1988 P Cr (PLP)

RIAZ AHMAD, J.‑‑ Appellant Muhammad Mansha son of Essa, Caste Arain aged 40 years, resident of Chah Banuwala, Mauza Sanjar, Police Station Abbas Nagar District Bahawalpur was tried by Additional Sessions Judge, Multan on a charge under section 302, P.P.C. for having caused the murder of Allah Dad. Vide judgment, dated 30‑6‑1983 the learned Additional Sessions Judge found appellant guilty on the said charge and accordingly the appellant was sentenced to death and to pay a fine of Rs.10,000 and in default of the payment of fine to suffer further R.I. for a period of two years. The learned Additional Sessions Judge further directed that in the event of the recovery of fine the half of the same shall be paid to the heirs of Allah Dad deceased as compensation under section 544‑A, Cr.P.C. Aggrieved by the aforesaid conviction, the appellant has preferred this appeal, while the case has also been referred to us under section 374, Cr.P. C. This judgment shall dispose of both the appeal as well as the Reference.

2. The unfortunate occurrence resulting into the death of Allah Dad took place on 7‑4‑1981 at 11 p.m. in Mohallah Marzipura in Chak No. 19/9. R Gharbi within the jurisdiction of Police Station Tulamba situated at a distance of 15 miles from the place of occurrence. The occurrence was reported at Police Station Tulamta by Hamid Ullah complainant P.W.8 real brother of the deceased at 7 a.m. on 8‑4‑1981. On the basis of the statement Exh.P.J made by the complainant recorded by Ghulam Abbas S.H.O. P.W.9 the F.I.R. was drawn and the case was registered.

3. In his statement Exh.P.J the complainant stated that his elder brother Allah Dad deceased was employed as Electrician by the management of Sultan Industries, a cotton‑ginning factory where the deceased also used to live. In the said factory the deceased developed friendship with appellant Muhammad Mansha. It was further stated by the complainant, that in course of the friendship with the appellant, the deceased developed illicit liaison with the wife of the appellant and both the appellant and his wife used to visit the house of the complainant and, the deceased in Chak No. 19/9.R. According to the complainant the deceased wanted, that the appellant should divorce his wife, so that he could marry her but the complainant and the other family members of the deceased dissuaded him to do so. The appellant also came to know of the illicit liaison of the deceased with his wife, which led to a quarrel between the spouses as a consequence of which the wife of the appellant left her house and went to Okara to live with her parents. It was stated that from Okara she used to contact the deceased. On the fateful day, the appellant Mansha visited the Dera of Allah Dad deceased. One Munir Shah a pupil of the deceased and the complainant stayed with at the Dera till 11 p.m. and thereafter the complainant and the said Munir Shah left the Dera of the deceased for proceeding to their own houses. In the morning the complainant alongwith his uncle Sikandar Khan on reaching the Dera of the deceased, found Allah Dad murdered and his dead body lying underneath a cot. The dead body revealed incised wounds. The appellant was absent from the Dera and thus the complainant asserted that on account of the illicit liaison of the deceased with the wife of the appellant he had been murdered.

4. On 12‑4‑1981 the appellant was arrested and on the same day the appellant Muhammad Mansha while in police custody led to the recovery of blood‑stained knife from a field owned by Munshi son of Dittu in which the wheat had been grown. The said knife was taken into possession vide memo. Exh.P.F. attested by Muhammad Nawaz P.W.6 and Ibrahim and Khadim Hussain (not produced) besides Ghulam Abbas S.I./S.H.O. On the same day and at the same time the appellant also got recovered his blood‑stained clothes comprising one Kurta P.7 and a Chaddar P.8 and the same were taken into possession vide memo. Exh.P.G. attested by Muhammad Nawaz P.W.6. Muhammad Nawaz and Khadim Hussain (not produced) besides S.I./S.H.O. Ghulam Abbas P.W.9.

5. At the trial Munir Shah a pupil of the deceased who had allegedly stayed with the deceased till 11 p.m. and cited in the F.I.R. was not produced. The prosecution only relied upon the statement of the complainant Hamid Ullah P.W.8 and one Muhammad Nawaz P.W.6, a Wajtakkar witness, besides the evidence as to the recovery of the weapon of offence knife P.6 and the blood‑stained clothes of the appellant which he had put off after the occurrence and had concealed them in a wheat field. The appellant when called upon to explain the evidence adduced against him under section 342, Cr.P.C. denied the charge and stated that he had been falsely implicated.

6. We have carefully perused the entire evidence on the record. As far as the motive and the background of the case is concerned the same has been disclosed by the complainant Hamid Ullah P.W.8. As far as Muhammad Nawaz P.W.6 is concerned he was introduced into the picture by the prosecution to establish that after the occurrence the appellant was seen by the said witness coming out of the Dera of the deceased, with the blood‑stained knife. The witness stated, that at 4 a.m. on 8th April, 1981 he alongwith Khadim Hussain and Ibrahim (both not produced) were proceeding to their houses and when they reached in front of the Dera of Allah Dad deceased, the witnesses noticed the appellant emerging out of the Dera with a knife in his hand. The witness enquired from him about his anxiety and the appellant threatened them to keep away. According to the witness, the appellant further stated that he had avenged himself because of the misdeed of the deceased. The witness and his companions stepped aside leaving way for the deceased to escape from the scene of occurrence. According to the witness he went inside the Dera of the deceased where they found the dead body of the deceased lying on the ground with injuries on the chest and back and a pool of blood around. The witness further noticed that Sikandar Khan P.W. (not produced) was sitting near the dead body. The said Sikandar Khan informed the witness, that the complainant Hamid Ullah had left for proceeding to the police station for lodging the First Information Report.

