1977 P Cr (PLP)

SALEEM MAZHAR. J

Mumtaz aged 27 years was tried by the learned Sessions Judge, Sahiwal, for offences under section 302/307/449, Pakistan 'Penal Code for causing the death of Mst. Sairan, attempted muter of Mst. Zainab and criminal trespass into the house of Yousaf P. W. He, therefore, convicted the appellant under section 302, Pakistan Penal Code and sentenced him to death by his judgment dated 27th September 1972. He also convicted him to seven years' rigorous imprisonment under section 30 Pakistan Penal Code for the attempted murder of Mst. Zainab P. W. He was also convicted under section 449, Pakistan Penal Code and sentenced to three years' rigorous imprisonment and a fine of Rs. 100 or two months' rigorous imprisonment. The convict has appealed against his convictions and sentences and the case is also before us for the confirmation of his death sentence.

2. The occurrence took place at mid‑night on the night between 12th and 13th of September 1970 in Chak No. 29/S. P. The F. 1 R (Exh P. A.) was lodged by Yousaf (P W. 8) son of the deceased on 13th September 1970 at 2 30 a. m. which was recorded by S.

1. Muh3mmad Nawaz (P. W. 13) Police Station Malkhana at a distance of 3 miles from the spot.

3. Briefly the prosecution case as stated at the trial is that Mst. Sairan was the mother of Muhammad Yousaf complainant; The appellant was his first cousin and married to his sister Mst Zainab about five or six years ago. They remained happy for about a year, when the appellant turned her out of his house. Mst. Zainab Bibi (P. W. 10) filed a suit for the dissolution of marriage against the appellant, but the matter was compromised and Mst. Zainab Bibi started living with the appellant. About five months later the appellant again turned her out. She came to the house of complainant. The appellant filed a suit for the restitution of conjugal rights against her and that suit was still pending when the present occurrence took place. Another motive alleged is that Sharif, a brother of the appellant, was engaged to Mst. Hajran, who was the daughter of the paternal aunt of the complainant. Mst. Sairan (deceased) opposed this engagement and intervened. The parents of Mst. Hajran refused to give her hand to said Sharif and agreed to marry her to Latif, brother of the complainant. The complainant party was making preparation for the marriage at the time of the occurrence.

4. On the night of occurrence the deceased and Mst. Zainab (P. W. 10) were sleeping on one cot lying over Chabutra. Muhammad Yusuf complainant (P. W.) and Bashir (P. W. 12) were sleeping on their respective cots towards the east. It was a moonlit night. All of a sudden they heard a fire‑arm shot. The complainant got up and saw the appellant standing towards the head side of Mst. Sairan with a revolver in his hand. Mst. Sairan said that she bad been injured by Mumtaz. The complainant saw MO. Zainab Bibi P. W. lying on the ground. The appellant fired two shots at Mst. Zainab Bibi but they did not hit her. They raised alarm. The appellant threatened them not to come near him. The appellant then ran towards the main gate. The complainant went to Chaukidar and then to the house of Ahmad Ali Betoo, who directed him to lodge the report with the Police. Tine complainant lodged the F. I. R. (Exh. P. A,) which was recorded by Muhammad Nawaz S. I. (P. W. 13).

5. The Sub‑Inspector left for the spot and reached there at about 5 a.m. He prepared the injury statement (Exh. P. E.) and inquest report (Exh. P. F.) of the deceased and delivered the dead body to F. C. Fazal Hussain for taking it to the mortuary. The Investigating Officer recovered one bullet lead (P. 1) which had pierced into the ground and also bullet lead (P. 1/1) which had pierced into the wall of the staircase, which were taken into possession and made into a sealed parcel vide memo. (Exh. P. A/1).

6. Dr. Abdul Rashid Khan (P. W. 1) on 13th September 1970 at 12‑30 p.m. performed the post‑mortem examination on the dead body of Mst. Sairan and found the following injuries: (1) A circular fire‑arm wound ' x diameter in the middle of the chest at the level of 3rd inter rectal space on the right side. (2) A bluish circular area on the right side of back below the 10th rib. He examined the thorax. The wall of the front of the chest pierced at the level of 3rd right inter costal space. Rib got injured. Pleural cavity on the right side was full of blood. Right lung tissue was not injured. Right atrium of heart pierced through and through; pericardial cavity full of blood. Stomach contained small quantity of semi‑digested food. Liver pierced through and through by bullet. In the opinion of the doctor death occurred on account of shock due to tremendous bleeding from ruptured heart and liver. Injury No. 1 was sufficient to cause death in the ordinary course of nature, in a very short time. The injury could be caused by a pistol or a revolver. The bullet recovered was sent in a sealed cover to the Police. Probable time that elapsed between injury and death, first 10 minutes may be immediate, and between death and post‑mortem first 24 hours.

7. The Investigating Officer arrested the accused and on 15th September 1970 the appellant got recovered revolver (P. 10) from the bushes, which was wrapped in a handkerchief (P. 11), its chamber contained three empties P. 12/1‑3, which were taken into possession ride Memo (Exh. P. C.) He also got prepared the site plan (Exh. P. M.). The Sub‑Inspector deposited two sealed parcels containing bullet leads with Azizur Rehman Moharrir Head Constable (P. W. 3) and one parcel containing revolver on 15th September 1970 with the same Moharrir which he kept fn the Malkhana and on 15th September 1970 banded over the two sealed parcels to F. C. Fazal Hussain for taking them to the office of the Director, Forensic Science Laboratory, who delivered them intact on 18th September 1970 as is clear from the testimony of Gulsher Malik (P. W. 9). The Moharrir Head Constable sent the sealed parcel containing revolver to the office of the Director, Forensic Science Laboratory through Muhammad F. C. on 22nd September 1970 which was received in the said office on 23rd September 1970.

