MUHAMMAD AFZAL CHEEMA, J.-Bahadur (33) and his mater--nal uncle Nur Ahmad (37) resident of Chak No. 554/G B Police Station Mamun Kanjan, District Lyallpur, were tried and convicted under section 302/34, P. P. C. By Mr. Masood Ahmad Ansari, Additional Sessions Judges, Lahore at Sahiwal, for having committed the murder of Mst. Amiran alias Hameedan, a 15 years' old daughter of Muhammad complainant, near the latter's Dhari in Square No. 114 of Chak No. 5/11 /L, Police Station Harappa, on 19-3-1967 at about sunset time. They were awarded capital punishment each and have filed an appeal against their conviction and sentence. Their case has also been referred to under section 374, Cr. P. C. For the confirmation of the sentences of death. This judgment will dispose of the Criminal Appeal as well as the Murder Reference.
2. The relevant background of the case as alleged by the prosecution briefly is that multiple relationship existed between the parties. Mst. Pathani, the elder daughter of Muhammad complainant, had been married to Ramzan, elder brother of Bahadur appellant, who was a nephew (brother's soil) of the complainant's wife Mst. Fatima P. W. In exchange, Mst. Amiran sister of Ramzan and Bahadur appellant as married to the complainant's son Ale Sher. Nur Ahmad, the maternal uncle of Ramzan, and Bahadur again solicited the hand of the complainant's younger daughter Mst. Amiran alias Hameedan deceased for his nephew (sister's son) Bahadur appellant to which Muhammad was not agreeable and betrothed her to Sultan son of Ghulam P. W. 2 in exchange for the latter's sister Sattan who was to be married to his son Iqbal P. W.
14. This new alliance was not relished by the appellants who sent the complainant's elder daughter Pathani, wife of Ramzan, to bring pressure on her father to agree to their proposal but he remained adamant. Consequently, the rift became serious and the complainant's daughter Mst. Pathani was sent away by her in laws to live with her parents and they also took away Mst. Amiran, wife of the complainant's son. Ali Sher About 8/10 days prior to the occurrence, Nut Ahmad appellant again, visited 'the complainant in Chak No. 5/11/1, repeating the request which was again turned down, Nur Ahmad left in frustration, but returned once again on 18-3-1967 accompanied by his nephew and co-appellant Bahadur, to make a final bid and finding the complainant adamant as before threatened hint with, dire consequences of killing the girl and left in fury.
2-A. On the following day on 19-3-1967, a little before sunset time, Mst. Amiran alias Hameedan, accompanied by her mother Mst. Fatima .P. W. 12 went out of the Dhari where the family lived, away from the village abadi, to ease herself. As both of them went ahead of the Okan tree along the path shown as point No. 4 in the site plan Exh. P. F., only a few karams from the dhari, the two appel-- lants suddenly emerged, caught hold of the deceased, took her to the adjoining wheat field and felled her. Nur Ahmad appel--lant who held churri in his hand slit her neck. Mst. Fatima ran out of fear and raised an alarm which attracted her husband Muhammad complainant P. W. 11 his son Muhammad Iqbal P. W. 14, and two other persons Waryam and Muhammad son of Ismail, who were not produced at the trial as having been won-over. They all chased the appellants, but on being threatened by them did not go near. The deceased succumbed to the injury almost instantaneously. The complainant came to the village and informed Subedar Fazal Dad Lambardar D. W. 1, who sent Jan Muhammad chowki--dar with him to lodge a report at the Police Station, which was recorded by Muhammad Aslam S. I. P. W. 16 at 3-15 a.m., on the following morning, at Police Station Harappa, at a distance of four miles, and is Exh. P. A. On the record.
3. Muhammad Aslam S. I., stated to have reached the spot at 5-30 a.m. Which of course is seriously challenged by the defence, saw the dead body of the deceased lying at the spot in killa No. 21 Square No. 113. He prepared the injury statement Exh. P. H. The inquest report Exh P. J., recorded the statements of the P. Ws., and recovered from the spot blood-stained earth and 12 broken pieces of glass bangles lying near the dead body, vide memo. Exh. P. B. He got prepared the site plan P. E.
