1985 P Cr (PLP)

Ghulam Nabi Abro for Appellant. Rashid Tariq for the State. Date of hearing: 25th January, 1982. The appellant abovenamed being aggrieved by judgment, dated 21stDecember, 1980, of the learned 2nd Additional Sessions Judge, Dadu, by which he has been convicted under section 302, P.P.C. and sentenced to undergo life imprisonment and a fine of Rs.2,000 and in default of payment of fine to undergo R.I. for 2 years more, has preferred this appeal on the following facts and grounds:

2. The complainant Dur Muhammad, who is step‑brother of deceased Mst. Hajani, lodged report at Police Station K. N. Shah on 11‑1‑1979, at 11‑00 p.m. According to report, he has alleged that his sister deceased Mst. Hajani was married to appellant Ali Sher and in exchange he married Mst. Husna sister of appellant Ali Sher. It is his case that terms of the parties went strained and his sister left his house, while his wife went and started living in the house of her parents. It is disclosed in the report, that about 6/7 days prior to the incident appellant Ali Sher came to the house of complainant in his absence and took away Mst. Hajani with him. On the date of incident viz. 11‑1‑1979 at about 4‑00 p.m. when the complainant and the P.Ws. Allah Bux, Moula Bux and Shafi Muhammad and others were in the graveyard, in connection with burrial of one Ahmed Juneo, Sarwar, brother of appellant Ali Sher came there and informed that Mst. Hajani had died. The complainant and the witnesses viz. Shah Muhammad, Moula Bux and Allah Bux went to the village of the appellant and found dead body of Mst. Hajani lying on the cot. The F.I.R. further mentioned that father of the appellant and other lady family members of the appellant were present in the house. The report further disclosed, that the dead body of Mst. Hajani was lying on a cot. The witnesses saw some marks on the neck of dead body. The lips were also seen to have gone black. The witnesses doubted some foul play. They asked the appellant's father to hand over dead body, but he refused and in the meantime appellant and his brother Ali Hassan came and insisted to bury the dead body. The complainant and the witnesses went to police station, after informing the Nekmard and lodged F.I.R. in question.

3. The A.S.I.P. Shafi Muhammad recorded the report under section 174, Cr.P.C. as accidental case. He went to Vardat alongwith complainant, which was in the house of appellant. He also noticed that both lips of the lady were blackish and there was some swelling on the neck and her face had also gone blackish. The A.S.I.P. prepared such Mashirnama and inquest report and sent the dead body to Civil Hospital, Dadu, for post‑mortem examination, through H.C. Khan Muhammad. He examined all the three accused as well as other inmates of the house of the appellant. He also examined P.Ws. Allah Bux and Shafi Muhammad, as well as Moula Bux. On 22‑1‑1979 the police received post‑mortem report, showing that death was result of exphyxia. The police. accordingly incorporated the report in 15‑1, Cr.P.C. register and arrested appellant Ali Sher and Ali Hassan. Accused Allah Warayo could not be arrested and was shown absconder by the police in the challan. However, appellant Allah Warayo appeared in Sessions Court and obtained bail before arrest.

4. The prosecution in support of its case examined P W.1, complainant Dur Muhammad, who produced original report Exh.8, P.W.2 Allah Bux Exh.9 and P.W.3 Shafi Muhammad. The learned A.P.F. gave up P.Ws. Mst. Hawa, Moula Bux and Tapedar vide statement Exh.1 Qiarayo. The prosecution also examined P.W. Shafj Muhammad Exh.11, P.C. Muhammad Siddik, who had taken the dead body to Civil Hospital, Dadu for post‑mortem examination, alongwith H.C. Khan Muhammad. Mashir Yousif Exh.13, who produced Mashirnama of Vardat Exh.14, inquest Report Exh.15, Mashir Abdul Karim Exh.16, before whom appellant Ali Sher and Ali Hasan were arrested and produced mashirnama of arrest of appellant Ali Sher and Ali Hasan. The learned A.P.P. gave up H.C. Khan Muhammad vide statement Exh.18. The prosecution, also examined A.S.I.P. Shafi Muhammad Exh.19, who produced original F.I.R., incoroporated in 154, Cr.P.C. register Exh.20, Doctor Lal Muhammad Exh.20‑A, as Dr. Mumtaz Ali Hingoro, who conducted the post‑mortem was not available, after joining army service. He produced post‑mortem notes Exh. 21.

