1976 P Cr (PLP)

(v) that the narration as given by the P. Ws, was highly improbable and did not inspire confidence ; (vi) that not a single witness was produced from village Kaleri which was a populated village comprising of 100/14u houses ; (vii) that the house of Ismail was surrounded by a number of inhabited houses but none of the neighbours has come forward tee support the prosecution case ; (viii) that the, investigation by the police suffered from infirmities of inherent kind which cut at the very root of the prosecution version ; (ix) that blood‑stained earth was taken into possession by the police from the kotha of Ismail P. W. and not from the alleged place of occurrence; (x) that the enmity of the appellants was established with Ismail P. W. 9 and (xi) that the learned trial Court has failed to give any reason for discarding the cogent defence evidence produced on their behalf.

10. We have taken into consideration the above-noted contentions and will assess and discuss their intrinsic strength and value vis‑a‑vis the evidence led by the prosecution and the defence, on the record. The perusal of F. I. R. Exh. P. A. by itself reveals that the F. I. R in this case was lodged after more than 24 hours as the occurrence took place on 25‑7‑1973 at degarwela while the F. I. R. was registered at Police Station, Taunsa on the next day at 5‑30 p.m. The only reason given by the complainant for his inability to reach the police station in time, was that he was prevented by hill torrent flowing in Buglani‑Wah which he could not cross. According to this witness he stayed on its bank all the night and the next day till the flow of water subsided. It was suggested to him in the cross‑examination that he could reach his destination without crossing this obstacle via the metalled road which was open to traffic to which he replied that be could not do so as he was not conversant with the path going towards the metalled road from Buglani Wah and moreover he did not think it proper due to cloudy and dark hours of the night. The defence in this case has produced Ghulam Yasin Niazi D. W. 2, who brought the record of octroi post No. 1 Exh. D. F. and Exh. D. G. to prove that on the relevant time the Buglani‑Wah was not flooded with Sighar Hill Torrent arid people on that day passed through it to sell vegetables at Taunsa town. The evidence of this independent witness supported by documentary, evidence, completely belies the explanation given by the complainant in this regard. Besides this cogent piece of evidence which exposes the hollowness of the claim made by the complainant, we further gain a positive impression frog his statement that he was nothing but a liar and was vainly trying to justify the delay in lodging this report. He has stated in his cross‑examination that when he found the water running in Buglani‑Wah, he instead of going to the neighbouring village to stay, he spent the whole night sitting at the bank of Bugiani‑Wah on a cloudy dart: night He tried to explain his extraordinary conduct by saying that he was told not to proceed to Taunsa as Buglani‑Wah flowed in zig‑zaging direction and thus will delay his arrival at the destination. But he could not give, any explanation for his spending the entire night in such exposed condition. When asked to name the village or the residents who gave him that advice, he expressed his inability to do so. It would look strange when we find this witness sitting all the night at the bank of Buglani‑Wah and not taking shelter in the neighbouring village with whose inhabitants he had talked and discussed the way and means of reaching Taunsa. It also seems highly unnatural and improbable that villagers would not take this lonesome person to their abodes in accordance with the traditional hospitality in the rural areas. It is also in his evidence that he did not inform any of the villagers with whom he had talked that night about this occurrence. His claim that he did not move from that place even when the day had dawned and he had no impediment in his way to proceed to Taunsa, does not sound convincing. We are of the firm view that the delay in this case was significant and was with purpose.

11. According to the case of the prosecution Allah Wasaya P. W. alongwith Ata Muhammad P. W. happened to be at the place of occurrence because his cousin Imam Bakhsh had made him a request to intervene in the matrimonial dispute between him and Mst. Jannat. To establish the bona fide of this witness for his presence at the time of occurrence, it was incumbent upon the prosecution to produce either Imam Bakhsh or Mst. Bharawan or in that matter at least Msr. Jannat. What we find is that all these important witnesses have been withheld by the prosecution and thus the prosecution was left with the solitary statement of Ahmad Bakhsh P. W. 7, the complainant in this case who wants us to believe that he was present in village Kaleri on the day of occurrence to mediate between the two estranged spouses. It is pertinent to note that this most important evidence which could establish a positive reason for the complainant to witness this girzly murder, was not enquired into even by the investigating agency. Allah Nawaz P. W. 11, has candidly admitted that he did nothing of this kind. He has stated in his cross‑examination I did not examine Msr. Jannat, her mother Asst. Bharawan, her husband Haji Muhammad, her father Baza during the investigation. With this state of affairs we are not ready to accept the solitary statement of Allah Wasaya P. W. regarding his role of mediator between Mst. Jannat and Imam Bakhsh.

