' SH. ABDUR RASHID, J.---Fayyaz Ahmad son of Khushi Muhammad, caste Arain aged. 27 years resident of Kot Mehmood (appellant) was tried in case F.I.R. No.370, dated 12-10-1996 under section 302, P.P.C. Registered at Police Station Sharqpur District Sheikhupura by the learned Additional Sessions Judge, Sheikhupura who vide judgment dated 29-6-1998 convicted the appellant under section 302(b), P.P.C. And sentenced him to death subject to confirmation by the High Court and further ordered him to pay fine of Rs.30,000 to be paid as compensation to the legal heirs of the deceased. Feeling aggrieved by his conviction and sentence the appellant has filed this Appeal No.752 of 1998 whereas Murder Reference No.247 of 1999 has been received for confirmation of death penalty. The Criminal Appeal and Murder Reference are jointly disposed of by this judgment.
2. Briefly stated the facts of the prosecution case as narrated in the F.I.R. Exh.P.A. Lodged by Munir Ahmad complainant are that on the night between 11/12-10-1996 the complainant alongwith his wife and daughter were asleep in the residential room in the second storey of his house while his son Shaukat alongwith his wife was asleep in the adjoining room. At about 1-30 a.m. Due to noise in the adjoining room he woke up and had seen that an unknown culprit having 5 feet, 10 inches height, with robust physique aged about 25/26 years having his face muffled was grappling with his son Shaukat and daughter-in-law and on his Lalkara the said culprit fired with his carbine hitting Shaukat on his forehead who died at the spot. Throwing his carbine the unknown culprit made good, his escape. Leaving the dead body in the custody of his relations Munir complainant went to the Police Station Sharqpur and narrated the occurrence to Muhammad Ashraf, Inspector/S.H.O. Who recorded his F.I.R. Exh.P.A. As per his dictation which was read over to him who thumb-marked the same in token of its correctness.
3. After registration of the case Muhammad Ashraf, Inspector/S.H.O. Proceeded to the place of occurrence where the dead body of Shaukat deceased was lying. He prepared his inquest report Exh.P.F. And injury statement Exh.P.F.3. He also prepared rough site-plan Exh.P.I. Which all are in his handwriting and bear his signatures. He also took into possession blood-stained earth from the place of occurrence vide memo. Exh.P.B.', carbine P.1 alongwith empty cartridge P.2 were also secured from the place of occurrence vide memo. Exh.P.C. Both the said memos. Were attested by Abdul Rashid and Ashiq Ali P.Ws. He recorded the statements of P.Ws. And entrusted the dead body to Shah Din and Manzoor Ahmad, Constables for its transmission to the mortuary for post-mortem examination.
4. On 12-10-1996 Dr. Javed Iqbal, Medical Superintendent, Tehsil Headquarter Hospital Nankana, conducted postmortem examination on the dead body of Shaukat deceased and he found the following injury on his person:-
(1) An extensive fire-arm laceration extending from forehead to top of skull, 10 c.m. Wide, brain deep, brain matter was prolapsing out of wound.
' The Medical Officer also found that vault skull had been blown away alongwith part of brain. Four broken bullets were recovered from the brain which were sealed and were handed over to the police. Rest of the organs were found to be healthy.
' In the opinion of the Medical Officer the death had been caused due to the fire-arm injury to skull causing severe brain damage resulting in cardio-respiratory failure. The injury was ante-mortem.
The time between injury and death was few minutes and the probable time between death and post-mortem examination was about 12 to 24 hours. The stitched body alongwith police papers, last-worn clothes of the deceased, post-mortem report and a sealed phial containing bullets were handed over to Manzoor Ahmad, Constable. Exh.P.F. Is the correct carbon copy of the post-mortem report while Exh.P.F.1 is diagram showing the location of injuries which are in the handwriting of the Medical Officer and bear his signature.
5. After the post-mortem examination the last-worn clothes of the deceased i.e. Bunain P.7, Shalwar P.8 were produced by Manzoor Hussain, Constable before the Inspector/S.H.O. Which were taken into possession vide memo. Exh.P.H. The Inspector/S.H.O. Also directed Abdur Rahim Kazmi, Draftsman to prepare site-plan of the place of occurrence who on the pointation of the P.Ws.
Prepared site-plan Exh.P.G. And its copy Exh.P.G.1 and the Inspector/S.H.O. Gave his notes in red ink on the same.
6. On 21-10-1996 Fayyaz appellant was arrested in this case and while in police custody got recovered torch P.3 and 2 cells P.4/1-2 which were taken into possession vide memo. Exh.P.G.
7. Upon completion of the investigation the appellant had been challaned in this case which came up for trial before the learned Additional Sessions Judge who charged the appellant under section 302, P.P.C. Which was .Read over And explained to him in the language which he understood who pleaded not guilty and claimed to be tried.
