' MUHAMMAD NAWAZ ABBASI, J.---The appellant namely Ulfat Hussain son of Muhammad Hussain was tried for the charge under section 302, P.P.C. In a murder case registered against him at Police Station Saddar Bairooni, Rawalpindi by the learned Additional Sessions Judge, Rawalpindi. The learned trial Judge having found the appellant guilty of the charge on conviction sentenced him to death through judgment, dated 25-2-1997 and sent this Murder Reference No,50 of 1997 under section 374, Cr.P.C. To this Court for confirmation of death sentence, whereas the appellant has challenged his conviction and sentence through Criminal Appeal No,31 of 1997. The murder reference and criminal appeal are proposed to be disposed of together through this single judgment.
2. The case was registered against the appellant through F.I.R. Exh. P.E. At Police Station Saddar, Bairooni at 10-45 p.m. On 21-3-1994 on the basis of the statement Exh.P.D made by Qazi Safeer Ali P.W.6 which contained the following facts:-- "The complainant being resident of village Jorian in company of Qazi Mazram Hussain son of Qazi Meherban his co-villager along with his pet dog having gone towards Easter side of the village Lalazar was present near Kassi Chanian at Magrab time when a taxi being driven by Khalid Amin who was employed as driver in G.T.S. Rawalpindi, arrived there with Ultaf Hussain son of Muhammad Hussain, Manzoor Hussain son of Karim Haider residents of same village and they all went towards Kassi Chanian while the complainant and Mazram Hussain remained standing at some distance of height from there. Soon after Matloob Hussain son of Alam Shah while coming from the village side when reached in Kassi Chanin, Ulfat Hussain suddenly taking out pistol from his Dub fired a shot at Matloob Hussain which hit on his chest and Ulfat Hussain then fired two successive shots on Matloob Hussain who turned to run away from the spot and sustained injuries on back of his hip and left leg. Matloob Hussain as a result of injuries sustained by him breathed his lost at the spot and Ultaf Hussain escaped from the place of occurrence. Qazi Mazram Hussain and Pervaiz Akhtar witnessed the occurrence."
3. The motive behind the occurrence as narrated was that in the year 1992 Niaz Hussain nephew of appellant was murdered by Matloob Hussain deceased who along with Muhammad Rafique and Muhammad Gulzar was challaned to face the trial and later the parties compromised but Ulfat Hussain nursing grudge murdered Matloob Hussain.
4. The statement of the complainant was recorded by Muhammad Nawaz S.-I. P.W.9 when he was on patrol duty at 9-30 p.m. And after sending the same to the police station for registration of a case himself proceeded to the place of occurrence. He prepared injury statement Exh.P.H. And inquest report Exh.P.I. Of the deceased at the spot and dispatched the dead body to the mortuary for post-mortem examination. The S.-I during the spot inspection took into possession blood- stained earth vide recovery memo. Exh.P.B. And eleven empty cartridges Exhs.P.1 to 11 through a separate memo. The taxi car bearing No,4760-IDA was taken into possession through memo.
Exh.P.C. He took into possession the last-worn clothes of the deceased through memo. Exh.P.K. And arrested the accused on 28-3-1994. The Sub-Inspector on the disclosure of accused on 4-4-1994 recovered pistol Exh.P.F. From the house of the accused at his instance and took the same into possession through memo. Exh.P.F. He prepared separate complaint under section 13 of the West Pakistan Arms Ordinance (XX) 1965. He having got prepared the site plan of the place of occurrence completed the investigation and submitted the challan against the accused.
5. Dr. Zian-ul-Abideen, Medical Officer P.W.10 conducted the post-mortem examination of the deceased at 10-30 a.m. On 22-3-1994 and observed the following injuries on the person of deceased.
(1) A lacerated wound of entry of fire- arm 2 c.m. x 1-1/2 c.m. Which was present on the doeskin of the right wrist. Blackening was seen around the wound.
(2) A lacerated wound of exit of fire-arm 1 c.m. x 1 c.m present on the lateral aspect of the right wrist wound was through and through with injury No,1 clinically there was fracture of radius and ulna.
(3) A lacerated wound of entry of fire-arm 1 c.m. x 1 c.m. On the back of the chest near right axilla about 8 c.m. x super lateral to the lower end of the right scapula. Blackening was seen on the edges of the wound.
(4) A lacerated wound of exit of fire- arm 1 c.m. x 1/2 c.m. Present on the front of chest in mid line about 4 c.m. Inferior to sterna notch. It was the exit of injury No,3.
