MAZHAR IQBAL SIDHU, J.---This judgment will dispose of above captioned criminal appeal filed jointly through jail authorities by Abdul Khaliq and Talib Hussain appellants as well as Murder Reference for confirmation of their death sentences or otherwise, who were convicted by learned Additional Sessions Judge, Mianchannu, in a case registered vide FIR No.211/07 dated 23-6-2007 under section 302/34, P.P.C. Registered at Police Station Tulamba, Mianchannu, Distt. Khanewal vide impugned judgment dated 2-9-2008 and sentenced as follows:-
(1) Abdul Khaliq
(2) Talib Hussain
(i) Death each under section 302(b), P.P.C. As Tazir and to pay Rs.50,000 each as compensation to the legal heirs of the deceased Shehnaz Qadir under section 544-A, Cr.P.C.
2. The woeful story as spelt out by Muhammad Nadeem complainant (P.W.5) in FIR Exh.PE is that his sister Shehnaz Qadir wife of Shehzad Qaiser along with her daughter Shehzadi Gulfam, aged about 9/10 years, had come on 18-6-2007 from Karachi to Sindhilianwali, Teh. Kamali to participate in his (complainant) annual marriage anniversary. On 21-6-2007, the complainant along with his said sister, his niece Shehzadi, his brother Imran Qadir, his maternal cousin Shamshair son of Noor Muhammad and paternal cousin Mumtaz Ahmad, in order to engage his brother Muhammad Ajmal with Mst. Shazia daughter of Muhammad Ramzan, went to Chak No.18/8BR, (Talumba), Teh.
Mianchannu, however, stayed in the house of Mumtaz son of the brother of his father, at Chak No.4/8.R Talumba and reached on 22-6-2007, in the house of said Muhammad Ramzan in Chak No.18/8BR; after the ceremony of engagement stood completed and they had taken the food, at 11- 30 p.m. (night), the complainant along with his sister Shehnaz Qadir, his niece Shehzadi Gulfam, his brother Imran Qadir, cousins Shamshair and Ramzan came in the street, in the meanwhile, Mumtaz Ahmad (renounced P.W.) on a motorcycle reached there and congratulated them; abruptly, appellant Abdul Khaliq armed with pistol and appellant Talib Hussain empty handed, emerged there; Talib Hussain appellant caught hold of the hand of his said sister Shehnaz Qadir, raised Lalkara that she would be taught a lesson for taking divorce and lodging them (appellants) in jail, thereafter, he (Talib Hussain) asked appellant Abdul Khaliq to kill her whereupon within their view, said appellant Abdul Khaliq made a fire shot with his pistol .30 bore hitting Shehnaz Qadir on her back and pierced through her belly. He made second fire shot hitting her bicep (upper portion of right arm) as a result of which, she fell down on the ground. They took care of his sister who succumbed at the spot. The appellants with weapon while imparting intimidations, fled away towards their house.
The motive behind the occurrence was that his sister had taken divorce from Talib Hussain appellant and married to Shehzad Qaiser. On account of the murder of their parents, said Talib Hussain and his brother Haji Ahmad remained in jail for 9/10 years and due to that grudge they with their common object murdered his sister. Hence, instant FIR.
3. Iftikhar Hussain SI/I.O. (P.W.11) deposed that on 23-6-2007, he was posted at P.S. Talumba, Mianchannu. In the intervening night of 22/23-6-2007, he was present in connection with patrol duty at "Pul Gharatt", when Allah Ditta constable handed over him copy of FIR Exh. PE and therefrom he immediately proceeded to place of occurrence, prepared inquest report Exh.PG; injury sheet Exh.PD; dispatched the dead body under the escort of Nazir Ahmad constable (P.W.10) to the mortuary of RHC Talumba; collected blood stained earth from the spot, made the same into sealed parcel and took into possession vide memo. Exh.PF attested by the P.Ws.; prepared site plans Exh.PA/A; recorded the statements of P.Ws. Imran Qadir, Shamshair, Shehzadi Gulfam and Mumtaz Ahmad; took into possession the last worn clothes of the deceased i.e. Qameez Exh.PG/1, trouser P.G/2 and Dopatta P.G/3 (all blood imbrued) vide memo. Exh.PG. He also got prepared scaled site plan from the draftsman Exh.PA, Exh.PA/1 and 2 on 27-6-2007. Appellant Abdul Khaliq was arrested on 18-7-2007 who while on remand on 25-7-2007 made disclosure and got recovered pistol Exh.PH/1 from an iron box in his house, made the same into sealed parcel and took into possession vide memo. Exh.PH attested by the P.Ws. And also prepared its rough site plan Exh.PH/A. Appellant Talib Hussain was arrested on 25-7-2007 and he was got remanded to jail on 26-7-2007. He handed over the case property to the Moharrar of Police Station for its safe custody in the Maalkhana and its onward transmission to the concerned quarter.
