MAZHAR IQBAL SIDHU, J.--- This judgment will dispose of captioned criminal appeal filed by appellant Muhammad Riaz who was convicted by learned Addl. Sessions Judge, Chunian, Distt.
Kasur in private complaint titled Hakim Ali v. Muhammad Riaz under sections 302/34, P.P.C.
Registered at P.S. Ellah Abad, Distt. Kasur vide judgment dated 19.3.2010 and sentenced infra:-- i) Life imprisonment under section 302(b)/P.P.C. As Tazir with payment of Rs,1,00,000/- as compensation to the legal heirs of the deceased Zainab Bibi under section 544-A, Cr.P.C. And in default whereof to further undergo SI for six months.
' He was also extended the benefit of section 382-B Cr.P.C.
2. The doleful story as garnered by complainant Hakim Ali (PW.01) in private complaint Exh.PB is that on 16.5.2007 at 3.00 PM he was present in the house when appellant Muhammad Riaz (his real son first wife), armed with hatchet, Zulfiqar Ali son of Mansha armed with pistol, Muhammad Ali son of Noor Muhammad empty handed, Muhammad Aslam son of Muhammad Mansha armed with hatched entered into his house. Zulliqar Ali raised Lalkara to teach a lesson to the complainant and Ghulam Dastgir for lodging of FIR against them and to kill them. On this, Muhammad Riaz accused said that the complainant is his real father, let his step mother Zainab Bibi be murdered so that they should have learnt to quarrel with other accused persons whereupon accused persons caught hold the wife of complainant and laid her on ground. Muhammad Ali caught hold the legs of complainant's wife, Zulfiqar accused aimed his pistol at the complainant and said that if the complainant will resist, he will be murdered. Muhammad Aslam got controlled the head of the complainant's wife. Muhammad Riaz appellant gave hatchet blow on the right side on neck of complainant's wife, then he (Rlaz) caught hold the head of wife of complainant and asked Muhammad Aslam to hit, on which, Muhammad Aslam also gave hatchet blow on the same place.
Due to those Injuries, wife of complainant Zainab MI succumbed at the spot. On clamour of the complainant, Muhammad MI, Muhammad Akram PWs and others persons of the locality attracted to the spot who witnessed the occurrence: The accused persons while brandishing their weapons escaped from the spot, ' The motive behind the Occurrence was that the criminal litigation in between the complainant and the accused persons was going on as the complainant and him son have lodged criminal case against the accused persons, due to that grudge and in prosecution of their common object/ intention, the accused persons murdered wife of complainant.
3. Initially FIR No,236/07 dated 16.5.2007 under sections 302/34, P.P.C. Exh.PA/1 was registered but during investigation, I.O. In connivance with the accused persons declared accused Muhammad Aslam, Zulfiqar and Muhammad Ali innocent and prepared report under section 173, Cr.P.C. By placing their names in column No,2 while name of the appellant was placed in column No,3 of the said report.
' Feeling dis-satisfied/disagreed with the police investigation, the complainant has filed the instant private complaint.
4. After recording cursory evidence, learned trial court summoned the respondents/accused in private compliant vide order dated 25.7.08.
5. Learned trial court after observing all the pre-trial codal formalities, indicted the appellant and his co-accused namely Muhammad Aslam, Zulfiqar All and Muhammad All (since acquitted on the basis of compromise) to which they did not plead guilty and claimed trial. Thereafter, the prosecution was accented to lead evidence in order to substantiate the charge,
6. It is worth mentioning here that during the proceedings of trial On the statements of the complainant as well as the legal heirs of the deceased Mt. Zainab Bib' co=accused namely Muhammad Milan Zulfiqar Ali and Muhammad All were acquitted on the basis of compromise on 23,7:2009, thereafter, the trial to the extent or appellant was conducted: 7: The prosecution in order to prove its case produced 10 witnesses in all, out of them 09 witnesses were examined as PWs whereas 01 witness was examined as CW.
