1988 P Cr (PLP)

It was directed that the fine if realised, half of the same be paid to the legal heirs of the deceased as compensation.

2. It is alleged that 'Muhammad Ali deceased was deceitfully taken away from his flour machine on 3‑3‑1982 at 8‑00 p.m. and subsequently murdered in the house of Muhammad Ali appellant situate in Chak No. 182/R.B. at a distance of 12 miles from Police Station Mananwala. The F.I.R. is statement Exh. P.A. of Zulfiqar, P.W.10, brother of the deceased which was recorded by Muhammad Bashir A.S.I., P.W. 7 at Chowk Schoolwala, Police Post Shah Kot on 8‑3‑1982 at 12‑30 p.m. at a distance of 3 miles from the place of occurrence. Formal F.I.R. Exh. P.A/1 was drawn up by Muhammad Mushtaq, M.H.C., P.W. 1 on the same day.

3. The motive alleged by the prosecution was that Mst. Roshan appellant had taken Rs.19,000 from Muhammad Ali deceased from time to time on the promise of. giving him the hand of her daughter Mst. Daulan. About 15/20 days before the occurrence, when the deceased insisted on, the marriage or return of the money, the appellants started putting him off. Some days before the occurrence, a quarrel took place between Muhammad All deceased and the appellants over the return of money. The appellants refused to give the hand of her daughter Mst. Daulan to the deceased and took Muhammad Ali with them for the settlement of the account. Muhammad Ali however, did not return. Zulfiqar P.W., the complainant approached them to know the whereabouts of the deceased. The appellants told him that Muhammad Ali had left their house on the same night after having settled the account. Since Muhammad Ali could not be traced out, therefore, Zulfiqar, lodged F.I.R. under section 364, P.P.C. on 3‑3‑1982.

4. The appellants were arrested on 9‑3‑1982. Muhammad Rafiq appellant led to the house jointly owned and occupied by Mst. Roshan and Muhammad Ali appellant and pointed out the place inside the house, wherefrom the dead body of Muhammad Ali deceased wrapped in a gunny bag, gunny packet Exh.P.7, pillow cover Exh.P.8, Parna Exh.P.9 and pair of shoes Exh.P.l/2 of the deceased were recovered, which were taken into possession vide memo. Exh.P.G. attested by Khan P.W.9, Muhammad Yaqoob (not produced) and Muhammad Salim S.I., P.W.12. On the same day Mst. Daulan got recovered wrist watch Ex. P.2, purse Ex. P.3 and ring of keys Exh. P.4 of the deceased from her house which were taken into possession vide memo Exh. P.D. attested by Agra P.W. 5, Nehal Din P.W. 8 and Muhammad Salim, S .I . P. W.12. On the same day Mst. Roshan got recovered Rs.1,000 of the deceased from her house which were taken into possession vide memo Exh. P.E. attested by the same witnesses. On the same day Muhammad Rafiq appellant led to the recovery of blood‑stained hatchet Exh. P.10 from his house, which was taken into possession vide memo Exh. P.J. attested by Muhammad Ali P.W.11, Muhammad Yaqoob (not produced) and Muhammad Salim,' S.I. P.W. ‑

12. On the same day Muhammad Ali appellant led to the recovery of blood‑stained hatchet Exh. P.11 from his house which was taken into possession vide memo Exh. P.K. attested by the same witnesses. The Serologist Report Exh. P.8, reveals that the two hatchets, pair of shoes, Parna, pillow cover, two torn gunny bags, were stained with human blood. It may be noted that the trial Court has disbelieved the recoveries effected from Mst. Daulan and Mst. Roshan appellants.

5. On 10‑3‑1982, Dr. Rafiq Hussain Chaudhry, P.W. 13, conducted post‑mortem examination on the dead body of the deceased. He found following injuries:‑‑-- (1) "An incised wound 13 x 2 x 3 c.m. on the left lower jaw cutting the underlying bone. (2) An incised wound 8 x 1 x 4 c.m. on left side of neck. The troches and blood vessels on left side cut. (3) An incised wound 6 x 2 x 4 c.m. on left side of neck lower part cutting the clavical. (4) An incised wound 3 x 2 x 2 c. m. on right side of neck middle portion. (5) An incised wound 6 x 2 x 2 c.m. on the back of neck lower part." In his opinion, the death occurred due to shock and haemorrhage from injuries No. 1‑3, which were sufficient to cause death in the ordinary course of nature. The injuries were ante‑mortem and caused by sharp‑edged weapon. The time between injuries and death was within few minutes and between death and post‑mortem was one week.

6. To prove its case, prosecution produced 12 witnesses. There is no eye‑witness of the, occurrence. There is no evidence of' extra‑judicial confession. The prosecution case rests on circumstantial evidence in the shape of last seen and incriminating recoveries. Zulfiqar P.W. 10 and Muhammad Ali P.W.11 gave the evidence of last seen. They stated that it was in their presence that on 3‑3‑1982, the three appellants took away Muhammad Ali deceased with them on the pretext of settling account with him and thereafter Muhammad Ali did not return. Khan P.W. 9 has deposed about the recovery of the dead body on the pointation of Muhammad Rafiq appellant. Muhammad Ali P.W.11 has stated that Muhammad Rafiq appellant and Muhammad Ali appellant had led to the recoveries of hatchets Exh. P.10 and P.11 from their houses. Muhammad Salim P.W. 12 has supported the recoveries of the dead body and hatchets from Muhammad Rafiq and Muhammad Ali appellants. Agra P.W. 5, Nehal Din P.W. 8 and Muhammad Salim, S.I., P.W.12 also supported the recoveries of articles anti Rs.1,000 from Mst. Daulan and Roshan. The rest of the evidence isi more or less of formal nature.

