' Appellant Ahmad Nawaz was tried under section 302, P.P.C. In case F.I.R. No. 115, dated 3-7-2000 registered with Police Station Karana, District Sargodha for on 2-7-2000 at about 11-00 P.M. In the area of Chak No. 53 Janubi falling within the jurisdiction of the afore said police station, while armed with .30 bore pistol committing the Qatl-e-Amd of deceased Zulfiqar Ali by causing his death.
2. On the conclusion of the trial Court, he was found guilty of the charge and so convicted under section 302(b), P.P.C. And sentenced to imprisonment for life as Ta'zir and to pay compensation Rs.2,00,000 to the legal heirs of the said deceased and in default thereof to further suffer four years R.I. Vide the judgment 'recorded on 28-6-2002 by Syed Zafar Abbas Sabzwari, learned Additional Sessions Judge, Sargodha.
3. He, however, was extended the benefit of section 382-B, Cr.P.C.
4. He feeling himself aggrieved of his conviction and sentence has brought the same under attack by way of the instant appeal.
5. Muhammad Ali, the complainant has brought Criminal Revision No. 823 of 2002 for enhancement in his sentence.
6. As both these matters have arisen out of one judgment in a case hence, are being disposed of by this judgment.
7. The facts in detail have been recorded in the impugned judgment. I, therefore, avoid to burden this judgment/ record unduly by repeating all those here.
8. However, the brief facts relevant for the disposal of these matters are that the said case has been registered on the statement Exh.P.J of Muhammad Ali (P. W.11).
' He has mentioned therein that on 2-7-2000, he along with his son Zulfiquar Ali and one Riaz Hussain s/o Muhammad Hayat, caste Khokhar resident of Jalal Pur Bhatian came to the house of his Murshid Lal Shah in Chak No. 53 Janubi. They in the night were present on the roof of his house to sleep. Mst. Maqsood Bibi, the wife of Lal Shah was also present with them. "The lantern was lit there. At about 11-00. p.m. All of a sudden Ahmed Nawaz Nissuana armed with .30 bore pistol came there quietly from the back side of the house. He was having .30 bore pistol with him. He raised Lalkara that he will teach them lesson for having forbidden him from visit to that house. Mst.
Maqsood Bibi tried to intervene. He, thereupon twisted her arm as a result whereof her bangles were broken into pieces. Thereupon Zulfiqar also stood up. Ahmad Nawaz then fired straight shot with pistol at him, which hit at his elbow joint and it went through the same and landed on his right flank. On the receipt of fire Zulfiqar All fell down. The accused thereafter while raising lalkaras and brandishing pistol climbed down the stairs and fled away. He and his companions carried Zulfiqar to Civil Hospital, Sargodha. The doctor examined him there and issued his MLR No.1285 of 2000. He thereafter succumbed to his injuries.
9. The motive behind the occurrence is that the same day the deceased had forbidden the accused from coming to the house of Lal Shah. The accused on grudge over the same had murdered him.
10. The appellant after due investigation was challaned to the Court.
11. He pleaded not guilty to the charge.
12. The prosecution at his trial relied upon it's ocular evidence, medical evidence, recovery of crime weapon from him and the motive. As against the same, he pleaded innocence. He has stated that it was a blind murder committed in the darkness of the night. His enemies had called the relatives of the deceased from Hafizabad and Pindi Bhatian and they got him involved in the instant case falsely. He, however, opted not to produce evidence in his defence and to depose on oath in disproof of the allegation appearing against him in the prosecution evidence.
13. The learned trial Court after hearing the parties, while rejecting his plea and relying upon the above-indicated pieces of prosecution evidence on the record against him concluded that he stood linked with the charge of the Qatl-e-Amd of the deceased. It with the same convicted and sentenced him as mentioned above.
