' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 167 of 1996 filed by Muhammad Aslam, Mamoon alias Mamna and Mst. Sakina, appellants who were convicted and sentenced - by learned Additional. Sessions Judge, Bhalwal vide judgment dated 7-2-1996 as under: - ' Muhammad Aslam and Mamoon, appellants - Death and to pay a fine of Rs, 10,000 each under section 302/34, P.P.C. And 7 years' R.I. With a fine of Rs, 5,000 each, in default R.I. For six months under section 342/34 P.P.C.
' Mst. Sakina appellant- Imprisonment for life with a fine of Rs, 10,000 in default R.I. For one year under section 302/34, P.P.C. And 7 years' R.I. With a fine of Rs, 5,000 in default six months R.I. Under section 392/34, P.P.C.
' All three appellants named above have also filed Criminal Appeal No, 4.1/J of 1998 through jail. This appeal along with Criminal Revision No,120 of 1998 filed by the complainant for enhancement of sentence of Mst. Sakina, convict and Murder Reference No, 106 of 1996 for confirmation of death sentence or otherwise shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 5 p.m. On 8-3-1994 at a distance of 8 miles from Police Station Bhalwal, District Sargodha while the matter was reported by Liaqat Hussain at 6-10 p.m. On the same day and the formal F.I.R. Exh.P.J was recorded by Muhammad Rafique, A.S.I.
3. Briefly stated the facts of the case, are that on 8-3-1994 at about 2 p.m. Complainant Liaqat Hussain along with his maternal cousin, Ahmad Yar, was present in the house of his widow sister Mst. Imtiaz Begum. She informed them that she had to purchase clothes for children for Eid and has also to go to her nephew Zameer Hussain who was admitted' in Sadiq Hospital, Sargodha. During this, Saleem Khan, driver came there and informed Mst. Imtiaz Begum regarding turn of water upon which Mst. Imtiaz Begum gave him two currency notes of one thousand denomination each which she had wrapped in the Puloo of her Dopatta along with seven other currency notes of one thousand denomination each. She asked the driver to 'purchase the pesticides from Bhalwal for crops. At that time, Mst. Sakina who was servant of the deceased was present there. It was 'settled between them that all of them would reach in the garden at about 5 p.m. And from there they would proceed for Sargodha. In the meanwhile Mst. Sakina went away to her house and about 2 hours later Mst. Imtiaz Begum went towards her fields. It is further mentioned in the F.I.R. That as per programme, the complainant along with Ahmad Yar went towards garden at 5 p.m. On a car and when reached there, they saw that Mst. Imtiaz Begum was caught hold by Mamoon from her neck whereas Falak Sher armed with gun, Muhammad Aslam armed with a carbine and Mst. Sakina were forcibly trying to snatch something from her and Mst. Imtiaz Begum was resisting. It was further alleged by the complainant that Muhammad Aslam tired at Mst. Imtiaz Begum with carbine and the shot hit on her back who fell down on the ground. In the meanwhile, Muhammad Ashraf and Munir had also reached there and witnessed the whole occurrence. The complainant along with the witnesses stepped forward but the accused fled away from the spot after raising Lalkara.
Mst. Imtiaz Begum succumbed to her injuries at the spot. However, it transpired later on that the accused had forcibly looted Rs, 11,000 two golden rings, one wrist watch and one Identity Card from the deceased.
4. After registration of the formal F.I.R., Muhammad Rafique, A.S.I. (P.W.17) reached at the place of occurrence, prepared the injury statement Exh.P.N, inquest report Exh.P.O, took into possession the bloodstained earth vide memo. Exh.P.L, one crime empty P.15 was also recovered .From the spot and secured vide memo. Exh.P.M, then searched for the accused, got prepared the site plans, then the investigations was taken over by Naveed Anwer, Inspector (P.W.18). Muhammad Aslam was arrested by Anwer, S.I., who on 9-4-1994 led to the recovery of carbine P.2 and five cartridges P.3/1- 5 which were secured vide memo. Exh.P.F. Muhammad Aslam also got recovered two currency notes of Rs,1,000 denomination which were secured vide memo. Exh.P.G. On the same day, Mamoon and Mst. Sakina were arrested. On 22-4-1994, Mamoon got recovered currency notes, golden ring wrist watch which were also taken into possession vide memo. Exh.P.R. And after completion of the remaining formal investigation, challaned all the three accused to face the trial.
5. At the trial, prosecution in order to prove its case produced 18 witnesses in all, then the learned D.DA. Tendered in evidence report of the Chemical Examiner Exh.P.Q, report of the Serologist Exh.P.Q/1, report of the Forensic Science Laboratory Exh.P.R. And closed the prosecution evidence.
Thereafter, statements of the accused were recorded under section 342, Cr. P.C. In which they pleaded false implication.
6. Before proceeding with the matter further, it may be noted that during the pendency of this appeal, Mst. Sakina has died which statement has been verified by learned counsel for the complainant who has filed criminal revision for enhancement of her sentence. So, to his extent, both the appeals one filed through jail and other filed through counsel stand abated.
