' Muhammad Ashraf appellant was tried by a learned Additional Sessions Judge at Lahore for the murder of his wife Mst. Shabana, aged about 26/27 years. After conclusion of the trial, the learned Judge having found him guilty, convicted him under section 308, P.P.C. And punished him with rigorous imprisonment for 14 years as Tazir and payment of Diyat of Rs,2,25,000 to the legal heirs of the deceased by virtue of his judgment, dated 28-6-1997. He was further ordered to be confined in jail till the payment of Diyat amount to the legal heirs of the deceased. Through this appeal, he has called into question the conviction and sentence passed against him by the trial Court.
2. The relevant facts are that on 27-3-1994 Bashir Ahmad complainant (P.W.7), father of the deceased, made his statement (Exh.P.F.) before Muhammad Nawaz, S.-I. (P.W.10) at 6-30 p.m. At Chowk Shawala, Shalimar, who despatched the same to the police station for formal registration of a case. On receipt of the complainant (Exh.P.F.), Muhammad Siddique, S.-I. (P.W.6) drew up formal F.I.R. (Exh.P.F./1) correctly at 6-40 p.m. On the same day. So, by lodging case F.I.R. No, 58, under section 302, P.P.C. At Police Station Shalimar, Lahore, Bashir Ahmad complainant (P.W.7) had sei the State functionaries into motion against the appellant.
'According to the version of the complainant, about 8/9 years back, he married his daughter Mst.
Shabana with the appellant and they started living quite happily. Later on, all of a sudden relations in-between the two became strained and they were greatly perturbed. Two days prior to Eid-ulFitr, Allah Wasaya, appellant's father, paid a visit to the complainant in his house in the presence of Abdul Razzaq and Muhammad Iqbal P.Ws. And asked him to bring back Mst. Shabana, lest the appellant may kill her. Allah Wasaya, on being asked, told that the appellant had become addict by falling into bad company and was all out to contract a second marriage in spite of the fact that he and his wife had dissuaded him from so doing and that Mst. Shabana had come to know of his ignorable design and she too had refrained him from so doing. It was further told by him that he was not paying any heed to their advice, and had openly pronounced that he would enter into second marriage even if he had to kill Mst. Shabana and his children. On the day of occurrence, the complainant and his wife were pondering over this matter, when a message from father of the appellant was received. Upon receipt of message, the complainant alongwith his wife Mst. Naziran Bibi, his son-in-law Muhammad Iqbal (P.W.8) and Abdul Razzaq (not produced) left for the house of the appellant to bring back Mst. Shabana. They reached at the outer gate of the house and heard commotions being raised by Mst. Shabana. It was 5-15 p.m. Then. The appellant armed with a pistol was pulling her inside the room and they too heard the report of fire. The complainant and the prosecution witnesses went inside the house and found the appellant armed with istol going outside. They found Mst. Shabana in an injured condition. The injury was located in front of her left chest and she had succumbed to the same. The complainant and the witnesses chased the accused, but failed to apprehend him.
' Registration of case preceded commencement of investigation into the crime in question.
Muhammad Nawaz, S.-I. (P.W.10) immediately left for the spot and during spot inspection collected blood-stained cotton swa bs and took the same into possession vide memo. Exh.P.B., duly attested by Muhammad Javed (P.W.3) and Muhammad Iqbal son of Fazal Muhammad P.W. (not produced).
He also prepared through site-plan of the place of occurrence (Exh.P.J.). He examined dead body of the deceased and drew up inquest report (Exh.P.H.) and delivered the dead body to Muhammad Yaqoob, Constable No,4257 (P.W.1) and Allah Rakha, Constable No,5303 (not produced). They escorted the dead body to the mortuary and as per request of the police, Dr. Muhammad Akmal Shaheen (P.W.4) performed autopsy upon the deceased. He prepared post-mortem report (Exh.P.D.), and pictorial diagram showing location of injuries (Exhs.P.D./1 and P.D./2), duly signed by him. After post-mortem examination, the doctor delivered shirt (Exh.P.l), Shalwar (Exh.P.2.), Dopatta (Exh.P.3) and underwear (Exh.P.4) last worn clothes of the deceased and a sealed phial containing pellets to the constables. Muhammad Yaqoob Constable (P.W.1) produced these articles before Muhammad Nawaz, S. -I. (P. W.10), who took them into possession vide memo. Exh. P.C., duly attested by the witnesses on 28-3-1994. The dead body at the time of autopsy was identified by Muhammad Javed (P.W.3). Upon post-moprtem examination, the doctor observed the following injury on her person:-- "(1) A circular lacerated wound with irregular inverted margins 2.5 c.m. x 2.5 c.m. x going deep on the front of left side of upper part of the chest 8.5 c.m. From anterior mid-line, 2.5 c.m. Above and at 12'0 clock position from left nipple 8 c.m. Below anterior axillary-fold. The wounded area showed vital re-action. The margins of wound were nibbled."
