' This criminal appeal is directed against judgment dated 30-11-1991 of the Additional Sessions Judge, Bahawalpur convicting the appellant under section 302, P.P.C. And sentenced him to life imprisonment with a fine of Rs,5,000 and in default thereof two years' R.I. With benefit of section 382-B, Cr.P.C. The sentence shall run concurrently. The learned Additional Sessions Judge held that the death sentence is not given as there is no motive on the part of the appellant nor he had any intention to kill the deceased.
2. The case of the prosecution is that on 12-4-1991 at about 12-30 in the night some one fired at Ghulam Nabi deceased in his house. Allah Rakha father of the deceased filed an application Exh.P.A. Before the police on the basis of which F.I.R. No,74/91, dated 12-4-1991 was registered under section 302/109, P.P.C. At Police Station Qaimpur. According to the statement of Allah Rakha (Exh.PA.) at about 12-30 in the night a person entered in the room of one Fayyaz Mai who was staying with one of her relations Abdur Rashid whereupon the deceased woke up and called Abdur Rashid whereafter an unknown person fired a pistol on the chest of Ghulam Nabi deceased who fell down and thereafter died. It is stated in the afore-mentioned application that attempt was made to arrest the unknown person but without any success. It is also mentioned in the application that Allah Rakha could identify the accused person.
3. The accused was charge-sheeted on 10-10-1991. A .12 bore pistol was recovered from lhata of the deceased on her pointing out of the appellant and this recovery memo. Is attested by Muhammad Ilyas son of Khan Muhammad and Ghulam Hussain son of Allah Yar who admittedly are the persons before whom extra-judicial confession is alleged to have been made by the appellant. The recovery memo. Was prepared by Muhammad Ali, S.I./S.H.O. Police Station, Qaimpur on 3-5-1991.
The appellant was already arrested on 29-4-1991 after about 17 days of the date of occurrence.
Statement under section 342, Cr.P.C. Of the appellant was also recorded on 29-10-1991 where he expressly denied the recovery as also the alleged extra-judicial confession before the afore- mentioned two persons who are examined as P.Ws. 8 and 9.
4. The prosecution examined P.W.1 Manzoor son of Imam Shah, P.W.2 Allah Rakha son of Noor Ahmad, P.W.3 Allah Bakhsh son of Noor Muhammad P.W.4 Muhammad Sarwar 781-C, P.W.5 Abdul Majeed 509, H.C. P.W.6 Dr. Muhammad Iqbal Javed who examined the dead body of the deceased and made a report, P.W.7 Ch. Muhammad Ali, S.I./S.H.O., P.W.8 Muhammad Ilyas son of Khan Muhammad, P.W.9 Ghulam Hassan son of Allah Yar, P.W.10 Ghulam Ali son of Allah Rakha and P.W.11 Allah Wasaya 884-F.C.
5. The learned lower Court convicted and sentenced the appellant on the basis of four items of evidence referred to in para. Six of the impugned judgment which are:--
(i) Ocular account.
(ii) Extra-judicial confession before P.Ws. Muhammad Ilyas P.W.8 and Ghulam Hassan P.W.9.
((iii) Recovery.
(iv) Medical evidence.
6. Fayyaz Mai was also accused person on the charge of abetment but she has been acquitted.
This Fayyaz Mai, according to the prosecution, was occupying one room alongwith Abdur Rashid one of her relations in the house of deceased and at the time of fire she said from inside the room that fire at him/Ghulam Nabi deceased. This Fayyaz Mai has been acquitted by lower Court on the ground that no case has been proved against her.
7. As to the ocular evidence reliance was placed by the learned lower Court on the evidence of P.W.1 Manzoor, who was a stranger to the deceased, Allah Rakha father of Ghulam Nabi deceased.
The learned lower Court came to the conclusion that these persons were present at the time of occurrence. Reliance was also placed on the statement of P.W.10 Ghulam Ali brother of the deceased who was allegedly present at the time of occurrence alongwith Manzoor and Allah Rakha. The learned lower Court while discussing the evidence of afore-mentioned eye-witnesses came to the conclusion that they were not interested witnesses and, therefore, there was no reason to disbelieve them. After going through the evidence of P.W.1, P.W.2 and P.W.10, I am of the opinion that their evidence does not help the prosecution. If the statement of P.W.1 is examined minutely it is clear on the face of it that he had not seen the person who fired at the deceased. He has stated that "I had gone there (in the house of deceased) in connection with fixation of date of marriage of son of Ghulam Nabi, Allah Rakha and Ghulam Ali were also there. After reaching the house of Ghulam Nabi and after Iftar time we slept in the courtyard. Ghulam Ali, Allah Rakha, Ghulam Nabi and I slept in the courtyard. At about midnight time Ghulam Nabi woke up. He went to the room of Rashid and Fayyaz Mai. A man came out from the room and fired at when Ghulam Nabi shouted thief, thief. I and Allah Rakha and Ghulam Ali also reached there. The fire hit on the chest of Ghulam Nabi. He fell down. Allah Rakha went inside the room. He called Rashid and Ramzan. They did not response to the calls of Allah Rakha. Rashid and Ramzan were unconscious and were sleeping. We asked Mst. Fayyaz Mai who was that man. She told that she did not know about that man. Ghulam Nabi died at the spot". In cross-examination this witness admitted that his house is at distance of 2-1/2 miles from the house of Ghulam Nabi and that the latter was not in any way related to this witness. From the above statement of P.W.1 two things have come out. Firstly, that this witness did not see the appellant and that his presence in the house became extremely doubtful because he was not related to Ghulam Nabi and yet he was there to fix the marriage date of his son. Similar is the statement of P.W. Allah Rakha father of the deceased who does not claim to have seen the appellant at the time of firing. He goes on to say that "Mst. Fayyaz Mai had come to his brother after quarrelling with her husband. He had illicit relations with Mst. Fayyaz Mai. My son has been murdered on account of their relation". Although his statement is ambiguous but he went on to say that the appellant had illicit relations with Mst. Fayyaz Mai. In his application Exh.PA. He clearly stated that he can identify the person who fired at the deceased but admittedly by the learned counsel for the State no proceedings were taken for identification of the appellant by P.Ws. From the close examination of this P.W.2 there is not a single word to show that this P.W. Saw the present appellant firing at the deceased.