4. Investigation culminated in preparing the report under section 173, Cr.P.C. By mentioning the names of the appellants in column No.3 of the said report.
5. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellants to which they did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead its evidence in order to substantiate the charge.
6. At the trial, prosecution, in order to prove its case, produced 11 witnesses in all.
Lady doctor Benazir Sajid (P.W.3) deposed that on 23-6-2007 she performed the post-mortem examination on the dead body of deceased Shehnaz Qadir and observed as follows:- INJURIES
(i) A rounded lacerated firearm wound about 1 x 1 cm with inverted burned margins on the anterolateral aspect of right upper arm about 10 cm below the shoulder going deep by damaging skin subcutaneous tissues and transversing the muscles of upper arm and coming out from medial aspect of right upper arm (entry wound).
(ii) A rounded lacerated firearm wound about 1.5 x 1.5 cm with everted margins on the medial aspect of right upper arm, close to the axilla. (exit wound).
(iii) A rounded firearm lacerated wound about 1 x 1 cm with averted burned margins on the lateral aspect of left lower chest going deep into the chest cavity by damaging skin subcutaneous tissues and intercostals muscles and pleura then piercing left lung, heart and right lung and coming out as wound of exit on the lateral side of right chest.
(iv) A rounded firearm lacerated wound about 1.5 x 1.5 cm with everted margins of the lateral aspect of right chest close to the axilla and about 4 cm lateral to right breast. (exit wound)
(v) A rounded firearm lacerated wound about 1 x 1 cm superficial with inverted burned margins in the left iliac fossa. (entry wound)
(vi) A rounded firearm lacerated wound about 1.5 x 1.5 cm with everted margins about 4 cm above the injury No.5. (exit wound)
(vii) A lacerated wound about 1 x 2 cm superficial on the central abdomen about 2 cm to the right of midline.
REMARKS In her opinion, cause of death was excessive haemorrhage, shock and damage to the vital organs i.e. Lungs and heart caused by injuries Nos.3 and 4 individually and collectively by injuries Nos.1 and 2 by a firearm weapon. According to her, injury No.3 alone was sufficient to cause death in the ordinary course of nature.
Probable time that elapsed between injury and death was almost immediate and between death and post mortem was about 10 to 18 hours.
Exh.PB was the correct carbon copy of the postmortem report, and Exh.PB/1 were the sketches of injuries, the same bore her signatures.
7. Learned ADPP renounced P.W. Namely Mumtaz Ahmad as being de-trop and thereafter by tendering in evidence reports of Chemical Examiner Exh.PJ and that of Serologist Exh.PL and report of Forensic Science Laboratory Exh.PK. Vide his statement dated 23-6-2008 closed the prosecution case. Subsequently, on the acceptance of application for production of documents, by producing certain documents vide statement dated 28-6-2008 closed the prosecution case.
8. Thenceforth statements of the appellants were recorded under section 342, Cr.P.C. Wherein they gainsaid the charges and professed their innocence. They did not opt to make statements on oath as required under section 340(2), Cr.P.C. However, produced certain documents in their defence.
Appellant Abdul Khaliq while answering to the question "why this case against you?" stated as follows:- "It is absolutely false and frivolous case. I have been falsely implicated in this case by the complainant and P.Ws. There is a clear contradiction between ocular account and medical evidence. The complainant party just involved me in this case as previously deceased Shehnaz Qadir named my co-accused Talib Hussain in the murder case of her parents, so the complainant party named me in this case by believing that the people will take both of us as real culprits.
Prosecution completely failed to produce any free, fair and impartial evidence regarding the alleged occurrence. There is no evidence regarding the alleged occurrence from the vicinity of Chak No.18/8BR. Complainant and P.Ws. Are interested and inter se related and inimical towards me and also P.Ws. Had made dishonest improvements regarding the ocular account just to bring the case in line, nothing has been recovered from me on my pointation and the said alleged recovery of pistol .30 bore is fake, fabricated and planted by the prosecution just to bring the case in line. The I.O. Of this case was in league with complainant party and local police twisted the real facts. The case is false."
