1969L3079 (PLP)

3. On 22nd of February 1967, Ahmad Bakhsh was away to Multan but his wife Mst. Hayat Mai (P. W. 8) was present in the house. In the afternoon she left her house to collect fodder but before leaving her house she told the appellant to quit the house. A little before sunset, a hue and cry was heard from the house of Ahmad Bakhsh as a result of which Ghulam Habib (P. W. 9), Ghulam Haider (P. W. 10), Allah Bakhsh Lambardar (P. W. 12) arid one Allah Yar who has not been produced, were attracted to the spot. Ghulam Habib is the paternal uncle of Ahmad Bakhsh the father of Mst. lqbal Mai deceased. Ghulam Haider is the maternal uncle of Mst. lqbal Mai. Allah Bakhsh (P. W. 12) is not related to anybody, but Ghulam Habib (P. W. 9) works under him as a Chaukidar in the same patti. Ghulam Habib was the first to arrive at the spot. He found that the appellant was causing injuries to the deceased in the house of Ahmad Bakhsh with a Rambi. In his presence he took off the shalwar of the deceased and then gave blows on the pubic region and vaginal walls. The other three wit nesses also reached the spot and saw the appellant giving blows on the pubic region of the deceased. The witnesses asked the appellant to desist from his nefarious action but he threatened them. After inflicting injuries, the appellant went out of the door of the house of Ahmad Bakhsh waiving his Rambi threateningly towards the witnesses. The witnesses stayed there for about six minutes when Mst. Hayat Mai (P. W. 8) the mother of the deceased came.

4. Ghulam Habib, thereafter, left for the police station to lodge an F. I. R. He met A. S. I. Muhammad Hanif (P. W. 14) at the Petrol Pump of Lutkaran at about one and a half miles from the place of occurrence. Muhammad Hanif was there on petrol duty. He took down the statement Exh. P. A. dictated by Ghulam Habib and sent the same to the police station for drawing up a formal F. I. R. The formal F. I. R. was drawn up by Saeedullah F. C. (P. W. 4). Muharnmad Hanif A. S. I. reached the spot along with Ghulam Habib. He found the dead body of Mst. Iqbal Mai lying in the house of Ahmad Bakhsh. After preparing the injury statement and the inquest report Exhs. P. K. and P. J. respectively, he sent the dead body for post‑mortem examination. The A. S. I. took into posses sion blood‑stained earth from the place where the dead body was lying. He also took into possession the ear‑rings Exh. P. 2/1‑2, shalwar of the deceased Exh. P. 3 and a mat Exh. P. 4 vide memo. Exh. P. B. The shalwar, the mat and the blood‑stained earth were sealed into separate parcels. The blood‑stained clothes of the deceased were brought by Qaim Din F. C. after the post‑mortem examination, and these clothes were also taken into possession by Muhammad Hanif A. S. I. vide memo. Exh. P. F. the site plan Exh. P. H. was got prepared at the instance of this Sub‑Inspector.

5. The appellant was not available and was produced before S. I. Faiz Hussain Shah S. H. O. Police Station Sadar Muzaffargarh (P. W. 13) who partly investigated the case on 25th of February 1967, by Allah Bakhsh Lambardar (P. W. 12). According to the statement of Allah Bakhsh, he had received information that the appellant was at the petrol pump of Lutkarn. The witness brought the appellant to the place of occurrence and produced him before the S. I. at Peshiwela. His shirt was found to be stained with blood and was taken possession of at the dera of Allah Bakhsh. Thereafter, the appellant led the police party to the field of Manzur wherefrom Rambi Exh. P. 7 was recovered. Both the shirt P. 6 and Rambi P. 7 were sealed into parcels and sent to the Chemical Examiner for examination. There were injuries on the person of the appellant and he was sent for medical examination. Dr. Ashfaq Ahmad (P. W. 1) examined the appellant on 25th of February 1967, at 4.50 p. m. and found two abrasions and two nail marks on his person. Duration of the injuries was 72 hours.