' ON EXPLORATION: ' The missile entered into the chest cavity after damaging skin, sub cutaneous tissues of left anterior chest wall and fracturing left fourth and fifth ribs anteriorly, the bone pieces were missing at fracture sites. The following structures were damaged, pleura was damaged on left side, left lung was perforated at multiple sites and bone pieces were found in lung tissues, left dome of diaphragm was damaged and small and large intestines were found thrushed into left chest cavity, heart was damaged al its apex and the left ventricle was badly damaged. The chest cavity contained about 0.5 litres of blood and blood clots, 25-metallic pieces and a plastic was recovered from left chest cavity which was sealed, signed and handed over to the police with sample of the seal, 8th left rib was fractured posteriorly, left lobe of liver was damaged, spleen was damaged at upper pole, stomach was damaged at greater curvature. All other viscerea were found healthy. The dead body was received at K.E.M.C. On 27-3-1994 at 9-25 p.m.
' According to the opinion of doctor, abovesaid injury was ante-mortem and was caused by fire- arm. The cause of death in this case was injury to vital organs of chest (heart, lung and their vessels) and abdomen (liver, spleen and stomach) leading to haemorrhage, shock and death, which was sufficient to cause death in ordinary course of nature. Probable time which elapsed between injury and death was immediate and between death and post-mortem was 12-00 to 24- 00 hours.
3. Younis Ali Shah, Draftsman (P.W.1) prepared site-plans in duplicate of the place of occurrence, which are Exhs.P.A. And P.A./1. The same were handed over by him to the Investigating Officer. The appellant was allegedly arrested on 29-3-1994 by Muhammad Nawaz, S.-I. (P.W.10) and it was on 1- 4-1994, that .12 bore gun (Exh.P.5) live cartridges (Exh.P.6/1-15), a bandoliar (Exh.97) and a licence were recovered at his instance. A memo. To that effect was prepared by the Investigating Officer, which is Exh.P.G., duly attested by Muhammad Ashraf (P.W.9) and Muhammad Ishaq (not produced). The last worn clothes of the deceased, sealed phial, blood-stained cotton swabs and gun (Exh.P.5) were delivered by him to Muhammad Yaqoob, Muharrir Head Constable (P.W.5) for their safe custody in the Police Station Malkhana and onward transmission to the concerned forum.
The report of Chemical Examiner was tendered in evidence by the prosecutor as Exh.P.L., and that of the Serologist and Forensic Science Laboratory as Exhs.P.M and P.N. All these reports are stated to be in positive. The Investigating Officer had also recorded supplementary statement of the complainant within 15 to 20 minutes immediately after reaching the spot. He recorded statements of all the relevant witnesses on the relevant days. After finalization of investigation, the appellant was challaned to face trial.
4. After completing various formalities, charge under section 302, P.P.C. Was framed against the appellant. He pleaded not guilty to the charge, vehemently controverted the accusations levelled against him, and claimed to be tried. The trial Court thus, called upon the prosecution to adduce evidence on its behalf to bring home guilt of the accused. The prosecution ventured to produce as many as ten witnesses to establish the charge. The most prominent witnesses are Bashir Ahmad and Muhammad Iqbal (P.Ws.7 and 8), father and brother-in-law of the deceased respectively. Both are residents of Baghatpura, Shad Bagh, Lahore, Mst. Naziran Bibi, mother of the deceased was not produced.
5. Bashir Ahmad (P.W.7) whilst under examination reiterated the contents of F.I.R. By bringing about certain material modifications on the most material facts of the case narrated by him in the F.I.R.
Muhammad Iqbal (P.W.8) also made statement supporting the prosecution version, Muhammad Nawaz (P.W.10) has described in minutest possible details different steps taken by him during the course of investigation. Rest of the evidence is not of much importance.