7. When examined under section 342, Cr.P.C'. Mst. Roshan and Muhammad Rafiq appellants denied all the incriminating circumstances. Muhammad Ali appellant raised the plea of grave and sudden provocation. In reply to Question No. 7, he stated:‑‑ "On the night of occurrence, I was sleeping in my house and on hearing some noise I got up and found Muhammad Ali deceased and my sister Mst. Daulan in a compromising position on the cot of Mst. Daulan. The event was so sudden and grave for me that I lost control on myself and picked up a hatchet from my room and caused the death of Muhammad Ali deceased whereas Mst. Daulan slipped away". Muhammad Rafiq appellant stated that he was involved falsely by Muhammad Salim, S.I. P.W. 12 because he had filed complaint against him. No witness was produced in defence.

8. Learned counsel for the appellants contended that the prosecution has failed to prove its case beyond reasonable doubt; that the circumstantial evidence produced by the prosecution fails to exclude the hypothesis of the innocence of the appellants and that there is a reasonable possibility' of the defence plea of grave and sudden provocation raised by Muhammad Appellant, being true. Learned counsel for the State assisted by the learned counsel for the complainant has supported the judgment of the trial Court.

9. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements of the accused recorded under section 342, Cr.P.C. and the circumstances appearing in the case. We find that there is no eye‑witness of the murder of the deceased by the appellants. There is no evidence of any extra‑judicial confession made by them. There is a delay of 5 day in lodging the F.I.R., therefore, the possibility of deliberation and consultation before lodging of the F.I.R, cannot be excluded. The prosecution version of the last seen that Muhammad Ali deceased had accompanied the appellants to their house at 8‑00 p.m. on 3‑3‑1982 runs counter to the natural probabilities inasmuch as in view of the quarrel incident which took place between the deceased and the appellant before the occurrence, the deceased would not have gone with the appellants to their house. He would have insisted for the settlement of account in his flour machine or in his house. Similarly, Zulfiqar P.W.10, brother of the deceased would not have let him go alongwith the appellants. The statements of Zulfiqar P.W.10 and Muhammad Ali P.W.11 that the appellants took away Muhammad Ali deceased with them at 8‑00 p.m. on 3‑3‑1982 cannot be termed anti treated as evidence of last seen in its true sense. The exact time of death of the deceased is not known and the distance of flour machine wherefrom the deceased was taken away by the appellants and the house of Muhammad Ali wherefrom the dead body of Muhammad Ali was recovered on 9‑3‑1982 is not on record. In order to bring the evidence in the category of a last seen evidence, the unity of time when the deceased was seen alive in the company of the accused and the time of his murder and also unity of place of murder and the place where he was lastly seen alive in the company of the appellants are very material. The evidence of last seen being a circumstance, the interval between the deceased having been last seen in the company of the accused and the time of his death should not be such as to allow hypothesis other than the guilt of the appellants. It is very much necessary that the fact of murder of the deceased should be so closely connected with the fact of the last seen of the deceased with the appellants/accused‑ that it should exclude all hypothesis of the innocence of the accused and should lead to no other hypothesis except that the deceased had remained in the company of the accused till he was done to death. Since in the case in hand, it cannot be said with certainty as to when the deceased was actually murdered, therefore, the possibility/ hypothesis that the deceased after having settled the account with the appellants might have left their house and might have, subsequently come back to the place of occurrence in order to meet Mst. Daulan (with whom his marriage had once been proposed), cannot be excluded. That being the position, the statements of Zulfiqar P.W.10 and Muhammad Ali P.W.11 do not constitute evidence of last seen in its real sense. The recovery of the dead body of Muhammad Ali on the pointation of Muhammad Rafiq appellant from the house jointly occupied' by Muhammad Ali and Mst. Roshani appellants, does not connect, Muhammad Rafiq appellant with the murder' or with the evidence of causing of the evidence of crime to disappear, beyond reasonable doubt. The house wherefrom the dead body was recovered was not in the exclusive possession of Muhammad Rafia appellant. The recovery of bloodstained hatchets from the appellants is also not satisfactory in the memoranda of recovery, it has not been stated that the hatchets were stained with blood. In their statements in the Court, the recovery witnesses did not state that the hatchets were stained with blood. In the peculiar circumstances of the case that the dead body of Muhammad Ali was buried in the ground in order to cause the evidence of the commission of crime disappear, it does not appeal to reason that the appellants would have kept the blood‑stained hatchets intact and would not have washed away the blood. For all these reasons, there is no option but to reject the prosecution version of the occurrence, the evidence of last seen as well as of the incriminating recoveries. Since we have rejected the prosecution evidence, therefore, the statement made by Muhammad Ali appellant wherein he stated that he had killed Muhammad Ali under grave and sudden provocation on seeing him in compromising position with his sister, Mst. Daulan, has to be believed as a whole. The upshot of the above discussion is that while giving benefit of doubt, Mst. Roshan and Muhammad Rafiq appellants are acquitted of the charges. The conviction of Muhammad Ali appellant under section 302, P.P.C. is set aside and instead he is convicted under section 304(1), P.P.C. and sentenced to 5 years' R.I. and a fine of Rs.5,000, in default thereof one year's R.I. The fine if recovered be paid to the legal heirs of the deceased. M. Y. H./M‑591/L Appeal partly allowed.