' SAEEDUR REHMAN, J.-The appellant Muhammad Ismail alias Kala (aged 30 years) was convicted by a learned Sessions Judge, Kasur of an offence under section 302 of the Pakistan Penal Code for causing the death of his own wife Mst. Ghulam Fatima alias Safta. For this offence he was sentenced to death and also asked to pay a fine of Rs, LOCO or in default, to receive rigorous imprisonment for one year. The appellant has preferred an appeal against his conviction and sentence while the learned Sessions Judge, has also made a reference to this Court under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death imposed upon him. This judgment will dispose of both these matters.
2. The appellant was a resident of Dhupsari in Mauza Bhaipheroo within the jurisdiction of Police Station, Bhaipheroo, District Kasur. Some three years prior to the occurrence, he was married to Mst.
Ghulam Fatima deceased who also lived with him. His mother-in-law Mst. Mandan (P. W. 8) lived at Faisalabad. Her second daughter was married to Karamat Ali (P. W. 2) who resided at More Mianka), Bhaipheroo and her son was married to Mst. Sharifan, the sister of Karamat Ali (P. W. 2) while her niece was married to Muhammad Anwar (P. W. 10), a resident of Manga Virkan in District Sheikhupura,
3. It was the case of the prosecution that on 21st February, 1975 the appellant went to the house of Mn. Mandan (P. W. 8) at Faisalabad and asked her for a loan of Rs, 200. As she had no money with her, she refused to oblige him but he still persisted in his demand. On the day following the next, that is, 23rd February, 1975 he quarrelled with her and telling her that she would see the consequence of the refusal, left the house. Mst. Mandan (P. W. 8) accompanied by Muhammad Anwar (P. W. 10) who too was on a visit to the house, and Mst. Sharifan followed the appellant and proceeded to Bhaipheroo, arriving there on the same day. At Bhaipheroo, leaving Mst. Sharifan in the house of Karamat Ali (P. W. 2), she herself together with Muhammad Anwar (P. W. 10) went to the house of the appellant reaching there at about 2 p. m. Just then, she saw the appellant inflicting injuries to the deceased with a rambah on the head, face and the neck. She raised an alarm whereupon the appellant issued a threat that anyone entering the kotha, too would be killed.
Ramzan (P. W. 9), a resident of BaghAliwala of Police Station, Kundian who happened to be present there, also arrived and saw the occurrence. The deceased died at the spot.
4. Police Station, Bhaipheroo was located about three furlongs away from the place of occurrence.
S. I. Hamid Hassan (P. W. 1i) was, at the relevant time, the S. H.
0. Of the Police Station. He was on patrol at the Bus-stand Bhaipheroo when the learnt about the occurrence. He reached the place of occurrence at 2.45 p. m. And recorded statement Exh. P. A. Of Mst. Mandan (P. W. 8) at the spot. On the basis of that statement, formal F. I. R. Exh. P. A/1 was registered at the police station at 3 p. m.
5. S. I. Hamid Hassan (P. W. 11) conducted the investigation. He collected from the kotha 16 pieces of broken glass bangles P. 1/1-16 and took the same into his possession vide memorandum pxh. P. C, aisa witnessed by Ramzan (P. W. 9) and one Jagga who was given up by the prosecution as being unnecessary. He arrested the appellant on 24th February, 1975. On the same day while in police custody, the appellant led to the recovery of blood-stained rambah P. 6, kurta P. 7 and dhoti P. 8 from underneath a heap of stones at the brick-kiln of one Rao Abdul Qayyum at Multan Road. The Investigating Officer took these articles into his possession vide memorandum Exh. P. F. Also witnessed by, Manzoor Ahmad (P. W. 7) and one Fateh Muhammad who was also given up by the prosecution as being unnecessary. According to the reports of the Chemical Examiner and the Serologist Exh. P. L. And Exh. P. M. The blood on the rambah and the clothes was found to be of human origin.
6. Dr. Muhammad Ashraf, Medical Officer, Civil Hospital, Chunian, on 24th February, 1975 at 11 a. m.
Performed the post-mortem examination of the deceased and found 26 incised wound's of various diamensions ranging between 3/4" x 1/4" to 71" x 2" mostly on the head region, neck and the hands.
One of the injuries measuring 74" x 3" was on the front of the neck cutting its tissues, trachea, oesophagus and blood vessels right up to the cervical Spine. Ten of the injuries were on the hands.
He opined that the death had occurred due to shock and haemorrhage on account of the neck injury which was sufficient in the ordinary course of nature to cause death. According to him, the death had occurred immediately on receipt of the injuries and the post-mortem was performed 12 to 24 hours after death. He found blood-stained chhuri P. 5 stuck up in the hair of the deceased. He further opined that injuries could have been caused with the chhuri and that they could also have been caused with more than one sharp edged weapons.
7. The appellant pleaded not guilty to the charge and denied the allegation against him. He claimed innocence and alleged that the witnesses were false. He led no evidence in defence.
