1. ' This is an appeal against the judgment of the 1st Additional Sessions Judge, Sukkur dated 18th January, 1978 convicting the appellants Ghulam Hussain and Jumoo under section 364/34, P. P. C.
2. And sentencing each one of them to undergo R. I. For 10 years.
3. ' The relevant facts are that on 25th September, 1976 F. I. R. Was lodged by P. W. 1 Wazir Ali at 'C'
4. Police Station, Sukkur stating that he was brother of one Mst. Sughra who was married to his cousin Khuda Bux about 10 years back. Close to the house of complainani. Resided Ghulam Hussain accused. Complainant came to know that his sister had developed illicit intimacy with Ghulam Hussain accused. On 1st August, 1976 when the complainant and his sister and brother-in-law were sitting in the house of the complainant, Khuda Bux deceased was called outside. Complainant came out with Khuda Bux and found Ghulam Hussain, Qadir Bux and Jumoo standing there.
5. Ghulam Hussain told Khuda Bux that they had purchased the wood and he should accompany them and should see the wood. In the meanwhile the husband of the sister of the complainant namely Mohammmad Khan, with his uncle Shaban, arrived there. Khuda Bux deceased went with Ghulam Hussain and others. Khuda Bux did not turn up in the night. In the morning complainant went to Ghulam Hussain and asked from him about Khuda Bux who stated that after showing the wood to Khuda Bux he had sent him back. Complainant informed his relatives and searched Khuda Bux, but he did not find him. He had One to report to the police station that the above accused have caused his sister's husband Khuda Bux to disappear with intention to remove him from his way so that he should marry with Mst. Sughra. The F. I. R. Was recorded by P. W. 5, S. H.
0. Nazeer Ahmed. The police made the necessary investigation and recorded statement of Mohammad Khan and Shaban. Accused Ghulam Hussain was arrested from his house on 27th September, 1976 under mashirnama Exh. 13 of which the niashir is P. W. Rajab Ali. Ghulam Hussain offered to produce hatchet and spade from his house which were recovered under mashirnama Exh. 21 but there were no blood marks thereon. Accused then showed them place of murder which was near the house of Murad Ali Fakir, but nothing of any significance was seen there. Ghulam Hussain .Then volunteered to show the grave of the accused and took the Police party to the Golimar Graveyard and pointed out towards a ditch where he declared that he had buried deceased Khuda Bux after committing his murder. It was found that the ditch was dug by the dogs and dogs ran away on seeing the police party. Some portion of the dead body was lying exposed and was eaten by dogs. Some clothes were found there. Mashirnama was prepared as Exh.
15. Thereafter S. H.
0. Brought the Ist Class Magistrate and the doctor to the grave where from the dead body was dug out. The body was headless but on the basis of white shirt and Angosha it was identified by the complainant Nazeer and P. W. Muhammad Khan and Mohammad Shaba under a mashirnama which is Exh.
16. Inquest report was prepared as Exh.
20. Accused Jumoo was arrested from his house under mashirnama Exh. 17 on the same date.
6. Accused Jumoo had shown the same place of murder and burial under Mashirnama Exhs. 18 & 19.
7. Challan was presented on 12th October, 1976 where Qadir and Sawan were shown as absconders.
8. The two appellants before me were tried by the Additional Sessions Judge under sections 302/34 and 202, P. P. C. As well as under 364 (34), P. P. C. They were however acquitted of the offence under section 302/34, and section 201 of the P. P. C. No acquittal appeal has been filed against the said acquittal and that order is therefore final. Conviction has been recorded only under section 364/34, P. P. C. And therefore, I intend to deal with that aspect only.
9. ' In respect of offence under section 364/34, P. P. C. Prosecution has relied upon the motive that accused Ghulam Hussain was on terms of illicit intimacy with Mst. Sughran wife of the deceased Khuda Bux and the accused was living near the house of complainant and the deceased. The complainant Wazir had deposed that Ghulam Hussain used to make indecent approaches to Mst.