12. The motive attributed by the prosecution to the appellants for the commission of this crime was that one Mst. Aisha, daughter of Maulvi Jindwadda, was an object of love of Muhammad Khan appellant and when the deceased contracted illicit liaison with her, this sent the appellant Muhammad Khan to fury and he decided to plan this murder with the help of his co‑accused. Even on this point we do not find that the prosecution has been able to prove its case. The non‑production of Maulvi Jindwadda or Mst. Aisha or any other independent witness from village Kaleri, has substantially damaged the claim of the prosecution in this behalf. What we find is that even the police did not examine this aspect of the case which is evident from the statement of Allah Nawaz A. S. I. who stated in his cross‑examination :‑ I did not examine Mst. Aisha daughter of Maulvi Jindwadda during the investigation. On the other hand this claim and assertion by the prosecution stands completely negated by the evidence of Ismail P. W. 9, the star witness of the prosecution who in his cross‑examination has admitted :‑ "I do not know where Jindwadda Maulvi and his family were during the days of occurrence living, who had left our village 6/7 years back and since then I am not conversant with their affairs." This important admission in favour of the defence made by Ismail P. W. 9, has shaken the very foundation of this case and has made this case, a case of motiveless murder.

13. A further probe into the evidence of Allah Wasaya P. W. will show that according to his own admission he did not inform Ismail P. W. the time and date of their arrival at village Kaleri alongwith Abdur Rehman deceased. Keeping in view this part of the statement made by Allah Wasaya P. W. 9, we fail to understand bow Muhammad Khan appellant and his co‑accused came to know that his rival in love namely Abdur Rehman deceased, would, be available to them at a particular time for wrecking their vengeance. This makes the case of the prosecution further doubtful for the reason that Muhammad Khan appellant did not live in village Kaleri and was resident of a different village Le. Mauza Matti. Thus there was no question of finding Abdur Rehman deceased in the village by this appellant as per chance.

14. While taking the narration of events as given by Ismail and Allah Wasaya P. Ws. we do not feel impressed with their account. A look at the medical evidence will show that the deceased suffered numerous blows with a sharp‑edged weapon and even he was slaughtered by his assailants. It does not look probable that two persons armed with chhuras would be able to cause this havoc on the person of the deceased while Ismail, Allah Wasaya and Ata Muhammad were present at the spot. The interference on the part of these companions of the deceased to rescue him from two armed persons, would be quite natural but in view of absence of injuries of any sort on their persons, makes it absolutely clear that they did not make any attempt to do so although they have alleged in their statements that they did and therefore, casts a grave doubt on their presence at the time of occur rence. The multiple injuries on the person of the deceased leads to a strong inference that he was done to death by his assailants when there was no body near about to thwart the attack so made by them. We are further strengthened in our belief in this proposition by the fact that the place of occurrence was not a solitary house or korha in a deserted place but was surrounded by a number of houses as is manifest from the site plan Exh. PC. Similarly, we find Exh. D. D. on the record which was prepared under the orders of the Assistant Commissioner, at the request of one Ghulam Rasul, a relative of the appellants, by Aziz Ahmad Patwari. By this document it is also evident that the pace of occurrence was surrounded by inhabited houses. When confronted with this situation Ismail P. W. came out with a preposterous pronouncement that on the day of occurrence although village was inhabited by about 400 persons, yet none of them was present in the village. This witness was forced to admit under the strain and stress of the cross‑examination that the house wherefrom the dead body of the deceased was recovered, was inhabited by him his father and mother alongwith his two wives, his son imam Bakhsh also with his two wives and his uncle C3hulam Hussain but insisted that at the time and day of occurrence none of the occupants of this house was present as they had gone to graze their animals outside the village. He further wants us to believe that even on their return he did not inform any body about the occurrence although the dead body was lying in his kotha. It was only when the police arrived after more than 24 hours of the occurrence that he told them that Abdur Kehman deceased was murdered and thrown into his house. The explana tion given by him as to how the dead body of Abdur Rehman deceased was found to be present in his kotha, is hard to accept by any rational mind. According to him it was Ghulam Siddiq appellant who in a fit of fury after inflicting numerous blows on the neck of the deceased, uttered abuses and throw the body of the deceased into his kotha. Unless we believe that the deceased was a very light object like a peel of banana or some toy, it would not be possible for a single man to perform this herculean task. We also do not find any reason for Ghulam Siddiq appellant to be so furious when he was not directly aggrieved by the act of the deceased for his illicit liaison with imaginary Mst. Aisha. Therefore, we have no hesitation to conclude that the story given by the P. Ws. and as stated by Allah Wasaya P. W. is the F. I. R., does not inspire confidence.

15. The conduct of the Investigating Agency also suffers from serious flaws and infirmities. It has not been proved from the record that any blood was taken into possession from the alleged place of occurrence whereas the evidence regarding its being taken into possession from inside the kotha of Ismail P. W., is positive. Exh. P. B., the recovery memo. in respect of blood‑stained earth supports the contention of the defence that the blood was taken from one place only and that was the kotha of Ismail P. W. This state of affairs has been admitted by Allah Nawaz S. H. O. P, W. 11, in his cross‑examination, as under :‑ I have seen Exh. P. B. the recovery memo. in respect of blood‑stained earth, but in this it is mentioned that blood‑stained earth was taken from the place of occurrence. It is not mentioned in the recovery memo. that the blood was scrapped from two places. I have con sulted my case diary. In this too I have not mentioned that I have scrapped the blood‑stained earth from two places. I had not prepared the separate parcels of the blood stains from the two places but had made joint parcel of the same. There was greater quantity of blood underneath the dead body lying in the room as compared with the one lying at the place of occurrence. I have not mentioned in my inspection note Exh. D. C. that there were trail of blood from the place of occurrence to the place of dead body in the room. This admission of the actual state of affairs being self‑explanatory, hardly needs any comments from us. Similarly, this witness was forced to admit certain circumstances which would support the theory put up by the defence that during that investigation the police was unaware either about the names of the accused or of the witnesses. This proposition finds full support from the following admission of S. H. O. Allah Nawaz P. W. 11:‑