8. The prosecution produced Munir Ahmad P.W.1, Shahnaz Bibi P.W.2, Shah Din, Constable P.W.3, Zulfiqar All P.W.4, Abdul Rashid P.W.5, Amjad All P.W.6, Dr. Javed lqbal P.W.7, Syed Abdul Rahim Kazmi, Draftsman P.W.8, Muhammad Rashid P.W.9, Muhammad Ashraf, Inspector P.W.10, Muhammad Iqbal, Head Constable P. W.11 and Riaz Ahmad Head, Constable P.W.12. The learned D.D.A. Gave up the remaining P.Ws. And tendered in evidence report of Forensic Science Laboratory Exh.P.J. And that of Chemical Examiner Exh.P.K. And closed the prosecution case. Upon conclusion of the trial the appellant had been convicted and sentenced as mentioned above, feeling aggrieved by which this appeal had been filed.
9. The learned counsel for the appellant has mainly argued that according to the evidence of the complainant who is an eye-witness of the occurrence the culprit had muffled his face and that till he lodged the report with the police the identification of the culprit .Was not known to the eyewitnesses and that subsequently the appellant had been roped in this case on account of false suspicion and to support his involvement a fake evidence of Waj Takkar and extra-judicial confession had been concocted. It has been also argued that till the police had reached the place of occurrence and prepared the inquest report the name of the culprit was not known to any person and that subsequently through the statement of Mst. Shahnaz wife of the deceased, the involvement of the appellant had been broached and that where the identify of the actual culprit by the eyewitnesses is doubtful then evidence like Waj Takkar and extra-judicial confession which seems to be improbable is not legally sufficient to base the conviction. It has also been argued that the appellant had no motive whatsoever to commit the occurrence and the prosecution evidence produced is replete with infirmities.
10. The incriminating prosecution evidence produced in this case can be divided into the following categories:--
(i) Ocular,
(ii) Waj Takkar,
(iii) Extra-Judicial Confession.
11. Munir Abroad complainant P .W .1 who is father of Shaukat deceased and is eye-witness of the occurrence while appearing as P.W. 1 stated that about 1-1/4 years ago he alongwith his wife and, daughter were asleep on the second storey of his house; his son Shaukat Ali (deceased) alongwith his wife Shehnaz Bibi were asleep in another root; on the same storey of the house. At about 1-30 a.m. He was awakened by noise and had seen that his son and daughter-in-law were grappling with an unknown person who was having a height of 5 feet and 10 inches and was aged about 25/26 years. He raised alarm upon which the person who had muffled his face fired with his carbine hitting Shaukat deceased on his forehead who fell down and died at the spot and the culprit ran away. He and his brother Latif went to police station, leaving his daughter-in-law near the dead body and made a statement before the police which is Exh.P.A. Which was read over to him and he affixed his thump-impression on it in token of its correctness. The police party then reached the .Place of occurrence alongwith him and there his daughter-in-law told that she had recognized the assailant who was Fayyaz and that his son Shaukat deceased had some dispute with Fayyaz about a matter of "Committee" and the accused had threatened to teach him a lesson.
12. Mst. Shahnaz Bibi wife of the deceased while appearing as P.W.2 stated that about 1-1/2 years ago at about 1-30 a.m. She and her husband Shaukat deceased were asleep in a room of second storey of their house. Her father-in-law, mother-in-law and sister-in-law were asleep in the adjoining room. A person having height of about 6 feet aged about 26 years who had muffled his face entered the room and lit his torch upon which they woke up and grappled with the said person. Her father-in-law raised alarm and then the accused fired at her husband hitting him on his forehead who died at the spot. The assailant escaped while throwing his carbine on the spot and he was Fayyaz appellant and she had identified him in the light of bulb. Her husband had a dispute about the "Committee" with the accused and the accused appellant had threatened him to teach a lesson.
13. It is borne out from the evidence of P.W.1 that when the culprit grappled with Shaukat deceased and his daughter-in-law, then he had gone to the room of the deceased and had seen them grappling and at that time the culprit was having his face muffled, when the deceased upon receipt of fire shot injury fell down and expired. The complainant in the ordinary course of human conduct must have stayed in the room alongwith the dead body of his son for about 10/15 minutes before proceeding to the police station. During this period Mst. Shahnaz Bibi P.W.2 wife of the deceased must be present in the room bewailing over the dead body of her deceased husband.
