1990 P Cr (PLP)

MUHAMMAD SHARIF, J.

This murder reference No.17 of 1986; BWP and Criminal Appeal No.81 of 1986/BWP filed by Faqir Muhammad and Faiz Muhammad, which are being decided by means of this consolidated judgment, emerge out of the judgment, dated 8-9-1986 pronounced by the learned Additional Sessions Judge, Rahimyar Khan, who had convicted Faqir Muhammad, the appellant, under section 302/34, P.P.C. and had sentenced him to death. He was also fined Rs.2,000 or to undergo R.I. for one year in default thereof. Faiz Muhammad the accomplice of the appellant, was also convicted under section 302/34 of the P.P.C. and was awarded life imprisonment and a fine of Rs.2,000 or to undergo one year's R.I. in default of the payment of fine. Both of them were directed to pay Rs.1,000 each by way of compensation to the heirs of the deceased, as envisaged under section 544-A of the Cr.P.C.

2. The facts, which led to the detection of this crime, in substance, are that Mst. Rani, daughter of Hussrna, was the first cousin of Ranjha, son of Maula Dad complainant. Mst. ltani was married to Faqir Muhammad, the present appellant. On account of some estrangement, Mst. Rani could not live with Faqir Muhammad and came to her parental home. Mst. Rani instituted a suit against Faqir Muhammad for havi:,g a judicial divorce and her mother had left her at the house of the complainant's father for her safety. A few days after this incident, Faqir Muhammad came to Kot Sabzal and asked Maula Dad, the complainant's father, to restore Mst. Rani to him. He also held out threats, which were not heeded to by the complainant party. On 12-9-1980, at about 3-00 a.m. Maula Dad was asleep in the lane outside his courtyard. The complainant. Ashiq Hussain and others were attracted to the spot on the screams of Maula Dad. They saw Abdul Faheem, Abdul Oadir and Faiz Muhammad holding the arms and legs of Maula Dad and Faqir Muhammad giving a number of Chhuri blows on the neck of Maula Dad. The assailants intimidated with dire consequences that anybody, who came near, should be killed by a fire-arm. The assailants ran away after injuring his father, who succumbed to the injuries on the spot. The motive for the commission of this offence is stated to be the dispute regarding the restoration of Mst. Rani to Faqir Muhammad.

3. The police went to the spot and collected the blood-stained earth. They sent the dead body for autopsy and Dr. Abdul Wahab P.W.6 performed the post-mortem examination and found the following injuries on the corpse of Maula Dad: (1) An incised wound 3-1/2" x 2" x cervical vertebrae deep on the left side of the neck, left angle of mandible, cervical vertebrae and spinal cords were cut. (2) An incised wound 2" x 1" x bone deep on the right arm upper part and outer side, right humerus was cut. (3) An incised wound 2-1/2" x 1-1/2" x bone deep on the right arm, inner side middle right humerus was cut. This Medical Expert has opined that all the injuries were caused with a sharp-edged weapon, which were collectively and individually sufficient to cause death in the ordinary course of nature.

4. Faqir Muhammad got recovered Chhura P.1 on 19-4-1983, which was taken into possession vide memo. Exh. PA. After the completion of the investigation, the challan of the appellants was submitted and, as a sequel to the impugned trial, they were awarded the aforementioned punishment.

5. Ahmad Din P.W.1, who happens to be a neighbour of Maula Dad, has stated that he heard an alarm from the house of Maula Dad and when he reached there Maula Dad had already been murdered and Ranjha, Ashiq P.Ws. and other family members of the deceased were raising an alarm and he did not inquire anything from the P.Ws. 14e has conceded the fact that Maula Dad was the son of his paternal-aunt and the persons, who had assembled at the spot including Ranjha and Ashiq P.Ws. were saying that somebody had murdered the deceased in the darkness.

6. Ranjha P.W.3, who is the complainant and the son of Maula Dad deceased, has corroborated the fact that Faqir Muhammad had inflicted Chhurr blows to the deceased and he had identified the accused in the torch light, who were at a distance of 20 feet from them. He has stated that all the accused were armed with guns and hatchets. He has given the details of the arms wielded by each accused. He has stated that after having obtained the judicial divorce, Mst. Rani was married to Ashiq P.W., who is the son of Maula Dad deceased. He has added that the police recorded their statements on the spot. The torch was not given to the police.

