' RAJA AFRASIAB KHAN, J.--Riaz Hussain, Zafar Iqbal, Nasir, Sarfraz and Tasawar alias Kali were tried by the learned Additional Sessions Judge, Toba Tek Singh under section 302/14.8/149, P.P.C. For the murder of Mst. Nasim atima. Vide judgment, dated 27-1-1987, the learned trial Judge proceeded to acquit Zafar Iqbal, Nasir, Sarfraz and Tasawar alias Kali on the ground that they had been implicated in the case as a result of enmity and that case against them had not been proved beyond doubt by the prosecution. However, the learned trial Judge convicted the appellant Riaz Hussain under section 302, P.P.C. And sentenced him to death plus a fine of Rs,10,000 or in default thereof to suffer two years' R.I. It was ordered that in case of recovery of fine, half of it shall be paid to the heirs of the deceased as compensation. The appellant has challenged his conviction and sentence by moving an appeal. The learned trial Court has sent a reference under section 374, Cr.P.C. For confirmation of the death sentence of the appellant. We propose to dispose of both the matters by this judgment.
2. The prosecution story is that on 20-10-1985 at about 9-00 a.m., Muhammad Iqbal, complainant (P.W.6) and his wife Mst. Nasim Fatima (deceased) were going towards their Dera. When they reached near the land of Najabat, the complainant went in the nearby cotton field to cease himself. However, Mst. Nasim Fatima continued her journey while carrying a Valtoi on her head.
After easing himself, the complainant also followed his wife but when he was at a distance of about 30 karams away, the appellant Riaz Hussain armed with a revolver, Zafar Iqbal armed with a Sota, Nasir armed with a Barchhi, Sarfraz and Tasawar Hussain alias Kali armed with pistols emerged from a field. The appellant shouted that they would not leave Mst. Nasim Fatima alive because she had married the complainant against their will. Sarfraz by firing injured the deceased on her back. Tasawar alias Kali fired a shot which hit her below the neck. Riaz Hussain fired a shot which landed on the left side of her head. On receipt of the injuries, she fell down and died at the spot. The occurrence was witnessed by Zafar son of Falak Sher, Noor Akber son of Allah Dad and Malik Mansab son of Mian Muhammad. #TBS (1) #TBE ' The motive was that Mst. Nasim Fatima was married to an uncle of the appellant named Matah.
She obtained a decree for dissolution of marriage against him and thereafter, married the complainant. On account of this grudge, the appellant Riaz Hussain along with the acquitted co- accused murdered her. Muhammad Iqbal complainant was on way to the police station when near Pull Lundo he came across Khadim ussain S.I. P.W.10. He made statement to him at 10 a.m. On the basis of which formal F.I.R. Vide Exh.PC/1 was recorded by Muhammad Sharif Moharrar Head Constable. The place of occurrence was visited by the Police Officer in the company of Khalid Rasool and Khizar Hayat Constables. The dead body of Mst. Nasim Fatima was found lying in the fields of Cotton Crop in Square No,13, Killa No,3. Zafar Ali, Noor Akber, Mansab and many other people were present at the spot near the dead body. Inquest report Exh.P.L. And the injury statement Exh.P.M. Of the deceased were prepared by S.I. Khadim Hussain. Blood-stained earth from the place of occurrence was taken into possession vide memo. Exh.P.E. Valtoi P.4, its lid P.5 and a blood-stained torn piece of cloth P.6 were seized vide memo. Exh.P.F. Blood-stained clothes of the deceased Chaddar P.1, Qameez P.2 and Dopatta P3 were also taken into possession vide memo Exh.P.D. The above-mentioned S.I. Got prepared the site plans Exh.P.B. And Exh.P.B./1 from Yousaf All Patwari P.W.2. On 20-10-1985 he arrested the appellant and Zafar Iqbal acquitted co-accused. The appellant while in police custody led to the recovery of revolver P8 from a trunk which was lying in a room of his Dhari. The revolver P8 contained one empty and two missed bullets P9-11. These articles were taken into possession vide recovery memo. Exh.P.K. On the same day the appellant led the Investigating Officer to the recovery of a revolver empty P.7 from Killa No,3 of Square No,13 which was sealed into a parcel vide memo. Exh.P.J. The acquitted co-accused Tasawar, Sarfraz and Nasir were arrested on 22-10-1985. The investigating officer found Sarfraz, Tasawar, Nasir and Zafar Iqbal innocent and placed them in column No,2 of the challan. He also moved an application for their discharge. Akber Ali Cheema DSP P.W.9 verified the earlier investigation conducted by Khadim Hussain S.I. P.W.10. He too found Sarfraz, Tasawar, Nasir and Zafar Iqbal accused innocent while the appellant was found guilty.
' Positive reports of the Chemical Examiner Exh.PN, Serologist Exh.PO and that of the Forensic Science Laboratory Exh.PO were tendered in evidence by the learned prosecutor.
5. Dr. Akhtar Ali, P.W.1 conducted the post-mortem examination on the dead body and found the following injuries thereon:-- ' A fire-arm wound of entry 1 x 1 c.m. x bone deep. Circular in shape on the left parietal region on head 8 c.m. Above left ear. Brain matter coming out of wound of entry.
(2) A fire-arm wound of entry 1 c.m. x 1 c.m. Hone deep circular. On dissection fracture of left parietal bone under injury No,l. Scalp was injured under injury No,l. There was an injury to the left cerebral hemisphere and the bullet was lodged in the right hemisphere. Cranial cavity was full of blood.
