1979 P Cr (PLP)

9. Meanwhile, the complainant filed a direct complaint in the Court of City and A. D. M., Karachi on 17-5-1972 under section

302. P. P. C. The complaint was entertained and statement of Abdul Razzak was recorded under section 302, Cr. P. C. The complainant repeated the assertions which he had made in the complaint giving background of the matter and strained relationship of the deceased and the accused. The complainant also stated that Dr. O. V. Jooma was of the view that the injury of the nature which was shown in the post-mortem report of the deceased could be produced by violent blows on the head with hard blunt object and not necessarily by a vehicle. The complainant further stated that deceased Abdul Aziz was murdered right in house by some unknown person with the active participation of his wife, Mst. Zaitoon, the present petitioner, who was admittedly present in the house of the deceased and the body of the deceased was subsequently thrown in a street. The complainant also alleged that police had failed to discharge their duties because of the influence of the petitioner's family. The complainant also stated that he had visited the flat on 31-12-1971 and found blood stains in the bedroom of the deceased.

10. During the preliminary inquiry, the statement of Rehmatullah, the father of the complainant/respondent No. 2 was recorded where he deposed about strained relationship between accused and deceased. The statement of Zakaria, the brother of the deceased was also recorded, who did not state anything of any importance except that he bad applied to the police on 29th December, 1971 for the return of the articles of the deceased which consisted of Omega Wrist-watch, handkerchief, keys of the flat and key of the car and spectacle of the deceased. These articles, were returned to him in the presence of the deceased's brother-in-law. Mr. O. V. Jooma was also examined who gave an alternate theory of the death of the deceased by violence but at the end of his deposition he stated that he could not give definite opinion whether it was a murder or accidental death. He also produced his report dated 29-3-1972. On 9th May, 1973 the complainant made a statement in writing that at the stage of preliminary inquiry he did not wish to produce further witnesses. The complainant in his statement had stated that police papers may be produced and the report of the Chemical Examiner may also be sent for.

11. The Assistant Commissioner and S. D. M., Cantt. passed lengthy order dated 2-7-1973 dismissing the complaint under section 203, Cr. P. C. Against the said dismissal order the respondent went in revision before the Sessions Judge. While the revision was pending, the present petitioner applied for permission to be present in the proceedings. Her requests was disallowed by the IInd Additional Sessions Judge, Karachi. The learned Additional Sessions Judge on 28-9-73 allowed the revision application of the complainant by a lengthy order and remanded the case back to the lower Court for further inquiry in the matter. When the matter was received by City and A. D. M. Karachi, he did not record any further evidence in the matter and he merely ordered on 29-5-1974 that on reconsideration of the statement of the witnesses already recorded and on perusal of other material process be issued against the petitioner.

12. Aggrieved by the said order of issuance of process, the petitioner has filed the present application under section 561-A.

13. The contention of Mr. Muzaffar Hussain Shah, the learned counsel for the petitioner is that the complaint was not bona fide and was designed to grasp the property of the accused/petitioner which she inherited from the deceased and that the order of the City and A. D. M. passed on 25-5-1974 was arbitrary and fanciful. He further contended that there was hardly any material on record to justify the issue of any process and that the prosecution had no further evidence to offer and since the present material was not sufficient to justify any conviction, therefore allowing the proceedings to continue would be a torture to the petitioner and would amount to an abuse of process of the Court.

14. Mr. Muzaffar Hussain Shah has relied upon P L D 1973 Kar. 478. 1977 P Cr. L J 565, 1972 S C M R 278, P L D 1971 Kar. 299 and P L D 1967 Kar. 612 in support of his contention.

16. Mr. Naveed, the learned counsel for the respondent No. 2 has contended that there is enough material against the petitioner and there is no justification to stifle the prosecution at this stage as 'no evidence has been examined in the case and no explanation has been offered by the accused in the circumstances appearing against her. He has also contended that the learned Magistrate was quite justified in framing a charge without recording fresh evidence in the matter as held in 1968 S C M R 1100. He has also relied upon P L D 1967 S C 317.

16. Mr. Osman Ghani Rashid, the learned Additional Advocate-General appearing for the State has argued that now the petitioner has an alternate remedy under section 265-K of Cr. P. C. and she can approach the original Court for dismissal of the case and hence the High Court should not interfere under section 561-A of Cr. P. C. But, I am of the view that since this petition has been admitted to the regular hearing by the High Court it should be disposed of on merits.