From Khushi Muhammad patwari P. W. 6 and despatched the dead body for post-mortem examination in the escort of F.C. Faiz Ullah P. W. 3.
4. The post-mortem examination was conducted by Dr. Wasim Akhtar Medical Officer, District Headquarters Hospital Sahiwal on 20-3-67 at 3 p.m., who vide his report Exh. P. R. Found it to be the dead body of a stout young lady with a big incised wound 9" x 4" starting from the right side of neck just below the right ear extending on the middle of neck in front and to the left side, all the underlying muscles, blood vessels trachea, oesophagus were cut. The wound was deep up to the cervical spine, which lay exposed. The other organs were found to be healthy the stomach contained 8 ounces of partially digested food. The small and large intestines contained gas and faecal matter. The bladder con--tained five ounces of urine. The uterus was healthy. Hymen was found to have a healed-up laceration. According to the doctor, death had occurred immediately after the receipt of injury, and time between death and post-mortem was within 20 hours. The doctor took two vaginal swa bs on his own which were not found to be stained with semen vide Chemical Examiner's report Exh. P. S.
5. Bahadur appellant was arrested by the S. I. On 23-3-67. A week later on 30-3-1967, Nur Ahmad appellant was produced before him by one Mahmood Kathia, who did not enter the witness-box, while in custody Nur Ahmad led to the recovery of Chhuri P. 1 which lay buried in a wheat field in killa No. 5 of square No. 128 and was later found to be stained with human blood, vide serologist's report Exh. P. T. In the course of investigation, Muhammad Aslam S. I. Also brought on the record several documents showing the existence of bad-blood between the' parties leading to civil and criminal litigation. Of these Exh. P. L. Is a copy of report dated 10-12-66, lodged by War yam son of Ghulam at Police Station Mamun Kanjan alleging inter alia that Bahadur Cheema appellant and his brother Ramzan had given a beating to their paternal aunt Mst. Fatima P. W. 12 when she had visited their village Chak No. 554/G. B. In connection with the condolence of her grandson. Exh. P. M.
Is the original com--plaint filed by Bahadur appellant in the Court of the Deputy Commissioner, Lyallpur on 2-1-67 against his brother in law Ali Sher son of Muhammad complainant and four others under section 107/151, Cr. P. C. Which was ultimately marked to S. H. O, Police Station Harappa to whose jurisdiction it pertained. Exh. P. N. Is a copy of a complaint dated 7-1-67 filed by Bahadur appellant against Ali Sher and three others under section 342/364/365, P. P. C. Alleging against them forcible abduction of his sister Mst. Amiran. The last document in the series Exh. P. O. Is a copy of a plaint filed by Bahadur appellant against the deceased in the Court of the Senior Civil Judge, Lyallpur, for restitution of conjugal rights, which is dated the 18th of January 1965. It would be per-- tinent to point out in this context the divergence between the prosecution and the defence version.
According to the former, the deceased was still unmarried and was only betrothed to one Sultan son of Ghulam, whereas according to the latter, Bahadur appellant claimed her to be his lawfully wedded wife who was allegedly married to him in exchange for the marriage of his sister Maryam with Qadir another son of Muhammad complainant. It was also averred in this plan that Mst.
Maryam sister of Bahadur plaintiff-appellant having died, the complainant and his wife sought the hand of his other sister for marriage with Qadir.
6. Having completed the investigation, the S. I. Sent up the two appellants for trial on a charge under section 302/34, P. P. C. At the trial, the prosecution case principally rested on the eye-witness account of Muhammad complainant P. W. 11 his wife Mst. Fatima P. W. 12 his son Iqbal P. W. 14, supported by the evidence of motive, the medical evidence and the recovery of blood-stained chhuri P. 1 effected at the instance of Nur Ahmad appellant. The case of the appellants at the trial was more or less one of denial simpliciter who raised no specific plea and led no evidence in defence. Placing full reliance on the testimony of the eye-witnesses, the learned Sessions Judge was of the view that the offence had been fully brought home to the appellants and consequently convicted them with an award of capital punishment to each of them.
