S. Ali Hassan Rizvi, J.--Ladhu son of Nazar Hussain, caste Pirhain, resident of Pirhaian Wala/Taray Wala Mauza Khanani, Tehsil & District Bhakkar and Mst. Bilqees widow of Mureed Kazim, were tried by Mr. Muhammad Hanif Khan, learned Sessions Judge, Bhakkar in case FIR No, 274 dated 18.9.2002 registered at Police Station Saddar Bhakkar under Sections 302/34 PPC for allegedly having committed the murder of Mureed Kazim, real brother of the complainant Khadim Hussain in furtherance of their common intention. On conclusion of the trial, the learned Sessions Judge, Bhakkar vide judgment handed down by him on 20.3.2003, found that prosecution had proved its case against both the accused Ladhu and Bilqees. He convicted both of them under Section 302(b)/34 PPC. Ladhu appellant was sentenced to death while Mst. Bilqees was ordered to suffer imprisonment for life thereunder. The convicts were also directed to pay compensation of Rs,50,000/- each to the legal heirs of the deceased in terms of Section 544-A Cr.P.C. In default, they were directed to suffer S.I. for six months.
2. Both the convicts/appellants filed their appeals through Jail Authorities vide Crl. Appeals Nos.203-J/2003 and 204-J/2003. The learned Sessions Judge also submitted a Murder Reference No, 413/2003 which is alongside pending. We, therefore, propose to dispose of both the aforementioned criminal appeals and the murder reference by this single judgment.
3. The case of the prosecution as disclosed in the FIR (Ext.PH) scribed by Asmat Ullah S.I. of Police Station Saddar Bhakkar (PW-10) on the statement of Khadim Hussain, complainant (PW-8) was as follows. During midnight following 17.9.2002, the complainant Khadim Hussain alongwith his deceased brother Mureed Kazim, Allah Bukhsh (PW-9) and Mulazim Hussain (not produced) were sitting in Village Khanani in the house of his Chachazad Ladhu convict appellant. They had come in connection with marriage of Ahmad Bukhsh and Perveen (respectively brother and sister of Ladhu convict). At about 1.00 night, Mst. Bilqees, one of the convict appellants wife of Mureed Kazim deceased came there. She called Mureed Kazim on the pretence that his brother Mulazim Hussain, who was imbecile, was not present in his house and that he should be traced. On hearing this, Mureed Kazim deceased and convict appellant Bilqees jointly went away. After some time, Ladhu, the other convict appellant armed with Kulhari also went after them saying that he, too, would search for Mulazim Hussain. After some time, the complainant and the aforesaid PWs heard the cries and brawl from the eastern side of the crops. On being attracted, the complainant Khadim Hussain alongwith Allah Bukhsh (PW-9) and Mulazim Hussain (not produced) went towards the place of occurrence. They saw Mst. Bilqees having caught hold of Mureed Kazim deceased and within their view, Ladhu convict appellant gave three hatchet blows on the head of the deceased, whereupon he fell down and died. Ladhu convict appellant ran away from the scene of occurrence while brandishing the Kulhari. Mst. Bilqees also ran away from the scene. Motive for the occurrence was that Mst. Bilqees convict (wife of the deceased Mureed Kazim) had illicit relations with Ladhu convict appellant and the deceased Mureed Kazim was considered to be an eye-sore in their way.
It was for this reason that both Mst. Bilqees and Ladhu in furtherance of their common intention had committed Qatl-eAmd of deceased Mureed Kazim after taking him to the fields on the pretence of searching out his brother Mulazim Hussain. The complainant left his brother Qasim Hussain to guard the dead body and he himself went to the police station where he got recorded his statement before Asmat Ullah, S.I. on 18.9.2002 at about 9.30 a.m.
4. The learned Sessions Judge, Bhakkar framed the charge against both the convict appellants on 20.12.2002. They denied the charge and claimed trial.
