' IFTIKHAR HUSSAIN CHAUDHRY, J.---Safdar Ali and Abdul Salam alongwith Muhammad Sadiq and Abdul Rehman were sent up to the Court of Additional Sessions Judge Narowal, to' face trial for offence under section 302/324/34, P.P.C. Read with section 109, P.P.C. For the alleged murder of Muhammad Iqbal and for causing injuries to Mst. Iqbal Bibi. After conclusion of the trial Safdar Ali and Abdul Salam were convicted under section 302/34, P.P.C. And were sentenced to death by judgment, dated 7-4-1994 passed by Additional Sessions Judge, Narowal. They were also sentenced to pay a fine of Rs,5,000 and in case of default to undergo one year R.I. They were also convicted under section 337-F and sentenced to 2 years' R.I. And a fine of Rs,1,000 each, and in case of default to undergo rigorous imprisonment for one year. The co-accused, however, were acquitted from the case. The incident in this case took place at about 10-30 p.m. On 24-8-1993 in the area of village Bhutarawal at a distance of four miles from the Police Station Kot Nainan. Case F.I.R. No,65, dated 25-8-1993 was registered at Police Station Kot Nainan at 2-00 p.m. For offence under section 302/324/109, P.P.C. At the instance of Bilquees Bibi widow of Muhammad Iqbal deceased. According to first informant she was married to Muhammad Iqbal about 20/22 years prior to the incident and nine children were born out of the wedlock. Rashid Ali aged 3 months was unwell for 3/4 days and in order to fetch medicines, she alongwith her husband and Rashid, son, went to village Bhutarawal to Dr. Mubarik Ali, astride a motor-cycle. They were returning home and when they reached on a Katcha path in the area of village Bhutarawal. Safdar Ali, Abdul Salam, both carrying fire-arms emerged and started firing on them on which Muhammad Iqbal was injured and died at the spot. Mst. Bilquees Bibi also received fire-arm injury on left ankle and also fell down. Waqar, her son and Nasim Raza, nephew of Muhammad Iqbal were following them on motor-cycle and also witnessed the occurrence. The accused after firing at them decamped from the spot.
' The motive for the incident was stated to be that criminal litigation was going on between the parties and they had enmity interne and this offence was committed at the instance of Muhammad Sadiq son of Nazir and Abdul Rehman son of Faqir Muhammad. Muhammad Sadiq according to first informant, had checked about her husband on 24-8-1993.
2. Safdar Inayat, Inspector/S.H.O., Police Station Kot Nainan was present at Chowk Ratanpur at about 1-30 a.m. When Mst. Bilqees Bibi me him in the company of Muhammad Yaseen and recorded her statement Exh.P.A. Which was sent to police station on the basis of which first information report Exh.P.A./1 was recorded. Injury statement of Mst. Bilquees Bibi Exh.PJ was prepared by the witness and was sent to hospital for treatment. The Station House Officer proceeded to the spot, prepared site plan Exh.PK inquest report Exh.PG, injury statement Exh.PL and sent the dead body to Shakargarh Hospital under the escort of Muhammad Aslam, Constable. The Investigating Officer also secured blood-stained earth vide memo. Exh.PJ. Twenty-one empty cartridges were lying in the paddy crop belonging to Muhammad Latif which was adjacent to the place of occurrence and were taken into possession vide recovery memo. Exh.PB. The statement of witnesses were recorded under section 161, Cr.P.C. On 26-8-1993, motor-cycle was produced by Waqar Ahmed in the police station which was taken into possession vide recovery memo. Exh.PH.
The last-worn clothes of the deceased were also taken into possession by Safdar Inayat Inspector vide recovery memo. Exh.PC and then he was transferred.
3. The prosecution examined 15 witnesses to prove its case against the accused.
4. Dr. Muhammad Asif, Medical Officer, T.H.Q., Hospital, Shakargarh, P.W.10 conducted post-mortem examination on the dead body of Muhammad Iqbal on 25-8-1993 and noticed following injuries on the dead body:-- INJURIES:
(1) .05x.05 c.m. Round middle in the middle of chest 7 c.m. Above the xyphaesternun wound was communicating with chest cavity.
