2008 PLP 504 (MLD)

MUHAMMAD FARRUKH MAHMUD, J.

The appellants Muhammad Suleman and Mst. Zeenat Bibi were tried by the learned Additional Sessions Judge, Khushab, in case F.I.R. No. 12 registered at Police Station Noorpur Thal on 24-1-2001 for offences under sections 302/201/34, P.P.C. for having committed the murder of Abdul Aziz. Vide judgment, dated 21-6-2001, the learned trial Court convicted and sentence the appellants as follows:-- (I) Muhammad Suleman for offence under section 302(b), P.P.C. to death plus payment of rupees one lac as compensation to the legal heirs of the deceased, in default whereof to undergo S.-I. for six months; (II) Muhammad Suleman for offence under section 201, P.P.C. to undergo R.I. for seven years with a fine of Rs.10,000 in default whereof to suffer S.-I. for four months. (III) Mst. Zeenat Bibi for offence under section 302(b), P.P.C. to imprisonment for life; (IV) Mst. Zeenat Bibi for offence under section 201, P.P.C. plus payment of Rs.5000, as fine, in default whereof to undergo S.-I. for two months. Both the sentences of Mst. Zeenat Bibi appellant were ordered to run concurrently. She was also given the benefit of section 382-B, Cr.P.C.

2. Both the convicts/appellants have challenged their convictions and sentences through the instant appeal. Murder Reference No.424 of 2001, seeking confirmation or otherwise of death sentence imposed upon Muhammad Suleman appellant has also been placed before us. Both these matters are being decided by this consolidated judgment.

3. The brief facts of the case per F.I.R. Exh. PA recorded by Ghulam Sarwar, S.-I./P.W.8, at the instance of Ghulam Habib, complainant/P.W.2, are that the complainant and his brother Abdul Aziz (deceased), Ghulam Siddique, Ghulam Yasin, Aslam/P.W.4 and Akbar lived in separate houses at Dera Tindaywala Dakhli Baland. Abdul Aziz was married with Mst. Zeenat Bibi (accused-appellant) and had four sons and two daughters from this wedlock. Muhammad Suleman, accused/appellant, who also lived at his dera on the western side of their Dera, had visiting terms with Abdul Aziz. Muhammad Suleman developed illicit relations with, Mst. Zeenat Bibi. This intimacy came to the knowledge of the complainant and the deceased. Two months prior to the occurrence, Abdul Aziz stopped the appellant from visiting his house and gave beating to Mst. Zeenat Bibi. 6/7 days prior to the registration of case, Abdul Aziz disappeared. The complainant and his brothers searched for him but all in vain. The complainant had also been inquiring about him from Mst. Zeenat Bibi but she did not give any satisfactory reply. She also disappeared on the next day. Muhammad Suleman was also found absent from his house. Strong suspicion was expressed that Muhammad Suleman and Mst. Zeenat Bibi had committed the murder of Abdul Aziz and had concealed his dead body at some unknown place.

4. On 24-1-2001, after registration of the case at the instance of the complainant, Ghulam Sarwar, SI/P.W.9, accompanied the complainant to the place of occurrence. He prepared its site plan Exh.PF on the pointing of complainant. He recorded the statements of Ghulam Siddique and Rab Nawaz., He arrested Muhammad Suleman appellant from Adda Baland. The appellant disclosed that he had murdered Abdul Aziz and buried his dead body on the southern side of his Baithak. On his pointing, a pit was dug out and the dead body of the deceased was recovered. He prepared the site plan Exh.PJ of the place of recovery. On 25-1-2001, the Investigating Officer (Investigating Officer) recorded the statements of Amir Abdullah and Muhammad Aslarn, P. Ws. One Haq Nawaz Jasra produced Mst. Zeenat Bibi before the Investigating Officer, who had arrested her. Both the appellants were produced before the Magistrate and were sent to judicial lock up. He got prepared scaled site plan Exh. PB and PB/1 from the Patwari. After completion of investigation both the appellants were sent up to face trial.

5. To substantiate its version at the trial, the prosecution produced ten witnesses. After tending in evidence the report Exh. PL of Chemical Examiner, the prosecution closed its side.

