1998 P Cr (PLP)

(4) A bruise measuring 12 c.m. x 8 c.m. of the mid of back of trunk. (5) Eyes were seemingly putrifying but with clear bulging outward. (6) There was depression of nasal septum at lower half and mostly left sided, deviation. (7) Bruises over anterior aspect of right and left forearm, scalp, skull and vertebrae were freely movable and atlan to occipital joint. There was no abnormality detected in membranes, brain, spinal cord." He expressed inability to give probable duration between injuries and death due to putrifying stage of dead body. Duration between death and post‑mortem was opined to be 11 days. He expressed his opinion as follows about the cause of death:‑‑‑ "As mechanism of putrification was progressing, whole body had attained its colour black. Facts which were noted have already been mentioned. The abovementioned facts were without any doubt in favour of "suffocation" and dislocation of atlanto‑occipital joint and a whitish mark in front of neck; also favours throttling (strangulation) Vaginal swabs and samples of contents of abdominal visceras hair were sent to the Chemical Examiner for the detection of semen (to see) whether any poisonous matter was used or not." He had removed swabs from the vagina which were sent to the Office of the Chemical Examiner. Vaginal swabs were found stained with semen. Report Exh.P.K. in that regard was produced at the trial.

7. Muhammad Arshad who had got the case registered re‑narrated the facts given by him in the F.I.R. while appearing as P.W.9. He added that after the registration of case he had handed over the utensils and other articles which he had collected from near place of occurrence, and the last‑worn clothes of the deceased including the shoes to the S.H.O. who had taken the same into possession vide memo. EXhs. P.F., P.G. and P.H. During cross‑examination he denied the suggestion that his mother Mst. Jantay wanted to marry Mst. Rehmat Bibi against her will to Rashid alias Sheeda son of his maternal uncle Sarwar. The suggestion that his father wanted to marry Mst. Rehmat Bibi with Akhtar son of his consanguine brother and that Mst. Rehtnat Bibi also desired the same and that Rashid alias Sheeda was annoyed over that was denied by him. The suggestion that Rashid alias Sheeda alongwith his accomplice had committed the occurrence was also denied by him. He stated that Mst. Salamtay was married to above‑noted Sardar Muhammad while her sister Mst. Niamatay was married to Umar Din Numbardar. He expressed ignorance about Ramzan son of Umar Din, Numbardar, having attempted to rape Mst. Sakina real maternal aunt of Shabbir accused. He also expressed ignorance whether Ramzan faced prosecution under Hudood Ordinance on that score. He also expressed ignorance about Umar Din having lodged a criminal case against Mst. Sakina. He conceded that fie had not stated in the F.I.R., that Tahir P.W.11 told his father and brother Afzal that he had seen the occurrence. He denied the suggestion that many persons had been coming out with different vensions about the cause of death of Mst. Rehmat Bibi. He admitted that he had not disclosed the name of the accused to the Magistrate at the time of exhumation.

8. Tahir Ali P. W .1 I, stated that on the day of occurrence he had gone to his field to bring fodder for the cattle and there he had seen utensils lying scattered. He stated that on bearing the voice of a weeping girl from within the sugarcane field he rushed to the place and saw Shabbir committing Zina with Rehmat Bibi and pressing her throat also. As a result of which she died. Shabbir threatened him that if he disclosed about the occurrence he will murder him also. According to him Shabbir went away threatening him and he came out of the sugarcane field and met Abdullah whom he told the whole occurrence. He stated that he disclosed about the occurrence to his father and other inhabitants of the village on seventh day of the occurrence. During cross‑examination lie gave out that he was a matriculate and was studying in a Technical Training Centre. He admitted that the occurrence had taken place in their land but as he was afraid of the accused, he neither reported the occurrence nor informed the father and brother of Mst. Rehmat Bibi for seven days. He admitted that the accused had not shown him any weapon.

