' CH. IFTIKHAR HUSSAIN, J.Amjad Ali, Mehmood Ali, Muhammad Arshad sons of Bundu Khan and Muhammad Akram alias Pappu, Abdul Hamid and Barkat Ali sons of Sharif-udDin were jointly tried under sections 148/302 read with sections 149 and 449, P.P.C.. In case F.I.R. No.106 registered on 7- 10-1997 with Police Station Niddoke, District Narowal for on 7-10-1997 at about 8-30 p.m. While armed with lethal weapons forming themselves into an unlawful assembly and in prosecution of the common object of the same trespassing into the house of the complainant Muhammad Sultan (P.W.1) and committing there the Qatl-e-Amd of his wife Mst. Razia Bibi.
2. On conclusion of the trial Amjad Ali, Muhammad Akram alias Pappu and Abdul Hamid were found guilty of the charge. They were convicted and sentenced as follows:-- 0) Under section 148, P.P.C.. To two years R.I.
(ii) Under section 302(b), P.P.C. For committing the Qatl-e-Amd of the deceased Mst. Razia Bibi.
(a) Amjad Ali to death as Ta'zir subject to confirmation by this Court and to pay compensation Rs.50,000 to her legal heirs and in default thereof to suffer further two years. R.I.
' And Muhammad Akram alias Pappu and Abdul Hamid to imprisonment for life as Ta'zir each and to pay compensation Rs.30,000 each to her legal heirs and in default thereof to further suffer two years R.I.
(b) They all three under section 449, P.P.C. For committing criminal tresspass in the house of complainant Muhammad Suleman to ten years R.I. And with fine Rs.10,000 each and in default thereof to further suffer one year R.I.
' All their other sentences of imprisonment were to run concurrently. They were extended the benefit of section 382-B, Cr.P.C.
Their four co-accused namely Mehmood Ali, Muhammad Khalid, Muhammad Arshad and Barkat alias Bakhu were acquitted of the charge giving them the benefit of doubt.
3. The above named three convicts feeling themselves dissatisfied with the impugned judgment of their conviction and sentence have assailed the same by way of the appeal mentioned above (No. 1388 of 1999). They hereinafter shall be referred as the appellants.
' The learned trial Court has submitted Murder Reference No.525 of 1999 for confirmation of sentence of death of appellant Amjad Ali as required under section 374, Cr.P.C.
4. As both the matters have arisen out of one and the same judgment in a case, hence these are being disposed of by this single judgment.
5. The facts in detail are incorporated in the impugned judgment and available also in the paper book, hence we avoid to burden this judgment unnecessarily by repeating all those here.
6. However, the facts briefly relevant for the disposal of these matters are that the aforementioned case was registered on the statement Exh . PA of complainant Muhammad Sultan (P.W.1).
' He has alleged therein that on 7-10-1997 at about 8-30 p.m. He alongwith his father Noor Muhammad, mother Mst. Siddician Bibi, sister Mst. Bushra Bibi and wife Mst. Razia Bibi was present in his house. His Haveli of cattle is situated opposite to his house. He went out of his house to go there. As soon as he went out of his house, Mehmood Ali armed with .12 bore gun, Amjad Ali with 8 mm rifle, Khalid Mehmood with 8 mm rifle, Arshad Ali with 222 rifle, Barkat Ali alias Barkhu with pump action, Abdul Hamid with rifle and Pappu with gun came there from their house. Mehmood Ali on seeing him raised Lalkara that he be taught lesson for firing at his brother. He out of fear of life rushed inside his house and said to his family members to save themselves by hiding in a room. .He and his family members entered the room and shut the door. The accused entered his house and they started firing. The window of the room was open. His wife Mst. Razia Bibi stood up on the Palang to close the window. Amjad Ali fired straight shot with rifle at her, which hit at her head. She fell on the bed and succumbed to her injury at the spot. They raised hue and cry. On the report of fires the residents of the village gathered there. The accused thereafter decamped from the scene while firing in the air.
' The motive behind the occurrence is that there had been litigation between them and the accused.
7. The appellants and their acquitted co-accused had pleaded not guilty to the said charge.
8. The prosecution at their trial has relied upon it's different pieces of evidence. These mainly are ocular account, medical evidence, recovery of crime-weapons and empties, motive, the reports of experts and the circumstance of the investigation. The plea of the appellants and their acquitted co-accused was that the complainant had the strained relations with his deceased wife. He had also suspected her character. He himself had done her to death. He had enmity with them and due to the same he had involved them falsely.
