JUDGMENT KHALIL UR REHMAN RAMDAY, J.- One Abdul Haleem had been tried by a learned ASJ of Gujrat for the murder of Mirza Sale Baig and having found the said Abdul Haleem guilty of the offence punishable under section 302 PPC through his Judgment dated 29.1.1991, the learned trial Judge punished the said convict with death and a fine of Rs. 20,000/- or sufferance of two years R1 in default of payment of fine. Half of the amount of fine was directed to be paid to the heirs of the deceased.
2. Murder Reference No 62/91 seeks confirmation of the above- mentioned sentence of death while Abdul Haleem convict has filed Crl. Appeal No. 113/91 and impugns the above-noticed conviction and sentences recorded against him. Feroze Baig, a brother of Sale Baig deceased has also approached this Court through Crl. Revision No.684/91 and prays that the compensation ordered to be paid to heirs of the deceased be enhanced. All these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 2.2.1990 at about 9.30 p.m. On the road side near OABRASTAN BHATTIAN in the area of MOHALLAH MUSLIM ABAD about three FIRLONGS from Police Station 'EC Division' of Gujrat. The said occurrence had been reported by Muhammad Khalid Khan complainant to Muhammad Sale Baig SI(PW. Ll) while the latter was present at CHOWK PAKISTAN at about 10.05 p.m.
4. Khalil Khan complainant had informed the said police officer that his sister was married to Mirza Sale Baig deceased who was carrying on business at Karachi and had contracted a second marriage with one Mst. Jamila Begum but had divorced the said Mst. Jamila Begum about two years ago. He had added that Sale Baig deceased had come to Gujrat two days prior to the occurrence and on the night of occurrence the complainant and Sale Baig deceased were going to the house of a brother of the deceased, namely, Feroze Baig on their respective motor-cycles and just as they had reached near QABRASTAN BHATTIAN, one person came in the middle of the road and signalled the complainant and the deceased to stop. The complainant claimed that the said person was identified as Abdul Haleem (the present appellant) and that Sale Baig deceased stopped his motor-cycle on the left side of the road at which the said appellant fired at the deceased hitting the deceased on the back-side of he head as a result of which the deceased fell down from the motor-cycle; the appellant then fired a second shot hitting the deceased above his right car and then the appellant fired a third shot which landed on the right eye of the deceased.
The complainant further disclosed that in the meantime Ch. Khadim Hussain, Advocate (given up), Ter. Javaid (PW.8) and Sohail Shaheen (PW.9) who had reached the place of occurrence also witnessed the said occurrence.
5. It may be mentioned here that although it had not been so stated in the FIR and had been so divulged by the complainant and the other eye-witnesses only at the trial that Abdul Haleem appellant who was a son of Mst. Jamila Begum above-mentioned from her first husband had killed the deceased on account of the grudge which he nourished against the deceased for his (the deceased) having the appellant's mother.
6. On his visit to the place of occurrence, Muhammad Sale Baig SI(PW. Ll) found blood stained earth which he collected vide memo Exh.PG and also found two crime empties (P-10/1-2) which he seized vide Memo Exh.PH. The Motor-cycle (P-11) bearing Registration No. GTB-8389 was also available at the place of occurrence which the I.O took into custody vide memo Exh.PJ.... The search/examination of the dead-body by the said I.O. Had, inter-alia, led to the recovery of a licensed revolver (P-5) with ten live cartridges (P-6/1-10) belonging to the deceased which was secured by the 1.0 vide memo. Exh.PE.
7. Abdul Haleem appellant had been arrested by the I.O on 9.2.1990 who was carrying a 30 bore pistol (P-1) with him at the time of his apprehension. This pistol had been taken into possession vide memo. Exh.PB.
8. The above-mentioned crime empties found at the place of occurrence (P-10/1-2) had been sent to the Forensic Science laboratory on 6.2.1990 as per Tariq Mehmood FC(PW3) while pistol (P-1) allegedly recovered from Abdul Haleem appellant had been despatched to the said laboratory on 24.2.1990 as per Muhammad Aslam FC (PW.2). According to the report of the Forensic Science Laboratory.(PR), the said crime empties had been found to have been' fired from the said pistol.
