' Altaf Hussain, Riaz, Muhammad Afzal and Ashraf were sent up to face the trial for causing the murder of Mst. Shamim Akhtar, aged 30 years, in case F.I.R. No,289/90, dated 24-8-1990, under section 302/34, P.P.C. Registered with Police Station Haveli, Tehsil Depalpur at the instance of Subah Sadiq, for an occurrence which took place on 24-8-1990 at 2-00 a.m. In the Behni Dakhli of the complainant within the area of Mouza Mathelo Dona situated at a distance of 18 Km from the Police Station Haveli. The learned Additional Sessions Judge, Depalpur vide judgment, dated 31-1-1993 convicted the appellants under section 302/34, P.P.C. And sentenced them to life imprisonment with a fine of Rs,10,000 each in default whereof to further undergo two years' R.I. It was directed that if the fine is recovered, the same shall be paid to the legal heirs of the deceased whereas, Riaz Hussain and Muhammad Afzal were acquitted by giving them the benefit of doubt. The benefit of section 382-B, Cr.P.C. Was also extended to the appellants.
2. The appellants have assailed the judgment through this appeal.
3. The prosecution story in brief, as disclosed in the F.I.R. Exh.P.D., was to the effect that on the night between 23/24-8-1990, Subah Sadiq, resident of Ruperwali Behni, Dakhli Mauza Mathelo Dona, woke up on the noise and saw Altaf Hussain, armed with Dang, in the light of electric bulb, standing very close to his cot who pressed him with his Dang against the bed. Bashir, his servant whose cot was also along side him, met with the similar treatment by Muhammad Afzal, armed with Dang. Riaz Hussain and Muhammad Ashraf were also seen while standing near the cot of Mst. Shamim Akhtar, his daughter. The complainant raised alarm and within his view Muhammad Ashraf and Riaz Hussain armed with .12 bore pistols fired one shot each on Mst. Shamim Akhtar hitting on her chest, while she was sleeping. The occurrence was witnessed by aforesaid Bashir, Mst. Amtal Begum and Mst. Nawab Begum, who were also sleeping in the same courtyard. Since his Behni was situated at a considerable distance from Mouza so on his hue and cry nobody could attract the place of occurrence.
4. The motive behind the occurrence as narrated was that Mst. Shamim Akhtar deceased was married to Altaf Hussain accused 10 years' back. Due to strained relations she had deserted her husband and had been living with her father for the last about eight years. Since the complainant has no male issue, therefore, Ghulam Qadir and Niaz Ahmed, real brothers inter se, father and real uncle of Altaf and Ashraf accused/appellants respectively, wanted Subah Sadiq to transfer his land to his real brothers. Mst. Shamim Akhtar had been opposing it, resultantly it had led to her murder at the hands of present appellants and acquitted accused persons.
5. After recording the F.I.R. Exh.P.D. Muhammad Khaliq, S.I./S.H.O. Assumed the investigation and proceeded to the place of occurrence, where he prepared injury statement Exh.P.F. And inquest report Exh.P.G. He handed over the dead body of Mst. Shamim Akhtar to Lal Khan Constable for taking the same to the mortuary at Depalpur and after having conducted the postmortem the said constable had produced the last worn clothes of the deceased, shirt P.1, Shalwar, P.5 and Banyan P.6 which were secured vide memo. Exh.P.C. He also secured blood-stained Chaddar P.1, pillow P.3 and mattress P.2 vide memo. Exh.P.A. And Exh.P.B. Respectively. The statements of the witnesses were also recorded under section 161, Cr.P.C. On the same day. Altaf was arrested by him on 3-10- 1990, and pistol P.7 was recovered from him and was taken into possession vide memo. Exh.P.H.
Muhammad Afzal, Riaz Hussain and Muhammad Ashraf were arrested on 18-1-1992 by Faqir Hussain, S.I. P.W.7.