7. Learned counsel for the appellants raised the following contentions before us: -
(1) That there was an unexplained delay of 7 to 8 hours in the lodging of the F. I. R.
(2) That the choice of the venue of crime was highly im--probable being in close proximity of the dhari of the com--plainant within a distance of 10 to 15 karams from it. Furthermore, it Was equally improbable that the two appel--lants of whom one was armed with a chhuri certainly not a very effective weapon of offence or defence, having been seen by four P. Ws., committing a ghastly crime should not have been hotly pursued and engaged by them who succeeded in making good their escape, completely unscathed.
(3) That it did not stand to reason either that if the deceased had been murdered in the manner the prosecution would have us believe, she would not have sustained bruises on the back as an inevitable consequence of her struggle or injuries on one of her hands which was admittedly left free.
(4) That the significant existence of a mark of healed up laceration on the hymen of the deceased was clearly indicative of her easy virtue giving an altogether different tale.
(5) Lastly, it was contended that in all probability, it was a case of an unwitnessed occurrence as stated by Subedar Fazal Dad an elderly and respectable Lambardar of the village, who was the solitary witness examined by the appellants in defence.
8. We now proceed to consider seriatim the contentions raised on behalf of the appellants.
9. The first contention regarding delay is obviously no without force. Admittedly, the occurrence had taken place at about sunset time which on 19-3-1969, i.e. The date of occur--rence, was 18.15 hours at Lahore. In fact, according to Muhammad Complainant P. W. 11 it took place immediately before sunset. Leaving a margin of an hour or so for the complainant party to recover from the shock and get ready to lodge the report, it should not have taken them in any case more than two hours to do so merely at a distance of four miles and as such one could reasonably expect that it should have been lodged around 9 p.m. On the contrary, we find that it was not lodged till 3.15 a.m.
On the following morning and as such there was a delay of about 6 hours for which no reasonable explanation is forthcoming. This obviously left considerable room for consultation and conference and should, therefore, rightly put one on the guard. It assumes special significance when considered in the light of the statement of Subedar Fazal Dad Lambardar who appeared as D. W. 1 to state that when the complainant and his son contacted him on the previous evening, they had no knowledge of the murderers.
10. Coming now to the second contention regarding the venue of the occurrence, it may be observed that being in close proximity to the dhari of the complainant where his entire family lived, it appears to be a case of extremely unusual and highly improbable choice by which the murderers ran a grave risk of being readily accosted, chased and even over-come by the inmates of the house. Assuming that the mind of a determined criminal in some cases might not be so -- sensitively apprehensive of the risk involved in the choice of the place of murder, it should in all probability have been a case of touch and go and not a case of cold-blooded murder committed in a complacent manner by completely slitting the neck of the poor victim who was held so tight that she could not even struggle as indicated by the conspicuous absence of any bruises on her back. Again, according to Mst. Fatima, P. W. 12, only the right arm of the deceased had been held fast by Nur Ahmad appellant under his foot and her left arm was free and yet it bore no cut mark or any other injury which, in the circumstances, should, in all probability, have been inevitable.
