ALI HUSSAIN QAZILBASH, J.-Zari Bacha son of Mustamir, resident of Surya Kbel, Tehsil Nowshera, District Peshawar, accused of murder was tried under section 302 of the Pakistan Penal Code, by Mr. Khan Akbar Khan, the then learned Additional Sessions Judge, Nowshera. He found him guilty for the murder of Mst. Roshad - Zari, convicted him under section 302, P. P. C. And sentenced to imprisonment for life and a fine of Rs. 5,000 or in default thereof to undergo further three years' R. I.
He was also ordered to pay a fine of Rs. 5,000 which on recovery was ordered to be paid to the heirs of the deceased as compensation. In default of the payment of the compensation amount, he is to undergo six months' R. I. Mst. Muhammadia complainant (first informant) through this revision-- petition has asked for the enhancement of the sentence to death penalty.
2. The episode of the prosecution case as reflected in the F. I. R (Exh. PA) lodged by Mst.
Muhammadia, the same day, i.e. 7-12-1978 at 1445 hours i.e. An hour after the incident when rendered into English reads as under .- "Today at about 1.45 p.m. I along with my daughter Mst. Roshad Zari and Mst. Balqis wife of Mir Afzal was returning to my home after fetching the water; that when I reached the shop of Unab Gul, accused Zari Bacha son of Mustamir of my village armed with topak appeared; that with his topak Zari Bacha accused fired a shot at my daughter Roshad Zari with which she was hit and died at the spot; that besides me, the incident has been witnessed by Mst. Balqis wife of Mir Afzal.
Motive for the offence is that the accused wanted the hand of my daughter in marriage which 1 had refused. I charge Zari Bacha accused for the murder of my daughter Roshad Zari."
3. Abdul Qadoos Khan, Additional S. H. O. Of Police Station, Akora on receipt of the information regarding the incident, went to the house of the deceased where Mst. Muhammadia lodged a report which is Exh. PA/1. After recording the same, the contents thereof were read over to the deponent who after admitting the same to be correct thumb-marked it. The witness in hand then sent the `murasila' (Exh. PA/ 1) to the Police Station where on its basis a formal F.
1. R. (Exh. PA) was drawn up. He prepared the injury sheet, Exh. PD, and the inquest report, Exh. PD/l, of the deceased and sent her dead body to the mortuary for post-mortem examination under the escort of Faqir Muhammad F. C. (P. W.). Thereafter he inspected the spot and prepared the site-plan, Exh. PB, correctly with all its notes and drawings with pencil. During spot inspection, the I. O. Took into possession blood-stained earth, Exh. P/4, and sealed the same into a parcel vide memo, Exh. P. C/I.
Per memo. Exh. P. C/2, he took into possession from the spot some pieces of broken pitcher. An empty shell of '12 bore Exh. P. 5, was also taken into possession per memo. Exh. P. C/3. The witness then recorded the statement of the witnesses and searched for the accused but could not trace him. On 11-12-1978 Saraf Khan maternal uncle of the accused produced the latter along with a shot-gun of '12 bore and four cartridges, Exh. P. 9, with a licence copy, Exh. P. 8, in his (Saraf Khan) name to the S. H. O. Who arrested the accused the same day and took the above articles into possession per memo. Exh. P. C/4. The accused later on was produced before Rehman Khan, then Magistrate 1st Class. Nowshera who recorded his confessional statement which is Exh. P. E. The clothes of the deceased and blood-stained earth were sent to the Chemical Examiner for his opinion whose report in this behalf is Exh. P. G. The shot-gun and the empty shell were also sent to the Fire-Arms Expert, whose report received in this regard is Exh. P. F. After completion of the investigation in the manner described above, the accused was challaned to the Court.
4. At the trial, the prosecution in order to bring home the charge to the accused-respondent produced as many as twelve witnesses. Of them Mst. Muhammadia alone has furnished the eye- account of the incident.
The accused-respondent when examined under section 342, Cr. P. C. Denied the charge and professed innocence. He admitted to have made the confession under duress, coercion and threat by the Police. He also denied the motive advanced by the prosecution. The accused respondent admitted that he was arrested by the Police on 7-12-1978 but showed his ignorance whether his maternal-uncle had produced his licensed shot-gun with four cartridges to the Police. The accused respondent, however produced no evidence in defence.
5. Dr. Fazal Qayum (P. W. 13) conducted autopsy on the dead body of Mst. Roshad Zari on 7-12-1978 at 4.10 p.m.. And found the following external injuries on the corpse :-
(1) A fire-arm entry wound measuring 1-1/4' x 1-1/4" through the right eye (charring present).