14. It has been contended on his behalf that the only natural witness of the incident namely Mst.
Maqsood Bibi (P. W.10) has belied the prosecution version agaiist him, that rest of the eye- witnesses are chance witnesses as they belonged to other places and not that of the occurrence, that it was a blind murder and the two relatives of the deceased were called from their respective, places of residence and introduced as the eye-witnesses; that the evidence of such witnesses was not worth-believing and so the learned trial Court has erred in relying upon them; that the two eye- witnesses namely Muhammad Ali and Riaz Hussain were not known to him prior to the occurrence and so in such circumstances he ought to have been put to identification test by them, which was not done and so their testimony is not worth-attaching any credence; that the evidence of recovery of crime weapon pistol P-5 at his pointation is inconsequential as neither any empty was recovered from the spot nor the same was sent to the expert for his opinion; that the motive set up by the prosecution against him in fact is made up one; and that in any case his conviction and sentence is not sustainable in the fact and circumstances of the case.
15. As against the same, the learned counsel for the State assisted by the learned counsel for the complainant has supported the impugned judgment saying that the above indicated pieces of prosecution evidence on the record against him have sufficiently brought home the guilt to him; that the recovery of pieces of broken bangles from the spot is a strong circumstance in corroboration to the version of the two eye-witnesses; that Mst. Maqsood Bibi has supported the allegation against the appellant in her examination-inchief although she has given him sonic concession in the cross-examination; that the other two eye-witnesses had no animus against him and so there existed no reason to discard their testimony; that it is the quality of evidence, which matters and not the quantity; that in the instant case qualitative evidence of three eye-witnesses is available, which has convincingly linked him up with the charge and without any idea of doubt in his involvement in the murder of the deceased; and that all the chains of prosecution evidence leading to the hypotheses of guilt of the appellant were present in the instant case and so he was rightly convicted and sentenced.
16. However, it may be mentioned here that the learned counsel for the complainant/petitioner has contended that the appellant has deserved capital punishment as no mitigating circumstance was present in his case. He has requested to enhance his sentence from imprisonment of life to death.
17. I have carefully considered the submissions made from both the sides with the help of available record.
18. The ocular account of the prosecution has been unfolded by Mst. Maqsood Bibi (P.W.10), Muhammad Ali complainant (P.W.11) and Riaz Hussain (P.W.12).
19. Mst. Maqsood Bibi is the resident of the house on the roof of which the incident had taken place.
According to her and the other two eye-witnesses, she. Had gone their house in order to give them water to drink. She being the inmate of the house could be the natural witness of the incident. Her evidence is most important in this case due to that reason. She though in the examination-in-chief has narrated the incident almost in the line of F.I.R. Exh.P-J but in the cross-examination has stated an other story, which was altogether different than the one mentioned by her in the examination- in-chief. She in the cross-examination has stated that at the time of occurrence she was present in the courtyard of her house, while in the examination-inchief that she at that time was present on the roof of the house. She has further stated in the cross-examination that she when went to the roof, the assailant had already run away and so she could not identify that as to who had fired at the deceased. She, thus in the cross-examination has completely disowned to have witnessed the occurrence by her own self. She was the star witness of the prosecution being inmate of the house.
She but by saying so has damaged it's case badly.
20. She has not left the matter there but has also stated that Muhammad Ali and Riaz Hussain are residents of Jalal Pur and they were not present at the place of occurrence at the relevant time.
She has also stated that they sent them telephonic message after the occurrence and thereupon they had reached there.
21. She has explained her position as is in the examination-in-chief. She has said that she was tutored by the complainant to make statement as is in the examination-inchief. So, she has herself negated the story narrated by her in the examination-in-chief regarding the involvement of the appellant in the matter. The loss caused by her to the prosecution by her such statement was in fact irreparable. It is because of the fact that she is wife of the Murshid of the complainant and the other eye-witness. The complainant has unambiguously stated that she and her husband Lal Shah are their Pir and they have great reverence for them. He has also clearly stated that they are truthful persons. It is, thus the own version of the father of the deceased that she is a truthful lady.
