P L D 1987 Lahore 196 (PLP)

The propriety and the legality of the judgment dated 30‑8‑1978, pronounced by Mr. Muhammad Amir Malik, the learned Sessions Judge, Bahawalpur, has been questioned in this appeal, who had convicted the appellant under section 302, P. P. C. and had ordered him to suffer life imprisonment. He was also fined Rs. 1,000 or in default thereof to suffer one year's rigorous imprisonment. He was convicted under section 323, P. P. C. for causing simple injuries to Mst. Mumtaz Elahi and sentenced him to three months' R. I. Both the sentences were ordered to run con currently and the fine, if paid by the appellant, was directed to be given to the heirs of the deceased by way of compensation as envisaged under section 544‑A, Cr. P. C.

2. The brief facts of this case are that Noor Ahmad, the complainant was married to Mst. Bhagan, who expired about twenty years back. She was survived by a daughter Mst. Fiza alias Hafizan from the complainant, who was .married to one Allah Dad of village Luddan. Mst. Zohran, the sister of Allah Dad, was reciprocally married to Noor Ahmad complainant. Mst. Bhagan died about twenty years back. Mst. Zohran could not pull on with the complainant, so she was divorced. On account ‑f some estrangement, Mst. Fiza alias Hafizan came to 'her parental home and was living with the complainant. She brought. a suit for dissolution of marriage against her husband Allah Dad. During the pendency of the said suit, the complainant promised to marry Mst. Fiza alias Hafizan with the appellant, after her divorce. The appellant was on visiting terms with the complainant. On the day preceding this occurrence, the appellant asked Mst. Fiza as to why she used to loiter about in the city and was of bad character. Mst. Fin retorted that the appellant was nobody to pose this question to her and she would not marry him. This fact insensed the appellant and on the night intervening 22/23‑3‑1977, when she was sleeping in the same house, he murdered Mst. Fiza With an iron rod and injured Mst. Mumtaz Mai P. W., who was sleeping on the same cot. Noor Ahmad lodged the F. I. R. at the Police Station and the police came to the spot. The police collected the blood‑stained earth and took into possession the cot, the pillow and the Hawai Chappal from the spot.

3. On 23‑3‑1977, Gul Muhammad alias Gullu, the appellant, was arrested and he got recovered the blood‑stained iron bar from a graveyard which was taken into possession vide memo. Exh. P. J. The dead body of Mst. Fiza was sent for autopsy and Mst. Mumtaz was also medically examined.

4. Dr. Muhammad Ali, Medical Officer, Civil Hospital Khanpur, P. W. 1, performed the autopsy‑on the dead body of Mst. Fiza and observed the following injuries on her dead body :‑ (1) A contused wound 3" x l" going deep in the cranial cavity on the left side of the head above the temporal region, going in forward direction. The skull had been fractured and depressed in. The brain matter was coming out of the wound. (2) A contusion 2 "x 1 on the left side of face behind the arbit in forward direction. The underlying bone had been fractured and depressed ill. (3) A contused wound 2" x 1" deep in the cranial cavity on the back of head downward in direction fracturing the skull (occipital bone) 2' long. All the injuries on the dead body of Mst. Fiza were individually found to be fatal and sufficient to cause death in the ordinary course of nature.

5. The aforesaid doctor also examined Mst. Mumtaz Elahi on the same day and found the following injuries on her person :‑ (1) A contusion 3 x 1 " on the front of the left shoulder joint reddish blue in colour. (2) A haemotoma on the tip of the left ring finger 1/8"x 1". The above injuries sustained by Mst. Mumtaz Elahi were declared to be simple in nature. f. After the completion of the investigation, the challan of the appellant was submitted and as a sequel of the impugned trial, he was awarded the aforementioned punishment.

7. Noor Ahmad, the complainant, P. W. 5 is the ocular witness of this incident. He has narrated the incident as stated in the F. I. R. He has stated that he went to the spot after litting the gas lamp and saw the appellant giving blows to his daughter Mt. Fiza and .List. Mumtaz Elahi. He has conceded the fact the deceased was married to Nazar Muhammad and he had himself married Mst. Allah Wasai, the sister of Nazar Muhammad, and be got instituted a suit at Hasilpur that Mst. Fiza was nor the wife of Nazar Muhammad and the 'suit was dismissed. He has added that after the dismissal of the suit, he was prosecuted under section 420, P. P. C. and sentenced to six months' rigorous imprisonment. He has also admitted that he divorced Mst. Zohran after the receipt of Rs. 1,

