1975 P Cr (PLP)

(2) Another incised wound 7 x ' x bone below J' of injury No. 1 piercing the ear also. (3) Lacerated wound 1 ' x X skin deep on the frontal ventricle of left forearm near wrist‑joint. (4) A contused wound 2 ' x 1/3' x muscle deep on the left tamporal bone just above the left ear. (5) Contused wound 2' x ' x bone deep on the palm of right hand. (6) A contused wound occupying the basis of little and ring fingers of right hand 1 ' x 1/3' x bone deep. (7) An incised wound 7' x 1/3' x bone deep on the lower surface of right upper arm. Injuries Nos. 1, 2, 5 and 7 were found grievous and the others were simple, caused by a sharp‑edged weapon. Their duration was 3 to 4 hours.

4. The appellant when examined under section 342, Cr. P. C. denied the prosecution allegations and stated that he was falsely involved in this case due to enmity. However, he produced no evidence in defence.

5. In support of its case the prosecution relied upon the statement of Mst. Zubeda (P. W. 10) as an eye‑witness. The prosecution also produced Ghulam Hussain as Vajtakkar witness. However, he has not been believed by the trial Court. The prosecution produced Sajjad Ali Shah (P. W. 12) and Aitbar Khan in order to prove the alleged extra‑judicial confession made by the appellant before them. The recoveries' in this case are supported by Sajjad Ali Shah, Nazar Muhammad P. Ws. and Aitbar Khan in addition to the Investigating Officer. In support of the motive in this case the prosecution produced Lajwar, Riaz and Mst. Zubeda P. Ws. The trial Court believed the prosecution version and convicted and sentenced the appellant as mentioned above.

6. Mst. Zubeda P. W. is the most important witness in this case as she was admittedly present in the house at the time of occurrence. She is an injured eye‑witness. She is the daughter of the deceased Mst. Hakiman. She was of tender age at the time of the occurrence. According to the F. I. R. she was 10/12 years old. No age is indicated by the doctor who medically examined her. In other words, her medical examination is silent about her age. Before the trial Court she is shown as 14 years of age. It is further an admitted fact that at the time of occurrence, she had not attained puberty. Thus, we find that there is no material on the record to show her exact age. It is however, admitted by both sides that at the relevant time she was of tender age. As mentioned earlier, her presence on the spot is admitted even by the defence. The central point, however, in this case is whether she had identified the assailant or not it is vehemently argued by the learned defence counsel that till 30‑9‑1971, the exact particulars of the murderer were not known the F.I. R. was lodged by Ziauddin P. W. on 21‑9‑1971 at 10 a.m. This report is com pletely silent about the assailant and the motive. Ziauddin P. W. claims to be the first person to reach the place of occurrence. He saw both Mst. Hakiman and Mst. Zubeda lying unconscious in injured condition. It is the prosecution's own case that Mst. Zubeda P. W. was raising cries which attracted the P. Ws. and others to the place of occurrence. Riaz P. W., who is the son of Mst. Hakiman deceased from her earlier husband, also reached the place of occurrence alongwith others. In cross‑examina tion, Riaz P. W. has stated as under:‑ "Ziauddin P. W. enquired from me as to who could be the assailant. Ghulam Husain P. W. informed Ziauddin that it was Ismail accused who was seen by him running away from the spot carrying a blood stained toka and wearing blood‑stained clothes. Sardar and Ibrar Ahmad P. Ws. had also confirmed the above position. I also informed Ziauddin P. W. that the accused had committed the murder because of the dispute about the hand of Mst. Zubeda." Thus, it is clear that Ziauddin P. W. was informed on the spot that it was the present appellant who had committed the murder for the reason that the deceased had refused to marry her daughter Mst. Zubeda P. W. with him. Similarly. Mst. Zubeda P. W. had stated before the Committing Magistrate that on her alarm Ziauddin, Sardar Ali, Rashid Ahmad and Sabir P. Ws. came to the spot and she narrated the incident to them. She tried to deny this fact before the trial Court, but she has been duly confronted with her statement before the Committing Magistrate. Ziauddin P. W. himself stated before the Committing Magistrate that Mst. Zubeda P. W. told him the name of her assailant. He was also duly confronted with his statement made before the Committing Magistrate. Thus, it is clear from the statements of various P. Ws. that Ziauddin who before lodging the F. I. R. had reached the place of occurrence, was informed by more than one witness that the present appellant had committed the murder because of the alleged motive for refusing the hand of Mst. Zubeda P. W. 4 to him. However, as stated earlier, the name of the present appellant is not directly or indirectly mentioned in the F. I. R. as the assailant. The motive is also missing from the F.I. R. If Mst. Zubeda P. W. had been the appellant causing injuries to the deceased and herself and he had conveyed the same to Ziauddin P. W. and others there is no reason why Ziauddin did not mention the name A the appellant in the F. I. R. It may be mentioned here that according to the doctor who medically examined Mst. Zubeda P. W., she was in complete senses when she was taken to the Hospital for medical examination and that was the reason that the doctor had not mentioned in her medical examination report that Mst. Zubeda was unconscious. If she had informed Ziauddin about the appellant, then the latter could not omit to mention the same in the F. I. R. The fact, however, remains that the F. I. R. is completely silent about the particulars of the murderer. Same is the position of the alleged motive. As indicated earlier, to prove motive the prosecution has produced Lajwar (P. W. 8) husband, Riaz (P. W. 9) son and Mst. Zubeda (P. W. 10) daughter, respectively, of the deceased. The alleged motive is not mentioned in the F. I. R. although Ziauddin P. W. before lodging that report had reached the place of occurrence and claims to have contacted Riaz and Mst. Zubeda P. Ws. The leaned State counsel has not been able to explain the omission of these two most material circumstances from the F. I. R. After going through the relevant material and hearing the counsel for the parties, the only possible inference in these circumstances is that the omission of the name of the assailant and the motive from the F. I. R. crawly chows that Mst. Zubeda and other P. Ws. did not see and identify the actual assailant. Another circumstance which supports this conclusion is the inquest report prepared by S. I. Abdul Razzaq. He has stated that the inquest report was prepared by him on the facts supplied to him by the P. Ws. and other persons present on the spot. The brief facts of the case given in this inquest report by this Police Officer are also silent about the particulars of the assailant and the motive.

