' This judgment will dispose of Criminal Appeal No,142/J of 2000 which was filed from jail by the appellant against the judgment, dated 28-4-2000 passed by learned Additional Sessions Judge, Lahore, whereby he convicted the appellant under section 302, P.P.C. And sentenced him to undergo life imprisonment with the direction to pay Rs,50,000 as compensation or in default six months' S.I. Benefit of section 382-B, Cr. P.C.
2. The occurrence as per statement of Mst. Rashida Bibi complainant, took place on 26-12-1998 at 1-40 a.m. (night) in Street No,12 House No,3, Nonarian, 1 k.m. Towards east from Police Station Shera Kot, Lahore.
3. The facts in brief, as narrated by the complainant, are that her son Muhammad Ashraf deceased has set up a shop under the name of Al-Khair Estate Agency in a portion of the house. The husband of the complainant has also a son namely Naseer Ahmad alias Agha from his first wife, who resided at village Nazar Labana, District Sheikhupura and a daughter who is residing at Kasur. The son of the complainant Muhammad Ashraf and daughter of complainant namely Mst. Khurshid Bibi are residing with the complainant whereas her other daughters namely Mst. Parveen and Nasreen are residing in their houses. On 26-12-1998 Naseer-ud-Din alias Bawa the step-son of the complainant came to the house of the complainant and Mst. Parveen daughter of the complainant came to her house. The complainant family was busy in conversation upto 11-00 p.m. Naseer Ahmad alias Bawa was demanding the house from Muhammad Ashraf. The complainant family went to sleep whereas Naseer Ahmad alias Bawa remained talking with each other. At about 12-30 a.m. (midnight) suddenly the complainant, her husband and her daughters Mst. Khurshid Bibi and Parveen awoke up after hearing noise of fire and saw Muhammad Ashraf was lying in the shop Al- Khair Estate Agency with his face downward smeared with blood and Naseer Ahmad alias Bawa was running outside the house after opening the outer door. The motive behind the occurrence is that Naseer Ahmad alias Bawa wanted to transfer the house in his name from Muhammad Ashraf but Muhammad Ashraf has purchased the same through his own sources and has refused to hand over the same due to this reason Naseer Ahmad alias Bawa accused has murdered Muhammad Ashraf. Matter was reported to the police. The investigation of the case was handed over to the S.-I.
Ghazanfar Ali P.W.13 who after completing necessary formalities visited the spot, prepared the site plan of Naqsha Mazroobi Exh.P.I., site plan of place of occurrence Exh.P.F. He took into possession blood-stained cotton vide memo. Exh.P.G. Pistol Exh.P.I. With four live bullets i.e, Exh.P.I./1-4 was also taken into possession by him.
4. The prosecution in order to prove its case has produced as many as 13 witnesses including Investigating Officers, Doctor and eye-witnesses. Learned D.D.A. Tendered in evidence report of Forensic Science Laboratory, Exh.P.L., report of Chemical Examiner Exh.P.M. And report of Serologist Exh.P.N. And closed the prosecution. Thereafter, statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded not guilty. Two D.Ws. Also produced in his defence.
5. Learned counsel for the appellant submits that it was not an occurrence which took place on 8- 12-1998 but in fact it was an unwitnessed occurrence that the complainant the step-mother of the appellant died before the trial and the father of the appellant also died during the trial. Two eyewitnesses namely Khurshid Bibi and Mst. Parveen Bibi P.Ws.4 and 5 respectively had not witnessed the occurrence, specially Mst. Parveen Bibi was a married woman and she was not present at the time of occurrence as she was residing with her husband, that both the eye- witnesses had made material improvement in order to make in line the case with the other prosecution evidence, that the deceased was wealthy person, he owned 3/4 houses. He was property dealer and he had married 8/10 women while sisters of the deceased had also many marriages. The reason for the false implication of the appellant according to the learned counsel was that appellant should not inherit the property of his brother and father. Learned counsel further submits that during the investigation Zahid Zaman Khan P.W.8 who conducted the investigation, found the appellant innocent and he also prepared the discharge report which was also verified by Muhammad Ishaq Sindhu, D.S.P. Of the area. Learned counsel submits that appellant had also produced two D.Ws. Who had stated, though, they were not present at the time of occurrence, but the appellant was present at his residence situated in District Sheikhupura. D.W.1 had stated that the accused/appellant had offered Traveeh Prayer with him. Learned counsel submits that as far as recovery is concerned, same is doubtful because none of the P.Ws. Had stated before the trial Court or in their statements recorded under section 164, Cr.P.C. That after the occurrence the appellant had thrown the pistol at the spot, that P.W.2 witness of recovery was also declared hostile. Learned counsel submits that as far as P.W.1 is concerned, his evidence cannot be accepted without a pinch of salt for the reason because he had stated that the complainant at 1- 30 (midnight) in cold season came to his house and informed him about the occurrence. Learned counsel submits that parcel of pistol and crime-empties before sending to the Forensic Science Laboratory remained with police for some days. Learned counsel submits that prosecution has miserably failed to prove its case against the appellant.
