' MUHAMMAD FARRUKH MAHMUD, J.--- Ghulam Nazik appellant along with Ghulam Shabbir and Muhammad Ramzan was sent up to face trial in case F.I.R. No,53 registered at Police Station Sehja on 19-6-2000 for offence under section 302/34, P.P.C. For causing the murder of Mst. Haseena Mai, wife of the appellant. Vide judgment dated 30-11-2001 handed down by Mian Nasir Hussain, learned Additional Sessions Judge, Khanpur, Ghulam Shabbir and Muhammad Ramzan, accused, were acquitted, while Ghulam Nazik was convicted for offence under section 308, P.P.C. And sentenced to fourteen years' R.I. He was also directed to pay Diyat amounting to Rs,2,69,176. Benefit of section 382-B, Cr.P.C. Was extended to the convict-appellant. Feeling aggrieved, through this appeal, Ghulam Nazik has challenged his conviction and sentence.
2. Nazar Hussain, brother of Mst. Haseena Mai deceased/P.W.3, appeared before A.S.-I. Iqbal Ahmad P.W.8, while the latter was present near Grid Station Chak No,60/P at 5-40 p.m. And narrated the incident. P.W.8 recorded the statement of Nazar Hussain Exh.P.C. And sent the same for registration of case. On the basis of complaint, formal F.I.R. No,53 (Exh.P.C./I) was registered at Police Station Sehja on 19-6-2000 at 6-10 p.m. For offences under section 302/34, P.P.C. By Mahboob Sarwar, H. C /P. W .
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3. The facts as narrated in the F.I.R. Are that complainant Nazar Hussain lived in Mauza Mirzapur. His sister Mst. Haseena Mai was married with Ghulam Nazik resident of Chak No,60/P about eight years ago. In exchange, Mst. Pathani Mai, sister of Ghulam Nazik, was married with Muhammad Amin, brother of Nazar Hussain. Ghulam Nazik did not allow Mst. Haseena Mai to go to her parental house for 6/7 months. Thus, the complainant along with his brother Muhammad Amin and Ashiq P.W.4 went to the house of Mst. Haseena Mai two days prior to the occurrence. On 19-6-2000 at 8-0 a.m., Mst. Haseena Mai went to the fields to cut fodder. Ghulam Nazik appellant and his father Muhammad Ramzan also left the house in order to irrigate their lands. Mst. Haseena Mai did not return to the house till 2-00 p.m. Thus, the complainant got worried. He along with Muhammad Amin and Ashiq Hussain left the house to locate Mst. Haseena Mai. At about 4-30 p.m., during search the complainant and P.Ws. Saw the dead body of Mst. Haseena Mai lying in the sugarcane field belonging to Ghulam Rasool. The body was soaked in blood and neck of Mst. Haseena was cut. The complainant suspected that his sister was murder by Ghulam Nazik, his father Muhammad Ramzan and Ghulam Shabbir. The motive behind the occurrence was that Ghulam Nazik suspected that Mst. Haseena Mai was not leading a moral life. The matter was reported to the police.
4. After recording statement of Nazar Hussain, Iqbal Ahmad A.S.-I. Reached the scene of occurrence and collected blood-stained earth from the spot vide memo. Exh.P.G., attested by Ashiq Hussain P.W.4 and Muhammad Amin, who was not produced during trial. He also prepared the rough site plan, inquest report and injury statement and sent the dead body to the hospital for post-mortem examination. Nawazish Ali S.-I./S.H.O. P.W.9, arrested the appellant on 27-6-2000. On the same date, while in custody, the appellant led to the recovery of blood-stained Chhuri P.3 which was taken into possession vide memo. Exh.P.D. Prepared by Nawazish Ali, S.H.O. And attested by Nazar Hussain P.W.3 and Dilawar who was not produced during trial. On the same date, he also led to the recovery of his blood-stained clothes, i,e, trousers P.4 and shirt P.5, which were in a shopper, and the same were taken into possession vide memo. Exh.P.E., prepared and attested by the above mentioned witnesses. On the same date, Nawazish Ali also took into possession blood- stained Shalwar P.6 and shirt P.7 belonging to Ghulam Shabbir (acquitted accused) vide memo.
Exh.P.F. Attested by the same P. Ws.