6. After close of the prosecution evidence, the trial Court put all the incriminating evidence to the accused as envisaged by the relevant provisions of section 342, Cr.P.C. He adopted plea of alibi in his innocence in the matter. His version is reproduced in extenso:-- "I have been falsely involved in this case by the complainant who got offended after seeing the dead body of his daughter in my house. They lost all sympathies and relationship with me and held me responsible for her death which occurred due to suicide. Actually I was engaged with Mst. Goshi prior to my marriage with the deceased. A photograph of Mst. Goshi with me as found by my deceased wife in a box lying under the clothes and thereafter she became mentally disturbed and always suspected me of having illicit relations with that lady. I tried to satisfy my deceased wife that I had no relations with Mst. Goshi and the photograph is an old matter but she became mentally disturbed. On the day of occurrence I went to my duty as usual leaving my wife and children in the house. At about 5-00 p.m. My brother and Mahallandars came to my factory and informed me about the commission of suicide by my wife. I immediately rushed to my house in the company of my colleagues and I saw her lying dead and my licensed gun was lying near her hand and body. I immediately informed my father-in-law by sending my brother and a neighbourer. The complainant and his wife Mst. Naziran Bibi came there and they started weeping and crying and held me responsible for her death. I satisfied them but they remained adamant. The police came at the spot, took my licensed gun from near the dead body. My bandoliers with live cartridges were removed from my residential house and the same were planted upon me subsequently after I was detained in the police station for 2/3 days.
' The I.O./Mr. Muhammad Nawaz Bajwa, S.-I. Was demanding from me Rs,20,000 but I refused to pay the same and informed him that my wife had lost life and why I should pay the said amount to him.
Thereafter, he fabricated this case and made my inlaws as false eye-witnesses in this case. I took the same version before the police and also produced number of my colleagues before the police that I was on my duty at the time of alleged occurrence but no action was taken and I have been pushed to the Court to face the trial. I had no enmity with my wife. She was the mother of my two daughters and one son and we were leading a happy life but by the discovery of the photograph of Mst. Goshi with me my family life has been ruined. Muhammad Iqbal P.W. Who is my brother-in- law, had borrowed Rs,60,000 from me for running a business but subsequently refused to return the same and our relations became strained with each other, so he motivated my father-in-law to involve me in this case in order to usurp my amount by keeping me behind the bars. I have been falsely involved in this case."
He also produced Walayat Ali (D.W.1), Muhammad Shafiq (D.W.2), Muhammad Iqbal Butt (D.W.3) and Muhammad Riaz (D.W.4) as his defence witnesses.
7. After fullest evaluation of the facts and circumstances of the case learned Trial Judge convicted and sentenced the appellant in the manner already stated.
8. Learned counsel for the appellant has raised following points for deeper appreciation of evidence by this Court:--
(i) That Bashir Ahmad (P.W.1) is father of the deceased, whereas Muhammad Iqbal (P.W .2) is his son-in-law. They have made highly contradictory statements not tallying with each other and they also exacted various improvements in their statements, which renders them unreliable.
(ii) That in the first information report, the appellant was stated to be carrying a pistol and made use of the same during the course of incident, but upon discovery of pellets from the body of the deceased by the doctor, the complainant introduced a .12 bore gun and started alleging that the shot was made by the discharge of a gun in order to bring his statement in consonance with the medical evidence.
(iii) That the supplementary statement of the complainant was a patent fabrication on the part of the Investigating Officer.
(iv) That recovery of gun from the accused in the manner described by the Investigating Officer is a blatant life. The recovery of gun is of no avail to the prosecution.
(v) That the appellant was neither present in his house at the relevant time of occurrence nor committed the offence alleged against him.
' He adopted plea of alibi at the very outset and that was supported by all the relevant defence evidence and other circumstances. The deceased was sick of life and a frustrated lady, whose conduct was of that of an abnormal woman because she entertained a strong belief that the appellant will marry Mst. Goshi. She had committed suicide.
9. Conversely, learned State counsel argued that name of the appellant was mentioned in the F.I.R.
And the specific role played by him is also described therein. The statements of prosecution witnesses are confidence inspiring and explicit reliance can be placed upon their testimony. In the end, she argued that the appellant stood rightly convicted by the trial Court and no exception can be taken to that.
10. I have heard respective arguments of both the learned counsel and perused the record carefully. After giving my anxious consideration to the facts and circumstances of this case, I come to the conclusion that presence of both the eye-witnesses is extremely doubtful. There could be no doubt in this modern age with regard to the identity of a pistol and gun. The pistol is a very small size weapon, whereas a .12 bore gun is an extraordinary large size weapon. The complainant firstly took up the stand that he saw the appellant carrying a pistol in his hand and making a shot with the same striking on the chest of the deceased. The same fact finds mention in the brief facts of the case forming part of the inquest report. The contents of post-mortem report reveal that this injury could not have been possibly caused by the discharge of a pistol because pellets were recovered from within the wound during the process of dissection. Just to bring the ocular account in line with the medical evidence, this dishonest and deliberate improvement was exacted by the Investigating Officer and the eye-witnesses. According to the complainant, he had made an application to a high ranking officer in the Secretariat, who made over the same to Senior Superintendent of Police, Lahore, who in turn sent the same to the Superintendent of Police Cantt.
