1987 PLP 3030 (MLD)

4. The motive for the murder of the deceased, as described in the first information report and as given out by the prosecution in evidence, was that the appellant harboured grudge against the deceased because the deceased had illicit relationship with Mst. Bevi daughter of Doss, who was a second degree cousin of the appellant and whom the appellant intended marrying.

5. The investigating officer, Ali Ahmad, P.W. 10, collected blood-stained earth from the spot on the 19th October, 1980, made it into a sealed parcel and took it in his possession vide memorandum Exh. PC, which was attested by Ghulam Rasool P.W. 5 and Gaman (not produced).

6. The appellant wife arrested by tile Investigating Officer, Ali Ahmad, on the 3rd November, 1980, when he was at the Dera of Kaluka which is at a distance of a square from the place of occurrence. While in police custody the appellant led to the recovery of the alleged weapon of offence, hatchet, Exh. P.4, from his khola (a katcha enclosure without roof). The hatchet is stated to be lying under dry cotton reeds in a corner of the khola. Ali Ahmad wrapped the hatchet into a sealed parcel and took it in his possession vide memorandum, Exh. PC, which was attested by Muhammad Shafi P.W.9, and one Ali Muhammad son of Sunjay Khan, P.W. 4 (who did not testify recovery of hatchet).

7. The Chemical Examiner of the Government of the Punjab found the earth gathered from the spot and the hatchet, Exh. P.4, recovered at the instance of the appellant, to be stained with blood. The Serologist determined the origin of blood to be human. Exhs. PK and PK/1 are the reports of the Chemical Examiner while Exhs. PL and PL/1 are the reports of the Serologist in this behalf.

8. Dr. Mumtaz Ahmad, Medical Officer, Civil Hospital, Bhera, conducted autopsy on the dead body of the deceased on the 19th October, 1980, at 3.00 p.m, and noticed the following injuries thereon. (i) An incised wound 4 c.m x 3 c.m. x bone cut through and through in front of the right side of nose. (ii) An incised wound 6 c.m. x 2 c.m. x bone cut through and through at the right angle of right mandible. (iii) An incised wound 8 c. m. x 3 c. m. x 5 c. m on the right side of neck just under right mandible: On dissection the medical officer found blood vessels of right side and first and second cervical vertebrae under injury No. 3 to be cut through and through. All the visceras were found healthy. Stomach and bladder were healthy and empty. Small intestine was healthy and contained a little faeces while the large intestine contained some fascal matter. According to the medical officer all the injuries were ante-mortem and had been caused with sharp-edged weapon. Injuries No. 1 and 2 were grievous and injury No. 3 was fatal to life. He opined that death had occurred due to shock and haemorrhage resulting from injury No. 3 which was sufficient to cause death in the ordinary course of nature. He stated that death had occurred immediately after the infliction of injuries and estimated the time between death and post-mortem examination to be twelve hours. Exh PE is the copy of the post-mortem examination report and Exh. PE/1 is the copy of the sketch indicating the location of injuries.

9. The appellant denied that Mst. Bevi, daughter of Dosa, was his cousin or that she had been betrothed to him. He answered the question whether he suspected the deceased to be having illicit intimacy with Mst. Bevi in the negative. He denied having murdered the deceased and also the fact of his abscondence. He did not admit that he had led to the recovery of the blood-stained hatchet, Exh. P.4. He pleaded his innocence and described the case against him to be false and result of enmity and party faction. He produced in his defence copy of the Nikahnama, Exh DA, witnessing the marriage of Mst. Bevi, daughter of Dosa, with one Ahmad Khan, son of Mirza Khan, having taken place on the 24th October, 1981. He also produced a copy of the Khasra girdawari register, Exh. DB, which as conceded by his counsel, does not help him in any manner.

10. It may be mentioned that Muhammad Shafi, P.W. 9, an eye witness to the occurrence, is the nephew of the complainant Muhammad Sharif. The other eye-witness, Muhammad Afzal, whom the prosecution did not produce as he was said to have been won over by the accused-appellant, is also the nephew of the complainant. Muhammad Shafi, P.W, 9, is witness of recovery of the hatchet, Exh. P. 4, as well, Ali Muhammad, son of Sanjay Khan, P.W.4, who is said to have attested the memorandum touching the recovery of the hatchet, is the sister's son of the complainant. However, Ali Muhammad, P.W. 4, did not bear out the recovery of the hatchet. Ghulam Rasool, P.W, 5, in whose presence the blood-stained earth was taken into possession of by the investigating officer and who attested the memorandum, Exh. PC, is also the sister's son of the complainant. Gaman, the other attesting witness of Exh. PC, who was not produced, is the nephew of the complainant. So the eye-witness, Muhammad Shafi. P.W. 9 and the other witnesses, Ali Muhammad, P.W. 4 and Ghulam Rasool, P.W.5, are very closely related to the complainant and the deceased.