6. The post‑mortem examination of the deceased revealed that there were 12 incised wounds on the person of the deceased. Out of these injuries, five were in the regions of the head and the neck while seven were on the pubic region and vaginal walls. The time between injuries and death was immediate while time between death and post‑mortem was within twenty‑four hours. Two vaginal swabs were also taken from the dead body but they were not found to be stained with semen according to the opinion of the Chemical Examiner.

7. According to the report of the Serologist Exh. P. O. the blood‑stains on the shirt of the appellant were disintegrated. The scrapings from the Rambi were found to be stained with human blood.

8. At the trial, Hamid (P. W. 7), Mst. Hayat Mai (P. W. 8) and Ghulam Haider (P. W. 10) deposed to the motive for the offence. Hamid P. W. stated that he came to the house of Ahmad Bakhsh four days before the occurrence and told the latter and his wife that he was not willing to marry his daughter Jeelan to their son Nazar Hussain, and as a consequence of this announcement on the part of Hamid, Ahmad Bakhsh also declared his intention to break the betrothal of his daughter to the appellant. In his cross‑examination, Hamid stated that in his presence, neither Ahmad Bakhsh nor his wife told the appellant to leave their house. Mst. Hayat Mai, however, maintained during her cross‑examination that her husband and she herself told the appellant that they had broken the alliance and that he should quit their house. Mst. Hayat Mai also maintained that on the day of occurrence before leaving her house to collect fodder, she had asked the appellant to quit. She, however, says that she was all alone when she asked the appellant to quit on the day of occurrence.

9. The story that the appellant had come to stay with Ahmad Bakhsh after his betrothal to Mst. Iqbal Mai, two months before the occurrence, was not specifically put to the appellant during his examination under section 342, Cr. P. C. by the trial Court. This piece of evidence, therefore, cannot be used against him. The appellant maintained that he was at Multan when the murder was committed. We find that this story of the appellant‑coming and living with Ahmad Bakhsh‑does not appear to be correct. No doubt, Hamid (P. W. 7) who is the real paternal uncle of the appellant, has supported this, and ordinarily we would attach very great importance to this state ment coming from the mouth of the real uncle of the appellant. We, however, find that Hamid (P. W. 7) is the husband of the sister of Ahmad Bakhsh, father of Mst. Iqbal Mai. Mst. Hayat Mai, the wife of Ahmad Bakhsh (P. W. 8) is also the niece of 'his witness. He has not explained as to whether she is his brother's daughter or sister's daughter. We have reasons to believe that this witness was inclined to help the prosecution because of his matrimonial relationship with Ahmad Bakhsh, and has not tried to help the appellant as observed by the trial Court.

10. It is also doubtful that A. S. I. Muhammad Hanif (P. W. 14) met Ghulam Habib (P. W. 9) at the Lutkaran Petrol lump and recorded his statement there. It has been observed in more than one judicial pronouncements that when an S.I. meets a complainant accidentally on his way to the police station, the ordinary presumption is that the F. I. R. was drawn up at the spot. Reference in this connection may be made to Muhammad Siddiq v. The State (P L D 1958 Lah. 601) and Ghulam Qadir v. The State (P L D 1967 Pesh. 269). The place of occurrence is at a distance of one and a half miles from the Lutkaran Petrol Pump and it is in evidence that immediately after recording the statement Exh. P. A. of Ghulam Habib, the Assistant Sub‑Inspector proceeded to the spot. While Ghulam Habib maintained that the Asstt. Sub‑Inspector was not accompanied by any constable, the Asstt. Sub‑Inspector himself stated that he was accompanied by a constable. The manner in which this F. I. R. was alleged to have been recorded is also not impressive. The A. S .I. stated that he put the pad on his bicycle and wrote tire statement while standing. It appears to be an over‑statement and does not carry conviction. Surely, some chair or cot would be available at the Petrol Pump. It is also in evidence that there are three Petrol Pumps in the vicinity, where some furniture must have been available. We are, therefore, constrained to hold that the statement Exh. P. A. of Ghulam Habib was not recorded at the Petrol Pump and the impression is unavoidable that it was recorded at the spot after deliberation. The whole investigation from the recording of the F. I. R. till its finalization becomes doubtful on this account.