10. Sughran, but she was not responding to the same. He stated that he heard about the same from his deceased brother-in-law. In the F. I. R. This witness had stated that Mst. Sughran was heard to have been on illict intimacy with Ghulam Hussain, therefore there is some difference in the two versions of deposition and the F. I. R. There is no other witness who has deposed in respect of either the illicit intimacy or indecent approaches. The learned Additional Sessions Judge was not able to find any difference between the two versions. However if it was a case of mere indecent approaches not responded to by Mst. Sughran that it was necessary that she should have been examined as she would be deemed to have acted honourably in rejecting advances and there can be no objection from the family honour point of view in getting her deposition recorded, and since in his deposition before the Court the complainant Wazir adopted version of only indecent approaches on the part of Ghulam Hussain and showed her sister with an honourable conduct of rejecting those approaches, therefore, her examination was necessary and since she has not been examined, therefore, the motive could not be said to be firmly established in this case. Then again I find that Mohammad Khan P. W. 2 who is a Massat of the complainant has not deposed about the motive at all and since the complainant has not deposed about the motive at all and since the complainant says that this motive had been known to him a month before the disappearance of the deceased thqn it is surprising to know that this motive was not even mentioned to Mohammad Khan and even after the disappearance of the deceased the motive does not seem to have been mentioned to Mohammad Khan as he has not shown any knowledge of the motive in his deposition. Then again P. W. Shahan who is a relation of the complainant has been given up by the prosecution, therefore motive has been deposed to only by complainant himself without any corroboration from any quarters. It is correct that there is no enmity established between the complainant and the accused Ghulam Hussain and therefore he has no reason to falsely implicate Ghulam Hussain and Jumoo but that alone is not sufficient to give credence to the story of Ghulam Hussain particularly when he has shown animosity to Ghulam Hussain by suggesting a motive which is not fully proved and also more particularly when he was not prompt in filing the F. I. R. And he took great deal of time before informing the police about the disappearance of the deceased.
11. The deceased had disappeared on 18th September, 1976 and allegation was that Ghulam, Sawan and Jumoo had taken him for the purpose of inspection of wood, therefore in view of the suggested motive the complainant should have suspected the accused Ghulain Hussain if the deceased had not returned before they had gone to sleep. P. W. 2 Mohammad Khan stated that they had chatted for about 24 hours in the house of the complainant before they came to their house. 21 hours time is more than enough for inspection of wood and nonappearance of the deceased even after 21 hours should have been looked upon with suspicion, but the complainant seems to have taken a complacent view of the same and he did not bother about the disappearance till the next morning and even on the 19th morning when he had gone to the house of the accused/appellant Ghulam Hussain and he was informed by Ghulam Hussain that they had sent back the deceased Khuda Bux after showing wood to him, the complainant did not feel suspicion at all and did not report the matter to the police, whereas in view of the motive mentioned by the prosecution it was natural that strong suspicion should have arisen by that time and they should have suspected Ghulam Hussain of some foul play and should have at once approached the police. However, the complainant continued making his individual efforts in tracing the deceased for full one week.
12. Complainant says that he informed his relative namely Mohammad Khan, Shaban etc. About the disappearance of the deceased. He has not given any date of that information, but P. W.
13. Mohammad Khan has stated that the complainant came to him after about 4 or 5 days. This delay on the part of the complainant of. Even informing his relation Mohammad Khan only 4 or 5 days after the disappearance is again suspicious and in my mind it casts a great deal of A doubt on the motive. Then again, the accused Jumoo had no motive to he involved in the abduction of the deceased Khuda Bux as it is not usual to involve himself in the abduction of someone only because a relation wants to have an illict connection with the wife of some other person. 1, therefore do not believe this motive at all.
14. ' In respect of actual abduction there is evidence of only P. W. Nazeer as well of his Massat P. W.
15. Mohammad Khan, as P. W. Shaban was given up. It has been deposed by Nazir that at about 7 p. m.
16. When the deceased, the complainant and Mst. Sughran were talking in the courtyard of their house, Ghulam Hussain, Qadir Bux Sawan and Jumoo had come to the house of deceased Khuda Bux and asked him to accompany them and see the wood which they had purchased, upon which deceased Khuda Bux had gone with them and when the deceased was talking to the accused at that time Mohammad Khan and Shaban had come to the house of the complainant and they had seen Khuda Bux going away with the accused. As far as the actual going of the deceased with the accused is concerned, it is the complainant alone who has deposed in respect of the same because P. W. Mohammad Khan in cross-examination has admitted that they did not see the accused actually going with the accused as they had gone inside the house while the accused and deceased were talking together. This deposition of P. W. Mohammad Khan and complainant remains unchallenged and it is difficult to discard the same except that the motive which has been mentioned by the complainant in the F. I. R. And has been deposed to by him shows that he has tried to exaggerate in respect of the motive part of the prosecution story, therefore, we are left with the statement of these two witnesses which proves that the deceased was merely taken by them for the purpose of inspection of wood, but apart from that there is no other evidence corroborating these statements or showing that the offence of abduction had been committed by the accused.