100. He deposed that it was incorrect that he had demanded money for marrying Mst. Fiza to certain person after the receipt of money. When subjected to cross‑examination, he explained that he spent about ten to fifteen minutes in putting on the lamp and reaching the spot and saw the appellant running away from the back side and identified him,

8. Noor Ahmad complainant, as stated, is not a truthful man. He was convicted under section 420, P. P. C. and sentenced to six months' rigorous imprisonment. He spent . about 10 to 15 minutes in putting on the lamp and reaching the spot, whereas the deceased received only three injuries and it seems to be a hit and run affair. ‑It was a dark night and the assailant must have gone away till the complainant lighted the lamp and went to the spot. 1, therefore, do not place any reliance on his statement.

9. Similar is the case of Ghulam Nabi P. W. 7, who had stated that he came to the spot with the complainant. In his examination‑in‑chief, he toad stated that Mst. Mumtaz Elahi told him the entire incident and he saw the appellant running away. But, in cross‑examination, he had stated B that he actually saw this occurrence. It is a materi$1 discrepancy which cannot be reconciled. His statement also lacks reliability.

10. The learned trial Court has depended on the statement of Mst. Mumtaz Elabi P. W. 6, who is alleged to have been injured during this incident. She had stated that she saw the appellant giving blows to Mst. Fiza and she was also injured, although she had covered her body with a quilt. When she had covered her body with a quilt, it seems improbable that she sustained injuries on her shoulder and' the left ring finger, which in the ordinary course should have been covered by I a quilt. Mst. Fiza sustained injuries on the head only, as she was also having a quilt on her. It was a dark night and the assailant must have; taken to his heels after injuring the, ladies. The identification of thel appellant by hlst. Mumtaz Elahi does not seem to be probable. The P. Ws. have stated that a lantern had been lit near the spot which was hanging by a wooden stump. The Investigating Officer has stated that the lantern was lying on the ground. There was no purpose of lantern having been lit throughout the night. It appears that the lantern had been introduced for‑ the identification of the assailant, who had chosen the ~t; mid‑night time to commit this crime. The ocular witnesses account does not seem to be plausible.

11. The presence of the appellant in the house of the complainant is also not free' from doubt, because the complainant lives within the area of Police Station Luddan and the complainant does not explain the purpose of his adopting the residence in the house of the complainant. Further more, he is alleged to have bickered with the deceased whom he wanted to marry and there was no occasion of his balting at the house of the complainant for the said night.

12. The motive for the commission of this crime is stated to be the quarrel between the appellant and the deceased on the. preceding day of the night of the incident. It was a very petty quarrel and it does not stand to reason that an assailant, who was a candidate for marrying the deceased and who according to him had advanced money to the complainant, would kill her on a petty quarrel.

13. Ghulam Nabi P. W. 7 has stated that the F. I. R. was recorded on the spot. The recovery memos. Exh. P. F., Exh. P. G. and Exh. P. H. do not contain the name of the accused. Vide memo. Exh. P. F., cot, pillow and' the Hawai Chappal were taken into possession. Exb. P. G. E indicates that the blood‑stained earth was taken ‑into possession and the lantern was taken into possession vide memo. Exh. P. H. These documents show that till these articles were taken into possession, the name of the accused was not known to the police. The Inquest Report is illustrative' of the fact that it does not contain the F.

1. R. number, nor does it contain` the Inquest Report number. It shows that the F. I. R. was recorded after making preliminary investigation. In Abdul Sattar v. The State 1974 P Cr. L J 208, it has been held that when the F. I. R. has been recorded after preliminary investigation at the spot, it is not reliable and is inadmissible in evidence.

14. The .site‑plan Exh. P. C. shows that the ladies were sleeping outside the house, whereas Noor Ahmad and Ghulam Nabi P. Ws. were sleeping inside the house during the last week of March 1977. The place of occurrence is not visible from the place where Ghulam Nabi and Noor Ahmad were asleep. There were number of enemies of Mst. Fiza including her husband, against whom she had sought the judicial divorce. The probability is that anyone of them might have committed this crime.

15. It is a blind murder and the appellant was arrested on suspicion. I, therefore, extend the benefit of doubt to the appellant. This appeal is accepted and the appellant is acquitted of the charge framed against him under sections 302 and 323, P. P. C. He was released on bail. He stands discharged of his bail bonds. s. A./ G‑14/L Appeal accepted.