9. Abdullah P.W.12 stated that about a year back he heard the voice of a girl coming from the sugarcane field of Muhammad Siddique and saw Shabbir coming out of the field hurriedly. He added that Tahir P.W. met him there and told him that Shabbir had committed Zina with Rehmat Bibi and strangulated her to death. He further stated that on 7th day of occurrence he went to Dhari of Ali Muhammad father of Mst. Rehmat Bibi, where son of Ali Muhammad was also present. Shabbir came there and confessed before them that he had forcibly carried Mst. Rehmat Bibi into the sugarcane field and had strangulated her to death after committing Zina with her, saying this he had asked for pardon. During cross‑examination he stated that soon after Shabbir had gone away Tahir emerged from the sugarcane field and told him about the occurrence. He stated that he had not told the incident to the father or brother of Mst. Rehmat Bibi.

10. Ali Muhammad father of the deceased after narrating the story told to him by his son Arshad stated that Abdullah informed him seven days after the burial of the deceased, that he had seen Shabbir on the day of occurrence coming out of the sugarcane field and running away and that Tahir had told him (Abdullah) that he had seen Shabbir committing Zina and murdering Mst. Rehmat Bibi. He also stated that Shabbir had come to him and had confessed that he had physically lifted Mst. Rehmat Bibi to sugarcane field, committed Zina‑bil‑Jabr with her and then, throttled her to death. During cross‑examination he stated that when Shabbir had confessed, Muhammad Afzal and Muhammad Abdullah were present. He denied the suggestion that the deceased wanted to marry Akhtar son of his consanguine brother Sardar. He also denied the suggestion that he intended to marry his daughter with said Akhtar while his wife wanted to marry her with Rashid son of her brother Sardar. The suggestion that since Mst. Rehmat Bibi had rejected Rashid he had felt aggrieved and had committed the occurrence with the help of unknown accomplice was denied by him While admitting that sister of wife of Sardar was married to Umar Din Numberdar and he had a son named Ramzan, he denied the suggestion that Ramzan had attempted to commit Zina with Mst. Sakina real sister of mother of Shabbir accused and that case F.I.R. No.274 of 1986 was registered against him. He further denied the suggestion that they had involved Shabbir at the instance of said Umar Din.

11. Khadim Hussain, S.H.O. who had registered the case, investigated the same, arrested the accused (appellant) and submitted challan to Court after completion of necessary investigation appeared as P.W.15 and gave the details of the investigation done by him (brief account of the same is mentioned in earlier part of the judgment). During cross‑examination he denied the suggestion that he had investigated the case in a partisanship manner and had helped the complainant in falsely involving Shabbir accused. The statements of remaining witnesses are more or less of a formal nature.

12. The appellant during statement under section 342, Cr.P.C., denied the prosecution case and pleaded innocence. He stated as follows in answer to the question "why this case against you?: "That is a false case and I have been implicated due to enmity. The P.Ws. are closely related to the deceased and the complainant. On 27‑9‑1986 my real aunt Mst. Sakina got case F.I.R. No.274 registered under section 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against Ramzan son of Umar Din Lumberdar who is related to the deceased Mst. Rehman Bibi. I produced Exh.D. Nil/Mark‑A in that behalf. The said Ramzan was challaned in that case. On account of that, the complainant party entertained a grudge against me. " He neither produced any witness in defence nor made statement on oath under section 340(2), Cr.P.C.

13. We have gone through the evidence with the assistance of the learned counsel for the appellant and considered the contentions raised by the learned counsel for the parties.

14. Reliance of the prosecution for connecting the appellant with the crime in this case is mainly on the statement made by Tahir Ali, P. W.11, Abdullah P.W.12, and Ali Muhammad, P.W.13, and of course the medical opinion as well as the report about the swabs being stained with semen from the Office of the Chemical Examiner.

