1999 P Cr (PLP)

Date of hearing: 1st October, 1998. Fakharuz Zaman son of Haider Zaman, Mst. Ansar Jan wife of Fakharuz Zaman, Muhammad Arif son of Fakharuz Zaman and Hassan Gul alias Hussaina son of Nemat Gul, residents of Mohallah Qazian, Sector No.4, Kalabat Township, Tehsil and District Haripur, were charged in F. I. R. No. 1156, dated 10‑10‑1993 of Police Station Haripur for offences under section 302/109/120‑B/34, P.P.C. for having committed the murder of Mst. Kishraf wife of Abdur Rashid inside her residential Kotha at about 0‑30 hours on 10‑10‑1993. The accused were tried by the Additional Sessions Judge, Haripur and vide his judgment, dated 14‑12‑1996 they were convicted under the aforesaid sections of law and sentenced to undergo 10 years' R.I. each and also to pay Diyat amount of Rs.2,20,000 i.e. Rs.55,000 each. In case of non‑payment of Diyat amount they will undergo simple imprisonment till Diyat amount is paid on their behalf. The Diyat amount on realization was ordered to be paid to the legal heirs of the deceased and that this amount is to be recovered as land revenue. The benefit of section 382‑B, Cr.P.C. was also extended to the appellants. Aggrieved from the aforesaid conviction and sentences the accused‑appellants have preferred two separate appeals (1) Criminal Appeal No. l of 1997 by Fakharuz Zaman and two others and (2) Criminal Appeal No.3 of 1997 by Hassan Gul alias Hussainia. We propose to dispose of both these appeals by this single judgment.

2. The facts of the prosecution case are that Fakhruz Zaman son of Haider Zaman one of the present appellants who was accompanied by Haji Afzalul Haq reported the present incident before Muhammad Nazir, A.S.‑I. of P.P. K.T.S. at 2‑40 hours in the Illaqa where the police party was on petrol duty to the effect that his brother namely, Abdur Rashid a driver by profession was away from his house for about 6 days while his wife Mst. Kishraf alongwith 4 children were living in the house and that on the night of occurrence he alongwith his wife was asleep in another Kotha besides their cattle when his son Muhammad Arif who was present in another Kotha informed him that Mst. Kishraf had been murdered by someone. Upon this information he went to the Kotha of the deceased where he found her killed on a cot. According to him there were some blood stains near the cot alongwith an empty shell and broken pieces of bangles. He stated that blood was oozing out from the injuries of the deceased from near her nose. He accordingly went out and informed Haji Afzalul Haq and narrated the occurrence to him. They were yet to proceed to the police station when the police arrived and he reported the matter. Since they had no enmity with anyone, therefore, he did not charge anybody. The Murasila was sent to the police station for registration of the case where it was correctly incorporated in the F. I. R. Exh.P.A.

3. After recording the report Muhammad Nazir Khan, A.S.‑I. (P.W.11) proceeded to the spot where he prepared the injury sheet Exh.P.W.I l/1, inquest report Exh.P.W.4/2 of the deceased. He sent the dead body for post‑mortem examination under the escort of Abdul Shakoor No.108. He picked up blood stained earth from underneath the cot, one empty of .30 bore pistol freshly discharged Exh.P.12. He also took into his possession few pieces of bangles of green colour Exh.P.13 and a piece of mattress blood‑stained. All the articles were recovered from the spot in presence of the witnesses. He prepared the site plan Exh.P.W.11/3 at the instance and pointation of the P.Ws. The site plan was correct with all its footnotes, drawing and sketches and bears his signature correctly. He then recorded the statements under section 161, Cr.P.C. of the P. Ws. He sent the empty shell and the blood‑stained earth to the laboratory for chemical examination. He also took into his possession the post‑mortem report and the blood‑stained clothes of the deceased which were brought from the mortuary vide memo. Exh.P.W.2/1. During the course of investigation the same morning he arrested Fakhruz Zaman accused who had made the report in the instant case. On the following day accused Hassan Gul was arrested on the basis of investigation and interrogation. On 12‑10‑1993 Hassan Gul accused while in handcuffs led the police party to a water channel from where the Investigating Officer recovered one pistol Exh.P.1 with a holster black Exh.P.5, 8 filled cartridges Exh.P.2, one magazine Exh.P.3, two cartridges of .30 bore all wrapped in black shopping bag Exh.P.14. The recovery memo of the same is Exh.P.W.1/1. He also took into possession a pair of clothes consisting of Shalwar Exh.P.10 and shirt Exh.P.11 of Hassan Gul accused vide memo. Exh.P.W.3/1. After completion of the investigation the Investigating Officer handed over the investigation to the S.H.O. for submission of the challan in Court.

4. Dr. Farhat Yasmin, Women Medical Officer (P.W.4) conducted autopsy on the dead body of Kishraf Khanum wife of Abdul Rashid and found the following injuries on her person on external examination:‑ Injuries: A young woman of about 35 years old wearing blue colour clothes. No, hole or tears seen in the clothes. Rigor mortis developed. No mark of ligature seen on neck. No mark of violence on the rest of the body. (1) An entrance wound on right side of the nose in size of 1 c.m. x c.m. ovel in shape, edges burnt and inverted. (2) An exit wound behind right ear in size of 2 c.m. x 2 c.m. circular in shape and edges everted. A few scratches seen on left forearm. On internal examination the doctor found right side maxillary bone fractured, brain stem damaged, right temporal bone fractured and blood was oozing from exit wound. The doctor opined that death occurred due direct injury to brain by fire‑arm in close contact to the right side of nose. Time between injury and death was recorded to be immediate and time between death and post mortem examination was about 5 to 6 hours. The post‑mortem report is Exh.P.W.4/1 and the inquest report is Exh.P.W.4/2. The post‑mortem report including pictorial is in the handwriting of the doctor.