(5) A lacerated wound of exit of fire- arm 1 c.m. x 1/2 c.m. On the front of chest near left axilla about 11 c.m. Inferior to the top of left shoulder. It was also the exit of injury No,3.
(6) A burning laceration of fire-arm 2 c.m. x 1 c.m. x skin deep present over the right hip.
(7) A burning laceration of fire-arm 1 c.m. x 1/2 c.m. x skin deep present over the back of right hip about 2 c.m. Medial to the injury No,6.
(8) A burning laceration of fire-arm 2-1/2 c.m. x 1 c.m. x skin deep and the back of left upper thigh near the hip.
(9) A burning laceration of fire-arm 1 c.m. x 1/2 c.m. Present at the back of mid 1/3 of the left thigh.
' The doctor found the stomach containing digest food and observed the time of death about 10 to 18 hours before the postmortem examination. The chemical examiner through his report Exh.P.M.
Found the earth taken by the S.-I. From the spot stained with human blood and similarly an Expert in Forensic Science Laboratory through report Exh.P.N found that crime empties marked C.1 to C.11 recovered from the spot were fired from the pistol Exh.P.F. Recovered from the accused. The recovery of blood-stained earth and crime empties P.1 to P.11 from the spot by Muhammad Nawaz S.-I. Was witnessed by Arshad Ali P.W.2 whereas the recovery of pistol Exh.P.F. Was witnessed by Dilwaheed Butt P.W.7. Muhammad Iqbal, A.S.-I. P.W.4 recorded the formal F.I.R. On the basis of statement Exh.P.D. Of Pervaiz Akhtar whereas Zulfiqar Ali, S.-I. P.W.5 being Mohrar of the police station kept sealed parcel containing blood-stained earth and empty cartridges in the Mall Khana and subsequently, sent the same through a constable for onward transmission to the office of Chemical Examiner and the Forensic Science Laboratory. Sajjad Ahmed Patwari P.W.8 on the pointation of the P.Ws. And the direction of the Investigating Officer prepared site plan Exhs.P.G. And P.G./1. Pervaiz Akhtar P.W.3 and Safeer Ali P.W.6 have furnished eye-witnesses account of the occurrence whereas Muhammad Nawaz, S.-I. Being Investigating Officer of the case was examined as P.W.9. Intizar Ali, C.W.1 record keeper of D.H.Q. Hospital, Rawalpindi, was called as court-witness who produced the carbon copy of the post-mortem report Exh.P.L./2 of Matloob Hussain and proved that the same was prepared by Dr. Zain-ul-Abideen.
6. Ulfat Hussain accused in his statement under section 342, Cr.P.C. While denying the charge pleaded innocence.
7. Learned counsel for the appellant contended as under:--
(a) That the occurrence having taken place in dark in a Kassi which was a deserted place was not seen by the witness and that it was incorrectly shown that report of the occurrence was lodged within 2 to 4 hours whereas the statement of Pervaiz Akhtar was recorded on the next day in the hospital on the basis of which the case was registered, which is evident from his admission and that he signed the statement Exh.P.D. In the next morning at 9-30 a.m. In the hospital.
(b) That according to the prosecution the occurrence took place at Maghrabwela i,e, between 6 to 6-30 p.m. At a distance of 400/500 yards from the village but as per evidence of the eye-witnesses it came to the knowledge of the villagers through Manzoor Hussain (given up P.W.) at 9-30 p.m.
And that if the occurrence actually had taken place in the presence of witnesses and Manzoor Hussain (given up P.W.) as stated, the delay in conveying this information till 9-30 p.m. And not reporting the matter to the police station immediately would show that neither the occurrence took place at the time given in the F.I.R. Nor the witnesses were aware of the fateful incident.
(c) that according to the prosecution story the motive behind the occurrence was murder of Niaz Hussain sister's son of Ulfat Hussain whereas Pervaiz Akhtar in cross-examination admitted that Ulfat Hussain had no sister and thus the motive set up by the prosecution was not proved and actually Manzoor Hussain (given up P.W.) being closely related to said Riaz Hussain played mischief.
(d) that the empties recovered from the spot were not mentioned in column No,23 of the inquest report and similarly Zulfiqar Ali, S.-I. P.W.5, the Moharrir Police Station has not mentioned receipt of parcel in the relevant register and the recovery of pistol, the weapon of offence being in violation of section 103, Cr.P.C. Was of no consequence as Dilwaheed P.W.7 was resident of Adra Tech Bhatta, which is situated at distance of 10/12 k.m. From the place of recovery of pistol and despite the fact that a number of persons resident of the place of recovery gathered at the spot but none was associated in the recovery proceedings.
