MAZHARUL HAQ, J.-Muhammad Ali (25) and Mst. Sabiran (25) wife of deceased Muhammad Saeed were tried by the Sessions Judge, Jhang for the murder of Muhammad Saeed. On 2nd February, 1978 they were convicted under sections 302/34, P. P. C. And 201134, P. P. C. Muhammad Ali was sentenced to death and fined Rs. 3,000 in default to suffer two years' R, I. On the second count he was sentenced to three years' R. I and fined Rs. 500 in default to suffer six months' R. I. Mst Sabiran was sentenced to life imprisonment on the first count and fined Rs. 1,000 in default to undergo one year's R. I further. On the second count she was sentenced to three years' R. I and fined Rs. 500 in default to suffer six months' further R. I. All sentences to run concur--rently. The appeals of the convicts and the connected murder reference are before us.
2. Muhammad Ali accused's Dhari , was near the Dhari of Muhammad Saeed (deceased). He developed illicit intimacy with Mst. Sabiran accused, wife of Muhammad Saeed. In order to eliminate her husband, the two killed him at about 1l a. m. On 15th April, 1976 This occurrence was witnessed by P. W. 6 Azmat (informant) and his companion P. W. 7 Sultan. On the day of occurrence these two witnesses and one Ch. Nawab Khan had gone to visit Syed Ghazanfar Ali Shah of village Ratta Matta. After finishing their business they were returning to their Dharis and at about 11 p. m.
When they reached near the Dhari of Saeed deceased, they heard an alarm coming from inside the Dhari. They rushed there and saw Muhammad Ali attacking Muhammad Saeed with a toka on his head and the neck as he lay on the charpai, held by his legs by Mst. Sabiran. He was raising an alarm. The witnesses went closer but were frightened by Muhammad Ali with death. Out of fear they did not go nearer. After the two had done Saeed to death they then carried his charpai to the cattle-shed and set fire to it. On the alarm of the witnesses people from the neighbouring Dhari came over, they were apprised of the occurrence. P. W- 6 Azmat proceeded towards the police station for making a report. The next morning at 10 a. m. He met P. W. 10 Ashiq Hussain A. S. I. At Mor Mandi where the A. S. I. Was on patrol duty. He made statement Exh. P. B. To him which was sent to Police Station Qadirpur and the formal R. I R. (Exh. P. B./1) was registered. The A. S. I. Went to the spot.
Saeed deceased's dead body was on a cot inside the burnt chappa~. He prepared the necessary documents and sent the dead body for its post--mortem examination. On the same day, i. e. 16th April, 1976 he arrested the accused from the Dhari of Muhammad Ali accused ; they had been detained there by the villagers. Mst. Sabiran's shirt Exh P. 1 was bloodstained. It was got removed, made into a sealed parcel and taken into possession vide Memo. Exh. P. D. Muhammad Ali accused was wearing blood-stained chadar (Exh. P. 2). It was made into a sealed parcel and taken into possession vide Memo. Exh P. E. Muhammad Ali accused produced his blood-stained roka (Exh. P.
3.). It was also sealed and taken into possession vide Memo Exh. P. F. The Investigating Officer then recorded the statements of the witnesses and completed the investigation.
3. P. W. 1, Dr. Mumtaz Ahma3, Medical Officer, Rural Health Centre Mochiwala, held the autopsy at l I a. m. On 17th April, 1976 and made the following observations.- Injuries:
(1) An incised wound 4" x 2" on the left side of the neck. The underneath blood vessels were cut.
(2) An incised wound 6" x 1----- x 1" on the right side of neck. The underneath blood vessels were cut.
(3) An incised wound 3" x 2" bone deep on the lower Jaw. The mandible bone and the lower lip were cut.
(4) A stab wound 3" x 2" on the right side of the abdomen.
Death occurred due to shock and haemorrhage as the blood vessels had been cut. The injuries were individually sufficient to cause death in the ordinary course of nature. Death was instantaneous on receipt of the injuries. Probable time between death and post-mortem examination was about 48 hours. The body was burnt superficially upto muscles. Peritonium underneath the abdominal wound was cut. The neck vessels and trachea had been cut.
4. At the trial both accused denied guilt and ascribed the case to enmity with Ghazanfar Abbas.
Explaining the case against him. Muhammad Ali made the following statement:- Answer to Question 9: "I have been falsely implicated due to enmity with Ghanzafar Abbas, a landlord of village Ratta Matta. Muhammad Saeed deceased was a man of bad character. A few years prior to the occurrence, he was challaned in a case under section 307, P. P. C. For causing injuries to one Abdul Waheed, a relative of Muhammad Zamurrad Karadar of Ghazanfar Abbas aforesaid. During the night of occurrence at about 10 O'clock an alarm came from the of the deceased. Myself and several other persons from the Dhari neighbouring Dharis went to the spot and found the dead body lying near the courtyard of the jhuggi of the deceased. A chaukidar was sent to the police station to report the matter. Ashiq Hussain, A. S. I. Came to the spot before sunrise and after conducting investigation at the spot, he joined several people including Saleem and Abdul Waheed as suspects. At about digerwela the A S. I. Went to the dera of Ghazanfar Abbas and it was at his instance that the suspects were let off and I was falsely implicated. Prior to the occurrence, the lands of Ghazanfar Abbas were allotted to my father and several tenants under the Land Reforms. We started paying instalments of compensation to Government but Ghazanfar Abbas aforesaid continued getting the share of produce from us. My father, myself and other persons refused to pay him the share of produce and instituted a case in the revenue Court and ultimately the same was decided in our favour by Commissioner, Sargodha Division. Ghazanfar Abbas aforesaid was annoyed with us and he got me implicated in this case. After I was challaned' in this case Ghazanfar Abbas aforesaid succeeded in his plan and we surrendered to him and now he is getting the share of produce of that land from us."