(2) A lacerated wound on the interior aspect of right fore-arm. Margins were irregular. Measuring 9 x 3 c.m. Was present about 8 c.m. Proximate to right wrist-joint.
(3) A lacerated wound on right fore-arm 2 x 1 c.m. Lateral side of fore arm and was 7 c.m. Proximate to right wrist-joint. Wound was bone deep.
(4) A lacerated wound triangular 3 x 2 c.m. In the interior aspect of right forearm. 10 c.m. Below the right elbow-joint. On exploration a small fregnant of bullet was found located muscle deep.
(5) Multiple abrasions were present on the postolater aspect of right forearms in its middle.
(6) A lacerated wound on the inner aspect of left thigh measuring 1x2 c.m. And was located 14 c.m.
Above the left knee-joint. On exploration a fregnant of bullet was found in the muscle of medial compartment of thigh.
' Injuries Nos.l, 4 and 6 according to witness were caused by fire-arm bullet and about rest of the injuries no opinion was given. In cross-examination, the Medical Officer admitted that the deceased was fired at from right side and the bullet travelled from right side to left side. He admitted that there was no mention of any corresponding cut on the shirt corresponding to injury No,1 . The shirt was examined in Court and it did not contain any hole on the right side of the shirt.
The sealed bottle containing foreign body recovered at the time of post-mortem examination was opened and the witness admitted that these were pieces of metal having edges and it was like metal strips.
5. Dr. Muhammad Aslam, Medical Officer, P.W.9 had examined Mst. Bilquees Bibi at 5-00 p.m. And noticed following injury on her person:-- ' "A lacerated wound with burnt/inverted margins 12x6 c.m. x bone deep on the inner aspect of left ankle. Underline bones were clearly exposed. Margins irregular inner tissues-tender-specially tendocalcaneous was shattered and inner aspect of lower end of tibia was fractured, bleeing was morderate at the time of examination. Signs of excessive haemorrhage were positive. Wound track was from upper aspect of ankle towards the heel---where skin was everted upwards and downwards. B.P. 110/70. Duration of injuries within 24 hours. Injury was Ghair Jaipha and was caused by fire-arm. K.U.O. To observe its final residual defect as far as the functional resturation of the foot is concerned."
6. Salamat Ali, A.S.I., P.W.4, had complained to Safdar Abbas, Inspector who testified that about 21 spent cartridges were taken into possession from the spot which was a paddy field. In cross- examination he admitted that the dead body was lying on a path adjacent to a field having sugarcane crop which was more than a man's height. According to the witness on one side of the path there was sugarcane crop while on the other side there were reeds and trees as well. The witness had attested the memo. Of recovery Exh.PB, admitted that the empty casings or sealed parcels were not in the Court on that date. He admitted that they had reached the spot at about 2- 00 p.m. And crime empties were recovered within half an hour of their reaching the spot.
7. Muhammad Latif P.W.6 had identified the dead body of the deceased at the time of post- mortem examination. The witness admitted that one Parveen was wife of Muhammad Iqbal. He denied that one Shabbiran was also the wife of the deceased. He denied of having knowledge about the registration of the case against Abdul Salam and Abul Rehman for offence of Zina. He stated that he did not know that Zikriya, and Sardar, his brothers were witnesses of the accused in that case.
8. Muhammad Ilyas, P.W.7 was Patwari of the circle and had prepared site plan Exhs.P.D. And P.D./1.
In cross-examination the witness admitted that two rooms belonging to Bashir Ahmed were located at a distance of 1-1/2 acres from the spot and house of Bashir Ahmad was four acres away.
Arshad Hussain, Inspector, P.W.8 was posted as Station House Officer, Police Station Kot Nainan and had arrested the accused on 18-9-1993. He had also challaned the accused to Court. He admitted that he had concluded on 23-11-1993 that the accused were innocent and recorded case diary No,27, dated 23-11-1993 to this effect. He admitted that the parties had produced the witness before them and the witnesses produced by the complainant had not seen the accused in the village before the occurrence or after the occurrence. He admitted that according to the witnesses produced by the accused, the accused had shifted to Lahore. He also admitted that 17 persons appeared before him on 20-9-1993 and eleven persons on 29-9-1993, who offered to give special oath that the accused were innocent persons. He denied that the accused persons and the eye- witnesses were not present at the time of occurrence and only the deceased and his wife were present there. He admitted that it had come to notice during the investigation that the accused had shifted their residence to Lahore as their houses were demolished in the War and the new houses were not constructed in the village. He admitted that all the accused were produced before him by Khuda Baldish resident of Gawalmandi, Main Bazar, Lahore.