8. The appellant denied his guilt. He also denied the recovery of the revolver (P. 10) at his instance and stated that on account of enmity the P. Ws. have deposed against him. In answer to a question as to why this case against him he made tie following answer: "My wife Mst. Zainab was bent upon getting divorce from me. She was having connections with Ahmad Ali Beeto who also tried for the divorce, but I declined to divorce her. She filed two suits for dissolution of marriage. One suit ended in compromise and the second suit was still pending when this occurrence took place. I bad ousted Mst. Zainab from my house and the brothers of Mst. Zainab became inimical to me. Pira was the last husband of Mst. Sairan deceased, who was trying to settle Mst. Sairan in his house but Mst. Sairan was not prepared to go. I was arrested by the police from my house. Firstly suspicions were on Pira that he had killed Mst. Saran but later on Ahmad Ali Beeto got me challaned so that Mst. Zainab should succeed in getting rid of me." He did not produce any defence.

9. The learned Sessions Judge relying on the evidence of motive, ocular testimony and the recovery of crime weapon, convicted the appellant as stated above.

10. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have gone through the evidence on the record.

11. The learned counsel for the appellant contended, firstly, that the tyro bullets recovered from the spot and also the bullet recovered from the dead body of the deceased were sent to the office of the Fire‑Arms Expert on 18th September 1970, whereas the revolver was recovered on 15th September 1970. Thus the possibility that the two bullets recovered from the spot were fired from the revolver after its recovery, and so they matched, cannot be ruled out, for, the bullet recovered from the dead body could not be matched due to lack of sufficient identification; secondly, that the eye-witnesses are close relations of the deceased. Muhammad Yousaf (P. W. 8) and Bash it (P. W. 12) are sons of the deceased whereas Mst. Zainab (P. W. 10) is the daughter of the deceased.

12. We see force in the contentions raised by the learned counsel fa ther appellant. Gulsher Malik (P. W. 9) Fire‑arms Expert has stated that the two bullets recovered from the place of occurrence were found wedded, with the revolver in question whereas no opinion could be expressed as to whether or not the '32 crime bullet marked as B‑1 (Court's Exh. P‑9/1) was fired from the revolver (P. 10), due to lack of sufficient identification. So in view of this statement of the Fire‑arms Expert and the reasons stated above it cannot be said with certainty that the revolver (P. 10) can be connected with the crime at all. This position was also frankly‑conceded by the State counsel.

13. As regards the second contention it is true that Muhammad Yousaf, Mst. Zainab Bibi and Bashir, P. Ws. 8, 10 and 12 respectively, are close relations of the deceased. Moreover there was an enmity between the appellant and Mat. Zainab Bibi, his wife, on account of strained relations. It is also admitted by the eye‑witnesses that Mst. Sairan (deceased) was married to Lal Dhakoo who divorced her and then she was married to the father of the witnesses and after the death of their father, the deceased was married to Pita who deserted her. So if there wag any motive for the murder of the deceased, it was fur Pira, her husband. We also find in the testimony of Muhammad Yousaf P. W. that police did not give him a copy of the F. I. R. at the Police Station and that the copy was given to him three or four days after the occurrence and after investigation. Muhammad Yousaf (P. W. 8) and the other two eye‑witnesses have admitted that as the appellant was not keeping his wife, Mst. Zainab Bibi (P. W,) they had a grudge against him (the appellant). Mat. Zainab Bibi (P. W. 10) has admitted in cross‑examination that she denied to have stated before the police that they raised an alarm when all the three shots had been fired. She was duly confronted with her statement before the police where it is so recorded. She also asserted that she stated before the Committing Magistrate that when Mahram (P. W. 11) came, her mother told him that she was injured by the appellant, but it is not so recorded. She also admitted that Atta Muhammad (P. W. 5) who joined the investigation of this case, is her witness in her Civil Suit also. Bashir (P. W. 12) the last eye‑witness has also admitted in cross- examination that they were aggrieved by the desertion of their sister. He further admitted that Pira is a gambler, drunkard and Badmash. We also find in the testimony of Aziz Ahmad (P. W. 7). who is also a son of the deceased that his mother was wedded to Pira but was not living in his house because he was addicted to opium and was also a gambler. He has further stated that he came to know of this murder at morning prayer time. He reached the spot and found Latif (complainant), Bashir, Yousaf and Mst. Zainab present there but the police had not reached the spot at that time. He further stated that foot prints were traced, identified and compared with the foot prints found at the spot and to the same effect is the testimony of Muhram (P. W. 11) who is a wajtakar witness, who has stated that the police has been seeing the tracks t But both these witnesses stand contradicted on this point by the Investigating. Officer. In view of the above discussion we End that the eye‑witnesses are close relations of the deceased and had also strained relations with the appellant and that there is no independent corroboration.

14. Keeping in view the fact that it is a night time occurrence and if only one shot bad been fired at the deceased there was no chance for the eye‑witnesses to have identified the assailant at the spot, the benefit of doubt should go to the appellant. We, therefore, accept this appeal, set aside the conviction and sentences of the appellant and acquit him of all the charges, The appellant shall be released forthwith if not required in any other case The death sentence is not confirmed. Appeal allowed.