6. In their statements recorded under section 342, Cr.P.C. both the appellants pleaded their innocence and false implication. Muhammad Suleman appellant deposed as under:-- "I am totally innocent. I committed no crime. I am aged 65 years. I have nine children. One is son and others are daughters. My son Zulqarnain is aged about 17 years. My eldest daughter Mst. Zarina is married with Muhammad Akbar brother of deceased Abdul Aziz. The second daughter Mst. Haseena is married with Muhammad Aslam and other six daughters are unmarried. In fact, my daughter Ruqia is engaged with Irfan son of Abdul Aziz deceased. My daughter Khalida is engaged with Tassawar eldest son of deceased Abdul Aziz edged about 14/15 years. Rukhsati had not yet taken place. In exchange, my son Zulqarnain was engaged with Mst. Sumaira daughter 'of Abdul Aziz deceased with my consent and with the consent of Abdul Aziz deceased. Complainant and his brothers were not happy with his Rishta. Complainant wanted to have this Rishta for his own son and in exchange wanted to give his daughter to the son of Abdul Aziz deceased. Abdul Aziz and his wife Mst. Zeenat Bibi were not agreed to this Ristha. Due to this grudge, I have been falsely involved in this case by the complainant and others P. Ws. Moreover, a quarrel had taken place with me and complainant on the dispute of land before the registration of this case. He had also grudge for that reason. I cannot think about illicit relations. If at all it is a murder, it is a blind murder. I never confessed before the police and other P. Ws. 1 was arrested by the police on 23-1-2001 at the evening time from my house. The dead body was not recovered at my pointation in front of the Baithak. All the recoveries are fake and planted upon me." The statement of Mst. Zeenat Bibi appellant read as under:-- "I am innocent. I was married with Abdul Aziz about 20 years ago. I was leading happy life with him. I cannot think for his murder. Factually, dead body of my husband was present in the room of cattle. Two days earlier I went to see my parents. When I returned I saw dead body of Abdul Aziz my husband in the room of cattle. I told the brothers of the deceased. Complainant was called from Mari Shah Sighran District Jhang where he cultivates the land of one Patwari. Complainant had a grudge with my husband Abdul Aziz and Suleman due to Rishtas. I never confessed before the police or P. Ws. I have been falsely involved in this case on account of suspicion. I have no concern with Dopatta. " Neither the appellants made their statements under section 340(2), Cr.P.C. nor did they produce any witness in their defence.

7. Learned counsel for the appellants submit that it was an un-witnessed occurrence; that the witnesses of extra-judicial confession have given contradictory statements; that as far as the confession of Muhammad Suleman appellant is concerned that was inadmissible, as it was made in the presence of police after his arrest; that the prosecution failed to prove the motive; and that the prosecution case is not free from doubts.

8. Conversely, learned counsel for the complainant has contended that the witnesses .had no previous motive or malice against the appellants so as to involve them in a false case; that the dead body has been recovered at the pointing out of Muhammad Suleman appellant which fully corroborates the evidence of extra-judicial confession; that the place from-where the dead body was dug belonged to Suleman; that the prosecution has also successfully proved the motive; that the medical evidence supports the, prosecution story; that the Investigating Officer (Investigating Officer) has given concessions to the appellants during cross-examination, dishonestly; that the witnesses have given a very consistent account of the occurrence, which was worthy of credence; and that the appellants deserve no leniency. He has placed reliance upon the cases of Zairullah v. The State (1997 SCMR 396), Muhammad Arshad v. The State (1992 SCMR 1187), and Ahmad Bakhsh v. The State (PLD 2006 SC 267). The learned counsel appearing on behalf of the State, while adopting the line of arguments of the learned counsel for the complainant, support the judgment passed by the learned trial Court.