6. On the accomplishment of usual investigation, challan was submitted only against Altaf Hussain.
Feeling aggrieved, the complainant of the case filed a private criminal complaint titled Subah Sadiq v. Altaf Hussain etc. He reiterated his version given in the F.I.R. The learned trial Court had also summoned the remaining three accused who were named in the F.I.R. And were not challaned by the police on the basis of preliminary evidence recorded by the Court. Meanwhile, a supplementary challan was also submitted which was prepared on the basis of investigation conducted by D.S.P.
Range Crime, Lahore in which all the four accused were challaned. The challan case previously submitted, private criminal complaint and subsequent challan were ordered to be consolidated by the learned trial Court. The formal charge was framed against the accused persons who refuted the charge and claimed trial. The prosecution evidence was summoned thereafter.
7. The prosecution, in order to substantiate its case, produced eight witnesses in all. Subah Sadiq complainant as P.W.1 supported the F.I.R. And gave the ocular account. He also signed the recovery memo. Exhs.P.A., P.B. And P.C. Prepared by the Investigating Officer on 24-8-1990 while taking into possession last worn clothes of the deceased, blood-stained mattress and a pillow from the cot of the deceased. Mst. Amtal Begum (P.W.2) also gave ocular account of the occurrence. Bashir Ahmed and Mst. Nawab Bibi were given up as being unnecessary. Muhammad Hassan, Muhammad Zaman son of Noor Samand and Muhammad Zaman son of Faiz were given up having been won over. The post-mortem of the body of the deceased was conducted by Dr. Muhammad Afzal, P.W.3, who was posted as M.S. T.H.Q. Hospital, Depalpur. He found the following injuries on her body:--
(1) A fire-arm wound 3-1/2 c.m. x 2-1/2 c.m. On the front of left chest about 3-1/2 c.m. Inner to middle of right nipple between 2-3 o'clock position. Margins of the wound were irregular and inverted with black staining of gun powder around the injury in 8 c.m. x 5 c.m. Area. The wound was going deep downwards and backward direction more - toward the left side.
(2) Multiple small irregular abrasions and cuts on the front of chest between the two breasts from mid line to right side in 8 c.m. x 6 c.m. Area as a result of broken pieces of glass vial found in the brazier. Word "Voicroy" made could be made to read on broken glass pieces.
(3) A bruised area 4 c.m. x 4 c.m. On the outer aspect of lower part of left chest close to rib margin and a hard foreign body (pellet) was palpable in its centre where bruise was darker.
(4) A bruised. Area 10 c.m. x 10 c.m. On the outer aspect and front of left flank with two darkish area where pellets were palpable under each and shown in the diagram.
(5) A triangular bruised area 5 c.m. x 2-1/2 c.m. Area on the outer aspect of left hip and upper and outer part of buttock where one pellet was palpable under skin.
(6) An irregular bruised area just above left groin and one darkish spot under which pellet was palpable. The measurement of the area was 5 c.m. x 3-1/2 c.m.
(7) A fire-arm wound 5 c.m. Diameter on the front and lower part of left abdomen in front of injury and lower part of left abdomen in front of injuiry and lower part of left abdomen in front of injury No,6 with everted margins and bruised area around.
' In his opinion, death had occurred due to shock and haemorrhage as a result of injuries to the vital organs. Injury No,1 was sufficient to cause death in ordinary course of nature. Ghulam Sarwar A.S.I. (P.W.4) on 28-6-1990 received a sealed parcel containing blood-stained earth from S.H.O.
Which was kept in safe custody in Malkhana and was transmitted by him on 28-8-1990 to the office of Chemical Examiner. Abdul Khaliq, S.I./S.H.O. P.W.5 investigated the case and gave the details of his investigation. He submitted the incomplete challan against Altaf Hussain only. Farooq Ahmed P.W.6 proved the site plans P.I. And P.I./1. Faqir Muhammad S.I., P.W.7 arrested Muhammad Afzal, Riaz and Ashraf on the direction of Ch. Muhammad Hussain, D.S.P. Crime Range, Lahore. The said D.S.P., P.W.8 stated that the investigation was entrusted to him under the order of the D.I.-G. Range Crime, Lahore. After conducting the investigation thoroughly he found all the four accused persons involved in the abovesaid crime and he directed the local police to prepare challan against all of them, named in the F.I.R., after effecting the recoveries of crime weapons. Muhammad Ishaque Sandhu, D.S.P., Crime Branch was given up as being unnecessary.
