KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.3 of 1999 filed by Muhammad Hussain, appellant who was convicted under section 302(b), P.P.C. And sentenced to death with further direction to pay Rs.20,000 as compensation and if recovered the same was to be paid to legal heirs of the deceased by learned Additional Sessions Judge, Arifwala vide judgment dated 16-12-1988.
Murder Reference No.44 of 1999 for confirmation or otherwise of death sentence of appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 4-00 a.m. On 1-9-1994 within the Revenue Estate of Mauza Mehnat Darsnan which is at a distance of 30 kilometres from Police Station Sadar, Pakpattan Sharif the matter was reported to the police by Hafiz Ali through written complaint at 6- 30 a.m. On the same morning at Basti Chanpeer and the formal F.I.R. Exh.P.A./1 was recorded by Muhammad Munir, Head Constable.
3. Briefly stated the facts of the case are that at 6-00 p.m. On 31-9-1994 Hafiz Shaukat Ali complainant had come to Mauza Mahnat Darshan to see his sister Mst. Anaran. The complainant took his cot op the roof-top and slept there. Mst. Anaran and Fateh Muhammad, her father-in-law slept in the courtyard while Umeed Khan, husband of Mst. Anaran slept in cattle shed. At about 4- 00 a.m., on the barking of dog, the complainant were up and witnessed that in the courtyard of the house, Muhammad Hussain, armed with 12 bore double-- barrel gun was standing alongwith the cot of Mst. Anaran while Ahmad Hassan armed with .12 bore gun and Dost Muhammad armed with Lathi were present in the courtyard. The complainant identified the accused in the light of electric bulb. Within the view of the complainant, Muhammad Hussain accused fired two shots which hit on the chest and left side of abdomen of Mst. Anaran. Umeed Khan husband of Mst. Anaran also came there. Mst. Anaran was attended but was found to be shot dead.
The motive alleged was that Muhammad Hussain had made a demand to marry with Mst. Anaran but she was married with Umeed Khan. Due to this grudge, she was murdered by Muhammad Hussain.
4. Investigation of the case was taken over by Ghulam Qadir, S.-I. (C.W.5). He, after registration of the F.I.R., went to the place of occurrence where the dead body of Mst. Anaran was lying, prepared inquest report Exh.P.D. Took into possession the blood-stained earth, cot, 2 bullets of .12 bore vide memo. Exh.C.1 and found all the three accused innocent. In fact the Investigating Agency recommended for cancellation of the case against the accused but the learned Magistrate did not agree and report under section 173, Cr.P.C. Was submitted to the Court. So, a complaint was filed.
Inquiry as required under section 203, Cr.P.C. Was held and after submission of the report, the accused were charge-sheeted.
5. At the trial, the complainant produced 5 C.Ws. While four witnesses were examined as P.Ws.
Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and also produced 8 D.Ws. However, after conclusion of the trial, Ahmad Hassan and Dost Muhammad accused were acquitted by the trial Court while Muhammad Hussain, the present appellant was convicted and sentenced as stated above.
6. Learned counsel for the appellant in support of this appeal submits that occurrence having taken place in dark hours of the night, it was an unwitnessed occurrence; the complainant was not the resident of place which was at a distance of 15 kilometres from the place of occurrence, rather was resident of a place of occurrence; Umeed Khan, P.W.2 was not sleeping in the room of the house at the time of occurrence; no recovery was effected from the appellant; in two successive investigations, the appellant was found innocent and that in order to support his innocence, the appellant had produced 8 D.Ws. In nutshell, according to, learned counsel, the prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal. At this stage, learned counsel submits that names of the accused persons are not mentioned in the site plan and no light has been shown in the site plan Exh.P.F.
7. Learned counsel for the complainant submits that it was the appellant who caused two injuries on the person of the deceased with double-barrel gun; both the eye--witnesses are natural witnesses; ocular account is fully corroborated by medical evidence; there are material contradictions in the statements of the D.Ws.; it was a case of promptly lodged F.I.R.; there is blackening on the injuries of the deceased and that the prosecution has been successful in proving its case against the appellant.
8. We have heard learned counsel for the parties and have gone through the record with their able assistance. The complainant was not the resident of place of occurrence but in fact was a resident of a place which was at a distance of 15 kilometres from the place of occurrence. He is real brother of the deceased. According to complainant and Umeed Khan (P.W.) husband of the deceased, Mst.
Anaran deceased as fired at with double-barrel gun which hit on her abdomen towards left flank.
We have gone carefully read the statement of Dr. Farooq Ahmad P.W.3 who conducted post- mortem examination on the dead body of the deceased. According to the doctor, there was only one injury near abdomen of the deceased. There is no injury on the left flank. Both the exit wounds are on the back of deceased. Had the eye-witnesses been present at the spot, they must have stated the correct seat and number of injuries on the person of the deceased. The complainant has given the distance between the deceased and the assailants as 3 feet but according to the site plan Exh.C.W.5/1, it was 10 feet. Had the fire been shot from a distance of 3 feet, there had been blackening. It may be noted that post-mortem on the dead body of the deceased was conducted at 4-45 p.m. On 1-9-1994 while the death had taken place at, 4-00 a.m. It is a case of delayed post- mortem. The duration given by the doctor between the death and post-mortem is 8 to 24 hours, so it the occurrence could have place at any time and not at the time the prosecution wants us to believe. Names of accused are not mentioned in the site plan. No recovery was effected from the appellant. Muhammad Hanif, Inspector (C.W.4) and Ghulam Qadir, S.-I. (C. W.5) also appeared, who deposed that all the accused in the case were found to be innocent as a result of their investigation appellant appeared before the trial Court to support the plea of innocence. The police recommended for discharge of the accused but the learned Magistrate did not agree. It is correct that opinion of the police is not binding upon the Courts but while awarding or maintaining conviction on a capital charge, Court has to look for corroboration.
No crime empty was taken into possession from the spot. No weapon of offence was recovered from the appellant.
After having analyzed the entire matter, we are of the considered opinion that the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt rather there are dents in the prosecution story. While extending the benefit of doubt, we accept the appeal filed by the appellant and set aside the conviction) and sentence recorded against the appellant by the trial Court. The appellant is in jail and he shall be released forthwith, if not required to be detained in any other case. The death sentence of Muhammad Hussain appellant is not confirmed and murder reference is replied in the negative.