15. Tahir Ali P.W.11 who claimed to have witnessed the occurrence stated that he did not tell that fact to his father or any relative of the deceased nor even to any other villager. He stated that he did not inform the police also. He took up the stance that he did not do that as he had been threatened by the accused and he was under apprehension of some‑reappraisal, in our view is neither probable nor believable. Soon after he had been threatened by Shabbir, he had met Abdullah and had told him all what he had seen. He had also told him about the threats Abdullah was not his relative nor was he his close friend. If he could tell the whole story to Abdullah without caring for the threat he could have easily mentioned that fact to the relatives of the deceased or at least to his own father or other family members. Although he was a young person but He was an educated person also. He would have known that since the dead body was found in dubious state in their field, he or any member of his family may also be taken to task, at least to explain as to how deceased was found lying dead in their field? Keeping silence for seven days and then, suddenly coming out with every thing and narrating that to relatives of deceased and police and the other villagers and making statement at the trial also, shows that he had some other considerations than, to divulge truth only. The testimony of Abdullah P.W. also does not inspire confidence. He claimed to have heard the voice of a girl coming from the sugarcane field and had also seen Shabbir hurriedly coming out of the said field and running away. Immediately, thereafter, he had been told the details of the occurrence by Tahir P.W. He was not under any threats. He had no compulsion to hide all that. The fact that he did not disclose what he had seen, heard, and learnt, to any one including the relative of the deceased makes his credibility doubtful. He was 60 years old, must have been father of grown‑up daughters may be even grand daughter. He could not have kept mum after knowing all about the dastartedly and cruel act. The explanation for not having disclosed that to any body for seven days is absolutely unconvincing. In our view placing reliance on the statement of such a person will not be in the interest of safe administration of justice.

16. The statement made by him that Shabbir had come to the Dhari of Ali Muhammad and had confessed in his presence before Ali Muhammad and his son about having committed Zina‑bil‑Jabr with the deceased and having strangulated her to death also does not inspire confidence. We are of the view that if any such confession had been made by Shabbir in their presence, Shabbir would have also told Ali Muhammad that he had met Abdullah soon after the occurrence but this witness did not state anything. Moreover, if Shabbir had confessed in the presence of three persons as stated by this witness they would not have let him to go away and would have certainly taken him into custody.

17. The statement of Ali Muhammad about the confession allegedly made by the appellant is not believable, firstly for the reasons mentioned in the preceding para. and also for the reason that there was no occasion for the appellant to have gone to his Dhari to make a confession. He was not under any interrogation. Neither Ali Muhammad nor his son had any suspicion against him. The other fact is that the appellant would not have dared to go alone to the Dhari of Ali Muhammad to confess the commission of such a heinous crime. He would have been morally afraid of consequences. We have no hesitation in saying that if such a confession had been made by the appellant before the father of the girl and her brother they might not have allowed him to go alive or at least without thrashing severely. It is highly unnatural rather unbelievable that a man confessing before the father and brother of a girl of having committed Zina with her and then murdering her would not have provoked them to such an extent, that would not have acted sharply. Neither Ali Muhammad nor Abdullah stated that they had caught him, beaten him, abused him or even admonished. This was not the conduct of normal human being. In the circumstances, no reliance can be placed on the evidence of extra‑judicial confession.

18. Although there is medical evidence and report from the Chemical Examiner also that the deceased had been done to death after subjection to Zina- bil jabr but those facts do not connect the appellant with the crime. All that the medical evidence and report from the Office of the Chemical Examiner prove is, that the unfortunate girl had been subjected to Zina and then done to death by strangulation. The recovery of utensils from near the place of occurrence is a circumstantial evidence capable of lending corroboration to the commission of crime but certainly is not a speaking evidence against the appellant or for that matter against any particular person.

19. After having carefully gone through the whole evidence we feel that the prosecution has not been able to prove the case against the appellant beyond reasonable shadows of doubt. It appears that surmises and conjectures were the main element and force behind the prosecution of the appellant in this case. Surmises and conjectures howsoever well placed cannot take the place of proof. In the circumstances, we are inclined to allow this appeal by way of grant of benefit of doubt. The appellant is acquitted. He shall be released forthwith if not required in any other case. The reference forwarded by the learned Trial Judge for confirmation of death sentence of the appellant (respondent in the reference) stands answered, as the sentences of the appellant have been set aside, the question of confirmation of sentence of death does not arise. N.H.Q./1128/FSC Appeal allowed.