(2) Fire-arm exit wound corresponding to wound No. 1 on the left side of the face and forehead involving the left eye.
On dissection the doctor found skull, scalp, skull membrane and brain injured. Death, according to him, was due to fire-arm injury to vital organs, i.e. Brain. Time between injuries and death was within half an hour and between death and P.M. Examination was within 12 hours.
6. The learned trial Judge while relying on the testimony of Mil. Muhammadia, mother of the deceased (first informant), confession of the accused respondent, statement of Saraf Khan (P. W.), recovery of empty shell from the vicinity of the spot and the recovery of weapon of offence with four live cartridges coupled with the medical evidence, convicted and sentenced him (accused respondent) accordingly.
As the accused-respondent has not filed any appeal against his convic--tion and the case has come before us in revision for the enhancement of the sentence of the accused respondent his counsel wanted to argue the case on merits, therefore, he was allowed to open the case. He vehemently decried each and every piece of evidence that has been brought forth by the prosecution in support of its case. His first contention was that the incident had gone unwitnessed: that the ocular account furnished by Mst. Muhammadia does not find any support from other quarters, i.e. The medical evidence and the site-plan. Secondly, the learned counsel submitted that the confessional statement of the accused-respondent later on retracted was as a result of torture, coercion and pressure by the Police, it is rather a verbatim rendering into English the statement of the accused-respondent recorded by the Police. He also assailed the recovery of empty shell from the spot, weapon of offence with four live cartridges and contented that the recovery of shot-gun is nothing but a farce. 1n support of his above contentions the learned counsel placed reliance on 1978 P Cr. L J 664, PLD 1977 Lah. 1235 and 1981 P Cr. L J 97. Lastly while relying on 1980 P Cr. L J 201, the learned counsel submitted that the lesser punishment awarded to the accused-respondent by the learned trial Judge is based on sound reasonings and needs no interference by this Court.
As. Against the above, the learned Assistant Advocate-General and the learned counsel for the petitioner supported the findings of the learned trial Court as to the conviction of the accused respondent under section 302 of the Pakistan Penal Code and submitted that the case against the accused respondent has been established beyond any shadow of doubt. As to the question of sentence, the learned A. A: G. Thought that in view of the attending circumstances of the case, the learned trial Court has rightly exercised the discretion in awarding the accused respondent lesser punishment whereas Mr. Naziruilah Khan, learned counsel for the petitioner strenuously urged that sufficient evidence is available on record to establish that the despondent has deliberately and in a calculated manner killed the deceased and the reasoning advanced by the learned trial Court is far from being convincing therefore, the accused respondent did not deserve any leniency in the matter of sentence and in his view capital punishment provided under section 302, P. P. C. Would meet the ends of justice in this case.
8. We, however, after hearing the arguments of the learned counsel for the parties came to the conclusion that the submissions made by the respondent's counsel have lot of force in them. The ocular testimony in this case had been provided to us by the mother of the deceased. The occurrence, according to the prosecution, had taken place in the midst of the village at about 1.45 p.m. In the presence of Mst. Muhammadia and Mst. Balqis, mother and aunt of the deceased respectively. The Police station lies at a distance of four miles from the spot yet no effort was made by any body to rush to the police station for lodging the report. The testimony of Mst. Muhammadia that she had asked her maternal uncle Hassan Gul to go and see the police has gone uncorroborated a Hassan Gul has not been produced at the trial by the prosecution t support the above submission of Mst. Muhammadia. Then as luck would have it, all of a sudden police party reached the house of the deceased where the report was lodged after an hour of the incident. The statement of Abdul Qadoos Khan A. S. I. That be received the information while of gasht, went to the spot and thereafter to the house of the deceased where Mst. Muhammadia lodged the report, is not plausible and convincing in that he has neither disclosed the source of information nor recorded that information into writing. We would, therefore, be justified to infer that the I. O. Was fully informed outside the village of the incident, he did no reduce it into writing but instead reached the house of Mst. Muhammadia and recorded that report at the spot after having made the investigation. In this respect reference may be made with advantage to the admission of Mst.
Muhammadia who at the trial stated that on arrival, the S. H. O. Inspected the dead body, recovered the empty shell and packed the same into a parcel and thereafter her report was recorded. It means that the report was recorded after preliminary investigation of the case and, a such, the alleged F. I. R. Has completely lost its sanctity.
9. As has been said earlier in this case we have only one ocular witness, namely, Mst.
Muhammadia. Mst. Balqis who is alleged to have witnessed the incident has not been produced by the prosecution. There is no doubt that Mst. Muhammadia is closely related to the accused?
