Manzoor Shah son of Shah Muhammad (30) resident of Chak No. 404/G.B Police Station.
Tandlianwala, District Faisalabad was tried for the murder of Zafar Shah deceased (20). By his judgment, dated 26-3-1984, the learned Additional Sessions Judge, Faisalabad convicted him under section 302, P.P.C., and sentenced him to death and to pay a fine of Rs.8.000 or in default to undergo two years' R.I. He was further ordered to pay Rs.8.000 as compensation to the heirs of the deceased or in default to undergo R.I. For 6 months.
2. We have before us the appeal filed by Manzoor Shah appellant and the connected murder reference. Both these matters shall be disposed of by this judgment.
3. The prosecution case is that Zafar Shah deceased was betrothed to Mst. Shamim daughter of Muhammad Shah. Muhammad Shah later performed Nikah of his daughter with Asghar Shah a brother of the appellant but the Rukhsati had not taken place. The deceased had declared that he would not allow the "doli" of Mst. Shamim to reach the house of said Asghar Shah. On two/three occasions, the parties had altercated with each other on that score. The appellant is said to be nourishing grudge against the deceased for that reason.
On the night of 12/13-4-1982 the deceased alongwith his father Nazar Shah complainant P.W.7 and another relative Sultan Shah P.W.8 was sleeping at his Dhari situated in the area of Pindi Sheikh Mosa. At about mid-night Sultan Shah and Nazar Shah P.Ws. Were up on hearing a gunshot and found the appellant standing near the cot of the deceased while armed with a gun. On seeing the P.Ws. The appellant fled away. The deceased died instantaneously. Leaving the dead body at the spot Nazar Shah P.W. Proceeded to Police Station Bahlak and lodged F.I.R. Exh.P.E. With S.I., Ata Muhammad-P.W.9. After recording the F.I.R., the S.I. Reached the spot, prepared the injury statement Exh. P.F. And inquest report Exh. P.G. In respect of the deceased and sent the dead body for post-mortem examination.
4. Dr. Ahmad Saeed Shaikh P.W.1 conducted post-mortem examination on the dead body of Zafar Shah deceased, on 13-4-1982 and found the following injuries thereon:- (1)A firearm wound of entry with charred margins 1.5 c.m. x 1.5 c.m. x connected with wound of exit just in front of left and right ear, the skin surrounding was blackened.
(2)Wound of exit of bullet 2.00 c.m. x 1.5 c.m. Connected with wound of entry on right cheek just below and front of right ear. There was blood in right ear, The face bones of left and right side were broken.
The injury was caused by firearm and was fatal. The probable duration between the injury and death was about 1 to 2 hours and that between death and pos-mortem about 12 to 24 hours.
Exh.P.A. Is the post-mortem report while Exh.P.A./1 is the sketch of the injuries.
5. The appellant when questioned pleaded not guilty to the charge and denied the prosecution allegations. He admitted that the rukhsati of Mst. Shamim with his brother had not taken place till the occurrence. He attributed the case to enmity. He examined Muhammad Sarfraz Inspector P.W.1 in his defence. According to Muhammad Sarfraz I.P., he had investigated the case and had come to the conclusion that the appellant was innocent.
6. The prosecution case rests on the evidence of Nazar Shah P.W.7 and Sultan Shah P.W.8. Relying on their evidence, the learned trial Court convicted and sentenced the appellant as described above.
7. It is contended that it was a night occurrence and the eye-witnesses who were sleeping were not in a position to identify the assailant. Furthermore, during the course of investigation two other persons namely, Hamza Shah and Bashir Shah were arrested by the police and a .12 bore gun had been recovered from the possession of Hamza Shah who had confessed before the police having murdered the deceased because he was maintaining illicit intimacy with his were. It is further stated that the petitioner was found innocent by Muhammad Sarfraz, Inspector Crimes Branch, Lahore D.W.1 who had come to the conclusion that actually Hamza Shah had committed the murder of Zafer Shah deceased.
8. Nazar Shah P.W.7 is father of the deceased while Sultan Shah P.W.8 is maternal uncle of the mother of Nazar Shah P.W. Sultan Stan P.W. Did not reside at the Dera of Nazar Shah but had come there per-chance. There is a serious inconsistency in the F.I.R. Lodge Nazar Shah and the supplementary statement made by him. In the F.I.R. He claimed to have seen the appellant only near the deceased's cot but in his supplementary statement Exh. D.A. He stated that besides Manzoor Shah appellant Bashir Shah and Hamza Shah were also the murderers of his son and that he had seer, them running away from the spot at the time of occurrence. He admitted in cross- examination that Hamza Shah was the son of his sister who lived at a distance of 1/2 Killas from him in the same village. He denied altogether to have made any supplementary statement before the, police. Sultan Shah P.W.8 had also stated before the police in Exh. D.B. That the appellant was, accompanied by Bashir Shah and Hamza Shah whom he had seen running with him but he resiled from the said statement and stated that he has seen the appellant only in the light of lantern. The prosecution failed to explain the above inconsistency. It was probably on account --of the close relationship of Nazar Shah P.W. With Hamza Shah P.W. That he has tried to exonerate him. It has already been stated above that Hamza Shah is sister's son of Nazar Shah P.W.7. Ch. Sultan Ahmad D.S.P., P.W.10 who had investigated the case had directed that all the three persons, namely, the appellant, Hamza and Bashir Shah should be challaned and the matter be left to the decision of the Court but the D.I.-G. And I.-G. Had not agreed with him and had directed that only Manzoor Shah appellant should be challaned. According to him Hamza Shah and Bashir Shah had stated before him having committed the murder of Zafar Shah deceased. Muhammad Sarfraz I.P. D.W.1 also stated that he had come to the conclusion that the appellant was innocent. According to him, he arrived at that conclusion because the weapon of offence i.e. The gun had been recovered at the instance of Hamza Shah who had stated before him that he had found the deceased committing Zina with his were and on that lee alongwith Bashir Shah had murdered him. There is no independent corroboration of the testimony of the eye-witnesses. Nothing incriminating had been recovered from the appellant.
9. According to the prosecution, the appellant was annoyed with the deceased because he had declared that he would not allow the "Doli" of Mst. Shamim to reach the house of his brother and that there was an altercation between them on that score on two/three occasions before the occurrence but no evidence has been led to prove it. No witness other than the complainant has been examined to prove the motive of the previous altercations taking place between the deceased and the appellant. The appellant had denied that Mist. Shamim who had been married to his brother Asghar Shah was previously betrothed to the deceased. No witness has been examined by the prosecution to prove the deceased's betrothal with Mst. Shamim.
As the witnesses had been making conflicting statements with regard to the number of the assailants and the Investigating Officers had found the appellant to be innocent strong corroboration was required of their testimony but the same is not forthcoming. The motive set up by the prosecution does not stand proved. Nothing incriminating has been recovered from the appellant.
10. In these circumstances, we are of the opinion that the prosecution has not been able to prove its case beyond all reasonable doubt. Accordingly, we accept the appeal, set aside the conviction and sentence of the appellant and acquit him by giving him the benefit of doubt.
He shall be released forthwith if not required in any other case.
The death sentence of the appellant is not confirmed.