8. As to the evidence of P.W.10 he has made a different story as was stated by P.Ws.1 and 2 and deposed in examination-in-chief that "after taking meals we slept in the courtyard. At about 12-30 in the night some noise rose up. Ghulam Nabi woke up. He made a call and said "Abdur Rashid who was that". We also woke up and ran towards that. We were just at the distance of 2 Qadams behind Ghulam Nabi. Mst. Fayyaz Mai accused woman said from inside the room that fire at him.
Otherwise our secrets would be opened". There is no mention of any noise or secrets by P.Ws.1 and 2 and in these circumstances evidence of this witness does not inspire any confidence.
' The learned lower Court came to the conclusion that P.Ws.1, 2 and 10 are not interested witnesses and, therefore, their evidence has been believed. Even if that be the position of these witnesses had seen the appellant firing at the deceased.
9. After hearing the learned counsel and going through the statements of these witnesses I am of the view that even their presence is doubtful at the time when the occurrence took place. Allah Rakha father of the deceased filed application Exh.PA. And did not mention the name of the appellant and this statement became the F.I.R.
10. The learned lower Court came to the conclusion that "prosecution has not led any evidence that Mst. Fayyaz Mai was woman of bad character. Allah Rakha P.W. Has stated only one sentence that "her character was suspicious". P.W.2 Allah Rakha made clear statement that his son was murdered on account of illicit relations of Mst. Fayyaz Mai. He does not name the person with whom Mst.
Fayyaz Mai was carrying on. The learned lower Court came to the conclusion that Mst. Fayyaz Mai was not a lady of bad character. In these circumstances the statement of P.W.2 could not be relied upon by the learned lower Court for sustaining conviction.
11. Extra-judicial confession has been made before P.Ws.8 and 9 who were also the recovery witnesses of the crime weapon. The learned lower Court held that no conviction can be made on the extra-judicial confession as the same is weak type of evidence and yet passed a sentence of life imprisonment. The alleged confession is made when P.Ws.8 and 9 were sitting at Sarwar Hotel Cantt. It is stated by P.W.8 that the appellant wanted help for getting pardon from deceased's father. The most important thing was the relationship of the appellant with P.Ws.8 and 9 about which no question was put and this remained a mystery. These two witnesses seem to be procured by the prosecution and they are the same who have attested the recovery memo. Their statements before the lower Court was of general nature and one should be very careful in accepting their deposition for the purpose of conviction. In this way the recovery of the crime weapon also becomes doubtful. The pistol has been allegedly recovered at the pointation of the appellant from Ihata of Ghulam Nabi deceased on 3-5-1991. It appears that the police has used P.Ws.8 and 9 for proving their case.
12. Mr. Muhammad Afzal Cheema, learned State counsel, vehemently argues that Allah Rakha father of the deceased was very honest and while reporting the matter to the police vide Exh.PA. He did not name the appellant and that this shows the bona fide of this witness. The plea of the learned counsel does not improve the case of the prosecution rather supports in favour of the appellant. If in fact Allah Rakha has not named the appellant and also does not identify him, no case is made out against the latter. On the contrary this P.W.2 states that murder has taken place on account of illicit relations of Fayyaz Mai while there is a finding of fact by the lower Court that Fayyaz Mai is not a woman of ill repute or bad character. In this view of the matter whole case of the prosecution falls down. It appears that the prosecution was proceeding on a clear assumption that it is a case of illicit relationship of Fayyaz Mai that the appellant fired at the deceased but this relationship has been totally denied by the appellant in his statement under section 342, Cr.P.C.
And the Court has also concluded about the piousness of Fayyaz Mai. That being the case the very basis of the prosecution case is lacking.
13. The learned counsel for the State has argued this case at his best and after hearing him and the learned counsel for the appellant and also after going through the evidence on the record I am of the view that the prosecution has not been able to prove its case against the appellant.
As a result of the above discussion I accept -this criminal appeal against judgment, dated 30-11- 1991 of the Additional Sessions Judge, Bahawalpur, set aside the conviction and sentence of the appellant and he be released forthwith if not required in any other case. The order of the lower Court as to the confiscation of the crime weapon will remain.