RIAZ AHMAD, J.--- Appellant Ahmad Hussain Khan Baloch son of Falak Sher was tried by the learned Additional Sessions Judge at Sargodha on three counts on the charge under section 302, P.P.C. For having committed the murders of his daughter Rubina Sheerin, his mother-in-law Gulzar Begum and his wife namely Zahida Naheed. Vide judgment, dated 27th of January, 1986, the learned Additional Sessions Judge found the appellant guilty on three counts, and accordingly, on each count, the appellant was sentenced to death, and to pay a fine of Rs, two thousand on each count, or in default thereof, to undergo rigorous imprisonment for three months on each count. It was further directed that out of the fine, if recovered, a sum of Rs, two thousand shall be paid as compensation under section 544-A, Cr.P.C. To the legal heirs of Gulzar Begum deceased.
2. The tragic occurrence resulting into deaths of three female deceased took place on 21st of June, 1984 at 1-00 a.m. In the house of the appellant in Chak No, 36 Shumali at a distance of 8 Kilometers from Police Station Saddar Sargodha. F.I.R. Was lodged at 7-45 a.m. On the same day by Abdul Qayyum P.W.4, the same was recorded by Muhammad Anwar Baig, A.S.I. P.W.S.
3. In brief, the complainant in the F.I.R. Stated that 9/10 years before the occurrence, his sister Zahida Parveen was married to the appellant, and out of this wedlock, a son aged 7/8 years and a daughter aged 4/5 years were born. In the year 1980, the appellant gave the hand of his daughter born out of the wedlock between him and Mst. Maqbool Fatima in marriage to the first informant, but the Rukhsati did not take place. According to the first informant, his marriage with the daughter of the appellant was resented by the Bradri of the appellant, and on account of the said strain and pressure, the appellant was not performing the Rukhsati ceremony. Four/five months before this occurrence, sister of the first informant Zahida Naheed brought Rubina Sherin to Chak No, 31-JB in the house of the first informant, and then returned to her own house. The appellant did not like the act of his wife Zahida Naheed, and thus, started annoying her, but on account of the intervention of the parents of the first informant, 15/20 days before, the pacification had taken place between the appellant and the parents of the first informant, and thus, the tension had come to an end. 3/4 days before the occurrence, sister of the first informant in his absence reached his house in Chak No, 31/JB, and a day before the occurrence i,e,, on 20th of June, 1984, Gulzar Begum mother of the first informant alongwith Mst. Rubina Sheerin wife of the first informant and his sister Zahida Naheed proceeded to Chak No, 36 North. On the evening of the day preceding the occurrence, the first informant also returned to his own house in Chak No, 31/JB and came to know, that his mother Gulzar Begum and his wife Rubina Sherin both had gone alongwith his sister to Chak No, 36 North.
On the fateful day, at about 5/6 a.m. The first informant also reached Chak No,36 North. When he entered the residential Ehata of the appellant, he saw the dead body of his wife Rubina Sheerin lying on a cot and the dead body of his mother Gulzar Begum and his sister Zahida Naheed in a pool of blood lying on the ground. Dead bodies were being guarded by Abid Hussain Shah and Muhammad Irshad. They told the first informant that they had come to Chak No,36 North to meet Shahnawaz a son of the sister of the appellant, and during the preceding mid-night, they had seen that the appellant after having fired shots with his gun, had killed all the three females.
4. Motive for the commission of crime as disclosed in the F.I.R. Was that the appellant did not tolerate the marriage of the first informant with his daughter Rubina Sheerin.
5. On 22-6-1984 P.W.3 Dr. Safdar Ali, Senior Medical Officer, D.H.Q. Hospital, Sargodha conducted the post-mortem examination on the dead body of Zahida Naheed wife of the appellant, and noticed the following injuries:--
(1) A fire-arm wound of entry 5 x 5 c.m. Chest deep on the back of right chest, upper part, scapular region, skin round the wound was scorched. 3rd, 4th and 5th ribs were fractured, right lung and heart were injured. Right chest was full of blood. Five wounds of exit were present in area of 7.5 x 7.5 c.m. On the front of right chest upper part. Wound of exit in area of 1 x 1 c.m. A pellet was removed from the front of left chest upper part under the skin, sealed in a bottle, a wad was also recovered from the front of right chest under wound of exit. 1st, 2nd and 3rd costal cartilages were fractured on the front of right chest. Another pellet recovered from the front of right chest sealed in a bottle.
