' This judgment will dispose of (1) Criminal Appeal. No, 8 of 2001, (2) Criminal Appeal No, 123/J of 2001 and (3) Criminal Revision No, 176 of 2001, all of which are directed against the judgment, dated 12-12-2000 passed by the learned Sessions Judge, Mandi Bahauddin, whereby he had convicted Mudassar Shahzad and Liaquat Ali appellant in case of F.I.R. No, 439 registered on 26-12-1995 in Police Station, City Mandi Bahauddin under section 302(b), P.P.C. And had sentenced them to imprisonment for life as Tazir.
2. The case against the accused i,e, Mudassar Shahzad and Liaquat All is based on F.I.R. Exh.P.B./1 which was registered on the basis of the statement Exh.P.B. Of Muhammad Aslam son of Haji Qutab Din (P.W.2) and wherein he had stated that he is a resident of Qilla Gujran. His sister Mst. Anwar Begum (deceased) was married with one Ilam Din son of Fazal Din about 17/18 years ago. Out of the wedlock, they had two daughters namely Mst. Alia and Abida in the meantime. Mst. Anwar Begum developed illicit relations with Liaquat Ali and who got a suit for dissolution of marriage filed by Mst. Anwar Begum against Ilam Din in the Court at Mandi Bahauddin but the suit was dismissed.
However, the Honourable High Court decided the mater in favor of Mst. Anwar Begum and 1-1/2 year later she contracted Nikah with Liauqat Ali. Liaquat Ali then started demanding the property (share of Mst. Anwar Begum) from them. On the day of occurrence i,e, on 26-12-1995 the complainant alongwith Nazir Ahmad and Liaquat son of Imam Din went to their house to request Mst. Anwar Begum not to demand the share of property from them. When they reached in her house situated in Mohallah Usmania, Mandi Bahauddin, she was washing clothes. The complainant and his sister were talking to each other for compromise when Mudassar Shahzad accused armed with a rifle .7 mm came there and said that he will not spare Mst. Anwar Begum and at the same time he fired three shots with his rifle .7mm at her and which hit her on her chest towards left side, on the left shoulder, on the abdomen towards the right side, on the little finger of right hand and also on the ring finger. The complainant and his companions did not go near him on account of fear and Mudassar Shahzad accused fled away while waving the gun. The deceased succumbed to the injuries at the spot. In the F.I.R. The complainant alleged that Mudassar Shahzad accused had killed his sister in consultation. With his paternal uncle Liaquat Ali co-accused and the motive for the occurrence was that his sister Mst. Anwar Begum was compromising with him i,e, with the complainant and on account of the said grievance Liaquat Ali got her killed by his nephew (Mudassar Shahzad) after the consultations. Hence, the matter was reported to the Police.
3. After investigation the challan was submitted against Mudassar Shahzad accused while the name of Liaquat Ali accused was placed in Column No,2 of the challan. However, both the accused were summoned by the Court to face the trial.
4. The accused were formally charged by the learned trial Court on 5-10-1998 and to which both of them pleaded not guilty and the prosecution was thus asked to produce its evidence.