7. After submitting the report of the Chemical Examiner Exh.P.J. And that of Seriologist Exh. P.K., the evidence of prosecution was closed.
8. On the conclusion of the prosecution evidence, the same was put to the accused persons and their statements were recorded under section 342, Cr.P.C. They refuted the allegations levelled against them and total denial and false implication was pleaded by them. Muhammad Afzal, Riaz and Ashraf stated that they were found innocent during the investigation conducted by the local police. The same was verified by the D.S.P./S.D.P.O. Circle, Depalpur. Altaf Hussain in answer to a question stated as follows:-- "I am innocent. I have been falsely involved due to enmity. Mst. Shameem Akhtar deceased was of immoral character and I had kicked her out from my house due to her immorality long before the occurrence. She used to reside in village Daililkey and she had come to village Methela Dona only 2 days before the occurrence. She was murdered by some unknown culprit. It was a blind murder and due to this fact the complainant had been tracing the culprits by tracing tracks of the culprits with the help of trackers. P.Ws. Have made false statements due to enmity. None of them was present at the time of occurrence in the Ihata. There was no electric supply in the village Methela Dona or in the Ihata of the complainant in those days."
' None of the accused persons entered appearance to make a statement on oath under section 340(2), Cr.P.C. In disproof of allegations levelled against them and no defence witness was produced in their favour.
8. Learned counsel for the appellants vigorously contended that it was a dark night occurrence and nobody had seen it; that the appellants have been falsely implicated and there is no such evidence against the appellants on the basis of which the conviction can be ordered. Learned counsel further argues that the trial could has believed the evidence qua the acquitted accused persons and on the same evidence qua. The appellants had convicted them. This is an unseen murder and the appellants have no motive at all to cause the murder of Shamim Akhtar.
9. Conversely learned counsel for the State vehemently argued that the appellants have committed a heinous crime while killing a young lady. It is a cold-blooded murder and the evidence is very much on the record to prove their guilt.
10. Prosecution in order to prove its case has relied upon ocular account furnished by Subah Sadiq complainant and Mst. Amtal Begum P.W.1 and P.W.2 respectively and sought corroboration from the evidence of the motive; recovery and medical evidence. As far as the motive in the instant case is concerned it was that Ghulam Qadir and Niaz Ahmed father of Altaf and Ashraf respectively wanted the land of Subah Sadiq their real brother, who had no male issue, transferred in their name, and Shamim Akhtar deceased had been resisting to do so. Mst. Shamim had been deserted by her husband who had been living in her father's houst for the last about eight years. Civil and criminal litigation was already going on between the parties for the last many years. In this view of the matter, no land could have been got transferred by the father and uncle of the appellant. Once the motive is alleged, it must be proved through reliable evidence. The prosecution could not bring on the file any independent evidence to establish the motive, so the prosecution has failed to prove the motive. The immediate cause of murder of Mst. Shamim Akhtar had also not been proved which is shrouded in mystery. Even otherwise, Abdul Khaliq, P.W.5 stated categorically that the murder of Mst. Shamim had taken place due to her immorality.
11. So far as the medical evidence is concerned, it contradicts the prosecution story as disclosed in the F.I.R. And the statement of the witnesses recorded under section 161, Cr.P.C. Prosecution case, at the initial stage, was that Muhammad Ashraf, Riaz Hussain, accused fired one shot each with their pistols. The fire of Ashraf had hit on the chest of the deceased whereas fire of Riaz Hussain had hit below the umbilicus on the left side of the abdomen and in support of k, similar statement was made by Mst. Amtal P.W.2. On the other hand Dr. Afzal P.W.3 stated that there was only one entry wound on the dead body of the deceased. He very categorically opined that injuries 3, 4, 5 and 6 were entry wounds. Further, stated that injury No,1 was the result of a shot and injury No, 7 was the exit wound of said injury, but some of the pellets remained in the body. He further opined that the assailants must have been on the head side when the injury No,1 was caused. Therefore, the medical evidence instead of corroborating the ocular account contradicts it especially when P.W.6, Feroze Ahmed, Draftsman pointed out that two shots were fired from different sides.
