KHIZAR HAYAT, J.- Fida Hussain son of Ghulam Sarwar, aged 23 years, an Army personnel, r/o Mauza Chak Dadanwala, Basti Kandwala, P.S.Qureshi, tehsil and district Muzaffargarh was tried and convicted by Sessions Judge, Muzaffargarh, under section 302/149 P.P.C, and sentenced to imprisonment for life and a fine of Rs. 20,000/- or in defauIt to undergo further R.I. For four years, directing that the fine, if realised, shall be paid to the heirs of the deceased vide judgment dated 2.11.1983. Khuda Bakhsh, complainant (since dead) filed Criminal Revision No. 195 of 1984 for enhancing the sentence of the appellant to death, wherein a notice was issued to the appellant on 16.2.1985. We propose to dispose of both the matters by this single judgment.
2. Muhammad Ramzan, deceased, was worker in Thai Jute Mills, Muzaffargarh. In the days of occurrence his duty was from 10 p.m to 6 a.m. On 2.1.1981,the deceased while going to attend his duty told his father Khuda Bakhsh, complainant (since dead) that his shift had been changed and that he would return home after performing his duty from 2 p.m. To 10 p.m. Muhammad Ramzan, deceased did not return home till next morning, whereupon the complainant along with his brother Allah Bakhsh and nephew Ghulam Sarwar went out to search him at mid day on 4.1.1981. Near Basti Pehlwanwala having learnt that a human dead body was lying in the Barscem field of Ghulam Nabi. They went there and found Muhammad Ramzan deceased lying murdered. At this, Khuda Bakhsh complainant went to Police Station Qureshi and lodged FIR Ex.PJ at 3 p.m. Recorded by Allah Dad Sub- Inspector (PW I6) wherein the complainant had not expressed his suspicion against any body to be the murderer of his son.
3. Allah Dad SI (PW16) after recording FIR ExlPJ reached the spot, collected blood-stained earth, prepared injury-statement and inquest-report of the deceased and despatched the dead body to the mortuary for postmortem examination under police escort. He picked up bullet (P9) from there vide memo Ex.PD. On 5.1.1981, Ghulam Haider FC(PW4) produced before him last worn clothes of the deceased, a phial containing bflllct P6 (extracted from the dead body) identity card(P7) and attendance card (P8) which wcre-securcd under memo Ex PB. On 1.2.1981 Fida Hussain appellant, was arrested from his Army Unit as Dera Nawab. On 8th February 1981 Pervaiz Akhtar A.S.P. (P17) recovered a.32 bore revolver (P10) along with six empties (Pll/1-6) from a deserted well known as Chah Pehlwanwala, situated in village Ajab Arain, on the pointation of the appellant and secured the same under memo Ex. PF, attested by Muhammad Iqbal Lambardar (PW 10).
4. Dr. Fia/ Ali Khan (PW 13) who conducted postmortem examination on the dead body of the deceased,- noted the following injuries on it-
(1) - Firearm wound on right side of the chest 7th intercostal space (wound of entry).
(2) - Firearm wound .25 cm in diameter 7th intercostal space 2 cm lateral to the previous injury.
(3) - Firearm wound .25 cm in diameter 8th intercostal space in the anterior axillary line.
(4) - Firearm wound .25 cm in diameter body of sternum in the middle at level of 5th rib.
(5) - Two firearm wounds .25 cm in diameter on left forearm 7 cm below elbow joint through and through inner wound of entrance.
(6) - Firearm wound .25 cm in diameter on external surface of right forearm in the middle. Wound of entry.
(7) - Firearm wound .25 cm in diameter on inner surface of right forearm. Wound of exit.
(8) - Firearm wound .25 cm in diameter on right deItoid muscle.
(9) - Firearm wound .25 cm on left forearm inner side.
(10) - Firearm wound on left side of neck.
He opined that death was due to excessive haemorrhage and since and injury to liver and lungs. All the injuries arc ante mortem caused with a firearm except injury No.10 which is the resuIt of blunt weapon.
5. It may be mentioned that the crime bullet recovered from the spot and those recovered from the dead body were sent to the Forensic Science Laboratory for comparison with revolver (P10) recovered from the appellant and that the Firearm Expert reported in Ex.PN that the crime bullets lacked sufficient data for giving opinion that these bullets were fired from the said revolver.
