1969 P Cr (PLP)

A. T. M. Masud Deputy Legal Remembrancer and Mudabbir Hossain for the State. AHSANUDDIN CHOUDHURY, J.‑This is a Reference under sec tion 374 of the Code of Criminal Procedure by the Sessions Judge of Jessore for confirmation of the sentence of death passed on the condemned‑prisoner Nawsher Ali (hereinafter called the prisoner) under section 302 of the Pakistan Penal Code. The prisoner has preferred an appeal against his sentence of death. Both the Reference and the appeal having been heard together we are disposing of the same by this judgment. In short the prosecution case was that the prisoner Nawsher Ali brought an unknown woman aged about forty to his house at Kodla on 9th Chaitra 1374 B. S. corresponding to 23 3‑

68. The woman was there for two three days and then she was allowed to go away. Again on 16th Chaitra 1374 B. S. corresponding to 30‑3‑68 the prisoner brought the said woman and kept her beneath a mango tree in the outer courtyard of his house and assaulted the woman brutally by fists and blows. He also threw the woman on the ground, pulled her up by her hair and then dashed her head against the ground and sat heavily on her chest. For those brutal assaults the woman was groaning but still on Sunday the 17th Chaitra 1374 B. S. corresponding to 31‑3‑68 the prisoner again beat the woman in the same manner as on the 16th Chaitra as a result of which she died at 5 p. m. The murderous assault on the woman was seen by P. W. 2 Nurul Islam Mina P. W. 3 Fazlur Rahman, P. W. 4 Abdul Majid, P. W. 6 Abdul Khaleque Molla, P. W. 7 Hossain Ali Shaikh and P. W. 10 Dabir Molla. The dead body which was kept concealed under a heap of straw near the kitchen of the prisoner was brought out from there by the witnesses. P. W. 1 Ahmed Sardar along with P. W. 2 Nurul Mina, P. W. 3 Fazlur Rahman P. W. 4 Abdul Majid and P. W. 5 Idris Molla went to Thana and lodged the Ejahar recorded by P. W. 15 A. S. I. Abdul Bari who visited the locality at about 1‑30 a. m. on 1‑4‑68 and took preliminary steps. P. W. 16 Shaikh Nuruzzaman took up the investigation of the case and visited the locality at 6 a.m. on 1‑4‑

68. He held inquest on the dead body of the woman, seized alamats, sent the dead body to morgue for post mortem examination under police escort. He examined witnesses and on completion of the investigation submitted the charge- sheet against the prisoner under section 302 of the Pakistan Penal Code on 30‑4‑

68. Having been committed to the Court of Session after the preliminary enquiry by a Magistrate, 1st Class, the prisoner faced the trial on a charge under section 302 of the Pakistan Penal Code on the allegation that he committed the murder intentionally or knowingly by causing the death of the woman. The prisoner pleaded not guilty. His defence was that he had been implicated in this case on false allegations by P. W. 1 Ahmed Sardar in collusion with his men due to their grudge with the prisoner on account of land dispute. His further defence was that the woman was a mad woman who used to be stoned every now and then by village urchins and on the day of occurrence also some lads including some of the prosecution witnesses pelted the woman with stones and caused her death. Mr. Rasheed learned Advocate for the prisoner has strenuously contended that the prosecution case is not only highly improbable but also absurd because it is very difficult to believe that the prisoner perpetrated his crual and brutal acts of assaults on the unknown and unidentified woman during two consecutive days and made a public demonstration of the offence of the cold blooded murder without the least protest from anybody of the locality. It is also contended that the learned Sessions Judge has not considered the prosecution case in the light of probability. 1n this case P. W. 2 Nurul Mina, P. W. 3 Fazlur Rahman, P. W. 4 Abdul Majid, P. W. 6 Abdul Khaleque, P. W. 7 Hossain Ali and N. W. 10 Dabir Molla deposed as eye‑witnesses. P. W. 2 Nurul Mina stated that the prisoner brought an old woman to his 'Bari' on 9th Chaitra and after keeping her for 2/3 days in his house he had let her go and again on 16th Chaitra he brought the said woman to his house. He saw at about 12 or 1 p.m. on 16th Chaitra that the prisoner had sat on the chest of the woman gave her fists and blows and dashed her head against the ground, pulled her by the hair and threw her on the ground under the `Amtola' towards the North of the house and again on 17th Chaitra at about 10 or 10.30 a.m. he saw the prisoner beating the old woman in the similar manner and at the same place while he was going to the Beel and while he was returning home from the Beel at about 2 p. m. he saw the prisoner still beating the old woman as before and at about Asar prayer time on the same date, he heard that the woman had expired. He then went to the house of the prisoner being accompanied by P. W. 3 Fazlur Rahman, P. W. 4 Abdul Majid and P. W. 5 Idris Mollah. They did not at first find the old woman or the dead body. On an enquiry the prisoner told them that the old woman was not