1976 P Cr (PLP)

MUHAMMAD RAFIQ TARAR, J.‑Haji Muhammad appellant was tried by the Sessions Judge, Dera Gha71 Khan, for committing the murder of Mst. Pathani on the night between Ist and 2nd September 1973, fn the area of Chak Dalel. Police Station Drahma, District Dera Ghazi Khan. By judgment, dated 27th August 1974, be was convicted under section 302 of the Pakistan Penal Code and sentenced to death. He has appealed and the case is also before us on reference for confirmation of the death sentence awarded to him. The appeal and the reference are being taken up together and disposed of by this judgment.

2. According to the F. I. R. Wahid Bakhsh complainant is the brother of Mst. Pathani deceased and Ghulam Sarwar P. W. is his maternal cousin. Haji Muhammad appellant is the uncle of Allah Ditta. husband of Mst. Pathani deceased. The evidence regarding the parantage of Mst. Pathani deceased is. however, somewhat ambiguous. At the trial Wahid Bakhsh complainant stated that after the death of his father Allah Wasaya, his mother married Imam Bakhsh P. W. This Imam Bakhsh appeared as a witness of the identification of the dead body and stated that the deceased was his daughter but the complainant denied this fact and stated that she not the daughter of Imam Bakhsh. Ghulam Sarwar P. W. stated that Imam was Bakhsh P. W. was the father of the deceased.

3. The case of the prosecution is that about three months before the occurrence Mst. Pathani was married to Allah Ditta son of Qadir Bakhsh of Chak Dalel. In exchange for this marriage, the Nikah of Mst. Lal, sister of aforesaid Allah Ditta, was performed with Wahid Bakhsh complainant and her younger sister was batrothed with the younger brother of the complainant. However, the Rukhsati of Mst. Lal had not taken place. On 1st September 1973, the father of the complainant asked the complainant and the latters' maternal cousin to approa ;h Qadir Bakhsh at Chak Dalel for fixing some date for the marriages. Accordingly, the com plainant and Ghulam Sarwar went to the house of Qadir Bakhah at Chah Nawan in the area of Chak Dalel. Qadir Bakhsh was not present in the house, therefore, they had to stay there for the night. They slept outside the Ihata of Qadir Bakhsh near the outer door. Mst. Pathani deceased, her husband Allah Ditta, the appellant and their womenfolk were sleeping inside the Ihata. At about midnight, the complainant and Ghulam Sarwar heard alarms of Mst. Pathani and entered the Ihata. They saw the appellant giving her injuries with a chhuri. They advanced towards him but he threatened them and tried to run away. On their alarm, Musa P. W. also got attracted to the spot. He tried to apprehend the appellant but he ran away from the spot with the blood‑stained chhuri. Mst. Pathani told them that the appellant had attempted to rape her when she was asleep but she raised alarm and he caused her injuries in order to conceal his own nefarious design. About two hours later,. Mst. Pathani succumbed to her injuries. Leaving Ghulam Sarwar and Musa near the dead body, Wahid Bakhsh complainant went to Police Station Drahma and reported the occurrence to Muhammad Abdullah, Muharrir Head Constable vide F. I. R. Exh. P. A./1 at 4 p.m. incorporating the above facts.

4. After recording the F. I. R., Muhammad Abdullah Head Constable reached the spot and prepared the injury statement (Exh. P. G.) and the inquest report (Exh. P. H.) of the dead body of Mst. Pathani deceased and sent it to the mortuary for post‑mortem examination. He secured some blood‑stained earth from the spot and made it into a sealed parcel ride memo. Exh. P. D. He also took mat (Exh. P. 5) and cot (Exh. P. 6) from the spot ride memo. Fxh. P. E. On 2nd September 1973, the appellant went to Muhammad Ramaan (P. W. 8) and, after making a confession that he had murdered Mst. Pathani, requested him to produce him before the police. On the same day Muhammad Ramzan P. W. produced the appellant before Mr. Muhammad Sharif. Station House Officer, Police Station Drahma, who arrested him. At the time of arrest the appellant was in possession of chhuri (Exh. P. 1) which was taken into possession by the Sub‑Inspector who made it into a sealed parcel vide memo Exh. P. B. After the investigation, a case under section 302 of the Pakistan Penal Code was sent up against the appellant.