17. It is an admitted position in this case that there are no eye-witnesses at all. The whole case is based upon certain circumstances which are as follows (1) Motive for the accused/petitioner to kill her husband as there was a strained relationship between deceased and the accused. (2) The strange conduct of the accused/petitioner in failing to convey immediate information about disappearance of her husband to her in-laws. The delay is alleged to be 16 hours. (3) Recovery of blood-stained articles on 1-1-72 from the flat which was in occupation of the accused. (4) The accused and the deceased having been seen together last. I will take up each matter separately; (1) In respect of the motive the complainant had examined himself and his father Rehmatullah. They deposed that the petitioner was living a fast life, therefore, the deceased, who was a religious minded person, did not like it and so he divorced the petitioner in February, 1968. But on account of intervention of petitioner's relations the matter was patched up and the accused and deceased started living together, as the petitioner through her father had promised to behave in future. But after about 6 months, the dispute again started as the petitioner started visiting the clubs. There is, however, no evidence that after 1968 any crisis developed in the relationship of the deceased and the accused, as they continued living together. It was, however, asserted that in November, 1971, the petitioner, had gone to the house of her parents but had come back to her husband's house on 25th December, 1971 and she was accepted by the deceased husband. A copy of statement made on 1-1-1972 under section 161, Cr. P. C. by Haroon son of Muhammad who was immediate neighbour of the deceased had been produced before me in which I do not find any statement or reference about strained relationship of the accused and the deceased. The fact that the accused and the deceased had lived together from 1968 to 1971 shows that the deceased husband had probably reconciled himself to the conduct of the petitioner and was therefore allowing her to live with him and therefore there could be hardly any motive for the petitioner to take the life of that husband who was allowing her to live with him. Even otherwise, the motive is double edged weapon and if it is alleged by the prosecution that the petitioner had a motive in killing her husband then this allegation of strained relation ship between the parties can as well be a motive on the part of the complainant to involve the petitioner merely on basis of suspicion and then try to visualize or even create some circumstances against her. 18. (2) The question of her failing to communicate her in-laws would hardly be a circumstance of any significance if the allegation made by the complainant party that there was a strained relationship between the parties is believed. In any case, the real worry for a wife about the dis appearance of the husband who has gone away in the evening would start at about 11 p.m. or 12 p.m. in the mid-night and by then it would be late to communicate with the in-laws. And therefore, the next morning probably be the relevant time when they would be communicated with the news and so the delay would only be of 6 and 7 hours as she has communicated with them on telephone at 1-30 p.m. at noon. This circumstance, however is of not much significance in involving the accused/petitioner with a crime. 19. (3) The most important circumstance is the recovery of blood stained articles viz. pillow, sheet, bedcover and piece of matresses from the bedroom of the petitioner and deceased and some blood stains found on the wall of the said room which appeared to have been washed. These articles have been recovered by the police on 1-1-1972 in the absence of the petitioner from this fiat. It is not a case of the complainant that the accused/petitioner had brought the Police to the flat and pointed out these articles. On the other hand, it was the complainant who had brought the attention of the police to these articles, allegedly on 31-12-1971, but positively on 1-1-1972 by a direct application addressed to Deputy Inspector-General of Police. However the difficulty in respect of these recoveries is that the complainant side viz. Abdul Razzak and his brother Zakaria have had the keys of the flat in question with them, since 29-12-71 and therefore they had all the opportunity to foist any incriminating material in the bed room if they wished to do so. The complainant side had at least the joint possession of this fiat since 20-12-1971 by virtue of the keys of the flat being with them. In any case, the petitioner was not in exclusive possession of the said flat from 27-12-1971 to 1-1-1972. It is an admitted position that from the night of 27-12-1971 till the night of 1-1-1972 when the petitioner was apprehended by the police, the petitioner had remained in the house of her in-laws as there is positive statement of the complainant side to this effect.

