' ASIF SAEED KHAN KHOSA, Muhammad Hussain alias Hussain appellant was convicted by the learned Additional Sessions Judge, Sahiwal vide judgment, dated 25-2-1996 for an offence under section 302, P.P.C. And was sentenced to death and a fine of Rs,50,000 or in default of payment thereof to undergo R.I. For two years. He has challenged his conviction and sentence before this Court through Criminal Appeal No,56 of 1996 filed by him through a learned counsel. He has also filed Criminal Appeal No,60 of 1996 through jail in that regard. We have heard the convict's appeals along with Murder Reference No,45 of 1996 seeking confirmation of the sentence of death passed against him. We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Mst. Razia Begum alias Razzo complainant was a resident of Chak No,82/5L situated within the area of Police Station Burjwala, District Sahiwal.
At about 7-30 a.m. On 10-1-1987 the complainant and her husband Ali Sher went to their Dhari in Killa No,9 of Square No,6 of Chak No,81/5L for milking their buffaloes. The complainant was walking on Killa behind her husband. Where Ali Sher reached the Dhari suddenly Muhammad Hussain alias Hussaini appellant, armed with a .12 bore gun, and one Hakim Ali, armed with a .12 bore pistol, emerged from the Dhari. While raising a Lalkara the appellant fired a shot at Ali Sher hitting him on the right side of his right thigh upon which Ali Sher fell down. Hakim Ali then fired a shot at Ali Sher hitting him at the inside of his right knee. The appellant then fired another shot at Ali Sher hitting him at his left shin. The and cry raised by the complainant attracted Ali Sher's brother Noor Hassan to the spot and he also witnessed the occurrence. Thereafter, both the assailants left the place of occurrence declaring that they had accomplished their mission. The motive set up in the F.I.R. Was that the complainant's sister Mst. Khadija Bibi was married to Muhammad Hussain alias Hussaini appellant but, due to strained relations between the spouses, she had left the house of the appellant and had started living with the complainant and her husband Ali Sher for the last 4/5 months. A suit for dissolution. Of marriage had also been filed in that regard with the help of the complainant and her husband Ali Sher. It was also stated in the F.I.R. That the complainant's husband Ali Sher had also acted as a Mukhbir in respect of certain thefts whereupon some recoveries had been affected from Muhammad Hussain alias Hussaini appellant. According to the F.I.R. The complainant's husband Ali Sher had been murdered by the appellant and his co-accused on account of those grudges.
3. Leaving the dead body of her husband Ali Sher at the place of occurrence in the care of Noor Hassan P.W. Mst. Razia Begum alias Razzo complainant went to Police Station Burjwala and lodged F.I.R. No,12 in that regard at 8-30 a.m. On the same day. The .F.I.R. Was recorded by Amjid Ali, S.-I.
(since dead) for an offence under section 302, P.P.C.
4. After recording the F.I.R. Amjid Ali, S.-I. Took tip the investigation of this case, went to the place of occurrence, prepared a rough site plan of the place of occurrence, took into possession blood- stained earth and two crime-empties from the spot, prepared the injury statement as well as inquest report in respect of the dead body and sent the same to the mortuary for autopsy. As Amjid Ali, . S.-I. Had died before the present trial, therefore, all these steps taken by him and the memos. Prepared by him during the investigation of this case were proved by Muhammad Aslam, A.S.-I. (P.W.10) who had worked with him.
5. The post-mortem examination of the dead body of Ali Sher was conducted by Dr. Waseem Ahmad Sheikh (P.W.3) at 4-00 p.m. On 10-1-1987. He found eight injuries on the dead body which were all ante-mortem. All the injuries were caused by fire-arm except injury No,6 which according to the doctor, "could be the result of some blunt weapon, sharp-edged weapon, by fall and by fire- arm as well". The death, in his opinion, was caused due to severe hemorrhage and shock by injuries Nos.1 to 8 except injury No,6. Those injuries were collectively sufficient to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was stated by the doctor to be about one, hour while the duration between the death and post-mortem examination was opined by the doctor to be about ten hours.
6. After the post-mortem examination of Ali Sher deceased Amjid Ali, S.-I., the Investigating Officer, took into possession the blood-stained last-worn clothes of the deceased. Subsequently, he arrested the appellant and Hakim Ali accused in this case. Hakim Ali was then released and one Sabri was arrested by him in this connection when the complainant had stated that in fact Sabri and not Hakim All was the co-culprit of this occurrence with the present appellant. The said Sabri was subsequently, killed in an encounter with the police. Amjid Ali, S.-I. Then got a site plan of the place of occurrence prepared by a Patwari. Thereafter, he 'completed the other formalities, finalized his investigation and submitted a challah in respect of this case. All those steps taken by Amjid Ali, S.-I. Were proved by Muhammad Aslam, A.S.-I. (P.W.10).
