' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,204 of 1996, Criminal Appeal No,655 of 1996 filed by Sarfraz Ahmad, Ashiq Hussain and Ijaz Ahmad appellants, who were convicted under section 302(b)/34, P.P.C., by learned Additional Sessions Judge, Sialkot vide his judgment, dated 22-7-1996. Sarfraz Ahmad appellant was sentenced to death with a compensation of Rs,20,000 to be paid to the legal heirs of the deceased Bashir and in default six months R.I. While Ashiq Hussain and Ijaz appellants were sentenced to life imprisonment with a compensation of Rs,10,000 each and in default six months R.I. Benefit of section 382-B, Cr.P.C., was extended to Ashiq Hussain and Ijaz Ahmad appellants.
2. It may be noted here, that Mukhtar Ahmad and Muhammad Ali co-accused of the appellants were acquitted of the charge. Muhammad Siddique complainant had also filed Criminal Revision No,321 of 1996 for enhancement of amount of compensation and also for enhancement of sentence against Ashiq Hussain and ljaz Ahmad and also for the enhancement of amount of compensation from Rs,20,000 to Rs, two lacs, so far as, Sarfraz Ahmad appellant, who was sentenced to death is concerned. This criminal revision shall also be disposed of through this single judgment.
3. Occurrence in this case took place at 8-30 p.m. On 19-2-1994 within the revenue estate of Mauza Waryo at a distance of 9-1/2 k.Ms. Away from Police Station, Saddar, District Sialkot while the matter was reported to the police by Muhammad Siddique P.W.2 at 2-00 mid-night on 20-2-1994 and the formal F.I.R. Exh.P.D. Was recorded by Muhammad Saeed, P.W.13 on the same day.
4. Brief facts of the case according to the F.I.R., Exh.P.D: were that about 2/3 months prior to the occurrence, Mst. Rehana Kausar niece of the complainant was abducted by Sarfraz Ahmad etc., and he along with his brother Muhammad Rafique and Muhammad Bashir, Sarfraz Ahmad son of Piran Ditta and Muhammad Rafique son of Jilal Din on 19-2-1994 went to see the M.P.A. At village Waryo. The said M.P.A. Did not meet them and they returned back. At about 8-30 p.m. When they reached on a katcha path from village Waryo to village Valaney all of a sudden, Muhammad Ali empty handed, Ashiq Hussain armed with Sota, Sarfraz Ahmad armed with dagger, Ijaz Ahmed armed with sota and Mukhtar Ahmad armed with rifle, all sons of Alaf Din, who were already sitting in shelter of electricity poll, upon seeing them, Muhammad Ali raised lalkara to catch hold of Bashir and to teach him a lesson for pursuing the case and to kill him. Upon this, Sarfraz Ahmad inflicted two dagger blows upon Bashir, one landed on his back and the other on his right shoulder. Bashir Ahmad fell down and Ashiq Hussain inflicted sota blow which landed on the right side of head of Bashir. The second sota blow of Ijaz hit the skull of Bashir. In the meanwhile, Mukhtar continued firing in the air with his rifle. The complainant and his companion did not go forward out of fear. The complainant and his companions identified the accused in the moon-light. Muhammad Bashir succumbed to his injuries at the spot.
5. Motive behind the occurrence was that there was previous litigation between the parties.
6. After registration of the formal F.I.R., Muhammad Saeed P.W.13 went to the place of occurrence, prepared the site plan Exh.P.K. Injury statement Exh.P.L., inquest report Exh.P.M and took into possession blood-stained earth from the spot vide memo. Exh.P.C. The empty P.4 was taken into possession vide memo. Exh.P.B. After postmortem examination on the death body of the deceased blood stained shirt PA, Tehband P.2 and Bunian P.3 were taken into possession vide memo. Exh.P.E.
