' ASIF SAEED KHAN KHOSA, J.--- Wazir Ahmad appellant was convicted by the learned Additional Sessions Judge, Muzaffargarh vide judgment, dated 31-3-1994 for an offence under section 302(b), P.P.C. And was sentenced to death as Tazir. He was also ordered to pay a sum of Rs,20,000 to the heirs of Faiz Bakhsh deceased as compensation under section 544-A, Cr.P.C. Which was recoverable as arrears of land revenue. He was also convicted for an offence under section 201, P.P.C. And was sentenced to R.I. For two years and to pay a fine of Rs,5,000 or in default thereof to undergo further R.I. For six months. Through the same judgment Wazir Ahmad's co-accused Khadim Hussain was acquitted by the learned trial Court. Wazir Ahmad convict has challenged his convictions and sentences before this Court through Criminal Appeal No,60 of 1994. We have heard the convict's appeal along with Murder Reference No,95 of 1994 seeking confirmation of the sentence of death passed against Wazir Ahmad. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Allah Wasaya complainant, an agriculturist by profession, was a resident of Mauza Purhar Gharbi whereas his brother Faiz Bakhsh used to drive a taxi-car of one Azhar Habib and used to operate the same from the Kot Adu stand. The complainant's brother Faiz Bakhsh developed illicit relations with one Mst. Naziran and he used to visit her frequently at night. About 15/16 days prior to the registration of the F.I.R. Wazir Ahmad appellant, who was previously known to the complainant, came to the complainant and told him that the complainant's brother Faiz Bakhsh was dishonouring Wazir Ahmad's beloved Mst. Naziran and that he should be restrained from doing that otherwise the consequences would be bad for him. Wazir Ahmad appellant told the complainant that the said Mst. Naziran was carrying on illicit relations with Wazir Ahmad appellant for the last 15/16 years and that the appellant could not tolerate Faiz Bakhsh's relations with her. Statedly Allah Wasaya complainant forbade his brother Faiz Bakhsh from that activity. According to the F.I.R. The complainant's brother Faiz Bakhsh took some passengers from Kot Adu to Multan on the taxi-car on 4-2-1992 but did not return. Upon the complainant's inquiries from other drivers he was told that Faiz Bakhsh had not returned from Multan. On 12-2-1992 a landlord named Maqsood Ahmad Gurmani told Azhar Habib that his taxi- car had been parked outside his Dera by Faiz Bakhsh driver nine days ago but he had not returned to take the same till then. Upon this information received by the complainant from the said Azhar Habib the complainant went to the Dera of the said Maqsood Ahmad Gurmani with others and identified the taxi-car driven by his brother Faiz Bakhsh. The house of Wazir Ahmad appellant was situated close to the Dera of Maqsood Ahmad Gurmani. The complainant strongly suspected that Wazir Ahmad appellant might have abducted and murdered the complainant's brother Faiz Bakhsh. The complainant then went to Police Station Sinanwan, District Muzaffargarh and lodged F.I.R. No,4 (Exh.P.C.) which was recorded by Abdul Latif, S.-I./S.H.O. (P.W.12) at 3-15 p.m. On 12-2-1992 for an offence under section 364, P.P.C.
3. After recording the statement of the complainant Abdul Latif, S.-I./S.H.O. (P.W.12) took up the investigation of this case, went to the Dera of Maqsood Ahmad Gurmani and took the taxi-car and its registration book into possession vide memo. Exh.P.G. On 13-2-1992 Khadim Hussain, Lumbardar and Ghulam Farid made statements before him in writing upon which he added offence under sections 302 and 201, P.P.C. To the F.I.R. On the same day he arrested Wazir Ahmad appellant on whose pointing out the place of occurrence was located and blood-stained earth was collected therefrom vide memo. Exh.P.H. Still later on that day the dead body of Faiz Bakhsh was recovered from Nala Sardar on pointing out of the appellant. The Investigating Officer then prepared inquest report (Exh.P.K.) and injury statement (Exh.P.L.) in respect of Faiz Bakhsh deceased and sent his dead body to the mortuary for autopsy.
4. Post-mortem examination (Exh.P.D.) of the dead body of Faiz Bakhsh was conducted by Dr. Abdul Jabar (P.W.7) on 13-2-1992. He found 8 injuries on the dead body out of which injuries Nos.1 to 7 had been caused by fire-arm whereas injury No,8 had been caused by a blunt weapon. In the opinion of the doctor injuries Nos.1 to 7 had collectively injured the vital organs of the body like heart, lung and liver and the said injuries were sufficient to cause death in the ordinary course of nature. The approximate time elapsing between the injuries and death was stated by the doctor to be instantaneous and that between the death and post-mortem examination was opined by the doctor to be within two weeks.
