1980 PLP 37 (SCMR)

MUHAMMAD AKRAM, J.‑Mst. Ellis respondent No. 2 was convicted under section 302, P. P. C. and sentenced to life imprisonment for the murder of a minor child Yousaf Masih by the Additional Sessions Judge, Sialkot on the 9th of May 1978. Her appeal against the conviction and sentence was accepted and she was acquitted by a learned Single Judge of the Lahore High Court at Lahore on the 29th of July 1978. This is a petition for special leave to appeal by the complainant against the order of her acquittal. The prosecution case in brief is that on the 25th of April 1977, Yousaf Masih aged 6/7 years alongwith his twin brother Joseph Masih had gone out to play in their village Kotli Muhammad Siddiq at noon time. Joseph Masih returned to the house but Yousaf Masih was found missing. After some search their grandfather Gulzar Masih complainant made a call through a loud speaker at the mosque of the village to find out the where abouts of the minor child. After having made this announcement he was returning home and saw the dead body of the child bearing some marks of violence lying under a keekar tree in the open in front of his house. At the time his outcries attracted Fazal Masih (P. W. 3) to the place who informed him that he had seen Mst. Ellis respondent No. 2, throwing the dead body thereafter the announcement had been made on the loud speaker. It was alleged that the deceased had been strangulated to death by the respondent on account of a dispute between the complainant and the respondent's husband Anwar Masih over the ancestral house in which they were residing. Anwar Masih and the complainant are real brothers and the latter had got the mutation of the ancestral house sanctioned in the names of all the brothers and had threatened to dispossess the respondent alongwith her husband therefrom. On this, in revenge, the respondent had committed the murder. On these allegations the F. I. R. was recorded at the instance of the complainant by Alam Din S. H. O. (P. W. 9) at the Police Station, Qila Suba Singh situated at a distance of about 7 miles from the place of occurrence at 4‑00 p. m. The Sub‑Inspector thereafter reached the spot, prepared the injuries statement and the inquest report in respect of the dead body of the child which was despatched to the mortuary under escort. The respondent could not be arrested in spite of search until on the 5th day on the 29th of April, 1977. Doctor Nazir Ahmad (P. W. 1) conducted the post‑mortem examination on the dead body and in his opinion the death had occurred due to asphyxia resulting from the injuries by pressure on the wind‑pipe and main blood vessel of brain and upper arm causing obstruction in their flow. At the trial the respondent pleaded innocence and refuted the allegations against her. She denied that there was any dispute between Anwar Masih her husband and the complainant about the house left by their father. She also denied that she had absconded after this murder and pleaded that she was involved in the case on account of enmity. Admittedly there was no direct ocular evidence about this: occurrence. In support of its case the prosecution mainly relied on the circumstantial evidence enumerated below :‑ (1) The evidence of Fazal Masih (P. W. 3) having last seen the respondent throwing the dead body of the deceased at the place from where it was later on picked up. (2) Extra‑judicial confession made by the respondent before Ahmad Din (P. W. 5) and Allah Bakhsh (P. W. 6). (3) The motive for this murder. (4) The medical evidence. (5) The evidence of abscondence of the, respondent. The learned Additional Sessions Judge, Sialkot accepted the prosecution version in its entirety and wa3 of the opinion that the respondent was proved to have thrown the dead body of the deceased at the place from where it was found afterwards. In this connection he further observed that :‑ "She was duty bound to explain from where she took the dead body and in the absence of such an explanation the only reasonable conclusion which can be drawn from these circumstances is that she strangulated Yousaf Masih to death and then threw his dead body in the front of the house of his grandfather Gulzar Masih." He believed the motive for this murder and also relied on the extra- judicial confession made by her and her abscondence from the village for four days. In support of the alleged motive the learned Additional Sessions Judge relied on the evidence of Gulzar Masih complainant (P. W. 2), Manzoor Masih (P. W. 4) and Ahmad Din Lambardar (P. W. 5). According to the complainant he had a dispute with his brother Anwar Masih over the ancestral house for which he got the mutation sanctioned in the name of all t e brothers. Marizoor Masih (P. W. 4) was an ex‑Chairman of the Pakista Peoples Party Kotli Muhammad Siddiq and an elder of the Catholic Church According to him a month before the occurrence the respondent came him and complained that Gulzar Masih had got the mutation sanctioned r the house in his favour and asked them to vacate it. She therefore, solicited the help of the witness. But in the opinion of the High Court if it is accepted that Gulzar Masih P. W. had a dispute with his own brother Anwar Masih and that the former had asked the respondent to vacate the house, it was no ground to conclude that she had nurtured a motive to cause the death of this minor child. The learned Judge in Chambers was therefore, inclined to hold that the motive set up by the prosecution was very weak and in any case not of a conclusive nature and tendency. The High Court was not satisfied with the evidence of Fazal Masih (P. W. 3) who was stated to have seen the respondent throwing the dead body at the place from where it was later on picked up. It was quite strange that the witness had kept quiet till he had heard the alarm raised by Gulzar Masih after he had already seen the dead body under the keekar tree. Moreover, in his evidence in Court he had made substantial improve ments over his earlier statement before the police in which he had stated that he had seen the respondent throwing the dead body at Chahwela and in spite of this he did not inform the parents of the deceased about it since Chahwela till noon. In these circumstances, the learned Judge in Chambers found that the prosecution evidence on this part of the case was too artificial to be believed. The statement of the Investigating Officer that the respondent was not available for some days was not sufficient to hold that the factum of abscondence had been fully established. In this connection reliance was placed on the reported case of Aminullah v. The State (PLD1976SC629). In the absence of any direct evidence the medical evidence was hardly sufficient to connect the respondent with the murder. As to the extra‑judicial confession the learned Judge in Chambers observed that Ahmad Din P. W. was a Lambardar of the Village. According to him on the 5th day of the occurrence at Chahwela while he along with Allah Rakha (P. W. 6) were present at his dera, the respondent came there and sought the help of the witness with the folded hands. He then told her that she should not run away and should go to her house and he would try to help her. Afterwards the police came to the village at laudchwela when he produced the accused before it. But according to the learned Judge in Chambers it was rather unusual on the part of the Lambardar to have allowed her to go back to her house after she had made the confession and this circumstance had rendered the confession doubtful. In conclusion the Court therefore, found that the prosecution was not able to make out a case against the respondent beyond reasonable doubt and ordered her acquittal. We have heard the learned counsel for the complainant petitioner. Admittedly there is no direct ocular evidence to fully implicate the respondent. In appeal the learned Judge in Chambers was not impressed by the evidence of motive on which the prosecution had relied. He also found that the testimony of Fazal Masih (P. W. 3) was much too artificial to believe that he had seen the respondent throwing the dead body of the child under the tree. The evidence of the two witnesses of the extra‑judicial confession did not inspire confidence. The testimony of Alam Din S.I. (P. W. 9) was not considered sufficient to prove the abscondence of the accused. In these circum stances the conviction of the respondent could not be sustained on the medical evidence alone. In our opinion the learned Judge in Chambers had based hill finding on the evidence on the record. He had taken a possible view of the evidence on the record and it cannot therefore, be held that the finding of, acquittal recorded by him in favour of the respondent was arbitrary and capricious. We therefore, see no good reason to interfere with the lawful order made by the High Court. This petition has no force which is hereby rejected. Petition dismissed.