' MUHAMMAD NAWAZ ABBASI, J.--Ghulam Sibtain Murtaza son of Ghulam Murtaza, the appellant, along with his real father and brother, namely, Ghulam Murtaza and Ghulam Raza, respectively, was tried for the charge under section 302/324/460/34, P.P.C. For the allegation of committing the murder of Muhammad Afzal and launching murderous assault on Mst. Gulzar Begum, complainant, sister of Muhammad Afzal, by the learned Additional Sessions Judge, Chakwal. Upon conclusion of the trial, learned trial Judge having found the appellant guilty of the charge convicted and sentenced him vide judgment dated 31-5-1997 in the following manner:--
(i) Under section 302 (b), P.P.C.
' Sentenced to death for causing murder of Muhammad Afzal and to pay Rs,2,00,000 as compensation to the legal heirs of the deceased.
(ii) Under section 460, P.P.C.
' Sentence of rigorous imprisonment for ten years for making lurking house trespass by night with the intention to kill Muhammad Afzal and to make murderous assault on Mst. Gulzar Begum
(iii) Under section 324, P.P.C.
' Rigorous imprisonment for ten years with a fine of Rs,20,000 or in default thereof to further suffer R.I for two years for making murderous assault on Mst. Gulzar Begum. Half of the amount of fine, if realized, was ordered to pay to Mst. Gulzar Begum as compensation under section 544-A. Cr.P.C.
(iv) Under section 337-F(v), P.P.C.
' Rigorous imprisonment for three years and to pay Daman of -Rs,10,000 to Mst. Gulzar Begum for causing grievous injury on her leg.
' The different sentences of imprisonment under sections 460 and 324, P.P.C. Awarded to the appellant were ordered to 'run consecutively with benefit of section 382-B, Cr.P.C. If death sentence under section 302, P.P.C. Is not confirmed. The co-accused of the appellant, namely, Ghulam Murtaza and Ghulam Raza were acquitted of the charge.
2. The appellant has challenged his conviction and sentence through Criminal Appeal No,84 of 1997, whereas the trial Court has sent Murder Reference No,146 of 1997 under section 374, Cr.P.C. To this Court for confirmation of death sentence awarded to the appellant. We propose to dispose of both the matters through this single judgment.
3. The prosecution case as given in the F.I.R. (Exh.P.D./1 recorded on the basis of statement (Exh.P.D.) made by Mst. Gulzar Begum (P.W.6) to Abdul Aziz, S.-I. (P.W.11) at the spot on 27-9-1995 at 3-25 a.m.
Is as under:-- ' That Mst. Gulzar Begum was married in village Dhakkoo. But on desertion was living with her brother, namely, Muhammad Afzal. On the eventful night at about 2-00 a.m., she along with his brother Muhammad Afzal and his daughter of teenage was sleeping on the roof of the house. A lantern was lightening nearby, when the appellant armed with .12 bore gun and the acquitted accused, namely, Ghulam Raza with pistol appeared at the roof climbing over the back wall, whereas Ghulam Murtaza remained standing on the ground. The complainant inquired from the appellant and his co-accused as to why they have come at that time, when the appellant fired a shot which hit on the legs of the complainant. The second shot fired by Ghulam Raza 'hit on the wrist of the complainant. Thereafter, Muhammad Afzal was fired at by Ghulam Sibtain Murtaza and Ghulam Raza with their respective weapons, which hit on different parts of his body, who succumbed to the injuries at the spot. It is stated that the occurrence was also witnessed by Nazir Sultan and Muhammad Safdar, real brothers of the complainant and the deceased. Ghulam Murtaza, co-accused of the appellant, since acquitted, allegedly raised Lalkara while running from the place of occurrence.
4. The motive as stated was that Ghulam Murtaza suspected the brothers of the complainant as murderer of his son Saqlain Murtaza.
5. Dr. Zahid-ul-Hassan (P.W.1) while conducting the post-mortem examination of Muhammad Afzal deceased on 27-9-1995 traced the following injuries on his person:-
(1) Fire-arm wound 2.5 c.m. x 2 c.m. On left side of occipital region. Smaller at lower side and it was entry wound and border at upper side. It was exit wound.
(2) Fire-arm wound 1.5 c.m. x 1 c.m. On back and right side of neck upper part x inverted margin (entry wound). It was directed downwards and forward. A bullet was removed from the front and right side of neck 3 c.m. Above the medial end of right clavical.
(3) Fire-arm wound 1 c.m. x 1 c.m. On front and top of right shoulder joint x inverted margin (Entry wound). It was directed downwards, forward and to the right towards next injury.