7. After anxious consideration we are of the view that P.W.6 Muhammad Nawaz whose statement has been reproduced above cannot be relied upon for sustaining the conviction and the sentence of the appellant. The conduct of the witness is unnatural and unconvincing as to his presence in front of the Dera of the deceased at 4 a.m. in the morning. The witness claimed the presence of Sikandar Khan near the dead body. The presence of Sikandar Khan near the dead body would give rise to infer, that either Sikandar Khan was and eye‑witness of the occurrence or was the culprit. Unfortunately the prosecution has not taken us into confidence by failing to produce Sikardar Khan into the witness‑box. Such failure on the part of the prosecution is fatal to its case, inasmuch as, we would legitimately presume, that had he been produced he would not have supported the prosecution case in all material respects.

8. In cross‑examination P.W.6 tried to establish the identification of the appellant by introducing the light of the bulb outside the Dera. We are not convinced with the truth of such assertion because no further material exists on the record to corroborate the bulb light at the spot. Another striking feature leading us to disbelieve the witness is, that after the emergence of the appellant from the Dera of the deceased the conversation had taken place between Muhammad Nawaz P.W.6, his associates who were not produced, and the appellant. These witnesses had stepped aside to give way to the appellant. In cross‑examination Muhammad Nawaz P.W. 6 claimed to have chased the appellant. Such statement on the face of it, is not worthy of belief being against the natural course of the conduct of human beings. If we believe it, then in the said event the witnesses must have also seen the blood on the knife and it is strange that haling seen the appellant coming out of the Dera of the deceased the witness and his associates took no steps to apprehend him. On the other hand, the witness in the cross‑examination claims to have chased and searched for the appellant in the streets of the Chak. We cannot help but to observe that the witness has concocted a story. Likewise Munir Shah a witness cited in the F.I.R. Ibrahim and Khadim Hussain who were accompanying P.W. 6 Muhammad Nawaz at 4 a.m. in the morning of 8th April, 1981 have not been produced to corroborate P.W 6 for having seen the appellant emerging out of the Dera of the deceased with a blood‑stained knife and therefore, we are constrained to hold, that had they been produced they also would not have supported the prosecution. Another reason to discard the testimony of Muhammad Nawaz P.W. is, that in cross‑examination he stated that he came to know of the occurrence after half of an hour of the departure of the appellant from outside the Dera of the deceased but in examination‑in‑chief the witness stated that soon after the appellant left the scene of occurrence they entered the Dera of the deceased and saw the dead body of the deceased lying on the ground in a pool of blood. Both these pieces of evidence are mutually destructive of each other and therefore, we hold that the witness is a liar.

9. Adverting to the testimony of the complainant Hamid Ullah P.W. 8 and particularly the background of the motive as stated by the witness, we are of the view that the prosecution has miserably failed to prove and establish the motive. Our attention was drawn to the defence evidence and particularly the document Ex.DC. Abdul Majeed D . W . 1 stated that the appellant had married Razia Bibi 3/4 years before 1975. According to the witness the spouses lived together but then fell apart. The witness was approached by the maternal uncle of Razia Bibi, namely Ghulam Muhammad and also the father of Razia Bibi. It was further stated that the appellant agreed to divorce Razia Bibi in case she acknowledged to have received her household goods such as dowry and also to have received her dower money. Ali Muhammad father of Razia Bibi executed Exh.D.C. relinquishing all sorts of claim on behalf of his daughter and then the appellant divorced Razia Bibi. We have seen the document D.C. which clearly shows that the appellant had divorced his wife in the year 1975. This piece of evidence takes bottom out of the prosecution case, as far as the motive is concerned because after 1975 there was no ban in the way of Allah Dad deceased to marry Razia Bibi. It is thus, obvious that the motive has also been concocted to make out a case against the appellant. The document Ex.DC rings true because Muhammad Sadiq petition‑writer who had written it had died and his real brother Muhammad Yasin D.W.2 entered the witness‑box for identifying the signatures of his late brother the petition‑writer. The witness also produced the register maintained by the deceased petition‑writer and asserted that the document D.C. had been written by his brother and the entries thereof did exist in the register of petitions maintained by his late brother. In this view of the matter, we are convinced about the genuineness of this document and we hold that the defence evidence is true about Razia having been divorced by her husband Muhammad Mansha appellant. The complainant P.W. 8 claimed to have been present with the deceased till 11 p. m on 7‑4‑1981 alongwith Munir Shah and the appellant. We are afraid that we cannot rely upon the solitary piece of uncorroborated evidence. Failure on the part of the prosecution to produce Munir Shah in the witness‑box is another circumstances which has led us to disbelieve the complainant.

10. As far as the recoveries are concerned we cannot attach any weight to them. The appellant was arrested after four days of the occurrence and hence it does not stand to reason, as to why the appellant should have put off his clothes, to conceal them alongwith the weapon of offence in a wheat‑field. He had sufficient time at his disposal. He could wash his clothes and weapon of offence and therefore, we are not prepared to believe the truth of these recoveries. Furthermore, if at all he changed the clothes he would have destroyed such blood‑stained clothes. Consequently, this corroborative piece of evidence has no substance in it and therefore, we discard the same.

11. The upshot of the above discussion is that the prosecution has failed to bring home guilt to the appellant and accordingly we have no option but to accept this appeal. Accordingly this appeal is allowed. The appellant is hereby acquitted of the charge and he shall be set at liberty forthwith if not required in any other case. The Reference is answered accordingly and the death sentence is not confirmed. S. A. /M‑700/L Appeal accepted.