1997 P Cr (PLP)

MUHAMMAD AQIL MIRZA, J.

Learned Additional Sessions Judge, Multan vide judgment, dated 20-6-1992 convicted Allah Ditta alias Gana under section 302, P.P.C. for the murder of Mst. Noor Bibi. He has been awarded sentence of death with fine of Rs.20,000 and in default of payment thereof to further undergo 2 years' R.I. Half of the fine, if recovered is to be paid to the legal heirs of the deceased. This judgment shall dispose of Murder Reference No.344 of 1992 and Criminal Appeal No. 166 of 1992 filed by Allah Ditta against the conviction and sentence recorded against him.

2. Allah Ditta alias Gana resident of village Saumann, Police Station Shujabad is accused of murdering Mst. Noor Bibi on 5-8-1989 at about 1-30 ,a.m. on account of her refusal to develop illicit relations with him. F.I.R. Exh. P.K. was lodged by Ghulam Yasin P.W.3, the husband of the deceased lady, on the same day at about 5-30 a.m. It was alleged by him in the F.I.R. that he was married with Mst. Noor Bibi about 22 years ago and out of this wedlock they had five sons and four daughters. Allah Ditta alias Gana allegedly lived in the nearby house of Mst. Bhrawan who is a widow. At about midnight Shakir Muhammad son of Allah Wasaya (brother of his wife) and Ghulam Sarwar son of Allah Wasaya (husband of his sister) were staying with the complainant in his house and the entire family and the aforesaid guests were sleeping, when at about 1-30 a.m. they heard the cries of Mst. Noor Bibi, which attracted the complainant, Shakir and Ghulam Sarwar. They saw that Allah Ditta was slaughtering Mst. Noor Bibi with a knife. Mst. Noor Bibi while trying to catch the knife was injured on the right hand. The accused was identified by the aforesaid three persons in the light of the torch, which was carried by the complainant. They tried to catch hold of the accused but he ran away with the knife. Mst. Noor Bibi died on account of the injuries inflicted to her. The motive as stated in the F.I.R. is that Allah Ditta invited Mst. Noor Bibi for adultery but he was rebuked with abuses, which was taken as insult and resultantly she was murdered by way of revenge by the accused person.

3. The blood-stained earth was obtained vide recovery memo. Exh. P.A., which was thumb-marked by Iqbal Hussain P.W.1. The blood-stained cot P.1, blood-stained pillow P.2 and blood-stained Chadar P.3 were also secured from the place of occurrence through recovery memo. Exh. P.B. which was also thumb-marked by P. W. l. The blood-stained Chadar P.4 and shirt P.5 worn by the accused person at the time of his arrest were taken into possession on 7-8-1989 vide recovery memo. Exh. P.C. The blood-stained knife P.6 was also recovered from outside the Kotha of Mst. Bhrawan vide memo. Exh. P.D. on the pointation of the accused person on 7-8-1989. These recovery memos are attested by Abdul Aziz P.W.2.

4. P.W.3 Ghulam Yasin complainant and P.W.4 Ghulam Sarwar appeared as eye-witnesses of the occurrence. Ghulam Yasin stated that deceased Mst. Noor Bibi was his wife, Allah Ditta accused used to live in the nearby house of Mst. Bhrawan. ]He tried to persuade Mst. Noor Bibi for adultery but in return he got abuses from her. He further stated that Shakir Muhammad and Ghulam Sarwar P.Ws. were staying in the house as guests on the fateful night. At about 1-30 a.m. he woke up on hearing the shrieks of Mst. Noor Bibi and in the light of torch he saw that Allah Ditta was causing injuries on the neck of his wife. Shakir Muhammad and Ghulam Sarwar also saw this occurrence. They tried to go near the accused person but he threatened them with dire consequences and he succeeded in running away with the knife. The motive stated by him in his deposition is the sama what is mentioned in the F.I.R. After the occurrence he went to the police station and lodged the F.I.R. It was admitted by him in the cross-examination that Shakir Muhammad and Ghulam Sarwar were his brothers-in-law. He denied the suggestion that the accused has been falsely involved at the instance of Shaukat P.W. and he himself killed his wife. He admitted that he did not produce the torch to the police as the police did not ask for the same.

5. P.W 4 Ghulam Sarwar reiterated the story told by Ghulam Yasin complainant. In his cross-examination he admitted that his wife and wife of Shakir Muhammad are real sisters. He also admitted that his house is situated at a distance of one square from the place of occurrence. He denied the suggestion that the accused has been involved at the instance of Shaukat Lumbardar and the complainant and the accused were at daggers drawn. He also denied that Mst. Noor Bibi in fact had been killed by her husband

6. The post-mortem examination conducted by Dr. Abdul Aziz Shah Bokhari (P.W.5) disclosed following injuries sustained by Mst. Noor Bibi who was about 40 years of age: -- (i) An incised wound 11 c.m. x 3 c.m. x bone deep on front of neck. More upward on right side. (ii) An incised perforating wound 3 c.m. x 1 c.m. on left lateral side of neck, just in the middle of neck. (iii) An incised perforating wound 2 c.m. x 1 c.m. backward to injury No.2. (iv) An incised wound 1.5 c.m. x 1.2 c.m. on the inner side of right thumb at middle phalanx. It was only skin deep. In the opinion of the doctor the death was caused by the cut-throat injury No.