(2) A fire-arm wound 5 x 5 c.m. x through and through the right hand. Bones of right palm were fractured.
' In the opinion of the doctor, the death had occurred due to injury No,1, which caused shock and hemorrhage. Injury No,2 was grievous. Injury No,1 was sufficient in the ordinary course of nature to cause death.
6. On the same day, the same doctor performed the post-mortem examination on the dead body of Gulzar Bcgum and noticed the following injuries on her person:-
(1) A fire-arm wound of entry 6 x 4 c.m. x through neck and chest deep on the outer and lower part of right side of neck 6 c.m. From right shoulder.
(2) 4 fire-arm wounds of entry in an area of 5 x 5 c.m. x through and through the lower jaws on the outer side of right lower jaws sized 1 x 1 c.m. 4 wounds of entry were present on the left side of face.
' In the opinion of the doctor, the death had occurred due to injury No,1 which caused shock and haemorrhage. Injury No,2 was grievous. Injury No,1 was sufficient in the ordinary course of nature to cause death.
7. On the same day the same doctor conducted the post-mortem examination on the dead body of Rubina Sheerin, and noticed the following injury on her person:--
(1) A fire-arm wound gapping in nature involving the whole of the left side of face, nose left eye going through the left side of skull and brain. Bones of the skull, face and lower jaw and the teeth were fractured. Brain matter was present in the wound.
' In the opinion of the doctor, death had occurred due to injury No,1 which caused shock and haemorrhage and was sufficient in the ordinary course of nature to cause death.
8. During the inspection of the spot by the Investigating Officer, five crime empties P.11/1 to 5 were recovered and taken into possession vide memo. Exh.P.M. Attested by Ahid Hussain P.W.6, Muhammad Irshad (not produced) besides Muhammad Anwar Baig, A.S.I. P.W.B.
9. On 2nd of July, 1984 the appellant was arrested by A.S.I. Muhammad Anwar Baig P.W.B. On 4th of July, 1984 the appellant while in custody led the police to his residential Kotha, and got recovered a licensed gun P.10 which was taken into possession vide memo. Exh.P.H. Attested by Abdul Qayyum P.W.4 and Abdul Hameed (not produced) besides the Investigating Officer P.W.B. Crime empties were taken into possession on 21st of June, 1984 but the parcel was not deposited in the police station till 27th of June, 1984. These empties were then sent to the Forensic Science Laboratory on 27th of June, 1984, and were received by the Laboratory on 18th of June, 1984. The gun P.10 was also sent to the Forensic Science Laboratory on 17th of July, 1984, and was delivered there on the next day. On comparison, it was opined, that four crime empties out of the five had been fired from the gun recovered at the instance of the appellant.
10. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by P.W.6 Abid Hussain Shah a friend of the first informant P.W.4 besides Farida Begum P.W.7 a sister of the complainant. Muhammad Irshad named in the F.I.R. As a witness was given up by the prosecution. In addition to the ocular testimony, the prosecution also placed reliance upon the medical evidence and the evidence as to the motive. In addition thereto, recovery of the gun P.10 at the instance of the appellant and the opinion of the Ballistic Expert were also relied upon.
11. When examined under section 342, Cr.P.C., the appellant denied the charge and denied his abscondence. He further stated that he had been involved on account of enmity. He further added that the gun P.10 was recovered by the police from his house in his absence, and the empties had been fabricated by the police. The appellant also produced in defence Muhammad Khan as D.W.1 a Head Constable who produced the original police file in respect of a case registered vide F.I.R. No, 101, dated 14-5-1984 Police Station Thikriwala, Faisalabad. This case was registered on the complaint of Muhammad Shamir against Shah Nawaz a son of the sister of the appellant and others. Appellant also produced D.W.2 Riaz Hussain to state that Abid Shah and Muhammad Shah were brothers, and at the instance of Shamir, a case was registered against his brother and Shah Nawaz. It was further deposed by the witness that Martial Law Authorities made a probe into the said case, and on 30-5-1984 a compromise was effected between the complainant Shamir and the accused Shah Nawaz and his brother. According to the terms of the compromise, a sum of Rs, ten thousand as compensation was paid to Shamir. The compromise deed was produced as marked 'A' and receipt of Rs, ten thousand was marked as 'B'.