11. Likewise, the next contention that the complainant accompanied by his son Iqbal and two other persons Waryam and Muhammad, who were not produced as having been won over, claiming to have actually seen the murder being com--mitted, does not appear to have given a hot pursuit to the two appellants, only one of whom was armed with a chhuri, which does not carry conviction being somewhat contrary to the ordinary course of human conduct. Their normal impulse would have been to rush to the spot regardless of the risk involved and grapple with the assailants who were clearly outnumbered and were not even dangerously armed and yet, we find that according to the prosecution Nur Ahmad appel--lant had the respite to bury chhuri P. 1 in killa No. 5 of square No. 128 not very far off from the place of occurrence which he later got recovered. If the P. Ws. Had really seen and pursued the appellants, as they would have us believe, it is inconceivable that the appellants had either the opportunity or the grit to bury the Chhuri then and there at a distance of less than a square from the place of occurrence. Their pursuit at the hands of the P. Ws. And the burial of the Chhuri are circumstances, which are mutually exclusive. All this would strongly suggest that the occurrence had not taken place in the manner alleged. In fact, one can easily discern a clear shift in the position taken by the P. Ws. Particularly, the complainant, before the police in the first instance where they claim to have seen the deceased being slaughtered in their presence; and later at the trial where the assailants were only seen by them running away from the spot. This would also go a long way to militate against the credibility of the witnesses. On the top of it all is the significant fact that a healed-up laceration had been found by the doctor on the hymen of the deceased who according to the asser--tion made by the P. Ws. Was unmarried at the relevant time. If in point of fact, she was a maiden as the prosecution would have us believe, then there is no escape from the invitable inference that she was a girl of easy virtue. It was suggested by the defence in cross-examination to the complainant that because of the immorality of his daughter he had him--self murdered her. Of course, it was merely a suggestion and nothing beyond it. However, in view of the above discussion, we cannot avoid an impression that the prosecution version bristles with doubtful circumstances and cannot be taken except with, a grain of salt.
12. Lastly, when considered in the above context, the statement made in defence by Subedar Fazal Dad, an 80 years old respectable Lambardar of the village,, assumes a special significance. He categorically stated that Muhammad com--plainant and his son Iqbal had seen him at about 8- 30 o 8-45 p.m. On the night of the occurrence and expressed the inability to name the culprits.
According to him, they categorically stated that the murderers were not known to them. He asserted that he wrote a chit to S. H. O., Harappa informing him of the murder of Mst. Amiran alias Hameedan with no reference to the culprits. This chit was not forth--coming for understandable reasons. It appears that being obviously conscious of this fact, Iqbal P, W. Even denied having accompanied his father, to the house of Fazal Dad on that evening and stated that he had seen the Lambardar on the following morning when the police had come there. Of course in this he, was belied by his own father Muhammad P. W. 11 who stated that his son accompanied him to the house of Fazal Dad Lambardar where they reached at 9 p.m. The cat was, however, out of the bag when Iqbal was confronted with his statement before the committing Magistrate where he had deposed that the Lambardar had told him in the morning that he had come to get information as to who were the murderers of Mst. Amiran deceased.
12-A. Another significant circumstance which further aggravates the doubts as to the veracity of the prosecution version is the discrepancy in the time of the arrival of the police at the spot.
According to Faiz Ullah P. W. 3, the police reached the spot at about 11 p.m. The same night, which obviously did not fit in with the time of the registration of the case and, as such was denied by Muhammad Aslam S. I. P. W,
16. It is common knowledge that in cases of this nature where the first information received by the police gives no clue of the culprits, the Investigating Officer would immediately rush to the spot, hold a preliminary investigation and then lodge the report naming the culprits therein if possible. This would also explain the disappearance of the chit allegedly sent by Fazal Dad Lambardar to the Police regarding the occurrence.
13. The upshot of the discussion, therefore, is that we are not satisfied that the offence has been fully brought home to the appellants. Consequently, we allow the appeal, set aside the convictions and sentences of the appellants and direct that they be released forthwith from the jail, if not required in any other case. The sentence of death is not confirmed.
14. Before parting with this case, however, we would like to make a few observations regarding the unsatisfactory mode of trial. In the first instance we see no justification for the learned trial Judge to have allowed the request made by the Additional P. P. For cross-examining Muhammad com-- plainant merely because of the slight shift made by him at the trial from his police statement.
Secondly, it is surprising that Fazal Dad Lambardar who appeared in defence was allowed to be confronted with his statement before the police for the purpose of corroboration, notwithstanding the objection raised by the defence in this regard. Lastly, we are astonished that the learned trial Judge readily agreed to the untenable suggestion made by the learned A. P. P. Regarding the corroborative value of the statements of Waryam and Muhammad recorded under section 164, Cr.
P. C., who were given up as D having been won over. Obviously, their statements were inadmis-- sible in evidence on that account and, as such should no have been read into evidence. A copy of this judgment may b sent to the learned trial Judge.