5. On 2nd September 1973 at 6 p .m. Dr. Allah Nawaz Brohi, Medical Officer, District Headquarters Hospital, Dera Ghazi Khan, conducted the autopsy on the dead body of Mst. Pathani deceased and found the following injuries on it: (1) An incised wound 1" x 1/3" x cavity deep on the left side of chest. (2) An incised wound 1" x " x cavity deep on the right side of chest. Both the injuries were ante‑mortam and grievous. Injury No. 1 had cut left side of the heart and injury No. 2 had cut the right lung and fourth rib of the right side of the chest. In the opinion of the doctor, death was due to shock and haemorrhage and the injuries were sufficient to cause death in ordinary course of nature. Probable time between injuries and death was half to one hour and that between death and post‑mortem 14 hours.

6. To support its case, the prosecution examined eleven witnesses in all. The complainant did not support the prosecution version at the trial as well as before the committing Magistrate; he disowned the F. I. R. and stated that he was informed about the occurrence at his house by Allah Ditta, husband of the deceased. Ghulam Sarwar and Musa Khan P. Ws. gave an ocular account of the occurrence. The prosecution also relied on the recovery of chhuri and extra judicial confession allegedly made by the appellant before Muhamma3 Ramzan Lambardar.

7. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He contended that he had been falsely implicated on account of enmity with the prosecution witnesses. No evidence was led in defence.

8. The learned trial Judge rejected the evidence relating to the extra judicial confession and the recovery of blood‑stained chhuri from the appellant. He also disbelieved Musa Khan P. W. and relying on the solitary statement of Ghulam Sarwar Y. W. convicted the appellant under section 302 of the Pakistan Penal Code.

9. The learned counsel for the appellant contended that the prosecution version of the occurrence is highly unnatural and bristles with improbabilities He further argued that Ghulam Sarwar P. W. made material improvements at the trial in order to bring his statement in line with the medical evidence and to base the conviction of the appellant on his solitary statement.

10. After going through the record, we feel that the contentions of the learned counsel for the appellant are well founded. It has already been stated above that Wahid Bakhsh complainant did not support the prosecution at the trial as well as in the committing Court. He and stated that he was informed about the occurrence at his house by the husband of the deceased. He was cross‑examined by the Public with the permission of the Court, but nothing could statement. Musa Khan P. W. admitted in cross‑examination that he had appeared in hundreds of cases as a prosecution witness, Moreover, his is full of material contradictions. He stated that on the night of occurrence he was sleeping at his house situated at a distance of two‑a-half squares from the spot and had reached there on hearing the noise the noise when Wahid Bakhsh P.W. told him that his (Wahid s Bakhsh s) sister Mst. Pathani Lead been killed by the appellant in the gate (of the Ihata of occurrence) after committing warned him not to come near him. In cross‑examination he stated that in his presence the appellant had not inflicted any injury to the deceased. In the same breath, he admitted having stated before the police that he had seen the appellant inflicting injuries to Mst. Pathani. He further stated that his statement before the police was not correct. The above contradiction in his statements on a very material aspect would show that he is not truthful witness. According to his own showing, he was sleeping at his house situated at a distance of two‑and‑a‑half squares from the spot. The deceased had only two injuries on her person and her assailant would than a moment to inflict those injuries and must have away spot before this witness could reach the place of occurrence. Moreover, Ghulam Sarwar P. W. whose solitary statement farm of conviction to this case, had stated that he and the complainant chased the appellant up to the gate but he took to his heels and when they returned to the cot of the deceased after giving up the chase of the accused it was then Musa P. W. came there. We are, therefore, of the view that this witness had not seen the occurrence and his evidence was rightly rejected by the learned trial Judge.