12. By leading the defence evidence, the appellant wanted to show that Abid Hussain P.W.6 could not have been present at the scene of occurrence, because he had stated that he had come there to find out Shah Nawaz in connection with the compromise of the said criminal case. According to the appellant, the compromise had taken place long before the present occurrence, and thus there was hardly any occasion for him to have visited the chak of the appellant.
13. With the assistance of the learned counsel for the appellant and the State, we have carefully perused the record of this case, and we have heard the contentions of the learned counsel at length. It was vehemently contended by the learned counsel for the appellant, that F.I.R. In this case was a belated document and the same was prepared after preliminary investigation. Occurrence according to the learned counsel had taken place in the dark hours of the night, and the three deceased were killed by some unknown persons. It was further submitted that the F.I.R. Was lodged with delay, and the witnesses namely Abdul Qayyum, Abid Hussain Shah and Farida Begum were sent for from their respective villages to be introduced as eye-witnesses in this case.
14. It was next contended that had the first informant been present and had seen the occurrence, he would have gone with the dead bodies to the mortuary, whereas, in fact, other persons namely Muhammad Hussain and Ijaz Hussain had gone with the dead bodies to identify them. It was further argued that A:DA Hussain P.W.6 could not have been present, because, even if, it is believed that he had come to the village of the appellant to find out Shah Nawaz a sor. Of the sister of the appellant, who had not been found there, then P.W.6 could ne have stayed in the house of the appellant, because he belonged to a different 3radri. It was further submitted, that since Shah Nawaz was not found in the chak of the appellant, but nobody was sent to the other chak to summon 'Shah Nawaz.
15. It was further contended that P.W.6 failed to render any satisfactory explanation about his presence, inasmuch as, the case in which according to P.W.6, a compromise had to take place had already been settled by the Martial Law Authorities long before the occurrence. The compromise and the receipt of Rs, ten thousand by Shamir complainant of the said case shows that on the day of occurrence, there was no occasion to negotiate the compromise.
16. It was also argued that Farida Begum P.W.7 a sister of the first informant was not named in the F.I.R., therefore, it was unsafe to rely upon her evidence.
17. After anxious consideration of all the facts of this case, we are of the view, that it was unsafe to place reliance upon the statement of P.W.7, because she was not named in the F.I.R. Delay in lodging of the F.I.R. In this case is inordinate, 'and no explanation for it exists on the record.
Obviously, the first informant is not an eye-witness, and the only eye-witness is Abid Hussain P.W.6.
The crucial question is whether the solitary statement of P.W.6 should be relied upon or not. After anxious consideration, we are of the view that it will be unsafe to place reliance upon his statement. Obviously, he belongs to a different Bradri and different village, therefore, we are not prepared to believe, that he would have slept in the house of the appellant during the night of the occurrence. The pretext on which, he had visited the house of the appellant to find out Shah Nawaz is not convincing. According to P.W.6 he had come to visit Shah Nawaz in connection with the compromise of a criminal case, but the documentary as well as the oral evidence shows that the compromise had already taken place long before the occurrence. Thus, there was hardly any occasion to negotiate such compromise. Assuming otherwise for the sake of arguments, even then, P.W.6 ought to have visited the chak where Shah Nawaz resided instead of visiting the chak of the appellant. It is further strange to note, that none was sent for, for summoning Shahnawaz from his chak to meet P.W.6 in the village of the appellant.
18. As far as recovery evidence is concerned, it is of no avail to the prosecution, because only the oral testimony can be corroborated by such evidence. If the oral testimony is unconvincing, then the corroborative evidence is of no avail, therefore, we discard the same from consideration. It is further important to note that the occurrence had taken place during the mid-night, and none had gone to the police station. It seems that the complainant was being awaited for lodging the report with the police. In this view of the matter, we are of the view, that the entire occurrence is shrouded in mystery, and the prosecution has not been able to bring guilt home to the appellant. Resultantly, this appeal must succeed. Accordingly, the same is allowed. The conviction and the sentences of the appellant are set aside. Death sentence awarded to appellant is not confirmed. He should be released forthwith if not required to be detained in any other case. Reference is answered accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.