ZAFFAR HUSSAIN MIRZA, J.-Appellant Muhammad Rafiq son of Said Arain was tried and convicted by the Sessions Judge, Sahiwal under section 302 of the Pakistan Penal Code, for having murdered MsI. Seeman vide judgment and order dated 6th March, 1976. He was awarded the death sentence, and was also directed to pay fine of Rs. 2,000 and in default of the payment thereof, he was ordered to suffer simple imprisonment for six months. In case the fine was recovered. The Court directed the same to be paid to the heirs of the deceased.
2. The case came up before a Division Bench of the Lahore High Court, Lahore, on appeal preferred by the present appellant against his conviction, as well as by way of reference under section 374 of the Code of Criminal Procedure for the confirmation of the death sentence. The learned Judges of the Division Bench who considered the case concurred with the findings of the trial Court and dismissed the appeal of the appel--lant and confirmed the death sentence imposed upon him, as per the im--pugned judgment and order dated 11th April, 1978.
3. Leave was granted by this Court in consideration of certain infirmities appearing in the prosecution evidence, which seemed to require further consideration of the case "to see if it was disposed off on correct A legal principles in the appreciation of evidence".
4. According to the prosecution the occurrence in this case took place on the morning on 13th March, 1973 at about 9-10 a. m. When the deceased bad left her house situated in village Kaluwal for the neigh--bouring village Mitha Bhatti for purchasing some wheat-flour for the family. When she reached the spot near the Darbar of Pir Moalam Shah, situated at a distance of about 31 killas from her village the appellant was said to have overtaken her and told her not to marry one Jehangir, insisting that she should live with him as his concubine. Upon her refusal he suddenly whipped out a knife from the shirt pocket and gave a single blow with it to her near her throat. The occurrence is said to have been witnessed by Shaban (P.W. 6), Ghulam (P.W. 7), Ahmed (P. W. 8), Amir, Farzand and Nazar who were present in the vicinity. These witnesses then captured the appellant at the spot alongwith his blood-stained knife. The deceased had fallen down profusely bleeding from the injury and soon thereafter died on the spot.
5. The report was lodged by Shaban (P. W. 6) at Police Station Chuckak, situated at a distance of four miles, at 11 a. m. Which was recorded by Moharrar Constable Muhammad Khalid (P. W. 9). He pro--ceeded to the spot and put the appellant under formal arrest and secured the blood-stained knife as well as the blood-stained clothes of the appel--lant, consisting of jarsi, shirt and chaddar.
These articles were sub--sequently confirmed by the Serologist to be stained with human-blood.
6. The motive alleged by the prosecution for the commission of the offence was that the appellant had committed rape on one Mst. Nuran about 1 I years prior to the occurrence for which a criminal case was pending trial. Mst. Nuran was the cousin of the deceased and the sppellant is said to have developed illicit liaison with Mst. Seeman deceased after the incident of rape. In order to avoid this illicit intimacy developed between the appellant and the deceased the family had moved to another village and after staying there for sometime the complainant Shaban (P. W. 6), who was the real brother of the deceased came back along with the members of his family to settle in village Kaluwal once again. After their return, the appellant again re-established his intimacy with the deceased. However, Shaban had brought one Jehangir to live with them in the same house with whom he intended to marry Mst. Seeman. The appellant who was carrying on his illicit relations with Mst. Seeman naturally got displeased and resentful of the proposed marriage of the deceased. Accordingly, on the fateful day when Mst. Seeman was going to village Mitha Bhatti, the appellant followed her and committed the crime.
7. The complainant in the F. I. R. Bad disclosed himself, Ghulam (P. W. 7), Ahmed (P. W. 8), Amir, Farzand and Nazar as eye-witnesses who were present at the time of the occurrence. At the trial, however, the prosecution produced the complainant Shaban, Ghulam and Ahmed only in support of their case. The other three witnesses were given up. Amir and Nazar were given up as having been won over, whereas Farzand was not examined as unnecessary witness.
8. Thus, the prosecution relied on the oral testimony of the alle--ged three eye-witnesses and for corroboration reliance was placed on the medical evidence, motive and the aforesaid recoveries.
The plea of appellant was of total denial of the prosecution allegation against him. As regards the motive he denied having committed rape on Mst. Nuran the cousin of the deceased and stated that it was a false case as he had been acquitted. He also denied having bad any relations with Mst. Seeman. He denied that the blood-stained knife and clothes belonged to him or were secured from him. He asserted that he has been falsely implicated in this case on account of enmity due to the previous rape case and the civil litigation between his uncle and Nazara (P. W.).
9. The trial Court accepted the evidence of the eye-witnesses as it was further confirmed by the circumstance of recovery of the blood--stained knife and clothes of the appellant. He also accepted the evidence regarding the motive which further furnished corroboration to the ocular testimony. The learned Judges of the Division Bench of the High Court agreed with the trial Court and held that although the three eye-witnesses were close relations of the deceased, none of the witnesses have any direct enmity with the appellant and, therefore, there was no reason to discard their evidence. They also referred to the circumstance of the appellant being apprehended at the spot with the blood stained clothes which strengthened the prosecution case against him.
