' SHAHID HAMEED DAR, J.---The appellant, Mehmood Ahmad was held guilty under section 302(b), P.P.C. By the learned Sessions Judge, Faisalabad vide judgment dated 17.5.2007 and sentenced to imprisonment for life with the direction to pay an amount of Rs, .1,50,000/- to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default thereof to undergo simple imprisonment for six months. The benefit of section 382-B, Cr.P.C. Was, however, extended to him.
2. The appellant by filing the instant appeal has assailed the impugned judgment.
3. Muhammad Sarwar-complainant (P.W.8) has alleged in the FIR (Exh.PB/1) that his sister Mst.Khalida Parveen was tharried to Mehmood Ahmad (appellant) about 13/14 years ago; three children, a daughter and two sons were born out of this wedlock; both the spouses often quarrelled with each other; he received a telephone call the previous night, at 1.00 a.m, from Maqsood Ahmad PW, who told him that his sister had been butchered by her husband Mehmood Ahmad (appellant); on this information, he joined by his brother Muhammad Arshad, Asad Ullah, Muhammad Yousaf, Muhammad Asghar, Muhammad Sadiq and Muhammad Ashiq reached the house of his sister, where they found her blood-soaked dead body placed on a cot, showing her throat, half cut; all the inmates of the house told him that his sister had been murdered by her husband; leaving Farooq Ahmad and Maqsood Ahmad, brothers of Mehmood Ahmad (appellant) nearby the dead body, he left for the police station and came across Ayaz Ahmad SI (P.W.9) at Mohallah Masoodabad, at 2.00 a.m. On 27.3.2004, who reduced into writing complaint (Exh.PB) on his dictation and despatched it to the Police Station through Shahbaz Ahmad 1293/C for registration of a case, on the basis whereof, Abdul Waheed 829/MHC (P.W.2) drew up formal F.I.R.
(Exh.PB/I), at 2.15 a.m., the same day.
4. After registration of the case, Ayaz Ahmad SI (P.W.9) carried out the investigation, reached the spot, inspected the dead body, prepared injury statement (Exh.PD), inquest report (Exh.PE) and despatched it to the mortuary for autopsy under the escort of Asif Munir 4917/C (P.W.5); he collected blood stained earth from the place of occurrence vide recovery memo Exh.PH, duly attested by Farooq Ahmad and Maqsood Ahmad PWs (not produced); he inspected the venue of the crime and prepared visual site plan (Exh.P.D; after postmortem examination of the dead body, Asif Munir 4917/C (P.W.5) produced before him last worn clothes of the deceased, which he took into possession vide memo Exh.PF; he got prepared the site plan-in scale in duplicate (Exh.PA & Exh.PA/1) qua the place of occurrence by Aurangzeb, draftsman (P.W.1); he arrested the appellant on 29.3.2004, who during interrogation led to the recovery of blood-stained Chhuri (P4) which was seized vide memo Exh.PG. On completion of investigation, he prepared challan and submitted it before the court for trial of the accused in accordance with the law.
5. The accused on indictment pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced nine witnesses, namely, Aurangzeb, draftsman (P.W.1), Abdul Waheed 829/MI-IC (P.W.2), Fida Hussain 306/C-I (P.W.3), lady doctor Tanvir Zafar (P.W.4), Asif Munir 4917/C (P.W.5), Abdul Rauf, 3697/C-I (P. W .6), Muhammad A rshad (P.W .7), Muhammad Sarwar- complainant (P.W.8) and Ayaz Ahmad SI/I0 (P.W.9). Thereafter, the appellant was examined under section 342, Cr.P.C., whereby he professed his innocence in the matter and denied all the allegations levelled against him. The appellant did not opt to depose within the scope of section 340(2), Cr.P.C. Or adduce evidence in defence. The contention adopted by him in reply to the question as to why this case against him and why the PWs had deposed against him, read as under:-- "The PWs are related inter se. I have been involved in this case due to personal grudge of the PWs. In fact it was a blind murder, committed by some un-known person and I have been entangled in the case due to strained relations with my brothers-in-law. "
' The learned trial judge on conclusion of the trial held the appellant guilty of the offence charged and sentenced him as mentioned hereinabove.