' Dr. Muhammad Rashid Bhatti, RHC Ellah Abad (PW.5) deposed that vide post mortem report No,026/2007 dated 17.5.2007 lady doctor Sadia, Ex-Woman Medical Officer, RHC conducted post mortem examination on the dead body of deceased Zainab Bibi, he identified her signatures and handwriting and she observed as under:-- INJURIES:
1. An incised wound 10 to 3.5 cm on right side of neck 4 cm below right ear, 6.5 cm from upper end of sternum. Underline muscle, vessels and bone cut.
2. Multiple contusions and abrasions on front and left side of neck.
3. Contused abrasion 2.5 x 0.2 cm on front of left shoulder.
'ON DISSECTION: Hyoid bone was fractured.
' The hyoid bone was dispatched to the Histopathologist, 'OPINION, ' The cause of death was to be declared after receiving the report of Histopathologist.
' Exh,PE was the correct carbon copy of post mortem. Report which bore the signature of said WMO: 8: Learned DDPP by tendering in evidence report of Chemical Examinar HAIL PJ and that of Serologist h.P1( vide his statement dated 02.3.2010 closed the prosecution case.
9. Thenceforth statement of the appellant was recorded under section 342, Cr.P.C. Wherein he negated the charge and professed innocence. He neither opted to make statement on oath as permissible under section 340(2), Cr.P.C. Nor opted to produce defence evidence.
' He in reply to a question "why this case against you and why the PWs deposed against you" replied infra:-- "I was not present in the village at the fateful time and has falsely been involved in this case just to deprive me from inheritance as my real mother has died and my father, the present complainant has contracted second marriage and under the pressure of my step brothers he has falsely involved me in this case. The real culprits of this case are Muhammad Ali, Zulfiqar All and Muhammad Aslam, who have been forgiven by the complainant after taking some consideration from them, with whom the complainant has specifically alleged grudge and motive of a criminal case. I am helpless and innocent person. The PW.I Hakim All complainant under the pressure of my step brothers and PW.2 Ohulam Dastgir being his real soil and my step brother have deposed falsely due to above said reason".
10. On the conclusion of trial the appellant was convicted and sentenced as mentioned supra by the learned trial court Hence, instant appeal,
11. Appellant's counsel has argued that co-accused Muhammad Ali, Muhammad Aslam and Zulfiqar during investigation were found innocent, their names were placed in column No,2 of the report prepared under section 173, Cr.P.C., consequently, they were acquitted by the learned trial court during trial on the basis of compromise vide judgment dated 07.2.2009 and by taking strength from this, it has been argued that Zulfiqar Ali raised a Lalkara to kill Hakam Ali complainant but instead of him, Muhammad Ali overpowered the deceased Mst. Zainab Bibi from her both legs, Muhammad Aslam co-accused caught hold of head of the deceased whereas appellant caused a hatchet blow on the right side of neck of deceased then allegedly appellant clasped the head of deceased and handed over his hatchet to Muhammad Aslam co-accused who also gave a hatchet blow on the same place where first blow was caused and then again appellant Muhammad Riaz caused a hatchet blow on the same place where first was caused, in this way, Muhammad Aslam played a very vital role in the occurrence but he was found innocent whereas the doctor has observed sole injury on the neck of the deceased. In these circumstances, when medical evidence is inconsistent with the ocular account then the eye-witnesses Hakam Ali PW.1, the husband of the deceased and Muhammad Ali CW.1, an eye-witness who has tergiversated from his statement cannot be believed because their behaviour at the time of occurrence are highly inhuman, unnatural and repellent to senses, when these two PWs along with Muhammad Akram (PW not produced) were present whereas single person kept on causing injuries to the deceased could not be disengaged to save the deceased. Further argued that Hakam Ali PW.1 during cross-examination has admitted that the deceased tried to escape herself but could not whereas the PWs did not try to save her. As to motive, learned counsel has argued that appellant had no motive against Mst. Zainab Bibi deceased, his step mother because the deceased had nothing to do with the litigation. Lastly, it has been submitted that recovery of hatchet is inconsequential because the same was affected about 21 days of the incident, too from an open place (graveyard of the village), remaining stains of blood upon it for a long time were not possible. By summing up the arguments, learned counsel has submitted that prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doubt.