5. After the post-mortem examination of Faiz Bakhsh deceased Abdul Latif, S.-I./S.H.O. (P.W.12), the Investigating Officer, secured the last-worn clothes of the deceased vide memo. Exh.P.B. On 16-2- 1992 he also took into possession the blood-stained cloth of the appellant vide memo. Exh.P.J. Then the Investigating Officer recovered a gun and its licence from the appellant and secured-the same vide memo. Exh.P.I. Khadim Hussain accused was arrested by him on 18-2-1992. He also got a formal site plan (Exh.P.A.) of the place of occurrence prepared from a Patwari. On 27-2-1992 he recorded the statement of Mst. Naziran under section 161, Cr.P.C. And then got her statement recorded under section 164, Cr.P.C. On 28-2-1992. Thereafter, he fulfilled the other formalities, completed his investigation and submitted the challan in respect of this case.
6. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 302 and 201/34, P.P.C. Against the appellant and his co-accused Khadim Hussain to which they pleaded not guilty and claimed a trial.
7. During the trial the prosecution produced as many as 12 witnesses in support of its case against the accused persons. Mst. Naziran (P.W.9) furnished the ocular account of the incident. The motive set up by the prosecution was stated by Allah Wasaya complainant (P.W.5), Mst. Naziran (P.W.9) and Qadir Bakhsh (P.W.11). An extra judicial confession made by the appellant was proved by Ghulam Farid (P.W.6). Qadir Bakhsh (P.W.11) deposed about the recoveries effected from and on the pointing out of the appellant. Dr. Abdul Jabbar (P.W.7) provided the medical evidence. Abdul Latif, S.-I. (P.W.12) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
8. In their statements recorded under section 342, Cr.P.C. Both the accused persons denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They maintained that they had been falsely implicated in this case on account of enmity and ill-will. While answering a question as to why he had been involved in this case and as to why the witnesses had deposed against him Wazir Ahmad appellant had stated that:-- "My land and the land of Mst. Naziran's father P.W.9 irrigated from the same Nala which is Nala Sardar and the disputes for irrigation of land are always arises between us. Due to this reason I was falsely involved.
' The witnesses were relative of the deceased. They were inimical towards me and due to that reason they have deposed against me."
' However, both the accused persons opted not to make any statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in their defense.
9. At the conclusion of the trial, as mentioned above, the learned Additional Sessions Judge, Muzaffargarh convicted and sentenced the appellant as noticed above while the appellant's co- accused was acquitted. Hence, the present appeal and the connected murder reference before this Court.
10. We have heard the learned counsel for the appellant as well as the learned counsel representing the State and have also gone through the record of this case with their assistance.
11. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case beyond reasonable doubt. He has maintained that the statement made by the solitary eye-witness did not inspire confidence; the alleged extra-judicial confession was bogus; the motive set up by the prosecution had not been satisfactorily proved; the recoveries allegedly affected from the appellant and at his pointing out were sham; and the medical evidence contradicted the ocular account. As against that the learned counsel representing the State has argued that the prosecution had successfully proved the guilt of the appellant to the hilt as the witnesses produced by the prosecution had made consistent statements which had found ample corroboration and support from the other evidence produced by the prosecution.
12. 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. We have noticed that the F.I.R. In this case had been lodged by Faiz Bakhsh deceased's brother Allah Wasaya complainant (P.W.5) after nine days of the deceased's disappearance and that too when nobody was sure whether the deceased was dead or alive. In the F.I.R. Only a suspicion was expressed against the appellant on account of the alleged motive.