5. The prosecution has examined in this case as many as 10 P.Ws. Of them, P.W.9 is Muhammad Amin, Inspector who on 26-12-1995 was posted as S.H.O. In Police Station, City Mandi Bahauddin. On the said date he was on patrolling duty and was at Saddar Chowk, Mandi Bahauddin where Muhammad Aslam complainant got recorded his statement Exh.P.D. After recording his statement he sent the same to the police station through a Constable for registration of F.I.R. Then he visited the place of occurrence, prepared injury statement of Mst. Anwar Begum deceased (Exh.P.G.) and also the inquest report (Exh.P.G/1). The dead body of Mst. Anwar Begum was sent to the Hospital for postmortem examination. He prepared the site-plan of the place of occurrence Exh.P.H. And also took into possession the blood-stained earth. He also took into possession two empties of .7mm rifle P.1/1-2 which were made into a sealed parcel. On 27-12-1995 the last worn clothes of the deceased were handed over to him by the Constable. On 31-12-1995 Muddassar Shahzad and Liaquat Ali accused were arrested. He deposed that on the pointation of Mudassar Shahzad accused rifle .7mm (Exh.P.3) was recovered from his residence and was taken into possession vide recovery memo. Exh.P.F. P.W.9 also got prepared the site-plan in triplicate from Muhammad Siddique, Draftsman. He recorded the statements of P.W,s. Under section 161, Cr.P.C., completed the investigation and prepared the report under section 173, Cr.P.C. During cross-examination, P.W.9/Investigating Officer stated that Liaquat Ali accused was found innocent during the course of investigation and that the D.S.P. Saddar Circle, Mandi Bahuddin had also concurred with his investigation. He also admitted that the place of occurrence was surrounded by. Residential houses. He explained that he had called the persons from the surrounding area of the locality but no one appeared before him. He admitted that 11am Din, the ex-husband of the deceased, was posted as A.S.1. He also stated that it was not in his knowledge that Muhammad Aslam complainant and Mst. Anwar Begum deceased had a dispute about a piece of land. Fie did nor know whether the place of recovery was owned by Muhammad Ilyas. He admitted that no one from the locality in question was called at the time of recovery.
6. P.W.1 is Dr. Asif Ali Khan, S.M.O. Who on 27-5-1995 at 10.00 a.m. Had conducted the post-mortem examination on the dead body of Mst. Anwar Begum deceased and had found injuries (as described in the post-mortem' report Exh.P.A.) on her dead body. According to him all the injuries were ante-mortem and had been caused by fire-arm and were sufficient to cause death in ordinary course of nature. According to him injuries Nos. 1 to 7 were contributory to death and the cause of death was haemorrhage/shock leading to cardio respiratory failure. According to him the duration between injuries and death was few minutes and that between death and post-mortem examination was 6 to 24 hours. Exh.P.A. Is the copy of post-mortem report while Exh.P.A./1-2 are the diagrams of injuries.
7. P.W.2 is Muhammad Aslam complainant while P.W. 3 is Muhammad Nazir. Both of them have, been examined by the prosecution as eye-witnesses of the occurrence and who deposed on the same lines as indicated in the F.I.R. P.W.2 Muhammad Aslam also deposed that the motive behind the occurrence was that Mudassar Shahzad accused had got arranged the dissolution of marriage of his deceased sister from Illam Din and had got her married with Liaquat and that Liaquat accused was demanding the share of Mst. Anwar Begum, his deceased, sister, from him and Liaquat accused had also made complaint in Police Station, Saddar, Mandi Bahauddin and where he was summoned. His deceased sister had called him to her house to effect a compromise with Liaquat Ali, when the aforesaid occurrence had taken place. He further stated that a day before the occurrence he and Nazir P.W. Had gone to his sister's house for a compromise. He also stated that they had seen and heard Liaquat accused requiring Mudassar Shahzad to kill Mst. Anwar Begum as she was effecting a compromise with her brother. Similarly P.W.3 also narrated the same story regarding the alleged compromise although with a bit variation.
8. P.W.6 Muhammad Siddique is a recovery witness of two empties of rifle .7mm which had been secured by the Investigating Officer vide memo. Exh P . D. And which was also attested by him.
9. P.W.7 Muhammad Arif is a witness of recovery of rifle .7mm P.3 which had been effected on the pointation of Mudassar Shahzad accused and which was taken into possession by the Investigating Officer vide memo. P.F.
10. On 13-4-2000, the learned Prosecutor tendered in evidence the report of the Chemical Examiner Exh.P.L. Report of Serologist Exh.P.L./1 and report of the Forensic Science Laboratory Exh.P.N. And closed the case for the prosecution.