12. Learned Additional Prosecutor General has controverted the arguments on the premises that all arguments of the learned counsel for the appellant are not borne out from the record as the presence of the PWs at the spot being inmates is quite natural, they are consistent and the role played by the appellant has been corroborated by the post mortem report of the deceased; acquittal of the co-accused namely Muhammad Ali, Muhammad Aslam and Zulfiqar has no help to the case of the appellant because Zulfiqar was holding a .30 bore pistol at the time of occurrence but did not use it, Muhammad Ali co-accused was empty handed and injury attributed to Muhammad Aslam does not exist on the body of the deceased, therefore, the appellant was the sole doer of murder of Mst. Zainab Bibi, her step mother who was 65/70, even otherwise she had not vexed or pained to the appellant to be murdered. Lastly, it has been submitted that recovery of hatchet further corroborated the prosecution version whereas the learned trial court has already acted with clemency as far as the quantum of sentence is concerned, thus has prayed for dismissal of appeal.
13. Heard busily. Record explored assiduously.
14. Narrative of the prosecution version made by complainant Hakim Ali (P.W.01) in private complaint Exh.PB is that on 16.5.2007 at 3.00 PM he was present in the house when appellant Muhammad Riaz (his real son first wife), armed with hatchet, Zulfiqar Ali son of Mansha armed with pistol, Muhammad Ali son of Noor Muhammad empty handed, Muhammad Aslam son of Muhammad Mansha armed with hatched entered into his house. Zulfiqar Ali raised Lalkara to teach a lesson to the complainant and Ghulam Dastgir for lodging of FIR against them and to kill them. On this, Muhammad Riaz accused said that the complainant is his real father, let his step mother Zainab Bibi be murdered so that they should have learnt to quarrel with other accused persons whereupon accused persons caught hold the wife of complainant and laid her on ground.
Muhammad Ali caught hold the legs of complainant's wife, Zulfiqar accused aimed his pistol at the complainant and said that if the complainant will resist, he will be murdered. Muhammad Aslam got controlled the head of the complainant's wife. Muhammad Riaz appellant gave hatchet blow on the right side on neck of complainant's wife, then he (Riaz) caught hold the head of wife of complainant and asked Muhammad Aslam to hit, on which, Muhammad Aslam also gave hatchet blow on the same place. Due to those injuries, wife of complainant Zainab Bibi succumbed at the spot. On clamour of the complainant, Muhammad Ali, Muhammad Akram PWs and other persons of the locality attracted to the spot who witnessed the occurrence. The accused persons while brandishing their weapons escaped from the spot. The motive behind the occurrence was that the criminal litigation in between the complainant and the accused persons was going on as the complainant and his son have lodged criminal case against the accused persons, due to that grudge and in prosecution of their common object/intention, the accused persons murdered wife of complainant.
15. The premise of the learned counsel for the appellant remained that the conduct/behavior of the PWs at the time of occurrence remained unnatural, unethical, repellent to senses, improbable as well as unbelievable, reason being that co-accused Muhammad Ali, Muhammad Aslam and Zulfiqar were not only found innocent during the investigation and were placed in column No,2 of the report prepared under section 173, Cr.P.C. But have also been acquitted on the basis of compromise implying their non-participation in the commission of murder of deceased Mst.