7. Another material circumstance which has not been satisfactorily explained icy the prosecution is the conflict between the medical evidence and the ocular evidence. Dr. Mrs. Mumtaz Bhatti who medically examined Mst. Zubeda P. W. found two types of injuries on her person caused by two kinds of weapons. According to the statement of Mst. Zubeda P. W. the appellant was armed with a toka with which he caused all those injuries. We have ourselves examined this weapon and feel that even the blunt side of this toka could not cause contused wounds as found on the person of Mst. Zubeda P. W. The learned State counsel has also admitted before us that there is no material available on the record to explain this conflict. Thus, the medical evidence so far as the injuries of Mst. Zubeda P. W. are concerned, clashes with the ocular testimony of Mst. Zubeda P. W. herself. In this situation, although Mst. Zubeda P. W. being an injured witness, her presence on the spot at the relevant time cannot be doubted, yet in view of the above‑mentioned flaws in the prosecution 'base it can safely be inferred that she did not identify the assailant. The possibility, therefore, that the occurrence took place in the early hours of the morning when it was quite dark, cannot be excluded. Since her testimony conflicts with the medical evidence and other circumstances indicated above, we do not feel safe to rely upon her testimony.

8. The prosecution also relied upon the extra judicial confession allegedly made before Sajjad Art Shah, Chairman of the People's Party of the at ea and Aitbar Khan P. Ws. Sajjad Ali Shah P. W. has stated that he was sitting in the office of People's Party with Aitbar Khan P. W. when the present appellant came there and confessed before them how he had been living in the house of the deceased and paying her all his earnings for getting the hand of Mst. Zubeda P. W. and that as the deceased had put forward demands which were impossible to be fulfilled by him he had murdered her. He requested the witness that he should be produced before the police. According to him all the three started for the police station but on the way he learnt that the police was present in Zafar Colony. Accordingly. Sajjad Ali Shah took the appellant to Zafar Colony and produced him before the police there. He has admitted in cross‑examination that the appellant was not known to him before confession. He has further stated that he did not know even his name and that he came to him for the first time on the day of confession and disclosed his name to him. He has further stated as under:‑ "I was aware of the murder of Mst. Hakiman and had even visited the spot previously. When the accused approached me. I did not know that he had committed the murder. The murder of Mst. Hakiman came to be known as a result of the confession of the accused. I took the accused to the police and told them that the murderer of Mst. Hakiman had been found out gas a result of the confession of the accused." Aitbar Khan P. W. on the other hand has stated in examination‑in‑chief as under:‑ "I and Sajjad Shah P. W. then took the accused to Police Station City and produced him before the police there." Thus, according to this witness, the accused was produced before the police in the Police Station City, while according to Sajjad Ali Shah, the accused was produced before the police in Zafar Colony. Another improvement made by Aitbar Khan in hip statement is that according to him, the accused after getting frustrated, borrowed a dagger from Nazar Muhammad Butcher on the pretext of slaughtering a cow. The statement of Sajjad Ali Shah is silent about borrowing the danger from Nazar Muhammad Butcher. In his supplementary statement Sajjad Ali Shah P. W. has stated that Aitbar Khan P. W. used to live in his house as a tenant. On the other hand, Aitbar Khan P. W. himself has stated as under:‑ "I live in a house rented from a person whose name I do not remember. I am living there for the last many years. I am paying Rs. 20.00 as rent