9. When confronted with the prosecution case, the appellant denied his involvement in the occurrence in question and attributed his false implication to the close relationship of the PWs with the deceased. He had added that the complainant and the other eye-witnesses who are closely related to the deceased were unhappy with the marriage which the deceased had contracted with the mother of the appellant, namely Mst Jamila Begum and that it was for this reason that he had been falsely involved in this case. He had further pleaded that the deceased had never divorced his mother and it was also in order to usurp the property of the deceased and to deprive his mother Mst. Jamila Begum of her share of the inheritance of the deceased that he had been maliciously implicated in the occurrence in question.
10. Canvassing acquittal for the appellant, his learned counsel argued that all the eye-witnesses were close relatives of the deceased who had a motive to falsely implicate the appellant on account of his mother's marriage with the deceased that the said eye-witnesses had not seen the occurrence and had been subsequently planted as such in the present case; that all of them were provenly chance witnesses that the prosecution had failed to prove the motive that the alleged recovery of the crime empties from the place of occurrence, the alleged recovery of the pistol from the possession of the appellant and the consequent report of the Forensic Science Laboratory were a fabrication and that, in the circumstances, it could not be said that the prosecution had proved its case against the appellant who, therefore, deserved to be acquitted.
11. Khalid Khan complainant is a brother of the widow of the deceased who was his first were whereafter the deceased had contracted a second marriage with Mst Jamila Begum whose son is Abdul Haleem appellant from her first husband. Khalid Khan complainant had admitted that the deceased had contracted this second marriage secretly that none from amongst their brotherhood and relatives had attended this marriage and that the deceased had not even taken permission from his first were i.e. The complainant's sister before contracting this second marriage.
The complainant had claimed that two years prior to the occurrence, the deceased had divorced Mst Jamila Begum which divorce according to the prosecution was the motive for the present murder. The complainant had admitted that he was not a witness to the said divorce but had only heard that the deceased had pronounced TALAO. On Mst Jamila Begum. The pronouncement or the promulgation of divorce on Mst. Jamila Begum was not a difficult fact to prove. The record of the concerned union council could have been conveniently produced or got summoned to establish this fact. No such step had, however, been taken by the prosecution to prove the factum of this alleged divorce. The maximum that had been done by the prosecution was what had been stated by Sale Baig SI.I.0 (PW. Ll) that on 30.3.1990 Feroze Baig, a brother of the deceased had produced before him a TALAQ NAMA pertaining to Mst Jamila Begum which the Investigating Officer had attached with the police file marked as 'A'. This document which is somehow available on the record is a notice of divorce and not a certificate of the union council regarding the said notice having become final. Be that as it may, the prosecution had never taken any step or taken the courage of producing even this notice at the trial and proving the same at the trial in accordance with law. It is, therefore, not possible to read this document in evidence or to place any reliance on the same on account of the same not having been brought on record of the learned trial Court in accordance with In the circumstances, at least for the purposes of this trial, We feel compelled to hold that the prosecution had failed to prove that the deceased had divorced the appellant's mother as claimed by complainant and Sohail Shaheen(PW.9).
12. This then not only knocks the bottom out of the motive alleged by the prosecution for the occurrence in question but is also a definite indicator of the relationship of the complainant party vis-a-vis Mst. Jamila Begum and her son Abdul Haleem appellant.
13. Khalid Khan complainant claims to have witnessed the occurrence because, according to him, the deceased had come to his house on the day of occurrence at about 9.00 p.m. And the two thereafter going to the house of Feroze Baig, a brother of the deceased, who lived near the place of occurrence. This claim of the complainant does not inspire confidence. The second marriage of the deceased had obviously not been liked by the complainant party. The prosecution had failed to prove that the deceased had divorced Mst. Jamila Begum. This being so, it is difficult to hold that the complainant would be on good or cordial terms with the deceased. He admitted that the deceased had come to Gujrat about two days prior to the occurrence, that he had heard a day earlier that the deceased was in town but the deceased had not met the complainant for at least two days after reaching Gujrat. This further strengthens our impression about the relationship which the deceased had with the complainant. In this view of the matter, the claim of the complainant that the deceased had asked him to accompany the deceased while the deceased was going to the house of his brother and the further claim of the complainant that whenever the deceased went to meet his brother, the deceased used to take the complainant along with him, to say the least, does not inspire confidence. It is also not understood as to why the deceased and the complainant were going on two separate motor-cycles to the house of the brother of the deceased when they had both started from the same place i.e. The house of the complainant and were going to the same place i.e. The house of Feroze Baig, a brother of the deceased, when the two could have ridden the same motor-cycle.
