the complainant he had examined the dead-body of the deceased and sent it to mortuary for autopsy through Haq Nawaz, Constable (PW-6) after preparation of the necessary papers immediately. The post-mortem examination on the dead-body of the deceased had been conducted with the delay of about 33 hours on the next day i,e, 22.10.2008 at 09.00 a.m. Without any explanation. This possibility cannot be ruled out that the police papers had not been prepared immediately as claimed by the Investigating Officer and the time was consumed in concocting the prosecution story, otherwise there was no reason for postponing the postmortem examination till the next day. It casts serious doubt regarding registration of the F.I.R. At the time given by the prosecution. There is no second opinion that an F.I.R. Under Section 154, Cr.P.C. Which has been lodged after conducting an inquiry loses its value as held in the cases of Muhammad Hanif v. The State PLD 1977 Lah. 1253, Mst. Muhammadia v. Zari Bacha and another PLD 1982 Pesh. 85, Nazir Masih v. State 1997 MLD 48, Muhammad Javed v. S.S.P. Gujranwala and others PLD 1998 Lah. 214 and Qazi Muhammad Javed v. S.S.P. Gujranwala and others 1999 P.Cr.L.J. 1645. Hence, the F.I.R. In the present case cannot be used as a corroborative piece of evidence to the ocular account and the prosecution story has to be seen with utmost care and caution.
13. To prove the ocular account the prosecution produced Ghulam Muhammad complainant (PW4) and Ghulam Mustafa (PW3). The former was son and the latter was nephew as well son-in- law of the deceased. As such both the eye-witnesses were related inter se and with the deceased closely. It has come on the record that the complainant party was unhappy with the deceased Umar Wada as he had contracted second. Marriage with Mst. Fatima Bibi, acquitted accused.
Admittedly, both the eyewitnesses were not residing at or near the place of occurrence. As per his own showing the complainant (PW4) was residing at Mauza Kandair Tehsil Sadiqabad whereas according to the NIC he was r/o Sakarand, Province of Sindh at the time of occurrence and the said card was issued on 25.8.2006 more than 2 years prior to the occurrence. PW4 also admitted during the cross-examination that he had been residing at the latter place for the last 12/13 years. Similarly Ghulam Mustafa (PW3) admitted that he was residing in Mauza Kandai, which is situated at a distance of 13/14 Kilometers from the place of occurrence. Both the said PWs were residents of different places, who failed to give any plausible justification for jointly coming to the place of occurrence except that they intended to shift back Umar Wada deceased to Mauza Kandair. PWs 3 and 4 appear to have made dishonest improvements and they were rightly confronted with their previous statements recorded by the police. Moreover, the I/O (PW8) has frankly conceded that he did not record statements of any residents of Chak No, 200/P showing the presence of the eye- witnesses at that place. PW4 claimed that they had shifted the dead-body on a cot which was bleeding whereas the I/O (PW8) expressed that the clothes of the complainant were not stained with blood. It is also noteworthy that the I/O (PW8) during the cross-examination has conceded that he did not specify the names of the PWs in the site plan Ex.PM or the Inspection Notes, which also leads to draw an inference that the eyewitnesses were introduced subsequently and the prosecution story was concocted after making preliminary investigation.
14. There is also another aspect of the case. The occurrence took place after the mid of the month of October, 2008 and in any case the nights are cold in that season. It does not seem plausible that PWs 3 and 4, who were son-in-law and real son respectively of the deceased and had travelled from far off places would be made to sleep in the street outside the house in the cold night. PW3 also stated that they were sleeping in front of the main gate of the house and that the door of the shop was not in front of that place, which is totally opposed to site plan (Ex.PM). PW4 during the cross-examination stated that they shifted the dead-body on a cot while PW8 claimed that the deceased was on the cot when he died, but afterwards it was stated that there was no blood on the cot. Even otherwise the conduct of the PWs at the spot, who were closely related to the deceased, was unnatural and inhuman as there was only one door, but they did not make any effort to save the life of the deceased or catch hold of the assailants inspite of the fact that neither of the assailants was carrying any fire-arm weapon and none of the P.Ws. Was injured by them.
