MUHAMMAD ZAFARULLAH, J.--This judgment will dispose of Murder Reference No. 195 of 1976 and Criminal Appeal No. 561 of 1977.
2. Mohammad Siddique son of Noor Mohammad, aged 35 years, resident of Chak No. 88/10-R, P. S. Khanewal, District Multan has been convicted under section 302, P. P. C. And sentenced to death and to a fine of Rs. 2,000 or in default to suffer rigorous imprisonment for a period of six months. He has also been convicted under section 366, P. P. C. And sentenced to five years' R. I. And to a fine of Rs. 2,000 or in default to suffer six months' R. I. The entire fine if realised is to be paid to the heirs of the deceased. The appellant was accused of abducting Mst. Parveen Akhtar in order to compel her for marriage against her consent and then of murdering her. The deceased Mst. Parveen Akhtar aged 16/17 years, daughter of Barkat was first cousin of the appellant.
3. The occurrence took place at 3-00 a.m. On 18March, 1975 within the area of Chak No, 69/RB, District Lyallpur. A report was lodged by Manzoor P, W., the brother of the deceased at Police Station Khurrian--wala, which is at a distance of 5 miles from the place of occurrence, the same day at 6- 15 a.m. It was recorded by Aman Ullah Khan H. C. P. W. 7.
4. [Medical Evidence].
5. The story of the prosecution according to Manzoor P. W. Is that Siddique appellant started living with his parents at Chak No. 69/R. B, about a year before the occurrence. Manzoor P. W. Himself was married and lived in separate kotha with his were within the same house. The appellant lived to another kotha of the same house with the deceased Mst. Parveen Akhtar, mother and her brother Ghafoor. The father also resided with the rest of the family but used to live at Lyallpur during those days where he was working as a labourer. The parents of the deceased had agreed to marry her toth the appellant but Manzoor P. W. Was opposed to this match. On this account the appellant and Manzoor P. W. Were not on speaking terms with one another. The parents of the deceased were adamant at the match while Manzoor P. W. Was opposed to it.
6. Manzoor P. W. Stated in the F. I. R. As well as in his statement that a few days before the occurrence the appellant had left the house and had gone away but had returned with a gun to forcibly take away Mst. Parveen Akhtar on the day of occurrence. On that day Mst. Parveen Akhtar was lying alone in her kotha as her brother Ghafoor and their mother Alam Bibi were not present and were out of Station. The appellant came to the house in the middle of the night and first knocked at the door of Manzoor P. W. And called him out with a threat that the appellant was taking away his sister and that he could stop if he so wished. Manzoor P. W. Did not come out of the kotha for fear of being harmed. The appellant next knocked the door of Mst. Parveen Akhtar who came out and was taken away at gun point by the deceased. Subsequently, Manzoor P. W. Asked for help and Salamat, Mengha P. Ws. And Jilal Din joined him in chasing the appellant. The appellant had gone 3/4 killas from the abadi when this party challenged him. On hearing this challenge the appellant threatened that if the P. Ws. Came near, he would kill them. Since they continued to chase the appellant seeing that abduction of Mst. Parveen Akhtar was becoming a failure he fired 2 shots at her. The appellant then proceeded towards the roadside and fired at Sardar P. W. Who was a Chowkidar at a bhatta and who had also challenged him. The appellant succeeded in boarding a bus and went away. Manzoor P. W. Then came to the place where his sister had been hit and found that she had died.
7. The case of the appellant, as is evident from his appeal and trend of the cross examination, is, that it was Manzoor P. W. Who had killed his sister when his parents were adamant at marrying Mst.
Parveen Akhtar with the appellant and has falsely implicated the appellant as he (Manzoor P. W.) had thought it to be a matter of honour for him. The appellant in his appeal from Jail has stated that Mst. Parveen Akhtar was desirous of marrying him, and that it was not possible that he should him--self have killed his girl friend.
8. The prosecution has produced apart from Manzoor P. W., Mengha and Salamat (P. W. 11 and P. W.
12) as eye-witnesses to the occurrence. Jilal Din has not been produced. Evidence has also been led to the recovery of empty cartridges from the place of occurrence and the gun from one Mohammad Aslam to whom the appellant had allegedly sold the gun for Rs. 200.
9. Manzoor P. W. Is the main witness in this case. He is the brother of the deceased and has lodged a report with the police. He is one of the persons who opposed the match between the deceased and the appellant and according to the appellant was responsible for the death of Mst. Parveen Akhtar. He has repeated the story narrated in the F. I. R. And has stated that the appellant after abducting Mst. Parveen Akhtar from her house was snaking her walk in front of him when he was challenged by Manzoor and other P. Ws. According to him the appellant shot at the deceased and killed her when he discovered that his attempt of abduction had failed. The P. W. In his cross- examination has stated that it was correct that the parents did not care for his annoyance and were adamant for marrying Mst. Parveen Akhtar with the appellant and that for 2/3 months of the occurrence he had strained relations with his parents for this reason. Manzoor P. W. Has also mentioned that in a third room of the house his aunt lived. He has also pointed out that the Ihata where these rooms are located has a boundary wall and a deohari and that at the time of occurrence the deohari was chained from inside as were the rooms of the deceased and of Manzoor P. W. He has stated that his aunt did not come out of her room. She had however, come out when an alarm had been raised and people had collected numbering about 100.