5. All the three accused persons, including present appellant pleaded not guilty to the charge and in their statement under section 342, Cr.P.C. denied all the allegations levelled against them. According to appellant Ali Sher and accused Ali Hassan, they had gone Katcha side and were not present in the house at the time of the death of Mst. Hajani. Accused Allah Warayo had stated that on the day of death of Mst. Hajani his son Ali Sher and Ali Hassan had gone to Katcha side. According to him he was sitting in Otaq with Ali Hassan Siyal, Allah Bakhio Siyal and Pannah Rind, when all of sudden his younger son Sarwar came and informed that Mst. Hajani was trembling. They all went inside. Mst. Hajani died before arrangement of medical aid. According to him there were no marks of throatling on her neck. The accused including appellant examined Ali Hassan Siyal Exh.28, and Pannah Rind Exh.29, as their defence witnesses.

6. The learned trial Court after taking into consideration the evidence which was adduced before it, acquitted co‑accused Allah Warayo and Ali Hassan giving them benefit of doubt, but convicted the appellant above named as mentioned hereinabove, for the reasons given in the impugned judgment.

7. The appellant abovenamed being aggrieved by the impugned judgment, dated 21‑12‑1980 has preferred this appeal, on the ground mentioned in the memo of appeal.

8. The learned Advocate for the appellant in support of the various grounds mentioned in the memo of appeal stated, that there was a delay in filing of F.I.R. of about 9 hours and the said delay has not been explained by cogent reasons. The learned Advocate for the appellant further submitted, that this was a case of no evidence as far as alleged actual murder is concerned, but the prosecution has only relied upon circumstantial evidence for purposes of its case and the learned trial Court did not accept the said circumstantial evidence as far as co‑accused Allah Warayo and Ali Hassan were concerned and acquitted them by giving benefit of doubt, but in the case of present appellant the learned trial Court by presumptions, which were not at all warranted by the said evidence, has convicted the appellant and as such the impugned judgment cannot legally be sustained. The learned Advocate for the appellant further submitted, that the learned trial Court did not take into consideration the plea of alibi raised by the appellant. The learned Advocate for the appellant further submitted, that no motive was alleged in F.I.R. but the prosecution witnesses in their statements before the learned trial Court tried to set up motive, as afterthought, but failed to prove the said motive and in this connection the learned Advocate for the appellant drew my attention to the statement of P.W. Allah Bux. The learned Advocate for the appellant further pointed out, that according to the version as given in the F.I.R., when P.Ws. Dur Muhammad, Allah Bux and Moula Bux reached the house of the appellant, only Allah Warayo, the acquitted co‑accused, who is the father of the present appellant was present, and according to the F.I.R. the present appellant and his brother Ali Hassan acquitted co‑accused came after the arrival of the P.Ws. in question, but the prosecution witnesses in their statements before the learned trial Court have tried to improve their version in this connection and have stated that appellant as well as his brother Ali Hassan acquitted accused were also present, when they reached the house of the appellant. The learned Advocate for the appellant further submitted, that the prosecution witnesses, who were examined before the learned trial Court are inter‑related and interested witnesses and the independent P.W: Moula Bux was given up and not examined by the prosecution and as such the evidence of these prosecution witnesses in the circumstances and the facts of the present case require independent corroboration, which is not at all available and as such no reliance can be placed on the evidence of these prosecution witnesses, without such independent corroboration. In this connection the learned Advocate for the appellant relied upon the case reported in P L D 1981 Kar. 1 and 1981 P Cr. L J

149. The learned Advocate for the appellant further submitted, that the learned trial Court in spite of no evidence at all against the present appellant, on mere presumptions, that were not legally warranted, has come to the conclusion, that appellant killed his wife Mst. Hajani and as such the conviction of the appellant cannot be upheld.