there, then they made a search and thereafter discovered the dead body of the woman from under the heap of straw lying in front of the kitchen. He also saw marks of violence and injuries on the dead body. From the lower Court's evidence it appears that he did not say anything in court below about the assault on the woman at about 2 p.m. on 17th Chaitra 1374 B. S., his going to the house of the prisoner being accompani ed by P. Ws. Fazlur Rahman, Abdul Majid and Idris Mollah, nor regarding the search of the dead body and its discovery from under the heap of straw. This omission on material point is certainly contradiction and it becomes difficult to believe this witness inasmuch as he appears to have made sufficient improve ment upon the prosecution case in the Court of Session. P. W. 3 Fazlur Rahman stated in his evidence only about the assault of the 16th Chaitra. He said nothing about the assault of the 17th Chaitra 1374 B. S. though he stated that he went to the house of the prisoner on the 17th Chaitra after hearing about the woman's death and saw the dead body near the ` Wolo Khar' (some kind of straw). He did not therefore say that the dead body was found concealed under the heap of straw and discovered it therefrom. P. W. 4 Abdul Majid was also silent regarding the alleged assault of the 17th Chaitra 1374 B. S. He, however, said that he went to the house of the prisoner having heard that the woman had died and discovered the dead body of the woman from under heap of straw. He has, however, been contradicted by the evidence of P. W. 16 Nuruzzaman, the Investigating Officer. it is, therefore not safe to rely on his evidence inasmuch as he did not hesitate to change his version to support the prosecution, story. P. W. 6 Abdul Khaleque testified to the assaults of the 16th Chaitra but he was like the foregoing witness silent about the alleged assaults of the 17th Chaitra 1374 B. S. He, however, introduced a story of motive saying that on an enquiry from Hakim, brother of the prisoner he came to know that the woman had stolen Rs. 300 from his sister's house in village Bahirgram, but except his evidence there is no other evidence in support of this motive. We, therefore, find ourselves unable to believe the evidence of this witness. He claims to have gone to the house of the prisoner on 17th Chaitra 1374 B. S. at about Asar prayer time on hearing about the death of the woman and found the dead body lying by the side of the `Wollo Khar'. The next eye‑witness is P. W. 7 Ali Hossain who deposed that he witnessed the assault on the woman on both the days, i.e. the 16th and 17th Chaitra while he was going to a brick field. But he has been contradicted by the evidence of the Investigating Officer P. W. 16 Nuruzzaman. A witness who makes diverse v statements at different times can hardly be believe. The last eye‑witness is P. W. 10 Dabir Molla who stated only about the assault of 16th Chaitra 1374 B. S. The evidence of the eye‑witnesses discussed above shows that none of them except P. W. 2 Nurul Mina stated about the assault on the woman on the 17th Chaitra 1374 B. S. that is, the date on which the woman had died as a result of assault of the 17th Chaitra. The evidence of P. W. 2 Nurul Mina regarding the assault of 17th Chaitra on the woman by the prisoner cannot be relied upon as he was contradicted by his lower Court's evidence. There is, therefore, no evidence worth considering regarding the assault by the prisoner on the woman on the 17th Chaitra 1374 'B. S. The charge framed against the prisoner was that he on or about 17th Chaitra 1374 B. S. corresponding to the 31‑3‑68 at village Kodla committed the murder by intentionally or knowingly causing the death of an unknown woman aged about 40 years. But the evidence on record discussed above did not establish that charge against the prisoner. There is not only no evidence about the assault by the prisoner on the woman on the 17th Chaitra 1374

13. S., there is also . . . . discrepancy about the time of death of the woman. The prosecution case was that the woman died at about 5 p.m. on 17th Chaitra 1374 B. S. but the evidence of P. W. 10 Dabir Mollah in committing Court shows that he heard about the death of the woman at about 11 or 12 a.m. on the 17th Chaitra and in the Sessions Court he said that he had been to the house of r lie prisoner at about 8 p m on 17th Chaitra and found the dead h3dy of the woman while P. W. 11 Mujibur Rahman Molla, a resident of Bhirgram shows that the woman died at about 7/8 a.m. on 17th Chaitra 137‑1 B. S. 7 here is another discrepancy regard i1ig the place where the dead body was found. Two witnesses (P. Ws. 2 and 4) have said that they found the dead body concealed tinder a heap of straw but P. Ws. 3 and 6 have said that they found the dead body lying near the `Wollo Khar' (some kind of straw). The witnesses, therefore, contradicted one another regarding the place where the dead body was found. P. W. 16 Nuruzzaman, Investigating Officer found the dead body under a mango tree on the north side of the house of the prisoner. Ire the