' KHIZAR HAYAT, J.--Muhammad Amin son of Goman caste Charoha aged 25 years resident of village Bail Gunj, 'Fehsil Pakpattan, District Sahiwal, has been convicted for the murder of Mst.
Ghulam Fatima and sentenced to death and a fine of Rs,20,000 in default whereof to undergo rigorous imprisonment for two years in case death sentence is not confirmed, vide judgment dated 7-3-1981. It was directed that the fine if realized shall be paid to the legal heirs of the deceased as compensa tion. The convict has appealed against his conviction and sentence (Criminal Appeal No,47 of 1981) and also the proceedings have been referred to this Court for confirmation of his death sentence. We propose to dispose of the appeal as well as the murder reference by this judgment.
2. The incident took place in the morning of 4-4-1980 at 6-15 a.m. in the fields of village Bail Gunj three miles away from Police Station Chak Bedi, District Sahiwal. It was reported by. Falak Sher (P.W.5) brother of Mst. Chulam Fatima (deceased) at the police station vide F.I.R. Exh.P.D. recorded by S.I. Ghulam Farid (P.W.8) the same day, at 8-45 a.m.
13. Briefly stated prosecution case is that 7 years before the occurrence Mst. Ghulam Fatima (deceased) before her marriage resided in Bail Gunj with her parents in the neighborhood of Muhammad Amin, appellant. In those days she developed illicit relations with the appellant and eloped with him 3/4 times but each time she was brought back through intervention of "the Beradari". At last she was married to one Ghulam Farid who divorced her. Muhammad Amin then solicited her hand but her father having declined the proposal married her to Muhammad Hanif (P.W.6) resident of village Karriwala Tehsil Depalpur, District Sahiwal about 8/9 months before the occurrence. Some 4 days before the occurrence Mst. Ghulam Fatima came to village Bail Gunj with her husband Muhammad Hanif for seeing her parents. On the night preceding the fateful day Muhammad Amin appellant allegedly pleaded again with the complainant party that Mst. Ghulam Fatima be married to him but Mst, Ghulam Fatima and her brother Falak Sher complainant refused whereupon the appellant threatened to teach Mat, Ghulam Fatima a lesson for this refusal and went away. Next morning at 6-15 a.m. Mst. Ghulam Fatima went out in the fields for easing herself.
As soon as she left her house Muhammad Amin appellant pursued her. Seeing this Muhammad Hanif her husband, Muhammad All her uncle and Falak Sher her brother, followed the appellant. At some distance within their sight the appellant caught Mst. Ghulam Fatima by her arm whereupon she abused him. At this the appellant took out a .12 bore pistol from the fold of his loincloth and fired at her hitting her right shoulder and she fell down. He reloaded the pistol and fired the second shot in her chest as a result of which she died. The witnesses tried to apprehend the appellant but he threatened them at pistol point not to get near him, and brandishing his pistol ran away saying that he had taught Mst. Ghulam Fatima lesson for refusing to marry him. Falak Sher leaving the dead body of Mst. Ghulam Fatima in the care of her husband Muhammad Hanif and uncle Muhammad All went to inform Manager of Bail Gunj Farm and at his instructions later he lodged the report with the police. S.1. Ghulam Ahmad after recording the F.I.R. Exh.P.D proceeded to the spot. Reaching there he prepared injury statement Exh.P.H and also the inquest report Exh.P.1., of the deceased and sent the dead body for post-mortem examination. He collected blood stained earth and two empties P.4 and P.5 from the spot and prepared their separate sealed parcels.
4. On 7-4-1980 S.1. Ghulam Ahmad arrested Muhammad Amin appellant who being in custody got recovered pistol P.6 from his house on 18-4-1980 which was seized after making its sealed parcel through memo Exh.P.G. attested by Yousaf (P.W.7) and Imam P.W. (not produced) besides the Investigating Officer. Constable Muhammad Yar brought last worn clothes of the deceased and a sealed phial containing pellets from the doctor and produced them before the Investigating Officer.
5. Dr.Mushtaq Ahmad, Medical Officer, Civil Hospital, Pakistan (P.W.1) conducted autopsy on the dead body of Mst. Ghulam Fatima at 6 p.m. on 4-4-1980 and noted following two gunshot wounds on her person:--
(1) A circular lacerated wound of entry 21 cm x 21 cm on the epigastrium of abdomen going deep into the cavity. The skin around the wound was black and scorched.