14. In view of these circumstances we find that it would be unsafe for us to believe that the complainant was present with the deceased when he had been attacked at the place of occurrence. Similar is the position of Sohail Shaheen PW who is a brother of the were of Khalid Khan complainant. He claims to have been present at the place of occurrence while going to the house of one Fehmeed Khan who was a maternal uncle of the were of his brother and that also for the purposes of taking some money on loan in connection with this PW's business.
15. The third eye-witness, namely, Tariq Javaid (PW.8) had been a colleague of the deceased in Allied Bank and from the service of which bank, according to this PW, the deceased had been removed. He happened to be present at the place of occurrence while travelling on a rickshaw when he was going to the house of one Mazharuddion who was another employee of Allied Bank and to whom this PW wanted to meet in connection with his medical bills. Why Tariq Javaid PW could not talk to the said Mazharuddin regarding his medical bills during the office hours and why he had to select that late hour of the night to discuss the said problem of medical bills, is neither explained by him nor is the same understandable. He further claims that he had met the appellant only once and that also about two years ago when the deceased had come to him along with the appellant for some work and had introduced the appellant to him.
In this view of the matter, the identification of the deceased by this PW from a distance of at least forty feet at night time is also difficult to believe.
16. The covering of all these three eye-witnesses who happened to be the residents of different places and who were allegedly going for different purposes to different places is a coincidence which is not reasonably acceptable. All three of them had claimed that the deceased was on his motor-cycle when the first shot had hit him and whereafter the deceased had fallen on the ground along with the motor-cycle. The medical evidence does not support this plea as no marks of any injury, not even a scratch, had been found on any part of the body of the deceased which such a fall of a human being with a motor-cycle fallen along with him, should ordinarily have produced.
Sohail Shah PW was going to the house of his relative Fahmeed Khan for borrowing money which he subsequently had. Tariq Javaid as mentioned above was going to the house of one Mazharuddin in connection with medical bills. What to talk of having produced Fahmeed Khan and Mazharuddin at the trial, these two individuals had not even been produced before the I.O. To support the claim of these two eye-witnesses regarding then- presence at the place of occurrence.
17. In view of the above noticed facts and circumstances we find it unsafe to believe that these eye-witnesses were present at the place of occurrence when the deceased had been done to death.
18. The next piece of evidence offered by the prosecution in proof of the guilt of the appellant is the report of the Forensic Science Laboratory according to which the two crime empties allegedly found at the place of occurrence had been fired from the pistol recovered from the possession of the appellant. The witnesses/of the recovery of the two crime empties in question from the spot are again Tariq Javaid and Sohail Shaheed PWs who are the eye-witnesses of the present case and whose presence at the place of occurrence .And whose testimony we have not found reliable. It may be added that these eye-witnesses appeared to be rather enthusiastic witnesses of the prosecution who appeared to be present every where in the prosecution case. It may be further added that there is yet another circumstance which casts doubt about the presence and the recovery of the crime empties in question at and from the place of occurrence, as alleged by the prosecution. The Inquest Report prepared at the spot states that the two empties found at the spot were of 12 bore while the recovery memo PH which witnesses the recovery of these two crime empties declares that these two empties were of .30 bore. Needless to say that both these documents were allegedly prepared at the same time i.e. On the first visit of the I.O. To the place of occurrence. It is, therefore, difficult for us to place any reliance on the alleged recovery of the said empties and consequently to attach any importance to the positive report of the Forensic Science Laboratory as offered by the prosecution.
19. The upshot of the above discussion is that the prosecution had failed to prove the motive alleged by it; that the medical evidence did not support the ocular testimony that the recovery of the crime empties from the place of occurrence was a doubtful affair and that all the three eye- witnesses were chance witnesses of the occurrence in question whose presence at the place of occurrence at the relevant time was not free from doubt and at least two of whom had a grouse against the appellant because of his mother. Resultantly it cannot be said that the prosecution had succeeded in proving its case against the appellant beyond all doubts. Consequently, Crl. A. No 113/91 is allowed. The conviction and sentences recorded against Abdul Haleem appellant are set aside. He is acquitted of the charge under section 302 PPC and shall be set at liberty forthwith if not required to be detained in any other case.
20. In view of the acceptance of the appellant's appeal, there is no question of confirmation of the sentence of death awarded to him and Murder Reference No.62/91 is answered in the negative. For the same reasons, Crl. Revision No. 684/91 filed by the complainant praying for enhancement of the amount of compensation ordered to be paid to the heirs of the deceased is dismissed.