1983 PLP 484 (SCMR)

Date of hearing : 31st May, 1982. SHAFIUR RAHMAN, J‑On a petition from Jail the appellant who stood convicted under section 302, P. P. C. and sentenced to death, was granted leave to appeal with a view to re‑appraise the evidence on which his conviction and sentence were based. The prosecution case against the appellant was that he was residing in the house of Fateh Noor (P. W. 8), the complainant, as his sister Mst. Aisha (P. W. 4) was married to Ali Nur, a son of the aforesaid Fateh Noor. Kamal Khatoon (P. W. 6), the wife of the deceased was maintaining illicit relations with the appellant. Her deceased husband suspected it and she used to be beaten by him and a few days before the occurrence the appellant had been asked to leave the house. The appellant, it is said, also felt aggrieved by the fact that his sister Aisha had transferred the land which she bad obtained from her father in favour of Ali Nur, her husband and Ghulam Hussain (P. W. 5), their son. On the evening of 15th January, 1975 Mst. Aisha (P. W. 4), Ghulam Hussain (P. W. 5) and Kamal Khatoon (P. W. 6) were in the house. Fateh Noor (P. W. 8) had gone to Bahawalpur. The deceased arrived and sat on the cot in the courtyard. The appellant also arrived with a kassi and gave two blows on the neck and head of the deceased causing his death. Muhammad Siddique (P. W. 7) and Barkat (not produced) appeared on the scene when the appellant was giving injuries and other villagers gathered soon thereafter. The appellant is said to have left the kassi there and went away. Fateh Noor (P. W. 8) returned to the house the next morning and on being told how the deceased was put to death went. to the Police Station Yazman at a distance of 18 miles and lodged the report at 12‑30 noon implicating not only the appellant but Saleem Ali and Khadim also, attributing, nevertheless, the main role to the appellant. The post‑mortem which was conducted on 17th January, 1975 revealed an incised wound 6 1/2' x 1' on left side of head and another incised wound 7 1/2' x 2' on the right side of the neck just below the adam's apple. The blood‑stained kassi and blood‑stained earth was recovered from the spot during the investigation and taken into possession. The appellant when questioned denied his participation in the occurrence and the motive as well. He explained the case against him in the following words "I own two squares of land in village Dhulli, P. S. Tamman, tehsil Talagang. I also own land measuring one square in Chak No.

137. One‑third of the land owned by me was already taken by Aisha Bibi, Fateh Nur, her father‑in‑law wanted to usurp my entire land and for that account I was involved in this case at his instance. My land is occupied by him. The trees standing on the land have been cut and utilized by Fateh Nur, P. W. I had gone to Jalapur Pirwala two days before the occurrence. I came back in my village on 17‑1‑1975. On that day I was arrested from my village by the Thaned‑ " The trial Court considered the eye‑witnesses' account to be fully cor roborated from the recoveries of the blood‑stained earth and kassi and from the medical evidence, and finding the appellant guilty convicted him under section 302, P. P. C. and sentenced him to death and also awarded a fine of Rs. 5000 and another sum of Rs. 5000 to be paid as compensation. While seized of the appeal and the question of confirmation of the death sentence, the learned Judges found that the three eye‑witnesses who saw the occurrence were closely related to the deceased as well as to the appellant and they had, according to the learned Judges no animus to implicate him falsely in the case. Hence the appeal was dismissed and the death sentence along with the fine to be paid as compensation was confirmed. What has struck us as the most striking feature of the case is the statement of Fateh Nur (P. W. 8) who stated as follows in regard to the presence and participation of others in the crime: "Aisha Bibi bad not told me that Ali, Salim and Khadim Husain had also accompanied Nur Muhammad deceased. Ali, Salim and Khadim were my enemies and I had mentioned their names in the report Exh. P. A. on suspicions. I had mentioned the names of Ali, Salim and Khadim before the C. M. of my own and this fact was not the fact told to me by that witnesses. I had stated before the C. M. that Ali, Salim and Khadim had given the fist and kick blows to the deceased." He re‑affirmed the same thing by saying‑ "I was examined by the C. M. on two occasions. I had mentioned the name of Ali, Khadim and Salim as they were my enemies and I had suspicions against them." Another peculiar feature of the prosecution case is that as long as Fateh Nur falsely implicated these three other persons, so did Mst. Aisha (P. W. 4), Mst. Carnal Khatoon (P. W. 6) and Ghulam Hussain (P. W. 5). The moment Fateh Nur disowned their presence not only these witnesses followed suit and disowned their presence but also denied having stated otherwise before the police. In fact, they had so stated before the police and were confronted with their police statements. Ghulam Hussain of these three eye‑witnesses alone admitted that he had implicated them before the Police. Such a conduct on the part of these eye‑witnesses makes ‑them pliable witnesses, witnesses at the beck and call of Fateh Nur (P. W. 8) and for that reason not very dependable. The two independent eye‑witnesses, Siddique (produced and declared hostile) and Barkat (not produced) who reached the scene when the appellant or assailant was present, acquire importance. There being no support from that quarter, the evidence of such witnesses would not be inspiring, sufficient and unimpeachable for the purpose of recording conviction on capital charge. Besides, one may well ask that if the culprit was clearly seen and fully identified where was the occasion for implicating enemies on suspicion. The very fact that resort had to be taken to the enemies on suspicion would justifiably suggest that the identity of the culprit was not known for certain. In this background of events, the delay in lodging the F. I. R. which from all standards is inordinate and has not been plausibly explained, gains importance and the likelihood of there being deliberations and consultation and false implication cannot be excluded. We are satisfied that the evidence tendered by the prosecution and available on the record was not of al quality and in content sufficient to justify conviction on a capital charge. We accept the appeal and set aside the conviction and sentence. The appellant shall be released forthwith from confinement, unless required in some other case. Appeal accepted.