9. We have heard the learned counsel for the parties and have also gone through the record of the case.

10. Undeniably, it was an un-witnessed occurrence and the prosecution case rested on the circumstantial evidence. Ghulam Habib, complainant/P. W.2, 'is brother of the deceased. Rab Nawaz P. W.3 is married with the sister of Ghulam Habib. Muhammad Aslam/P.W.4 is brother of the deceased, while Amir Abdullah P. W.5 is married with the sister of Habib complainant and his sister is married with Muhammad Aslam. According to prosecution case, the motive behind the occurrence was that Muhammad Suleman and Mst. Zeenat Bibi wife of the deceased developed illicit intimacy. Two months prior to the occurrence, Abdul Aziz stopped Muhammad Suleman from visiting his house. The deceased also gave beating to Mst. Zeenat Bibi appellant. It is in evidence that Muhammad Suleman appellant was more than sixty years of age and he had nine children, while Mst. Zeenat Bibi was mother of six children, out of whom four were sons. It was admitted by the P. Ws. that two of the daughters of Suleman were engaged with the sons of the deceased, while one daughter of the deceased was engaged with the son of appellant Suleman. Had Suleman been stopped by the deceased from visiting his house due to his illicit intimacy with Mst. Zeenat Bibi then this would have reflected on the inter-engagements of the children of Suleman and the deceased and the same would not have remained intact. It is in evidence that Mst. Zarina, daughter of Suleman, was married with Muhammad Akbar brother of the deceased and both of them lived with each other even after the occurrence. Akbar did not appear as a witness in this case. Muhammad Aslam admitted that the deceased and Suleman appellant engaged their children with each other without the consent of other brothers. No independent evidence is available to prove that illicit intimacy existed between the two appellants. It is also note worthy that the husband of Mst. Zeenat Bibi was thirty years younger than Suleman appellant. In the above noted circumstances, it can safely be said that the motive was created after finding the dead body of Abdul Aziz.

11. According to P. W.4 Muhammad Aslam, he was present in his room at Isha time and Amir Abdullah P. W.5 was also with him for offering Fateha Khawani of deceased Aziz, when Mst. Zeenat Bibi reached there. She was carrying her baby daughter with her and she admitted her illicit relations with Suleman appellant and she also admitted the commission of murder by her and Suleman about six days back. According to P.W.4, she also stated that after committing the murder, she went back to her house and slept with her children. During cross-examination, he stated that the confessional statement was made to him after 6/7 days of the recovery of dead body. The dead body was recovered on 24-1-2001 while Mst. Zeenat Bibi was arrested on 25-1-2001 and was sent to jail on the same date. In these circumstances, she could not make her confessional statement before this witness after 6/7 days. As against this witness, Amir Abdullah/P.W.S stated that the confession was made by Mst. Zeenat Bibi appellant on 24-1-2001. Both these witnesses have contradicted each other and the contradiction is very material. Both these witnesses did not make any attempt to apprehend Mst. Zeenat Bibi and to produce her before the police. The story of offering Fateha Khawani at Ishawela in the room of Muhammad Aslam is also not convincing, as all the brothers lived in adjacent houses and they had common courtyard. It is common knowledge that at such occasions, all the members of the family join together for the purposes of Fateha Khawani. Suleman had been arrested in the morning and according to P.Ws., he had made confession. In that case, Mst. Zeenat Bibi could have been arrested immediately after the confession of Suleman and there was no need for an independent confession on her behalf. The P.Ws. stated that she came to the room of Muhammad Aslam in order to make confession which gives impression that she was not present in her house in the early hours of the day, while the Investigating Officer admitted that after registration of case when he visited the spot, the smaller children of the deceased and others including the mother were present in the house. Muhammad Aslam P.W. is not shy of telling lies. He stated during cross-examination that he did not know that Mst. Zeenat Bibi wanted to marry her children with the children of Suleman, while he had admitted that it was a fact that his brother Aziz had engaged his children with-the children of Suleman appellant, which was without his consent. He further admitted that his brothers wanted to marry their children with the children of Aziz deceased. His explanation for not apprehending Mst. Zeenat Bibi, after her-confession, was that he was a kidney patient. The conduct of Amir Abdullah is also not above board. Firstly, he stated that he was not related to the deceased, then he admitted that sister of deceased was his wife. He further admitted that his sister was married to Habib complainant. In order to prove the confession of Muhammad Suleman, prosecution has relied on the statements of Ghulam Habib, complainant/P.W.2, and his brother-in-law Rab Nawaz/P.W.3. According to P.W. 3, Suleman made confession in. the Baithak of one Sultan at 8-00 a.m. on 24-1-2001 when the case was registered. At that time, Ghulam Siddique was also present there. Neither Sultan nor Ghulam Siddique was produced before the learned trail Court. He had gone to the house of Sultan just to accompany Siddique and the latter came to his Dera at 6-30 and who wanted to talk with Mian Sultan about the payment of Zakat of his mother. So Rab Nawaz accompanied Siddique to the Dera of Mian Sultan which was at a distance of one mile but there is nothing on record to show as to why Suleman went to the Dera of Sultan and what was the necessity to make confession. None of the persons present in the Baithak attempted to- apprehend Suleman. Rab Nawaz admitted that he did not go to the police station to lodge the report. He further admitted that he did not disclose about the confession of Suleman either to the Labardar or to the other inhabitants of the village. He was married with the sister of the deceased and the complainant. In case any confession had been made before him, then naturally, he would have immediately gone and informed the brothers of the deceased. On the contrary, he stated that one hour or so after the confession, he went to Baland Adda where police met them. According to Ghulam Habib/P.W.2, Suleman accused was arrested by the police at Baland Adda in his presence and later on Rab Nawaz also reached: there and then while in custody the appellant made confession. Needless to say that the confession made while the accused was in custody was inadmissible in evidence. Further more, the statements of both the witnesses are contradicted by the statement of P.W.8, according to whom at the time of arrest of Suleman, none from the complainant's side was present.