Muhammad Ali produced certified copy of Police report Exh. D. B. Of a case under section 307, P. P.
C. Registered against the deceased for a murderous assault on one Waheed the employee of Muhammad Saeed. Exh. D. C. Is the copy of the order dated 14th April, 1976 passed by Magistrate section 30, Bhalwal, discharging Muhammad Saeed in the said case because prosecution had not produced evidence for 14 months in the case. Copy of Khasra Girdawari (Exh. D. D.) was produced to show that P. W, Sultan had land in village Latifpur. Copy of order Exh. D. E. Dated 26th April, 1976 of Magistrate Ist Class, Jhang, rejecting the application for the identification of Muhammad Ali accused because the case had been sent for trial to the Court of Sessions Judge.
5. Explaining the case against her Mst. Sabiran made the following statement :- "I have been falsely implicated at the instance of Ghazanfar Abbas, a landlord of village Ratta Matta. My father Ahmad Din had a dispute over land with Ghazanfar Abbas aforesaid. The deceased was a bad character. During the night of occurrence, the deceased had gone out of the house. At about mid-night when I woke up I found the dead body of Muhammad Saeed deceased lying on the ground near our courtyard. It was already burnt. I raised alarm and the people from the neighbouring jhuggis reached there. A chaukidar was sent to the police station to report the matter."
Both accused led no evidence in defence.
6. Trial Court had no doubt about the guilt of the accused. It found the evidence of the eye- witnesses and of the recoveries reliable because the witnesses had no enmity with the accused and were also not connected with the deceased in any manner. It thus weighed much with the trial Court that the evidence in this case came from disinterested witnesses. No doubt, the eye- witnesses are disinterested, but their evidence is such that it does not inspire confidence. Before analysing their evidence, we may mention here that P. W. Sultan is the son-in-law of P. W. Azmat's brother Allah Yar. Their story is that Sultan had some land dispute with his brothers and for its settlement they had gone to th the dera of Ghazanfar Abbas Shah situated in village Ratta Matta where they reached at 3 p. m., but did not find Ghazanfar Abbas Shah there. They waited for him till about I 1 p. m. And thereafter left for their lauses It was on the way that they saw the occurrence which took pitce inside the jhuggi of the deceased ; they were attracted to it on the alarm of the deceased and witnessed the attack from a distance of three karams from the deceased's jhuggi. It nay be mentioned here that neither Azmat in the F. I. R. Not Sultan in his statement before the police had mentioned that Ghazanfar Abbas Shah was not available at his dera and they waited for him till about 10/11 p. m., and thereafter left because he did not turn up. On the contrary, the narration in the F. I. R. Shows that after having finished their business at the Vera of Ghazanfar Abbas Shah Races, Mauza Ratta, they were returning home at about 11 p. m. It is clearly mentioned by Sultan in his Police statement that Ghazanfar Abbas Shah was at his dera where Ch. Nawab P. W. (given up as won-over) was with him What was still worse for the prosecution case, that Sultan had said before the police that they went to the dera of Ghazanfar Abbas Shah at night. Of course the witnesses denied having -made these admissions before the police, but there is no doubt left in our mind that the two witnesses were trying to build up some story to make believe their presence at that late hour of the night near the place of occurrence. There is yet another circumstance which makes their story further doubtful, i. e. Sultan had gone with P. W. Azmat to Ghazanfar Abbas Shah to settle the land dispute with his brother, but admittedly Sultan's brothers were not at the dera of Ghazanfar Abbas Shah. As such the story of the settlement with his brother also appears to be got up story.
7. The claim of the witnesses that they were attracted to the spot on the alarm of the deceased too appears to be doubtful as the story is improbable, because according to the medical evidence, deceased's four injuries were individually fatal and were so located that the deceased could not have cried out. Even otherwise, it appears that the injuries were inflicted to the deceased when he was asleep, because had the deceased been awake, he would have certainly caused some resistance which there was none because there is no injury on his hands and according to the prosecution, Mst. Sabiran had caught hold of the deceased by his legs only. Again, it was doubtful whether the witnesses could see from outside the jhuggi from a distance of three karams as to what was happening inside, particularly when there was no light inside the jhuggi. We have no doubt in our mind that the witnesses have stage-managed their presence at the spot. The delay in making 'the report with the Police and that too not at the police station would, under the circumstances, be a material circumstance against the prosecution case.
8. It is the prosecution case itself that the accused tried to destroy the evidence against them by setting fire to the chhappar under which they had placed the charpai of the deceased and run away; strangely enough they appeared with their blood-stained clothes before the police the following day. However, besides the Investigating Officer, P. W. 8, Mehar Hassan Shah was the only witness produced who attested the recoveries from the accused. He explained his presence at the spot by saying that he had gone there on learning about the murder and Ghazanfar Abbas Shah had also asked him to go there. He further admitted that Salehon father of Muhammad Ali accused had instituted a suit in the revenue Court against Ghazanfar Abbas Shah to restrain him from getting the share of the produce of the land which he had got under the Land Reforms. This witness denied Ghazanfar Abba Shah's influence on him. But it was admitted by Sultan P. W. Unde cross- examination that Muhammad Hussain Shah was from the brother--hood of Ghazanfar Abbas Shah. Muhammad Bukhsh, the second A witness of recovery was, however, given up as having been wonover. The entire story as put up appears to be so doubtful that we do not consider it safe to rely on it. Giving the benefit of doubt to the appellants, we accept their appeals, and acquit them. Death sentence is not confirmed.