1988 P Cr (PLP)

This appeal has been preferred against the judgment, dated 13‑10‑1985 pronounced by the learned Additional Sessions Judge, Rahimyar Khan, who had convicted the appellant under section 302, P.P.C. and had awarded him life imprisonment. He was fined Rs.4,000 and in default thereof was directed to undergo one year's R.I. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased. A sum of Rs.2,000 was also ordered to be paid its compensation to the heirs of the deceased or in default thereof to suffer six months' R.I. The appellant was also convicted under section 201, P.P.C. and was awarded three years' R.I. and a fine of Rs.2,

000. In default of the payment of this fine, he was directed to undergo six months' R.I. Both the sentences were ordered to run concurrently and the benefit of section 382‑B, Cr.P.C. was extended to the appellant.

2. The brief facts of this case are that Muhammad Ramzan, the complainant, was married to Mst. Sakina, who gave birth to three sons and three daughters. After the death of Mst. Sakina, Muhammad Ramzan, the complainant, was married to Mst. Zohran, daughter of Rahim Bakhsh appellant, about two years prior to this incident. Reciprocally Mst. Mumtaz, daughter of Muhammad Ramzan, was married to Safdar son of Rahim Bakhsh appellant. Safdar was 9 or 10 years old at that time. Mst. Mumtaz was sent to the house of her husband and it was rumoured that she had developed illicit relations with Mureed, the step‑brother of Rahim Bakhsh appellant. On 12‑4‑1984 Muhammad Ramzan, the complainant, accompanied by Pir Bakhsh, and Bashir Ahmad went to see his daughter Mst. Mumtaz Mai in the house of the appellant. She was not found there and the appellant could not give any satisfactory explanation of her disappearance. The complainant searched for his daughter and, when her whereabouts were not known, he lodged the F.I.R. Exh.P.G., which was recorded by Muhammad Yousaf P.W.8 on 13‑4‑1984 at 9‑00 p.m.

3. The appellant was arrested on 17‑4‑1984 and on his pointation blood‑stained earth, leaves of Shesham tree and a blood‑stained ear of the wheat crop were recovered. A blood‑stained bone and a piece of meat were also recovered and taken into possession vide memo. Exh.P.B. The appellant is stated to have got recovered sickle P.1, three pieces of a string Exh.P.2/1‑3, blood‑stained hatchet P.3, blood‑stained Chaddar P.4, blood‑stained shirt P.5, another blood stained Chaddar P.6 and shirt P.7. The Serologist and the Chemical Examiner gave positive reports about the blood stains contained on the recovery articles. After the completion of the investigation, the challan of the appellant was submitted. As a sequel to the impugned trial, he was awarded the aforementioned punishment.

4. In this case, there is no evidence regarding the murder of Mst. Mumtaz Mai at the hands of the appellant. There is also no evidence that the appellant had caused any disappearance of evidence in a murder case.

5. Ahmad Bakhsh P.W.1 has stated that the police had secured blood‑stained earth, blood‑stained leaves of Shesham tree and blood‑stained ear of the wheat crop from the place of occurrence, which were made into a sealed parcel vide memo. Exh.P.A. Ahmad Bakhsh P.W.1 has added that the appellant led to the recovery of a blood‑stained piece of bone and a blood‑stained small piece of flesh from near the place of occurrence which were made into a sealed parcel vide memo. Exh.P.B. and the appellant had also got recovered sickle P.1, pieces of string Exh.P.2/1‑3, blood‑stained grass, blood‑stained hatchet P.3 and the blood‑stained clothes P.4 to P.7 which were taken into possession vide memo. Exh.P.F. When subjected to the cross‑examination, he has stated that the afore‑mentioned articles were recovered on the 12th day of this occurrence. He denied the suggestion that he was apprehended as a suspect by the police.

6. Mst. Bakhtawar P.W.2 has deposed about the motive regarding the illicit relations between Mst. Mumtaz and Mureed, the step‑brother of the appellant. She has also disclosed that when Mst. Mumtaz came to see her, she was attired in torn clothes and she had given her string P.2 which she had identified. She has admitted that Ahmad Bakhsh and Muhammad Bakhsh P.Ws. were taken into custody by the police as suspects. In this manner, the statement of Ahmad Bakhsh P.W. can safely be discarded.

7. Muhammad Ramzan P.W.3, the complainant and the father of Mst. Mumtaz Mai, has stated his relationship with the appellant and has added that the appellant had murdered Mst. Mumtaz Mai because he entertained the suspicion of her illicit relations with Mureed, his step brother. It is just his apprehension without any proof. In his cross‑examination, he has admitted that Pir Bakhsh P.W. happens to be his paternal nephew and Bashir Ahmad is his son‑in‑law. He has also stated that the appellant had disclosed the illicit relations of Mst. Mumtaz Mai at the police station. It shows that the complainant did not know this fact before because the said fact was not told by Mst. Mumtaz Mai to her father that she was suspected of having illicit relations with Mureed.

8. Bashir Ahmad P.W.4 who happens to be the son‑in‑law of the complainant, has stated that he repeatedly asked Rahim Bakhsh about the whereabouts of Mst. Mumtaz Bibi and the appellant felt angry and it was a rumor in the village that the appellant had murdered Mst. Mumtaz.

9. Allah Ditta P.W.5 was a witness of the extra‑judicial confession of the appellant's guilt but he has stated that he did not know Mst. Mumtaz Mai and .had visited the police station for some purpose where he saw Rahim Bakhsh, Nawaz, Ahmad Bakhsh and Muhammad Bakhsh in police custody. He was declared hostile and was cross‑examined by the learned A.P.P. but nothing could be elicited from his cross‑examination.

10. Dost Muhammad P.W.7 had prepared the site plans Exh.P.H. and Exh.P.H./1 as indicated to him by the P.Ws. Muhammad Yousaf P.W.8 is an Enquiry officer, who has stated about the aforementioned recoveries. He has stated that the dead body of the deceased was searched through the divers in the Canal but it was not found.

11. The statement of the appellant was recorded under section 342, Cr.P.C. and he denied everything and pleaded innocence. It is noteworthy that the learned trial Court did not put any question regarding the murder or causing the disappearance of evidence in order to screen the offender. The appellant was really prejudiced as he was not afforded an opportunity to explain his position regarding the offence under sections 302 and 201 of the P.P.C.

12. There is no evidence that the appellant had murdered his daughter‑in‑law Mst. Mumtaz Mai nor does the file show that he had committed an offence under section 201, P.P.C. It does not stand to reason that he kept the blood‑stained articles for a number of days so as to present them to the police as souvenir. The recovery of the blood‑stained articles leads us nowhere. It may be noted that an accused can either be convicted under section 302, P.P.C. or under section 201, P.P.C. and not under both the aforementioned offences. I, therefore, accept the appeal and extend the benefit of doubt to the appellant and acquit him of the charge framed against him. He may be set at liberty forthwith if not required to be detained in any other case. M. Y. H./R‑94/L Appeal accepted.