CH. IJAZ AHMAD, J.---The Learned Judge Special Court No,1 Rawalpindi for Suppression of Terrorist Activities Rawalpindi Division vide judgment dated 25-4-1996 has convicted and sentenced the appellants for the murder of Mst. Zubaida Bibi and causing injuries to Ishtiaq Ahmad P.W. 7 as follows:-- i. Imtiaz Ahmad s/o Muhammad Siddiq aged 29 years under section 302/34, P.P.C. under section 324/34, P.P.C.Death sentence with fine of Rs,20,000 or in default one year R.I.
7 years R.I. with fine of Rs,10,000 or in default six months R. I. Fine if recovered shall be given to legal heirs of deceased/ injured in equal shares as compensation.
(ii) Muhammd Siddiq son of Karim Bakhsh aged 67 years under section 302/34, P.P.C.
Transportation for life with fine of Rs,10.000 or in default 6 months R.I. under Section 324/34, P.P.C.
2 years R.I. with a fine of Rs,5,000 or in default three months R.I. Fine, if recovered half of the same shall be given to legal heirs of deceased and injured lshtiaq Ahmad in equal share as compensation.
2. The convicts have filed criminal appeal against their conviction and sentences which is disposed of alongwith Criminal Revision No,52 of 1996.
3. The occurrence took place on 18-10-1994 at 10.30 a.m. in the field in front of complainant's house situated in Kothra, Tehsil and District Jhelum at a distance of seven miles from Police Station Saddar Jhelum. Noor Ahmad P.W.9, husband of the deceased reported to Nazar Hussain, S.I. P.W. 18 who recorded his statement Exh.P.G. in Civil Hospital Jhelum who sent the same to the police station through Ansar Mehmood P.W. 12 LHC 198 for registration of formal F.I.R. Exh.P.G./1 was recorded by Asmat Mehmood, P.W. 15.
4. In the F.I.R. the occurrence is reported to have taken place allegedly in the following manner as per statement of Noor Ahmad P.W.9:-- Mst. Zubaida Bibi was my wife. On 18-10-1994 at 10.30 a.m alongwith my son Shahid Ahmed and Nazir Ahmed, P.Ws. were coming towards my house from my haveli. My wife Mst. Zubaida Bibi was working in front of my house in the field. Again said in front of door of my house. Ishtiaq P.W. was standing in the door of my house, Meanwhile Muhammd Siddiq accused empty handed and Imtiaz Ahmed accused armed with riffle 222 bore appearing like Klashnikov, appeared coming from their house. On approaching near electric poles, Siddiq accused raised Lalkara that the house of his daughter has been ruined at the instance of us, therefore, we should not be spared. Siddiq accused exhorted Imtiaz co-accused that he should kill each one of us. At this Imtiaz accused fired a brurst from his rifle in a spray fashion resulting two injuries of fiream to my wife, 3 injuries of fire-arm to my son Ishtiaq, P.W. My wife Mst. Zubaida Bibi died at the spot after sustaining injuries. Ishtiaq Ahmed, my son, P.W. also fell down. We, other P.Ws. took shelter behind wall of my house and thereafter both the accused fed away from the place of occurrence alongwith their weapons.
The motive behind the occurrence was that daughter of Muhammad Siddique convict was married to the son of Muhammad Sharif, Her name was Mst. Naeem Bibi. His sons Abdur Razzaq and Altaf are married to two daughters of aforesaid Muhammad Sharif. The convict suspected that his two sons aforesaid were instruments in the divorce of his death Mst. Naseem and kept two sons by her husband in England. The convicts used to come to them before present occurrence and used to complain that they were responsible for broken house of their daughter. A day prior to the occurrence both the convicts come to their house and threatened the wife of the complainant that they would dealt with badly. In case they could not arrange for return of children of their daughter from England within a week they would take revenge.
5. Dr. Tahir Bashir P.W. 13 conducted the Post-mortem Examination on 18-10-1994 at 5.30 p.m. on the dead body of the deceased Mst. Zubaida Begum aged 50 years and found the following injuries:-- (1)An entry wound 1 x 1 c.m. with inverted edges blackaning 6 c.m. from the suppra sternal edge on the side of right neck, 4 c.m. from the crimoid cartilage.
(2)A fiream entry wound with blackening of edges on the right lumber region, 7 cm from umbilicos.
(3)An exit wound 4 x 2 c.m. on the back of left chest 5 c.m. from the inferior poll of the left scapula, 3 c.m. from the middle line.
(4)An exit wound 3 x 2 cm on the back of left belivis. 19 cm from the interior illac spline.
In the opinion of the doctor all the injuries were ante mortem in nature and were caused by fire- arms. Injuries Nos.1 and 2 were sufficient to cause death in due course of nature. Death was due to haemorrhage and shock.
Probable time that elapsed between injuries and death was immediate and time between death and post-mortem was from 6 to 10 hours.
6. The blood-stained earth was taken into possession vide memo. Exh.P.D. from the spot on 18-10- 1994 which was attested by Nazar Hussain, S.I. P.W. 18 Muhammad Iqbal, P.W. 3 and Muhammd Yaqoob, P.W.6.
It is pertinent to mention here that the reports of the Chemical Examiner and Serologist were found positive. eleven empties P.4/1-11 of 222 bore rifle were also recovered from the spot on 18-10-1994 vide memo. Exh.P.E and the attesting witnesses are Nazar Hussain P.W. 18, Muhammd Ishaq P.W. 7 and Zahid Mehmood, P.W. (not produced). Muhammad Siddique appellant was arrested on 13-11- 1994 by P.W.
18. Imtiaz Ahmad appellant was not traceable and proceedings under section 37, Cr.P.C. were initiated against him and sent the challan against him under section 512, Cr.P.C.