sketch map prepared by him, he has shown the position of the mango tree, the house of the prisoner and the place where he found the dead body. The mango tree under which the dead body was found is away from the heap of straw. In order to make the prosecution case consistent with what was found by the Investigating Officer in the locality the prosecution led evidence to the effect that the dead body was removed to the `Amtola" (under the mango tree) by a Chowkidar and others vide the evidence of P. W. 2 Nurul Mina, but no Chowkidar or Defadar was examined in the case and no one except P. W. 2 Nurul Mina has said about the removal of the dead body to the `Amtola' from, under the heap of straw. The defence has therefore rightly contended that the prosecution failed to prove that the dead body was kept concealed under a heap of straw by the prisoner. The defence contends that this case was engineered by P. W.1 Ahmed Sardar who lodged the First Information Report along. with P. W. 2 Nurul Mina, P. W. 3 Fazlur Rahman, P. W.4 Abdul. Majid and P. W. 5 Idris Molla of whom three are alleged eye witnesses. From the evidence of P. W. 1 Ahmed Sardar, it appears that he did not see any assault on the woman by the prisoner on any of the two days. He simply heard from the female members of his own house that the prisoner had beaten the woman and that the prisoner did not allow any one to give water to the woman to drink when the woman had wanted it. His evidence is as good as hearsay because no female members of his house, nor the person who was allegedly prevented from giving water to the woman has been examined. It appears that the alleged eye‑witnesses except P. W. 10 Dabir Molla are co -villagers of P. W. 1 Ahmed Sardar. P. W. 10 Dabir Molla is the co‑villager of the prisoner. But he is closely related to P. W. 1 Ahmed Sardar and the other alleged eye-witnesses, are closely inter‑connected with one another and they appear to be under the influence of P. W. 1 Ahmed Sardar. From the evidence: it also transpires that there is a khal running north to south having a breadth of 20 to 30 cubits. The house of the prisoner is to the west of the khal whereas the house of P. W. 1 Ahmed Sardar and the aforesaid eye‑witnesses except P. W: 10 Dabir Molla are on the east side of the khal. They claim to have seen the occurrence rear the house of the prisoner by crossing the Khal whereas there are houses of Sukur, Dulu, Arsahd and many others near the house of the prisoner but none of them is witness in this case. The prosecution chose only P. W. 10 Dabir Molla, who is a close relation of P. W. 1 Ahmed Sardar from the prisoner's neighbours. The prosecution has not assigned any reason for the non‑examination of some other disinterested neighbours of the prisoner. The Ejahar shows that marry notable persons of villages Baruni and Kodla went to the house of the prisoner and saw the deceased covered with Wollo Khar. But note a single notable person has been examined in this case. Most of the alleged eye‑witnesses are teen‑agers and only a few above

20. The learned Sessions Judge has observed that there might be neighbours but a particular occurrence might not be seen by any of the neighbours due to their pre‑occupation or they might be otherwise engaged. We are unable to appreciate this observa tion of the learned Sessions Judge because it is difficult to believe that all the close neighbours of the prisoner had pre occupation while the co‑villagers of P. W. I Ahamed Sardar had no pre‑occupation and had occasion to see the occurrence after coming across the khal. The reasons seem to be otherwise than what has been stated by the learned Sessions Judge. The evidence shows that P. W. 1 Ahmed Sardar entertained enmity and grudge against the prisoner. In his cross‑examination P. W. 1 had to admit that they had broken the huts of the prisoner and his family on assertion of public right over the khal. It was suggested to him that P. W. 5 Idris Molla, P. W. 7 Hossain Ali and others also took part in demolishing the huts of the prisoner. He evaded the suggestion saying that he did not remember if those people also had taken part in demolishing the huts of the prisoner. There is reason to hold that P. W. 1 Ahamed Sardar having grudge and enmity against the prisoner played a main part in this case and he along with his own men namely P. W. 2 Nurul Mina, P. W. 3 Fazlur Rabman, P. W. 4 A. Majid and P. W. 5 Idris Molla moved together to implicate the prisoner. As otherwise we see no reason why all these 5 persons together went to thana to lodge the Ejahar. The defence case was that the woman was a mad one and she used to roam about and also used to be stoned by the village urchins and on the date of occurrence the village urchins and some of the P. Ws. who are . . . . . . pelted stones to the woman and caused her death. This was suggested to the P. Ws. who did not however admit this. But the fact remains that the prisoner went to thana after the death of the woman to lodge Ejahar. That the person went to than‑ has been admitted by P. W. 2 Nurul Mina and