(2) Five circular lacerated wounds of entry grouped close together each measuring 1 cm x 1 cm on the upper part of right shoulder. The skin around the wound was black and scorched. The wounds were going deep in the chest cavity. On internal examination the doctor found that the left lung was penetrated through and through and liver was ruptured under injury No,l. The cause of death, in the opinion of the doctor, was shock and hemorrhage due to injuries to right lung and liver. The injuries were fatal individually and collectively and were sufficient to cause death in the ordinary course of nature. Both the injuries were caused by Fire-arm and were ante-mortem. The duration between injuries and death was five minutes and between death and post-mortem examination about .12 houRs,
6. The two crime empties P.4 and P.5 picked up from the spot and 12 bore pistol P.6 recovered from the appellant were sent to the Forensic Science Laboratory, Punjab, Lahore, for comparison. The said articles reached them on 26-4-1980 through Constable Ahmad Ali. According to the report of the Fire-Arms Expert, the crime empties were found to have been fired from .12 pistol P.6.
7. After usual investigation the challan against the appellant was put in Court for trial. The prosecution examined all told 8 witnesses in this case. Falak Sher (P.W.5) and Muhammad Hanif (P.W.6) are the eye-witnesses of the occurrence. Muhammad Hanif (P.W.6) also stated about the seizure of empties from the spot. Yousaf (P.W.7) and S.I. Ghulam Ahmed (P.W.8) deposed about the recovery of the crime pistol at the pagination of the appellant besides the medical evidence provided by Dr.Mushtaq Ahmad (P.W.1).
8. At the conclusion of the prosecution evidence the appellant when examined under section 342, Cr.P.C. , denied the incriminating circumstance put to him and professed innocence. In reply to question No,7, he put forth his explanation as under:- "The brother and husband of Mst. Fatima deceased wanted to get rid of me because she was in love with me and eloped with me on several occasions. On the evening previous to this occurrence Mst. Fatima asked me to meet her outside the village Abadi on the following day early in the morning. I complied and we were both standing there caressing each other when Muhammad Hanif P.W. turned up there and fired at me. I ran away from the spot and heard another shot being fired. Mst. Fatima died at the hands of P.W. Hanif who presumably out of Ghairat killed her and I have been involved so that I may be got rid of for good."
' He has not produced any oral/documentary evidence in his defence.
9. We have heard learned counsel for the appellant as well as for the State and gone through the evidence with their assistance.
10. It has been argued on behalf of the appellant that the motive set up by the prosecution is totally false because the appellant who is a married person having children cannot be normally expected to have demanded hand of Mst. Ghulam Fatima who too was a married lady. He further argued that the deceased appears to have been done away with by her husband Muhammad Hanif P.W. for her moral laxity but the appellant has been made a scapegoat. He argued that the recovery of incriminating articles like empties and pistol and the positive report of the Fire-arms Expert in respect thereof are of no consequence because they were sent to the expert together though recovered separately on different dates. Lastly, he argued that both the eye-witnesses Muhammad Hanif and Falak Sher are the husband and real brother of the deceased respectively. They are sworn enemies of the appellant, therefore, no implicit reliance on their evidence can be placed without corroboration from any independent source which is lacking. On the other hand, learned counsel for the State strenuously supported the impugned judgment and argued that the statement of the appellant that he and the deceased were caressing each other when Muhammad Hanif fired at them is highly improbable because it does not stand to reason that in that situation the appellant would have escaped unhurt. He, therefore, emphasized that the prosecution case must be taken as proved and the appellant's conviction should be upheld.
11. We have carefully considered the contentions of learned counsel for the parties in the light of the material on record. In the first instance we would like to dispose of the incriminating recoveries.
According to the prosecution, the crime empties were picked up on the day of occurrence from the scene of offence i.e, on 4-4-1980. The appellant was arrested on 7-.-1980 and crime pistol P.6 was allegedly recovered from his house at his pagination on 17-4-1980 I.e, a fortnight after the occurrence and about 11 days after the arrest of the appellant. According to the rules the empties were required to be sent to the office of Forensic Science Laboratory immediately after their seizure but in the instant case the police kept them till the recovery of Pistol P.6 effected two weeks later.
According to Expert report Exh.P.M. both the empties and the pistol were received by the expert on 26-4-198 through a Constable. In these circumstances, the possibility of the crime empties P.4 and P.5 having been fired through pistol P.6 and A then sent to the Fire-arm Expert cannot be ruled out and as such the recovery of empties from the spot as well as expert's report in out view are inconsequential. If any authority is needed reference may made in Muhammad Shafi v. State PLD 1968 Lah.
