MUHAMMAD MUNIR KHAN, J.-This criminal appeal (Cr. A. No. 980-1979) and the connected Murder Reference (M. Reference No. 217-1979) under section 374 of the Code of Criminal Procedure arise from the judgment of the learned Sessions Judge, Vehari, whereby, he on 8th July. 1979 convicted the appellant, Hasna, aged 50 years under section 302 of the Penal Code for causing the death of Mst. Bakhan (his wife) aged 17 years and sentenced him to death and a fine of Rs. 2,000 in default thereof to further R. I. For two years with the direction that the amount of fine, if realised, shall be paid to the parents of Mst. Bakhan.
2. The occurrence took place on 9th March, 1979 at 10 p. m. In the house of the appellant situated in Basti Ayub Katal of village Chak No. 565/EB. The F. I. R. Exh. P. D. Is a report which was lodged by Nadra (P. W. 5) father of the deceased at 2 a. m. On 10th March, 1979 at Police Station Sadar Vehari, which was recorded by Abdul Aziz A. S. 1. (P. W. 7). The distance between the place of occurrence and the Police Station is seven miles.
3. Motive.-It is a case of no direct motive against the deceased. The circumstances which led to her murder as alleged by the prosecution, however, are that the appellant was married to Mst.
Mondan, who died about two years before the occurrence. Hasna appellant approached the parents of the deceased with the request that they should give the hand of their daughter Mst.
Bakhan to the appellant, who asked him to give his daughter from his first wife in marriage to their son. The appellant accepted the proposal. Mst. Bakhan was then married to the appellant 15 days before the occurrence. The deceased lived with her husband for some days in Basti Ayub Katal and thereafter to the house of her parents 3/4 days before the occurrence. On the eventful day, the appellant came to village Sheenmar to take his wife to his house. Nadra (P. W. 5), Pehlwan (P. W. 6) and Sattar (given up) went along with Mst. Bakhan to leave her in the house of the appellant. They reached there in the evening. After taking evening meals, they asked the appellant about the marriage of his daughter which he had promised. The appellant flatly refused to marry his daughter to the son of Nadra. Thereupon, Nadra P. W. Told him that he would take his daughter Mst.
Bakhan back to his home in the morning, if the deceased did not agree to abide by his promise.
The appel--lant became annoyed and declared that he would see how Mst. Bakhan was taken away from his house.
4. Occurrence.-It is alleged that after about an hour of the said threat, Nadra and others, who were sitting in the house of the appellant heard a shriek of Mst. Bakhan. It was about 10 p. m. They rushed towards the room from where the shriek had come. They found Mst. Bakhan on a cot in that room and saw the appellant sitting on her breast and was pressing her neck with both hands. They pushed aside the appellant. The deceased, however, breathed her last. It is alleged that in the meanwhile the accused had sliped away. A lantern was burning in that room. Leaving Pehlwan and Sattar on the spot, Nadra went to the police station to lodge the report.
5. Investigation.-After recording the F. I. R. Abdul Aziz A. S. I. Reached the place of occurrence at 7 a. m. On 10th March, 1979. He found the dead-body of Mst. Bakhan lying on the cot. He prepared the inquest report and despatched the dead body for post-mortem under the escort of Nazar Jahan F.
C. (P. W. 1). He took into possession lantern P. 7 from inside the room vide memo. Exh. P. E. He arrested the accused on 10th March, 1979 and after completing the investigation submitted the case to the S. H O. For presentation of the challan.
6. Medical.-Dr. Muhammad Afzal Saleemi (P. W. 2) conducted the post-mortem examination on the dead body of Mst . Bakban on 11th March, 1979 at about 8 a. m. According to him, it was a dead body of a young girl aged about 17 years. He found the following injuries on her person :-
(1) Bruise 28 cm x 4 cm below the chin and both sides of neck. There was no mark on the back of neck.
19831HASNA V. STATE (Muhammad Munir Khan J)
(2) An abrasion cm x cm on the middle part of forehead slightly on right side.
(3) An abrasion cm x cm on the dorsum of left foot between big tow and first tow.
The cause of death, according to him, was asphyxia due to strangu--lation. The probable time between the injury and death was five minutes and between the death and post-mortem was about 36 to 48 hours. On query from the investigating officer he gave his opinion that injury No. 2 could be caused with nail and injury No. 3 could be caused with the friction of charpoi.