P. W. 3 Fazlur Rahman. P. W. 2 Nurul Mina has said in his evidence that the accused Nawsher (the prisoner) was also present at the police station. P. W. 3 Fazlur Rahman said that he saw the accused Nawsher Ali (the prisoner) talking with Daroga at the thana this evidence shows that the prisoner went to thana before P. W. 1 and his party. But it appears that the prisoner was arrested at the thana and no First Information Report was received from him but after receiving the Ejahar from P. W. 1 and his party one G. D. was recorded by one contestable on the alleged information of the prisoner. The General Diary shows that on being enquired as to the cause of death the prisoner said that the woman died a natural death. It is difficult to believe such a story. If the woman had died a natural death as the G. D. shows then the prisoner had no reason to go to thana. It seems that the prisoner became a victim of circumstances created by his adversaries. Mere denial of the suggestion of the defence does not correspondingly prove the prosecution case. Needless to say that a heavy burden lies on the prosecution to prove the guilt of the prisoner charged for an offence of cold‑blooded murder. The prosecution case that the prisoner brought the woman from Bahirgram has not been proved beyond the reasonable doubt. The prisoner when examined under section 342, Cr. P. C. denied that he had brought the woman. The defence suggestion that the woman was a mad woman commonly known as `Pagli' finds support from the statements of P. W. 7 Hossain Ali made to the Investigation Officer. He was contradicted with those statements when he denied the suggestion put to him by the defence. More over, the prosecution case that the prisoner dashed the head of the woman with great force against the ground has been belied by the evidence of P. W. 14 Dr. Kamrul Alam Siddique who found no injury on the head of the woman at the time of post mortem examination. It is also the prosecution case that the prisoner assaulted the woman with fists and blows sitting on her chest for two consecutive days. But curiously enough there is no evidence that the prisoner sustained any scratch mark on his person. If it were so the woman might have caused at least some scratch marks on the body of the prisoner. The defence has therefore challenged the prosecution story to be preposterous and fantastic because the prisoner is not a man of influence nor he is a man of desperate character that defying all the members of the public of his locality it was possible for him to continue the assaults on the woman for two consecutive days when he had no motive whatsoever to kill such a woman and more so, when the prosecution has led evidence to the effect that the prisoner treated the woman as his god‑mother and was wanting something spiritual from her as appears from the evidence of P. W. 1 Ahmed Sardar and P. W. 10 Dabir Molla. It has been argued on behalf of the prosecution by the learned Deputy Legal Remembrancer that the prisoner might have first tried to obtain some spiritual benefit from the woman through the process of devoted service with love and affection but when he failed to have anything through that process he became fanatic. We are unable to agree with the learned Deputy Legal Remembrancer because a spiritual benefit is likely to be obtained from any person only through devoted service with love and affection for that person. It cannot be obtained otherwise and even if any person of spiritual attainment refuses to give some spiritual benefit to somebody it is highly improbable and absurd to think that the person failing to obtain the spiritual benefit would become fanatic and put an end to the life of the person in possession of spiritual attainment so brutally. In view of the evidence and facts and circumstances which we have discussed above we are not at all satisfied to hold that the prosecution has been able to bring home the charge of murder against the prisoner beyond the shadow of reasonable doubt inasmuch as the whole prosecution case seems to us to be not only improbable but also absurd. Because it is very difficult to believe that the prisoner staged a demonstration by perpetrating his cruel and inhuman assaults on the woman for two consecutive days publicly for the purpose of murdering an unknown and unidentified woman. The learned Sessions Judge does not appear to have considered the case in the light of probability. We, therefore, find ourselves unable to uphold the findings and decision of the learned Sessions Judge with regard to the commission of murder punishable under section 302 of the Pakistan Penal Code and we accordingly find the prisoner not guilty of the charge under section 302 of the Pakistan Penal Code. Accordingly, we reject the Reference and allow the appeal, set aside the conviction and sentence of death passed against the prisoner under section 302 of the Pakistan Penal Code and it is hereby directed that the prisoner be set at liberty forthwith, if not wanted in any other connection. SALAHUDDIN AHMED, J.‑I agree. Appeal accepted.