11. The evidence of Ghulam Sarwar P. W. bristles with improbabilities and does not inspire confidence. The gist of his evidence is that he and Wahid Bakhah complainant had gone to village Chak Dalel "for asking Qadir Bakhsh to settle the issues of marriages of two ladies" (daughters of Qadir Bakhsh), but Qadir Bakhsh and his son Allah Ditta were not present at the house and they stayed there for the night at the request of the appellant and Ghulam Rasul son of Qadir Bakhsh. At about midnight they entered the Ihata on hearing the alarm of Mst. Pathani and saw the appellant giving her chhuri blows. They tried to catch him but he threatened them and ran away from the spot. He further stated that on their quary Mst. Pathani told them that the appellant wanted to have sexual intercourse with her but she did not agree and he injured her on that account. In cross‑examination he admitted that according to the normal practice the matrimonial matters are usually settled by the elders. He, however, came up with the explanation that Imam Bakhsh himself could not go to the house of Qadir Bakhsh as he was unable to walk due to injury on his foot. He was confronted with his previous statements (before the police, the committing Magistrate and under section 164, Cr. P. C.) where this face was not mentioned. On the other hand, Musa Khan P. W. stated that on the nest day of occurrence "Imam Bakhsh father of 141st. Pathani reached the spot all alone on foot at about pehr day after sunrise'. The learned counsel for the appellant argued that the Nikah of Asst. Lal daughter Qadir Bakhsh, had been performed with Wahid Bakhsh complainant but her Rukhsati had not taken place and the matriunial issues also included the Rukhsati of Mst. Lal, therefore, Wahid Bux was riot expected to contact, Qadir Bakhsh for that purpose as it was the job of elderly persons. He rightly contended chat it was to meet this improbability that Ghulam Sarwa r P. W. made an improvement and stated that Imam Bakhsh P. Ws, himself would not go to tile house of Qadir Bakhsh as be was unable to walk due to injury on the foot. This witness further stated that he and Wahid Bakhsh left their house at Maghribwela and reached the place of occurrence at about Isha Prayer. He, however, admitted that in his statement before the police (Exh. D. A.) he had stated that he and Wahid Bakhsh bad reached the house of Qadir Bakhsh at Degarwela. He asserted that the correct position was that be and the complainant had reached the house of Qadir Bakhsh at Isha‑prayer time. He further stated that he and Wahid Bakhsh were told that Qadir Bakhsh had gone to the house of his son‑in‑law Ghulam Husain and was expected back the same night. He was confronted with his three previous statements where this fact was not mentioned. These improvements are very significant and appear to have been introduced by this witness in order to justify his stay at the place of occurrence because reaching the house of Qadir Bakhsi at Degarwela and finding him not there, he and the complainant were expected to return to their own hose which was at a distance of only 1 miles from the place of occurrence. In, examination-in-chief, this witness stated that Allah Ditta husband of Mst. Pathani deceased, was also not present at his house. He was confronted with his statement before the police where it was not so recorded. In that statement he had stated that Allah Ditta aforesaid was sleeping inside the courtyard in which the occurrence had taken place. Moreover, the account of occurrence given by this witness is also highly unnatural. He stated that when they (the witness and the complainant) went inside the courtyard on hearing the alarm, only Haji accused was awake and all the other inmates of the house lay asleep". He further stated "When we went inside the house and raised alarm, those inmates woke u and at that time, Haji Muhammad accused was running away fro the spot". It is astonishing to note that this witness and Wahid Bakhsh who were sleeping outside the Ihata of occurrence, and Musa P. W, who was sleeping at a distance of two‑and‑a‑half, squares from the spot, woke up on hearing the alarm of Mst. Pathani, but the inmates of the house who were sleeping in the courtyard itself, did not awake. The inmates of the house were no less in number. According to Ghulam Sarwar's own showing they included Ghulam Rasul. Mst. Kundan, Sadiq Husain, Mst. Naseem and Mst. Kaneez (father, mother, son and daughters of the appellant respectively), Mst. Amir Khadim Hussain. Mst. Lai, Mst. Sughran Mst. Hajran and Mst. Nazi (wife, son and daughters of Qadir Bakhsh).