(e) that although the empties were dispatched before the recovery of pistol but the recovery of pistol itself in the attending circumstance being not confidence inspiring the positive report of Forensic Science Laboratory was of no help to the prosecution.
(f) that Parvaiz Akhtar P.W.3 is brother-in-law and Safeer Ali is Khalazad of the deceased and as per their evidence the alleged occurrence took place in the Kassi Chanian which is in depression and their claim that they witnessed the occurrence while standing at some height at a Tibba is negated by the fact that no such place was shown in the site plan and it was not possible for the witnesses to see the occurrence in the Kassi.
(g) that the medical evidence is in conflict with the ocular account as no entry wound was traced on the chest but according to the witnesses the shot was fired at the deceased from front and, therefore, this contradiction would suggest that the witnesses without knowing the distinction between entry or exit wound made statements on the basis of injuries on the person of the deceased.
(h) that according to the prosecution story the appellant in company of Manzoor Hussain and Khalid Amin reached at the spot whereas the witnesses while, strolling in the area were present at a reasonable distance from the place of occurrence and thus, keeping in view the distance of the P.Ws. From the accused and the time of occurrence, it was difficult for them to identify the assailants at Maghrab time. Learned counsel with reference to the above noted discrepancies and contradiction in the statements of the witnesses contended that while taking into consideration, the circumstances of the case in totality, the correctness of the prosecution story would be highly doubtful and the appellant was entitled to, be acquitted.
8. Conversely learned counsel for the State argued that it was not yet complete dark at the time of occurrence and the complainant who was present near the place of occurrence With his pet dog was a natural witness who could see the occurrence without any difficulty. The presence of Safeer Ali P.W.6, complainant of the case, along with Mazram Hussain P.W. Was beyond doubt as they being resident of the village had gone to the open site of the village for walk. They and Pervaiz Akhtar were independently present near the place of occurrence and all the eyewitnesses have corroborated to each other on each material point.
9. We have heard the learned counsel for the parties and perused the record with their assistance.
The eye-witnesses have ominously stated that the occurrence had taken place at Maghrab prayers time in a Kassi. Safeer Ali P.W.6 stated that the accused fired at the deceased from a distance of 25 feet whereas he was at a distance of 26 paces from the place of occurrence and that nearest house of the village from that place was at a distance of 500/600 feet. Pervaiz Akhtar P.W.3 claimed that he was present at Ucha Tibba at a distance of 160 feet from the place of occurrence and that shots were fired by the accused at the deceased from a distance of 20/30 feet and that two shots were hit at the chest of the deceased whereas number of shots were hit on his back, buttock and legs. He stated that Kassi where the accused confronted the deceased was in depression and that the village of the deceased was at a distance of 400/500 yards from the place of occurrence. He stated that the dead body was taken at 12-00 midnight from the place of occurrence to the Civil Hospital and admitted that Manzoor Hussain having gone to village at 9-00 p.m. Informed that Matloob Hussain deceased was killed by Ulfat Hussain when the relatives and the villagers reached at the spot. The eye-witnesses have claimed that the deceased sustained injuries both from the front and back side whereas in the post mortem report, there were nine injuries on the person a the deceased out of which three injuries on right wrist and two on the front of chest were exit wounds and the remaining injuries with blackening and burning were found on back side of body of the deceased. The stomach was containing digested food and the doctor P.W.10 had given the probable time of death and post-mortem within 10 to 18 hours and while conducting post-mortem at 10-30 on 22-3-1994 has not ruled out, the possibility of occurring the death on 9-00 p.m. On 21-3-1994. The digested food in the stomach would indicate the time of occurrence much after the Maghreb as either the stomach would be empty or contain undigested food at Maghrib time, but digested food would negate the time of occurrence. This is also noticeable, that according to the witness, the deceased was fired from a distance of 20/25 feet but the injuries were found with blackening and burning which would show that the assailant was at a close distance to the deceased. Thus, in this view of the matter, a doubt is created about the actual time of taking place of the occurrence. Muhammad Nawaz S.I. P.W.9 received information of the occurrence at about 9-30 p.m. While on patrol duty and has admitted that he had left column 23 of inquest report blank and did not mention in the inquest report about the recovery of empties from the place of occurrence at a distance of 6/7 feet from the dead body and a Suzuki from a distance of 100 yards from the spot. The distance of the place of occurrence was about 9 k.m. From the Police Station and the S.