' MIAN MUHAMMAD JAHANGIER, J.--- This Criminal Appeal No,773 of 1999 is directed against the judgment of Additional Sessions Judge, Hafizabad dated 30-8-1999 whereby he convicted Faiz Ahmad son of Noor Muhammad, Caste Bhatti, resident of Par Nasiba, Police Station Sukheke, District Hafizabad under section 302(b)/34, P.P.C. And sentenced him to death with a fine of ks.25,000 out of which if realized, Rs,12,500 were ordered to be paid to the legal heirs of the deceased as compensation, whereas his co-accused Muhammad Ashraf son of Mian Khan, caste Bhatti resident of Dingi village Par Nasiba, Police Station Sukheke, District Hafizabad was convicted under section 302(b)/34, P.P.C. And sentenced to life imprisonment as Ta'zir with a fine of Rs,25,000 half of which if realized was ordered to be paid to the legal heirs of the deceased and in default in payment of compensation both the accused were ordered to further undergo 6 months' S.I.
Muhammad Ashraf accused was also given the benefit of section 382-B, Cr.P.C. The sentence of death awarded to Faiz Ahmad accused was subjected to confirmation of Lahore High Court, for which purpose Murder Reference No,386 of 1999 is also before this Court. Both the criminal appeals as well as murder reference are being disposed of through this judgment.
2. Briefly stated the facts of the prosecution case are that about 13 years before the occurrence, Muhammad Ashraf accused abducted Mst. Asmat Bibi daughter of Inayat Ullah complainant belonging to the same brotherhood and performed marriage with her. The complainant did not lodge the F.I.R. Due to his family honour as a consequence of which Muhammad Ashraf accused also demanded the hand of Mst. Noor Anisa the younger daughter of the complainant for his nephew Hameed on the pretext that Mst. Noor Anisa was engaged to the said Hameed since her childhood. The complainant did not agree to this proposal and married the deceased Mst. Noor Anisa with one Nusrat three months prior to the present occurrence. Rukhsati of Mst. Noor Anisa did not take place. Muhammad Ashraf accused bore grudge and developed rancour against the complainant and started threatening him with dire consequences.
' On 21-12-1994 at about 1-45 p.m. The complainant and Mst. Noor Anisa were going to Mandi Sukheke for purchasing articles for preparation of her Rukhsati. Mst. Noor Anisa was going ahead and in the way the complainant met Shafqat Ali and Akhtar Ali who started talking. They were yet at a distance of one acre from the metalled road when both the accused Faiz Ahmad and Muhammad Ashraf armed with .12 bore guns came in a gray coloured car bearing No,OK-2636 which was driven by Shaukat Ali, driver. On seeing them Mst. Noor Anisa who was going ahead, turned back and ran towards her father, upon which Faiz Ahmad fired hitting Mst. Noor Anisa on the right side of her head. Muhammad Ashraf accused also fired which hit at the left flank of Mst. Noor Anisa who fell down on the ground. On seeing this Faiz Ahmad rushed towards the deceased and fired another shot at the right flank, due to which Mst. Noor Anisa died instantaneously. Leaving Nusrat son of Hayat near the dead body the complainant himself came to the Police Station and F.I.R. (Exh.P.H.) No,335 of 1994 was lodged on the same day at Police Station Sukheke.
3. Hamid Ali Khan, Inspector investigated the case. He went to the place of occurrence and saw the dead body of Mst. Noor Anisa. He prepared the injury statement Exh P/1 site-plan and Inquest report Exh.P.J. And sent the dead body for post-mortem examination to R.H.C. Pindi Bhattian, District Hafizabad, where Dr. Shaukat Ali Wahla, S.M.O. (P.W.5) conducted post-mortem examination and found following injuries on her person.
(1) Fire-arm graze wound 5 c.m. x 2 c.m. x bone deep on right temporal region, margins burrent, edges on the frontal side was inverted and posterior side of wound was everted.
(2) Fire-arm glancing wound 1/2 c.m. x 1/2 c.m. On right cheek.
(3) Fire-arm wound 2 c.m. x 1 c.m. x 1 c.m. On bridge of nose.
(4) Fire-arm wound of entry 3 c.m. x 3 c.m. x 10 c.m. On right side of abdomen 7 c.m. Above to alliac creast, margins burnt, edges inverted.
(5) Fire-arm wound of exit three in number 1 c.m. x 1 c.m. x 25 c.m. Each on back of left side of chest over 10th, 11th and 12th ribs.
