1991 P Cr (PLP)

RAJA AFRASIAB KHAN, J.

Muhammad Akram (26) son of Nawab and Khalid (22) son of Niamat were tried by Mr. Farman Ali Khan, learned Additional Sessions Judge, Faisalabad, for the murder of Abdul Majeed (45). The learned trial Judge convicted both the accused under section 30''/3.1, P.P.C. Muhammad Akram was sentenced to death while Khalid was sentenced to life imprisonment plus a fine of Rs. 10,000 each or in default thereof to undergo one year's R.1 each. They were also ordered to pay Rs.10,000 each as compensation to the legal heirs of the deceased or in default thereof to suffer six months' R.I. each. The appellants challenged their conviction and sentence by filing separate appeals while the learned trial Judge sent a reference under section 374, Cr.P.C. for confirmation of death sentence of Muhammad Akram. We propose to dispose of above matters by this Judgment.

2. The prosecution case is that Abdul Rashid is the resident of Chak No. 50 Bureywal. During night on 25-8-1985 Abdul Rashid and his father Abdul Majeed were sleeping in front of the drawing room of their house. An electricity light was available in front of the said sitting room. At about 12-30 a.m., the complainant got up on an alarm raised by his father and saw Muhammad Akram and Khalid accused while standing near the cot of his father. Muhammad Akram was holding a Bugda (Cleaver). Abdul Majeed was lying in an injured condition on his cot. There was a wound on his neck and blood was oozing out from it. Mst. Alam Bibi, mother of complainant also came there and saw the occurrence. Muhammad Akram and Khalid ran away. Both the assailants,, were identified by the complainant and his mother Mst. Alam Bibi in the light of an electric Bulb. Abdul Majeed died on the spot. Motive is that Muhammad Akram had a suspicion that his sister Mst. Kaneez had an illicit liaison with Abdul Majeed. On account of this suspicion a month ago Muhammad Akram forbade Abdul Majeed from coming to his house. Both Muhammad Akram and Khaiid are fast friends and they roam about together. They committed this offence in execution of their common intention. On statement of Abdul Rashid (P.W.8) Muhammad Sibtain Shah S.I. recorded the F.I.R. Exh. P.C.

3. Muhammad Sibtain Shah S.I. P.W.4 investigated the case. On 25-8-1985, he visited the spot, prepared injury statement Exh. P.D and inquest report Exh P.E of deceased Abdul Majeed. Dead body was sent to mortuary for post -mortem examination through Asghar Ali F.C. (P.W.2), Blood-stained earth was taken into possession vide memo Exh. P.G. Blood-stained cot P.4, Blanket P.3, Pillow P.5, its cover P.6 and shoes P.7/1-2 were taken into possession vide memo Exh. P.H. Blood-stained chadar P.1 and Parna P.2 were produced before the Police Officer by Asghar Ali F.C (P.W.2) which were taken into possession vide memo Exh. PA. Site plan Exh. P.B. and its duplicate Exh.P.B/1 were got prepared from Aurangzeb Draftsman (P.W.3) Muhammad Akram and Khalid were arrested by the Sub-Inspector on 13-9-1985. On 15-9-1985 Muhammad Akram led to the recovery of a chhuri P.8 from the shop of Muhammad Anwar butcher which was taken into possession vide memo Exh. P.I. Positive reports of the Chemical Examiner Exh P.L and that of Serologist Exh. P.M. on blood-stained earth were tendered in evidence.

4. Eye-witness,, account was furnished by Abdul Rashid P.W.8 and Mst Alam Bibi P.W.9 Abdul Rashid is son of the deceased whereas Mst. Alam Bibi is his widow. The appellant Muhammad Akram denied the allegation levelled against him while making a statement under section 342, Cr.P.C. He took the plea that he had been implicated in the case due to enmity with the P.Ws. and that he was innocent. Khalid appellant too denied the allegation levelled against him. He took the plea that he had been named in the F.1.R because of enmity of Nazar Hussain Headman of the village with his father. In support of their defence pleas, the appellant produced certified copies of F.I.R. Exh. D.I to Exh.D.4, certified copy of a decision Exh. D.5 dated 15-7-1968 given by the Canal Authority and a copy of the Canal Plan Exh.D.6.