5. During trial prosecution produced nine witnesses in support of its case. Nazar Hussain complainant and his maternal-nephew Ashiq Hussain appeared as P.W.3 and 4. Their statements are in line with the story given in the F.I.R. However, both the P.Ws. Came out with a different motive and also made certain impFovements in their statement recorded during the trial. In addition to that, Nazar Hussain stated about the recoveries effected at the instance of the accused including the appellant, while Ashiq Hussain P.W.4 stated about the recoveries effected at the spot. Dr. Shaista. Anwar P.W.2 stated that she conducted post-mortem examination on the dead body of Mst. Haseena Mai. According to her observations, the muscles of the neck were completely cut by a sharp-edged weapon. Due to two injuries which were incised wounds, according to her opinion, the deceased lost her life within half an hour of the receipt of injuries on the neck and the post-mortem examination was conducted within 2 to 12 hours. Mahboob Sarwar H.C. P.W.6 stated about the formal registration of the case. Iqbal Ahmad S.-I. P.W.8 stated about the recording of the complaint and the investigation thereafter. Nawazish Ali, S.-I./P.W.9 stated about the arrest of the accused and recoveries at the instance of the accused. The rest of the witnesses are formal in nature and need not be discussed. The prosecution closed its case after placing on record the reports of Chemical Examination and Serologist.
6. In his statement recorded under section 342, Cr.P.C., Ghulam Nazik appellant pleaded innocence and stated that it was unseen occurrence and he was roped in the case merely due to enmity. He further stated that neither the complainant nor the other P.Ws. Were present in Chak No,60/P and that they arrived after the occurrence. The appellant did not appear as a witness in his defence under section 340(2), Cr.P.C. Nor he produced any D.W. During trial.
7. Learned counsel for the appellant has argued that the appellant has been convicted merely on presumption and on the basis of recoveries which were not reliable. Thus, the appellant merited acquittal. Conversely, learned counsel appearing on behalf of the State has argued that acquittal of rest of the accused would not benefit the appellant in any way, as the learned trial Court has acted on the principle of sifting the grain from the chaff. The learned counsel has further argued that statements of P.Ws.3 and 4 were fully corroborated by the element of recovery and medical evidence. The learned counsel has concluded his arguments by submitting that the learned trial Court has rightly convicted the appellant.
8. I have heard the learned counsel for the parties and have also gone through the record of the.Case.
9. Undeniably, it is an unwitnessed occurrence and P.Ws. Nazar Hussain and Ashiq Hussain were residents of Mauza. Mirzapur, District Rajanpur. Both the witnesses were closely related to Mst.
Haseena Mai and according to prosecution case, they came to Chak No,60/P where the occurrence took place two days prior to the occurrence to meet Mst. Haseena Mai. Both of the witnesses have been disbelieved by the learned trial Court qua the acquitted accused. In the above noted circumstances, their statements need deeper scrutiny and conviction can be based only if their statements are supported by very strong independent corroboratory evidence. Both the P.Ws. Made dishonest improvements during trial by stating that they had reached the house of appellant one day prior to the occurrence instead of two days prior to the occurrence. They also stated that the deceased had gone with her mother-in-law and the latter returned alone and that caused suspicion to the P.Ws. Not only this, they made 180 degree shift from the motive, as firstly, they stated that appellant suspected that the deceased was not leading a moral life but during trial they stated that P.W.3 wanted the hand of Mst. Tasleem Mai, sister of the appellant for his son and for that reason, the appellant was annoyed with his wife. No reason is available on the record as to why the appellant was annoyed with his wife. It appears that on realization that the appellant had no reason to murder his wife, the P.Ws. Have made desperate tries to carve out a motive against the appellant. As noted above, the learned trial Court has discarded the evidence of P.Ws.3 and 4 qua the acquitted accused and relied upon their statements on the basis of corroboratory evidence in the shape of recoveries. The learned trial Court failed to appreciate that the prosecution did not produce any independent public witness in support of recoveries. Nazar Hussain complainant was produced to support the recoveries, whereas he was neither resident of the area nor an independent person. His statement has also been disbelieved qua the rest of the accused. The learned trial Court has also failed to take notice of the fact that Nazar Hussain stated that Ghulam Nazik appellant was arrested on the date of occurrence, while according to P.W.9, Ghulam Nazik was arrested on 27-6-2000, i,e, the date of recovery. P.W.9 Nawazish Ali, S.H.O. And P.W.3 have contradicted each other on a very material point. It is also not believable that the appellant would keep the incriminating articles intact in his house knowingly that the case was registered against him for eight days. In normal circumstances, a prudent man would like to destroy the evidence than to keep it with him so as to produce the same as souvenier to the Police Officer. The learned trial Court also failed to appreciate the fact that Nazar Hussain was disbelieved qua the recoveries effected at the instance of acquittal accused Ghulam Shabbir. In the wake of afore-noted circumstances, I have no doubt in my mind to hold that the prosecution has failed to produce reliable evidence qua recoveries allegedly effected at the instance of the appellant. Even otherwise, it was never considered safe to convict a person on the basis of recoveries alone. As far as medical evidence is concerned, it discloses that the deceased was done to death by sharp- edged weapon and it does not lead as to who caused the injuries.
10. As a sequel to above noted discussions, I have come to the conclusion that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Thus, I allow this appeal and set aside the impugned judgment passed by the learned trial Court. The appellant is acquitted of the charge and would be released forthwith, if not required in any other case.