9. The learned Advocate appearing for the State on the other hand supported the impugned judgment and stated, that the delay in filing of F. I. R. has been fully explained by cogent reasons, by the complainant and further submitted, that the prosecution has established its case beyond reasonable doubt against the present appellant and in support of his contention, the learned Advocate for the State relied upon cases reported in P L D 1973 S C 469, P L D 1966 S C 664, 1978 P Cr. L J 18, P L D 1976 Kar. 1205, P L D 1968 F C 86 and 1976 S C M R 185.

10. I have carefully considered the above submissions made by the learned Advocates and have gone through the impugned judgment as well as the statements of the witnesses, which were recorded before the learned trial Court and through the authorities cited by the learned counsel before me:

11. Admittedly there was a delay of 9 hours in lodging of F.I.R., which has been explained by the complainant by saying, that he went to the Nekmard Gulzar Ahmed Thebo in order to appraise him of the situation and then came back to his village and ‑informed Abdul Baqi Khan Thebo father of Gulzar Ahmed Thebo, who advised him to lodge the F.I.R. with police and as such thereafter he went to the P. S. K.N. Shah and lodged F.I.R. in question. This explanation given by the complainant in my opinion is not adequate and does not explain satisfactorily delay in lodging of F.I.R. for about 9 hours.

12. I have myself gone through the F.I.R. which is Exh.8. The complainant in this F.I.R. has clearly mentioned that Sarwar, brother of present appellant came to the graveyard, where he had gone for burial of one deceased Ahmed Juneno and informed him that his sister Mst. Hajani had died and at the time of her death, his mother Mst. Ashraf Khatoon, his sister i.e. complainant's wife Mst. Husna and his father Allah Warayo and Mat. Saeedan were present in the house. The complainant in his said F.I.R. has further stated, that on hearing this he, his brother Shafi Muhammad and his cousin Allah Bux accompanied by Sarwar went to the house of the appellant in village Gulzar Ahmed, where they found the dead body of his deceased sister lying on the cot in the courtyard of the said house and he found the above mentioned persons named by him sitting there. He further stated, that he made inquiries from them and thereafter saw the face of his deceased sister which he found black and her neck was slightly swollen and as such he suspected foul play and consequently asked Allah Warayo, the acquitted accused, who was father‑in‑law of his deceased sister, to hand over the dead body for burial, but he refused. He further in the said F.I.R. has stated, that thereafter the present appellant and his brother Ads Hasan came there, who also refused to hand over the dead body and abused them. It is clear from this F.I.R. that, when complainant alongwith P.Ws. Shaft Muhammad, Allah Bux and Moula Bux went together to the house of the appellant on receiving the news of the death of his sister, appellant and his brother Ali Hassan were not present. However, complainant in his statement before the learned trial Court has changed the version given by him in this F.I.R. and stated that not only Sarwar informed him, that the present appellant and his brother Ali Hassan were present at the time, when Mst. Hajani died, but that when they reached the house, they also saw present appellant and his brother Ali Hassan present in the house, with their father Allah Warayo and other lady members. In view of this the evidence of this P.W.1 Dur Muhammad the complainant does not inspire confidence at all and as such the explanation given by him for delay in lodging of F.I.R. also cannot be believed, as this witness has obviously changed his version as given in F.I.R. in order to implicate the present appellant and his brother Ali Hassan, by showing their presence both at the time of the death of his sister as well as at the time, when he alongwith P.W. Shaft Muhammad. Allah Bux and Moula Bux reached the house of the appellant.