7. Learned counsel for the remaining appellants after having read the entire prosecution evidence and other material available on record submits that eye witness account in this case is doubtful, the eyewitnesses were not present at the spot, the medical evidence does not support the prosecution case, Liaqat Hussain complainant P.W.15 is real brother of the deceased while Ashraf P.W. Is his friend who is not resident of place of occurrence, Liaqat was employed in a bank at Bhalwal so he could not have been present at the time of occurrence at the spot because though the public dealing of the banks come to an end at 1-00 p.m. But the bank officials normally remain in the bank till 5 p.m. To settle the accounts, the prosecution story is improbable and unbelievable as when according to the prosecution itself Mst. Sakina, Falak Sher and Mamoon has already caught hold of Mst. Imtiaz Begum from her wrist and neck and if at the same time Muhammad Aslam appellant had fired, there was possibility of fire hitting the co-accused of Muhammad Aslam, appellant, and due to negligence or inefficiency of the defence counsel in cross-examining the P.Ws., the prosecution cannot be benefited as the prosecution has to stand on its legs and not to take benefit of any discrepancy of the defence. Further submits that admittedly the appellants were servants of the deceased and she (deceased) was living in the house alone, so it was very easy for the appellants to have murdered the deceased at any time in the house and there was no fun to chase the deceased in the fields, loot her and then to murder her in broad daylight. Adds that two real brothers of the deceased were serving D.S.Ps. In the Police Department and the F.I.R.
Was recorded after due deliberation and consultation. Further adds that Muhammad Anwar, S.I.
Has appeared as D.W.1 in defence of the appellants and he had stated that respectables of the area like MNA/MPA appeared before him to dispose in defence of Mst. Sakina and Mamoon and he found them innocent and pended their arrest. Learned counsel submits that when according to prosecution Falak Sher and Muhammad Aslam accused were armed with carbine and gun, there was no need for the other accused to grapple with the deceased. Further submits that it is not imaginable that the deceased would keep Rs, 11,000 and her Identity Card wrapped into Puloo of her Dopatta. Adds that two witnesses namely, Mirza and Allah Bukhsh were not mentioned in the F.I.R. According to the prosecution, only shot was fired by Muhammad Aslam at the spot, so there was no question of recovery of crime empty from the spot as such the recoveries are also planted.
Concluding his submissions, learned counsel for the appellants submits that the prosecution has failed to prove its case and the appellants are entitled to clean acquittal.
8. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that the appellants are named in the F.I.R. With specific roles, ocular account is corroborated by the medical evidence and that the prosecution has been successful in proving its case against the appellants to its hit.
9. ' We have heard learned counsel for the parties and have gone through the record. The appellants in the instant case are related inter se inasmuch as Muhammad Aslam Falak Sher and Mst. Ghulam Sakina (now dead) are brothers and sisters while Mamoon is brother-in-law of Muhammad Aslam, appellant. All the three appellants were the employees of the deceased who was a big landlady of the area. The question arises that if the appellants had to kill the deceased and to loot money, it was very easy for them to kill her instead of chasing and murdering her in fields in broad-daylight. The children of the deceased lady were taking education in the city and none other used to live in the house. It also does not appeal to reasons that the deceased who was a big landlady would keep Rs, 11,000 and her Identity Card in the Puloo of her Dopatta. She should have some purse with her to keep her articles. Further according to the P.Ws., when they reached in the fields, they saw that Mamoon had pressed the neck of deceased from the front but there is no such injury in the postmortem examination of the deceased. It may be mentioned here that in the site plan Exh.P.D which was prepared on the pointation of the eye-witnesses, the draftsman had given a note that the eye witnesse had told him that the accused had pressed the neck of the deceased from the right side but even on the right side of neck of the deceased, there is no injury.
There is only on abrasion which is Injury No, 5, 1 c.m. x 1 c.m. On left side of neck. This injury cannot be caused by pressing of the neck. Moreover, this injury was never mentioned by the eye-witnesses in the F.I.R. Dr. Muhammad Riaz Awan (P.W.1) who conducted the post-mortem examination on the dead body of the deceased has admitted in cross-examination that injuries 5 and 6 were result of blunt weapon and could be caused due to fall. This witness further stated that the condition of skin and hairs was normal under injuries 1 to 6 and that he did not observe the mud stains on the clothes of the deceased. The doctor also did not observe any mark on whole of the neck except the mark of abrasion on the left side of neck of the deceased.
10. The two accused were having firearms with them, so there was no necessity on their part to have a quarrel first and then to snatch the belongings from the deceased like cash amount, Identity Card, wrist watch and golden ring. A person who wants to commit a dacoity would firstly put the victim to death and then to do his job of robbery. The story given in the F.I.R. That one accused was pressing the neck of the deceased and one of the accused who was having a fire- arms was firing at the deceased, that could not exclude the possibility of the co-accused being injured due to firing. According to medical jurisprudence, sooner the distance between the person firing and the, victim becomes more, the pellets spread more wide.