8. The case of the prosecution rests entirely upon the ocular account provided by Mst. Mandan (P.
W. 8), Ramzan (P. W. 9) and Muhammad Anwar (P. W. 10). Mst. Mandan (P. W. 8) and Muhammad Anwar (P. W. 10) were closely related to the deceased ; the former being the mother and the latter a phuphizad. They belonged to far off places in diffetent districts. They were thus, chance witnesses.
Their statements at the trial are so much materially at variance with their earlier statements that they render themselves as wholly unreliable. They also suffer from material inconsistencies and improbabilities. They made conflicting statements even as to the day and the time of occurrence.
According to Mst. Mandan (P. W. 8), the appellant went to her house at Faisalabad on 21st February, 1975 in the afternoon when Muhammad Anwar (P. W. 10) also arrived a little later. He stayed for the night and left the house on the following day at 10/11 a. m. She also left after an hour or so reaching Bhaipheroo on the same day when she saw the occurrence. The question of mistaken date would not arise as she has specifically stated that it was a Friday when the appellant went to her house.
We have also checked up the relevant almanac and find that the Friday fell on 21st February, 1975.
On the other hand, according to Muhammad Anwar (P. W. 10), the appellant left the house on 21st February, 1975 after staying in the house only for one night and they themselves went to Bhaipheroo on the following day. Thus there was a clear conflict between the two ; Mst. Mandan (P.
W. 8) asserting that they went to Bhaipheroo on the same day when the appellant left while according to Muhammad Anwar (P. W. 10), they went on the following dhy. 13ven if this controversy was ignored, they were agreed that they reached Bhaipheroo on 22nd February, 1975. If that was so, then the occurrence must also have taken place on 22nd February, 1975 and not on 23rd February, 1975 as alleged by the prosecution.
' Again as to the time of occurrence, Mst. Mandan (P. W. 8) stated at the trial that the occurrence took place at 2-15 p. m. While before the committing Magistrate, she had stated that the occurrence took place at 3 p. m. Ramzan (P. W. 9) stated in his cross-examination that the police arrived at the spot two hours after the occurrence. S. I. Hamid Hassan (P. W. 11) stated that he reached the place of occurrence at 2.45 p. m. If the time given by Ramzan (P. W. 9) was correct, then the occurrence must have taken place at about 12-45 p. m. And not 2 p. m. As alleged by by the prosecution. Further, the witnesses stated that they reached Bhaipheroo Bus-Stand at 2 p.m.
They first went to the house of Kammat Ali (P. W. 2), dropped Mst. Sharifan there and then proceeded to the house of the appellant situated 3/4 acres away from the Bus-stand and about 3 acres from the house of Karamat All (P. W. 2). They must have taken considerable time to cover this distance. They may have also remained for some time at the house of Karamat Ali (P. W. 2) as is also indicated from their statements before the Committing Magistrate that they took tea there before proceeding to the house of the appellant. In this view of the matter they could not have possibly reached the house of the appellant and seen the occurrence which too is alleged to have taken place at 2 p. m.
9. The witnesses also made contradictory statements about their journey to Bhaipheroo. Mst.
Mandan (P. W. 8) stated that the appellant left alone and they followed him after one or one and a half hours. On the other hand, Muhammad Anwar (P. W. 10) stated that they left for Bhaipheroo the following day. Yet both of them had stated before the Committing Magistrate that they travelled together with the appellant reaching Bhaipheroo Bus-stand on the same day at 2 p. m. When the appellant left for his own house.
10. The incredibility of both the witnesses is further adjudged by the fact that they have completely gone back on their statements made earlier before the Committing Magistrate. Mst. Mandan (P. W.
8) went back on her statement before the Committing Magistrate that they travelled together with the appellant to Bhaipheroo Bus-stand reaching there at 3 p. m. When the appellant left for his house. She also went back on her statement that on the way the appellant had quarrelled with her on account of her refusal to lend him the money. She also denied having stated that she was going to the police when it met her on the way. Likewise Muhammad Anwar (P. W. 10) went back on his statement before the Committing Magistrate that they travelled together with the appellant in a bus to Bhaipheroo. He also denied having stated that they took tea at the house of Karamat Ali (P.
W. 2) and then proceeded to meet the deceased. He also went back on his statement that he alongwith Ramzan (P. W. 9) had gone to the police station to inform about the occurrence, and that the police accompanied them and made the spot inspection ; and further that they had told the police at tilts police station that the appellant had killed the deceased. He further denied that on the day of occurrence, the appellant was present in handcuffs with the police at the spot.
' The conduct of Muhammad Anwar (P. W. 10) was also quite unnatural. He did not intervene to rescue the deceased, a close relation, particularly when he was a young man of 26 years and the appellant was not armed with any lethal weapon. He had also gained numerical superiority with the arrival of Ramzan (P. W. 9).
' On the above state of evidence, it is not possible for us to place any credit upon these witnesses.
They are wholly unreliable and their testimony merits rejection out of hand.