10. Mr. S. M. Zafar, learned counsel appearing for the appellant has contended that the learned Judge of the High Court had not taken into consideration certain circumstances and discrepancies appearing in the evidence of the eye-witnesses which rendered their testimony palpably unworthy of reliance. He argued that this appears to be a case of un-witnessed crime and the deceased had been done to death in the middle of the night. He also submitted that the F. I. R. Appears to have been recorded after some preliminary investigation had been undertaken at the spot, which would negate prosecution account of the appellant having been caught red handed. Reference was also made to improvement made by the prosecution witnesses in materially altering their original account revealed at the investigation stage. Even the complainant had to admit in his cross- examination that he had not witnessed the crime himself which has damaging repercussions on the entire prosecution case.
11. On the other hand Mian Nusratullah learned Advocate appear--ing for the respondent emphatically contended that after all said and done, the evidence of Ghulam (P. W. 7) survives unscathed and corrobo--rated by the recovery of blood-stained clothes from the appellant, is sufficient to support the conviction of the appellant.
12. Noor Muhammad Patwari (P. W. 2) who has described the topographical features of the scene of occurrence, stated that the village took place, is inter trees, so that from the was also because the Darbar is located on land at a higher level, about four feet from the adjoining land and also there was a running wall of four feet height all around the Dargab. According to the version disclosed in the F. I. R. By the com--plainant he and the other eye-witnesses, witnessed the occurrence while standing in front of their houses in village Kaluwal. However, this post--petition was abandoned at the trial and the witnesses shifted their position to the Dargah. It was argued with force that this improvement was made in order to overcome the deficiency in the previous account as the witnesses would have been falsified by the distance and the obstructions to their view, to be able to see or hear what may have happened at the scene of the crime. The witnesses have been confronted and contradicted, we agree with the learned counsel that this is a serious and material alteration reflecting upon the probity of the ocular testimony. But by shifting their position the witnesses have further involved themselves into improbability ties. According to Shaban (P. W. 6) he was present at the Darbar Moalam Shah. However, on being further pressed in the cross- examina--petition he stated as under: "The correct position is that I reached the spot two minutes later when 1 found my sister lying in pool of blood. I did not actually see Mst. Seeman being stabbed by the accused. The witnesses told me about the talk which took place between the accused and Mst Seeman."
During the enquiry before the Committing Magistrate Shaban had stated that he had heard the alarm and saw his sister lying injured. With this damaging admission the evidence of complainant Shaban was wholly discredited.
13. Ghulam (P. W. 7) stated that he worked as a servant at the Darbar, obviously in order to make his presence there plausible. But in the cross-examination he has stated that whenever he finds labour he goes out in the morning and returns in the evening but before going out he pays homage to the shrine. As to the general public, he stated that they go for homage to the shrine on every Thursday. The other prosecution witnesses were present at the shrine on the date of the occurrence. But the learned counsel pointed out that the occurrence actually took place on Tuesday and not on a Thursday. SimilarlyAhmad (P. W. 8) also stated that he was present at the Dargah in order pay homage as it was Thursday. These statements in the cross-examination coupled with the change of version from the F. I. R. As already pointed outcast a serious doubt about the veracity of P. ,W 6. Ghulam and Ahmad also, and their presence at the time of the occurrence. If they were standing in front of their houses they were certainly unable to see what was happening on the spot and could not have heard the conversation, if any, of the assailant and the deceased, on account of the distance between the two points. Coupled with this is the admission of Muhammad Khalid, Moharrar Head Constable (P. W. 9) made before the Committing Magistrate but denied at the trial, that he had prepared a rough site plan in which he had shown the witnesses standing at a distance of 2 killas from the spot. This conduct on the part of Muhammad Khalid, Head Constable, who is the first investigating officer to reach the scene of occurrence seriously reflects upon the genuineness of the investigation, as it seems there were attempts made to make improvements in the prosecution case to cover up the de--fects.
14. The arrest of the appellant along with the crime weapon and blood-stained clothes on his body at the spot also seems doubtful. Ahmad (P. W. 8) who is also a close relation of the deceased, has reveal--ed in his evidence that police interrogated some persons as to who was the assailant.
Jehangir and Bahli were summoned by the police and in--terrogated but were let off. However, it was after these interrogations that Shaban was asked to sign his statement. From these admissions it has been forcefully contended that they strongly suggest that this was an un- witnessed crime committed during the darkness of the night, otherwise there was no sense in interrogating persons to determine the identity of the assailant. This also seriously jeopardises the evidence of the recovery of blood-stained knife and clothes from the appellant and his apprehension at the spot. Had the assailant been known and apprehended, as already stated, there was no question of preliminary investigation. It is also probable that the statement on which signature of Shaban was taken after the preliminary investigation, was the F. I. R. Prepared at the spot. Ac--cording to the post-mortem report of the medical officer who conducted the autopsy on the dead body of the deceased the probable time that elapsed between death and post-mortem was 24 to 36 hours. The autopsy was conducted on 14th March, 1976, at about 1.00 p. m. And as such according to this opinion the death of the deceased must have occurred at about 1.00 p. m. In the night on 13th March, 1973, whereas according to the prosecution it had taken place at 9.00 a. m.
In the morning.
15. After having taken into consideration the aforesaid circumstances on the record, we agree with the submission of the learned counsel that the testimony of the alleged eye-witnesses is not worthy of reliance and cannot be safely made the basis of a conviction on a capital charge. Also the probability cannot be ruled out that the occurrence took place in the night and was not witnessed by these witnesses. The benefit of doubt must, therefore, be given to the appellant.
16. In the result we allow the appeal and set aside the judgment of the High Court dated 11th April, 1978 and acquit the appellant, who shall be set at liberty. Forthwith, if not required in any other case.