Appellant Talib Hussain also deposed in line with his co-appellant.
9. At the conclusion of trial, the appellants were convicted and sentenced as mentioned op-cit. Hence, instant murder reference as well as appeal.
10. In support of this appeal learned counsel for the appellants has argued that incident took place at about 11-30 p.m., the complainant neither in FIR Exh.PE nor in his statement before trial Court and other eye-witnesses have brought on record source of light through which they had seen the incident and on account of being darkness of night, the identity of the culprits was highly doubtful and on account of suspicion and guesswork, the appellants were involved.
As to motive, it has been submitted that the same has not been proved and even otherwise in the earlier incident, the appellants had been acquitted in year, 2002, much earlier to the happening of the instant incident and what happened in between the instant case and that acquittal for such a long time, the prosecution has not brought any untoward incident allegedly happened between the parties or any premonition/ presentinement was not expected either of the parties against each other. In this view of the mater, the prosecution has not been able to prove the motive mentioned in the FIR and even what was immediate motive, remained shrouded in mystery.
So far as the eye-witnesses are concerned, it has been submitted that all the P.Ws. Are inter se related and their testimonies are inconsistent inter se. According to them, two fire shots were made by the appellant Abdul Khaliq whereas the doctor has reported seven injuries on the body of the deceased Mst. Shehnaz Qadir and so far as statement of minor eye-witness Mst. Shehzadi Gulfam (P.W.9) is concerned, she was examined after the statement of complainant Muhammad Nadeem (P.W.5) and Imran (P.W.6), so possibility strongly exists that she might have been tutored and on account of susceptibility of their elders, she made statement; apparently, her statement appears to be a parrot-like statement and on account of being related to the deceased, they have deposed falsely against the appellants.
Learned counsel regarding medical evidence has argued with brevity that no doubt deceased received fire shots injuries and on account of the same, she had died but numerically post-mortem report Exh.PB/1 has shown disagreement with the ocular account and the same inconsistency cannot be abridged by any stretch of imagination. In view of this, it can be inferred that nobody saw the incident or otherwise being the occurrence having happened in the darkness of night, the P.Ws. Neither could know the assailants nor were in a position to elaborate locational situation of the injuries.
So far as the report of the Forensic Science Laboratory Exh.PK is concerned, it has been submitted that the same does not advance the prosecution case because no crime empty was taken into possession for its analysis with the alleged pistol and only working condition of the pistol cannot be used against the appellant Abdul Khaliq, especially, when the report is silent as to when lastly from the barrel of the pistol of the appellant Abdul Khaliq fire was made.
Further submitted that Talib Hussain appellant was empty handed and he played no role in the incident, therefore, his conviction and sentence even otherwise is seems to be of notoriety to unpalatability.
Lastly, as ace, it has been submitted that the prosecution has not been able to prove its case against the appellants beyond shadow of reasonable doubt. Thus appeal may be accepted.
Learned counsel has relied upon case titled Basharat Ali Shah and others v. The State (1981 SCMR 1243) to orchestrate his arguments with reference to incoherence in between the ocular account as well as medical evidence.
11. Learned DPG assisted, by learned counsel for complainant has vehemently argued that notwithstanding the incident took place during the dark hours of night but the circumstances mentioned in the FIR Exh.PE are conspicuous that on account of ceremonial occasion, there might be illumination on account of gathering of the people; appellants and the complainant party being related were known to each other, therefore, question of identity does not exists in this case.
Immediate after the occurrence, matter was reported to the police with complete details and if same injuries could not be mentioned in FIR Exh.PF, it does not mean that P.Ws. Did not see the occurrence. Learned counsel has argued that presence of the P.Ws. At the place of occurrence being inmates of the house and their presence on account of ceremonial occasion was quite natural and moreso P.W.9 Mst. Shehzadi Gulfam who being minor cannot be said to have made false statement against her real uncle Abdul Khaliq and organic father Talib and her alone statement being corroborated by the medical evidence is sufficient to sustain conviction and sentence in absence of any other evidence. Lastly, it has been argued that motive has not been denied by the appellants and even being its remote and in absence of any immediate motive, the appellants cannot be absolved as in the vicinity of incident, no other enemy had ever been suggested who might have committed the murder of Mst. Shehnaz Qadir, involvement of Talib Hussain appellant in earlier case and his acquittal on the basis of compromise has indubitably been proved, therefore, even on account of this weak leg of the prosecution case, benefit of doubt cannot be extended to the appellants, so, it has been solicited to disallow the appeal.
