2007 PLP 100 (MLD)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No.371-J of 2001 filed by Muhammad Yaqoob and Mst. Tazeem Bibi, who were convicted and sentenced by the learned Additional Sessions Judge-III, Hafizabad, in case F.I.R. No.650, registered at Police Station Kassuki, District Hafizabad, on 12-4-1999 for offences under section 302/34, P.P.C., vide his judgment, dated 9-10-2001 as under:-- (1) MUHAMMAD YAQOOB Death under section 302(b), P.P.C. for committing murder of Mst. Shehnaz Bibi. (2) Mst. Tazeem Bibi Life imprisonment under section 302(b), P.P.C. for hatching conspiracy in murder of Mst. Shahnaz Bibi. Murder Reference No. 650 of 2001 for confirmation or otherwise of death sentence of Muhammad Yaqoob-appellant shall also be disposed of through this single judgment.

2. Brief facts of the case as narrated in the F.I.R. are that sister of Muhammad Yousaf/complainant (P.W.2) Mst. Shahnaz Bibi was married with Muhammad Abbas about 10 years ago. On 12-4-1999 she along with her family members came to the house of the complainant to attend the Walima ceremony of her brother Talib Hussain. At about 9-00 A.M Mst. Tazeem Bibi wife of Muhammad Yaqoob came to the house of the complainant and asked Mst. Shahnaz Bibi that Muhammad Yaqoob was calling her at her house. Mst. Shahnaz Bibi left with Mst. Tazeem Bibi for her house. Thereafter, while the complainant, Abdullah and Talib Hussain were going towards Mst. Shahnaz's house and were near the house of Ashraf Toor, they heard a fire sound. They rushed to the house of Mst. Shahnaz Bibi and saw that Muhammad Yaqoob and his wife Mst. Tazeem Bibi were running away from the house of Mst. Shahnaz Bibi. When the complainant called Muhammad Yaqoob, he extended threats to the P.Ws. and made good his escape along with his wife Mst. Tazeem Bibi. The complainant along with P.Ws. entered the house and found Mst. Shahnaz Bibi lying in a pool of blood in injured condition. She succumbed to the injuries at the spot. The motive behind the occurrence was that Muhammad Yaqoob and Mst. Tazeem Bibi used to force Mst. Shahnaz Bibi for the hand of her sister for Muhammad Ashraf (brother of Muhammad Yaqoob). On refusal they nursed grudge against Mst. Shahnaz Bibi and murdered her.

3. After registration of formal F.I.R., the investigation of the case was taken over by Bashir Ahmad, A.S.-I./P.W.10. He proceeded to the place of occurrence, took over the dead-body, prepared injury statement Exh.PJ and inquest report Exh.PH. He took into possession bloodstained earth from the spot vide memo. Exh.P.A. He also collected two empty cartridges from the spot and took the same into possession vide memo Exh.PB. On 15-4-1999 Ijaz Ahmad S.-I./P.W.8 arrested Mst. Tazeem Bibi and on 23-4-1999 he also arrested Muhammad Yaqoob. While in custody, Muhammad Yaqoob led to the recovery of 7 mm Rifle from his house, which was secured vide memo Exh. PD. After completion of investigation, the accused were sent up to face trial.

4. At the trial, the prosecution in order to prove its case produced 10 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PN, Serologist Exh.PO and that of Forensic Science Laboratory Exh.PP closed its case. The accused in their statements recorded under section 342, Cr.P.C. pleaded their innocence. They opted not to appear as witness under section 340(2), Cr.P.C. After conclusion of trial the appellants were convicted and sentence as stated above.

5. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. and other relevant material available on record, the learned counsel for the appellants in support of this appeal submits that both the witnesses were related to the deceased and were chance witnesses; that they made dishonest improvements in their statements during trial and thus their testimony was of no credence; that the prosecution could not prove the motive as set down in the FIR.; that the prosecution also failed to give any plausible explanation for both the witnesses being present at the spot; and that it was an un-witnessed occurrence.

6. The learned counsel for the State submits that it was a case of day light occurrence; that both the witnesses had no previous grudge to involve the appellants in a false case; that the statements of eye-witnesses were fully supported by the medical evidence and corroborated by the recovery of weapon, which was wedded with the empties recovered from the spot.

7. We have heard the learned counsel for the parties at length and scanned the entire record minutely. As per F.I.R. on the fateful day Walima ceremony of Talib Hussain brother of the complainant and deceased was to be held. For that reason Mst. Shahnaz Bibi-deceased had gone to the house of complainant along with her family members. At about 9-00 a.m. Mst. Tazeem Bibi wife of Muhammad Yaqoob reached there and informed Mst. Shahnaz Bibi that Muhammad Yaqoob wanted to see her. Thus, Mst. Shahnaz Bibi along with Mst. Tazeem Bibi left for her house. It may be noted here that Mst. Shahnaz Bibi along with her family members lived in the house where Muhammad Yaqoob -appellant, his parents, brothers and his wife also lived. After some time, the complainant and Abdullah P.W. started towards the house of Mst. Shahnaz Bibi for some reason. When they were near the house of Muhammad Ashraf Toor they heard noise of fire. They ran towards the house of Mst. Shahnaz Bibi and saw that Muhammad Yaqoob and his wife Mst. Tazeem Bibi were running out of the house. The witnesses were threatened by Muhammad Yaqoob that if they went near him they would be killed. Muhammad Yaqoob along with his wife made good his escape while firing aimlessly. After entering the house the complainant saw his sister lying in the pool of blood and her children were weeping. She died at the spot. The motive behind the occurrence was that Muhammad Yaqoob wanted the hand of sister of Mst. Shahnaz Bibi for his younger brother Muhammad Ashraf but he was refused.

