This criminal revision arises from the judgment of the learned Additional Sessions Judge, Multan, dated 30th May, 1981 whereby he acquitted Ghulam Hussain and Fazlan Mai, respondents Nos. 2 and 3 from the charge under section 302/34, P. P. C. For causing the death of Allah Ditta on the night between 13/14-7-1979 in the area of Chak No. 3/M of Police Station Kehror Pacca. The F. I. R.
Was lodged by Karim Bakhsh P. W. 2 of 8-30 a. m. On 14th July, 1979 and recorded by Muhammad Akbar A. S. I., P. W. 6.
2. Motive.-The motive in brief is that Allah Ditta deceased was married with Mst. Fazlan Mai, accused-respondent No. 2. She asked for the divorce but Allah Ditta was reluctant. Ghulam Hussain co--accused-respondent No. 1 wanted to marry Mst. Fazlan Mai with his brother namely; Nuru, and was interested in the divorce of Mst. Fazlan Mai from Allah Ditta deceased. It is said that Ghulam Hussain reason--dent No. 2 approached' the parents of Allah Ditta deceased to get divorce two days earlier but could not succeed and he threatened them with dire consequences.
3. Occurrence.-On the fateful time Allah Ditta deceased was sleeping near "Benk Maweshian" in the fields when the respondents Nos. 2 and 3 came there. Ghulam Hussain respondent No. 2 put a cloth round the neck of the deceased and strangulated him while Mst. Fazlaa Mai respondent No. 3, had caught hold of the feet of the deceased. Karim Bakhsh father of the deceased, awoke up on hearing the gargling noise of the deceased and saw the occurrence. He raised alarm whereupon, the respondents Nos. 2 and 3 ran away. Allah Ditta became unconscious and after a short while expired at the spot. One shoe of the accused persons was left at the spot. Karim Bakhsh informed.
Muhammad Nawaz; Lamberdar of the village about this occurrence. In the morning there was a panchayat in which the respondents confessed their guilt. Thereafter, Karim Bakhsh proceeded to the Police Station for lodging the F. I. R., Exh. P. D.
4. Investigation.-Muhammad Akbar A. S. I. P. W.-6, visited the spot prepared the inquest report Exh.
P. D. And sent the dead body to the mortuary for post-mortem examination. He took into possession khussa P. 2 from the spot vide memo. Exh-. P. E., Cot P. 4 and Darri P. 4 vide memo. Exh. P.
F. He arrested the respondents on 16th July, 1979. Ghulam Hussain, respondent No. 2, got recovered Sala P. 5 which was taken into possession vide memo. Exh. P. H. Mst. Fazlan Mai respondent No. 3 led to the recovery of Khussa P-2/1 and the same was taken into possession vide memo. Exh. P. J.
5. Medical.-Dr. Muhammad Ishaq performed the post-mortem examination of the deceased arid found the following injury "External appearance.-A transverse furrow with abrasion on left side of neck. It was 1 cm. Wide and 5.3 cm. Long. It was 6.5 cm below the left ear pinna. Again an abrasion on front and upper and middle of neck present. It was parchment like. Two transverse furrow with abrasion on right side of neck present. Each was 1 cm. Wide and. 3.8 cm. Long. No ligature mark or abrasion on back of neck.
Bloody fluid coming out of nose and mouth. Tongue beaten between teeth. On dissection subcutaneous tissues were blistening and dry. Muscle underneath the abrasions were parchment and bruised. Hands were clintched and nails were bruish. Echymosis below the abrasions were pre- -sent. On dissection, carnu of hyoid bone on right side was frac--tured. Face congested swollen and bluish. Eyes closed, congectiva congested and mouth closed. Pupil dilated."
The cause of the death according to the doctor was strangulation.
6. The respondents when examined under section 342, Cr. P. C. Denied all the incriminating circumstances and stated that the case was false and the deceased was a womaniser and had several enemies. He was killed by some unknown culprits.
7. The prosecution relied upon the evidence of the sole Eye witness Karim Bakhsh P. W. 2, father of the deceased ad the recovery of safa from Ghulam Hussain and khussa from Mst. Fazlan Mai and the extra judicial confession made by the respondents Nos. 2 and 3, before Karim Bakhsh P. W.
Wahid Bakhsh P. W. And Naseer Khan P. W.