7. Defence case.-The appellant when examined under section 342, Cr. P. C. Denied the incriminating circumstances. He denied that he had promised to give the hand of his daughter in marriage to the son of Nadra P. W. In exchange of his marriage with the deceased. His plea was that Mst. Bakhan was murdered by Ahmi, her cousin, who wanted to marry her. He, however, did not lead any evidence in defence.
8. Learned counsel for the appellant contends that the prosecution has failed to prove its case beyond reasonable doubts that the ocular evidence has been contradicted by the medical evidence and that the eye--witnesses are not reliable.
9. As against this learned counsel for the State has stated that the appellant is the husband of the deceased that she was killed in his house and he has failed to prove the plea of substitution taken by him in his statement under section 342, Cr. P. C. According to him, the prosecution has succeeded in connecting the accused with the commission of the crime.
10. In order to prove its case the prosecution examined as many as seven witnesses.
P. W.
1. Nazar Jahan F. C. He escorted the dead-body of Mst. Bakhan to Civil Hospital, Vehari, for post-mortem examination. After post-mortem examination the medical officer gave him the last worn clothes of the deceased, bangles and pair of earnings, which he produced before the investigating officer. In cross-examination he stated that the dead body was despatched from the place of occurrence by 12 noon and he reached with the dead body at Vehari, at about 3 p. m.
P. W. 2 Dr. Muhammad Afzal Saleemi.-He conducted the post--mortem examination on the dead body of Mst. Bakhan.
P. W. 3 Farooq Ahmad, Draftsman.-He prepared the site plans Exhs. P. C.,. PC/ 1 and PC/2 on the pointation of the witnesses in the scale of 1"= 4 karms.
P. W. 4 Basra.-He identified the dead body at the time of post--mortem examination. In cross- examination he stated that Peblwan P. W. Is resident of Chak No. 35; W.B. And Sattar P. W. Is resident of Chak No. 87/ W. B.
P. W. 5 Nadra.-He is complainant and an eye-witness of the occurrence. He reiterated the version given by him in the F. I. R. With slight omissions and improvements here and there. 1n cross- examination he has stated that when he narrated the incident. Abdul Aziz A. S. I. Accompanied him to the place of occurrence and it was at that place that his statement was recorded. They reached the place of occurrence at 7 a. m and that the dead body was despatched from the place of occurrence at about 1 p. m.
P. W. 6 Pehlwan.-He supported the complainant on all material particulars. He has stated that he saw the accused sitting on the breast of Mst. Bakhan and pressing her neck with his both hands. He further stated that there was also a lantern in the room in the light of which he saw the accused and Mst. Bakhan. In cross-examination he stated that his residential kotha is at a distance of five killas from the residential kotha of Nadra P. W. And that he cultivates land which is at a distance of 4/5 karams from the kotha of Nadra. He stated that he was called by Nadra P. W. When he was at a distance of 4/5 karams from the kotha that be should accompany him for leaving Mst. Bakhan in the house of her husband. He admits that there is one house contiguous to the house of the accused and there are about more than 100 houses in the Basti. He states that they did not try to catch the accused as they were worried about Mst. Bakhan.
P. W. 7 Abdul Aziz A. S. l.-He investigated the case.
11. The above statement of the facts make it very much clear that the fate of the prosecution case hinges upon the credibility of the ocular testimony of two prosecution witnesses, namely Nadra (P.
W. 5) and Pehlwan (P. W. 6). The prosecution has given up the third alleged eye--witness, namely Sattar, as being unnecessary.
12. Keeping in mind the guiding principles laid down by the superior Courts for the safe administration of justice in criminal case-
(i) that an accused person is presumed to be innocent till proved guilty ;
(ii) that it is for the prosecution to prove its case on the strength of its own evidence ;
(iii) that since the accused being a favourite child of law has been given a license of telling the lies which has also been recognized by the Courts, be cannot be punished for his flaws or falsities and his failure to prove the plea taken by him shall not strengthen the pro--secution case or absolve it from the duty to prove the case beyond shades of doubt ; and
(iv) that if there is any doubt, of course, a reasonable and genuine doubt and not an-artificial doubt, the accused shall get its benefit not as a matter of grace or concession but as matter of right.