6. On the other hand learned State Counsel submits that the appellant is the only accused in this case, though he was step-brother of prosecution eyewitnesses but they were not inimical towards him. He supports the judgment of the trial Court.
7. I have heard the learned counsel for the parties. In the instant case, the appellant is step-brother of both the eye-witnesses including the deceased. Mst. Rashida Bibi the complainant in this case died before the trial and the same is position of Ghulam Rasool father of the appellant. Mst.
Parveen Bibi P.W.5 is real sister of Muhammad Ashraf deceased. She was not resident of place of occurrence as she was a married woman though she was daughter of the complainant. Her presence in midnight at the place of occurrence is highly doubtful. She should have been present in the house of her husband. No reason has been given by her that why she was present in the house of her parents. As far as Mst. Khurshid Bibi P.W. Is concerned, she alongwith Mst. Parveen Bibi was sleeping. They came to the place of occurrence after hearing the noise of fire shot and saw the appellant while he was running. One should keep in mind that it was month of December.. It has also come on record that in those days atmosphere was very foggy. It was difficult to recognize the appellant in that cold and foggy night. None of the eyewitnesses has stated before the police or before the learned trial Court that he had also seen and found the pistol or crime-empty alongwith live bullets at the spot after running away of the appellant from the spot. The version of the appellant that he was falsely implicated in this case for the reason that deceased Muhammad Ashraf had owned 3/4 houses and other movable and immovable property and in order to deprive the appellant from same, the prosecution witnesses have deposed falsely. Two Investigating Officers, namely, Zahid Zaman Khan, S.-I. And Ghazanfar Ali, Inspector had admitted that according to their investigation the appellant was found innocent. Zahid Zaman Khan, S.-I. Who conducted the investigation from 29-2-1998 to 19-4-1998 found the appellant innocent, he prepared a discharge report and produced the same before the Magistrate but the Magistrate did not accept the same. The appellant had also produced two D.Ws. In order to prove his innocence in the instant case, namely, Noor Din son of Kalu and Muhammad Ramzan son of Muhammad Ibraheem. They both belong to Sheikhupura from where the appellant hails. They had stated that at the time of occurrence appellant was present in his house. D.Ws. Have stated that appellant had also offered Traveeh prayer with them on the night of occurrence. This evidence of these two D.Ws. Coupled with the evidence of the Investigating Officer, though not binding on the Court, creates the dents in the prosecution case. It does not appeal to my mind that both the eye-witnesses who were step- sisters of the appellant have seen the appellant committing the murder of the deceased. As far as post-mortem examination is concerned that cannot be taken into consideration for corroborating the ocular account because it only shows that the appellant received fire-arm injury. P.W.2 the witness of recovery of pistol and crime-empties was declared hostile. P.W.1 Muhammad Yousaf was not the resident of the place near to the place from where the recovery was effected. There is clear violation of section 103, P.P.C. Recoveries cannot be believed in this case. The reasons given by the appellant for his false involvement in his reply to question No,8- in his statement recorded under section 342, Cr.P.C. Are reproduced below:-- ' "In fact the complainant was my step-mother, my father was a patient of paralysis. The deceased has committed suicide due to his internal mental disturbance with his previous wives which were about 8 to 10. Due to this tension, the deceased has committed suicide and in order to hide true fact, the step-mother (complainant) involved myself in this case. Several persons appeared in my favour and all Police Agencies found myself innocent."
8. The reason given above seems to be plausible. No person can be convicted on the capital charge unless the evidence produced by the prosecution is of a very strong nature and comes from an unimpeachable source. The prosecution in this case is shaky and not trustworthy. Having heard the learned counsel for the parties and going through the evidence recorded by the learned trial Court, I am of the opinion that the prosecution has failed to establish his case against the appellant beyond any shadow of doubt. In this view of the matter, I accept this appeal and set aside the conviction and sentence awarded to the appellant. He shall be released forthwith if he is not required in any other case.