(4) Fire-arm wound 5 c.m. x 2.5 cm x everted margins (Exit wound of injury No,3). On the outer side of upper part of right upper arm and deltoid region.
(5) Fire-arm wound 1.5 c.m. x 1 c.m. On outer side of left chest 14 c.m. From left nipple x inverted margin (Entry wound) directed downward, backward and to the right side. On internal examination left lung was perforated. Right lung was perforated and bullet was removed from posterior wall of right chest, lower part 7 c.m. From midline.
(6) Fire-arm wound 1 c.m. x 1/2 c.m. x inverted margin on lateral side of left chest lower part 10 c.m.
From left nipple. It was directed slightly donward and to the right. On internal examination left lung, stomach and spleen were perforated.
(7) Fire-arm wound 1.5 c.m. x 1.5 c.m. x everted margin on left side of back of chest and lumber region 13 c.m. From left iliac crest. It was exit wound of injury No, 1.
(8) Fire-arm wound 1.5 c.m. x 1.5 c.m. x inverted margin (entry wound) on back of right chest 5 c.m. x from midline. It was directed downward slightly forward. On internal examination right lung, liver, right kidney were injured under these injuries. Chest cavity was full of blood. Abdominal cavity contained blood. Bullet was removed from right lumber region.
(9) Fire-arm abrasion 4 c.m. x 2 c.m. On front of chest in middle and lower parts.
(10) Fire-arm abrasion 5 c.m. x 3 c.m. On outer side of left elbow joint.
(11) Fire-arm abrasion 4 c.m. x 1.5 c.m. On outer side of left fore-arm 10 c.m. From left elbow joint.
(12) Fire-arm abrasion 3 c.m. x 2 c.m. On back of left lumber region."
' In the opinion of the doctor, death was the result of injuries Nos.5, 6 and 8, which were deciareu sun-relent to cause death individually and collectively in the ordinary course of nature.
6. Mst. Gulzar Begum (P.W.6) was medically examined by Lady Dr. Muneera Jalil (P.W.8) on the same day, who found the following injuries on her person:--
(1) A fire-arm wound 0.5 c.m. x 5 c.m. x whole left fore-arm thickness deep present on the outer border (radial) of the left fore-arm 8.4 c.m. Below the left elbow joint crease within inverted margins. No, blackening or scratching seen. There was also swelling around the main wound measuring 71 c.m. All around. Corresponding hole was present on the left sleeve of shirt which was marked and signed by me. Sleeve was blood-stained. It was an entry wound. Wound was directed inwards to the right and slightly upwards.
(2) A fire-arm wound 2 c.m. x 1.2 c.m. Present on the inner aspect border of the left fore-arm 2.6 c.m.
Below the left elbow crease. Margin was everted. There was hole present on the sleeve which was marked and signed by me. It was exit wound of injury No,l.
(3) A fire-arm wound .9 c.m. x .9 c.m, x muscle deep present in the inner surface of the right leg.
Margin was inverted. It was 10.1 c.m. Above the right ankle joint. There was whole on the Shalwar which was marked and signed by me. There was no blackening or scratching. It was an entry wound.
(4) A fire-arm wound 1 c.m. x .9 c.m. Oval shape subcutaneous tissue deep on the front aspect of left ankle joint. Margin was inverted and was present 2 c.m. To the left of midline. It was directed upwards and to the right where it meets with the next injury. It was entry wound.
(5) A fire-arm wound 1.9 c.m. x 1.1 c.m. Present on the lower most part of left leg. Margin was everted and was 1.6 c.m. Above the ankle joint and 3 c.m. Above and right of injury No,4. It was exit wound.
' Later, Its a result of X-Ray reports, it transpired that her femure bone was also fractured and the injury was described as under-- (6)--- I field wound with scar on the inner aspect of the right thigh measuring 1.2 c.m. x 0.6 c.m.
Oval in shape 16 c.m. Above the inner aspect of right knee. Injury No,6 was kept under observation.
7. Abdul Aziz, S.-I. (P.W.11) on receipt of the information about the occurrence through wireless message immediately reached at the spot along with some other police officials and found Muhammad Afzal deceased lying dead on the top roof of his house, whereas Mst. Gulzar Begum was lying in injured condition. He recorded the statement (Exh.P.D.) of Mst. Gulzar Begum and sent the same to the Police Station City Chakwal for registration of the case. The formal F . I. R .