11. We are also of the opinion that the conduct of the eye‑witnesses does not inspire confidence. We find from the statement of Hamid (P. W. 7) that there are about 30 to 40 houses in the Basti Chashmawala where the occurrence took place. It is also in evidence that there is a Basti called Chah Nawan towards the south of Chashmawala at a distance of about 10 Karams. There are also three other Bastis on the other three sides of this habitation.

12. Ghulam Habib (P. W. 9) and Ghulam Haider (P. W. 10) claim to lave their houses in the vicinity. Allah Bakhsh came to the spot while he was returning from his well to the village. The appellant was giving injuries inside the house near the kitchen and the door was half‑open as stated by Ghulam Habib. If these witnesses saw the appellant inflicting injuries, the least that they could do was to bolt the door from outside, They have stated that the appellant succeeded in terrifying them by waving the Rambi but we are not convinced with this, reason for their non‑interference. We have seen the Rambi in Court. It is a small implement of agriculture and has a curved wooden handle. The sharp edge of its blade is little less than two and a half inches. There were four able‑bodied persons including Allah Yar who has not been examined by the prosecution, as against the appellant who was all alone and was not armed with a fire‑arm or a dagger or a knife. He could easily be overpowered by these four persons, especially, when he was inside the house. Ghulam Habib P. W. saw him undressing the deceased by taking off her shalwar. It is not explained as to why this witness failed to come over the appellant while he was in the process of undressing the deceased. Ghulam Habib P. W. maintained that no one else carne from the Basti at the time of the occurrence as everybody had gone to fetch fodder or water. He, admitted that about ten to fifteen persons had collected at the spot after about fifteen minutes of the occurrence. He is, however, belied by Ghulam Haider P. W. who stated that immediately after the occurrence about 20 to 30 people had collected at the spot. A Pacca road leading from Muzaffargarh to Alipur through the village. It is in evidence that it is a frequented road. If a number of persons had collected at the spot immediately after the occurrence or 10 to 15 minutes after that, it is not clear why a pursuit party was not arranged to pursue the appellant. It is really surprising that no one from the persons who had collected, had come forward to depose in favour of the prosecution. Ghulam Haider and Ghulam Habib are related to the deceased while Allah Bakhsh is, admittedly, a Lambardar under whom Ghulam Habib works. The two first witnesses, namely, Ghulam Habib and Ghulam Haider stated that the appellant had run towards the south whereas Allah, Bakhsh stated that he had run towards the north. If these three witnesses and Allah Yar had been at the spot, we do not think they would have quietly watched the infliction of injuries on the person of the deceased and permit the appellant to escape who was not armed with any formidable weapon. The least they could do was to block his way at the door by encircling hire. The conduct of these eye‑witnesses is unnatural and we hold that they did not witness the occurrence. The arrest of the appellant at Lutkaran is also doubtful. Petrol Pump is a public place and a murderer would not loiter freely in the vicinity of the venue of his crime, particularly, when it is not alleged that he had any relative or protector there.

13. As to the recoveries, we may observe that it is hard to believe that the appellant would continue wearing the same shirt for four days after the commission of the offence to publicise his own guilt. Since the whole investigation is found to be tainted, we do not think that we should attach any weight to the recovery of the Rambi. Allah Bakhsh (P. W. 12) who has witnessed the recovery of Rambi has been found by us to be an untruthful witness in material particulars and we do not place reliance on his statement in this regard.

14. The fact that the appellant had two nail injuries on his person could raise a presumption that he received these injuries while some body was resisting his onslaught, but this presumption could be used in favour of the prosecution only when other evidence would carry conviction. The appellant stated that he is a labourer and works at kilns and it is usual for him to receive such injuries during his vocation. This may or may not be a correct explanation, but since there is no other evidence against him, the existence of the nail injuries on him will not be a substitute for positive evidence of criminality. We, there fore, give the appellant benefit of doubt and set aside his convic tion and sentence. We refuse to confirm the sentence of death. Appeal accepted.