This judgment will dispose of Criminal Appeal No,337 of 2002 filed by Zil-ur-Rehman, appellant, who was convicted and sentenced by learned Sessions. Judge, Khushab vide his judgment dated 12-2-2002 to undergo 10 years' R.I. And also to pay half of "Diyat" to Abdur Rehman complainant under section 308, P.P.C. With the benefit to section 382-B, Cr. P.0 .
2. Occurrence in this case had taken place on the night between 29/30-5-2001 at 2-00 a.m.
(midnight) within the jurisdiction of Police Station 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 F.I.R. Exh. C.W.1/A was recorded by Atta Ullah, S.-I./S.H.O.
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-urRehman 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 Khwan 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 free-will; that Zil-urRehman 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 (Retd.) Sher Ali Khan, Doctor Ajmal Nadeem Niazi, Medical Officer, D.H.Q. Hospital, Jauharabad, Malik Khan Muhammad of Chinki and Malik Abdul Qadir went to village Jabi and with the consultation of the brotherhood it was settled that "Rukhsati" would take place on 4-6-2001 and on 5-6-2001 a marriage party (Walimal will be solemnized 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 Zilur-Rehman accused and the brotherhood also prayed for the spouses. After the Nikah Mst. Zakiya Rahman 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 insuch a manner that she borrowed a sum of Rs,25,000 from her widow Bhabi, a sum of Rs,5,000 from a near relative land a sum of Rs,3,000 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 hard to encash the saving certificates belonging to her (Mst. Zakiya 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 Zit-ur-Rehman accused and on 26-5-2001, the accused told him that he would know about everything after two days 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 Relunan 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 under section 202, Cr.P.C. Thereafter, the said learned 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 alongwith six C.Ws. In all, thereafter, learned D.D.A. Tendered in evidence report of the Chemical Examiner relating to death Exh.P.K., that of the Serologist Exh.P.K./1 and that of the Forensic Science Laboratory Exh.P.L, and closed the prosecution case, then, the statement of accused was recorded under section 342, Cr.P.C. In which he pleaded innocence.
6. Learned counsel for the appellant submits 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 C.W.1 vide F.I.R.
No,118 of 2001, that in the said F.I.R., Haji Ameer and Ashraf were eye-witnesses, that during the trial of complaint titled as Abdul Rehman v. Zil-ur-Rehman in which the present appellant was convicted including Muhammad Sabir complainant of the F.I.R. All these eye-witnesses appeared as .Ws. 1 to 3 and they did not support the prosecution case, that complaint was filed by Abdul Relunan, 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 solute 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 learned trial Court as P.W.1 in the complaint but his preliminary evidence was not recorded by the complainant during the preliminary proceedings of the said complaint, that Fateh Muhammad was never examined by the Investigating Officer, who had appeared as C.W.6, that Fateh Muhammad appeared before the learned trial Court six month 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 hand, learned 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 F.I.R. 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 from the spot matched with .12 bore gun allegedly recovered on the pointation 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 learned trial Court.
8. I have heard learned 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 F.I.R. Exh.C.W-1/A in which Fateh Muhammad was not mentioned as an eye-witness, who was examined by the learned trial Court as C.W.2. He has supported the prosecution case being real uncle of the appellant and the deceased. Although he was not examined by the complainant when the preliminary evidence was recorded but through Malik Muhammad Sabir C.W.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 learned trial Court.
Fateh Muhammad was never joined in the investigation by Atta Muhammad Inspector/Investigating Officer appeared as C.W.6, who has stated in clear terms that Fateh Muhammad did not appear before him. He also stated that he came to know of Fateh Muhammad for the first time When he appeared before the learned trial Court six months after the occurrence.
Malik Muhammad Sabir, who lodged the F.I.R: was examined as C.W.1 while the other two eye- witnesses mentioned in the F.I.R. Were examined as C.W.2 and C.W.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 Rehmanis 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 under section 302, P.P.C. 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 C.W.2 and Muhammad Ashraf C.W.3 did not support the prosecution case. I may also mention here, that only one fire was made at the time of occurrence and no other fire was made at the spot though it was 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 learned 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 ems in favour of the accused not as a matter of grace but as 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 learned trial Court. He is in jail and he shall be released forthwith, if not required to be detained in any other case.