(Exh.P.D./1) was drawn by the Muharrir Head Constable of the police station. The Sub-Inspector after preparing the injury statement (Exh.P.M.) and the inquiry report (Exh.P.N.) of Muhammad Afzal deceased despatched his dead body to the mortuary for post-mortem examination. He also prepared injury statement (Exh.P.J.) of Mst. Gulzar Begum and sent her to the District Headquarter Hospital, Chakwal for medical aid and examination. The Investigating Officer collected blood from the top-roof of the house in a sealed parcel through memo. Exh.P.E. Two live cartridges (Exhs.P.7 and P.8) and five empties (Exh.P.9/1-5) were found lying at the spot, which were taken into possession through memo. Exh.P.G. A lantern (Exh.P.10) and Hukka (Exh.P.11) were also taken into possession from the spot through memo. Exh.P.H.. The recovery of the above articles was witnessed by Nazir Sultan (P.W.7) and Muhammad Safdar (given-up P.W.) The spot was inspected by the Draftsman on 28-9-1995 and on the pointation of the P.Ws., a site plan was prepared in triplicate (Exhs.P.B., P.B./1, and P.B./2). The appellant was arrested on 30-9-1995, whereas the acquitted accused, namely, Ghulam Raza and Ghulam Murtaza were apprehended on 3-10-1995 and 10-10- 1995, respectively. Ghulam Raza (since acquitted) led to the recovery of a licensed pistol .30 bore with 40 live cartridges on 7-10-1995, which were secured through memo. Exh.P.O. The appellant got recovered a .12 bore licensed gun (Exh.P.12) with eighteen live cartridges in addition to a licensed pistol .30 bore (Exh.P.14) with 16 live cartridges, which were taken into possession vide memo.
Exhs.P.M. And P.N., respectively. Muhammad Shafi (P.W.10), father of the complainant, has witnessed the recoveries. The Investigating Officer having found the appellant involved in the case challaned him to face the trial, whereas Ghulam Raza and Ghulam Murtaza were placed in column No,2 of the challan.
8. The prosecution case mainly rests upon the evidence of ocular account of Mst. Gulzar Begum, an injured witness and Nazir Sultan, her real brother, the evidence of motive and the medical in addition to the recoveries of the crime weapons from the accused and the empties from the spot.
9. The accused in their statement under section 342, Cr.P.C. Denying the charge pleaded innocence. The appellant in his statement made the following answer to the question "Have you anything else to say?:-- 'I was shocked to learn about the tragic death of maternal-cousin Muhammad Afzal, who always sided with us in the past. I immediately rushed to the Hospital where the dead body was lying for postmortem examination. Mst. Gulzar Begum P.W. Was lying there in an injured condition. I met with Gulzar Begum in the Hospital in presence of her close relations and inquired about the said incident. Later on she in connivance with her in-laws involved me in this case. I contracted marriage about 4 months before this occurrence and was in my bed room with my newly wedded wife on the night of occurrence at relevant time.
' I raised this defence plea before the Investigating Officer, at the time of my arrest but he did not record the same dishonestly.
' Four months before the present occurrence I contracted a love/run away marriage with Mst.
Qamar-unNisa daughter of Sub-Inspector Police Mazhar Hussain. She is sister's daughter of police constables Abid Hussain and Sajjid Hussain. Her paternal cousin Manzoor Hussain is a Head Constable with whom she was engaged. These police officials made applications before the S.P., Chakwal with an allegation that I enticed away Mst. Qamar-unNisa. The S.P. Chakwal got inquired these complaints and found that it was a valid marriage. The father of my wife and her other relations bore grudge and availing an opportunity prevailed upon the investigator of this case and succeeded to get me challaned "
10. Learned counsel for the appellant raised the following contentions in support of the present appeal:--
(i) That admittedly in the month of July, 1994, Muhammad Afzal along with present appellant, his deceased brother, namely, Saqlain Raza and others were attacked by Muhammad Akram, husband of Mst. Gulzar Begum and others and as a result thereof Saqlain Raza, real brother of present appellant was murdered. Muhammad Akram and his companions having faced trial were convicted and sentenced and that the appeal filed by them against their conviction and sentence is still pending before this Court. The two accused of the said case including Abdul Rashid were on bail, when the present occurrence took place.
(ii) That Mst. Maroof Begum, real sister of Muhammad Akram was divorced by Muhammad Afzal deceased before the occurrence, whereas Mst. Gulzar Begum sister of Muhammad Afzai being married with Muhammad Akram was still in his Nikah, therefore, Muhammad Akram and others with a view to compel the appellant to make compromise with them in the earlier murder case got him involved in this case through Mst. Gulzar Begum, who after the murder of her brother was interested to save the life of her husband Muhammad Akram and, thus, motivatively named the present appellant and his co-accused as the assailants of the occurrence.
(iii) That factually the occurrence having taken place in the dark, the assailants could not possibly be identified and consequently it could not be known that who attacked on the deceased and Mst.