7. At the commencement of the trial the learned trial Court framed a charge with one head under section 302/34, P.P.C. Against Muhammad Hussain alias Hussaini appellant to which he pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as ten witnesses in support of its case against the appellant. Mst. Razia Begum alias Razzo complainant (P.W.2) and Noor Hassan (P.W.6) furnished the ocular account of the incident. The complainant (P.W.2) and her sister Mst. Khadija (P.W.7) deposed about the motive. Dr. Waseem Ahmad Sheikh (P.W.3) provided the medical evidence. Muhammad Aslam, A.S.-I. (P.W.10) stated about various steps taken by Amjid Ali, S.-I.
During the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
9. In his statement recorded under section 342, Cr.P.C. Muhammad Hussain alias Hussaini appellant denied and controverted all the allegations of fact leveled against him by the prosecution and professed his innocence. He went on to state that the prosecution witnesses were closely related to the deceased and for this reason they had falsely deposed against him. He opted not to make a statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in his defense.
10. At the conclusion of the trial, as mentioned above, the learned Additional Sessions Judge, Sahiwal convicted and sentenced Muhammad Hussain alias Hussaini appellant as noticed above.
Hence, the present appeals and the connected murder reference before this Court.
11. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have also gone through the record of this case with their assistance.
12. The learned counsel for the appellant has argued that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. According to him the witnesses produced by the prosecution did not inspire confidence and they had also failed to find material corroboration from any independent source. As against that the learned counsel for the State has argued that the prosecution had successfully proved the guilt of the appellant to the hilt through convincing, cogent and reliable evidence.
13. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. The ocular account of the incident in question had been furnished by Mst. Razia Begum alias Razzo complainant (P.W.2) and Noor Hassan (P.W.6). Both of them have failed to inspire our confidence. They were not only closely related to the deceased but also interested as well, chance witnesses. The complainant (P.W.2) was the wife of the deceased whereas P.W.6 was the deceased's real brother. The complainant (P.W.2)'s real sister, a wife of the appellant, was admittedly not only separated from the appellant and putting up with the complainant but she had also filed a suit for dissolution of marriage against the appellant which, was pending at the time of occurrence. Thus, the complainant's bitterness and interest against the appellant was beyond doubt. P.W.6 was the deceased's younger brother and the complainant's brother-in-law. He had no direct relationship with the appellant. He was also living with the deceased and the complainant at the relevant time. Thus, his community of interest with the complainant as well as sharing of bitterness against the appellant also did not call for much straining of imagination. It had also come on the record that the complainant as well as P.W.6 lived 4/5 squares away from the Dhari where the occurrence had taken place. Thus, both of them were chance witnesses. The explanation advanced by the complainant for her presence near the Dhari at the time of occurrence was that she had gone there with her husband for milking their buffaloes.
That explanation was never substantiated or established during the trial. She had stated that she had taken two big silver "Gharwas" of ten Seers' capacity each with her as they used to sell milk.
Neither any such "Gharwa" was recovered or seen by the Investigating Officer during the investigation nor the complainant could name any purchaser of their milk. Such an ignorance on her part was surely incompatible with her claim of selling their milk. Apart from that the complainant did not inspire confidence as a truthful witness inasmuch as originally she had named one Hakim Ali as the co-culprit of the appellant but subsequently, she had implicated one Sabri as the co-culprit. She was, thus, not shy of falsely implicating innocent persons on a capital charge. In view of the foregoing considerations we are not ready to place wholehearted reliance on her statement in respect of the incident in question. As regards Noor Hassan (P.W.6) his explanation for presence near the place of occurrence (4/5 squares away from his place of residence) early in the morning in the month of January was that he was present in his fields at the relevant time which were situated near the said Dhari. We have noticed that no evidence whatsoever was brought on the record of the case to establish availability of his lands near the place of occurrence. In the absence of such evidence we have felt ourselves to be quite reluctant to believe in his availability near the spot at the relevant time. If he had no lands nearby then his being attracted to the spot from his home upon the hue and cry of the complainant and having still been able to witness the occurrence was well nigh impossible as, admittedly, it had taken the complainant half an hour to reach the Dhari in question from her home whereat P.W.6 also lived.