I proceed to evaluate the structure of the prosecution case and first of all deal with the F. I. R. The prosecution case is that the occurrence look place at 10 p. m. In a room where the lantern was lit. P.
W. 5 and P. W. 6 had seen the appellant causing the death of Mst. Bakhan and Nadra immediately rushed to the police station and lodged the F. I. R. At 2 a. m. On 10th March, 1979. It was suggested to the investigating officer that the F. I. R. Was in fact, drawn up at the place of occurrence but he denied the suggestion.
I, however, find that Nadra P. W. In his cross-examination has stated as follows : - ---I reached the police station at about 12 at night or 1 a. m. There was a M. H. C. At the police station who called Aziz Bhatti A. S. I. When I narrated the incident to him. Abdul Aziz Bbatti A. S. I.
Accompanied me to the place of occurrence and it was at that place that my statement was recorded. We reached the place of occurrence at about 7 a. m.--- The irresistible conclusion, therefore, is that F.I.R. Exh. P. D. Is not a genuine document and it was not prepared at the time and place it purports to have been written and that it was drawn up at the place of occurrence at or after 7 a. m. On 10th March, 1979 presumably after preliminary investigation. This conduct of the complainant and police creates various suspicions e.g. Perhaps it was an unseen murder. Had the witnesses seen the occurrence and identified the accused then the F. I. R. Would not have been recorded on the spot and the accused would have been charged at the police station. By drafting the F. I. R. On the spot and showing that the same had already been registered at the police station the investigating officer has shaken the faith of this Court in the investi--gation conducted by him. As a result of this discussion it is held that the F. I. R. In the instant case is shady and the Court should be alert and should appreciate the ocular account with great care and caution.
13. Now, I come to the motive. The prosecution has not alleged any direct motive against the deceased. There is no denying that the prosecu--tion is not bound to allege motive and that the motive does not constitute necessary ingredient of an offence. It is a matter of speculation but at the same time if the prosecution alleges some circumstance leading to the murder then it would be the duty of the Court to consider the same.
I have narrated the alleged circumstances leading to the murder in para. 3 of the judgment and the same need not be repeated here. After having considered with care I find that the same has been falsely introduced and the story fails to appeal to a reasonable and prudent mind. It is in the evidence of Nadra that "Hasna accused had agreed to the marriage of his daughter aged 10 years to my son. The age of my son is 12 years." This would show that at the time of marriage of Mst.
Bakhan with the deceased which had taken place about 15 days before the occurrence, the daughter of the appellant was of 10 years and son of Nadra was of 12 years in age. To my mind there was no occasion for and no question of pressing for their marriage and refusal of the same.
In cross-examination Nadra stated; "when the accused came to our house to take Mst, Bakhan with him I had asked him about the marriage of his daughter aged 13 years with my son. The accused told me that his younger brother wanted the hand of that girl in marriage for his own son and that he had asked him to give the hand of his youngest daughter to my son. He, however, stated that he would further discuss the matter with his brother and that I should accompany him for that purpose. I took Pehlwan and Sattar with me so that the matter be sorted out with the accused in his house." In the same statement he admits that they did not call any person from the Basti or the brother of the accused for discussion.
I have considered this story. I am afraid that the same being not plausible and being flimsy cannot be believed. I am of the considered opinion that in fact this story has been fabricated to achieve two objects; First, to create motive and secondly to make the eye-witnesses available in Basti Katal at the time of occurrence. This finding has its effect and the Court has to be on its guard to scrutinize the credentials of the witnesses who by their evidence direct or indirect speak about the guilt of an accused person on the premise of this unbelievable story.
14. Ocular Evidence.-I. Now proceed to deal with the ocular evidence and before discussing its merits or demerits I would like to discuss the medical evidence first so as to give some definite opinion as to the manner by which the death of Mst. Bakhan was caused. 1n the post-mortem report Exh. P. B. In column pertaining to remarks by the medical officer, the doctor has written as follows :- "The cause of death is asphyxia due to strangulation."