11. On the conclusion of the prosecution evidence, the statements of the accused were recorded under section 342, Cr.P.C. And wherein they denied all the incriminating circumstances. In answer to question No,3 Mudassar Shahzad accused took the plea that in fact Mst. Anwar Begum deceased had longstanding enmity with Muhammad Aslam complainant and P.Ws. And she was murdered by the complainant party but he was falsely involved in this case due to his relationship with his co-accused Liauqat Ali. He also took the plea that actually his name was Mubashar Shahzad and not Mudassar Shahzad. He stated that Mudassar Shahzad is the name of his real brother. In answer to the question as to why this case against him and why the P.Ws. Have deposed against him, he replied that he had been falsely involved in this case on account of his relationship with Liaquat Ali accused and all the P.Ws. Are closely related to the complainant and have falsely deposed against him and his co-accused. Liauqat Ali accused, in answer to question No,5, denied that he was demanding share of Mst. Anwar Begum on her behalf. He stated that as a matter of fact she had demanded her legal share from her ancestral property as Aslam complainant was possessing the entire ancestral property and there was a longstanding enmity between the deceased and the complainant and many criminal cases were pending between them. In answer to the question as to why this case against him and why the P.Ws. Have deposed against him, Liaquat Ali accused stated that as a matter of fact Mst. Anwar Begum was murdered by Muhammad Aslam, who in order to save his skin, had got this false case registered against him in connivance with his relatives.
12. None of the accused made statement on oath in disproof of the charges/allegations levelled against them. However, Mudassar Shahzad accused stated that he will produce evidence in defence.
13. In his defence evidence Mudassar Shahzad accused examined D.W.1 Rasheed Ahmad, Registration Clerk and who proved the copies of Form A, Exhs.D.A. And D.B. And also a copy of Form B as Exh.D.C. Mudassar Shahzad accused also tendered in his defence evidence copies of some other documents as Exh.D.D. To Exh.D.L. And closed the prosecution evidence.
14. On the conclusion of the trial, the learned Sessions Judge, Mandi Bahauddin convicted and sentenced the accused as aforesaid. Against his conviction and sentence Mudassar Shahzad accused has filed Criminal Appeal No, 8 of 2001 (which was initially filed on behalf of Mubashar Shahzad and Mudassar Shahzad) but subsequently vide order, dated 12-1-2001 it was observed by this Court that Mubashar Shahzad accused had not been convicted and the person who had not been convicted cannot file appeal and hence the appeal to his extent is not maintainable. Thus, the appeal to the extent of Mubashar Shahzad was dismissed on the aforesaid date i,e, 12-1-2001 and the same is in the field only to the extent of Mudassar Shahzad). Liaquat Ali accused/appellant has filed Criminal Appeal No,123/J of 2001 challenging his conviction as well as the sentence awarded to him by the learned trial Court. Muhammad Aslam complainant has filed Criminal Revision No, 176 of 2001 and whereby he has prayed for enhancement of sentence awarded to both the accused by the learned trial Court.
15. The learned counsel for Mudassar Shahzad accused has argued that both the eye-witnesses in this case i,e, P.W.2 Muhammad Aslam and P.W.3 Muhammad Nazir are chance witnesses and their testimony cannot be relied upon unless corroborated by some other independent evidence. He has argued that both the eye-witnesses were inimical towards the accused party and both of them have failed to give reasonable explanation for their presence at the place of occurrence. He has argued that according to the F.I.R. The eye-witnesses had gone to the house of the deceased to request her not to demand the ancestral property from the first informant i,e, the brother of the deceased and it is their version that the deceased had called the first informant to effect a compromise with Liaquat Ali appellant. However, both these explanations were factually incorrect because the property had already been partitioned and the deceased had got physical possession thereof and the deceased had got the property through litigation with the firs't informant. He has argued that both the parties were inimical towards each other and were not on visiting terms and there was no occasion to call the first informant to affect a compromise. He has argued that the prosecution has been actually unable to indicate as to what had suddenly happened which had compelled the deceased to effect a compromise with Liaquat Ali who was having long-standing animosity towards her. He has argued that the eyewitnesses had made dishonest improvements in their statements and that Muhammad Aslam complainant is an interested witness as he was having enmity with Liaquat Ali P.W. While the other eye-witnesses were closely related to him. He has argued that the prosecution had set up motive against Liaquat Ali accused but has miserably failed to prove the same and that Mudassar Shahzad accused who is actually Mubashar Shahzad and not Mudassar Shahzad, is quite alien to the motive. He has argued that the deceased had already obtained her share of ancestral property and there was also nothing on record to suggest that she was willing to hand over the property, obtained by her through litigation, to the first informant. He has argued that the medical evidence contradicts the ocular version as the number of shots allegedly fired by the assailant and the number of injuries on the person of the deceased were not the same. He has argued that the assailant had allegedly fired three shots but there were seven entry wounds on the person of the deceased. Furthermore, according to the ocular version, Mudassar Shahzad accused had fired three shots from one point whereas according to the medical evidence injuries were caused from different directions. So far as the witnesses of recovery of crime empties are concerned, they were closely related to the first informant and were not from the locality in question. They were inimical towards the accused and after the recovery crime empties were not handed over to the Moharrar and hence an important chain in that respect is missing. He has argued that the crime empties were sent to the Forensic.
