2001 P Cr (PLP)

5. The occurrence which resulted in the death of Syeda Ruqiya Begum took place on 1‑9‑1996 at 9‑00 p.m. in the house of the deceased situated in village Kathhiala Syedan lying at a distance of 3 Kms. from Police Station Mandi Bahaud Din. The complaint was lodged by Syed Abid Shah, husband of the deceased which was recorded by Muhammad Munir on 1‑9‑1996 at 10‑30 p.m. near Shah Taj Sugar Mill, thereafter formal F.i.R. was recorded by Mukhtar A. S.‑I. at 11‑10 p. m.

6. The prosecution version disclosed in the F. I. R. authored by Syed Abid Hussain Shah was that he is an employee of the police department posted as Naib‑Moharrar at Police Station City Wazirabad He received telephone from his house at 9‑00 p.m. that his wife Ruqiya Begum was present in her house when somebody knocked at the door, who, after opening the door found Rafaqat Hussain Shah and entertained him by giving him glass of water, but immediately Rafaqat Hussain Shah fired with his pistol hitting his wife on her chest, who raised hue and cry attracting witnesses to the spot after which Rafaqat Hussain while brandishing his pistol left the spot. Motive for the occurrence is stated to be that brother of Ruqiya Begum namely Zia‑ur‑Rehman son of Ehsan‑ul‑Haq Shah and Rafaqat Hussain accused are married in the same house, Zia‑ur‑Rehman's wife demanded divorce which was opposed by Ruqiya Begum and Zia‑ur Rehman whereas Mst. Kalsoom wife of Zia‑ur‑Rehman daughter of Gulzar Hussain Shah was not agreeable to live with Zia‑ur‑Rehman; Rafaqat Hussain Shah accused also aided with Mst. Kalsoom and since Ruqiya Begum was a hurdle in the way of divorce he took it ill and in his absence murdered his wife.

7. Muhammad Munir, S.‑I. after recording the statement of Abid Hussain Shah sent the same to the police station for registration of formal F.I.R. and‑ himself proceeded to the place of occurrence. He prepared the Inquest Report Exh.P.H. and injury statement Exh.P.H./1. The dead body of Ruqiya Begum was handed over to the constable for escorting it to the mortuary for post‑mortem examination. On 2‑9‑1996 he again visited the place of occurrence and took in possession blood‑stained earth vide memo. Exh.P.B.

8. Investigation was transferred to, Muhammad Riaz, A.S.‑I. who arrestted Rafaqat Shah on 14‑10‑1996 and at the time of his arrest from his personal search pistol .30 bore was recovered which was taken in possession vide memo. Exh.P.C.

9. On 2‑9‑1996 Dr. Arifa Tayyab, Women Medical Officer, D.H.Q. Hospital, Gujranwala, conducted the post‑mortem examination on .the dead body of Syeda Ruqiya Begum aged 35 years and found the following two injuries on her person:‑‑ Injury No.

1. A lacerated wound 2 c. m. x 1 c. m. on the left side of head 10 c.m. from the left eyebrow and 13 c.m. from left ear. Wound was bone deep. Injury No.2. A fire‑arm wound of entry 1/2 c.m. x 1/2 c.m. with blackening of margines and surrounding area and of abressive colour of 1 c.m. redius at left part of maniburmsterni upper 1/2. In the opinion of the doctor death was result of haemorrhage and shock caused by Injury No.2. Both the injuries were ante‑mortem and time between injuries and death was 1/2 hour to one hour and between death and post‑mortem was 12 to 24 hours.

10. After completing the investigation challan was submitted in Court. Appellant pleaded not guilty and claimed a trial.

11. Prosecution examined as many as 14 witnesses. Ocular testimony account was furnished by Inayat Shah P.W.2 and Shabbir Shah P.W.3.

12. Statement of appellant was recorded under section 342, Cr.P.C. He denied his participation in the occurrence and recovery of pistol. In reply to the question as to why the prosecution has brought the case against him he stated as under:‑ "I am innocent, Abid Shah complainant had got no issue from Rukia Bibi and he wanted to get second marriage and he was fed up from Rukian Bibi as already she was a divorcee. Hence had removed Mst. Rukian Bibi from his way. He is also a police employee and he managed to get this false case against us in order to save his own skin."

13. Learned counsel for the appellant contended that the occurrence was unwitnessed; the prosecution witnesses made dishonest improvement at the trial to show their presence at the spot. Their conduct was totally unnatural and their presence at the spot could not be explained. It was further added that F.I.R. was recorded after due deliberation and as such was distorted. The Investigating Officer went out of his way to help the complainant party so much so that he prevaricated himself as evident from Exhf.D.D/1 and Exh.D.D./2. Lastly it was stated that ocular statement was not at all in conformity with the medical evidence clearly indicating that the witnesses had not seen the occurrence, therefore, it was prayed that the appdllant be acquitted. Learned counsel for the complainant on the other hand stated that the eye‑witnesses had no enmity whatsoever with the accused and there was no earthly reason to substitute the appellant with the real culprit. State Counsel endorsed the arguments of the counsel for the complainant.