(3) A fire-arm wound of entry 3 c.m. x 1 c.m. Muscle deep oblique in shape on outer part of back- side of right abdomen. The probable time that elapsed between injuries and death was immediate and the time between death and post-mortem was 4 to 8 hours. In the opinion of the Doctor the cause of death was shock and haemorrhage as a result of injury No,1 which was sufficient to cause death in ordinary course of nature. Injury No,2 was grievous while injury No,3 was simple in nature..
All the three injuries were caused by fire-arm and were ante-mortem.
6. Eye-witness account was provided by Muhammad Iqbal, P.W.6, Mansab Khan P.W.7 and Zafar Ali P.W.B. Mansab Khan P.W.7 deposed that the appellant and the acquitted co-accused while armed emerged from the cotton field and opened attack on Mst. Nasim Fatima. The appellant shouted that they would teach her a lesson for marrying Muhammad Iqbal. Sarfraz fired a shot which hit the deceased on her right side of chest. Tasawar fired which too hit the deceased below her neck on back. The appellant fired a shot from his revolver which injured the right side of her neck. The witness admitted that he was not the resident of the village where the occurrence had taken place and that his village was at a distance of about 6/7 miles away. He conceded that he did not own any land in the village. He also conceded that none from his relatives was living in the village of occurrence. To the same effect is the statement made by Zafar Ali P.W.B. This witness is the first- cousin of the complainant. He conceded that he was challenged in as many as 15 to 20 criminal cases. The appellant while making a statement under section 342, Cr.P.C. Denied the allegations levelled against him and took the plea that he had been implicated in the case on account of enmity. He pleaded his innocence. However, no evidence in defence was led by the appellant.
7. Learned counsel contends that there is not a shred of evidence to connect the appellant with the commission of the crime. Learned counsel forcefully maintains that the occurrence appears to be unwitnessed. He further says that enmity between the parties is proved. The learned State counsel defended the conviction and sentence of the appellant. He urges that this is a day time occurrence and that the prosecution has successfully proved its case against the appellant beyond doubt.
8. We have heard the learned counsel for the parties at considerable length. We are of the view that the prosecution did not at all succeed to prove its case against the appellant beyond reasonable doubt. Muhammad Iqbal P.W.6, husband of Mst. Nasim Fatima (deceased) admittedly remained unscathed. This is not the case of the prosecution that an attempt to injure the complainant was also made by the assailants. In our view, if the complainant was present at the spot, he would not have been spared by the assailants who had direct enmity against him and were also heavily armed. It is in the evidence that the complainant was following the deceased at a very close distance. This being so, he would have been a very easy target for the assailants. The fact that the complainant was not injured nor an attempt to injure him was made indicates that he was not present at the spot. We, therefore, proceed to reject the evidence of the complainant PW.6.
The other eye-witness Malik Mansab Khan P.W.7 is admittedly not the resident of the village of the occurrence. His village is at a distance of about 6/7 miles away from that village. He had no relatives living in the village 184/GB where the occurrence took place. Similarly, he had no agricultural land there to cultivate. In our opinion, he is definitely a chance witness. The witness wholly failed to justify his presence at the spot early in the morning. In absence of any plausible explanation having been offered by Malik Mansab Khan P.W.7 regarding his presence at the spot we are not inclined to accept his evidence. The witness conceded that he was challaned alongwith Muhammad Iqbal P.W.6 for committing dacoity in as many as five houses. He further conceded that they were challaned as dacoits for having committed several dacoities in various Districts. The witness was also convicted and sentenced to suffer five years' R.I. By the learned Court. The witness has a gruesome criminal history. This shows that the witness is an interested witness and that he had been committing offences by joining hands with the complainant Muhammad Iqbal, P.W.6.
This being so, the evidence deposed by this witness cannot at all be relied upon without corroboration. Zafar Ali P.W.8 is first cousin of the complainant. He too had a criminal record to his credit. He had been challaned in as many as 15/20 criminal cases. His evidence on the face of it is interested and is not worth reliance. There is absolutely no evidence available on record to corroborate his evidence. His presence at the spot is also not proved. The witness deposed that his house is at a distance of about 2-1/2 squares away from the place of occurrence. It appears that the witness has deposed in favour of the prosecution because of his relationship. Accordingly, we proceed to discard his evidence as well. Thus, the eye-witness account is rejected by us as a whole.
' The motive as set up by the prosecution also does not fit in the story inasmuch as Mst. Nasim Fatima was divorced by Matah about 17 years ago. The said Matah is an uncle of the appellant.
Thus, the appellant had no direct motive to commit the offence because ex-husband of Mst. Nasim Fatima being alive was in fact an aggrieved person. He did not at all participate in the commission of the crime. It may also be noted that Akbar Ali Checma, DSP P.W.9 admitted in his cross- examination that as per his investigation Muhammad lqbal, Zafar Ali, Noor Akber and Malik Nansab P.Ws did not at all witness the occurrence.
' The recovery of the weapon of offence from the appellant is also not proved beyond doubt. No independent witness was examined by the prosecution C to prove it. The evidence of Zafar Ali P.W.8 has already been discarded by us in the earlier part of the judgment. Apart from the above, it may also be observed D that the prosecution evidence was disbelieved qua the acquitted co-accused by the learned trial Court and as such the same set of evidence cannot be believed qua the appellant without corroboration. The prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt.
9. Consequently, the conviction and sentence of the appellant is set aside and he is acquitted by accepting his appeal. The death sentence of the appellant is NOT confirmed. The murder reference is answered accordingly.