She, however, has damaged their case completely by stating in the above manner in the cross- examination. The prosecution, therefore, could not take benefit of her statement. The same, rather was beneficial to the defence to a great length. She has supported the appellant's version that it was an un-witnessed occurrence and the relatives of the deceased were called from their respective places of residence in the other districts and they were made as complainant or the eye-witness to support the prosecution allegation against him. This position has rendered the case of the prosecution against him doubtful.
22. The other two witnesses namely Muhammad Ali complainant and Riaz Hussain are related to the deceased. Muhammad All is his father and Riaz Hussain, maternal cousin. They are not residents of the place of occurrence. They C belonged to the other places. Muhammad Ali belonged to Hafizabad and Riaz Hussain Jalal Pur Bhatian. They, thus were chance witnesses, if at all their story may be believed for the sake of arguments. The evidence of such a witness is to be scrutinized very cautiously and require corroboration by some independent evidence.
23. They both have stated that they alongwith the deceased had come to their Murshid Lal Shah to pay him Salam. The aforesaid wife of their Murshid to whom they believed to be a truthful lady, however, has contradicted them that they were present at the spot at the relevant time. According to her they were not there and rather were called from their houses at Hafziabad and Jalalpur Bhatian after the incident.
24. Due to the own statement of the complainant that she is a truthful lady, It can be said that they both were not present there and rather had happened to be thereafter the incident on having information of the occurrence. I, therefore, see that it was not proper to have placed explicit reliance on their such testimony. Their presence to me at the spot has appeared to be absolutely doubtful. On this count. I therefore, discard their evidence.
25. There is, thus no confidence inspiring ocular account present to satisfactorily connect the appellant with the charge against him.
26. The medical evidence could be used to corroborate or support the ocular testimony. The ocular testimony when was not convincing and ringing with truth, the medical evidence could not safely be used as a piece of corroboration to the. Same. I, therefore, do not consider it necessary to further discuss the same.
27. The recovery of crime weapon pistol P-5 from the appellant is inconsequential in this case as no crime empty was recovered from the spot. It, thUs could not be sent to the expert for his opinion.
The evidence of recovery of the crime weapon, therefore, was of no effect. The, learned trial Court, thus` has wrongly used this piece of evidence in corroboration to the ocular testimony. The same is ruled out of consideration.
28. As regards the motive set up by the prosecution the same has been mentioned above. The same has been narrated by Mst. Maqsood Bibi and the other two eyewitnesses. The position of the evidence of Mst. Maqsood Bibi has been discussed above. She firstly herself has stated that she has not seen that who had murdered the deceased. Secondly, she has stated the motive in the examination-in-Chief but in the cross-examination has stated that she was tutored by the complainant to say so. She, thus has belied the story of existence of any such motive with the appellant to do away with the deceased. The other two eyewitnesses appeared to be not inherently reliable in this case for the reasons mentioned above. The story of motive narrated by them, therefore, too is not worthy of belief. I, therefore, find that the prosecution could not prove the motive part of it's story against the appellant convincingly. The learned trial Court, thus has also erred in receiving the same as of corroborative value.
29. As regards the recovery of broken pieces of bangles, the same is not of any consequence in this case in the above circumstances. This could at best be used for the corroboratory purposes. The ocular testimony, when in this case was not of unimpeachable character, the same therefore, was of no effect to the prosecution case.
30. It is though a case of single accused but when there is no satisfactory evidence against him on the record, he then could not validly and justifiably be held liable for the Qatl-e-Amd of the deceased.
31. I, therefore, from the above discussion is fully convinced that the prosecution has failed to bring home the guilt to the appellant beyond any shadow of reasonable doubt. The impugned judgment of his conviction and sentence, therefore, is not liable to be maintained.
32. Consequently, I accept this appeal. Set aside the impugned judgment and acquit him of the charge giving him the benefit of doubt.
33. He is in custody. He be set at liberty forthwith, if not required in any other case.
34. As consequence of the above, the Criminal Revision (No. 823 of 2002) fails and the same is dismissed as such.