He is a barber. My house is at" a distance of furlong from the office of Sajjad Shah." It is an admitted fact that Sajjad Ali Shah is not a barber, but a Sayyed by caste. Thus, there is direct conflict between these two witnesses as regards the actual residence of Aitbar Khan P. W. is concerted. Further we find that Riaz P. W. in his statement has admitted as under:‑ "Sajjad Ali and Aitbar Khan P. Ws. also arrived there and stated that they would get the accused arrested and convicted. Sajjad Ali Shah P. W. had been prosecuting this case." The above‑mentioned admission by the son of the deceased goes a long way to show that even on the first day of the occurrence when all these witnesses reached the place of occurrence, these two alleged witnesses of confession stated that they would get the present appellant arrested and convicted. After this admission, the defence suggestion that the evidence regarding extra judicial confession was concocted subsequently, cannot be ruled out. Further we observe that if it was known to the prosecution that the present appellant had caused the injuries to Mst. Hakiman deceased and Mst. Zubeda P. W. on 27‑9‑1971, he could not be expected to be loitering near the place of occurrence and thus expose himself for arrest by the police. Further we find that according to Aitbar Khan P. W. on the day of occurrence he was on leave, although he was not suffering from any ailment, but had obtained leave just by the way. He was an employee in the mill. Remaining on leave without any sufficient cause for a man of his type in these hard days is rather unusual. Further he has admitted that:‑ "I do not remember why and in what connection I visited the office of Sajjad Shah when the accused appeared there. I had gone there in connection with a personal matter." After going through the relevant material available on the record, we have reached the conclusion that the alleged extra judicial confession made by the appellant before Sajjad Ali Shah and Aitbar Khan P. Ws. is rather doubtful and it is not safe to rely upon the same.

9. The last piece of evidence relied upon by the learned State counsel in support of the conviction of the appellant is the recovery of toka (Exh. P. 1) and shirt (Exh. P. 2). The recovery of these two articles was effected on 30‑9‑1971. These recoveries are supported by Sajjad Ali Shah, Aitbar Khan and Nazar Muhammad P. Ws. in addition to the Investigating Officer. The occurrence as mentioned above, took place on 27‑9‑1971. Mst. Zubeda P. W. had stated before the Committing Magistrate that the police in the evening of the day of occurrence, namely, 27‑9‑1971, showed her a dagger and she told the police it was the same with which the accused had injured her mother. She has been duly confronted with this statement. Ziauddin P. W. had stated before the Committing Magistrate that toka (Exh. P. 1 was lying in the courtyard when they reached there. He has been duly confronted with this statement. Another recovery witness was similarly confronted with his earlier statement made before the Committing Magistrate. Thus, it is abundantly clear that the toka was already with the police immedi ately after the occurrence. In order to complete the sequence the police has shown its recovery on 30‑9‑1971 after the appellant had made extra judicial confession before Sajjad Ali Shah and Aitbar Khan who produce him before the police and immediately thereafter he got the toka recovered from a cotton field. Nazar Muhammad P. W: who is a butcher, claims to be the owner of this toka. According to him, it was given to the appellant about 6/7 days before the occurrence on the ground that he was to slaughter a cow. The appellant was living at a distance of one and a half miles from the house of this witness. He did not know the father's name of the appellant. It is an admitted fact that in order to slaughter a cow a regular licence is required. The appellant being an ordinary employee of the mill could not in normal, circumstances be expected to slaughter a cow. The way Sajjad Ali Shah has narrated the recovery of this toka is that he and Aitbar Khan P. W. produced the appellant before the police in Zafar Colony. The police arrested him and made the witnesses to sit there. In the mean time, a Qassab came there. Thereafter the appellant took them to a cotton field and got recovered toka (Exh. P. 1). Thus, it was after the arrival of this Qassab Nazar Muhammad P. W. that the recovery of this toka was effected. In these circumstances, the defence suggestion that Nazar Muhammad Qassab himself may have placed the toka in the cotton field cannot be altogether ruled out. As regards the blood‑stained shirt (Exh. P. 2) of the appellant, it is suffice to say that according to one witness the colour of this shirt was green while according to Ghulam Hussain P. W. its colour was white. After going through the relevant material regarding the recovery of these two articles, we are not convinced about the recovery of toka (Exh. P. 1) and shirt (Exh. P. 2).

10. The learned counsel for the State when confronted with the above situation, has tried to argue that the prosecution case may be doubtful up to 30‑9‑1971, but after the extra judicial confession and the recovery of blood‑stained toka, the prosecution case stands established against the present appellant. We have carefully considered this aspect of the case. It is clear that till 30‑9‑1971 it was mere suspicion against the appellant and there was no positive evidence available to the prosecution to connect the appellant with the crime. Once an element of doubt is found in the prosecution case, the benefit of that doubt must be given to the accused As discussed above, we are not convinced with the alleged extra judicial confession and the recovery of toka (Exh. P. 1) and shirt (Exh. P. 2). Thus the element of doubt or suspicion which admittedly was there in the prosecution case, has not been resolved on 30‑9‑1971 as contended by the State counsel. The result is that the prosecution has not been able to prove the guilt of the appellant beyond reasonable doubt. He is, therefore, entitled to the benefit of that doubt.

11. For the foregoing reasons, we accept this appeal, set `aside the convictions and sentences of the appellant and acquit him. He shall be set at libery forthwith if not required in connection with any other case. Appeal accepted.