GHULAM MUJADDID MIRZA, J.-Muhammad Amjad, son of Near Muhammad, resident of Chak No. 243 G. B. District Faisalabad, -was tried for the murder of Mst. Hamidan, by an Additional Sessions Judge, Faisalabad, who by judgment dated 13th February, 1979 convicted him under section 302, P.
P. C. And sentenced him to death and fine of Rs. 1,000 or in default of its payment one year R. I. He was also convicted under section 449, P. P. C. And sentenced two years' R. I. And a fine of Rs. 500 or, in default, to undergo further R. I. Of six months.
The convict has filed appeal against his conviction and sentences. Reference under Section 374, Cr.
P. C. Is also before us. Both these matters shall be disposed of by this judgment.
2. This occurrence took place on 18th June, 1976 at 7-30 a. m. At Chak No. 243-G. B. Khair Din, uncle of deceased's husband, lodged report Exh. P. G. The same day at 10 a. m. At Police Station, Rajana.
3. The motive for the murder was that four days prior to the occur--rence, when Mst. Hamidan went to the fields for toilet, the appellant cut indecent joke with her. She abused him. She, on return, narrated the incident to Khair Din who in turn informed Niaz Muhammad Lambardar. He reprimanded the appellant. On this the appellant told Khair Din that he would avenge for that insult.
4. The appellant, at trial, denied all the allegations levelled against him and stated that he had been involved due to enmity. When further questioned had he anything else to say, his reply was : - ---I am innocent. Rashid the husband of the deceased and his relatives suspected illicit intimacy with Mst. Hamidan with me. On the morning of the day of occurrence I and Hamidan came out of the maize crop together, whereupon Rashid and his relatives being armed with hatchets attacked us. Rashid gave a hatchet blow to me which fell upon my left foot, but I ran away and escaped.
Rashid and his relatives killed Mst. Hamidan and subsequently implicated me falsely in this case.
My father produced me before the Police. The Police planted recoveries against me."
However, he declined to produce any defence evidence.
5. Khair Din the first informant and Muhammad Rafique appeared as eye-witnesses. The prosecution also relied on the recovery of hatchet found to be stained with human blood by the Serologist. Post-mortem report too was pressed into service.
6. We would, first of all, discuss the ocular testimony, then refer to the recovery of hatchet and the medical evidence.
Khair Din (P. W. 6) before the trial Court deposed that on the day of occurrence, he was sitting on the Tharra in front of his house. Amir and Muhammad Rafiq P. Ws. Were also sitting there. The appellant came from the North and went towards the South by-passing them. He was carrying a hatchet. After about 3 or 4 minutes, he saw the appellant dragging away Mst. Hamidan. He held her by hair and took her 4 to 5 karams away from her house. Sher aised hue and cry. Khair Din and his companions rushed to the spot. They saw the appellant giving hatchet blows to her. She was lying on the ground. Khair Din, Amir and Rafique caught hold of the appellant at the spot alongwith the hatchet, Mst. Hamidan was dead. The witness further deposed that he saw the accused receiving an injury on his left foot and then he was handed over to Abdur Rehman, Lambardar alongwith the crime weapon. He also deposed about the motive referred to above.
Muhammad Rafiq (P. W.-7) stated that while he was sitting with Amir and Khair Din (P. W. 6), he saw the appellant by-passing them. After five minutes the party heard hue and cry of Hamidan and saw her being dragged by her hair by the appellant. Thereafter, the appellant started giving injuries to her with hatchet. They went to the spot. The witness further deposed "I grappled the accused from his back side and Amir and Khair Din snatched the hatchet from him." Mst. Hamidan expired.
In order to establish the recovery of hatchet, the prosecution pro--duced Abdur Rehman Lambardar (P. W. 8). He stated that Amir and Khair Din had brought the appellant to his house.
Khair Din was holding a blood-stained hatchet. He produced him before the Police at its arrival alongwith hatchet.
Dr. Muhammad Latif Malik (P. W. 2) who performed the post--mortem examination, found 1 to 7 incised wounds and one abrasion. The injuries had been caused by a sharp-edged weapon. The following three injuries were found by the doctor to be sufficient to cause death in the ordinary course of nature :-
(1) Incised wound 4" x ----- x bone deep situated on the occipital region of the right side of head:
(2) The whole neck was cut alongwith all structures and it was hanging with skin and faty tissues only on left side of neck.