12. Assiduously arguments have been heard. Record has been gone through meticulously.
13. As per prosecution's case, the incident had befallen nocturnally at about 11-30 p.m. No source of illumination was mentioned in the FIR Exh.PF nor having been brought before court through the statements of the P.Ws. By liberal interpretation of law, night is always regarded cloudy and murky.
No doubt, it has been made mention that the source of light at point No.6 in the scaled site plan Exh.PA lightening of electric bulb has been shown but this fact has not been proved by the prosecution through the statements of P.Ws., therefore, in probabilities and circumstances, it is construed that occurrence took place during the murky hours of night and whenever there is murkiness/darkness, identity of every person remains a serious question.
So far motivation part of the prosecution case is concerned, earlier incident for which Talib Hussain appellant was convicted and sentenced has gone unchallenged but his acquittal on account of compromise in year, 2002 has been proved. What happened after his B acquittal upto the happening of instant incident is not known, so how the prosecution is able to bring on record the immediate motive and even any remote motive does not prompt the appellants to perpetrate the occurrence and in absence of any anon motive for the alleged commission of offence, how the prosecution can be believed qua this aspect of the case, therefore, this part of the prosecution has failed to succeed.
Coming to the ocular account; prosecution has produced three eye-witnesses to prove the case i.e. Muhammad Nadeem complainant P.W.5, brother of the deceased Mst. Shehnaz Qadir namely Imran P.W.6 and Mst. Shehzadi Gulfam (minor witness but declared competent to testify) P.W.9.
According to the first version incorporated in the FIR Exh.PE, Talib Hussain appellant was shown empty handed and role of Lalkara was attributed to him whereas Abdul Khaliq appellant made two pistol fire shots out of which one hit on the back of deceased, the same went through and through whereas the other located on right bicep. During the trial, these P.Ws. Tried to adjust their statements with the medical evidence but those parts of their statements were duly confronted.
According to the lady doctor (P.W.3), there were seven injuries on the body of the deceased whereas ocular testimony shows Only two. Locales of the injuries have not been found correctly narrated by the P.Ws. Numerically, inconsistency has gone proved and being irrevocable necessarily mars/spoils the prosecution case. Interestednesscum-inimicalities towards the appellants and relationship of the P.Ws. With the deceased is vivid through the record. No doubt, Mst. Shehzadi Gulfam (P.W.9) has deposed against her real father but she cannot be believed on this sole ground as when she was declared a competent witness by the learned trial court, then all the principles and restrictions which are imposed upon a normal witness are also to be made applicable upon her. If her statement is tested upon those principles, then in all probabilities, it has been inferred that she being influenced by her related P.Ws. And on account of susceptibility to indoctrination has made a tutored statement. Moreso, her statement does not appear to be completely corroborated by the medical evidence owing to number and seats of injuries, therefore, on account of the unabridgeable incoherence between the medical and ocular account, benefit of the same obviously has to be resolved in favour of the appellants as it has been held in case law referred supra.
As far as recovery of alleged pistol Exh.Ph/1 is concerned, although report issued by the Forensic Science Laboratory, Lahore Exh.PK is positive yet the same is of no consequence because no crime empty was collected from the spot by the I.O.
Talib Hussain appellant did not cause any injury to the deceased. It appears that he has been involved on account of propinquity with the co-appellant, he has been involved. In all circumstances discussed above, the court has drawn its humble view that the prosecution case has been found replete with doubts and has not been found pull it off to its success.
14. Corollary of the above discussion is that, prosecution has awfully failed to prove its case against the appellants beyond any shadow of reasonable doubt, therefore, instant appeal is allowed.
Resultantly, convictions and sentences of both the appellant are set aside and they are acquitted of the charges imputed against them by extending benefit of doubt. They are in jail, directed to be affranchised in this case, in a trice, if not required in any other case. Resultantly death sentences inflicted upon them are NOT CONFIRMED and murder reference is answered in the NEGATIVE.