5. After receipt of complete challan by the trial Court the accused were formally charge‑sheeted to which they did not plead guilty and claimed trial. On denial of the accused from the charges levelled against them, the prosecution was directed to produce its evidence.

6. The prosecution in support of its case, examined as many as 11 witnesses. The important witnesses in this case are Mukhtar Azam (P.W.8) son of the deceased and Dildar (P.W.10) brother of the deceased, besides the recoveries of the crime‑empty from the spot broken bangles of the deceased, .30 bore pistol on the pointation of Hassan Gul accused, blood‑stained earth from the Kotha of the deceased and the identification of Hassan Gul accused by Mukhtar Azam (P.W.8) before Muhammad Sadiq, Tehsildar Haripur (P.W.5).

7. We have heard Mr. Saeed Akhtar Khan, Advocate for the appellants in Criminal Appeal No.l of 1997, Mr. Abduliah Jan Mirza, Advocate for the appellant in Criminal Appeal No.3 of 1997 and Mr. Rashidul Haq Qazi, Advocate for the State in both the appeals. Record of the case perused.

8. The learned counsel for the appellants contended that it was an unwitnessed occurrence without any motive and the circumstantial evidence in support of the alleged eye‑witness Mukhtar Azam lacks credibility and as such the accused were entitled to acquittal.

9. On the other hand, the learned State Counsel supported the impugned judgment by reiterating the reasons contained therein. He vehemently contended that the ocular testimony of Mukhtar Azam (P.W.8) may be given due weight as he was an independent and natural witness being inmate of the Kotha where the occurrence took place.

10. We have evaluated the entire evidence on which the prosecution case rests. It is important to observe that no one was charged in the F.I.R. yet on the following morning the Investigating Officer recorded the statement of Mukhtar Azam (P.W.8) under section 161; Cr.P.C. in which he had suspected Fakhruz Zaman accused for the offence. This statement, however, was recorded by the Investigating Officer after the witness had informed his maternal‑uncle Dildar (P.W.10) at Kot Najibullah who also came to, the village of occurrence and got his statement recorded under section 161, Cr.P.C. We further observed some overwriting in the original Murasila Exh. P. A. / 1 wherein the time of occurrence appears to have been tampered at two places which are underlined in red pencil, from 9‑20 hours to 2‑40 hours. It can, therefore, safely be inferred that P.W. Mukhtar Azam who was of tender age at the time of occurrence could easily be influenced by his maternal‑uncle P.W. Dildar or someone else or could easily be tutored. We had the opportunity of examining Mukhtar Azam in Court and according to our observations he was hardly 10 years of age, while the occurrence had taken place in the year 1993. The calculation of time would suggest that at the time of occurrence his 4ge could not be above 7 years, therefore, no implicit reliance can be placed on his testimony alone without further corroboration. In the instant case no independent corroboration is forthcoming on the record to connect the accused with the crime who are four in number while the occurrence seems to be the act of one man and that also in darkness in the early hours of the morning. The alleged weapon of offence i.e. .30 bore pistol Exh.P.1 recovered at the instance and pointation of Hassan Gul accused would also be of no avail to the prosecution as the empty recovered from the spot was not found to have been fired from the same in view of the report of the Fire‑arm Expert Exh.P.W.11/8 available on the file. The vaginal swab obtained from the dead body of the deceased did not reflect semens on it vide report Exh.P.W.11/7. In the circumstances, the evidence produced by the prosecution as narrated above could not corroborate the ocular account in any manner. The prosecution besides introduced the motive for the offence that the deceased had seen the daughter of Fakhruz Zaman namely Mst. Rukhsana in an objectionable position with Hassan Gul accused and that the deceased had once informed Mst. Ansar Jan accused that her daughter was following an immoral life and that she should arrange her marriage as early as possible. Interestingly no such motive or reason was mentioned in the Murasila Exh.P.A./1. This introduction of the motive at a belated stage looses itsI credibility also as it does not find support from any other independent source. 'I Yet another piece of evidence on which the prosecution relies is the identification of Hassan Gul accused by P. W. Mukhtar Azam. To our mind this I identification is of no avail to the prosecution as Hassan Gul was already known to P.W. Mukhtar Azam being his closer neighbour, therefore, it has no probative force. The‑ charge, therefore, of the prosecution brought against the accused‑appellants is on the basis of the solitary statement of Mukhtar Azam P. W. whose statement is based on suspicion and is full of improvements which has no credence. To our mind it is a case which seems to be the act of one person whereas four persons were charged, convicted and sentenced by the trial Court on extremely weak evidence. No individual role has been attributed to each of the accused‑appellants nor there is evidence to connect them with abetment or conspiracy.

11. For the aforementioned reasons both the appeals are accepted and the conviction and sentence of all the appellants are set aside. They are acquitted of the charge levelled against them. They be set at liberty forthwith if not wanted in any other case. Q.M.H./M.A.K./239/P Appeals allowed.