9. Muhammad Saleem, Constable, P.W.11 had accompanied Safdar Inayat, Inspector when he had visited the spot. In cross-examination, the witness stated that he did not remember the time of information about the occurrence was received and that a man had informed about the occurrence at the police station.
10. Mst. Bilqees Bibi P.W.12 is the complainant. She re-affirmed the narrative contained in the F.I.R. In cross-examination, she admitted that her son was having pain in the stomach for the last 2/3 days and it was on the day of occurrence that she had brought this fact to the notice of her husband.
She admitted that her husband was a driver by profession and used to run a bus as well. She admitted that after the accused left the spot, Aun All and Kaleem Raza had come there. She admitted that certain Arains living in the nearby rooms had not rushed to spot due to fear. She admitted in cross-examination that after taking medicine from the shop of Dr. Mubarik, none had met them in the way. She bdenied that the culprits were not identified because of the dark night.
11. Aun Ali P.W.13 had witnessed the recovery of blood-stained earth from the spot. In cross- examination, he admitted that he and Kaleem Raza were permanent residents of Shakargarh. He admitted that Muhammad Iqbal deceased was his real maternal uncle.
12. Waqar Hussain son of the deceased appeared as P.W.14. He stated that 2/3 days before he had gone to his paternal aunt in Shakargarh, and there he received information that his younger brother was unwell and her paternal aunt had sent Naseem Raza with him, who had met his father and mother in village Botarawal and when the motor-cycle of the deceased reached near the sugarcane field, he was fired at by Abdul Salam and Safdar Ali. In cross-examination, he stated that he did not know as to who had informed his paternal aunt about the illness of his brother. He admitted that he did not know registration number of the motor-cycle or the maker of the same on which he was proceeding to the village. He further admitted that he did not know as to who informed the Police about the incident and also stated that he could not tell as to when the police reached the spot. He admitted that the motor-cycle which was taken into possession by the police was not obtained by them, as its documents were not available. He denied the suggestion that it was stolen property and was looted by his father.
13. Naseem Raza P.W. Was given up as being unnecessary while Muhammad Younas was given up for having been won over by the accused. Safdar Inayat, Inspector P.W.15 testified about the investigation conducted by him. The rest of the evidence is of formal nature.
14. The accused in their examination under section 342, Cr.P.C., denied the prosecution case against them. Safdar Ali, in answer to question "As to why this case against him" ?, he stated:-- ' "I am nephew of my co-accused Abdul Salam. About 4/5 years before household articles of Abdul Salam were stolen away by deceased lqbal and his son Waqar. The trees owned by Abdul Salam were also cut by them. Deceased Iqbal and his son Waqar also took away about one hundred manuds of Bhoosa of Abdul Salam. Abdul Salam had filed a writ petition against Iqbal and his son.
An order was passed by the Hon'ble High Court and Superintendent of Police, Narowal was directed for the registration of the case against lqbal and Waqar Hussain. Deceased Iqbal had got a false case registered against my co-accused Abdul Salam and Abdul Rehman with the allegation of forcible Zina with Mst. Parvin. Mst. Parvin was pregnant by 8 months at the time of alleged time of Zina with her. After investigation the police found that the said case was false. It was opined by the doctor in the said case that as Mst. Parvin was pregnant by 8 months, therefore, it was not possible that four persons could subject her to Zina-bil-Jabr. The case was cancelled by Mubeen Butter, D.S.P. And he had recommended for proceedings against Parvin under section 182, P. P . C . "
' The accused also examined Naseer Ahmed and Mushtaq Hussain as D.W.2 and D.W.4. Abdul Salam and Safdar Ali themselves appeared as witnesses as D.W.1 and D.W.3 Abdul Salam stated as follows:-- ' "About 4/5 years before my household articles were stolen away by the deceased Iqbal and his son P.W. Waqar. They also get my trees and took away about one hundred maunds of Bhoosa. It was on a writ petition filed by me that an order was passed by the Hon'ble High Court for the registration of case against deceased Iqbal and his son Waqar Hussain. Deceased Iqbal also involved me, my co-accused Abdul Rehman and others in a case of Zina with the allegation of Zinabil-Jabr with his wife Mst. Parvin. The said case was found to be false and ultimately cancelled by Mubeen Buttar, D.S.P., C.I.A. It was opined by the doctor that as Mst. Parvin was pregnant by 8 months, therefore, she could not be subjected Zina by four persons. It was recommended by the D.S.P. That Mst. Parvin be proceeded against for committing offence under section 182, P.P.C."