13. The next prosecution witness is P.W.2 Allah Bux, who is the cousin of the deceased and has corroborated the statement of the P.W.1, Dur Muhammad, as given in the trial Court. Similarly P.W.3 Shaft Muhammad is the brother of the deceased and has also corroborated the statements of P. Ws.1 and 2, as givers before the learned trial Court. It may be noted, that the independent prosecution witness Moula Bux, who had accompanied the complainant and P. Ws. Shafi Muhammad and Allah Bux, from the graveyard to the house of the appellant, was given up by the A.P.P., vide his statement, dated 2‑2‑1980, on the ground that he was not a material witness. The question of the presence of appellant at his residence at the time of the death of the deceased and at the time, when the complainant and P. W. Shafi Muhammad P.W. Allah Bux and Moula Bux reached the house of the appellant was very material, specially as the present appellant and his brother Ali Hassan had raised plea of alibi and as such evidence of witness Moula Bux, who was not related to the parties, was very material for corroborating the evidence of P.Ws.1, 2 and 3 for the alleged presence of the appellant at his house, when complainant and other P.Ws. reached his house. Since admittedly P. Ws.1, 2 and 3 are inter‑related and interested witnesses, their evidence regarding the presence of present appellant at the time, when the complainant and other P. Ws. reached his house cannot be accepted, without independent corroboration, specially as P. W.1 Dur Muhammad (complainant) has changed his version as given in F.I.R., in his statement before the learned trial Court. The view oft mine is fully supported by case reported in P L D 1981 Kar.

1. It may be noted, that the learned trial Court having believed prosecution witnesses Dur Muhammad, Shafi Muhammad and Allah Bux about the presence of the present appellant at his house, when they reached on receiving news of the death of Mst. Hajani, has by presumptions come to the conclusion, that since the dead body of the deceased was found in the house of the appellant and since the appellant was present in the house, according to these P. Ws., the plea of alibi put forward by the appellant was false and consequently by presumptions, that only one person could have killed the deceased and, therefore, on the basis of the alleged strain relations between the appellant and his deceased wife Mst. Hajani, the learned trial Court came to the conclusion, that appellant was only liable for his death. The learned trial Court has not discussed at all the evidence of D.W.1 Ali Hassan and D.W. 2 Pannah and has given no reasons at all for disbelieving their evidence, but simply, as the learned trial Court believed the evidence of prosecution' witnesses namely Dur Muhammad, Shafi Muhammad and Allah Bux, rejected the evidence of the defence witnesses. D.W.2 Pannah .has corroborated the alibi put forward by the present appellant and his evidence has not at all been shakened in his cross‑examination. The plea of the present appellant is also supported by Allah Warayo in his 342, Cr.P.C. statement as well as by his brother Ali Hassan in his 342, Cr. P. C. statement. This plea of the present appellant also gets support from the version given in F.I.R. Exh.8 of P.W.1 Dur Muhammad and as such this plea of the present appellant in respect of his alibi, at least creates doubt about appellant's presence in the house, at the time when the deceased died.

14. The reasonings of the learned trial Court for coming to the conclusion, that the present appellant alone could have killed the deceased Mst. Hajani is based on presumptions, which are not warranted at all by the evidence on record. No doubt conviction for murder on the basis of circumstantial evidence are not unknown, but such circumstances sought to be relied upon must have been established beyond all doubts and such circumstances must be found to be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. This view of mine is fully supported by the law laid down by Honourable Supreme Court in case reported in P L D 1966 S C

664. In the present case, in my opinion, there is no such circumstantial evidence on record so as to lead to definite conclusion, that appellant alone could have killed his wife, as alleged by the prosecution. The authorities relied upon by the learned Advocate for the State are based on different facts and circumstances and as such in my opinion are not at all applicable to present case.

15. In view of my above conclusions, I allow the above appeal and set aside the conviction and sentences awarded to the appellant, by giving him benefit of doubt and direct, that appellant be released forthwith, if he is not required in any other case. M. Y. H. Appeal allowed.