8. Learned counsel for the petitioner has submitted that the learned trial Court has not properly appreciated the evidence and the reasons given by the learned trial Court for the rejection of the ocular testimony and evidence of the extra judicial confession, are not sound and cogent.
I have considered the arguments advanced by the learned counsel for the petitioner and have gone through the material placed before me with care. I find that it is a case of night occurrence.
The deceased bad received a transverse furrow with abrasion on the left side of the neck. The deceased might have been strangulated within a minute or two. In the circumstances of the case, it is doubtful whether the deceased had raised a gargling noise and the father of the deceased awoke up on hearing the same. It is difficult to believe that when Karim Bakhsh P.W. 2 awoke up he saw that Mst. Fazlan Mai was holding the feet of the deceased and Ghulam Hussain respondent No. 2 was strangulating. According to the prosecution the deceased was asleep, thus there was no need to catch hold of the feet of a sleeping person, because that act could have made the deceased alert. I am of the opinion that in the circumstances of the case, only one person could cause the strangulation and there was no need for catching hold of the feet. The time spent in the completion of the crime was so short that the culprit might have run away before Karim Bakhsh could awoke and identify the culprit. Karim Bakhsh is the father of the deceased. He was not willing to bring back Mst. Fazlan Mai accused respondent No. 3, and therefore, his relations with her were not cardial. The admitted position is that there is an abadi near the place of occurrence Karim Bakhsh says that he had raised alarm but no one turned up till after half an hour of the occurrence.
In the circumstances of the case the non-appearance of the neighbours on the spot at the time of occur--rence gives rise to an irresistible conclusion that, in fact, no alarm was raised by Karim Bakhsh as he has not seen the occurrence. There is yet another circumstance which shows that, in fact, it was an unseen murder and that is the holding of a panchayat by the accused before the lodging of the F. I. R. This circumstance shows that, in fact, the occurrence was not seen by any one and some people were being suspected which necessitated the holding of a panchayat.
Medical evidence is also not in conformity with the ocular evidence. Karim Bakhsh says that Ghulam Hussain was having a safa round the neck after wounding the same had given jerks and strangulated the deceased but according to the medical evidence no mark of legature was found on the back of the neck.
So far as the extra-judicial confession is concerned, the learned Sessions Judge has discussed the same in para. No. 11 of his judgment which reads as under: -- "As regards the extra-judicial confession, firstly the complainant as P. W. 2 has stated that a short time after the occurrence, the accused had come to him in presence of Muhammad Nawaz lambardar and Naseer Khan P, W. 7 and had confessed their guilt before them whereas Naseer Khan P. W. 7 stated that the accused had appeared before him in the morning and as such, the story of extra-judicial confession is falsified. Secondly, it appears unnatural that the accused after committing murder, appeared for pardon before the complainant just after the occurrence or even in the morning. Thirdly, in the F. I. R., Karim Bakhsh P. W. 2 has deposed that the accused came to him in the morning and confessed their guilt in presence of Nasir Khan and Muhammad Nawaz lambardar P. Ws. And has not named Wahid Bux P. W. 5, a witness of the extra-judicial confession, to be present at that time. As the extra-judicial confession by the accused was made just after the occurrence and Nasir Khan P. W. 7 who is the son-in-law of the complainant, had come at the spot in the morning, his presence at the time ofextra-judicial confession is also excluded. Wabid Bux P.
W. 5 states that Muhammad Nawaz lambardar had taken the accused aside one by -one and before him, the accused bad respectively made extra-judicial confession. As such the extra- judicial confession by the accused was not made in presence of Wahid Bux P. W. 5 and Nasir Khan P. W. 7 Muhammad Nawaz lambardar has not been examined to prove the extra-judicial confession. In view of this discussion, the evidence o extra-judicial confession cannot be believed."
9. I have considered this place of evidence. Evidence of extra judicial confession is admittedly a week type of evidence. The learned Sessions Judge has fully applied his mind and given cogent reasons B for excluding this piece of evidence and, I agree with the same.
10. It is well recognized that this Court may interfere with the judgment of acquittal in case the judgment is perverse and acquittal has resulted in miscarriage of justice and for interference exceptional circumstances are required. I am of the opinion that the instant case is not of that type.
For the foregoing reasons I decline to interfere with judgment of acquittal passed by the learned Additional Sessions Judge on 30th May, 1981. The result is that this petition is dismissed in limine.