869. Consequently, pistol P.6 is not connected with the crime.
12. Next comes the evidence of motive. According to the prosecution, Mst. Ghulam Fatima deceased had an affair with Muhammad Amin appellant even prior to her first marriage with Ghulam Farid and the appellant had been persistently demanding her hand from her parents but each time he was denied. On the fateful morning he seized Mst. Ghulam Fatima by her arm and because she abused him, therefore, he killed her with pistol shot. From the evidence on record we gain an impression that Mst. Ghulam Fatima was not an unwilling partner of the appellant, therefore, the story of her hurling abuses at the appellant and in retaliation the appellant's firing at her is simply absurd. It is in evidence that Mst. Ghulam Fatima had eloped with the appellant 3/4 times earlier and was restored through intervention of the Bradari. It is also in evidence that she was divorced by Ghulam Farid, her first husband. Although the cause of her divorce is not known yet it appears in view of material available on record that she was divorced because of her affairs with the appellant. Muhammad Hanif P.W. with whom she had been married only a few months before, admitted that she had illicit relations with the appellant before she was married to him. This indicates that Mst. Ghulam Fatima could not shun her illicit connections with the appellant despite her being married twice to different persons and, she used to visit her parents obviously to met her paramour Muhammad Amin appellant. In this background the family of the deceased Mst. Ghulam Fatima as her husband Muhammad Hanif were always apprehensive that she, might not elope with the appellant again, and therefore, they used to keep a watchful eye on her. That is why her husband Muhammad Hanif and her brother Falak Sher P.Ws. pursued her as well as the appellant when they were following each other at the time of occurrence in order to foil her plans to elope with the appellant. We may quote here the relevant portions from evidence of the witnesses, which support the above conclusions. Falak Sher in his examination-in-chief stated.-- "My sister went to the fields at about 6-15 a.m. to ease herself. Muhammad Amin accused also followed her. P.W. Muhammad Ali, P.W. Muhammad Hanif and I also followed him as we suspected him that he may not entice away Mat. Ghulam Fatima."
' Muhammad Hanif P.W. in his cross-examination made the following significant admissions:- "It is correct that hist. Ghulam Fatima had illicit relations with Muhammad Amin accused before she was married to me. It is correct that after she was married to me I had fully control on her so that she may not elope again. It is correct that Mst. Ghulam Fatima was insisting from some days so that I may take her to her parents to meet them. She wanted to meet her parents. I told her that I would also accompany her to the house of her parents. 1 kept a strict watch on Mst. Ghulam Fatima in order to avoid further elopement with Amin accused."
' A cursory glance of these abstracts from evidence of the two eye witnesses make it more than clear that the family of Mat. Ghulam Fatima apprehended that she would elope with Muhammad Amin, appellant, any time so they used to keep strict watch on her activities. It is, therefore, not believable that Mst. Ghulam Fatima was not agreeable to maintain connections with the appellant or that she had ever abused him or the appellant having enraged fired at her. Rather it appears that she was always ready to go with him. In these circumstances it is highly improbable that the appellant would ever feel the necessity of using any force to enjoy her company. The boot seems on the other leg and it is quite probable, that family of the deceased having become sick of her bad character who was a constant source of infamy for them might have thought of doing away with her. The motive, therefore, in the circumstances has not only been disproved against the appellant rather it lay on the side of the complainant party.
13. The eye-witness account comprises the testimony of Falak Sher and Muhammad Hanif, close relations of the deceased. Both of them have admitted that they knew that Mst. Ghulam Fatima had an affair with Muhammad Amin, appellant. They also stated that every time when Mst. Ghulam Fatima eloped with Muhammad Amin, they used to fell disgraced. Their ill will against the appellant is no secret. These witnesses are, therefore, highly interested in the prosecution of the appellant and their testimony cannot be relied without strong and independent corroboration which is conspicuously absent in this case. Also we have already found evidence of motive as well as the incriminating recoveries as unsatisfactory.
14. For the above reasons we find that prosecution has failed to bring home the murder charge against the appellant successfully, and consequently we set aside his conviction and sentence and acquit him. He may be released forthwith, if not wanted in any other case. In the result the appeal succeeds and the murder reference is rejected. Death sentence is not confirmed.