KHAWAJA MUHAMMAD SHARIF, J.-- This judgment will dispose of Cri. Appeal No. 337 of 2002 filed by Zil-ur-Rehman, appellant, who was convicted and sentenced by leamed Sessions Judge, Khushab vide his judgment dated 12.2.2002 to undergo 10 years' R.I. And also to pay half of "Diyat" to Abdul Rehman complainant u/S. 308, PPC with the benefit of Section 382-B, Cr.P.C.
2. Occurrence in this case had taken place on the night between 29/30.5.2001 at 2.00 a.m. (mid night) within the jurisdiction of P.S. Mitha Tiwana at a distance of 16 K.Ms. While the matter was reported to the police on 30.5.2001 at 4.30 a.m. By Malik Muhammad Sabir and the formal FIR Ex.CW-l/A was recorded by Atta Ullah, S.I./SHO.
3. Brief facts of the case, as disclosed by Abdul Rehman complainant are that he was engaged with Mst. Zakiya Rehman, the sister of Zil-ur-Rehman accused in accordance with local custom a long time ago. Her parents already died after which she had no near relation except Fateh Muhammad, real uncle, Zil-ur-Rehman accused, real brother and Mst. Balqees real sister, that on 9.2.2001, Fateh Muhammad solemnized nikah of Mst. Zakiya Rehman with the complainant in accordance with Islamic rites which was registered in Town Committee Jauharabad and in the nikah ceremony not only the nikah khawan and the witnesses of nikah but also a dozen of different persons had participated in whose presence Mst. Zakiya Rehman had put her signatures over the same with her i.e-will; that Zil-ur-Rehman.Accused is owner of an oil tanker and he used to live at Karachi and other places sometimes for 3 months continuously and due to his such business the "Rukhsati" of Mst. Zakiya Rehman could not take place although Mst. Zakiya Rehman was an educated lady and she was a teacher in Middle School Jabi. For the ceremony of "Rukhsati"
Captain retired Sher Ali Khan, Doctor Ajmal Nadeem Niazi M.O., DHQ, Hospital, Jauharabad, Malik Khan Muhammad of Chinki and Malik Abdul Qadir went to village ]abi and with the consultation of the brother-hood it was settled that "Rukhsati" would take place on 4.6.2001 and on 5.6.2001 a marriage party (Walima) will be solemni2ed for which purpose the complainant got published invitation cards and also delivered some of them. On the day of said settlement of the date some sweets were distributed in the house of Zil-ur-Rehman accused and the brotherhood also prayed for the spouses. After the nikah Mst. Zakiya Rehman got prepared her national identity card acknowledging her marriage with the complainant. Zil-ur-Rehman accused demanded a sum of Rs.300,000/- from Mst. Zakiya Rehman for the preparation of her dowry upon which she paid a sum of Rs.50,000/- to him in such a manner that she borrowed a sum of Rs.25,000/- from her widow Bhahi, a sum of Rs.5000/- from a near relative and a sum of Rs.3000/- from her real uncle and the rest from her own pocket but the accused was not satisfied and he continued his demand of Rs.300,000/- pressing had to encash the saving certificates belonging to her (Mst. Sakiyza Rehman) lying in National ' Saving Centre, jauharabad, but she did not agree and he wanted to defy the rukhsati. According to the information of the complainant the accused had already procured a sum of Rs.1,50,000/- from Mst. Zakiya Rehman previously. Captain Sher Ali mentioned above had been visiting Zil-ur-Rehman accused and on26.5.2001, the accused told him that he would know about everything after two day and that the members of the marriage party should be 25 and "Assar" prayer time was settled for the marriage party. On 30.5.2001 at about 1-2 a.m., Mst.
Zakiya Rehman deceased was asleep in the house. Her real uncle Fateh Muhammad and her cousin were also asleep there when the accused killed Mst. Zakiya Rehman by firing with 12 bore gun.
4. After recording preliminary statement of Abdul Rehman complainant in a private complaint, it was sent to Qazi Waqar Hussain, Magistrate Section 30, Khushab for an inquiry u/S. 202, Cr.P.C., thereafter, the said leamed Magistrate recorded preliminary evidence and submitted his report and the accused was summoned to face the trial.
5. At the trial, prosecution in order to prove its case produced 14 witnesses along with six CWs in all, thereafter, leamed D.D.A, tendered in evidence report, of the Chemical Examiner relating to earth Ex.PK., that of the Serologist Ex.PK/1 and that of the Forensic Science Laboratory Ex.PL and closed the prosecution case, then, the statement of accused was recorded u/S. 342, Cr.P.C, in which he pleaded innocence.