Moreover, it was a night occurrence, but no source of light was given in the F.I.R. The I/O (PW8) has admitted during the cross-examination that he did not mention the source of any light in the site plan (Ex.PM) or the Inspection Notes and the PWs did not point out any bulb at the spot. The learned defence counsel has rightly pointed out that PWs 3 and 4 have made improvements regarding the availability of light at the spot at the time of occurrence, who were duly confronted in this respect with their previous statements. It is also pertinent to mention that PW3 was residing at Mauza Kandair while PW4 was r/o Sakarand Province of Sindh whereas the occurrence took place at Chak No, 200/P and the accused were residents of Chak No, 123/P, but how the PWs were able to identify them even during night time without any source of light is doubtful when they were not earlier known to each one of them. We have also found it strange that according to the doctor (PW5) the probable time between the injury and death of the deceased was within half to one hour, which means that he did not met with sudden death, but the PWs in spite of their close relationship with the deceased did not make any effort for providing first aid or shifting him to the nearby dispensary for saving his life and it also casts doubt about the presence of the PWs at the spot at the relevant time. We are in agreement with the learned counsel for the appellant that PW-4 during the cross-examination has stated that it took them half an hour to complete the proceedings of tracing the foot prints of the accused, which fact alone is sufficient to draw an inference that the eye-witnesses were not present and they did not witness the occurrence, but all the story mentioned in the F.I.R. Was an after-thought and manipulated. The possibility cannot be ruled out that the eye-witnesses were not present at the spot, who were summoned subsequently by the police for introducing them as such being close relatives of the deceased and they nominated the appellant and the co-accused for the murder of the deceased on account of suspicion. The delay of 33 hours in conducting the post-mortem examination is very significant and it is inferred that till such time the police papers including inquest report wherein the story of the F.I.R. Is reproduced were not prepared. Hence, we are confident to observe that the prosecution has failed to prove the ocular account by producing evidence of unimpeachable character and for maintaining conviction in a case of capital sentence inasmuch as no reliance can be placed on the evidence furnished by the eye-witnesses i,e, PW-3 & PW-4, who were admittedly the chance witnesses, but they failed to prove themselves as truthful witnesses.
15. The medical evidence is also not found in line with the ocular account as the total number of injuries observed by the doctor (PW-5) on the body of the deceased were five, which are not found in consonance with 6 number of accused nominated in the F.I.R. And according to the complainant (PW4) each assailant had given 2 to 3 sota blows on the head of his father. Even otherwise the PWs also made improvements to attribute the specific fatal injury on the head of the deceased to Jarray Khan appellant as in the F.I.R. He was only attributed the general allegation of inflicting sota blows along with the co-accused on the head of the deceased.
16. As regards the recovery evidence, it has been rightly pointed out by the learned counsel for the appellant that the recovery of weapon of offence at the instance of the appellant was shown to have been effected from the house or the co-accused situated in Chak No, 200/P whereas the appellant is resident of Chak No, 123/P. Moreover, no person from the locality was joined to witness the said recovery and provisions of Section 103, Cr.P.C. Were violated as the alleged recovery witness (PW3) was admittedly residing 13/14 kilometers away from that place. Even otherwise the recovery of crime weapon is only a corroborative piece of evidence, which by itself is not sufficient to convict the accused in the absence of substantive evidence. Reference is invited to ljaz Ahmed v.
The State (1997 SCM R 1279). It was held in the case of Asadullah Muhammad All (PLD 1971 SC 541) that corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. In the case of Saifullah v. The State 1985 SCM R 410, it was held that when there is no eye-witness to be relied upon, then there is nothing which can be corroborated by the recovery. In the present case, we have already discarded the ocular testimony and as such there is no substantive piece of evidence which requires to be corroborated through the recoveries. Thus, the recovery evidence in the present circumstances of the case has no weight.
17. As far as the motive in the present case is concerned, it is settled law that the motive is always considered to be a double-edge weapon as if on the one hand there is motive to commit the murder of the deceased by the accused and on the other hand it could also be a reason for false implication of the accused on suspicion. In the present case we have already observed that the eyewitnesses were not present at the spot. So the motive alone cannot be made basis for maintaining the conviction against the appellant without any other evidence and even otherwise the learned Trial Court has already disbelieved the motive through the impugned judgment, which need not be further discussed by this Court.
18. For what has been discussed above, we have come to an irresistible conclusion that the prosecution had not been able to prove the case against the appellant beyond any shadow of doubt. Hence, Criminal Appeal No, 162-J of 2010, is hereby accepted, the impugned judgment of conviction and sentence recorded by the learned Trial Court against Jarray Khan appellant is set aside and he is acquitted of the charge by extending the benefit of doubt, who shall be released from jail forthwith, if not required in any other criminal case.
19. Consequently, the death sentence awarded to Jarray Khan appellant is not confirmed and Murder Reference No, 15 of 2010/BWP is replied in the negative.
20. Since the ocular account has already been disbelieved by us in the preceding paras and even Jarray Khan appellant, who was convicted and sentenced to death by the learned Trial Court has been acquitted by this Court, we do not find any occasion to interfere with the acquittal of the co- accused recorded by the learned Trial Court through the impugned judgment and resultantly Crl.
Appeal No, 191 of 2010/BWP filed by Ghulam Muhammad complainant is also dismissed without having any force. Criminal .