1. This injury was sufficient in the ordinary course of nature to cause the death. Injuries Nos. 2 to 4 were simple in nature and all the injuries had been caused with sharp-edged weapon. The probable time between the occurrence and the death was 15 minutes and between death and post-mortem was 12 hours. Exh. P.E. is the carbon copy of the post-mortem report. Injury statement Exh. P.F. and inquest report Exh. P.G. were also signed by him.

7. P.W.6 Muhammad Idrees F.C. took the blood-stained articles to the office of the Chemical Examiner and delivered the same on 16-8-1989. The site plan Exh. P.H., Exh.P.H./1 and Exh.P.H./2, were prepared by draftsman Shaukat Hayat P.W.7 on 9-8-1989. He stated in the cross-examination that there were only two outer boundary walls of the house where the occurrence took place. P.W.8 Manzoor Ali, A.S.-I. was posted as Moharrar. The sealed parcel containing blood-stained earth was kept by him in the Mall Khana on 5-8-1989. On 7-8-1989 he received parcel containing knife and the clothes. These articles were sent by him on 15-8-1989 to the Chemical Examiner through P.W.6. The dead body was taken to the hospital for post-mortem examination by P.W.9 Zafar Iqbal F.C. or. 5-8-1989. The Kameez P.7, Shalwar P.8 and Dopatta P.9 which were worn by the deceased were taken into possession vide recovery memo. Exh. P.J.

8. Malik Mehboob Ahmad Awan, S.-I./S.H.O. appeared as P.W.10. He stated that statement Exh. P.K. was made by the complainant before him. He proceeded on the spot and obtained blood-stained earth vide recovery memo. Exh.P.A. The injury statement Exh. P.F. and inquest report Exh. P.J. were prepared by him. He also took into possession the cot, the pillow and Chadar vide recovery memo. Exh. P.C. He recorded .the statements of P.Ws. and arrested the accused person on 7-8-1989. The blood-stained clothes of the accused (Chadar P.4 and Kameez P.5) were got removed from his person and taken into possession vide Exh. P.C. The blood-stained knife was also recovered by him on the pointation of the accused vide recovery memo. Exh. P.D. He stated that the P.Ws. had told him that they had identified the accused in the torch light but he did not take the torch into possession.

9. The accused in his statement recorded under section 342, Cr.P.C. denied that he murdered Mst. Noor Bibi. He also denied the recovery of the knife and blood-stained clothes. He stated that he had been involved in the case on account of his enmity with Shaukat Lumbardar whose brother Liaqat had abducted one of his relative (Mst. Iqbal Mai). A writ petition was also filed against Liaqat and others in pursuance whereof case was registered against Liaqat etc. In defence D.W.1 Muhammad Anwar, S.I. was produced. He produced copy of the supplementary statement (Exh. D.B.) of Ghulam Yasin complainant recorded by him on 30-10-1989. D.W.2 Muhammad Ayub and D.W.3 Munir Hussain stated that at 10-30 p.m. when they were coming from Majlis Aza they saw that Yasin and Shaukat were looking for the tracks of the killers of Mst. Noor Bibi in the graveyard.

10. Learned trial Court placing reliance on the ocular evidence of Ghulam Yasiri and Ghulam Sarwar and the recoveries of the blood-stained articles including the knife and the blood-stained clothes worn by the accused person convicted Allah Ditta under section 302, P.P.C. for having murdered Mst. Noor Bibi and sentenced him to death.

11. Learned counsel for the appellant has vehemently argued that the learned trial Court has not properly appreciated the evidence on record. It is submitted that Ghulam Sarwar and Shakir Muhammad who have been cited as eye-witnesses in the F.I.R. are the planted witnesses. Both of them are brothers- in-law of the complainant. There was. no reason, According to the learned counsel, that they should have been in the house of the complainant during the fateful night. It is further submitted by him that the motive as alleged, in the normal course of human conduct, cannot be the cause for the murder. It is argued that even if the accused had asked the lady for the sexual intercourse, her refusal and even abuses in return cannot possibility give affront to such a person to commit her murder. The motive even if correct, according to the learned counsel, is too trivial in nature to provoke a man to commit a murder of married lady having 9 children. He has also argued that recovery of the blood-stained clothes allegedly worn by the accused person at the time of his arrest on 7-8-1989 is patently fake. He has further argued that in totality of the circumstances the probability is that husband of the deceased was suspicious of carnal relationship between Mst. Noor Bibi and the accused person who is an unmarried person, and in pursuance thereof he committed the murder of his wife on the one hand and roped in the appellant as murderer on the other with the support of Shaukat Lumberdar who appears to have some sort of ill-will against him.