11. The learned counsel for the appellant contended that it was a case of unwitnessed occurrence, that the deceased had been killed at night by someone, that Muhammad Sharif, P.W. 8, and Muhammad Shafi, P.W. 9, had not seen the occurrence and that the appellant had been implicated on mere suspicion. He maintained that the appellant had no motive to kill the deceased, that Mst. Bevi had grown up brothers and cousins who could have avenged the insult and that Mst. Bevi had been engaged and married to Ahmad Khan on the 24th October, 1981, as was evident from the copy of Nikahnama, Exh. DA. He argued that though the police station was hardly four miles away the first information report was lodged there about eight hour after the alleged occurrence. He tried to build up the thesis that the complainant party had been doing guess work in naming the assassin and ultimately they had made the appellant a scapegoat. He pointed out that no independent witness was available on the record to prove the guilt of the appellant, the two eye-witnesses were father and cousin of the deceased. He described the alleged recovery of the blood-stained hatchet at the instance of the appellant to be fake.

12. There is nothing on the record to show that the complainant or anyone else had in any way been prevented from reporting the matter to the police. Normally report ought to have been registered with the police within an hour and a half of the occurrence. Inordinate and unjustifiable delay in making the report does lend support to the argument of the learned counsel for the appellant that none had seen the assailant murdering the deceased and that the complainant party started gathering information and making their own guess in pin pointing the culprit. In view of their close blood relationship with the deceased, Muhammad Sharif, P.W, 8, and Muhammad Shafi, P.W.9, cannot be termed independent witnesses. The dera Awanan where other people live is at a distance hardly two killas from the place of occurrence but none of its inhabitants, who might have seen the occurrence and who, for lack of his relationship with the deceased, might be called an independent witness, came forward to bear testimony involving the appellant in the commission of murder of the deceased. It is highly unsafe to place reliance upon the interested testimony of Muhammad Sharif and Muhammad Shafi unless it is corroborated by other independent evidence.

13. The recovery of the alleged weapon of offence, namely, blood-stained hatchet, Exh. P. 4, which the prosecution put forth as corroborative of the testimony of the eye-witnesses, cannot be implicitly accepted for various reasons. The recovery witness, apart from the investigating officer, is none other than Muhammad Shafi, P.W.

9. Again the investigating officer, Ali Ahmad, P.W. 10, and Muhammad Shafi, P.W.9, give different versions of how the latter joined the police and the appellant when the appellant is said to have led to the recovery of hatchet, Exh P.4. Ali Ahmad, P.W. 10, stated that he had gone to village Matila (which is two miles away from the place of occurrence, residence of Muhammad Shafi and the place of recovery) where Muhammad Shafi had joined the investigation. Muhammad Shafi, P.W.9, on the other hand, said 'that he had been present in his house in Dera Awanan when the police had passed in front of his house and he had joined the investigation. There are four lambardars in village Matila but Ali Ahmad did not associate any of them or any other independent respectable person of the locality where the recovery had taken place to witness the recovery proceedings. Due compliance with the provisions of section 103 of the Code of Criminal Procedure was not secured in this behalf. Consequently it would not be safe to accept the recovery of the hatchet as genuine and to treat it as corroborative evidence of the testimony of Muhammad Shafi and Muhammad Sharif.

14. In view of the above doubt is cast on the authenticity of the testimony of Muhammad Sharif and Muhammad Shafi in so far as it implicates the appellant in committing the murder of the deceased. The appellant in the circumstances is entitled to the benefit of doubt. The appeal is, therefore, accepted, the conviction of the appellant and the sentences awarded to him are set aside and he is acquitted of the charge levelled against him. He is on bail. He is discharged of the obligations attending to the bail bond executed by him. The petition becomes infructuous and is dismissed. S.G.D./L-19/L Appeal allowed.