Thereafter, Muhammad Manzoor S.I./S.H.O., P.W.12, arrested Mukhtar and Ijaz on 19-3-1994 while Muhammad Ali and Ashiq accused were arrested on 27-3-1994 and on 1-4-1994 Sarfraz accused was arrested. Ijaz while in police custody on 3-4-1994 led to the recovery Of sota P.6 which was taken into possession vide memo. Exh. P.E. On 9-4-1994 Ashiq Hussain accused got recovered sota P..5 and the same was taken into possession vide memo. Exh.P.D. SimilarlX, Sarfraz accused got recovered "Churri" P.7 which was seized vide memo. Exh.P.F. After completion of the investigation all the accused were challenged to face the trial.
7. Prosecution in order to prove its case produced 13 witnesses in all, thereafter, learned A.D.A. By tendering in evidence report of the Chemical Examiner Exh.P.N and that of the Serologist Exh.P.O., closed the prosecution case, then the statements of the appellants were recorded along with acquitted co-accused under section 342, Cr.P.C., in which they claimed false implication and enmity because of marriage of Rehana Kausar with Sarfraz Hussain. Appellants also produced one D.W. Namely Farzana Kausar in their defence. After conclusion of the trial appellants were convicted and sentenced as stated above.
8. After going the prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C., and of D.W.1, learned counsel for the appellants submits that it was an un-witnessed occurrence, that the occurrence took place on 19-2-1994 at 8-30 p.m. When there was complete dark and severe cold but the clothes of deceased was putting on and taken into possession were shirt, Tehband and Bunian, which according to learned counsel falsifies the prosecution story.
'Further submits that story of the prosecution that. Muhammad Siddique complainant along with his real brothers and one Sarfraz P.W.3 went to the house of M.P.A., he did not meet them and, thereafter, when they were returning back the occurrence took place, does not appeal to sense because the whole family was not required to see the M.P.A. Adds that in fact, Sarfraz, appellant had married Rehana Kausar daughter of Muhammad Rafique. Two cases were registered against Sarfraz and his family under the Hadood Ordinance for the alleged abduction of Rehana Kausar, but both were cancelled and the complainant party was looking for an opportunity to falsely implicate the appellants and their other family members and after the murder of Muhammad Bashir deceased they got this opportunity. Further adds that recoveries of sotas and Dagger from the appellants is of no avail to the prosecution as none of them were found to be stained with human blood. He lastly submits that it was a case of no evidence and the appellants are entitled to acquittal.
9. On the other hand, learned counsel for the' State assisted by learned counsel for the complainant submits that the eyewitnesses had no enmity with the appellants and specially Sarfraz Ahfnad P.W.3, who had no relationship either with the deceased or with the complainant.
Further submits that prosecution had proved its case against the appellants beyond any shadow of doubt, through ocular account corroborated by motive and the medical evidence.
10. We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. In the instant case, motive behind the present occurrence was that Mst. Rehana Kausar was abducted by appellants and the deceased was pursuing the case and the appellants in order to teach him a lesson caused the death of the deceased. Mst. Rehana Kausar was/ daughter of Muhammad Rafique (not produced) who had lodged the case of abduction of her daughter. He was also accompanying the deceased. If there was any motive to kill any person from the side of the complainant then appellants should have killed Muhammad Rafique P.W. (not produced), who was first informant of the abduction case. It may also be noted here, that the case lodged by Muhammad Rafique was cancelled. Thereafter, one Mst. Rasoolan also got a case registered against Sarfraz etc., for the abduction of Rehana Kausar from her house, that case was also cancelled. Mst. Rehana Kausar made a statement under section 164, Cr.P.C., stating therein that she had married Sarfraz Ahmad, one of the appellant, according to her own free-will. In this behalf, appellants have also produced the statement of Mst. Rehana Kausar recorded under section 164, Cr.P.C., which is Exh.D.A. The complainant party was very much annoyed with the appellants as two criminal cases got registered by them were cancelled and they were looking for an opportunity to implicate the appellants, inasmuch as they involved four real brothers and also their real uncle. Allegation against Mukhtar Ahmad acquitted co-accused was that he while armed with a rifle resorted to aerial firing but empty recovered from the spot P.4 was empty of .12 bore gun. So, motive in our considered view was with the complainant party. As far as, eye-witnesses are concerned, the story given in the F.I.R., and also before the learned Trial Court was that the complainant along with Muhammad Rafique, Muhammad Bashir, Sarfraz Ahmad and Muhammad Rafique son of Jilal Din all went to meet local M.P.A. In village Waryo, who did not meet them and while they were returning back at about 8-30 p.m. They were way aided by the appellants and their acquitted co-accused. First of all we would like to state that how the appellants came to know that the complainant party had gone to meet M.P.A. Of the area and secondly we do not think it just and probable that to see an M.P.A. Five persons were required including the deceased. Muhammad Siddique P.W. Is real brother of the deceased while Sarfraz P.W.3, is not resident of place of occurrence Muhammad Rafique, P.W. During the cross- examination stated that after the occurrence they remained at the spot for 1/2 hours while Sarfraz P.W. Had stated that after the occurrence they remained at the spot for about two hours.