11. The third and the last witness, Ramzan (P. W. 9) was a caste-fellow of the parties. The mere fact that he was not related to the complainant party does not mean that he was necessarily a witness of truth. The acid test of veracity of a witness is the inherent merit of his own statement. It was so laid down in the case of Bashir Ahmad v. Muhammad Azam etc (1).
' Ramzan (P. W. 9) did not belong to Bhaipheroo. He was a resident of a village 40 miles away from the place of occurrence. He claimed to have gone to Bhaipheroo to earn his livelihood. He stated that he had obtained on rent a room near the kotha of the appellant. His sister and brother.In-law also lived in his room but then he had to state that in fact he was living with them. He was proceeding from the brick kiln towards his room when he was attracted to the spot by the alarm raised by the other eye-witnesses and saw the occurrence. His room was locked at that time. It appears that the above story has been introduced with a view to put him up as an eye-witness. He claims to have arrieved at the fag end and saw the infliction of the last one or two blows with the rambah but he even did not specify the blows given in his presence. He stated that the police recorded his statement at the spot but he could not say if it also recorded the statement of any other witnes while S.
1. Hamid Hassan (P. W. 11) has stated that he recorded the statements of other witnesses at the spot. He also went back on his statement before the Committing Magistrate that he himself along with Mst. Mandan (P. W. 8) and Muhommad Anwar (P. W. 10) informed the police about the occurrence. He stated that the appellant was arrested on the next day of occurrence but he was contradicted by Muhammad Anwar (P. W. 10) who had stated before the Committing Magistrate that the appellant was brought by the police to the spot in hand-cuffs on the very day of occurrence.
' On this state of his evidence, we are of the view that he too was unreliable and his testimony cannot be made the basis for the conviction of the appellant on a capital charge.
12. The learned Sessions Judge, has disbelieved the evidence of recovery for the reasons given in para. 10 of his judgment which, to our mind, are quite convincing. The prosecution also failed to lead evidence to prove that shirt P, 7 and dhoti P. 8 belong to the appellant, The recoveries are wholly useless and have rightly been discarded.
(1) PLD 1969 SC 469
13. There are indications on the record to show that the investigation in this case was not above board. The police station was only at a distance of 3 furlongs from the place of occurrence. It is in evidence that the eye witnesses went to the police station to report the matter. But it seems that S.I.
Hamid Hassan (P. W. 11), instead of registering the case went to the spot and recorded the F. I. R. Exh.
P. A. After preliminary investigation. He claims to be present at Bhaipheroo Bus-stand where he came to know about the occurrence but he could not name the in formant. His assertion that he was inform'd only about a quarrel appears to be untrue. He could not say if Rana Shaukat, Siraj, Ahmad Din, Mst. Halima Bibi, Bhag and Mirza Taj Beg were joined by him in the investigation. He stated that he arrested the appellant on 24th February, 1975 but he was contradicted by Muhammad Anwar (P. W. 10) who had stated before the Committing Magistrate that on the very day of occurrence the Police brought the appellant to the spot in hand-cuffs. He claims to have prepared the inquest report but he failed to notice bloodstained chhuri P. 9 stuck up in the hair of the deceased particularly when a large number of injuries were found on the head region. In these circumstances the sanctity attached to the F. I. R. (Exh. P. A.) vanishes in the present case because it is highly doubtful whether the same was recorded at the place which had been indicated and that Exh. P. A/1 was recorded on its basis. Wherever investigation reveals dishonesty, grave doubts are cast on the case for the prosecution. It was so observed by Mushtaq Hussain, J. (now C. J.) in the case of Anwar v. The State (1).
14. There is yet another feature which also casts doubt on the prosecution case. The place of occurrence was Surrounded by other inhabited house. The deceased received as many as 26 injuries. Ten of the injuries which are on the hands coupled with the broken glass bangles recovered from the spot do suggest that she must have put up resistence. She also must have raised alarm before the receipt of ,the fatal injury as also admitted by the prosecution. Thus the neighbours, in all likelihood, must have been attracted to the spot. It is the case of the prosecution itself that a large number of people had assembled there soon after the occurrence but the prosecution has failed to produce any of them in support of its case. In these circumstances an inference can reasonably be drawn that, if produced, they would not have supported the prosecution case.
15. Although it is not necessary for the prosecution to allege a motive for the commission of the crime but where one is alleged, it can be scrutinized by the Courts in the light of the evidence on record. In the instant case, the motive, as alleged by the prosecution, does not appear to be convincing. There was no allegation that relations between the spouses were strained. Rather, it was in evidence that he never stopped her from visiting her parents. Even, assuming that the story about the demand and refusal of money was correct, it would have hardly furnish such a motive to the appellant as to kill the deceased in such a cruel manner.
16. For all the reasons stated above, it is not possible for us to maintain the conviction and the sentence of the appellant as recorded by the learned Sessions Judge. Accordingly, we set aside his conviction and
(1) 1975 P Cr. L .1 750 ' sentence and acquit him of the charge. He shall be set at liberty forth- with if not required in any other case. The sentence of death is not confirmed. .101011...,...110111.