(6) Swelling 2 c.m. x 2 c.m. Culpable hard foreign body on the left flank.
(7) Three wounds of exit each 1 c.m. x 1 c.m. x 26 c.m. On left flank. Edges were everted.
' One pellet was recovered from injury No,6 and a plastic cover of bullet was recovered under the surface of muscles of abdomen from injury No,4. In the opinion of doctor death occurred due to injury No,4 which was sufficient to cause death in the ordinary course of nature. All the injuries were anti-mortem in nature.
4. When investigation started Muhammad Ashraf accused absconded and incomplete challan was submitted against Faiz Ahmad accused. On 29-3-1998 Muhammad Ashraf accused was arrested, so supplementary challan was submitted on 29-4-1998 and Muhammad Ashraf was produced in Court on 14-5-1998. Fresh formal charge against both the accused was framed under section 302/34, P.P.C. On 4-6-1998 to which both the accused pleaded not guilty and attributed the case to enmity. They both professed innocence and claimed trial.
5. In order to prove its case the prosecution examined Zafar lqbal P.W.1 who identified the dead body of the deceased, Masood Ahmad Bhatti Draftsman P.W.2, Shafqat Ali P.W.3 who reiterated the ingredients of the F.I.R., Akhtar Ali P.W.4 who corroborated the statement of P.W.3, Dr. Shaukat Ali Wahla P.W.5 who conducted the post-mortem examination of the deceased, Mushtaq Ahmad, S.-I.
P.W.6 who prepared incomplete challan against both the accused, Shafqat Hussain L.H.C. P.W.7 who witnessed the recovery of .12 bore gun P.5 alongwith two live cartridges P.6/1-2 trom Faiz Ahmad accused, Mazhar Hussain P.W.8 who brought the dead body of the deceased for autopsy to Civil Hospital, Pindi Bhattian, Muhammad Sarwar, S.H.O. (P.W.9) who arrested Muhammad Ashraf absconder, Muhammad Ashraf, H.C. (P.W.10) who was Moharrar at the time of occurrence and sent .12 bore gun and two cartridges through Tasawwar Hussain P.W.11 to Forensic Science Laboratory, Lahore, Hamid Ali Khan, Inspector P.W.12, who investigated the case, Mukhtar Ahmad, D.S.P. (P.W.13) who sent .12 bore gun P.5 and two empties P.6/1-2 to Forensic Science Laboratory, Lahore and Jamil Ahmad, A.C. (P.W.14) who recorded the statement of Shaukat Ali Driver under section 164, Cr.P.C., while Muhammad Munsha and Muhammad Ashfaq P. Ws. Were given up being unnecessary and Shaukat Ali P.W. Was given up being won over by the accused. The complainant of the case died before his evidence was recorded.
6. The statements of both the accused were also recorded under section 342, Cr.P.C. Muhammad Ashraf accused stated that he did not know about the occurrence and he himself appeared before the police when he came to know about the registration of the case. He stated that the deceased was his sister-in-law and 13/14 years ago he abducted her elder sister Mst. Asmat Bibi. And performed Nikah with her and due to this reason the complainant party bore grudge against him and made attack upon him and he went to Karachi to save his life. Actually he did not take part in the occurrence and he did not abscond. His co-accused Faiz Ahmad and his father helped him therefore Faiz Ahmad was also involved in this case. First he opted to produce defence evidence but later on he refused to do so. Faiz Ahmad accused also professed innocence and denied the recovery of gun P.5 and two live cartridges on his pointation. He more or less made similar statement as was made by Muhammad Ashraf co-accused. Both the accused did not appear as their own witness under section 340(2), Cr.P.C.
' The trial culminated in the convictions and sentences of both the accused as mentioned above, hence this appeal.
7. Learned counsel for the appellant argued that Inayat-Ullah complainant died before recording his statement at trial, therefore, F.I.R. Exh.P.H. Could not be proved by the prosecution, anyhow at trial the ocular account was furnished by Shafqat All P.W.3 and Akhtar Ali P.W.4 who were not reliable witnesses and their presence at the spot was just by chance. Moreover, they are related to the deceased and the ocular account furnished by them was belied by the medical evidence; that motive could not be proved by the prosecution and that recovery of crime weapon from Faiz Ahmad accused was actually planted and fake, therefore, each and every aspect of the prosecution case was full of doubt but the learned trial Court has not given any benefit to the appellants. He added that NOor Anisa deceased girl was a lady of bad character and actually she was killed by Nusrat and due to past enmity between the parties Muhammad Ashraf and Faiz Ahmad have been falsely involved in this case, therefore, judgment passed by the learned trial Court is liable to be set aside.
