1990 P Cr (PLP)

MUHAMMAD AMIR MALIK, J.

Sabir alongwith his cousins Abdul Latif and Jan Muhammad, residents of Chak No. 189, Tehsil Kamalia, District Toba Tek Singh, on trial for the murder of their relative Mst. Sardaran Bibi, wife of Maqsood Ahmad (P.W.5), were convicted by the learned Additional Sessions Judge, Pakpattan, and sentenced as under: Sabir Death and a fine of Rs.5,000, in default whereof to undergo one year's R.I,. Life imprisonment and a fine of Rs.5,000 each, on default thereof to suffer further R.I. for one year. Abdul Latif and Jan Muhammad The fine, if realized, was ordered to be paid to the heirs of the deceased as compensation. The convicts have come up in appeal (Criminal Appeal No. 122 of 1986) and the case of Sabir appellant is also before us for confirmation of death sentence (Murder Reference No.141 1986). Both the appeal and the murder reference are being disposed of by this judgment.

2. Maqsood Ahmad complainant (P.W.5), his mother Mst. Noor Jamal (P.W.3), brother Maqbool Ahmad (P.W.7) and Abdul Shakoor (P.W.4), the eye witnesses, are the residents of village Jand, which is about eight kilometres from Police Station Pakpattan, District Sahiwal, and were living at a Dhari/Dera about two acres on the south-west of the village Abadi. On 25-3-1982 at about 6-30 p.m. all of them were present at the house of Maqbool except Mst. Noor Jamal and there they heard the alarm of Mst. Sardaran. When they came out of the house, they saw Sabir appellant, armed with a Chhura and Latif and Jan Muhammad with hatchets. They raised alarm. She was caught hold from the legs by Abdul Latif appellant, from the arms by Jan Muhammad, placed on the ground and then slaughtered by Sabir appellant. Mst. Noor Jamal was also seen raising alarm. The motive alleged was that about one and a half years back Dawood, a brother of the complainant, had abducted Mst. Nawab Begum alias Baigan, the sister of Sabir appellant, alongwith one Allah Ditta Sukhera, and a case was registered against them at Police Station Kamaha in which Dawood was still at large.

3. The case was investigated by Shakeel Ahmad Zafar,, S.H.O. (P.W.10) in the first instance. He recorded the F.I.R. (Exh. P.D.) on the day of occurrence, i.e. 25-3-1982, at 8-30 p.m., on the statement of Maqsood Ahmad complainant (P. 5) and then proceeded to the spot. He prepared the injury statement and the inquest report (Exhs. P.J. and P.K.). He recovered blood-stained earth from the spot and sealed it into a parcel vide memo. Exh.P.G. The dead body was sent to the mortuary under the escort of Muhammad Sarwar Constable (P.W.9). He arrested all the three appellants on 29-3-1982. On 12-4-1982 Sabir, Latif and Jan Muhammad appellants led to the recovery of Chhura (P.W.7) and hatchets which were secured vide memos. Exhs. PA., P.B. and P.C. respectively and the Chhura was sealed into a parcel. The parcel was sent to the Chemical Examiner in due course who reported that the Chhura was stained with blood (vide report Exh. P.O.) and finally the Serologist opined (vide report Exh. P.R.) that the blood was of a human being. The investigator (Shakeel Ahmad Zafar, Inspector P.W.10) also got prepared site plans (Exhs. P.N. and P.N./1) from Patwari Ghulam Muhammad (C.W.1) and gave his red notes thereon. He completed the investigation and challaned the accused to Court.

4. The case was finally investigated by Tasaddaq Hayat, Inspector C.I.A., Sahiwal (C.W.5). He concluded that all the three appellants were innocent and he instead arrested Dawood, the brother of the complainant, as the accused in the case, on 20-2-1983. On 7-3-1983 he got Chhura (Exh.P.7) identified by Dawood accused. His investigation was verified by Haji Habib-ur-Rehman, S.S.P. Sahiwal (C.W.2)

5. When the accused, after final investigation, were not challaned and rather placed in column No.2, Maqsood Ahmad complainant filed a private complaint (Exh. P.E.) which runs exactly on the lines on which the F.I.R. was lodged on 27-9-1983. When both the cases, i.e. the challan case against Dawood and the complaint case against the present appellants, came up for consideration before the learned trial Judge, he, vide order dated 13-11-1984, proceeded to hold the trial in the complaint case in the first instance and kept the challan case pending. When the former resulted in conviction, from which the appeal and reference arise the prosecutor made a statement under section 494, Cr.P.C. and the case against Dawood was withdrawn.

6. At the trial Mst. Noor Jamal (P.W.3), Abdul Shakoor (P.W.4), Maqsood Ahmad complainant (P.W.5) and Maqbool Ahmad (P.W.7) gave the ocular account of the occurrence and the motive part of the story, Bashir Ahmad (P.W.2), Hoshnak alias Ashfaq (P.W.8) and Shakcel Ahmad Zafar, S.H.O. (P.W.10) testified about the recovery of blood-stained earth from the spot and the weapons of offence at the instance of the accused and Dr. Safdar Ali (P.W.6) who performed the post-mortem examination of the deceased on 26-3-1982 gave the medical evidence. Tasaddaq Hayat, Inspector and Haji Habib-ur-Rehman, S.S.P. who were examined as Court witnesses, supported their version that the present appellants were not involved in the occurrence and that Dawood was the actual culprit. The learned trial .fudge, placing reliance upon the statements of the eye witnesses, particularly Abdul Shakoor (P.W.4), concluded the charge against the appellants with the result, as indicated above.

