1985 P Cr (PLP)

Date of hearing: 12th February, 1985. Chaitna has filed this appeal through, Superintendent, New Central Jail, Bahawalpur against his conviction and sentence ordered by Mr. Manzoor Ahmad Kamboh, the learned Additional Sessions Judge, Rahimyarkhan, on 24‑3‑1983.

2. The facts, which led to the detection of this crime in substance are that Daraj son of Girdari complainant went to the flour mill to get his wheat grinded on the 3rd of May, 1982. He did not retrace his steps home and Girdari, his father got worried. Girdari and his son Dhana went in search of Daraj. They went to the flour mill, where they were told that he had gone away. Topan P W.10 and Otman P.W.11 told them that they had seen Daraj with Chaitna. All of them tried to search Daraj and found Chaitna burying the dead body in a ditch in the land of Mirza Saleem Baig. At the sight of the complainant and his companions, Chaitna ran away after carrying Kassi with him. The complainant party went towards the dead body and found the golden ear‑rings and the watch of Daraj missing. They also found a cloth around the neck of Daraj by which, he was strangulated to death. Girdari went to the police station, where he‑lodged the F.I.R. at 3‑30 a.m. The police went to the spot and after preparing necessary documents sent the dead body for autopsy, which was conducted by Dr. Ashiq Hussain Cheema P.W.7, who found that Daraj had been strangulated to death and asphyxia was the main cause of his death. After the investigation of this case, the challan of Chaitna was sent to the trial Court and as a sequel to the impugned trial, he was convicted under section 302, P.P.C. and awarded imprisonment for life in addition to a fine of Rs. 5,000 and in default thereof, to suffer two years' R.I. The appellant was awarded five years' R.I. under section 201, P.P.C. and was fined to Rs.500 and in default of the payment of fine, he was directed to undergo six months' R.I. He was also convicted under section 411, P.P.C. and sentenced to suffer R.I. for one year.

3. In this case, there is no eye‑witness of the occurrence. The evidence of last seen, the appellant's attempt to bury the dead body and certain recoveries constitute the circumstances of his conviction.

4. Girdari, the complainant appeared as P.W.9 and has narrated the incident as stated in the F. i. R. He has added that they had seen Chaitna in the moonlight burying the dead body of Daraj and at their sight, he ran away, He did not state before the police that the blood had trickled from the ears and nose of the deceased or that he had seen the appellant burying the dead body from a distance of one Bigha. He did not state the brand of the watch in his statement before the police. He has stated that sugarcane crop had been grown near the place of occurrence by Mirza Saleem Baig. It may be noted that the site plan shows that the sugarcane crop had been cut around the spot and wheat was growing on the western side of the spot. He has stated that he had not said before the police that Chaitna was seen burying the dead body but when confronted with the copy of his statement Exh. P.1. it was found so recorded.

5. Topan, who is the father‑in‑law of Dhana, the brother of the deceased has stated that he and Otman were going towards the thrasher lying in the land of Ch. Abdul Hameed, at about sunset when they saw Daraj carrying a bag of flour on his head homewards and Chaitna was with him. He has stated that they saw from a distance of 7 Kanals in moonlight Chaitna burying the dead body, who ran away on their sight. The motive of this occurrence is stated to be the illicit relations of the appellant with the wife of Daraj and the greed and avarice of the appellant to steal away the golden ear‑rings and the watch of Daraj Otman has also stated the same facts. Otman is the real brother of Girdari the complainant and the real paternal uncle of the deceased. He had seen Chaitna from a distance of one Bigha. Dhana P.W.13, the brother of the deceased has stated that he saw the appellant from a distance of one Bigha trying to bury the dead body of Daraj in a pit and they chased him upto a distance of one Bigha, but did not succeed to apprehend him.

6. The golden ear‑rings, the wrist watch, the bag of wheat‑flour and the shoes left by the appellant at the spot were recovered by the investigating agency. The shoes were not shown to Resham P.W.12 and Dhana P.W.13. In this manner, the recovery of shoes of the culprit does not connect the appellant with this crime. I fail to understand that the motive stated by the P.Ws. for the appellant is that he wanted to clear his way in order to maintain amatorial ties with the wife of the deceased, then why he should steal the wheat‑flour, which was carried by the deceased. It appears that the police has done padding to the great extent by inscribing the name of the deceased on the chain of the wrist‑watch. The golden ear‑rings were not identified by any goldsmith. Since nobody had seen the culprit murdering Daraj, so evidence was attempted to be collected against the appellant.

7. Ali Akbar, the Investigating Officer P.W.14 has stated that the P. Ws. had seen Chaitna from a distance of 2 acres in the moonlight . Topan P.W.10 has deposed that the face of the appellant, who was trying to bury the dead body was not towards him. According to theM, it was the 10th or 11th of the lunar month. The P.Ws. could not possibly identify a person from such a distance. It is also not credible that tour persons saw the appellant near the dead body and the appellant ran away while carrying a Kassi with him and these persons could not apprehend him when they were empty‑handed. It shows that they had not seen Chaitna going away from the spot. The story of recoveries does riot appeal to the reason. The recoveries had been delayed by 17 to 18 days and the appellant was arrested on 9‑5‑1982. It appears that the appellant was involved in this case on account of the suspicion of his adulterous relations with the wife of Daraj, who is stated to be a pretty woman.

8. It is pertinent to note that in para. 3 of the inquest report Exh. P.E., the knowledge of the time of death has grossly been overwritten. Firstly, it was written as 8.00 a.m. and then it was overwritten as 3.00 a.m. In the circumstances, I accept this appeal and set aside the conviction and sentence ordered against the appellant. The appellant may be set at liberty forthwith if not required to be detained in any other case. The fate of the appeal may be communicated to the appellant in jail immediately. M.Z.M. Appeal accepted.