Had she recognized the appellant as stated by her in her evidence then it was quite natural that she would have named the assailant while lamenting the death of her husband in the presence of Muhammad Munir complainant before he proceeded to the police station to lodge the F.I.R. It is prosecution case itself that till Munir complainant lodged the F.I.R. The identity of the real culprit was not known to the complainant and i.e. Why the name of the culprit had not been mentioned in the F.I.R. After lodging of the F.I.R. The Inspector/S.H.O. Came to the place of occurrence and it has been admitted by both the eye-witnesses in their cross-examination that before preparing the papers he had interrogated and examined Mst. Shahnaz Bibi wife of and as well as mother and sister of the deceased. P.W.1 admitted that Police Officer interrogated his daughter-in-law wife and daughter before completion of the papers of the dead body. If Mst. Shahnaz Bibi had recognized the culprit during the occurrence and had named him before the police on its arrival as stated by P.W.1 then the name of the culprit should have been mentioned in the portion of inquest report in which brief history of the facts of case are to be described. The perusal of inquest report Exh.P.D shows that name of the appellant as culprit had not been mentioned in the brief history and facts of the case but instead it had been incorporated therein that the culprit was having his face muffled. Thus it is evident that till Mst. Shehnaz Bibi had been examined by Inspector/S.H.O. Before preparation of inquest report Exh.P.D. And till it was prepared the name of the culprit was not known to the eye-witnesses.
14. The eye-witnesses have attempted to introduce a motive that the deceased had some "Committee" dispute with the appellant and the latter had threatened him to teach a lesson. P.W.1 had admitted in his cross-examination that the "Committee" used to be collected from 50 share- holders by Shaukat deceased and its accounts were also maintained by him and that the "Committee" was not decided by ballot but was conducted through Bolly (bid) and that dispute about "Committee" arose between the deceased and the appellant feW days prior to the occurrence. However, the prosecution had not produced any witness or any other member of the said "Committee" to prove the factum of any dispute or its nature between the deceased and the appellant. If the Committee was to be given through Bolly then there can be no possibility of any such dispute between the deceased and the appellant. Thus it is borne out from the ocular version that at the time of occurrence the culprit was having his face muffled and he could not be identified and his name was also not known to the witnesses till preparation of the inquest report Exh.P.D. The ocular version has thus failed to establish to identify the actual culprit.
15. The prosecution has produced Amjad Ali P.W. Who stated that about 1-1/2 years ago at 2-00 a.m. He alongwith Bashir Ahmad were proceeding towards metalled road on a tractor trolley loaded with guavas and when they reached near the Sheller electric bulb was on. Fayyaz appellant passed from nearby and went away while running. The prosecution through the testimony of this P.W. Has attempted to show that the appellant was seen near around the place of occurrence at the relevant time of occurrence. This P.W. Is related to the complainant party and is an employee in the WAPDA as Meter Reader and was posted in Sub-Division Office, WAPDA at Sharqpur during the days of occurrence. In his cross-examination he revealed that he was taking his guavas on the tractor trolley of one Bashir who was driving the said vehicle and they were subsequently loaded on a bus to be taken to Lahore. However he himself did not go to Lahore alongwith his goods. It had also not been explained as to who was to receive his guavas which were sent to Lahore. The tractor driver Bashir who is an independent person had not been produced to support the factum that this P.W. Was going on his tractor trolley as stated by him. The appellant was seen near the Sheller near about the time of occurrence. However, even if the testimony of this P.W. Is believed still it is not evident as to how far the accused was seen by this P.W. From the actual place of occurrence. The mere passing of the appellant on the road side does not necessarily show that he was coming from the house of the complainant after having committed the occurrence, A therefore, the evidence of P.W.6 also does not advance the prosecution case.
16. Zulfiqar Ali while appearing as P.W.4 has tried to prove the factum of extra-judicial confession having been made by the appellant before him. He had stated that about 1 year and 5 months ago he went to have potato seed from one Malik Munir Ahmad who met him near the nursery of Forest Department situated near the gate of Government Pilot High School, Sharqpur. Fayyaz appellant came over there and told them that there was a dispute regarding Committee and Shaukat (deceased) had refused to pay him the same and also insulted him due to which he had murdered him. The appellant requested them for help during investigation to which they both refused.
17. In cross-examination this P.W. Stated that Malik Munir from whom he wanted to have potato seed did not run any regular shop for the sale of the potato seed. He accosted Malik Munir Ahmad per chance near the Forest Nursery and this P.W. Had no particular business to go there. He also admitted that he had special relationship with the police and could get a man freed from the police. First of all the appellant had no particular reason to go to this P.W. And make extra-judicial confession. He could have himself gone to the police station and surrendered himself before the police, if however he felt uncomfortable in surrendering himself before the police and needed the help of some person to produce him then when he made extra-judicial confession before this P.W., in the normal course of human conduct he should have apprehended him and should have produced him before the police as he claimed to have special relationship with the police. He admitted in his cross-examination that they did not apprehend the accused, nor did they produce him before the police. This conduct of the P.Ws. Is unnatural and improbable and is only suggestive of the fact that no extra-judicial confession had been made by the appellant before him.
18. In view of the above discussion the ocular version having failed to establish the definite identify of the appellant as the culprit; seeing of the appellant by a chance witness on the road and extra- judicial confession, which is replete with improbabilities cannot be regarded as sufficient corroboratory evidence to ocular version to support. The conviction in this case. Therefore, by accepting this appeal we set aside the appellant's conviction and sentence and acquit him of the charges. He is in jail and be released forthwith if not required in any other case.
19. The murder reference is answered in the negative.