SH. MUHAMMAD ZUBAIR, J.--- Umar Hayat, his nephew Zafar Iqbal and their friend Yar Muhammad..,, were tried under section 302/34, P.P.C. For the murder of Alam Sher deceased on 28- 5-1987 at about 11-30 p.m. In the area of village Botala. The learned Judge, Punjab Special Court for Speedy Trial No.VIII, Sargodha, vide his judgment, dated 12-4-1988, acquitted Yar Muhammad of the charge, but convicted Umar Hayat and Zafar Iqbal under section 302/34, P.P.C. And sentenced them to death plus fine of Rs.30,000 each or in default to undergo further R.I. For five years. The fine, if recovered, 3/4th of it was ordered to be paid to the legal heirs of the deceased as compensation.
The convicts have appealed to this Court.
2. The occurrence took place on 28-5-1987 at about 11-30 p.m. And F.I.R. Exh.P.E. Was recorded by Manzoor Ahmad A.S.I. On 29-5-1987 at 1-00 a.m.
3. The motive for the occurrence is stated to be that two years prior to the occurrence, Umar Hayat appellant developed illicit relations with Mst. Nighat Khatoon wife of Alam Sher deceased. Alam Sher deceased asked Umar Hayat not to come to his house. It is alleged that Umar Hayat in order to remove the hurdle in his love affair with Mst. Nighat Khatoon, had killed the deceased in furtherance of common intention of his co-accused.
4. The prosecution case is that Alam Sher deceased was employed at Lahore. On the day of occurrence he had come to his village. Falak Sher P.W.10, Muhammad Hayat P.W.11 and Muhammad Khan (given up witnesses) were present in the house of the deceased. At about 11-30 p.m. They heard the noise of some persons outside the house of Alam Sher deceased, whereupon Alam Sher came out of the house and asked them as to who they were. It is alleged that the three persons started running. Alam Sher chased them. Muhammad Hayat P.W. And Muhammad Khan also followed them. The witnesses identified the appellants and the acquitted accused in the electric light. Within their view, the first shot was fired by Yar Muhammad at the deceased, which missed.
Second shot was fired by Zafar which hit him on his head, followed by the third shot by Umar Hayat, which too hit him on his head, whereupon he fell down and the accused decamped from the spot while raising Lalkara. Alam Sher died at the spot.
Leaving the dead body of Alam Sher under the care of Muhammad Hayat and Muhammad Khan, Falak Sher went to Police Station Mitha Tiwana, where F.I.R. Exh.P.E. Was recorded by Manzoor Ahmad A.S.I. (P.W.13) on 28-5-1987 at 1-00 a.m. The Police Officer then went to the spot, prepared the injury statement Exh.P.H. And inquest report Exh.P.J. Of the, deceased and despatched the dead body to the mortuary for post-mortem examination. He took into possession from the spot two empties P.4/1-2 and made into a sealed parcel vide memo. Exh.P.G. He collected blood-stained earth from the spot vide memo. Exh.P.F. Last-worn clothes of the deceased were also taken into possession vide memo. Exh.P.D. He recorded the statements of the P.Ws. Under section 161, Cr.P.C.
Thereafter, the investigation was taken over by Shaukat Ali S.I. (P.W.2). He arrested the appellants and the acquitted accused on 6-6-1987. He got prepared site plan and after completing legal formalities submitted the challan in the Court.
5. Doctor Muhammad Saleem Akhtar (P.W.6) conducted post-mortem examination on the dead body of Alam Sher and found the following injuries thereon:--
(1) An entry wound of fire-arm projectile, 1-3/4 c.m. x 1 c.m., on left side of forehead, just at the hair margins, 2 c.m. Left to the mid line and 4 c.m. From left eyebrow. The wound was bone deep and brain matter was visible.
(2) An exit wound, 1 x 3/4 c.m. On front of left side of scalp, 1 c.m. Posterior to injury No.1.
(3) An entry wound oblique in shape, 2.5 c.m. x 1 c.m. In left side of forehead, 2 c.m. Left to injury No.2.
(4) An exit wound of fire-arm projectile, 1-1/4 c.m. x 3/4 c.m. On left tempero parietal region. 3 c.m.
Posterior to injury No.3.
(5) A contused swelling 10 c.m. x 5 c.m., on tempero-parietal region, on left side, extending to left ear.
Death in the opinion of the doctor was due to injuries Nos.1, 2 and 3 caused by fire-arm leading to haemorrhage and shock. These injuries were ante-mortem and fatal enough to cause death in the ordinary course of time.