Science Laboratory after the recovery of rifle and hence the report of the Forensic Science Laboratory is of no significance. Similarly, about the recovery of rifle he has argued that the recovery witnesses were closely related to the first informant and they did not even know as to whether the house in question (from where the recovery was effected) belonged to the appellant or not. He has argued that no one from the locality in question was called to join the proceedings and the Moharrar i,e, P.W. 4 did not state that he had ever received the parcel containing rifle and that he had handed it over to anyone.
16. The learned counsel for Mudassar Shahzad accused has also argued that no one from the locality in question was joined with the investigation although a large number of people had gathered there. He has argued that Mudassar Shahzad accused/appellant had no interest in the property of the deceased nor he had any enmity with her and that the whole edifice of the prosecution story is founded on the presumption that Liaquat Ali accused was interested in the property of the deceased and that the deceased was effecting a compromise with the first informant whereas admittedly the property had already been got partitioned by the deceased through litigation. Hence the conviction and sentence awarded to him by the learned trial Court be set aside.
17. The learned counsel for Liaquat Ali accused/appellant has argued that there is hardly any evidence on record about the alleged abetment on the part of Liaquat Ali and that testimony of P.W.2 and P.W.3 that a day before the occurrence they had gone to the house of the deceased for a compromise when they saw and heard Liaquat Ali accused requiring Mudassar Shahzad to kill his sister i,e, Mst. Anwar Begum as she was effecting a compromise with his brother is simply unbelievable because if the accused were to kill Mst. Anwar Begum, it was not necessary for them to wait for P.W. 2 and P.W.3 on the next day so that they could become eye-witnesses of the occurrence. He has argued that P.W.3 Muhammad Nazir in the course of cross-examination stated that on 25-12-1995 when he and the complainant had gone to the house of Mst. Anwar Begum deceased, Liaquat Ali and Mudassar Shahzad were planning to murder Mst. Anwar Begum and that they had told Mst. Anwar Begum about the said planning. He has pointed out that the statements of P.Ws.2 and 3 on this point are in fact not in consonance with each other and the statement of P.W. 3 does not fully corroborate the statement of P.W. 2 on this point. He has argued that the prosecution had failed to prove its case against Liaquat Ali accused/appellant and there was no lawful justification for his conviction in this case and which is liable to be set aside.
18. From the other side the learned counsel for the State assisted by the learned counsel for the complainant has resisted both the appeals on the plea that there is sufficient evidence on record to warrant conviction of both the accused/appellants and that the learned trial Court had rightly convicted both the accused/appellants. The learned counsel for the complainant has further argued that as the charge framed against both the accused had been proved, therefore they should have been awarded normal sentence of death under section 302(b), P.P.C. Instead of awarding them lesser punishment. He has argued that there is sufficient reason for enhancement of sentence and hence the revision petition filed y the complainant be accepted and sentence awarded to both the accused/appellants be enhanced.
19. So far as Liaquat Ali accused is concerned, he had allegedly abetted the offence. According to P.W.2. The motive behind the occurrence was that Mudassar Shahzad accused, after dissolution of marriage of the deceased with Ilam Din had got her married with Liaquat Ali and thereafter Liaquat Ali accused had started demanding the share of Mst. Anwar Begum from the complainant. He further stated that a day before the occurrence he and Nazir P.W. Gone to his sister's house for compromise when they saw and heard Liaquat Ali accused requiring Mudassar Shahzad to kill Mst.