5. In the course of trial, the prosecution examined Faiz-ur-Rehman PW-1, Liaqat Ali PW-2, Bashir Ahmad PW-3, Zafar Abbas PW-4, Ghulam Jaffar PW-5 and Khateeb Hussain PW-6. They were all formal witnesses.
Khadim Hussain complainant was examined as PW-8 and Allah Bukhsh an eye-witness was examined as PW-9. Asmat Ullah S.I. PW-10 had investigated this case.
6. The prosecution also examined Dr. Muhammad Ramzan PW7 who had conducted the post mortem examination on the dead-body of the deceased Mureed Kazim on 18.9.2002 and found three incised wounds, one on the left side of his head, going deep upto brain and two incised wounds on the right side of the head also going deep upto brain and right ear. All the injuries were individually sufficient to cause death. The injuries had damaged the brain and led towards hemorrhage and sudden shock. The injuries were ante-mortem and were caused by sharp edged weapon. Probable time that elapsed between injuries and death were about 20 minutes while between death and post mortem was about 18 hours. He testified the post mortem report Ext.PE and its duplicate Ext.PE/1.
7. The learned DDA had given up Ahmad Shafi Constable, Mulazim Hussain and Ghulam Hussain as unnecessary vide his statements dated 3.2.2003 and 18.2.2003. On 22.2.2003, he tendered in evidence the reports of Chemical Examiner Ext.PK and Ext.PL and reports of Serologist Ext.PM and Ext.PN, whereafter he closed the prosecution case.
8. Both the convict appellants in their statements got recorded under Section 342 Cr.P.C. denied the allegations and once again claimed innocence. None of the convict appellants appeared as witness under Section 340(2) Cr.P.C. However, convict Ladhu in his defence submitted statement of Allah Bukhsh PW-9 got recorded by him on 18.9.2002 under Section 161 Cr.P.C. (Ext.DA), copy of FIR No, 953 dated 10.6.1997 registered at the instance of Hameeda Mai wife of Muhammad Qasim under Section 337/34 PPC read with Section 10 of the Offence of Zina (Enforcement of Hadood)
Ordinance, 1979 (Ext.DB), copy of statement of Mst. Hameeda Mai (Ext.DC) and a copy of FIR No, 296 dated 29.8.2002 registered under Section 324/34 PPC at the instance of Mulazim Hussain real brother of complainant Khadim Hussain.
9. We have heard learned counsel for the appellants, the learned DPG for the State and perused the record carefully.
10. We found that the occurrence had taken place during the midnight following 17.9.2002 whereas the occurrence was reported to the police on 18.9.2002 at 9.30 a.m. In the FIR (Ext.PH), the distance between the place of occurrence and the police station was shown to be 20 KM. According to the FIR, the complainant who was a hefty young man of 30, was present at the scene of occurrence alongwith Allah Bukhsh PW-9 and Mulazim Hussain. Mulazim Hussain was real brother of the complainant as also the deceased. The age of Mulazim Hussain as given in the FIR (Ext.DD) got recorded by him on 29.8.2002, was 30 years. He, therefore, too was a strong and robust man.
According to the FIR, all the three, out of whom the complainant and Mulazim Hussain were real brothers of the deceased, were present near the place of occurrence, yet Mst. Bilqees was successful in running away while empty handed. The convict Ladhu was, as per version of the prosecution, armed with a hatchet. He had no fire-arm. He too was not followed by any of the PWs.
As per cross-examination of Khadim Hussain complainant (PW-8), Mst. Bilqees convict appellant was "a gentle lady". Ladhu convict appellant was Patrair of the deceased as also the complainant.
In the FIR itself, it was stated that Ladhu convict appellant was Chachazad of the complainant. If Mst. Bilqees was a "gentle lady" and was empty handed at the time of occurrence, why she could not be overpowered by the three PWs (Khadim Hussain complainant, Mulazim Hussain and Allah Bukhsh), is a question hard to be answered by the prosecution. Even otherwise, the part attributed to the female convict of catching hold the deceased at the time of occurrence, appeared to us as totally unnecessary casting serious doubts on the veracity of prosecution version.