14. Ocular testimony account as mentioned, was furnished by Inayat Shah P.W.2 and Shabbir Shah P.W.3. Both the witnesses in their examination‑in‑chief stated that Rafaqat Shah appellant twice fired on Ruqiya Begum one fire hit her temple on left side and the other fire struck her chest Both these witnesses were duly confronted with their statements under section 161, Cr.P.C. wherein only one fire was mentioned and no part of the body where the bullet hit the lady, was mentioned. The improvement was obviously made to bring their evidence in line with the medical testimony. According to post‑mortem report injury No. 1 was a lacerated wound on the left side of the head whereas injury No.2 was a fire‑arm wound on the front side of the chest. The doctor did not clarify the weapon with which injury No.1 was caused and no was asked from .him to get this clarification. In any case it was assumed by the prosecution that injury No.1 was also caused by a fire‑arm, therefore, the witnesses were tutored to state that in their presence Rafaqat Hussain twice fired, one bullet hit the temple and the other on the front part of the chest. Inayat Shah P.W.2 admitted that his house was 6/7 houses away from the house of the complainant and that of Shabir Shah P. W. 3 was about 35‑40 Karams away from his house towards south. Both these witnesses, it is admitted, were passing through the street by chance and they stood by the house of Talib Hussain to have a chat when they saw appellant entering the house and firing at the deceased. Shabbir Hussain Shah on the other hand stated that his house was 50 yards from the place of occurrence towards south situated in another street to that of the complainant and that of Inayat Shah is situated in third street which is neither in the street of the complainant nor in the street where his house is situated. Although in his cross‑examination he has stated that he was coming to his house for offering Isha prayers but how did he come in front of the house of the deceased when his house was in another street, has not been explained. yet another aspect which seems strange to the mind is that why out of the places they should stand in front of the house of the deceased to have a chat and secondly not knowing the intention of Rafaqat Hussain Shah when he entered the house through an iron gate, walked across the compound and then entered the room where he shot dead the deceased; how could these two witnesses simultaneously reach the spot to have witnessed the firing. Both these witnesses were chance witnesses, did not explain their presence satisfactorily at the spot and were brought subsequently to' bolster the prosecution case. Undoubtedly they have no enmity with the appellant, however, credibility of witnesses cannot alone be determined on the touchstone of his having rancour or ill‑will against the accused. Their statement does not inspire confidence and is mingled with the taint as they have failed to reasonably explain their presence at the spot at that hour of the night and secondly; after the improvements which they have made to bring their testimony in line with the medical evidence. They are the residents of the same village namely Kathiala Syedan to which place Abid Hussain Shah, husband of the deceased, a police employee also hails whereas accused/appellant belongs to village Kakkay Wall, lying at a distance of 15 miles form village Kathiala Syedan. Both the witnesses, therefore, have a tilt in favour of the deceased's husband and there is nothing strange that they can be won over to t t 'ne suggested by Abid, Hussain Shah, employee of the police.

15. Discrepancies in the statements of P.W.2 and P.W.3 regarding the arrival of Abid Hussain Shah and the police at the spot and the commencement of investigation, create grave doubts regarding the credibility in the investigation conducted by the Police Officers. Although it is stated that statements of the witnesses were recorded on the very first day i.e. 1‑9‑1996 but surprisingly the blood‑stained earth was not taken in possession which was secured on the next day. The absence of crime‑empties from the house which was not accessible to others also makes the prosecution I case laced with serious doubts. P.W.13 Muhammad Munir, S.‑I. has stated that he recorded the statements of the complainant near the Sugar Mill whereas the witnesses P.W.2 and P W.3 are unanimous on the point that the complaint was recorded at the spot. The Investigating Officer on the other hand states that after recording the complaint near the Sugar Mill, it took 20 minutes to reach the place of occurrence. It is strange that at the place of occurrence when the inquest report was prepared the number of the F.I.R. is stated to be given in the required column. How could the F.I.R. reach the place of occurrence when it was not yet recorded at the police station. Police Officer has shown the arrest of the appellant on 14‑10‑1996, this assertion is firmly belied by the letters Exh.D.D./1 addressed by S.H.O. Police Station. Mandi Bahaud Din to Commanding Officer, 10 Engineers Batallian, Gilgit where it is stated that the accused/appellant, who was army employee, was arrested on 30‑9‑1996. Again a letter Exh.D.D./2 by the Commanding Officer, 10 Engineers Batallian addressed to Superintendent of Police demanding the copy of F.I.R. refers to Exh.D.D./1 wherein it is stated that date of arrest of the appellant was indicated to be 30‑9‑1996. It seems that after taking the appellant in custody on 30‑9‑1996 the time till the recording of F.I.R. was consumed in distorting the facts and creating evidence. Not only the F.I.R. was‑recorded after preliminary investigations but the whole I course of the proceedings was misdirected, therefore, no reliance can be placed on the testimony of either prosecution witnesses or the dishonest investigation conducted by the Police Officers. The net result would be that benefit of all these infirmities in the prosecution case will go to the appellant. Resultantly the appeal is accepted, conviction and sentence recorded by the trial Judge‑vide his judgment, dated 11‑4‑2000 is set aside. The appellant shall be set at liberty if not required in any other case. Criminal Revision bearing No.489 of 2000 for reasons rendered in this judgment has no merit and is accordingly dismissed. N.H.Q./R‑55/L Appeal accepted.