Gulzar Begum.
(iv) That the case was registered on the statement of Mst. Gulzar Begum recorded by the Sub- Inspector at 10-00 a.m. In the hospital as stated by the witnesses as well as the Sub-Inspector in their statements in the Court and, thus the possibility of false implication of the appellant after due deliberation is not ruled out.
(v) That except the - enmity of Muhammad Akram and others with the appellant and Muhammad Afzal, his party men, there could be no reason with Mst. Gulzar Begum to name the appellant as assailant of her, brother.
(vi) That Muhammad Afzal being party men of the present appellant and the complainant in the murder case of brother of the appellant was neither inimical to the appellant nor the appellant had any motive to damage him.
(vii) That the motive in the present case set up by the prosecution being not remotely connected with the appellant is an important factor to visualize the reason in the background for false implication of the appellant.
(viii) That according to the story of the F.I.R. And also as narrated by the eye-witnesses, the appellant while carrying .12 bore gun, whereas his co-accused, namely, Ghulam Raza armed with pistol fired at the deceased, but there is no allegation of carrying pistol by the appellant or firing with pistol by him at the deceased whereas the empties recovered from the spot were found matched with the licensed pistol recovered from the appellant.
(ix) That the medical evidence unambiguously describes the injuries caused by bullet as no pellet was found in the body of deceased and only lead bullets were traced by the doctor, which evidently proved that the deceased and Mst. Gulzar Begum received bullet injuries, whereas the appellant is attributed firing at the deceased and Mst. Gulzar Begum with gun. Thus, matching of the empties recovered from the spot with the licensed pistol of the appellant, subsequently recovered from him is of no corroborative value. The medical evidence disclosing digested food in the stomach and bladder full of urine, provided a direct proof of the taking place of the occurrence much earlier to the time given by the P.Ws. At a place other than the roof of the house, as no article including cot and bed sheet except a lantern was taken into possession.
(x) That as stated by the Sub-Inspector, he immediately on receipt of information when reached at the spot it was still dark and no light being available at the spot he himself arranged light and conducted preliminary investigation. This would negate the story of lightening a lantern at the time of occurrence and consequently the identification of the assailants in the given situation was not possible.
(xi) That the solitary statement of Mst. Gulzar Begum. An interested witness with the background of enmity between the parties is not reliable unless corroborated through an independent source, which being not available the allegation of committing murder of Muhammad Afzal and causing injuries to Mst. Gulzar Begum by the appellant is not proved beyond doubt.
11 Conversely, learned counsel appearing on behalf of the State argued that the dead body having recovered from the top-roof of the house, the place of occurrence, cannot be disputed and that the lacunas in the prosecution case due to the negligence of the Investigating Officer being not of much significance cannot be considered sufficient to acquit the appellant: He argued that the appellant having suspected Muhammad Afzal deceased instrumental and responsible for the murder of Saqlain Raza, his brother had a strong motive for the crime. He, however, has not been able to give any reason for not questioning the acquittal of Ghulam Raza, co-accused of the appellant, who has been assigned the similar role.
12. We have heard the learned counsel for the appellant as well as the State at length and perused the record thoroughly with their assistance. Undoubtedly, the occurrence took place at 3-25 a.m. In the dark and ordinarily the identification of the appellant was difficult for Mst, Gulzar Begum, an injured witness, to identify the culprits, therefore, she claimed the identification in the lantern light, which was not available at the time of arrival of Sub-Inspector when it was 'still dark. This is common in villages that the people keep lantern with them during the night while sleeping on the roofs, but normally the same are not lightening and are kept for emergency. It is stated that Mst.
Gulzar Begum addressing the accused inquired from them "why they have come at that time" and claimed identity of the appellant but it is not the prosecution case that the appellant raising Lalkara made attack or made any reply to the question of Mst. Gulzar Begum and, therefore, the identification by voice was not claimed. According to the Sub-Inspector, who immediately after the occurrence reached at the spot, there was no light and he himself arranged for the same. The Sub- Inspector reached at the spot on information through wireless message and it can easily be visualized that some neighbours having come to know the incident must have informed the police and the Sub-Inspector with other people in the locality reaching at the spot not finding the light arranged for the same. This would show that at the time of occurrence there was no light on the roof and the identification of the assailant as such was not possible. The witnesses despite being known to the accused did not claim their A identity through voice and consequently the identification of the appellant is not proved either by face or in any other manner.