Zainab Bibi, then the appellant was the sole doer of the incident whereas Hakam Ali, Muhammad Ali and Muhammad Akram PWs were three in number but could not secure the deceased and even could not overpower the appellant at the time of occurrence notwithstanding the incident took place intra-mural withal the weapon allegedly used in the commission of crime was not sophisticated rather it being conventional, the hatchet, could have been overpowered or the hatchet could have been snatched by three PWs. It has also been noticed through cross- examination of complainant Hakam Ali that the deceased tried to save and when she tried then why the PWs did not attempt to save her. It may not be out of place to mention here that Hakam Ali PW is the husband of Zainab Bibi deceased, other PWs have also been reported somewhat near to the complainant, in this way, their conduct/behaviour could not have been so as displayed by them. It is universal principle that homogeneity may not be of equal level in each and every person while it cannot be expected from a person that how he would behave in an incident as a PW towards saving of life of under attack victim.
Another aspect which cannot be ignored which also goes to the root of the case that Hakam Ali has been reported 40/45, Ghulam Dastgir PW has been noticed 22, CW.1 Muhammad Ali who turned hostile was 45, the deceased was 60 to 70, whereas the appellant has been noticed 29/30 years through his statement recorded under section 342, Cr.P.C., now inference conveniently is drawn that all the PWs were young as compared to the deceased whereas their common force might have prevailed if applied upon the appellant to save her life. Indubitably, they being inmates may be considered the natural PWs but their behaves during the incident remained unnatural, unbelievable and repellent to senses, therefore, their presence cannot be believed at the time of incident to have seen the incident.
So far as the motive in this case is concerned, admittedly Mst. Zainab Bibi deceased was the step- mother of the appellant but the court may not go oblivion that motive was against the complainant Hakam Ali who is also real father of the appellant but he was spared. Had he been present at the spot, he would have been the victim of incident.
As far as recovery of hatchet is concerned, though its report is positive having stains of blood on its blade yet the same was allegedly effected from an open place accessible from a person who was desired even otherwise when primary evidence has been disbelieved by this court then the secondary evidence cannot be relied upon to uphold the conviction and D sentence. The court has been guided from a case titled Nadeem alias Manha alias Billa Sher v. The State (2010 SCM R 949) where the Hon'ble Supreme Court of Pakistan had postulated upon the unnatural conduct of related PWs displayed during the commission of murder. For better understanding of following of the said precedent is reproduced as under:- "----S. 302--- Qatl-i-amd--- Reappraisal of evidence---Chance witnesses---Motive, absence of- --Withholding of one eye-witness--Effect---Death sentence awarded to accused under S.302(b), P. P. C . By Trial Court was maintained by High Court---Plea raised by accused was that complainant and eye-witness were chance witnesses, therefore, reliance could not be placed upon their testimony--Validity---Ocular testimony of both eye-witnesses, despite lengthy cross- examination, remained consistent and un-shattered--- Looking at the distance from the place of occurrence and where one prosecution witness was standing and other prosecution witness arrived during occurrence and distance of residence of complainant from place of occurrence, it could not be said that complainant was a chance witness---Both the eye-witnesses of occurrence were natural witnesses as one of them was independent while the other though not independent, being son of deceased but was eye-witness of occurrence, therefore, their evidence could not be rejected for any fanciful reason---Non-examination of third prosecution-witness, it was the sole prerogative of prosecution to examine any number of witnesses, it deemed fit---Mere nonappearance of any eye-witness could not justify adverse inference to the case of prosecution on such account---Quality of evidence and not its quantity which mattered more---Mere absence of motive or weakness of motive attributed to accused would not in any manner, adversely affect the case of prosecution, as undoubtedly motive was a thing which in many of the cases remained shrouded in mystery, as it was only in the mind of accused, who had committed crime for that reason---Both the courts below had passed their respective judgments with full application of minds, keeping in view the evidence adduced by prosecution in support of its case against accused---Appeal was dismissed".
16. The corollary of the above discussion is that the prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doubt. Thus, instant appeal is allowed, resultant, impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charges imputed against him by extending benefit of doubt. He is in jail, directed to be set at liberty in this case, in a trice, unless required for some other case.