2001 P Cr (PLP)

Date of hearing: 21st October, 1999. This judgment will dispose of Criminal Appeal No.481 of 1994 filed by Mansha and Allah Jawai who are son‑in‑law and mother‑in‑law inter se. Both of them were convicted by the learned Additional Sessions Judge, Sheikhupura on 28‑7‑1994 for the murder ‑of Bashir Ahmad, husband of Allah Jawai to undergo life imprisonment under section 302/34, P.P.C. with a fine of Rs.10,000 each and in default of payment of fine.to undergo R.I. for one year. It may be noted here that one of the accused namely, Abbas was acquitted by learned trial Court who was real brother of Mst. Allah Jawai.

2. Occurrence in this case took place on 24‑10‑1989 at the Dera of Bashir Ahmad, deceased at about 2 midnight while the matter was reported to police through Exh.P.B. at 5‑00 a.m. at the place of occurrence and formal F.I.R. Exh.P.B./1 was recorded on the same day at 5‑45 a.m.

3. Brief facts of the case as narrated by Mokha, complainant were that he was married in Cha Jhaiddowan and was living there with .his in‑laws. Bashir Ahmad deceased being married with Mst. Allah Jawai at Cha Jhaiddowan started living at the Dera of Saeed Ahmad but brothers of deceased Bashir were not happy for living of Bashir there as they had been getting information about immoral character of Mst. Allah Jawai, accused. Allah Jawai without the consent of Bashir deceased and the complainant got her daughter Mst. Ghulam Fatima married with Mansha accused which became cause of annoyance to the complainant. After marriage, it became a rumours in the town that Mst. Allah Jawai was having illicit relations with his son‑in‑law Mansha, accused. Complainant asked his brother Bashir deceased to shift his residence but Allah Jawai did not agree and quarrel started between them. One day prior to registration of the case at degerwela, complainant alongwith Muhammad Ali (P.W.5) his first cousin getting the message of Bashir Ahmad deceased came to the place of occurrence for patching up the matter' and stayed there for a night. Complainant and Muhammad Ali slept in the compound of house while Bashir Ahmad deceased alongwith Mst. Allah Jawai and the children slept in a room. At 2‑00 midnight they heard the noise, the complainant and Muhammad Ali rushed towards the room. Lights were on. They saw Munsha accused twisting a cloth around the neck of the deceased to strangulate him. Abbas, acquitted accused was sitting on the chest of the deceased and holding his arm while Allah Jawai accused was holding Bashir deceased from his legs. On seeing complainant and Muhammad Ali, accused tried to run away but were apprehended at the spot. Bashir Ahmad died due to strangulation.

4. Investigating Officer (P.W.8) came to the spot, prepared injury statement, inquest report and also took into possession Safa P.3 vide memo. Exh.P.D.

5. Prosecution in order to prove its case produced 8 witnesses in all. Then statements of the appellants under section 342, Cr.P.C. were recorded. Two D.Ws. were also produced. Amongst 8 witnesses, there are two eye?witnesses, namely, Mokha, complainant and real brother of Bashir deceased and Muhammad Ali (P.W.5) first cousin of the complainant. Post‑mortem examination on the dead body of the deceased was conducted by Dr. Khadim Hussain (P.W.7) Medical Officer, Tehsil Headquarters Hospital, Nankana Sahib, District Sheikhupura.

6. Learned counsel for appellants has read before me the prosecution evidence recorded by learned trial Court and statements of the appellants and submits that both the eye‑witnesses are closely related to the deceased, they were not resident of place of occurrence and belonged to a place 2‑1/2 miles away, Mokha complainant was not happy on the marriage of Ghulam Fatima with Mansha accused and there are chances of false implication, Muhammad Ali (P.W.5) stated that Safa was recovered by the police from the neck of deceased while Mokha complainant stated that he had produced the Safa before Police with which neck of the deceased was pressed and that in column No.22 of the inquest report there is no mention of Safa. Learned counsel further submits that there were 2 sons and one daughter of the deceased living in the same house but none of them either was cited as a witness nor produced at the trial, so the presumption would be that had they been produced, they would not have supported the prosecution case. Also submits that in fact Bashir Ahmad deceased was a patient of asthema and that the doctor had formed the opinion 14 months after the occurrence and there is no explanation of this delay about the cause of death. Learned counsel lastly submits that the doctor had also not shown any marks of violence on the neck of the deceased at the time of post‑mortem examination.

7. Learned counsel for State has half‑heartedly supported the judgment of the learned trial Court.

8. I have heard learned counsel for parties and have also gone through the evidence recorded by learned trial Court. In the instant case, both the eye‑witnesses produced by the prosecution are not residents of the place of occurrence, none from inmates of the house where the occurrence took place was cited as a witness nor produced before learned trial Court, both the eye?witnesses are closely related to deceased Bashir Ahmad, question of false implication in this case cannot be ruled out, there is no mention of Safa in Column No.22 of the inquest report, doctor at the time of post‑mortem did not give any opinion about the cause of death, same was given 14 months after the post‑mortem without any plausible explanation, on the same set of evidence Abbas co‑accused was acquitted against whom allegation was that he was sitting on the chest of the deceased and also held his arms, then there is opinion of the doctor that time between injury and death .was 30 to 60 minutes which also shows that the eye‑witnesses have not seen the occurrence because according to their statements deceased died instantly. Both the eye?witnesses are chance witnesses and their presence at the time of occurrence at 2 midnight does not seem to be probable and natural. So, keeping in view the over all circumstances of the case and the evidence produced by the prosecution, I extend the benefit of doubt to appellants, appeal is accepted and their conviction and sentence are set aside. Mst. Allah Jawai is on bail and her bail bond shall stand discharged. Munsha appellant is in jail. He shall be released forthwith, if not required to be detained in any other case. N.H.Q./M‑557/L???????????????????????????????????????????????????????????????????????????????? Appeal accepted.