7. Learned counsel for the appellants contended that the motive, though alleged, was not proved; even the learned trial Court concluded that it was weak, so, the prosecution must suffer for it; the eye-witnesses were closely related inter se and inimical towards the appellants and could not be believed unless corroborated in material particulars, but no such corroboration was forthcoming on the record; the appellants rather had the motive to save their near relative Dawood who was found as real culprit by the police and to falsely involve the appellants acrd that the witnesses, as their conduct indicated, were not present at the spot and, in any case, could not be believed unless there was corroboration which was clearly lacking in the case. After hearing the learned counsel for the parties and the learned State counsel we are inclined to agree with him in many respects.

8. Admittedly, the complainant's family and the appellants are closely related. The eye-witnesses are also close relatives, though at the trial Abdul A Shakoor (P.W.4) denied that he was also their close relative. He, however, conceded that he was from the broti-erhood of the complainant. Mst. Baigan, the sister of Sabir appellant, was abducted by Dawood, the brother of the complainant, alongwith one Allah Ditta and a case as reported against them either by Sabir appellant or his father and in it Dawood was to be tried when the present occurrence took place. It is also in evidence that Sabir and his father had been pursuing the dissolution of marriage case filed by Mst. Baigan and they were even assaulted at Toba Tek Singh when they had come there in connection with that litigation. Thus, the eye-witnesses namely Maqsood, Maqbool and Mst. Noor Jamal are clearly inimical towards the appellants. The learned trial Judge correctly concluded that the appellants had no motive to commit the murder of Mst. Sardaran and so this must react upon the prosecution case. Rather, Dawood having been challaned finally as the real culprit, the witnesses had the double motive to implicate the appellants so as to get him exonerated.

9. It is an admitted fact that Mst. Sardaran deceased was murdred at a distance of about 2/3 or three and a half acres of the south-west of the Dera/Bheni of the complainant's family. 1t is the consistent case of the four eye witnesses that she was dragged from the house to the spot and then murdered. If be was dragged, then the dead body should have some scratches, or the clothes of the deceased must have been torn or got green shed while being dragged through the cultivated fields. According to the medical evidence there was no scratch on the dead body at all and it has also not been stated by the doctor that the clothes of the deceased were having greenish spots. Not only this, even Mst. Noor Jamal, who, according to the other eye-witnesses, was seen going after the appellants and the deceased raising alarm, finally came round to say that she had not seen the actual occurrence. She has, therefore, clearly contradicted the other eye-witnesses. She also stated that the mouth of the deceased was wrapped with a cloth when she was taken along by the appellants but on this aspect she is clearly contradicted by the complainant while the other two eye-witnesses denied it. It is also in the statements of the witnesses that a baby of the deceased was also carried alongwith her and she was thrown somewhere in between the place of murder and the Dera. If the deceased was dragged from the Dera or some place nearby, then how the child was taken along by the deceased is not understandable. Not only this, but the very conduct of the eye-witnesses shows that they were not present at the spot. The deceased was done to death at a distance of about 2/3 acres from the Dera and they came out of the house of Maqbool (P.W.7) on the alarm raised by the deceased and Mst. Noor Jamal. The appellants were not carrying any fire-arm, so the witnesses could very well pick up Dang, Sota or other available agricultural implement from the Dera and practically intervene, but nothing of the sort was done. They felt so chicken hearted that on the mere threats of the appellants did not try to rescue the deceased, which is something unbelievable. 1t is their own case that when they first came out of the house, they saw the appellants taking away the deceased from a distance of one Kanal, but when she was actually done to death, they were at a distance of four Kanals. Such a conduct was not expected from the near relatives including the complainant, the husband of the deceased. The appellants hail from Kamalia, a far off place from the spot and they were not chased in spite of the fact that many people from the surrounding Bastis had collected at the spot, just at the time of or a few moments after the occurrence. The witnesses thus cannot be believed unless there is strong corroboration, and no such corroboration is forthcoming on the record. The hatchets were not blood-stained and were not sent to the Chemical Examiner. The recovery of blood-stained Chhura at the instance of Sabir appellant is stated to by Bashir Ahmad (P.W.2), the brother of the complainant, and Abdul Shakoor (P.W.4), and as the latter has not been believed with respect to the eye-witness account, he cannot be believed E with respect to recovery as well. It is also to be kept in view that it is a case of two versions and there is a probability that the other version may be correct. Admittedly, the abduction case of Mst. Baigan was compromised by the complainant on the condition that a female hand from the complainant/Dawood's family would be given to that of the appellants. It was suggested to the P.Ws. that Mst. Sardaran did not like this arrangement and the compromise fell through. It was, therefore, tried to be made out that it was for this reason that Dawood thought of doing away with his brother's wife as he had taken a fancy to Mst. Baigan and could retain her only if there was compromise in the family. Keeping all the above considerations in view, the contentions of the learned counsel for the appellants are upheld.

10. Before. parting with the judgment, it may be mentioned that there has been an actual compromise between the parties. Maqsood Ahmad complainant has given an affidavit in this regard and has also supported it in Court during arguments. .

11. The upshot is that the charge against the appellants cannot be held to be proved beyond any shadow of reasonable doubt. They are, therefore, acquitted. H The appeal is accepted and the death sentence is not confirmed. Sabir appellant is in jail. He be 'set at liberty forthwith if not required in connection with any other case. Abdul Latif and Jan Muhammad appellants are on bail and stand discharged of their bail bonds. H.B.T./S-684/1 Appeal accepted