Anwar Begum as she was effecting a compromise with his brother i,e, the complainant. During cross-examination P.W.2 stated that mutation of inheritance in respect of the estate left by his father had already been sanctioned. He also admitted that his sisters had got a decree in a suit for partition in respect of their shares. He admitted that they i,e, the complainant party wanted that Mst,. Anwar Begum should remain settled as the wife of IIlam Din i,e, her previous, husband. He denied that his deceased sister had submitted complaints against him, apprehending her death at her hands. He, however, admitted that his deceased sister had been submitting applications against him but claimed that it was on the behest of Liaquat Ali accused P.W.2 further admitted that three of his sisters had obtained the possession of their shares as a consequence of decree for partition. He denied that at the time of execution of warrants for possession by the Girdawar he had quarrelled with his sister and had injured Mst. Anwar' Begum deceased or that any criminal case was ever registered against him for injuring Mst. Anwar Begum. He admitted that proceedings under sections 107/151, Cr.P.C. Were taken against them in Police Station, Sadder, Mandi Bahauddin and Nazir P.W. Was one of those persons who were involved in those proceedings. During cross- examination he also stated that he had not informed the local police about the planning of the two accused for the murder of his sister.
20. P.W.2 is supported by P.W.3 and who deposed that on 25-12-1995 he himself and Muhammad Aslam complainant had gone to the house of Mst. Anwar Begum deceased. The statement of P.W.2 that they had seen and heard Liaquat requiring Mudassar Shahzad to kill his A sister, remains uncorroborated and does not inspire confidence at all. The charge of abetment against him is not proved beyond reasonable doubt. As such, the conviction of Liaquat Ali accused on the charge under section 109 (read with 302(b), P.P.C.) cannot be upheld and is liable to be set aside.
21. Now I come to Mudassar Shahzad accused. According to the prosecution story it was he who had fired three shots at the deceased, hitting her on her chest, shoulder and right hand and as a result of which she had died. As mentioned above P.W.2 Muhammad Aslam complainant and P.W.3 Muhammad Nazir have both deposed that Mudassar Shahzad accused had fired at Mst. Anwar Begum after raising a Lalkara and that he had fired thrice and that Mst. Anwar Begum had fallen on the ground and had succumbed to the injuries. Both P.W.2 and P.W.3 are the chance witnesses.
P.W.2 who is the real brother of the deceased was admittedly having strained relations with her as she had married Liaquat Ali accused after obtaining the decree for dissolution of marriage against her first husband namely Illam Din. After marrying Liauqat Ali she had been living in his house as his wife. Mudassar Shahzad accused has produced certain documents in his defence evidence. Of these documents Exh.D.D. Is copy of the F.I.R. No, 604 of 1995 registered in Police Station, Saddar, Mandi Bahauddin under sections 337-F(iv)/34, P.P.C. This case had been got registered by Liaquat Ali accused alleging that Muhammad Aslam (complainant) and his co-accused Muhammad Siddique had attacked and injured his wife Mst. Anwar Begum. Exh.D.E. Is copy of a report lodged in the police station by Liquat Ali accused on 21-12-995 and it also relates to an occurrence wherein Muhammad Aslam complainant and his companions had subjected Liaquat Ali to beating. Exh.D.J.
Is copy of an application under section 540-A, Cr.P.C. Filed by Mst. Anwar Begum in the Court of the learned Sessions Judge, Mandi Bahauddin and wherein there is a mention of animosity of the deceased with her brother Muhammad Aslam. Copy of another application of this nature has been produced as Exh.D.L.