20. In these circumstances, it would be difficult to burden the accused/ petitioner with the responsibility of murder on the basis of the recovery of the blood-stained articles. If this aspect of the complainant's story is believed then it would mean that the deceased was murdered in his own flat some time in the night but the immediate neighbour Haroon, whose deposition under section 161, Cr. P. C. I have referred to above, did not state that he heard anything in the night between 26th and 27th December, 1971 which can point out to any struggle or untoward incident or any extraordinary sound. Mr. Naveed pointed out that this same Haroon in a further statement under section 161, Cr. P. C. has alleged that he heard some noise but I am of the view that his first statement under section 161, Cr. P. C. was very positive on this account and therefore, the second statement would be regarded as an afterthought and hardly believable. There is another difficulty in this theory that there are no blood stains found either on the staircase or the courtyard or on the street below which can suggest the removal of the body from flat to the place where it was ultimately found with blood stains on the Vardat. Moreover, it would be very difficult to believe that the petitioner' who is a woman would be able to carry a dead body from her flat to the place where it was found unless she had assistance of some other person which is not shown by the prosecution, although a simple allegation to that effect is made. It was held in 1972 S C M R 278 that where evidence of the eye-witness was rejected mere recovery of blood-stained hatchet and chader from the house of the accused was of no avail to the prosecution. It was held that recovery of incriminating articles by itself does not prove the case against the accused as it would not tie consistent with the safe administration of justice. In the case before me the petitioner was not even in actual possession of the flat on 1-1-1972 when the incriminating articles were found. But on the other hand, the complainant had the same flat in their virtual possession since 29-12-71 as they had it's key with them.

21. The next circumstance of the accused and the deceased having been last seen together is really based upon the information alleged to have been supplied by the petitioner/accused herself in her telephone to in-laws at 1-30 p.m. on 27-12-1971 when she has alleged have told her sister-in-law that her husband had left the house last evening at 6-30 p.m. The evidence examined by the complainant does not show at what time accused and deceased were last seen together in her flat. However, the neighbour Haroon in his statement under section 161, Cr. P. C. had stated that he remained at home on 26-12-1971, and deceased Aziz and his wife also were at home on that day. At about 4-30 p.m. Aziz had come in a blue colour vagon with a friend. Thereafter, he says that he had not seen anybody going or coming nor he heard anybody coming or going. Therefore, the only evidence of last seen together would be at 4-30 p.m. on 26-12-1970, while the body of the deceased had been found in a street away from his own flat at 1-30 a.m. during the night between 26-12-1971 and 27-11-1971 which means a space of 9 hours between the last seen together and the recovery of the body. Anything may have happened in between and the deceased may have left the house as the petitioner/accused is alleged to have stated on telephone. In P L D 1971 Kar. 291, where the deceased was alleged to have left in accused's company and not having been seen since then and there was no evidence that the deceased had been seen in the accused's company anywhere in the way, it was held that it was possible that the deceased may have separat ed from accused soon after leaving the house and therefore, this possibility cannot altogether be excluded as onus was on prosecution to exclude all doubts. In 1969 S C M R 888 it was held that all reasonable hypothesis consistent with the innocence of the accused have to be excluded. Therefore, the circumstances of their having been seen together 9 hours before the recovery of the body is not such a circumstance which would involve the petitioner with the burden of proving as to what happened to the deceased.

22. The other circumstance against the murder theory is that body of the deceased had been found in a street away from the flat and the post-mortem report is that the death was due to accident with a vehicle. The evidence of Dr. O. V. Jooma has not completely done away with the post mortem report as this export who is a well-known doctor has himself stated that he could not give nefinite opinion whether it was a murder or an accidental death. Such being the state of the medical opinion the possibility that the death was due to an accident could not be excluded.

23. In this state of evidence I am of the opinion that the charge is not likely to succeed and the accused is bound to be acquitted and therefore the continuation of the prosecution would be an exercise in futility. I would therefore in conformity with the view of late Chief Justice Mr. Tufail Ali Abdur Rehman in P L D 1970 Kar. 478 quash the proceedings against the petitioner. I am sure that all evidence which the complainant relies upon A even if it is believed would not disclose a commission of an offence by the petitioner. Mr. Usman Ghani, Additional Advocate-Genera has clearly stated that there is no other material available. The ordinary police found that death was due to accident. Even C. I. A. Police in its final report was of the view that the petitioner could not be said to, be involved in the murder. Continuing the prosecution in such circumstances would not advance the cause of justice. I have been conscious of the dictum laid down by their Lordships of the Supreme Court in P L D 1966 S C 664 where it was said that onus cannot be discharged by accused by merely hinting of "possibilities" or "suggesting some remote hypothesis". But this dictum could be applicable when the offence had been brought home to the petitioner and not when mere possibility of murder was their. I think that allowing the case to continue would be only for purpose of the petitioner offering an explanation for circumstances which, as I have explained above, would not be sufficient to involve her with the crime. The continuation would be a farce. The petition is therefore, accepted and the proceedings pending against the petitioner in respect of the murder of he husband Abdul Aziz Kasbati under section 302, P. P. C. in the lower Court are quashed. Proceedings quashed.