6. Learned counsel for the appellant submits that the appellant has been falsely involved in this case due to erratic guess work and malicious intention of the complainant; the prosecution did not produce any connecting evidence against the appellant during the course of the trial, despite that he was pronounced guilty and handed down the sentence of imprisonment for life, which was not less than a joke with him; the prosecution case contained the name of only one probable eyewitness Maqsood Ahmad, but he was not produced at trial and he was given up by them as having been won over; the res gestae account consisted of statements of Muhammad Arshad (P.W.7) and Muhammad Sarwar (complainant/P.W.8) but they said nothing as to witnessing the occurrence of murder of Mst.Khalida Parveen and they only mentioned the name of Maqsood Ahmad as the source of their information, that the murder of Mst.Khalida Parveen had been committed by the appellant; the medical evidence as tendered by lady doctor Tanvir Zafar (P.W.4) is merely a corroboratory circumstance, which cannot take place of the substantive evidence; the recovery of blood-stained chhuri (P4) on 3.4.2004 at the instance of the appellant is hardly of any consequence being an embroidery of the main allegation, which could not be proven by the prosecution, through some concrete evidence; the case against the appellant is nothing but a pack of lies, each word whereof converges on the innocence of the accused; the prosecution badly failed to bring home the guilt of the appellant beyond any reasonable shadow of doubt but learned trial court ignored all the fallacies of the prosecution case with surprising ease, rendering its pronouncement of guilt against him a funny story; the impugned judgment has been passed by the learned trial court without application of judicious mind and it looks unsustainable from all four corners.
7. In contrary to the above, learned Deputy Prosecutor General Punjab has contended that the appellant butchered his innocent wife in a cold-blooded manner and his guilt had been established beyond all shadows of doubt by the prosecution through tangible and cogent evidence; the ocular account, the medical evidence, recovery of chhuri (P4) at the instance of the appellant on 3.4.2004 and other allied circumstances made it a case of proven credibility against him, hence, the impugned judgment did not suffer from any frailty or legal defect; the appellant committed brutal murder of his wife single handedly, hence, he did not deserve any leniency.
8. Arguments heard and record perused.
9. The fact and circumstances of the case do not suggest that the alleged occurrence of murder of Mst.Khalida Parveen at about 1.00 a.m. On 27.3.2004 had been witnessed by any. Learned trial court has observed in paragraph 23 of the impugned judgment that the occurrence in issue remained un-witnessed and prosecution could not prove it otherwise during the course of the trial. It, however, believed it to be a case of circumstantial evidence in the same paragraph. It held the telephone call of Maqsood Ahmad PW (not produced), which he allegedly made at 1.00 a.m. On 27.3.2004 to Muhammad Sarwar (complainant/P.W.8) to inform him about the murder of his daughter Mst.Khalida Parveen by her husband Mehmood Ahmad (appellant), an incriminating circumstance falling within the definition of res gestae in paragraph 24 of the impugned judgment.
The term res gestae, as per Black's Law Dictionary-Eighth Edition means:-- ' "res-gestae (rays jes-tee. Also jes-ti), n.Pl. [Latin "things done" The events at issue, or other events contemporaneous. With them. In evidence law, words and statements about the res gestae are usu. Admissible under a hearsay exception (such as present sense impression or excited utterance). Where the Federal Rules of Evidence or state rules fashioned after them are in effect, the use of res gestae is now out of place. See Fed. R. Evid. 803(1), (2). - Also termed res gesta. [Cases: Criminal Law - 363 - 368; Evidence - 118 - 128. CJS. Criminal Law - 454, 831, 867 - 876; Evidence - - 342-363.] ' "The Latin expression 'res gestae' or 'res gesta', literally 'things done' or 'things transacted', has long served as a catchword [T]he phrase has frequently served both to let in utterances which in strictness were not admissible and to exclude utterances which might well have been admitted. And frequently also its indefiniteness has served as a basis for rulings where it was easier for the judge to invoke this imposing catchword than to think through the real question involved. The phrase is antiquated. By modern judges it is being gradually discarded. It is superfluous, and serves only to obscure the logic of the rules. It should be left to oblivion." John H.
Wigmore, A Students' Textbook of the Law of Evidence 279 (1935).
"The res gestae embraces not only the actual facts of the transaction and the circumstances surrounding it, but the matters immediately antecedent to and having a direct casual connection with it, as well as acts immediately following it and so closely connected with it as to form in reality a part of the occurrence." State V. Fouquette, 221 P.2d 404, 416-17 (Nev. 1950). "
' Maqsood Ahmad PW (not produced), the children of the deceased-lady and other family members of the appellant most probably could be considered the eyewitnesses of the occurrence and the complainant-party, inclusive of Muhammad Sarwar (complainant/P.W.8), Muhammad Arshad (P.W.7), Asadullah, Muhammad Yousaf, Muhammad Asghar, Muhammad Sadiq and Muhammad Ashiq might be labelled the res gestae witnesses, who under no circumstance could be considered the eyewitnesses. The record of the case reveals that none of the probable-eye- witnesses appeared at trial for their examination. Maqsood Ahmad PW, who was most important of them all was given up on 5.10.2004 by the prosecution, having been won over and Muhammad Yousaf PW, a companion of the complainant, was given up being unnecessary. Muhammad Sarwar (complainant/P.W.8) admitted in his testimony as correct that telephone facility was not available at his residential house. He, however, volunteered in terms that a telephone connection was available in his neighbourhood. He did not disclose the name of the neighbour and the telephone number whereon he had received a phone-call from Maqsood Ahmad PW, nor he disclosed the phone number of the caller. He frankly admitted in his testimony that his slain sister joined by her husband (appellant) and children visited him about a month before the occurrence and they stayed with him for two to three days and left his house for their own together. He also deposed about the fact that he along with his father participated in the marriage ceremony of Tariq Mehmood, real brother of the appellant, fifteen days after the visit of his slain sister and they both had a brief sojourn of three days at the house of the accused/appellant. He went on to state that his residential village was at a distance of about twenty two miles from the place of the occurrence. All of the aforesaid facts have also been admitted and stated by Muhammad Arshad P.W.7) in his testimony. The complainant maintained in his statement that the pakka road was at a distance of two miles from the village. Muhammad Arshad (P.W.7) mentioned in his testimony that his statement had not been recorded by the police during the course of investigation. One significant weakliness is attached with the testimonies of both the witnesses of res-gestae that they did not name any of the family members of the appellant, who allegedly provided them the information at the spot that murder of his wife had been committed by Mehmood Ahmad- appellant. The prosecution made no effort to produce adolescent children of the deceased-lady as witnesses during the trial.