12. Learned State counsel has supported the conviction and sentence passed by the learned trial Court.

13. We find lot of force in the submission made by the learned counsel for the appellant that there was no plausible reason of presence of Ghulam Sarwar P.W.4 in the house of the complainant at the time of the occurrence. This is admitted position that he has 10 children and he lives with his family in his own house at a distance of one square from the place of occurrence. He stated that he slept in his house but on the fateful night he slept in the house of Mst. Noor Bibi. No convincing explanation is available on record to justify his presence in the house of his brother-in-law at 1 O'clock in the night. It is, therefore, highly doubtful that he witnessed the occurrence. This witness otherwise also does not appear to be truthful. He stated in the cross-examination that there was no electricity in the village. He emphatically denied the suggestion that electric light is available in the village. However. Ghulam Yasin complainant in his cross-examination has admitted that there are electric poles in the village at a small distance from his house. Being brother-in-law of the complainant, he is not an independent witness either. We have, therefore, come to the conclusion that it will not be safe to rely on the testimony of this witness.

14. So far as Ghulam Yasin complainant is concerned, it is also doubtful that he saw the occurrence. He is a labourer but he was having a mango garden on lease at the relevant time. It is admitted by him that the mango crop was ripe. In all probability he should have been in the garden and not in his house at that time. Had he been present at the time of occurrence then it is not believed that he with his two brothers-in-law would have allowed the assailant to escape from the scene. His testimony to the extent that he saw the occurrence, is also excluded.

15. The most important pieces of evidence which could incriminate the appellant are the blood-stained clothes which were found worn by him at the time of his arrest and the blood-stained knife which was recovered on his pointation. He was arrested on 7-8-1989 i.e. 2 days after the occurrence. It is unimaginable-that a murderer would keep on wearing the blood-stained clothes for two days, as if he wanted to make a gift thereof to the police for using the same against him. The blood-stained clothes have been obviously implanted to strengthen the prosecution case. Similarly the recovery of blood-stained knife is not free from doubt. It has been recovered from outside the Kotha of Mst. Bhrawan. According to the prosecution story, after the occurrence the appellant ran away with the weapon of offence. The house of Mst. Bhrawan from where the recovery of knife has been effected is close-by and it is not expected that a murderer after escape would go to a nearby house and conceal the weapon of offence there. Apart from that, he had ample time to wash of the blood-stained clothes and do away with the knife to some safer place. In this view of the matter, the recoveries aforesaid cannot be relied upon.

16. The complainant has admitted in the cross-examination that Shaukat is Lumbardar and he accompanied him to the police station. The Investigating Officer/S.H.O. also stated that complainant was accompanied by Shaukat Lumbardar and that he remained associated in the investigation. The appellant was produced before him at the Dera of Shaukat in the afternoon. Therefore, Shaukat Lumbardar appears to be the wise man helping the complainant. It is admitted by Ghulam Sarwar P.W. that Liaqat is brother of Shaukat Lumbardar: He denied the suggestion that Liaqat had kidnaped the wife of Shabbir, the relative of the accused. He, however, stated that in fact 20/25 days ago the wife of Shabbir was abducted by Liaqat and he did not know anything else about the past. In the presence of this evidence on record, possibly there was enmity between Liaqat and his brother Shaukat Lumbardar on the one hand and the appellant whose relative had been abducted by Liaqat, on the other.

17. The complainant has nine children, five sons and four daughters and the marriage took place 22 years back. None of the children has been examined or produced in the witness-box, though they were the natural witnesses. It can be safely assumed that some of children would be of sufficient age of understanding and they could have narrated the occurrence but they have not been produced. Similarly, Shakir Muhammad eye-witness has also been given up as having been won-over.

18. The evidence with regard to motive may now be discussed. Apart from the hearsay evidence of P.W.3 and P.W.4 there is nothing on the record to show that the appellant had invited the deceased for adultery and in return he was rebuked by her. It is stated in the F.I.R. that she was persuaded for the adultery two days before the occurrence. In the supplementary statement of the complainant recorded on 30-10-1989 vide Exh. D.B., an improvement was made that the lady had told them (complainant, Ghulam Sarwar P.W. and Shakir Muhammad) on the night of occurrence that the appellant had asked her for the 4adultery two days ago as they in turn told her that they would talk about it with the appellant in the following morning but she was murdered on the same night. It is stated in the F.I.R.-- It appears that the appellant who is an unmarried young man living in the neighbourhood had illicit relations with the deceased lady, which had brought bad name to the family. The possibility cannot be ruled out that she was killed by the husband and the appellant was involved for her murder with the help of the Lumbardar aforesaid.

19. For what has been discussed above, we have come to the conclusion that the prosecution has failed to prove beyond all reasonable doubt that Allah Ditta appellant had committed the murder of Mst. Noor Bibi and the benefit of doubt has to be granted to him. Consequently, we allow Criminal Appeal No.166 of 1992 and set aside the impugned conviction and sentence recorded against Allah Ditta alias Gana appellant. He is acquitted of the charge in question. He shall be released from the jail forthwith, if not required to be detained in any other case.

20. Murder Reference No.344 of 1992 is answered in negative and the sentence of death sought to be confirmed is hereby set aside. Death sentence is not confirmed. N.H.Q./A-95/L Appeal accepted