6. At the trial seven witnesses appeared to prove the prosecution case. Khuda Bakhsh, complainant, father of the deceased died before the commencement of the trial. Ghulam Qadir (PW14) who was produced to prove the extra judicial confession allegedly made by the appellant before him had resiled. Recovery of revolver (P10) recovered at the pointation of the appellant, too, is of no consequence as it had not been found wedded to the crime bullets Ex.Pll/1-6. The prosecution thus hinges on the evidence of motive provided by Mst. Sharifan (PW15) sister of the deceased and the evidence of Hashim (PW11) and Ghulam Haider (PW12) who claimed to have last seen the deceased alive in the company of the appellant.
7. Mst. Sharifan (PW 15) stated that Muhammad Ramzan deceased was her brother. She resided with him. The appellant as having illicit relations with Mst. Amiran, wife of the deceased. She asked the appellant not to visit her brother's house and so did her father and the deceased. The appellant did not stop his visits and instead threatened them saying that he was an Army man and a 'Zamindar' of the village, so no body could harm him. The witness was confronted with her police statement Ex DC under section 161 Cr.P.C, wherein the story that when Khuda Bakhsh (complainant) restrained the appellant from visiting deceased's house he issued threat to them, docs not find mention.
8. Hashim (PW11) stated that he and Ata Muhammad PW (not produced) went to the house of Amir Bakhsh Pitafi in Wan Pitafi for supplying him beaf for circumcision ceremony of his son. They were returning from there at 9 a.m. They reached Chah Pehlwanwala at 11 p.m. Where they greeted the deceased and the appellant, who were going towards north. He admitted that he was son-in-law of the uncle of the deceased and Ata Muhammad is his close relative. He denied to have deposed falsely against the appellant. Ghulam Haider (PW12) is a worker in Jute Mills, Muzaffargarh. He stated that two and a half years ago he worked in Shift 'A' in the mills. He finished his duty at 2 p.m.
And went to MuItan and returned from there at 10 p.m. He boarded a bus from the Gate of the Mills.
Muhammad Ramzan, deceased, also boarded the same bus. It reached near Nala Bahawal at 11 p.m. Muhammad Ramzan, deceased, got down from the bus. Fida Hussain appellant was present there who took the deceased along with him towards their house. He admitted that he belonged to the brotherhood of the deceased.
9. At the conclusion of the trial, the appellant in his statement under section 342 Cr.P.C, denied the allegation and produced no witness in defence.
10. We have carefully considered the facts and circumstances of the case and perused the record with the assistance of the learned counsel for the parlies.
11. To prove the motive, the prosecution has adduced only one witness, namely, Mst. Sharifan (PW15) who is, admittedly, the real sister of the deceased. Her story, that the appellant, when asked by the deceased or his father, to abstain from visiting the house of the former had threatened them, does not find mention in her statement Ex.DC, recorded by the police. It may be pointed out that this fact was not stated by Khuda Bakhsh, father of the witness, in the FIR PJ lodged by him. On the basis of this evidence it can neither be held with any amount of certainty that the appellant had illicit relations with Mst. Amiran, wife of the deceased or that he had held out any threat to the deceased or his father when they asked him not to visit their house.
12. The other piece of evidence against the appellant is in the nature of 'last seen' evidence furnished by Hashim (PW11) and Ghulain Haider (PW12). They are also related to the deceased. The evidence of last seen could have been of some avail to the prosecution provided these witnesses had stated specifically that they had seen the deceased alive in the company of the appellant, immediately before the deceased was found dead. Both these witnesses do not say as to how much time after their having seen the appellant and the deceased together the deceased was found dead. There is yet another significant feature of the case i.e. That had the appellant administered threats to the deceased, as stated by Mst. Sharifan (PW15) they it is unimaginable that the deceased would go in the company of the appellant at the dead of night after getting down from the bus at Chah Pehalwanwala, as stated by Ghulain Haider (PW12).
13. For the aforesaid reason we are of the view that the evidence on record does not at all connect the appellant with the commission of crime and as such the charge of murder framed against him fails. In the resuIt we accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He be released forthwith if not required to be detained in any other case.
14. Revision petition (Cr.R.No.195/84) filed by Khuda Bakhsh, complainant (since dead) for enhancing the sentence of the appellant to death, automatically fails and is dismissed.