This application was then sent to the police station and it was after five days from the date of occurrence that his statement was again recorded. He was duly confronted with the contents of the F.I.R. There is absolutely no mention of gun having been used by the appellant in the F.I.R. In addition to this, the F.I.R. Also appears to be a fabricated piece of document containing a mass of lies. Muhammad Nawaz, S.-I. (P.W.10) stated that the complaint (Exh.P.F.) was recorded at Shawala Chowk by him, whereas the complainant has stated that he got his statement recorded to the Moharrar of the police station at the police station. He denied that the statement was read over to him. The stand taken by the complainant is awfully contradicted by the statement of the Investigating Officer. He further stated that the dead body was taken to the police station and from there after preparation of documents; it was shifted to the mortuary for post-mortem examination.
Muhammad Iqbal (P.W.8) negates this fact. He also stated that while leaving from the spot the appellant had made 3/4 more shots in the air aimlessly. Conversely to this, the complainant remains contented with one shot only. It may also be seen that the complainant also introduced Muhammad Riaz, and Abdul Ghafoor, brother and brother-in-law of the appellant respectively and Mst. Naziran sister of the appellant as accused persons in this case. They were not challenged even.
The complainant had also produced photograph of the appellant with a girl Mst. Goshi daughter of Muhammad Yousaf Ali (Exh.D.A.). The conduct of both the witnesses in the given situation of the case does not appear to be natural. They made no efforts to catch hold of the appellant at the relevant time of occurrence or to frustrate his attempt to fire at her. They performed no overt act towards rescuing her, when she was being pulled into the room by the appellant. Had they been present at the relevant time of occurrence, then they must have indulged into saving the deceased. They are not in a position to give even the names of those persons, who gathered at the spot after the occurrence, which also does not appeal to reason and logic. On reaching the house of the complainant, they should have started negotiating with the appellant with regard to the burning issue of the day i,e, love affairs-cum-marriage of the appellant with Mst. Goshi. It was a matter of sole concern for them and strange is to know that they do not talk a word about it to the appellant, which is just unbelievable.
11. The statement of Muhammad Iqbal (P.W.8) shows that he alongwith his father-in-law, Bashir Ahmad (P.W.7) and one Abdul Razzaq had gone to the house of the appellant. They heard noise of quarrel when they were present just at the outer door of the house of the appellant. They saw Mst.
Shabana being pulled into the room, but they did not budge an inch from their places. According to him, the appellant left the place of occurrence while firing in the air. He is guilty of making mutually contradictory and inconsistent statement and exacting deliberate improvements. This witness has admitted that he had received a sum of Rs,60,000 from the appellant for business.
There existed animosity in-between the appellant and this witness and there had been a quarrel in the past even. He also admits that he had gone with his parents-in-law to the Deputy Inspector- General of Police (Punjab), Lahore with an application involving Abdul Ghafoor and others as accused in this case. He made statement before the police on 18-4-1994 against them. He is definitely a witness, who possesses and animosity against the appellant. His presence at the spot is also doubtful.
12. Muhammad Ashraf (P.W.9) has stated that the gun (Exh.P.5) was got recovered by the appellant on the day of occurrence and not on 1-4-1994. This statement of the witness is contradicted by the statement of the Investigating Officer, as according to him, the recovery was effected on 1-4-1994.
This glaring discrepancy in no way can be resolved in favour of the prosecution. The recovery evidence smacks of padding and as such is discarded.
13. The story of the recording supplementary statement of the complainant on the day of occurrence is also duly shattered by the statement of the complainant himself. Even otherwise, it has no evidentiary value. The prosecution evidence is wholly unreliable and it would be dangerous to act upon the testimony of such-like witnesses in the criminal administration of justice. The appellant took a consistent stand right from the beginning to the last. He also produced evidence in defence. The medical evidence shows that it was a close range shot blowing off the underlying bones, so much so that the broken pieces of bones and plastic cardwads entered into thorax cavity, which is a characteristic of suicidal wound. The defence version appears to be reasonably plausible, more especially keeping in view the statement of mind of the deceased, which is reflected from the statement of the appellant as well as the complainant (P.W.7). There is hardly a woman in the world, who can tolerate a rival lady standing in her way and most probably this led to her death.
14. For the foregoing reasons, I am inclined to extend benefit of doubt to the appellant, which is accordingly granted. By accepting this appeal, I set aside the conviction and sentence passed against the appellant and acquit him of the charge. He is directed to be released forthwith if not required in any other casae.