17. Since the complainant has shown some suspicion, against the accused about approaches to Mst.
18. Sughran, therefore, the evidence of complainant and his relation Mohammad Khan has to be viewed with a great deal of caution and in view of the fact that he has taken full one week before reporting the disappearance of the deceased to the police ; his version about abduction cannot be accepted as true without some corroboration. The corroboration of his statement is being provided with the statement of P. W. 2 Mohammad Khan but that again is the statement of relation and is not independent corroboration. The learned Additional Sessions Judge has sought the corroboration from the motive, but I have already discussed that the motive is not established. The learned Judge has sought another corroboration from the fact that the deceased was found murdered soon after this abduction. Dead be y was discovered on 27th September, 1976 and post- mortem took place on the same date. Head and neck of the body were missing and therefore identification was very difficult, but on the basis of clothes found on this dead body it was identified by the complainant and P. W. Mohammad Khan as of deceased Khuda Bux. The doctor has stated that approximate time between death and post-mortem was about 10 days which makes it as an approximate a time and there is necessarily easily a margin of error of one or two days either way.
19. Therefore one does not know whether the death had actually taken place on 17th B September or earlier to 17th September, 1976 or may be after the 17th September, 1976. Therefore, this circumstance does not really provide any corroboration to the abduction story. In fact I am doubtful whether the identification of the dead body has been made in a manner that it can be said to be beyond any reasonable doubt that it was dead body of deceased Khuda Bux. Condition of the body was such that no body could identify. The body was completely decomposed. The chest was devoid of muscles, neck and head was missing, stomach was decomposed. Almost everything was decomposed, therefore, the identification was based on the basis of clothes only, one was petro and the other was white shirt and there were no particular marks of identification found on these clothes. A dead man whose body is decomposed and is without neck and can hardly be identified by anyone on the basis of clothes which have no particular marks of distinction.
20. ' It had been disbelieved by the Additional Sessions Judge that the dead body had been dug out at the instances of the accused as the body was already exposed and could have been seen by anyone who was passing through that graveyard. Neither P. W. 1 Nazeer nor P. W. 2 Mohammad Khan have pointed out anything particular in respect of the clothes worn by the dead body and nor the clothes were mentioned in the F. I. R. Moreover how could P. W. Mohammad Khan rememher as to what particular clothes had been worn by the deceased on the day of disappearance as he saw him momentarily talking to the accused in the night. Herefore in view of this failure of mentioning any particular identification mark in respect of the ordinary clothes of petro and white shirt, I cannot accept the dead body to be that of deceased Khuda Bux. Consequently, I cannot accept the circumstance of the deceased having been murdered near about the time of disappearance as corroborating the incident of abduction. I find from the Mashirnama Exh. 16 that even the white cotton shirt which was on the dead body was worn out, torn and besmeared with blood and one red Angosha torn. These are ordinary clothes worn by so many persons in villages and that could hardly be the basis of definite identification of the body as that of Khuda Bux.
21. ' Moreover, I find that the conduct of accused Ghulam Hussain does not show that he was involved in the abduction. The complainant himself admitted that on the next day he had found accused Ghulam Hussain in his house and there is no particular incriminating circumstance in the conduct of Ghulam Hussain found by the complainant. The complainant did not express any suspicion to accused Ghulam Hussain and he was probably satisfied with the answer given by Ghulam Hussain at that time so that complainant did not think of going to the police station for a report and waited for 6 more days before doing so. The fact that Ghulam Hussain was found in his house on the next day shows that he had no feeling of guilt or remorse otherwise ordinarily he might have absconded if he was 'volved in the crime of abduction as he had been seen by the complainant nviting the deceased a day earlier.
22. ' I am therefore doubtful whether the accused Ghulam Hussain was nvoled with the crime of abduction and since case against Ghulam Hussain [s not proved, therefore, obviously case against appellant Jumoo is not proved at all. The complainant had failed even to make any inquiry from Jumoo. I would therefore acquit Ghulam Hussain and Jumoo and direct their release if not required in any other case.