8. Both the witnesses reached the spot per chance. They could not explain as to why they felt necessary to go to the house of Mst. Shahnaz Bibi. The complainant tried to explain by stating that he and Abdullah P.W. left the house after fifteen minutes of departure of Mst. Shahnaz Bibi with Mst. Tazeem Bibi and they were going to the house of Mst. Shahnaz to invite her to take breakfast. The question would be why they could not stop Mst. Shahnaz Bibi for fifteen minutes and tell her to leave the house after taking breakfast. Both the P.Ws. are not afraid of telling lies and made dishonest improvements in their statements before the learned trial Court. According to F.I.R. Muhammad Yaqoob and his wife were seen running out of the house while during trial they stated that when they reached the house of Muhammad Yaqoob and Mst. Tazeem accused were standing in the door of the room wherein the deceased Mst. Shahnaz was lying on the ground and in their presence Muhammad Yaqoob fired with 7 mm rifle at Mst. Shahnaz Bibi deceased on her chest. Both the witnesses were duly confronted with their earlier statements. It is also pertinent to note that the weapon carried by Muhammad Yaqoob was not described in the F.I.R. but during trial the witnesses specifically stated that he was carrying 7 mm gun. They also made improvement by stating that they heard one fire while they were near the house of Muhammad Ashraf Toor and within their presence the second fire was caused, which hit on the chest of the deceased. It was not mentioned in the F.I.R. that the P.Ws. heard noise of two fires or more. On the other hand, in the statement of Muhammad Abdullah P.W.6 recorded under section 161, Cr.P.C., it was mentioned that when the P.Ws. reached near the house of Muhammad Ashraf Toor they heard noise of two fires and after hearing noise of fires they rushed towards the house of the deceased and saw Muhammad Yaqoob and Mst. Tazeem Bibi running out of the house and at that time Muhammad Yaqoob was holding rifle in his hand. Perusal of inquest report Exh.PH reveals that it does not contain the F.I.R. number; in column No.2 the weapon has not been specified; in column No.3 time of death has not been mentioned; and. in columns Nos. 22 and 23 it has not been mentioned that any empty was lying near the dead-body. Perusal of injury statement also reveals that after writing "ﻤﻗﺪﻣﻪ" F.I.R. number was left blank. It is also noteworthy that F.I.R. was shown to have been registered at 9-40 a.m. on 12-4-1999 but the post-mortem was conducted at 7-30 p.m. Dr. Rukhsana Kousar/P.W.7 stated in clear terms that the dead-body was brought by the police for post-mortem at 7-30 p.m. All the above noted circumstances lead us to the irresistible conclusion that the occurrence was not witnessed by any of the P.Ws.

9. The motive as set down by the prosecution does not enhance its case in any manner. It is in evidence that the deceased his family members and Muhammad Yaqoob, his younger brother Muhammad Ashraf, his parents and his wife lived in the same house. Both the accused had gone with "Baraat" and had returned in the evening. There is no evidence that any quarrel took place between the deceased and the appellants over denial of proposal. As noted above they remained living in the same house and had good terms. No other witness except the eye-witnesses has been produced to support the motive. In these circumstances, we are of the opinion that real motive remained shrouded in mystery.

10. As far as the medical evidence is concerned, it supports the prosecution case to the extent that the deceased lost her life due to fire-arm injuries but no further.

11. According to Ijaz Ahmad S.-I./P.W.8, he arrested Muhammad Yaqoob on 23-4-1999 after 11 days of the occurrence while according to Muhammad Yousaf/P.W.2 Muhammad Yaqoob was arrested just after 2/3 days of the occurrence. On 29-4-1999 the appellant led to the recovery of 7 mm rifle P-5 from his residential room but the rifle was received at Forensic Science Laboratory, as per Exh.PP, on 2-6-1999. Why the rifle was kept in Malkhana for more than a month has not been explained. Similarly the empties, recovered on 12-4-1999, were sent to the Forensic Science Laboratory on 6-5-1999 after about three weeks. This delay has also not been explained. It is pertinent to note that the empties were sent after the recovery of rifle but in spite of all that, rifle was not sent along with the empties. These all facts cast heavy doubts on the credence of evidence of tallying the empties with the recovered weapon. The proceedings are shady and not free from doubt. The possibility cannot be excluded that the empties were secured after the recovery of rifle.

12. The upshot of the whole discussion is that the prosecution has miserably failed to prove its case beyond doubt against the appellants. Hence, we allow this appeal and set aside the judgment passed by the learned trial Court. The appellants are acquitted of all the charges and would be released from Jail forthwith, if not required in any other case.

13. Resultantly, Murder Reference is answered in the negative. Death sentence is not confirmed. H.B.T./M-509/L Appeal allowed.