15. Learned trial Court believed the prosecution case to the extent of Safdar Ali and Salam and convicted and sentenced them as noted above. Their co-accused Muhammad Sadiq and Abdul Rehman were acquitted from the case. Safdar Ali and Abdul Salam filed Criminal Application No,180 of 1994, while the matter has been referred vide M.R. No,80 of 1994 by learned trial Court for confirmation of sentence of death imposed on the convicts.
16. Learned counsel for the appellants, State and the complainant have been heard today.
17. Learned counsel for the appellants contended that it was admitted on record that the appellants had left the village after their houses were destroyed in the War of 1971 and had shifted to Lahore and they had no abode in the village and that it was admitted by P.W.8 as well that the appellants/accused were not seen in the village/area before the occurrence or after the occurrence. It was argued that Muhammad Iqbal had gone to see Dr. Mubarik Ali without any prior planning and it was a chance visit and nobody would have known before that Muhammad Iqbal was to visit village Botarawal and the appellants who were neither residents of the locality nor were found there could not have known about the visit of Muhammad Iqbal to Dr. Mubarik Ali or his return therefrom to his village and there was absolutely no possibility for them to have waylaid the deceased and have attacked him. It was argued that the occurrence took place during dark hours of the night and nobody had seen as to who had fired at the deceased. It was argued that the place of occurrence was surrounded by tall crops or reeds and assailants even if known to the complainant could not have been identifiable by her at the relevant time. It was argued that Waqar P.W., son of the deceased, had admitted that he did not know as to who had gone to the police station to lodge the report and similarly Muhammad Saleem, Constable who had accompanied Safdar Inayat, Inspector to the spot had admitted that some man had given information to the police and thereafter, the police went to the spot and this shows that the case was not registered at the instance of Mst. Bilqees Bibi shortly after the occurrence but preliminary investigation preceded registration of the case. It was admitted that there was no worth while evidence on record which connected the accused with the commission of offence and they were implicated in the case on account of pre-existing enmity between the parties. Learned counsel for the State supported the impugned judgment. Learned counsel for the complainant submitted that Mst. Bilquees Bibi was injured in the incident and solitary statement of the eye-witness was sufficient to sustain conviction. Reference in this regard was made to Muhammad Bakhsh alias Muhammadi. v. The State (1985 SCM R 72), Fazal Diyan. v. The State (1973 SCM R 473), Muhammad Iqbal v. The State (1984 SCM R 1184), Ranjha and another v. The State. (1968 SCM R 933).