' Which have been opposed by the learned State Counsel who submitted that Mst. Noor Anisa was killed by the appellants in the day light, therefore, no question of substitution arises and that each and every aspect of the prosecution case was fully established and being so the judgment passed by the learned trial Court calls for no interference.
8. Arguments advanced by the learned counsel for the parties have been taken into consideration in the light of the record. It is obvious that F.I.R. In this case was lodged at the police station at the instance of Inayatullah father of the deceased Noor Anisa. In accordance with contents of the F.I.R.
(Exh.P,H.) the occurrence had taken place at about 1-45 p.m. While the F.I.R. Was lodged at 2-45 p.m. And the distance between the place of occurrence and the Police Station Sukheke Mandi was 4 miles therefore, there is possibility of consumption of one hour in lodging the F.I.R. This aspect of the case has not seriously disputed which means that time, date and place of the occurrence is admitted but the point for examination is as to what is the impact of death of Inayatullah complainant whose statement could not be recorded at trial. There is no impact of the death of Inayatullah complainant because Hamid Ali Khan, Inspector P.W.12 stated that the F.I.R. Exh.P.H. Was recorded according to the true deposition made by Inayatullah complainant and that it was read over to lnayatullah who thumb-marked the same in token of its correctness meaning thereby the F.I.R. Was brought on the record by the prosecution in a legal way which introduced the motive behind the occurrence and the ocular account furnished by father of the deceased lady and also discussion therein that Shafqat Ali and Akhtar Ali residents of the village and witnessed the occurrence.
10. It is obvious that Shafqat Ali P.W.3 and Akhtar Ali P.W.4 both residents of village Dingi furnished the ocular account by stating that at about Peshiwela on the day of occurrence they were sitting near the Loosan field. During cross-examination Shafqat Ali P.W. Admitted that he did not own any agricultural land around the place of occurrence and his residential house was situated at a distance of 4/5 acres from the place of occurrence but he was at the spot in order to cut the fodder. He was cross-examined at length but he was not suggested that there was no fodder at the spot and that he was not cutting the same. Even otherwise both the witnesses are residents of the same village, therefore, in no way it can be argued that they were the chance witnesses for the reason that it is the daily life of the villagers to be present here and there in the fields.
' When Shafqat Ali P.W.3 was being cross-examined, he was suggested that Muhammad Ashraf accused abducted sister of Muhammad Akhtar P.W. And married her and he admitted the suggestion to be correct. The same suggestion was given to Akhtar Ali P.W.4 and he admitted that Muhammad Ashraf accused abducted his sister Asmat Bibi and married her. He further stated in cross-examination that they suspected that Noor Muhammad father of Faiz Ahmad accused had rendered assistance to Muhammad Ashraf in the said abduction of Asmat Bibi and after that abduction his father was not on visiting terms with Muhammad Ashraf but his other family members had visiting terms with Muhammad Ashraf accused. So through their statements at least this fact came on the record that earlier Muhammad Ashraf had abducted-the elder sister of the deceased lady and performed marriage with her thereafter.
11. It is obvious that ocular account has been furnished by two related witnesses, therefore, despite the fact that the occurrence took place in the day light this question is worth consideration as to what extent the statements of the two witnesses are worth reliance. In order to make such assessm ent besides analysing the statements of the eyewitnesses, it is always suitable to compare the ocular account furnished by the eye-witnesses with the medical evidence on the record. It would appear from the statements of Shafqat Ali P.W.3 and Akhtar Ali P.W.4 that they furnished the ocular account in line with the contents of the F.I.R. Exh.P.H. But if the ocular account furnished by them or the ocular account as given in the F.I.R. Exh.P.H. Is compared with the medical evidence it would appear that injury attributed to Muhammad Ashraf appellant finds no mention in the medical evidence. It would appear from the statement of Dr. Shaukat Ali Wahla P.W.5 that he explained 7 injuries on the body of the deceased lady, the details of which have already been given above and if these injuries are examined carefully, it would appear that injuries Nos.1, 2 and 3 are the result of one fire shot while the second injury on the body of the deceased lady is injury No,4 and that injuries Nos.5, 6 and 7 are the result of injury No,4 as injuries Nos.5 and 7 are exit wounds and injury No,6 is also an impact of injury No,4. In order to clarify the situation cross-examination of Dr. Shaukat Ali Wahla P.W.5 is worth reading which is being mentioned in verbatim as under:-- "The range of injury No,4 is within 2 feet. Injury Nos.1, 2 and No,3 might be result of one fire. It is difficult to say whether injury Nos.1, 2 and 3 were of pellet or bullet."