I have consulted the daily diary of police station against serial No. 6 of 26‑7‑1973. There is entry regarding the registration of this case but in it there is no mention of any eye‑witness, the name of the accused or the detail or the manner of the occurrence or the place of occurrence. I have also perused the entry in the roznamcha at Serial No. 7 of the same date wherein the A. S. I. Abdur Ghafoor had mentioned that he had completed the writing of the F. I. R. and was on his way to the spot. Therein too there is no mention of any eye‑witness, name of the accused or the manner or the place of occurrence. He was forced to accept that it was for the first time on 2‑8-1973, that he and Abdul Ghafoor A. S. I. brought back the case diary to the police station and no copies of Ziminis were sent by the A. S. I. or himself to the police station. When he was asked to consult the roznamcha in this respect, he stated that be did not find any entry regarding the despatch of copies of case diary to the D. S. P. or the S. P and only the mention of bringing of mal muqadanma was there. He also added that in that document there was no mention of recovery of any chhura or clothes from the accused. This important aspect of the case although was taken into consideration by the learned trial Court in paragraph No. 19 of its judgment, yet it rejected all these established facts by only one line, "I am not inclined to accept the contention". We do not consider it proper for the learned trial Court to have closed this subject without giving cogent reasons of some sort to repel the contentions of the defence so made out from the record. Similarly, we also find that the learned trial Court although mentioned the contention of the defence regarding the unnatural conduct of Allah Wasaya P. W. In spending the whole night at the bank of Buglani‑Wah but did not advert to its consequences vis‑a‑vis the statements of the D. Ws. produced by the appellants. We are also satisfied from the evidence of Ismail P. W. 9 that lie had positive animus against the appellants. Material regarding this presumption is available on page 25 of the Paper Book in the continued cross‑examination of this witness which is as under :‑ I am also known as Ismail member. I might have filed a case in Union Council Sokar against Mahmood accused for the recovery of Rs. 3,

000. Again said that I had filed that suit against that accused. It was dismissed. In case State v. Ghulam Hassan under section 302, P. P. C. I had appeared as a P. W. The accused was acquitted. Yaqub is the uncle of Mahmood accused. I do not know if there was a dispute between Muhammad accused and Yaqub and Mahmood accused bad brought a criminal cage against Muhammad Siddiq, and Umar accused. I do not know if Abdur Rehman deceased had illicit relations with Mst. Zainab wife of Yaqub son of Hassan. I do not know if Abdur Rehman deceased was seen with Mst. Zainab by her uncle Sona when Muhammad Ramzan P. W. was keeping guard. It is incorrect that Mst. Zainab was killed by Sona when Abdur Rehman deceased and Muhammad Ramzan P. W. had run away. I also do not know if a case was registered against Sona for the murder of Mst. Zainab. Muhammad, Umar and Muhammad Siddiq accused had not taken any security proceedings against me nor I brought any such proceedings against Mahmood accused. My father may be one of the co‑owners in Khasra No. 1 situated in mauza Rakayni. I do not know if that suit is pend ing regarding the shamlat of that land. Muhammad Khan accused is on one side and my father and others are on the other side. A suggestion was also put to this witness namely Ismail P W. that earlier to this occurrence Abdur Rehman deceased had illicit relations with Mst. Zainab wife of Yaqub son of Hassan and when surprised by her uncle Sona, she was killed while Abdur Rehman deceased and his friend Muhammad Ramzan P. W. ran away. A case was registered against Sona for the murder of Mst. Zainab but this was denied by Ismail.

16. For the foregoing reasons, we are of the considered opinion that in all probabilities Rehman deceased was done to death in the Kotha of Ismail P.W in consequence of his amorous exploits by some one with whose honour he was playing. It seems that Ismail P. W. to save his own akin came out with a story in which he conveniently involved the appellant and their co‑accused a account of grudge which he bore against them. Be that as it may the fact remains that the prosecution has failed to prove its case beyond reasonable doubt, against the appellants, and suffers from inherent infirmities and flaws which cannot be kept out of consideration. Had the trial Court taken into consideration all the factors in favour of the defence which we have discussed above, we are confident that it would not have arrived at the conclusion that the case against the appellants was established beyond doubt.

17. The result is that we accept the appeal, set aside the conviction and sentences of the appellants and acquit them. They shall be released forthwith from the jail unless they are required in some other, case. The sentence of death awarded to the appellants, is not confirmed. Appeal allowed.