Maqsood Ahmad Gurmani (P.W.8), who had allegedly pointed out the abandoned taxi-car for the first time and upon whose information the first clues to the deceased's murder had been found, had not supported the prosecution's case and was declared hostile. Khadim Hussain Shajrah, Lumberdar, at whose house and before whom the appellant had allegedly made an extra-judicial confession, also did not support the prosecution's case and he was given up by the prosecution as having been won-over. Ghulam Farid (P.W.6), the other witness of the alleged extra-judicial confession, had claimed to be present at the house of the abovementioned Khadim Hussain Shajrah when the appellant had made the confession before Khadim Hussain Shajrah. When Khadim Hussain Shajrah disowned the story of the appellant's visit to his house and making of the confession then the very foundation of Ghulam Farid (P.W.6)'s claim stood knocked out. Even otherwise the house of Khadim Hussain Shajrah was situated 11 kilometers away from the house of Ghulam Farid (P.W.6) and the latter had initially disclosed no reason for his visit to the former's house. He had stated that his visit to that house was for some personal work. During his cross- examination he had divulged that he had to take some land on lease from Khadim Hussain Shajrah and it was in that connection that he had gone to his house. But later on he went on to admit that during that visit to Khadim Hussain Shajrah's house he had not even talked to him about taking of any land on lease. It was also admitted by him that neither before nor after the said visit he had ever taken any lease of Khadim Hussain Shajrah's land. We have, thus, found this witness to go wholly unreliable.
13. Adverting now to Mst. Naziran (P.W.9) the solitary eye-witness of the occurrence produced by the prosecution, we are in absolute agreement that her statement was totally unworthy of any credit on a capital charge. To start with we have noticed that she had admitted of maintaining illicit relations with the appellant as well as the deceased. She had also admitted that she used to receive money from both of them in order to meet her routine expenses. Her claim that her father as well as her father-in-law, living in her house, never objected to her scandalous activities is nothing but incredible. She had maintained that despite having witnessed the murder of the appellant she had not told anybody about it for the next eight days. She had also stated that she had informed the police about the occurrence after 6/7 days of the incident. Both these statements were factually incorrect. The Investigating Officer (P.W.12) had stated that Mst. Naziran had made her first statement before the police on 27-2-1992 (15 days after registration of the F.I.R.
And 24 days after disappearance of the deceased). We have noticed that the manner in which Mst.
Naziran (P.W.9) came forward as an eye-witness was also highly suspicious. It had been stated by the Investigating Officer (P.W.12) that Mst. Naziran and her father had gone missing after the murder of the deceased. It was specifically suggested by the defence that in fact the murder had been committed by Mst. Naziran and her father and under the pressure and blackmailing of the local Police Mst. Naziran had volunteered to falsely implicate the present appellant. Those suggestions do not appear to us to be without any foundation. Mst. Naziran's disappearance from her house soon after the occurrence, her belated statement before the Police, the Police getting her statement recorded under section 164, Cr.P.C. Deficient observance of the necessary legal formalities in recording of her statement under section 164, Cr.P.C. And the appellant talking about a background of bitterness and hostility between him and Mst. Naziran's father are only some of the factors which we have found to be relevant in this regard.
14. We have also found that the medical evidence produced by the prosecution was in conflict with the ocular account furnished by Mst. Naziran (P.W.9). In her statements recorded under sections 161 and 164, Cr.P.C. She had maintained that the solitary fire received by the deceased had hit him at his back but the doctor (P.W.7) conducting the post-mortem examination of the deceased had found the entry wounds on the dead body to be on its front. Apart from that Mst. Naziran had claimed that the shot was fired at the deceased from a distance of 40 Karams yet the post- mortem examination of the dead body revealed presence of blackening and charring on the wounds signifying very close range of fire. Thus, the medical evidence has provided us an additional ground to seriously doubt the credibility of Mst. Naziran's claim of having witnessed the occurrence in question.
15. It was alleged by the prosecution that the appellant had, during the investigation of this case, led to recovery of the dead body.Of the deceased from Nala Sardar. According to the Investigating Officer (P.W.12) that Nala was full of water for many days before the said recovery. But we have found that the doctor (P.W.7) had not found the dead body in a condition which could show its remaining in water before its discovery or recovery. This contradiction between the medical evidence and the rest of the prosecution's case causes another serious dent to the latter.
16. The recovery of his licensed gun from the appellant could not provide any corroboration to the ocular evidence in the present case as no crime-empty had been recovered from the place of occurrence for its possible matching with the said gun so as to connect the same with the offence ID in question.
17. We are also unconvinced by the evidence of motive led by the prosecution as the same had remained sketchy and vague. Even otherwise motive only provides corroboration where there is some other evidence available which requires strengthening by corroboration. In the present case all other pieces of evidence led by the prosecution have already been found by us to be totally unreliable. Surely conviction of an accused person cannot be based upon the evidence of motive alone.
18. For what has been observed above we are convinced that the prosecution had failed to prove its case against the appellant beyond reasonable F doubt. This appeal is, therefore, allowed and the appellant is hereby acquitted. He shall be released from jail forthwith, if not required in any other case.
' Death sentence not confirmed.