There are two other strong reasons for not believing P.W.6's presence at the place of occurrence at the time of occurrence. Firstly, despite his stated presence with the dead body at the time of arrival of the police at the place of occurrence soon after the occurrence his first statement was admittedly recorded by the Investigating Officer after 5/6 days of the occurrence. This unusual feature of the case was sufficient to raise serious doubts that P.W.6 might have been procured and planted as an eye-witness subsequently. Secondly, if P.W.6 had really been present at the spot with the complainant at the time of the incident then, keeping in view our social attitudes, it would have been P.W.6 who would have gone to lodge a report at the police station and not the female complainant. Leaving of P.W.6, an able bodied male and a real brother of the deceased, at the spot to guard the dead body and going of the female complainant to the police station, and that too after taking a lift from a stranger on a motorcycle, is a claim which has utterly failed to impress us.
We have, thus, found that the stated presence of both the eye-witnesses produced by the prosecution had not been proved beyond reasonable doubt.
14. The prosecution had also failed to prove the motive set up by it against the appellant. The complainant (P.W.2) had failed to provide any detail of any Mukhbari allegedly provided by the deceased whereupon any stolen property had been recovered from the appellant. Nobody else had provided any such information either. As regards the separation of the complainant's sister from the appellant the same stood proved as a fact on the basis of the statement of Mst. Khadija (P.W.7) but the deceased's role or his involvement in the matter was neither alleged nor established through any 'evidence. The statement of P.W.7 in fact went on to establish that the conduct of the deceased in that matter was never such as to propel the appellant into launching an aggression against the deceased. Apart from that the deceased was not even a witness in the suit for dissolution of marriage filed by P.W.7 against the appellant. Thus, in the -complete absence of any material to show as to why the appellant would choose the deceased as the target of his aggression, we have no option but to discard the motive set up by the prosecution against the appellant.
15. There is no proof available on the record about any gun having been recovered from the appellant during the investigation of this case. Thus, the prosecution has failed to receive any corroboration from this possible avenue either.
16. Instead of providing any support the medical evidence in this case has in fact gone a long way in destroying the prosecution's case. The doctor (P.W.3) who had conducted the post-mortem examination of the dead body of Ali Sher had found two ounces of semi-digested food and secretions in the stomach of the dead body. According to the doctor the same was possible if the deceased had taken his last meals about 2-1/2 hours before his death. The occurrence in this case had allegedly taken place at 7-30 a.m. And, thus, according to the medical evidence. The deceased ought to have taken his breakfast at about 5-00 a.m. However, according to the complainant (P.W.2) the deceased had not taken any breakfast at all till 7-30 a.m. If that were so, then the only explanation for availability of that semi-digested food in the stomach of the deceased could be that it was the remains of his dinner and also that the deceased had a rendezvous with his death about 2-1/2 hours after his dinner. This, incidentally, was also the case of the defence through its suggestions to the prosecution witnesses. It was consistently suggested by the defense that the deceased had been done to death during the night by some unknown culprits when the deceased was sleeping at his Dhari all by himself. After discarding of the eye-witnesses produced by the prosecution and the motive set up by it against the appellant we have found the version of the defense to be quite plausible. After all his four buffaloes and their four off-springs could not be left unattended by the deceased at night at his Dhari situated 4/5- squares away from his home. It was, therefore, quite believable that he might have slept for the night at his Dhari and, as per the medical evidence, he might have been murdered during the darkness of the night by unknown culprits for some unknown reason. Procurement and planting of the complainant (P.W.2) and Noor Hassan (P.W.6) as eye-witnesses subsequently, and implication of the present appellant as the culprit on the basis of suspicion entertained by the complainant, therefore, appear to be quite understandable. To us this -hypothesis has struck as more reasonable and plausible than the story hatched up by the prosecution.
17. For what has been observed above we have arrived at a confident conclusion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. Thus, extending the benefit of doubt to the appellant, his appeals are hereby allowed, the impugned judgment passed by the learned Additional Sessions Judge, Sahiwal on 25-2-1996 is set aside and the appellant is acquitted of the charge against him. He shall be released from jail forthwith, if not required in any other case.
18. As the appeal filed by Muhammad Hussain alias Hussaini appellant has been accepted, with the resultant setting aside of his conviction and sentence recorded by the learned trial Court, and he has been acquitted by us, therefore, Murder Reference No,45 of 1996 is hereby answered in the negative.
Death sentence is not confirmed.