9. The learned trial Court has believed all the above mentioned pieces of evidence of the prosecution against them and consequently convicted and sentenced them as mentioned above.
It, however was of the view that the charge against, their remaining co-accused has not been proved beyond any shadow of reasonable doubt. It so acquitted them giving them the benefit of doubt.
10. It has been argued on behalf of the appellants that the eye-witnesses were interested for because of their relationship with the deceased and being inimical towards them and so they were worthy of placing no reliance; that in the entire prosecution evidence it has not come that there was light at the place of occurrence and as it was night time, hence there could be no question of the eye-witnesses having identified the assailants; that as per the position of the eye-witnesses at the site at the relevant time as shown by them and indicated in site-plan EX-PO it was not possible for them to have seen that who had fired at the deceased and in what manner the appellants or their acquitted co-accused had acted during the occurrence; that medical evidence has contradicted the ocular account inasmuch as that according to the eye-witnesses the deceased had died due to rifle shot made at her by appellant Amjad Ali while according to the doctor the only injury sustained by her could be by blunt weapon and such big conflict in the two sets of the prosecution evidence is absolutely irreconcilable and this heavily suggests that the eye-witnesses either had not seen the occurrence or it certainly had happened in some other way; that the recovery of crime weapons was inconsequential as these were licensed one and in fact had been planted upon them; that the motive set up by the prosecution is too far-fetched to prompt the appellants to take away the life of the deceased or to commit any other act in the house of the complainant; that in such circumstances the reports of experts were of no effect to the case against them; that the conduct of the Investigating Officer was not in accordance with dictate of his duty inasmuch as that he had got prepared all the documents in the investigation by some other person and this showS his lack of interest and casual style in the same rendering it to be unfair; and that in presence of all such facts the prosecution case stood not proved even against them and so they deserved acquittal.
11. As against the same the learned State counsel though has supported the impugned judgment but frankly has submitted that the conflict in between the ocular and the medical evidence is irreconcilable.
12. We have carefully considered the submissions made by the parties with the help of available record.
13. The ocular account of the prosecution has been rendered by complainant Muhammad Sultan (P.W.1) and his sister Mst. Bushra Bibi (P.W.2). Their evidence is almost on the line of F.I.R. Exh.PA. The deceased was the wife of the former i.e. Complainant Muhammad Sultan.
14. The enmity between them and the appellants' side is admitted fact on the record. It was because of a criminal case bearing No.31 of 1994 registered with the same police station.
Muhammad Sultan and his brother Luqman were accused in that case and the appellants' side complainant in the same. The existence of enmity between the parties due to that litigation not only stood mentioned by Muhammad Sultan himself in the F.I.R. Exh-PA but also at the trial. At the trial he has mentioned that about three years prior to the occurrence his brother Luqman had fired at Khalid Mehmood acquitted accused.
15. We are here conscious of the fact that enmity is a double edged weapon. It if prompts one to cause harm to his adversary the same can also be a motive for false implication of other in order to wreak vengeance. So, in the background of enmity between the parties, we have scrutinized the evidence of the eye-witnesses cautiously.
16. The occurrence as per their showing had taken place at about 8/8-30 P.M. On 7-10-1997. It is common observation that at such hour of the night in the early days of the month of October there is pitch dark.
17. Although Muhammad Sultan has stated that it was Sare-i-Sham at that time and darkness had not completely prevailed then but he., in that regard had not spoken truly as at such time in those days of the month of October there is complete darkness as said above. Although he has stated that the lights were on at that time but the draftsman Tahir Tasleem (P.W.12) had negated him in that behalf. He has admitted in the cross-examination that he had neither shown the burning of the electric bulb in the street nor in front of the house of the complainant in site plan Exh.PO. He has categorically stated that he could not observe the presence of electric bulb at the place of occurrence. Anyway, we are not going to attach much importance to this aspect of the matter as the occurrence as per the eye-witnesses had taken place inside the house of the complainant. It was night time and, hence the light could be there.
18. It for the sake of arguments, 'if may be believed that the two eye-witnesses were present in their house at the time of occurrence but still by their position shown in the site-plan they could not see the assailants firing at them. It is because of the fact that Muhammad Sultan complainant as said above has stated that he on seeing the accused rushed inside his house and asked his other family members to save themselves by hiding in the room and they all thereafter shut themselves in the room there and his wife when stood upon the bed to close the window the fire shot at her by Amjad Ali appellant had hit at her head and she died due to the same.