-I. Recorded that statement of the complainant near a Biscuit factory, which was at a distance of one kilo meter from the place of occurrence, and there being no evidence that no conveyance was available to approach the police station, the withholding of lodging the report till 9-30 p.m. And thus, arrival of at the spot would create a reasonable suspicion about the time of occurrence which probably took place much later in the complete dark and none else except Manzoor Hussain who conveyed information in the village was aware of it. The motive behind the occurrence as given by the prosecution was the murder of one Niaz Hussain, sister's son of Ulfat Hussain appellant, but Pervaiz Akhtar P.W.3 admitted that Ulfat Hussain had no sister therefore it was not established beyond doubt that what was the enmity of Ulfat Hussain with Matloob Hussain. The prosecution story is that Manzoor Hussain who was in the company of the accused at the time of occurrence brought information of the incident to the village at 9-00 p.m. At a distance of 400/500 yards from the place of occurrence but said Manzoor Hussain was neither produced as an eye-witness nor he was made as accused and, therefore, it could safely be held that the occurrence did not take place at the time given by the prosecution and the incident was un-witnessed, the information of which was purposely withheld till 9-30 p.m. This is not understandable that if the occurrence was witnessed by the P.Ws., then why they did not inform the relatives and the co-villagers of the deceased and why the matter was not immediately reported to the police. The report was lodged to a police official at a distance of one kilo meter from the place of occurrence when he was on patrol duty at 9-30 p.m. And the villagers came to know about the occurrence at 9-00 p.m. Thus, it is clear that the witnesses on receipt of information reported the matter to the police official who was on patrol duty and this case was registered at the police station. The deceased was fired in the Kassi in depression and the eye-witnesses claimed that they were present near the Koari at some distance from the deceased by chance.
Their presence at a distance of 400/500 yards from their village was not unnatural but it was unusual and further admittedly the area being uneven, they would not conveniently witness the occurrence as claimed by them from such a distance at Maghrabvela in Kassi in the depression in the light of conflict of medical evidence and ocular account as pointed out earlier, even if the witnesses were available in the area of occurrence, it can be visualized that they were not in a position to correctly observe the actual manner of taking place the occurrence except that a group of 3-4 persons reached in the Kassi in a taxi who were not identifiable in the evening dark. The witnesses would probably attract to the place of occurrence after it happened and could not possibly witness the same in the manner they claimed, therefore, the identification of the assailants was also doubtful in the dark. The pistol allegedly used as weapon of offence was recovered from a place at a distance of about nine kilometers from the place of occurrence and none from that area was associated in the recovery proceedings. The recovery witness namely Dilwaheed P.W.7 was closely related to the deceased who belonged to another village and has not been able to identify the pistol P.9 as the same which was recovered in his presence, therefore, the positive result of crime empties recovered from the place of occurrence and dispatched to the Forensic Science Laboratory before recovery of pistol would not helpful to the prosecution and further the evidence of recovery has only corroborative value and if the eye-witnesses an account is not believable, the corroboratory evidence would be of no use to the prosecution. The evaluation of the evidence in its entirety would reveal that the prosecution has not been able to prove the motive against Ulfat Hussain appellant beyond doubt. There is no explanation that why lodging of report was delayed by the eye-witnesses till 9-30 p.m. And further why the information regarding the incident was not conveyed to the relatives of the deceased in the village till the lodging of the report by the complainant and why Manzoor Hussain who as per prosecution case was present at the spot alongwith the accused was not produced as a witness. The medical evidence also did not support the ocular account as the doctor has not ruled out the possibility of taking place of the occurrence at 9-00 p.m. And that stomach contained digested food. Further according to the medical evidence, the deceased was hit from the backside whereas according to the eye- witnesses, he was also fired from front within their sight who were present at some distance from the place of occurrence in Kassi in depression at maghrab-wala, and thus, in the attending circumstances, the possibility of misidentification would not be ruled out. The presence of the eye- witnesses is also not beyond doubt, as they did not usually go for a walk to that side. The injuries sustained by the deceased were found with blackening and burning which would show that the assailants fired from the close distance and Manzoor Hussain who accompanied the accused was cited as a witness but was not produced was a most natural witness and his non-production was not meaningless. The circumstances under which the occurrence took place have made the prosecution story cloudy and the evidence being shaky is not confidence inspiring to sustain the conviction. We, therefore, while giving benefit of doubt to the appellant allow this appeal and set aside the conviction and sentence awarded to him by-the trial Court and acquit him of the charge.
Murder reference is accordingly answered in negative. The death sentence is not confirmed.