"Injury No,6 is the outgoing pellet of entry wound No,4, the range of injury Nos.!, 2 and 3 might be within 10 feet. The deceased was not virgin. No vaginal swab was taken as it was not necessary."
' In F.I.R. Exh.P.H. And also in the statements of the eyewitnesses as mentioned above it was alleged that first fire shot was made by Faiz Ahmad appellant which hit on the right side of the head of the deceased lady, the second fire shot made by Ashraf with .12 bore gun had hit on the left flank and that third fire shot made by Faiz Ahmad from a short distance had hit on the right flank of the deceased lady. In the light of the medical evidence it is obvious that injury attributed to Muhammad Ashraf finds no mention anywhere and that injuries attributed to Faiz Ahmad appellant finds mention in the statement of the Medical Officer which means that ocular account furnished by the above mentioned two witnesses finds corroboration from the medical evidence to the extent of Faiz Ahmad appellant.
' Even otherwise two empties were recovered from the spot which force to believe that two fire shots were made only by Faiz Ahmad appellant. The recovery of the crime weapon was effected from Faiz Ahmad appellant whereas no weapon was recovered from Muhammad Ashraf appellant, therefore, when the injury attributed to Muhammad Ashraf appellant was not existing in the medical evidence the benefit of doubt should have been given to him and mere because of motive or abscondence alleged against Muhammad Ashraf he could not be convicted and sentenced in this case. This situation was also discussed by the learned trial Court in para.34 of the judgment which reads as under:-- "It is added that injuries on the person of Mst. Noor Anisa are the result of firing made by Faiz Ahmad accused whereas the injuries Nos.1, 2 and 3 are result of first fire and injury No,4 is of the second fire made by Faiz Ahmad accused, while injuries Nos.5 and 7 are exit wounds and not by firing of Muhammad Ashraf accused."
12. During arguments character of the deceased lady was also discussed. It was argued that the de:eased lady had developed illicit relations with Slabat servant of Muhammad Akhtar P.W. But all suggestions in this regard were denied by the prosecution witnesses. Even otherwise there is no material on the record to prove that on the day of occurrence the deceased lady had come to the place of occurrence to see Slabat or she was found in an objectionable position there at the spot.
Such-like acts do not usually take place openly in day light in our village life. In support of this contention the statement of Dr. Shaukat Ali P.W.5 in cross-examination was referred to He said that the deceased was not virgin. It has come on the record that her marriage had been performed with Nusrat son of Hayat but Rukhsati had not taken place.
13. Inayat Ullah complainant stated in the F.I.R. (Exh.P.H.) that he alongwith his daughter Noor Anisa (deceased) was going to Sukheke Mandi on the day of occurrence for purchasing the articles in connection with Rukhsati of Noor Anisa. This fact appears to be quite natural because on the occasion of marriages, the daughters are taken by the parents for purchase of articles in connection with the marriage or for the ceremony of Rukhsati. Therefore, so far as this aspect of the prosecution ease is concerned there is no reason for any doubt.
14. Both the appellants have brought this fact on the record through their statements that earlier the elder sister of the deceased lady was abducted, therefore, this was also the reason of their false implication in this case while Faiz Ahmad added that he, Muhammad Ashraf appellant and the complainant party are collateral, therefore, there was a dispute over the inherited property between the parties and that this was also a reason for their false involvement in this case. Since the ocular account is belied by the medical evidence to the extent of Muhammad Ashraf appellant, therefore, to his extent it may be believed that he might have been implicated in this case. Even otherwise, mere motive advanced by the prosecution was not sufficient to pass conviction and so far as Faiz Ahmad appellant is concerned, the defence version to his extent seems to be an afterthought and worth no reliance.
15. In view of the discussion above, the judgment passed by the learned trial Court dated 30-8-1999 is maintained to the extent of Faiz Ahmad appellant. And to his extent the appeal is hereby dismissed. The appeal of Muhammad Ashraf appellant is accepted while we extend to him the benefit of doubt.
' Murder Reference in case of Faiz Ahmad is answered in the affirmative.