7. Mst. Rani, who was the bone of contention regarding this murder, has stated that she had instituted a suit for the dissolution of marriage against Faqir Muhammad appellant and when Maula Dad was murdered, she also ran to the spot and saw Faqir Muhammad inflicting Chhura blows to Maula Dad. She does not know the arms handling by each accused at that time. She has stated that the police had procured the thumb-impression of Ranjha, Sahja and Ashiq at the spot.

8. Sahja son of Maula Dad deceased P.WS has borne testimony to the fact that Faqir Muhammad inflicted Chhura blows to Maula Dad within their sight. He has elaborated that Faheem was armed with a stick, Faizoo and Abdul Qadir had a hatchet each but he did not disclose their weapons to the police. Their clothes were stained with blood, but he has stated that they had washed their clothes. According to him, Mst. Rani did not sustain any injury.

9. Zaka Ullah S.H.O. P.W.10 has stated that the appellants had absconded and their non bailable warrants of arrest were procured by him and he had deputed Ghulam Farid F.C. fir the execution of those warrants.

10. Ghulam Farid P.W.12 has stated that the accused were not traceable. Even his report has not been brought on the file.

11. Sana-ul-Haq P.W.13 had recorded the F.I.R. and had investigated this case.

12. The appellants pleaded to be innocent and Faqir Muhammad appellant appeared as his own witness as D.W.1.

13. In this case, as stated by the ocular witnesses and Ranjha complainant that their statements were recorded at the spot, which shows that the F.I.R. was recorded at the spot presumably after investigation and deliberation. Ahmad Din P.W.1, who is the neighbour and the relative of the deceased, appears to have correctly stated that somebody had killed Maula Dad in the darkness of the night and the names of the assailants were not disclosed to him by the ocular witnesses just after this occurrence. The recovery of Chhura from Faqir Muhammad is of no consequence. The medical evidence indicates that three injuries were inflicted to Maula Dad, which could be inflicted within a moment and the assailants were not expected to wait for Ranjha, Mst. Rani and others to see this occurrence. Had Mst. Rani come to the spot at the time of this incident, she would not have been spared by Faqir Muhammad and Faiz Muhammad, but she did not receive even a scratch on her body. The story that the other assailants had held the arms and legs of Maula Dad is not convincing because only a single person could have caused the death of Maula Dad, who was asleep in the lane. In a similar situation as reported in Zarin Shah and 2 others v. The State 1974 S C M R 376, the accused was given the benefit of doubt and was acquitted.

14. Much prominence was given to the fact that the appellants had absconded. The complete record of their ascendance had not been produced before the learned trial Court. In this manner, the ascendance had not been proved. Fazal Muhammad v. Muzaffar Hussain etc. 1981 S C M R 959, Rab Nawaz v The State P L D 1976 Lah. 1240 and Hashmat Ali v. The State 1984 P Cr. L J 1237 evince that the ascendance of the accused charged with murder cannot be used as a piece of evidence against him and such a conduct can be equally consistent with his guilt or innocence. In this manner, the ascendance of the appellants, which has not cogently been proved on the file does not serve as a good piece of corroboration.

15. As observed supra, only three injuries were inflicted on a sleeping man like Maula Dad, which could be done within a moment. and there was no chance of the ocular witnesses to have seen the actual infliction of the injuries. It has been stated that the appellants were identified from a distance of 20 feet in the torch light. The torch was taken into possession by the police. In Suwali v The State 1982 P Cr. L J 808, it was held that it is unsafe to base the conviction in a murder case on the evidence of identification of the accused by a torch light. The same principle has been enunciated in The State v. Fatal Ahmad and another 1970 P Cr. L J 633 and Muhammad v The State 1986 P Cr. L J 1654.

16. The ocular witnesses are the relatives of the deceased. The medical evidence is reflective of the fact that the incident ended within a moment. The F.I.R. was recorded on the spot. The ascendance of the appellants has not been proved and the identification of the accused in the torch light is not safe to base the conviction on a capital charge. We, therefore, accept this appeal and acquit both the appellants. The reference is also answered accordingly. The appellants shall be released forthwith, if not required to be detained in any other case. N.H.Q./F-189/L????????? ???????????????????????????????????????????????? ??????????????????????????????Appeal accepted.