10. There is another important circumstance, which probably skipped the eye of the learned trial court and it pertained to the postmortem examination of the ill-fated lady, conducted at 2.00 p.m.
On 27.3.2004, about twelve hours after the registration of the FIR. (Exh.PB/1). It itches the mind as to how the complainant and his companions got together so quickly at one place at the midnight (1.00 a.m.) from different houses and how did they cover the distance of twenty two. (22) miles partly kacha & pakka so briskly and how did complainant succeed in reporting the matter to the police at 2.00 a.m. In Mohallah Masoodabad falling within the limits of police station Factory Area Faisalabad. The delayed postmortem examination of the dead body of Mst.Khalida Parveen, which was held at 2.00 p.m. On 27.3.2004 impliedly tells that the complaint (Exh.PB) and the FIR (Exh.PB/1) might be the ante-timed documents. The probability cannot he ruled out that the witnesses of res- gestae may have reached the spot much after 2.00 a.m., the time so shown in the complaint (Exh.PB). Muhammad Sarwar (complainant/P.W.8) has stated in his testimony that autopsy on the dead body of their sister had been performed at 9.10 a.m., even though it was conducted at 2.00 p.m. Important enough, the names of the persons who identified the said dead body at the time of the dissection, have been mentioned as Farooq Ahmad and Maqsood Ahmad (given up PWs) in the postmortem examination report (Exh.PC), who happened to be the real brothers of the appellant. It is hard to digest that the complainant (P.W.8) and his real brother Muhammad Arshad (P.W.7) allowed entry of the names of the said identifiers in the necropsy report, even after having learnt about the murder of their real sister at the hands of their (identifiers) real brother. It points to another reason to believe that the complainant and his co-witnesses or his other companions had not reached the place of occurrence, at the time, as mentioned by them in the complaint (Exh.PB).
It causes collapse of the house of cards built by them on the strength of res-gestae-evidence. The testimonies of P.W.7 and P.W.8 do not inspire confidence nor can they be believed as truthful witnesses. The evidence of res-gestae is unbelievable and untrustworthy, hence, brushed aside.
11. So far as medical evidence as tendered by lady doctor Tanvir Zafar (P.W.4) is concerned, it only tells that she performed autopsy on the dead body of the slain lady at 2.00 p.m. On 27.3.2004 and found the deceased's throat/neck deeply cut with a sharp-edged weapon, besides finding a lacerated wound on the middle finger of her right hand. The medical evidence is always corroboratory in nature, which can reveal a few details as to number of bodily injuries on a dead or a living person, the weapon used for infliction of such injuries, the duration of injuries, the probable cause of death and other allied details, if any, but it cannot identify the inflictor(s) of such injuries.
12. Insofar as recovery of blood-stained chhuri (P4) at the instance of the appellant from an open space on 3.4.2004 is concerned, its evidentiary value has apparently been damaged by the prosecution itself as they did not tender any expert report to establish at trial that it was stained with human blood. This frail aspect of the case has been taken care of by the learned trial court in paragraph 25 of the impugned judgment, wherein it observed that it could not be considered a corroboratory piece of evidence as to the prosecution's case.
13. Needless to mention, the motive part of the prosecution case has been disbelieved by the learned trial court as is manifest from paragraph 22 of the impugned judgment. Further remarks in this regard may be a sheer wastage of time.
14. The upshot of the above discussion is that the prosecution has badly failed to bring home the guilt of the appellant beyond any reasonable shadow of doubt. The impugned judgment appears to have been passed merely on conjectures and surmises, without taking into account scores of infirmities and weaknesses in the prosecution's case. The term res-gestae appears to have been over-emphasized and blown out of proportions by the learned trial court while passing the impugned judgment, which is not sustainable by any stretch of imagination.
15. For the foregoing reasons, this appeal is accepted, the impugned judgment is undone and conviction/sentence of the appellant is set aside. He is acquitted of the charge. He shall be released from the jail forthwith if not required in any other case.