13. The next question for determination would be that what was the motive with the appellant and his co-accused for causing murder of Muhammad Afzal, who belonged to their party and having no enmity with the accused side had a common cause against their opponents. The deceased was the complainant of the occurrence in which the brother of the appellant was murdered and was strongly pursuing that case against the murderer of brother of the appellant. There is no evidence direct or circumstantial to suggest that at any stage the present appellant suspected Muhammad Afzal to be party in the murder of his brother, therefore, it does not appeal to mind that the appellant would attack and kill the deceased without any reason or background of enmity.
Thus, the motive suggested by the prosecution is not proved through any evidence on record. On the contrary, the reason of false implication of the appellant advanced by the learned counsel for the appellant is somewhat convincing. Admittedly, Mst. Gulzar Begum was under desertion and Muhammad Akram, her, husband, was in jail as convict in the murder case of brother of the present appellant, whereas the companion accused after conviction were on bail and the possibility of killing the deceased by his opponents is not ruled out and the contention of the learned counsel that after the occurrence, the appellant and the acquitted accused were substituted as accused through the statement of Mst. Gulzar Begum in the hospital at the instance of her father-in-law with a view to compel the accused party to make a compromise with Muhammad Akram husband of Mst. Gulzar Begum has substance. The poor lady probably being under the influence of her father-in-law with the consideration to bring her husband from jail, agreed in naming the appellant as accused. The motive to kill given by the prosecution and motive advanced by the defence for false implication, while putting in juxtaposition would show that the motive given by the prosecution was shaky and weightless. Thus, even without believing the defence version of the motive, it can easily be visualized that the appellant had no motive to kill.
14. The prosecution case in the F.I.R. And as narrated by Mst. Gulzar Begum the sole witness of the occurrence is that the appellant fired with .12 bore gun, whereas Ghulam Raza acquitted accused fired with pistol. The medical evidence unambiguously shows that all injuries were caused with buffets. The doctor has also recovered lead bullets from the body of the deceased. The crime empties recovered from the spot matched with the licensed pistol subsequently recovered from the appellant, but this sort of evidence is of no help to the prosecution against the appellant as he did not use the pistol in the occurrence. Since Mst. Gulzar Begum claimed identity of the appellant, therefore, it cannot be argued that she could not clarify herself about the weapon of offence used by the appellant. Consequently, this conflict makes the evidence of recovery useless and instead a reasonable doubt and dent is created in the prosecution case.
15. The detailed scrutiny of the evidence reveals that despite the fact that Mst. Gulzar Begum, the sole witness of the occurrence, sustained injuries at the hands of assailants, it is difficult to digest that she could identify the accused in the given circumstances in the dark without light and consequently the Court was put under guard to be more careful to place reliance on the sole testimony of the lady. Ghulam Raza acquitted accused, real brother of the present appellant, has been assigned the similar role by Mst. Gulzar Begum in the occurrence. There was no distinguishing features of the case against said accused to that of the present appellant. He has been acquitted on the ground that the empties recovered from the spot did not match with the pistol recovered from him and that the Investigating Officer accepting the plea of alibi raised by him put him in column No, 2 of the challan. We may observe that the plea of alibi being without any foundation was of no value. Anyhow the said accused having been given the benefit of doubt has been acquitted and his acquittal remained unchallenged.
16. The appellant allegedly used .12 bore gun in the occurrence, but the empties recovered from the spot were of pistol and not gun. Mst. Gulzar Begum has assigned the similar role of fairing to the appellant and Ghulam Raza acquitted accused. The medical evidence shows that the deceased and the injured witness sustained injuries with bullets, which fact is further confirmed by the recovery of the lead bullets from the person of the deceased. Ghulam Raza allegedly armed with pistol fired at the deceased, therefore, the role assigned to Ghulam Raza to some extent is corroborated with medical evidence, whereas in the case of appellant, even this sort of corroboration is not available. We, therefore, find that the case of the appellant is not materially distinguishable to that of Ghulam Raza, the acquitted accused, but the trial Court extending benefit of doubt acquitted Ghulam Raza and withholding the same to the appellant convicted him. The State or the complainant has not preferred any appeal against the acquittal of said Ghulam Raza.
Hence, we considering the fact that the appellant stood at par to Ghulam Raza, the acquitted accused, rather on better footing, as qua him there is no corroboration available except solitary statement of Mst. Gulzar Begum, whereas the medical evidence to some extent supports the ocular account against Ghulam Raza, the acquitted accused. We having not seen any difference in the case against the appellant to that of Ghulam Raza found him also entitled to the same benefit.
17. In the light of above discussion, we accept this appeal and setting aside the conviction and sentence of the appellant,. Acquit him of the charge. He is directed to be released from jail forthwith if not required in any other case. Murder Reference is answered in the negative.