12. As far as medical evidence is concerned, it only denotes that the deceased lost his life. due to strangulation but it does not lead to the culprits.

13. Now we are left with the evidence of discovery of the dead body at the pointing of the appellant. Firstly, no independent witness or respectable of the locality like Lambardar or Councillor was produced to prove that the dead body was dug by the appellant Suleman or on his pointing. Secondly, Ghulam Habib complainant firstly stated that the dead body was disinterred from the pit by all of his brothers including himself, then he volunteered that it was pointed out by Suleman; while according to Rab Nawaz, it was Suleman who was first to dig out the earth, then the police asked others to dig out the dead body. Thirdly, the dead body was allegedly recovered from an open place which was at a distance of 22 karms from the Baithak of Suleman. Fourthly, the Investigating Officer admitted that Patwari for the first time was summoned on 26-1-2001 for preparation of site plan and the place of burial of deceased was not shown to him on that day. Then the Patwari was again summoned on 17-2-2001 and on that date the Patwari was shown the pit from where the dead body was recovered. Had there been any recovery from any pit, the Investigating Officer would not have missed to show the most important piece of evidence to the Patwari. The argument of the learned counsel for the complainant that the P. Ws. had no motive to implicate the appellants is invalid. Muhammad Aslam/P. W.4 stated that inter-engagements of the children of appellants were without their consent and that the brothers wanted to marry their children with the children of Abdul Aziz deceased. He also admitted that the land of the deceased was now in possession of their mother. Ghulam Habib complainant during cross-examination stated that he did not know as to where the mother of Mst. Zeenat lived, whether in Mianwali or somewhere else. Then he had to admit that he was present in the marriage of his brother with Zeenat and the Barat went to Chann Tehsil Noorpur. He further admitted that his sister was married with the brother of Zeenat. It is obvious that Ghulam Habib and Aslam wanted to deprive Mst. Zeenat Bibi of the land of the deceased. Their other brothers namely Ghulam Siddique, Ghulam Yasin and Akbar did not join hands with them.

14. The case-law cited by the learned counsel for the complainant is not applicable to the facts and circumstances of the instant case. In Zairullah's case (1997 SCMR 396), the confession was made before a Magistrate and not before the private witnesses. In the case of Muhammad Arshad (1992 SCMR 1187), the murder took place inside the house where the dead body was lying and the appellant remained unable to explain satisfactorily how the deceased was murdered in the same house. The facts and circumstances of Ahmad Bakhsh's case (PLD 2006 SC 267), wherein the Hon'ble Supreme Court refused to grant leave to appeal, are also different from that of the case in hand.

15. For what has been said above, we are of the opinion that the prosecution case is replete with doubts; hence, we allow this appeal and set aside the judgment passed by the learned trial Court. Both the appellants are acquitted of all the charges. Muhammad Suleman appellant would be released forthwith, if not required in any other case. Mst. Zeenat Bibi appellant is on bail. Her bail bonds are cancelled and the sureties are discharged.

16. The death sentence inflicted upon Muhammad Suleman appellant is not confirmed. The Murder Reference is answered in the negative. H.B.T./M-696/L Appeal allowed.