Subsequently Imtiaz Ahmad was arrested and a separate challan was submitted against him by Muhammad Shoab, Inspector S.H.O. Exh.P.5 rifle 222 and live rounds Exh.P.6/1-15 were taken into possession on the pointation of Imtiaz Ahmad appellant from his house on 6-7-1995 vide memo Exh.P.F. which was attested by Muhammad Aslam, P.W. 8, Ijaz Ahmad P.W. (not produced) and Muhammd Shoaib, Inspector S.H.O.
7. The prosecution produced two eye-witnesses namely Noor Ahmad, W.P. 9, husband of the deceased and P.W. 10 Ishtiaq Ahmad, injured son of the deceased to depose the ocular account while the appellants under section 342, Cr.P.C. controverted the allegations and pleaded themselves absolutely innocent in the matter as per statement of Imtiaz Ahmad as follows:-- P.Ws except police officials are related to the deceased and are inimical to me and my father, they have deposed falsely out of motivation against us. In fact there was a dispute of house which was owned by Muhammad Sharif, my uncle and complainant party was in possession of said house and we wanted to get its possession back. True facts of the case are that it was routine of commission of dacoity case in the village prior to the present occurrence and this occurrence also took place in small hours of night in a fashion resembling in the tales the previous decoities. None could identify the real assailants and we have been involved in this false case on suspicion and enmity by the complainant party. This fact is borne out by the fact that police had been arresting and releasing persons under section 54, Cr. P .C.
8. The learned counsel appearing on behalf of the appellants argued as follows:-- (i)Exh.P.W. and Exh. P.E reveals that place of occurrence is house of the complainant whereas F.I.R. reveals that the occurrence took place in the field in front of the house of the complainant, therefore, it creates doubt in the story of the prosecution.
(ii)Medical evidence qua the eye-witnesses contradicts each other. According to the medical evidence diamension of the injuries reveals that two fire-arms were used in the incident.
(iii)The prosecution only produced two eye-witnesses who are interested and inimical witnesses and their statements need independent corroboration and there is no independent corroboration in the present case, therefore, sentences awarded to the appellants are not sustainable in the eyes of law.
(iv)The motive as alleged by the prosecution was not proved on the record and in fact motive shrouded in mystery.
(v)The prosecution has set up specific motive who failed to prove on the record and, therefore, capital punishment could not be awarded to Imtiaz Ahmad appellant and argued that it is a fit case to award lesser sentence to Imtiaz appellant.
(vi)The prosecution failed to prove recovery of rifle from Imtiaz appellant as the recovery was effected through interested witnesses and the prosecution failed to produce the independent witnesses, therefore, recovery of rifle from the appellant is in violation of section 103 of Cr.P.C.
(vii) The prosecution failed to produced three witnesses namely Nazir, Mst. Amina Bibi and Shahid mentioned in the F.I.R. which creates the doubt that if they were produced they would not support the prosecution case.
(viii) The prosecution failed to produce three eye-witnesses mentioned in the F.I.R namely Nazir, Mst. Amina Bibi and Shahid and out of these three Nazir is an independent witness, therefore, adverse inference can be drawn against the prosecution.
(ix)The statement under section 161, Cr.P.C. of Ishtiaq Ahmad was recorded after four months and there is no hole or mark on the deceased's clothes which creates doubt against the prosecution.
(x)Site plan contradicts the statements of eye-witnesses and both the eye-witnesses contradict each other.
9.The learned counsel for the State and the complainant supported the judgment of the learned trial Court and argued that the F.I.R. was lodged promptly. The incident took place in a broad daylight. The eye witnesses had no serious enmity qua the appellants as the divorce took place five years before the incident. The motive was proved on the record and the medical evidence corroborated eye-witnesses on all material points. Convict Imtiaz Ahmad abseconded from the scene and proceedings under section 187/188, Cr.P.C. were conducted against him and he was arrested 7/8 months after the incident whereas his co-appellant was arrested immediately after the incident.
10.As a result of the above discussion keeping in view the irrefutable realities established by the statements of the eye-witnesses in particular thereof, injured P.W. 10, the medical evidence and the motive prosecution has established its case against the appellant Imtiaz Ahmad beyond any shadow of doubt. Injured eye-witness who saw the occurrence satisfactorily accounted for as he was injured and the defence failed to establish that the injury attributed to him was self-inflicted, prosecution case on the lines of such eye-witnesses is free from doubt. It is well-known principle of criminal jurisprudence that mere relationship of witnesses with the deceased does not provide reason of disbelieving them. We do not find any contradiction in the statement of the eyewitnesses qua the medical evidence, therefore, we dismiss the appeal of Imtiaz Ahmad appellant.
11. Adverting to the sentence, the motive as alleged by the prosecution is proved on the record but the divorce took place five years prior to the incident which could not provide sufficient cause for the appellant to murder the deceased. Thus, immediate motive appears to be shrouded in mystery coupled with age of the appellant and committed the murder under the directions of the father, therefore, infliction of death on Imtiaz on the capital charge is not warranted while sentences on the remaining counts are unexceptionable. consequently the sentence of death is converted to imprisonment for life.
Muhammad Siddique appellant aged 67 years was empty handed and the only allegation against him was Lalkara. As mentioned above the immediate motive was shrouded in mystery then possibility could not be ruled out that the fight took place between the parties all of a sudden.
Resultantly the deceased was murdered. Keeping in view these circumstances in juxta position then the possibility cannot be ruled out that Imtiaz Ahmad appellant inflicted fire shot without instigation of his father. In view of these circumstances Muhammad Siddique's appeal is accepted.
He shall be released forthwith if not required in any other case.
The criminal revision filed by the complainant is dismissed.