6. Leamed counsel for the appellant submit that occurrence had taken place between the night of 29/30.5.2001 and the same was reported to the police by Malik Muhammad Sabir CW.l vide FIR No. 118/2001, that in the said FIR, Haji Ameer and Ashraf were an eye-witness, that during the trial of complainant titled as Abdul Rehman v. Zil-ur-Rehman in which the present appellant was convicted including Muhammad Sabir complainant of the FIR ail these eye-witnesses appeared as CWs 1 to 3 and they did not support the prosecution case, that complainant was filed by Abdul Rehman, the so-called husband of Zakiya Rehman on 10.8.2001 that's, more than three months after the occurrence without any proper explanation, that explanation given by the complainant in the complaint filed by him could not be proved through any other source except the bald statement of the complainant, that as far as, complainant is concerned, he is not an eye-witness of the occurrence, that Fateh Muhammad uncle of the present appellant appeared before the leamed Trial Court as PW.1 in the complaint but his preliminary evidence was not recorded by the complainant during the preliminary proceedings of the said complajnt, that Fateh Muhammad was never examined by the I.O., who had appeared as ON.6, that Fateh Muhammad appeared before the leamed Trial Court six months after lodging of the complaint and in fact he was inimical towards the appellant because his daughter, namely, Sabia Nasreen was married to Abdul Qayyum brother of the appellant, who divorced her. He further submits that as far as Abdul Majeed, the witness of extra-judicial confession is concerned, he did not utter a single word for first 2/3 days and stated before the learned Trial Court that he had told this fact to Abdul Rehman complainant about the occurrence 2/3 days after the occurrence, that in fact this witness was servant of the complainant, so he is interested witness, that no case is made out against the appellant and he is entitled to acquittal.
7. On the other had, leamed counsel for the State submits that Fateh Muhammad is the most independent witness in this case, he is uncle of the present appellant, though he is not mentioned in the FIR as an eye-witness but he had supported the prosecution case and his statement is corroborated by Abdul Majeed, the witness of extra-judicial confession, that empty recovered fro the spot matched with 12 bore gun allegedly recovered on the Plantation of the appellant. He further submits that though the complainant is a witness in this case but statement of Fateh Muhammad is sufficient to maintain the conviction. He supports the judgment of the leamed Trial Court.
8. I have heard leamed counsel for the parties and have also gone through the record. Occurrence had taken place on the night between 29/30.5.2001, the matter was reported to the police by Muhammad Sabir through FIR Ex.CW-l/A in which Fateh Muhammad was not mentioned as an eyewitness, who was examined by the leamed Trial Court as CW.2. He has supported the prosecution case being real uncle of the appellant and the deceased. Although he was not examined b/ the complainant when the preliminary evidence was recorded but through Malik Muhammad Sabir CW.1 it had come on record that daughter of Fateh Muhammad, namely, Sabia Nasreen was married to Abdul Qayyum, real brother of present appellant, who divorced her, although this fact has vehemently denied by Fateh Muhammad before the leamed Trial Court.
Fateh Muhammad was never joined ln the Investigation by Atta Muhammad, Inspector/I.O.
Appeared as CW.6, who has stated in clear terms that Fateh Muhammad did not appear before him. Fie also stated that he came to know of Fateh Muhammad for the first item when he appeared before the leamed Trial Court six months after the occurrence. Malik Muhammad Sabir, who lodged the FIR was examined as CW. 1 while the other two eye-witnesses mentioned in the FIR were examined as CW.2 and CW.3 they have also not supported the prosecution case. Complainant Abdul Rehman is also not an eye-witness in this case, he filed complaint 3 months after the occurrence without any proper explanation and the explanation given by Abdul Rehman is not plausible one. As far as, extra-judicial confession is concerned, that was made by Abdul Majeed who is servant of Abdul Rehman complainant. Merely, on extra-judicial confession, no conviction u/S. 302, PPC either can be awarded or maintained. There is no other ocular account coming from an unimpeachable source. So far as, recovery of crime empty and weapon of offence is concerned, both Haji Muhammad Amir CW.2 and Muhammad Ashraf CW.3 did not support the prosecution case. I may also mention here, that only one i.e was made at the time of occurrence and no other i.e was made at the spot though it was a double barrel gun which was allegedly having by the appellant at the time of occurrence, unless two fires are shot from the double barrel gun and thereafter, it is reloaded then the empty would fall on the ground but there is no such evidence on record in this regard.
After having heard the leamed counsel for the parties and going through the record I am of the considered opinion, that it is a case in which there are so many doubts and benefit of the same always goes in favour of the accused not as a matter of grace but as a matter of right, so while extending the same benefit of doubt I accept this appeal, set aside the conviction and sentence recorded against the appellant by the leamed Trial Court. He is in jail and he shall be released forthwith, if not required to be detained in any other case.