(3) Incised wound 6--- x 2----- on the back mid-line about 2" below the -neck root cutting the vertebral column underlying in full thickness.
7. Learned counsel for the appellant contended that both the eye--witnesses made substantial improvements in their statements before the trial Court, as such no reliance could be placed on their testimony. As a matter of fact, they did not see the occurrence otherwise there would not have been such a vast difference between what they stated before the Police and their evidence on oath before the trial Court.
It was next contended that the version given by the appellant was more plausible.
Similarly, the learned counsel challenged the recovery and also submitted that the motive had been disbelieved by the trial Court.
8. Khair Din (P. W. 6) is uncle of deceased's husband. Muhammad Rafiq (P. W. 7) is not related to the complainant party. He is an indepen--dent person. Hence, we have to see whether the testimony of Khair Din finds corroboration from the evidence of Muhammad Rafiq. But, before doing so, we would like to refer to some of his (Khair Din) evidence brought on record in cross-examination. He deposed that .He mentioned to the Police the appellant passed by them while coming from North and going towards the South. But this fact does not find mention in Exh. P. G. He further deposed that he did not state before the Police that he saw the appellant dragging Mst. Hamidan. The explanation he gave for this was that the Police did not question him. He also stated that he did not state before the Police that he and his other companions saw the appellant entering into the house of Rashid husband of Mst. Hamidan, but all this was mentioned in Exh. P. G. An other thing which is very important than what has been referred to above is that be admitted to have narrated the incident of cutting indecent joke to Rashid, husband of Mst. Hamidan, and his father on the same very day, yet we find that neither the husband nor father-in-law of the deceased was examined by the prosecution. Perhaps, it may not be necessary to examine father-in-law but we fail to understand why the husband of the deceased who was an important witness was not examined.
Even, otherwise, it appears to be most un-natural that Mst. Hamidan choose to mention the incident to the uncle of her husband and not to- her husband As is clear from the evidence of the Investigating Officer Muhammad Yasin (P. W-9) the husband of Mst. Hamidan was not even made to join the investigation. The explanation given by the Police Officer that he did not think it necessary to examine him does not appear to be reasonable and convincing.
Muhammad Rafiq's testimony is full of contradictions and omis--sions. When he was confronted with his statement Exh. D. A., the defence brought on record so many important omissions and contradictions that IA it virtually ruined the entire prosecution case. For instance, he said that in his statement before the police, he mentioned that Amjad by--passed them. He further deposed that he told the Police that they heard hue and cry of Mst. Hamidan after the appellant had passed. The witness even mentioned the fact that he grappled with the accused from his backside. He also deposed that he told the Police that Amir and Khair Din snatched the hatchet. All this has not been mentioned in Exh. D. A. That is not the end. When further cross-examined as to whether he stated before the Police that he stayed with the deadbody and Khair Din and Amir took the appellant to the house of the Lambardar. It was found that he had not so stated in Exh. D. A. Similarly, the fact that hatchet got stuck in the neck of Mst. Hamidan and while pulling it out, he, hurt his left foot, also does not find mention in Exh. D. A.
As is evident from the statement of the Public Prosecutor, Niaz Muhammad Lambardar was not examined, the reason being that he had been won over by the accused. Amir another eye-witness was given up being un-necessary.
9. After considering the ocular evidence, we are of the view that it is not safe to rely on the testimony of Khair Din unless it finds corro--boration from other independent unimpeachable evidence and that could only be in the statement of Muhammad Rafiq but having noticed how much inconsistent Muhammad Rafiq had been, inasmuch as his evidence before the trial Court was, substantially different from what he told to the Police, we don't think that his testimony provides necessary corrobo--ration to the evidence of Khair Din. Even, otherwise, the evidence of Khair Din does not inspire confidence. Hence, we disbelieve both the witnesses. Then there is no other evidence on the basis of which the conviction could be upheld.
For the foregoing reasons, we are of the view that the case against the appellant is not free from doubt. Hence, we decline to confirm the death sentence allow the appeal and acquit him.
The appellant shall be set free, forthwith, if not required to be detained in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.