19. This shows that the complainant and his family members had hidden themselves in the room.
They in 'that condition could not see that who out of the assailants had actually fired and in fact whose fire had hit her. The window, if was open and she has stood up to close the same, then only she could see that who actually was firing outside and whose fire had hit her. The complainant and his sister Mst. Bushra Bibi who according to site-plan Exh.PO were at some distance from the position of the deceased certainly were not in position to witness the same. According to site-plan Exh.PO, the position of the deceased was at point A and that of Mst. Bushra Bibi and Muhammad Sultan at point B and D respectively. The distance of point B from point A was ten feet and of point D six feet from the same. Even otherwise, at night time in such a' situation when firing had started all of a sudden, it was not possible for the eye-witnesses to see with exactitude that whose fire had hit the deceased: This belief ' of ours is strengthened from the fact in the evidence of the Draftsman. He has mentioned that one could not assess the direction of accused persons standing at point E. He by the same had tried to show that from inside the room the presence of the accused/assailants at point E was not visible. We, therefore, are reluctant to rely upon the ocular account furnished by the two P.Ws . Mentioned above. In our opinion the learned trial Court had erred in believing their testimony due to the above stated reasons.
20. The medical evidence has caused below to the ocular account instead of lending it support or corroboration.
21. According to the lady doctor (P.W.6), the following injury was found on the dead body of the deceased:-- "A lacerated wound 7 x 1.5 cm. No blackening on margins was present. On top of head in mid line and brain matter was visible through the wound, corresponding cut on Dupatta was present".
22. She in the cross-examination has stated that she could not opine about the kind of weapon used in the infliction of this injury. She has clearly stated that the lacerated wound can be caused by blunt weapon.- The injury found on the dead body of the deceased was a lacerated wound of the above dimension. There was no blackening present on the margins of the wound. It was on the top of the head in the mid line and brain matter was visible through the wound with corresponding cut on her Dupatta. She has made the matter more doubtful by saying that the injury was caused from upward to downward This is ire consignable that if the deceased was standing on the bed which normally is at the level of 2/3 feet height from the ground level and the assailants were on the lower level than that of her, then the direction of the fire which had hit her could not be from upward to downward. The non-presence of blackening on the margins of the wound too had made it doubtful that if it was caused by fire-arm. The stance of the eye-witnesses is that the deceased had received fire-arm injury on the top of her head and she had died due to the same. The expert evidence, if believed then it would come out that perhaps the eyewitnesses had not seen the occurrence or that it had happened in some other way than the one described by them. The medical evidence, therefore, has greatly damaged the stand of the eye-witnesses as regards the injury found on the dead body of the deceased, which ultimately had become the C cause of her death. It is in complete negation to the same. The same, therefore, could not be used, as supportive to the ocular account.
23. The evidence regarding the recovery of crime weapons from the appellants, has been furnished by Nisar Ahmad (P.W.5) and Mazhar Hussain, Inspector (P.W.9). According to them the three appellants had got recovered the rifles from their houses. Nisar Ahmad is the brother-in-law of the complainant. He belongs to village Sokan Wand. The recovery from the appellants as per his showing had been effected from their village Adoke. The same as per his snowing is at a distance of 7/8 miles from his village.
24. He is close relative of the complainant. There is enmity between the, complainant party and the appellants. He in such situation, when he did not belong to the place of recovery and rather to another village, is not readily believable.
25. This recovery, even otherwise, is inconsequential as Mazhar Hussain, Inspector has admitted that respective places of recoveries of these weapons were inhabited by other members of the families of these appellants. According to him these were not in their exclusive possession. He has also admitted that the rooms where from the recovery was made were lying open at the time of recoveries. These weapons admittedly were licensed one., It is the appellants' plea that these have been planted upon them. Anyway, these recoveries were not worth the while as these were effected from the places which were lying open and were also in possession of other persons besides than them. The evidence of recovery, therefore, could not be used as of any corroborative value to the ocular account. The learned trial Court, therefore, has erred in relying upon the same and receiving it as a piece of corroboration to the ocular testimony.
26, The motive part of the prosecution story has been narrated by both the eyewitnesses.
According to them about three years prior to the occurrence Luqman, the brother of Muhammad Sultan had fired upon Khalid Mehmood accused. It is the own case of the appellants' side that F.I.R.