6. The appellants denied the prosecution allegations. They pleaded innocence. He explained the case against him in the following words:-- "One Ghazanfar Stenographer of S.P. Rawalpindi is inimical towards me. He has falsely involved me in this case. Falak Sher P.W. Is the son of the first cousin of said Ghazan. The P.Ws. Have got enmity with me. I had also sold a house to Falak Sher P.W. For Rs.70,000 out of which he paid only Rs.40,000 to me. I demanded the balance of Rs.30,000 from him acid on this score, we had a fight with each other and since then he is inimically disposed to me. My uncle Sher Ali, had appeared as P.W.
Against Muhammad Hayat P.W., in a murder case. Ghulam Jilani, a real uncle of Falak Sher P.W. Had a dispute with Zafar accused over the turn of water. Ghazan, the above-mentioned relative of Falak Sher, had previously also falsely involved me in 6/7 cases, within the period of 14 days. I had filed a writ petition in the High Court, regarding those cases:'
Khalid Nisar S.D.O. Irrigation Khushab, appeared as D.W.1.
7. Placing reliance upon the ocular version furnished by Falak Sher P.W.10 and Muhammad Hayat P.W.11, the learned trial Court convicted the appellants and gave them the sentence mentioned above.
8. In appeal, the learned counsel for the appellants raised the following contentions:--
(a) that the murder was not seen by any of the two eye-witnesses. It was, in fact, an unseen occurrence, which took place when it was dark and none of the eye-witnesses saw the real culprits;
(b) that the eye-witnesses are close relatives of the deceased, as one is the first cousin and the other is lather-in-law of the deceased, the testimony of these interested witnesses cannot be acted upon unless it stands corroborated in material respects, but no corroborative evidence is available on the record;
(c) that the ocular testimony of highly interested witnesses also stands contradicted by the medical evidence;
(d) that the investigating officer had not investigated the case impartially and prosecution has deliberately withheld the material and important documentary evidence, such as site plan prepared by Manzoor Ahmad P.W.13, who partly investigated the case. The defence evidence was not given its due consideration by the' learned trial Judge which has resulted into miscarriage of justice, as Yar Muhammad acquitted accused and Zafar Iqbal appellant had no apparent motive to commit the crime; over and above this, both these persons were found innocent during two successive police investigations, so the conviction of Zafar. Iqbal is not sustainable in the eye of law; and
(e) that the learned trial Judge has acquitted Yar Muhammad but convicted Zafar Iqbal appellant on the same evidence, hence his judgment is self-contradictory.
9. The learned counsel for the State supported the impugned judgment.
10. The learned counsel for the complainant submitted that mere relationship of the eye-witnesses with the deceased, without any background of enmity, per se is no ground to discard the ocular account furnished by them, particularly when the F.I.R. Was lodged with great promptness, which eliminates the chances of false implication.
11. We have gone through the entire record carefully and have also examined critically the respective contentions of the parties.
Admittedly, there is no background of enmity between the eye--witnesses and the appellants, which could instigate them to falsely involve the appellants in the present case. The F.I.R. Was lodged with great promptitude, which shows that the eye-witnesses were present at the scene of occurrence and they have also furnished very reasonable and plausible explanation for their presence at the spot. They were in a position to witness the crime in the electric light, Which was available, as per evidence of these witnesses, as is evident from the site plan Exh.PA.
12. Keeping in view the unfortunate tendency prevalent in our society that the witnesses do involve innocent persons alongwith the real culprits, in order to eliminate the chances of false implication, the Courts of law always insist upon some independent corroborative evidence before awarding capital punishment upon the evidence which comes from the mouth of interested persons.
Applying the aforementioned principle of law, to the facts of this case we find, there is ample evidence available on the record so far as the involvement of Umar Hayat appellant is concerned.
He was found involved in the crime by all the investigating officers and he had the direct motive to commit the murder of the deceased to eliminate him from his way, as Umar Hayat had illicit liaison with the wife of Alam Sher deceased, which was in the knowledge of the deceased. It is in the evidence that the deceased on account of evil design of Umar Hayat appellant towards his wife Mst. Nighat Khatoon, had many times admonished him that he should not visit his house which might have obviously annoyed Umar Hayat appellant and provided him with a motive to commit the crime, so appeal qua him is dismissed in toto
13. Zafar Iqbal appellant had no direct motive against the deceased and in the presence of medical evidence that the injuries sustained by the deceased might be the result of one single shot, coupled with this fact that he was found innocent during the investigation and also that he had no direct motive to commit the crime, the evidence available on the record, does not prove the case beyond reasonable doubt, so far as his involvement is concerned. Thus, prosecution has failed to prove its case against Zafar Iqbal. The appeal qua him is accepted and his conviction and sentences are set aside. We direct that he should be set at liberty forthwith, if not required to be detained in any other case.
N.H.Q./U-10/L