12. Now coming to the question of recoveries, pistol P.7 was recovered from Altaf vide Exh.P.H., dated 3-10-1990. Previously the role ascribed to Altaf was to the effect that he had a Dang and he pressed the complainant against the cot on which he was sleeping. Muhammad Ashraf and Riaz fired shot stricking Mst. Shamim Akhtar deceased. Muhammad Afzal was also armed with Dang. During the investigation Muhammad Afzal, Ashraf, Riaz were declared innocent. The recovery of pistol P.7 could be nothing except a false one. Abdul Khaliq, S.I./S.H.O. Stated that no blood-stained earth was available at the spot and as such the same was not taken into possession. No crime-empty was found present at the place of occurrence. In this view of the matter, the recovery of fire-arm at the instance of appellants cannot be used as corroborative piece of evidence. The recovery of pistol simpliciter cannot establish that it was used in the commission of crime.
13. So far as the ocular account is concerned, it was furnished by Subah Sadiq and Amtal Bibi P.Ws.1 and 2 respectively. Subah Sadiq is the father of the deceased and Mst. Amtal P.W. Is the real sister of Mst. Shamim deceased. Civil and criminal litigation was already pending in different Courts. The eyewitnesses are close relations and are also inimical towards the appellants and interested witnesses. It is stated by the complainant that the accused were identified in the light of electric bulb whereas there was no electric supply available in that Abadi at the relevant time. The eye- witnesses have attributed the role of firing to Ashraf and Riaz, who were found innocent during the investigation and no recovery was also effected from them. They were not even arrested by the police. Dr. Muhammad Afzal had found only one fire-arm injury and the same was not ascribed to appellant Altaf. Muhammad Hassan, D.S.P. Range Crime, Lahore, P.W.8 categorically stated that Subah Sadiq had admitted before him during the investigation that they had been tracing the tracks of the culprits so as to find the real assailants. Had they been tracing out the tracks of the accsued they would have not been sure about the assailants.
14. Keeping in view the circumstances as discussed above, the motive as alleged was not proved which has adversely affected the prosecution case as a whole. The nature and manner in which the deceased had sustained injuries suggest that the occurrence had not taken place in a manner as narrated by the prosecution.
15. It was an unseen murder and the witnesses came to know after the murder had already taken place and the assailants had left the place of occurrence. This was a dark night occurrence and there was ample reason to implicate the appellants falsely. A deliberate improvements in the testimony of the eye-witnesses' statements have been made to bring their evidence in line with the medical evidence. During the investigation, out of four persons named as accused in the F.I.R.
Ascribing them specific role, Riaz, Ashraf and Afzal, were found innocent which indicates that the complainant had the tendency of involving innocent persons.
16. Mere mention of names in the F.I.R. Does not constitute corroboration of ocular evidence against accused persons. This type of evidence must be a very reliable, cogent, and corroborative and in the absence of it, the conviction would render unsafe especially when the accused had chosen the time of night to kill a person. It would be against the natural conduct of the human being that first they will make witnesses awake up and then commit the crime. It is astonishing that on hue and cry all inmates of the house had awoken up but the victim remained sleeping. The evidence adduced is not only discrepant but also untrustworthy to place reliance for conviction. The rule of prudence requires that this type of ocular evidence should not be believed qua the appellants particularly when the evidence has been disbelieved by the trial Court qua the acquitted accused persons. This evidence does not inspire confidence unless and until there is an independent corroboration of the prosecution version available on the record which is missing in this case, because I have been unable to find any corroboration which could have supported the ocular evidence.
17. In sequel to the above, the upshot is that due to infirmities pointed out above, the prosecution has miserably failed to prove its case against the appellants beyond any reasonable doubt.
18. I, therefore, accept the appeal, set aside the conviction and sentence and acquit the appellants of the charge framed against them by giving the G benefit of doubt. The appellants shall be released from the jail forthwith, if not required to be detained in any other case.