11. As per the inquest report (Ext.PF) recorded by the I.O. at the spot, the mouth and eyes of the deceased Mureed Kazim were open. Dr. Muhammad Ramzan PW-7 when asked if usually the eyes and mouth of a deceased were open in unattended dead bodies, he replied in the affirmative. The case of defence throughout was that it was an unseen occurrence and that on account of previous enmity of the complainant party with Ladhu convict appellant, he was framed in this case. It was also the case of defence that to strengthen the motive, Mst. Bilqees was connected with Ladhu having so-called illicit relations with him. The enmity is proved on record vide the documentary evidence Ext.DA, Ext.DB, Ext.DC and Ext.DD as submitted in defence by Ladhu accused. Enmity is a double.edged weapon. It may be noted that previous enmity with Ladhu convict appellant was not disclosed in the FIR and instead it was alleged by the prosecution that Mst. Bilqees convict appellant had illicit relations with Ladhu convict appellant and that they considered the deceased as an obstacle in their promiscuous relations and it was for this reason that the deceased was killed. According to the complainant himself, Mst. Bilqees was a "gentle lady'. The motive, therefore, was not proved. We are conscious of the fact that motive is irrelevant where other evidence on record is sufficient to prove the guilt of an accused. However, once a motive is set up, it lay on the prosecution to have proved it. The statement of Allah Bukhsh PW-9 lacks luster of impartiality. In his examination-in-chief, he claimed to be present at the scene of occurrence alongwith the complainant but during cross-examination, he stated that after about half an hour, he had reached the place of occurrence on the arrival of the police at about 10.00/11.00 a.m. He was permanent resident of Mauza Khanani. He was a witness in a Hadood case, of which FIR No, 953 was registered on 10.6.1997 at the instance of Hameeda Mai wife of Muhammad Qasim. This FIR is Ext.PD.
12. As per the statement of Dr. Muhammad Ramzan PW-7, he had not recorded the time in the post mortem report as to when the dead body was brought in the hospital. He also stated during his cross-examination that Column No, 3 of the inquest report was blank when he had received the dead-body. Column No, 3 of the inquest report relates to the date and time of the occurrence. The omission is material.
13. After carefully considering the evidence on record, we are not prepared to accept that the story given in the FIR was all correct. Ladhu convict appellant had previous enmity with the complainant party and Allah Bukhsh PW-9. Their presence at midnight in the house of Ladhu convict appellant at the time of marriage of his brother and sister, was quite unnatural if not impossible. There was no evidence to hold that the occurrence had taken place during moonlit night. According to the defence version, the occurrence had taken place during darken night and there was no motive for the convict appellants to have killed the deceased Mureed Kazim.
14. It is axiomatic that when direct evidence fails to inspire confidence of the Court, corroboratory evidence like recoveries would pale into insignificance. Recovery of hatchet (P-3) as per defence version was planted on Ladhu convict appellant. We do not want to attach any importance to the so-called 'recovery of hatchet (P-3) because the direct evidence has failed to inspire our confidence.
15. In the circumstances, possibility cannot be ruled out that it was an unseen occurrence and the presence of PWs in the house of Ladhu was invented and that story of illicit relations was also bolstered up to create a motive. In any case, the prosecution evidence was too tenuous to adequately nail down the convict appellants on a capital charge. We, therefore, feel that it would be better to err in favour of the convict appellants for the safer administration of criminal justice and to concede benefit of doubt in their favour. Consequently, we accept both the Criminal Appeals Nos. 203-J/2003 and 204-J/2003 and acquit both the convict appellants Ladhu and Bilqees extending benefit of doubt observing the rule of abundant caution. The Murder Reference No, 413/2003 is replied in the negative. The convict appellants shall be released forthwith if not required in any other case.