Respondent and has consistently charged the respondent for the crime in question yet she may not be telling the whole truth. In order, therefore, to base conviction of the accused-respondent on a capital charge of murder we must search for unimpeachable and independent corroboration. If her statement is thoroughly and carefully analysed in juxtaposition with the medical evidence and the site-plan, discrepancies and contradictions in respect of the time and the manner in which the alleged incident too place would become apparent. It is in her statement at the trial that the incident took place at 1.45 p.m. The doctor who performed post-mortem examination on the dead body at 4.10 p.m. On the day of incident has given the time between death and. p.m. Examination within 12 hours which time does not coincide with the time of incident, even if a reasonable margin is allowed. Further in her statement before the trial Court she deposed that the accused fired at the deceased from a distance of ten paces and, in the site-- plan prepared at bar instance point No. 1, where the deceased was hit and point No. 2 from where the accused was fired at has been given as six paces. As against this, the doctor has found charring marks on injury No. 1, which has completely belied the ocular version given by Mst. Muhammadia and the site-plan because charring from such a distance is not at all possible. These discrepancies clearly suggest that she was not present at the spot and had not witnessed the incident and has charged the accused respondent on suspicions because she had refused the hand of her daughter in marriage to him.
Further the failure of the prosecution to keep back Mst. Balqis and Hussain Gul or for that matter Jan Muhammad (mentioned in the site-plan as having seen the incident), from the trial supports our conclusion that Msr. Muhammadia is not a truthful witness and that she bad not seen the incident.
10. The other piece of evidence which was relied upon by the prosecu--tion is the retracted confession of the accused respondent. The contention of the learned counsel for the accused respondent that the accused respondent was arrested on the day of incident and he remained in the Police custody till he was produced before the Magistrate and the confession was recorded under duress, coercion and threats by the Police does not merit considera--tion inasmuch as according to the prosecution the accused respondent was not available in his village soon after the occurrence and it was only on, 11-12-1978 that he was produced before the I. O. By Saraf Khan P.
W. His uncle along with his weapon and the four cartridges and on the very next day he made a confession before the Magistrate. There is no convincing evidence to the contrary.
His contentions that the so-called confession is nothing but a verbatim translation into English of the statement of the accused respondent recorded by the Police, merits consideration. We have gone through the Police statement of the accused respondent carefully and reproduce the same for the sake of convenience:- While comparing the above statement with the confessional statement of the accused recorded by the Magistrate we have come to an irresistible conclusion that the above statement of the accused has been rendered into English either by the Magistrate or by the prosecution Agency word for word, then got it typed and signed by the Magistrate. The fact that the statement had been recorded by the policemen finds support from the statement of the accused respondent recorded under section 342, Cr. P. C. Wherein he has deposed that the Magistrate left the Court room for lunch and his statement was recorded in the presence of the policemen. Th., being the state of affairs the confessional statement has been recorded in flagrant violation of the principles laid down for recording such a statement. It has thus lost its entire value and cannot be relied upon at all.
11. The prosecution has also pressed into service the report of the Fire-Arms Expert which is in the positive. Abdul Qadoos Khan S. H. O. Deposed that he sent the shot gun along with the empty recovered from the spot to the expert for comparison. He also admitted that he recovered the empty shell froth the spot on the day of incident whereas the crime weapon along with the four cartridges were alleged to have been produced by Saraf Khan on 11-12-1978. i.e. Four days of the incident; that he had sealed both the articles separately and had sent the same to the Expert for comparison. He, however, admitted at the trial that he sent the shot--gun, empty shell and two cartridges for test purposes to the Expert on 31-12-1978. In the same breath he contradicted himself by admitting further that he did send the four cartridges to the Arms Expert vide Exh. P. F. 1 and further that he did not send the two live cartridges for test to the Expert. This contradictory stand of the I. O. Has created a doubt in our mind as to the sending of two live cartridges to the Arms Expert for test purposes. Further the very fact that the shot-gun and the empty anti live cartridges, were sent to the Arms Expert for his opinion after an unexplained delay of about twenty days had made his (Fire-Arms Expert) report highly doubtful and thus cannot be relied upon.
12. Lastly the prosecution also cannot take the benefit of the statement of Saraf Khan (P. W.) because his wife in whose presence the accused-- respondent had allegedly taken the weapon of offence was not produced at the trial in support of the above version. Therefore, the only inference that can be drawn is that had she been produced at the trial she would have not supported the case of the prosecution.
13. The upshot of the above discussion is that the prosecution has not been able to make out a case against the accused-respondent beyond a reasonable doubt and while giving him the benefit of doubt, we acquit him of the offence convicted for. He is to be set at liberty if not required in any other case.
Consequently, the revision filed by the complainant petitioner fails and is hereby dismissed.