5. Dr. Iftikhar Ahmad Paracha P.W.6 conducted the post-mortem examination upon the dead body of Abdul Majeed on 25-8-1985 at 2-00 p.m. and found the following injury on it: (1) A cut wound 14 c.m. x 3 c.m. cervical vertebrae deep in upper most part of neck under the jaw at level in between byoid bone and thyroid box, underneath blood vessels of neck on both sides cutting through and through between byoid bone and thyroid box reaching in between 3rd and 4th cervical vertebrae cutting spinal cord half the oesophagus was also cut through and through. The thyroid box i.e. thyroid cartilage was fractured in lower part, the trachea was deeply congested. This injury state from right jaw angle to left jaw In opinion of the Doctor death occurred due to shock and haemorrhage as a result of the above injury which was caused by a sharp-edged weapon and was sufficient to cause death in the ordinary course of nature. The injury was ante -mortem. The time between injury and death was within minutes. The probable time between the death and post-mortem examination was about 12 hours.

6. It is contended by the learned counsel, that this is a case of blind murder. He argues that the presence of the eye-witnesses at the spot is certainly doubtful. In this view of the matter, learned counsel submits that the prosecution has failed to prove its case beyond doubt against the appellants. Learned counsel maintains that Khalid appellant was empty-handed and that he did not do any overt act in the commission of the crime. The learned State counsel defended the conviction and sentence of the appellants.

7. We have heard the learned counsel for the parties at considerable length' and have gone through the record with utmost care. In our view, the prosecution; did not succeed in proving its case against the appellants beyond reasonable a doubt. It is a night-time occurrence. As the prosecution story goes, Abdul Majeed deceased and his son Abdul Rashid (complainant) were sleeping in front of their house on the night of occurrence. Abdul Rashid P.W.8 claims to be sleeping next to his father. On the alarm of Abdul Majeed, he got up only to see the two appellants while standing near the cot of his father. It is further stated that blood stained Bugda (Cleaver)was held by Muhammad Akram and that throat of Abdul Majeed was cut. The wound was profusely bleeding. It was also stated by the witness that Khalid appellant was standing near the cot of his father towards its feet side. On the alarm, Mst. Alam Bibi P.W.9 also reached there. The evidence of the witnesses does not inspire confidence and as such is not worth reliance. Abdul Rashid P.W.8 is a young man aged about 20 years. In case, he was sleeping near his father, he was expected to make efforts to apprehend the assailants. There, is nothing in his evidence that he attempted to apprehend the accused. It is also unusual that he did not raise any alarm. It is not disclosed in the evidence as to where Mst. Alam Bibi was sleeping at the time of occurrence. Admittedly, Abdul Rashid and his mother Mst. Alam Bibi did not at all see Muhammad Akram appellant while inflicting injury on the person of Abdul Majeed. Their evidence is that the accused were just standing near the cot of Abdul Majeed. According to the evidence, Muhammad Akram was standing on the head side while Khalid was standing towards the feet side of the cot. The F.I.R shows that the murder was committed by using a Bugda (Cleaver) by the accused. However, a chhuri P.8 was recovered at the instance of Muhammad Akram appellant from the shop of Muhammad Anwar Butcher. The Bugda (Cleaver) is a much heavier weapon than the chhuri. The weapon of offence (Chhuri P.8) was never sent to the Expert for determination of the nature of blood found on it. The recovery of chhuri, therefore, is of no legal consequence. The ocular account given by Abdul Rashid and Mst. Alam Bibi is not at all corroborated by any corroboratory piece of evidence of unimpeachable character. Motive part of the story is also of no avail to the case of the prosecution inasmuch as the allegation is that Abdul Majeed deceased was having illicit liaison with Mst. Kaniz Bibi, the real sister of Muhammad Akram appellant. It is in the evidence that Mst. Kaneez Bibi is the wife of Muhammad Akber. Muhammad Akber is alive and is living in the village with his wife. If at all there was some motive to kill Abdul Majeed, it was Muhammad Akber who should plan and kill him. The evidence of Muhammad Akber was essential to prove motive. He was not produced for the reasons best known to the prosecution. Thus, the motive part of the prosecution story too fails and is rejected by us. It is a case of no evidence. Possibility of Abdul Majeed being done to death by some unknown assailant during the dead of night cannot be ruled out.

8. For the reasons discussed above, we conclude that the prosecution has miserably failed to prove its case against the appellants beyond doubt. Consequently, the conviction and sentence of the appellants is set aside and they are acquitted. They shall be set at liberty forthwith provided of course they are not needed in some other criminal case. The appeals succeed and are allowed. Death sentence of Muhammad Akram appellant is NOT confirmed. The murder reference is answered in negative. N.H.Q./K-289/L Appeals accepted.