18. According to the prosecution Mst. Bilqees Bibi alongwith her husband Muhammad Iqbal had gone to village Botarawal to see one Dr. Mubarik Ali for the treatment of their minor son and they were returning therefrom when present appellants who were sitting in a paddy crop field, fired at them at about 10-30 p.m. The occurrence was allegedly witnessed by Mst. Bilqees Bibi and Waqar Hussain P.W.14, son of the deceased. Mst. Bilqees Bibi stated that she informed her husband after dinner about the ailment of their minor son and then they proceeded to village Botarawal. This was not a pre-planned visit nor Muhammad Iqbal deceased used to visit village Botarawal daily as a matter of routine or returned therefrom at or about the time at which the occurrence had taken place. None else was informed about the visit of Muhammad Iqbal to the said doctor and in these circumstances it would not have been possible for the accused to have known in advance that Muhammad Iqbal was to visit village Botarawal. It has also not been shown that Muhammad Iqbal was bound to follow the passage at which the occurrence took place and no other passage existed to connect village Botarawal with village Zamboori to which the deceased belonged. The appellants in this case originally belonged to village of Muhammad Iqbal, but their houses were ravaged during the previous War and they had shifted to Lahore and resided at a place near a Matches Factory in Lahore. This address is given in the F.I.R. Itself. The appellants admittedly did not reside in the village during the days of occurrence and no evidence has been led at trial that they were seen prowling around the village on the day of occurrence. Arshad Hussain P.W.8, Inspector/S.H.O. Admitted in clear terms that the presence of the accused in the village prior to the occurrence or after the occurrence was not established. The accused did not reside in the locality and in these circumstances, it could not be assumed that they had knowledge about Muhammad Iqbal visiting the village Botarawal or that they had expected him to return to his village at the relevant time. Unless it was shown that the appellants had seen Muhammad Iqbal going to village Botarawal, it would be unsafe to infer that they were in a position to have waylaid or embushed the deceased.
19. The place of occurrence is stated to be a Katcha path or embankment of field. On one side of the place of occurrence, sugarcane crop stood while on the other side reeds grew and there were Sheesham trees as well. In a darknight it would not have been possible for any person to have seen as to who the assailant was who allegedly had fired at the deceased in a paddy crop from a point beyond the reeds and Sheesham trees. Mst. Bilqees Bibi claimed that she was accompanying her husband alongwith her minor son. She received an injury on inner side of ankle who after initial management did not appear before the Medical Officer who could not give any final opinion about the injury received by her but even if for arguments' sake, her presence at the time of occurrence at the relevant time is admitted, she in the ambient circumstances of the case would not have been in a position to have seen as to who the assailant was. Her testimony in this regard is not at all supported by the attending circumstances of the case.
20. The defence claimed that the case was registered after preliminary investigation. Waqar Hussain, who admittedly was a chance witness and had no occasion to be present at the spot admitted that he did not know as to who had informed the police about the incident. Likewise Muhammad Saleem, Constable had also testified that some man had reported the matter to police. Apparently, Mst. Bilqees Bibi was not the person who had gone to police station at 2.-00 p.m.
And had reported the matter to police. The contentions raised on behalf of the defence apparently are well-founded, that investigation preceded registration of case.
21. The Medical Officer after post-mortem examination recovered a bullet from the medial sternum and had handed over the same to the police. The sealed bottle was opened in Court and metal strip was found instead of fragment of any bullet. The police recovered as many as 21 spent cartridges from the spot which were rusted and obviously could not have been fired shortly before the recovery, though it was alleged that the same were recorded within half an hour of the police reaching to the spot. It was not established with certainty as to what type of weapon was employed during the incident or as to what type of crime empties were recovered from the spot. In recovery memo. Exh.P.B., 21 cartridges were shown to have been recovered from a field belonging to Muhammad Latif. The word 'cartridge' is employed to denote .12 bore cartridge whereas the deceased allegedly died of bullet wound. Even this aspect of the matter as to which sort of weapon was used during the occurrence has not been established by the prosecution. The cartridges were recovered from one spot and apparently were fired by one assailant. The number of injuries on the person of the deceased is not large and only three of them were declared by the Medical Officer to have been caused by fire-arm bullet. The recovery of a large number of cartridges from the spot shows a clear case of padding by the police.
22. The enmity between the parties is admitted on record. The occurrence in this case took place at night and criminal case apparently was registered after preliminary investigation. The convicts/appellants in the case were implicated on account of suspicion alone. The evidence on record is too inadequate and insufficient to bring home the guilt to present appellants. The contention of the learned counsel for the complainant that solitary statement of an eye-witness was sufficient to record conviction in any criminal case, theoretically has basis, but that proposition is not applicable to the case in hand as the statement of Mst. Bilqees is not supported by any other physical evidence on record or the I attending circumstances.
23. The appeal filed by the convicts consequently is allowed. They are acquitted of the charge and shall be released from custody if not wanted in any criminal case.
24. Murder reference is answered in the negative.