12. At the trial, Ghulam Sarwar stated that Mst. Pathani died after half an hour and thereafter Wahid Bakhsh P. W. left for the police station to report the matter. He denied having stated before the police that Mst. Pathani had remained conscious till two after the occurrence. He was confronted with his statement before the police were it was so recorded. He made this improvement obviously with a view to bring his statement in line with the medical evidence because the doctor had stated the probable time between the injuries and death was half to one hour. The prosecution version that Mst. Pathani had told the eye-witnesses that the appellant had attempted to rape her, is highly unnatural and doe snot fit in with the attending circumstances of the case. In cross-examination the doctor stated: There is a possibility that the deceased had lost her consciousness on receipt of injury No. 1 to her heart. Having lost consciousness there was no possibility that she could speak. The duration given by me between injuries and death is half to one hour. One hour duration is the maximum and half hour is the minimum. There was a possibility that she may have remained unconscious during half to one hour period. In view of the medical evidence it cannot be said with judicial certainty that the deceased was in a position to make any statement judicial certainty that the deceased was in a position to make any statement before the so-called eye-witnesses. It has already been mentioned above that a large number of persons all closely related to the appellant and the deceased were sleeping in the courtyard where the occurrence took place. In the F. I. R. the complainant stated that Allah Ditta, husband of Mst. Pathani, was also sleeping in the courtyard. Ghulam Sarwar P. W, had also made a similar statement before the police. He further stated that "the cot of Mst. Pathani deceased was surrounded by the other cots of the inmates of the house". It is impossible to believe that in such a situation the appellant would fare go near Mat. Pathani for having sexual intercourse with her against her will. In the presence of so many close relatives of the deceased and the appellant it was not possible even with the consent of the deceased. In order to show that the appellant had attempted to commit rape, Ghulam Sarwar P. W. stated. "We saw that the string of the shalwar of Mst. Pathani lay opened and torn at the time of occurrence. It was with her string torn that she died. It was in that condition that her dead body was removed to the mortuary for post‑mortem examination.. The Dopatta of Mst. Pathani had gone off her head and lay on the cot. Till the arrival of the police that dopatta was not disturbed by any of us". On this point, be stands belied by the Investigating Officer who stated: "When I first inspected the dead body of Mst. Pathani her clothers were intact, her shalwar was tied, there was a dopatta on her head but no other chaddar was lying on the dead body". After giving our careful consideration to the evidence and the circumstances of the case we feel that Ghulam Sarwar P. W. is not a reliable witness. He made material improvements on crucial points and the account of occurrence given by him is highly improbable. The evidence of solitary witness, in order to form the basis of conviction, must be free from all inherent improbabilities. We are, therefore, of the view that it will be unsafe to place implicit reliance on the statement of Ghulam Sarwar P. W.

13. Another circumstance which throws doubt on the prosecution version is that imam Bakhsh P.W. who claims to be the father of the deceased was informed about the occurrence a pehar or half of a pehar after sunrise on the following day and that, too, by one Hussain Bukhsh who had heard about the murder from someone else. If a Wahid Bakhsh complainant and Ghulam Sarwar P. W. had been present at the spot they would have sent information of the murder to Imam Bakhsh P. W. immediately after the occurrence.

14. The next piece of evidence relied upon by the prosecution is extra-judicial confession allegedly made by the appellant before Muhammad Ramzan (P.W.8). In cross-examination Muhammad Ramzan P. W. stated that the appellant had made the confession, if any, was inadmissible in evidence' having been made in the presence of a police officer. The recovery of blood‑stained chhuri was supported by Musa Khan and Muhammad Ramzan P. Ws. Both of them admitted that they had been appearing in Courts ail P. Ws. Their evidence was discarded by the learned trial Judge on the ground that they were stock witnesses of the police. We do not find any reason to disargree with this finding.

15. For all the foregoing reasons, we are of the view that the case of the prosecution is fraught with serious doubts and improbabilities and ii will be unsafe to maintain the conviction of the appellant on the tainted testimony of Ghulam Sarwar P. W. Consequently, we accept this appeal set aside the conviction and sentence of the appellant and acquit him of the charge against him. He shall be set at liberty forthwith if not required to be detained in any other case. The death sentence is not confirmed. Appeal allowed.