11. Liaqat Hussain P.W. Is employed in bank at Bhalwal. Normally though the banking hours are up to 1 p.m. But those are for public dealing add the officials of bank keep on sitting till 5 p.m. To settle the accounts, so the presence of Liaqat Hussain, P.W. At the time of occurrence becomes doubtful.
Apart from this witness, the other witness Muhammad Ashraf was - the resident of place of occurrence and was a friend of Liaqat Hussain, complainant P.W. He had no place of abode near the place of occurrence. The conduct of both the eyewitnesses at the time and place of occurrence was unnatural. They never raised any hue and cry and never threw any stone upon the accused to save the life of the deceased. It is also important to note that two real brothers of the deceased were the D.S.Ps. In the Police Department. The F.I.R. Seems to have been recorded after due deliberation and consultation after getting the post-mortem report. This fact is verified from the signature of the doctor on the inquest report because his signatures are on the blank spaces.
The names of .The 'eye-witnesses are not mentioned in the second last column of the inquest report as identifiers of dead body. There is no mention of crime empty in column No, 23 of the inquest report. The recovery of crime empty seems to be over doing on the part of the Investigation Officer under the influence of the D.S.Ps. Who are real brothers of the deceased because according to prosecution case, only one fire was shot then how the empty fell on the ground because unless the second fire is shot after rejecting the first crime empty. There is no mention of crime empty in column No,23 of the inquest report. This also falsifies the recovery of the crime empty from the spot.
12. Prosecution has also introduced two witnesses' namely Mirza and Allah Bukhsh. The names of these two witnesses were not mentioned in the They have been alleged to be witnesses of wajtakar. Mirza (P.W.5) stated before the Court that he alongwith Allah Bukhsh saw that Falak Sher
(PO) armed with .12 bore gun, Muhammad Aslam armed with a carbine, Mamoon and Mst. Sakina came out running from the garden of Mst. Imtiaz Begum deceased, they inquired from them that why they were running but they all remained silent and did not reply, they heard at the same time some noise and they both went to that place and saw that Mst. Imtiaz Begum was lying murdered.
Malk Liaqat Hussain, Malik 'Munir Hussain, Ahmad Yar and Muhammad Ashraf were present near the dead body. They inquired from them that what had happened and they were told that Falak Sher, Muhammad Aslam, Mamoon and Mst. Sakina had committed the murder of Mst. Imtiaz Begum. When according to F.I.R: there were 4/5 witnesses present at the spot, there was no need of introducing these witnesses. This also shows over doing on the part of the Investigating Officer. It does not appeal to reason that the accused in the presence of the alleged eye-witnesses who knew them would commit the murder of the deceased in broad-daylight. Even Muhammad Anwer, Investigating Officer who appeared as D.W. 1 stated that he had found Mamoon and Mst. Ghulam Sakina appellants as innocent.
13. Learned counsel for the defence before the trial Court had put some damaging questions/suggestions of the P.Ws., which are reproduced.
' The visible defects of falsity and inconsistency in the statement of the accused persons cannot be relied upon, as furnishing proof in support of the prosecution case whose acceptance must rest on a proper appreciation of the facts and circumstances proved. The correct principle is that falsities appearing in the statements of accused persons do not bar the allowance to them of an advantage that the law permits, on the basis of facts that are found on a consideration of all the evidence and circumstances that can be accepted in the case. Reliance is placed on the case of Sadiq v. The State (PLD 1967) SC 356).
' Falak Sher appellant while replying to question No, 5 in his statement under section 342, Cr. P.C.
Stated as under: - ' I was arrested on my return from Karachi on 7-8-1996 from my native village Tasawarabad and my licenced gun P. 1 alongwith Jhola P. 2, 43 live cartridges P. 3/1-43 and my licence were recovered but gold ring P. 4 was not recovered nor it belong to me.. I was not carrying the gun etc. At the time of my arrest and the same was seized from my house lying in the box".
14. So far as recoveries are concerned, the witness mentioned was one Nazam (P.W. 7) who was resident of Chak No, 16 which is at a distance of 3 to 5 kilometers from the place of recovery. This is clear violation of section 103, Cr. P.C.
In view of the discussion made above and hearing the arguments advanced by learned counsel for both the sides, we are fully convinced that the prosecution has failed to; prove its case against the appellant beyond any shadow of doubt rather defence has been able to create dents in the prosecution story, the benefit of which according to the law set at rest by the Hon'ble Supreme Court has to go to the accused. In a case of capital punishment evidence must leave come froth an unimpeachable source and all the links should be chained in such a way that the Court should come to the only conclusion that the person/persons challaned is/are the actual culprits which features are missing in this case. Resultantly, by extending the benefit of doubt which the appellant have being able to create, we accept the appeals filed by the appellants and set aside the conviction and sentence recorded against them by the learned trial Court. The two appellants namely Muhammad Aslam and Mamon are in jail. They shall be released forthwith, if not required to be detained in any other case.