10 Salamat P. W. 11 has repeated the story of Manzoor P. W. And has stated that he, Mengha P. W.
And Jilal Din had collected on the alarm raised by Manzoor and then joined him in chasing the appellant. Salamat however has made one change from the story narrated by Manzoor P. W. He has stated that on the lalkara raised by them during the chase Mst. Parveen Akhtar tried to run back and come out of the clutches of the appellant whereupon the appellant shot at her. Mengha P. W. 12, has a similar story to tell. All these witnesses have repudiated the suggestion put to them that it was Manzoor P. W. Who had killed his sister as he thought that it was a matter of honour for him,
11. As stated above 2 empty cartridges were recovered from near the dead body, they are P. 6 and P.
12. 'They were taken into possession on 18th March, 1978 vide memo Exh. P. B. One empty cartridge P. 7 was recovered the same day from near a brick-kiln and was taken into possession vide memo Exh. P. D. The gun P. 5 was recovered on 24th April, 1978 and was produced by one Mohammad Aslam at the pointing out of the appellant. The gun was unlicensed and a case was registered against Mohammad Aslam. According to the fire-arms Expert the empty cartridges recovered from near the place of occurrence had been fired from gun P. 5 which had been recovered from Mohammad Aslam at the pointing out of the appellant Mohammad Aslam was not produced.
12. The evidence for the prosecution creates a highly improbable story as it raises certain very important issues which create a lot of doubt in accepting the prosecution story. The strongest of these is the question of motive. The prosecution story itself reveals that everyone except Manzoor P.
W. Was agreed to the proposal of marriage between Mst. Parveen deceased and Mohammad Siddique appellant. Mohammad Siddique appellant was living in the same kotha as the deceased, alongwith her mother and brother. Manzoor P. W. Had strained relations with his parents on account of the proposed marriage. He was living separately from his parents although in another kotha of the same house. The appellant had been permitted to live in the same kotha as the deceased a young girl of 16/17 years, with the consent of her parents and in full knowledge of Manzoor P. W. Who by his own statement was opposed to the proposed match to he extent that he had stopped speaking to the appellant. Under these circumstances it is not believable that the appellant had any motive to kill Mst. Parveen. She was to be married to him and her parents were willing and they did not even care for the annoyance of their son's Manzoor P. W. Again it is probable that Mst. Parveen Akhtar was also desirous of her marriage to the appellant. Although this has not come out in so many words in evidence, but it is to be seen that contrary suggestion has also not been made in the prosecution evidence. We feel, however, that the circumstances show that she was a willing party.
13. On the day of occurrence as stated by Manzoor P. W. The deohari was chained from inside, his own room was chained from inside and the room of the deceased was also chained from inside.
The appellant who has only one leg could have either climbed over the compound wall or the chain of the deohari was opened for him. It is nowhere in evidence that the appellant had scaled over the wall. The only other possibility is that the chain of the deohari was opened by none else than Mst. Parveen Akhtar herself, This proposition also gains strength from the prosecution story that while Manzoor P. W, did not dare to open his door when be was challenged by the appellant yet the deceased opened her door at the bidd--ing of the appellant. Yet another circumstance is the fact that the deceased was allowed to sleep in her room alone during 2/3 nays before the occurrence when her mother and brother had gone away, her father being already away from the village. In the normal course of events under such circumstances she would more likely be sharing the room of her aunt as a young girl would not have been left alone by her own mother and brother.
14. The conduct of Manzoor P. W. At the time of occurrence is unusual. He saw his own sister being taken away forcibly by a person whom he did not like and he proves so ungallant as not dare to come out of his own room, Similarly, the conduct of Mst. Parveen Akhtar as stated by the prosecution is unusual. It is not believable that she would not resist being taken away and not raise a single voice throughout the occurrence.
15. As mentioned above it is a fact that the appellant has only one leg. The prosecution has tried to show that at the true of occu1rcnca he was wearing a wooden leg. But whether or not he had a wooden leg it is not possible for a man in this condition to scale over the wall easily or to run away from the place of occurrence and not be caught by 100 odd persons who had collected in the house of Manzoor P. W. While the appellant and the deceased were only 2 to 4 killas away from the abadi.
16. Learned counsel for the State has contended that Salamat, Mengha P. Ws. Are disinterested persons and independent witnesses and it is not possible to reject their testimony. While this is correct that these two of the eve-witnesses are in no way related to Manzoor P, W. The com-- plainant, nor have they been shown inimically disposed towards the appellant, it is probable that they have come out in support of Manzoor P. W. Who by their standards of morality was doing something honourable in removing the evil from the village which had been perpetrated by an outsider, namely, Siddique appellant. Considering the circumstances and the discussion made in the preceding paragraphs we are of the view that the prosecution story is highly improbable. The story narrated by Manzoor P. W. 9 the complainant is not believable, Salamat and Mengha P. Ws.
Are supporting Manzoor as they believe that they are doing something honourable.
17. In view of the above the appeal is accepted. Siddique is acquitted of both the charges against him. He shall be set at liberty if he is not required in any other case,
18. The death sentence is not confirmed.