In his examination-in-chief he stated that the cause of death according to the opinion was asphyxia due to strangulation. In cross-examination he clearly stated that asphyxia in the present case was the result of strangulation and not of throttling. For the reasons best known to him he, on Court question, however, stated that by throttling be means that the wind pipe is pressed with thumbs. In the present case the wind pipe of the victim could have been pressed with thumbs without leaving any marks of nail on the neck. On further cross---examination he stated that in the present case the strangulation could be caused by using the hands. The greater probability is that the strangulation was the result of the use of the hands. There is apossibility though slight one that the strangulation in the present case could have been caused by a piece of cloth. The trend of statement shows that his statement is not straight forward, and he has tried to please both sides. It is, therefore, all the more necessary that this Court shall form its own opinion.
It is well-settled that the evidence of a medical witness, however, eminent, need not be read as conclusive of a fact which the Court F has to try and statement of an expert stand precisely on same footing as that of any other witness and may or may not be accepted by the Court. The injury No. 1 which has caused by the death is as follows :- "Bruise 28 c.m. x 4 c.m below the chin and both sides of neck. There was no mark on the back of neck."
The appraisal of the post-mortem report clearly shows that the marks of pressure by thumbs and fingers were not found on the neck of the deceased. According to the Medical Jurisprudence by Modi 11th Edition. Page 153, if the fingers are used (throttling) marks of pressure by the thumb and fingers are usually found on either side of the wind pipe. The thumb mark is ordinarily higher and wider on one side of the front of the neck and the fingers marks are situated on its other side obliquely downward and outward and one below the other but are sometimes found clustered together and they cannot be distinguished separately. When both hands are used to grasp and compress the throat, the thumb mark of one hand and the fingers mark of the other hand are usually found on either side of the throat. Sometimes thumb marks are found on one side and several fingers marks on the opposite side. The absence of these marks particularly when the eye- witnesses have clearly stated that the neck of the deceased was pressed with both hands gives rise to an irresistible conclusion that the instant case was not that of throttling at all.
15. After having considered the evidence of Nadra and Pahlwan carefully, I am of the opinion that no implicit reliance can be placed upon their testimony for the following reasons :-
(i) they are not natural witnesses because they are the residents of Sheenmar and not of Basti Ayub Katal where the occurrence had taken place ;
(ii) they are, therefore, the chance witnesses and reasons given by them for their presence in Basti Ayub Katal at the fateful time that they had gone there for leaving Mst. Bakhan in the house of her husband had also for settling the matter of the marriage of the daughter of the appellant with the son of Nadra has been disbelieved by me in para. 13 of the judgment. In the circumstances of the case, I am of the opinion that Nadra and Pehlwan bad no plausible cause to be present at that time and witness the affair. The inclination of these witnesses towards the prosecution is very much apparent;
(iii) the ocular account given by them stands positively contradicted by the medical evidence.
Medical evidence is not in conformity with their statements. They have stated that they saw the accused throttling the deceased with the both hands whereas the medical evidence negatives their claim and this contradiction makes the very presence of the witnesses at the time of occurrence highly doubtful. In the circumstances of the case there was reasons to doubt that they in fact witnessed the occurrence and identified the offender ;
(iv) the fact that the accused was not apprehended at the spot also indicates that the eye- witnesses were not present there. Had the alleged three eye-witnesses including the father of the deceased been there they would have easily apprehended the accused in the room where the occurrence had taken place; and
(v) they are not reliable witnesses. The trend of their statements shows that they have introduced a false story that they had gone to Basti Ayub Katal for settling the matter of the marriage of the daughter of the appellant with the son of Nadra.
The story of the prosecution is also highly improbable. It is in the evidence that there are about hundred houses near the place of occurrence but all the same the prosecution has failed to produce a single natural witness in support of its case. The accused would not have killed the deceased for the reasons given by the prosecution and in the manner as alleged by it.
16. Doubtless.-The accused is the husband of the deceased and she was done to death in his house. He has -also failed to prove the plea of substitution. These circumstances may create suspicion against the appellant that he might have killed the deceased: But I gm of the opinion that suspicions after all are suspicions and cannot H take the place of a legal proof. It is for the prosecution to prove its case beyond reasonable doubt. As held above, the ocular account which forms the cornerstone of the prosecution case is devoid of the ring of truth. When this evidence is eliminated the structure of the prosecution tumbles down completely.
17. The upshot of the discussion is that there is no satisfactory basis whatsoever for upholding the conviction oh the appellant and whilst given him the benefit of doubt, I acquit him. He shall be released forthwith if not required in any other case. The death sentence is not confirmed.