22. In view of this admitted position that there had been litigation between the deceased and the complainant and also that they were having strained relations on account of the marriage of the deceased lady with Liaquat Ali accused, it is not understandable as to how Muhammad Aslam complainant/P.W.2 and P.W.3 Nazir Ahmad had suddenly decided to go to the house of Mst. Anwar Begum to effect the compromise. The complainant as P.W.2 has nowhere explained as to what was the reason for the change of heart. The presence of P.W.2 and P.W.3 in the house of Mst. Anwar Begum at the time of this occurrence was highly improbable. The visit of P.W.2 and P.W.3 to the house of Mst. Anwar Begum a day prior to the occurrence is also not proved beyond reasonable doubt. When the property had already been partitioned through proceedings in a Court of law, it is not understandable as to how the complainant had suddenly decided to mend his relationship with the deceased. In case the deceased was effecting a compromise with her brother Muhammad Aslam complainant and in case it had caused annoyance to Liaquat Ali, it could serve as a motive for Liaquat Ali accused and not for Mudassar Shahzad who was the nephew of Liaquat Ali and it is not understandable as to why would he like to fire at the deceased in case she was effecting compromise with her brother. The learned counsel for Mudassar Shahzad appellant has argued that after the recovery, the parcel of crime empties was not handed over to the Moharrar and P.W. 3 i,e, Moharrar has not stated that he had ever received the parcel containing crime empties and had handed it over to anyone for delivering the same in the Forensic Science Laboratory. It has also been pointed out that the crime empties had been sent to the Forensic Science Laboratory after the alleged recovery of rifle from Mudassar Shahzad and hence the report of Forensic Science Laboratory Exh.P.M. Is of no consequence.
23. According to the ocular account, Mubashar Shahzad accused had fired three shots at the deceased lady i,e, Mst. Anwar Begum. However, according to P.W.I Dr. Altaf Ali Khan who had conducted post-mortem examination on the dead body of the deceased there were seven entry wounds on the body of the deceased, besides the exit wounds. In the course of cross-examination, P. W.1 explained that in this case all the injuries (on the person of the deceased) seem to have been caused by bullets but kind of weapon used could not be specified by him, although there were more chances of the same being rifle or pistol .30 bore. Mudassar Shahzad accused has also taken the plea that actually he is Mubashar Shahzad and not Mudassar Shahzad who is real brother. The aforesaid contention of Mudassar Shahzad accused is without any force. His plea does not appear to have been accepted during the course of investigation. He was challaried in this case as Mudassar Shahzad. He was formally charged in this case by the name i,e, Mudassar Shahzad and he had thumb-marked the same as Mudassar Shahzad. At that stage he had not taken plea that actually he is Mubashar Shahzad and not Mudassar Shahzad. Then the P.Ws. Including the eye- witnesses had deposed in this case in his presence. From the statements of the eyewitnesses it appears that it was he against whom they had deposed as the accused person. He had even filed a writ petition on this point before the Honourable High Court but had not succeeded. Under the circumstances there is no force in the plea that he was actually Mubashar Shahzad and not Mudassar Shahzad.
24. Now the position is that the parties were admittedly inimical to each other and prior to this occurrence were hardly on visiting terms with each other. Under these circumstances, the claim of P.W.2 that he had been called by the deceased to effect compromise does not appeal to reason.
Both the eye-witnesses i,e, P.W.2 and P.W.3 are chance witnesses and there does not appear to be any other independent evidence on record to establish their presence at the time of occurrence.
The existence of motive for the accused is also not proved. The rifle and crime empties appear to have been sent to the Forensic Science Laboratory after the alleged recovery of rifle .7 mm. The prosecution evidence in this case suffers from material contradictions and inconsistencies and does not inspire confidence at all. As such the prosecution has failed miserably to establish beyond reasonable doubt that it was Mudassar Shahzad accused who had caused Qatl-i-Amd of the deceased by firing at her. Accordingly the conviction of Mudasar Shahzad accused on the charge under section 302(b), P.P.C. And the sentence awarded to him by the learned trial Court cannot be upheld.
25. In view of what has been stated above, Criminal Appeal No,8 of 2001 and Criminal Appeal No, 123-J of 2001 are accepted and the conviction recorded by the learned trial Court against both the accused namely Liauqat Ali and Mudassar Shahzad as well as the sentence awarded to them is set aside and both of them are acquitted of the charge. If not required in any other criminal case, they be set at liberty forthwith.
26. For the reasons mentioned above, Criminal Revision No,176 of 2001 filed by Muhammad Aslam complainant for enhancement of sentence awarded to the accused/appellants is also dismissed.