Occurrence took place, according to prosecution, at 4-30 p.m. And the matter was reported to the police at two mid night that is, 5-1/2 hours after the occurrence while the Police Station was at a distance of 9-1/2 k.m. It was month. Of February, the District Sialicot is at the boarder of Jammu and Kashmir. It were days of severe cold. The clothes which the deceased was putting on were shirt, Bunian and Tehband. Had the deceased accompanied the complainant party including the complainant and the P.Ws. He must have worn sweeter, coat, waist-coat or some chaddar, but there was none. This also casts the doubt upon the veracity of the prosecution case.
11. The post-mortem examination in this case was conducted on 20-2-1994 at 1-30 p.m. According to the doctor time between death and the post-mortem was 24 hours which do not coincide with the prosecution story because the occurrence had taken place at 8-30 p.m. On 19-2-1994. Even according to the statement of Nazar Hussain P.W.1, he took the dead body of the deceased to mortuary for post-mortem examination and he stated before the Trial Court in cross-examination that he along with another constable reached hospital at about 7/8-00 a.m. And the post-mortem was conducted at 8/9/10-00 a.m. On 20-2-1994 while the doctor P.W.10 stated that post-mortem was conducted at 1-30 p.m.
12. We have also gone through the brief facts of the inquest report Exh.P.M. Story of the prosecution was that the complainant went to the police station after occurrence and lodged the F.I.R. Exh.P.D.
And then the police came to spot, prepared injury statement and inquest report. If one goes through the brief facts of the inquest report Exh.P.M., no number of the F.I.R., is given. Had the case been registered earlier, there was no hindrance in the way of Investigating Officer to have mentioned the F.I.R. Number. So, in our view, F.I.R., was lodged after due deliberation and consultation.
13. No person from the nearby place of occurrence has been cited or produced as P.W. In our view, the witnesses were not present at the spot and when they came to know about the murder of the deceased, they after deliberation and consultation implicated the appellants.
14. As far as, recoveries of weapons are concerned, Churri allegedly recovered on the potation of Sarfraz appellant was not bloodstained. Sotas recovered on the potation of Ijaz and Ashiq appellants were also not blood-stained.
15. As a result of the above discussion, we are of the considered view that prosecution has not proved the motive and the recoveries beyond any shadow of doubt. As far as, eye-witnesses are concerned, we have already held earlier that they were not present at the spot. So, while extending the benefit of doubt, we acquit all the appellants from the charge of murder of deceased Muhammad Bashir and set aside the conviction and sentence recorded against by the learned Trial Court. All the appellants are in jail. They shall be released forthwith if not required to be detained in any other case. The death sentence of Sarfraz appellant is not confirmed. Murder reference is answered in negative.
' Death sentence awarded to Sarfraz appellant is not confirmed.