No. 31 of 1994 was registered with the Same police station in respect of that occurrence and Mehmood Ali, was the complainant in the same. So the happening of the earlier incident, which has been reported vide F.I.R. Mentioned above is an admitted fact. The question now is to be seen that if the said incident had played as a factor in launching attack by the appellants' side upon the complainant party as is their case. The answer to such question is readily not available in affirmative. It is because of the fact that complainant Muhammad Suleman had admitted in the cross-examination that the accused party did not try to attack upon them after that occurrence till the present one. The period of three years had elapsed in between the happening of that incident and the present occurrence. During this long period admittedly the appellants' side did not attack them in any way. It is then astonishing that what happened on the day of incident that they all of a sudden had attacked them. The answer to that question is not easily available. It even for the sake of arguments, if may be believed that the occurrence had taken place in the way has been narrated by the eye-witnesses but still the immediate cause or motive at least which has played as factor on the relevant day in the happening of the occurrence is not known.
27. It may also be mentioned here that Muhammad Sultan had stated that during this period accused party once had beaten their companion Muhammad Anwar. He but in the same breath has stated that he was not present at that occasion and that incident was not reported' to the police as the move for compromise was initiated on their behalf. The parties when were on inimical terms to each other and the appellants' side, if had beaten the man from of their party, then why they did not report the matter to the police is not understandable. This shows that perhaps no such incident had taken place and the complainant just had created an excuse to say that during the period of these three years the sentiments of hostility perhaps had remained boiling with the appellants' side and they finding an opportunity had attacked them. But the circumstances appearing from his own evidence belie such an idea.
28. There, thus had been found no immediate motive with the appellants' side to initiate aggression of the type. They had got registered the case. The same was pending in the Court. Hence some decision was expected in the same. They, therefore, probably could not loose patience all of a sudden to commit such an act. There, thus had been no occasion with them to act in that way and that too without any provocation on the relevant day. The motive, therefore, to us is far-fetched to be readily believed. The learned trial Court, therefore, has wrongly believed the same.
29. As the recovery of the crime weapons has not been believed by us, henc the report of Forensic Science Laboratory Exh.PR is of no effect qua the acceptability of the prosecution version. Similar is the position of the report of the Chemical Examiner Exh.PP and that of Serologist Exh.PQ as the ocular account furnished by the prosecution has not been found inherently reliable.
30. The conduct of the Investigating Officer, Mazhar Hussain, Inspector has been found to be very casual. He did not appear to have conducted the investigation diligently and in a responsible manner. He has admitted that all the applications regarding physical and judicial remand of the accused were in the hand of one Hanif Shah, S.-I. (retired). He has also admitted that the report under section 173, Cr.P.C. And the calendar of the witnesses in the same were also in the hand of said person. He has also admitted that the statements of the witnesses were also in his hand. He has also admitted that the said S.-I. Was not posted in the Police Station Niddoke, District Narowal in those days. He has also admitted that he did not show any disability to write the case diaries in his own hand. He has also admitted that he cannot show any case diary from the police file, which was written by him. Although he has mentioned that the case diaries were written by Hanif Shah, S.-I. On his dictation but when he was not physically disabled to write the same himself, then why he had allowed that retired police official to do so. His this conduct is not only against the rules on the subject but also against the dictates of his duty. This heavily suggests that his conduct in the investigation was very casual and attitude highly irresponsible. The same certainly can't be approved. This also suggests that he has not conducted the investigation with true zeal to dig out truth and rather entrusted to some other person, who was not supposed to touch even the official record. It, therefore, needs to be checked strenuously. His investigation, therefore, could not be said to be fair one. Hence, his testimony could not be used as supportive circumstance to the ocular account.
31. We, therefore, from the above discussion have been compelled to hold that the prosecution has failed to bring home the guilt to the appellants even beyond any shadow of reasonable doubt. The learned trial Court, therefore, has erred in convicting and sentencing them. The impugned judgment of their conviction and sentence, therefore, is not liable to be sustained.
32. We, therefore, accept their appeal, set aside the impugned judgment to the extent cf their conviction and sentence and acquit them of the charge giving them the benefit of doubt. They are in custody. They be set at liberty forthwith, if are not required in any other case.
The murder reference is answered in the negative. The death sentence is not confirmed.
33. Let a copy of this judgment be sent to I.G. Police Punjab for his information and action against Mazhar Hussain, Inspector (P.W.9) for his above indicated untoward conduct in the investigation of the case.