Nasrullah appellant, aged 25 years, has been convicted by the Additional Sessions Judge, Gujranwala, by order dated 23-12-1979, for having committed the murder of Mst. Abide, daughter of Ghulam Kadir complainant (P. W. 7) and sentenced to undergo imprisonment for life and a fine of Rs. 7,000 in default whereof to undergo further R. I for five years. Half of the fine, if recovered, has been directed to be paid as compensation to the heirs of the deceased. The learned Additional Sessions Judge, vide the same judgment acquitted the co-accused of the appellant.
The State filed revision petition (Cr. R. 626 of 1980) praying for enhancement of the sentence of the appellant, which was admitted to regular hearing and notice was issued to the appellant that in case his appal fails why his sentence should not be enhanced. Since both the matters arise out of the same judgment, they are being disposed of by the ensuing judgment.
2. The occurrence in this case took place on 12-3-1975 at 6 p. m. In the mosque in village Hiranwala Kalan, Police Station Sadar, Wazirabad. F. I. R. (Exh. P. D.) was formally recorded by Muhammad Bashir, M. H. C. (P. W. 5) at 3 a. m. On 13-8-1975, on the statement (Exh. P. D. 1) of Ghulam Kadir (P. W.
7), recorded by Qazi Faiz Alam, S. I. (P. W. 9) at 2-30 a. m. On 13-8-1975 at village Jandyala Dhabwala.
3. The prosecution case briefly is that on the day of occurrence, Ghulam Kadir complainant accompanied by Muhammad Rafiq (P. W. 8) and Khan Muhammad P. W. (not produced) were coming to their houses from the fields, when they reached near the mosque of the village, they heard shrieks, they went towards the mosque and saw appellant Nasrullah dragging the deceased by holding her right arm. And acquitted accused Zafarullah by holding dopatta, which had been wrapped around the neck of the deceased respectively towards the mosque and she was being pushed by acquitted accused Inayat and Bahadur. It is alleged that Zafarullah and Nasrullah were armed with Bugdas. It is further stated that the appellant accompanied by the other co-accused after taking the deceased into the mosque closed the outer door of the mosque. Zafarullah and appellant started giving injuries to the deceased with their respective Bugdas, as a result of which she died.
The motive for the occurrence was that Bahadur had asked for the band of Mst. Abide for his son Nasrullall appellant but the father of the deceased had refused and a few days prior to the occurrence, he had engaged his daugh--ter in the family of his relatives residing in Chak No. 8 Shumali, Sargodha. It is also stated that thereafter Bahadur had requested the father of the deceased for the hand of the deceased for his son in exchange of his daughter to be married to the son of the complainant but this offer was also turned down, as a result of which the accused party were feeling aggrieved.
4. Faiz Alam, S. I. (P. W. 9) after reaching the place of occurrence, inspected the spot and took into possession blood-stained earth from the mosque, vide memo. Exh. P. F. The appellant was arrested on 15-8-1975. He led to the recovery of Bugda (P. 4) on 23-8-1975 which was taken into possession vide memo. Exh. P. E., which was attested by Sanaullah (P. W. 6), a maternal-uncle of the deceased and Faiz Alam S. I. (P. W.). The other witness Khadim Hussain was given up.
After completion of the investigation, the challan was put to Court. The investigation was also conducted later on by Sultan Ali, Inspector, C. I. A. (D. W. 2). He found Bahadur, Inayat and Zafarullah as innocent.
5. At the trial the prosecution in all produced nine P. Ws. The post-mortem was conducted by Dr. Zamin Ali (P. W. 4) on 13-8-1975. He found eleven incised wounds on the body of the deceased.
According to his opinion the injuries were sufficient to cause death in the ordinary course of nature, while injuries Nos. 1 and 7 individually could also be fatal. According to his opinion, the death was instantaneous after infliction of injury No. 1, which was on the front of the neck of the deceased.
6. The eye-witness account was furnished by Ghulam Kadir (P. W. 7), father of the deceased and Muhammad Rafiq (P. W. 8), a son of the first cousin of Ghulam Kadir. Ghulam Kadir by and large stuck to the version which be gave at the time of registration of the case. He, however, made improvement by saying that injury of the neck was caused by appellant Nasrullah. Muhammad Rafiq (P. W. 8) has corroborated his statement. Sanaullab (P. W. 6) has deposed regarding the recovery of Bugda (P. 4) at the instance of the appellant. His statement to the extent of recovery of Bugda at the instance of the appellant finds corroboration from the statement of Faiz Alarn S. I. (P.
W. 9).
7. The appellant during his statement under section 342, Cr. P. C. In answer to a question why this case against him, has stated :- "Mst. Abide deceased was carrying on illicit relations with me about one year prior to the occurrence. Occasionally we used to meet in the bath room of the mosque few months prior to the occurrence. Muhammad Sharif son of Ghulam Qadir saw us in the bath room of the mosque and he. Thereupon they sent Mst. Abide to village Tahliwala. After two months she returned back and again started meeting me. Ghulam Qadir and his relations were aggrieved and kept a watch on us.
On the day of occurrence after Maghrib prayers I was taking bath in the bath room of the mosque when Mst. Abide deceased came there of her own accord. We were talking. Shortly thereafter Allah Ditta son of Muhammad Hussain brother of Rafiq P. W. Came there with a Toka in his hand and attacked us. I managed to escape while Mst. Abide was caught and she was murdered by said Allah Ditta. I have been falsely implicated."
He also produced four witnesses in defence. D. W. I Aziz Ahmad has stated that some applications were received in the office of the Superintendent of Police, Gujranwala but the same were destroyed after a lapse of two years. Nothing is mentioned in his statement as to what were the contents of the applications, neither the original nor the office copies of the same have been placed on record. Ch. Sultan Ali, Inspector, C. I. A. (D. W. 2) has stated that during investigation he recorded the statements of certain persons including that of Mst. Safia Bibi, daughter of Ali Muhammad, Imam Masjid and Sharif son of Ghulam Kadir and reached the conclusion that Ali Bahadur, Inayat and Zafarullah were innocent. Mst. Safia Bibi, daughter of Ali Muhammad appeared as D. W.
3. In her statement she claimed herself to he an eye-witness and stated that she saw from the roof of her house Nasrullah running from the mosque and Allah Ditta son of Muhammad Husain giving blows to Mst. Abida deceased. Muhammad Sharif son of Ghulam Kadir has appeared as D. W. 4 and stated that 3/4 months before the murder he had semi the deceased and Nasrullah appellant in the courtyard of the mosque and had told this fact to the father of the deceased and had advised him to check her. Mst. Safia Bibi in her cross-examination has admitted that Ghulam Kadir complainant was inimical to her father. She has, however, denied the knowledge that Ghulam Kadir wanted to remove her father from the Imamat of the mosque.
8. Arguments of the learned counsel for the parties have been heard and record perused. It is prosecution's own case that Nasrullah appellant son of Ali Babadur, real brother of Zafarullah and nephew of Inayat acquitted accused. It is admitted in cross-examination by Ghulam Kadir complainant that Ali Bahadur had deposed against him in a case rider section 420, P. P. C. The relations inter se appellant and the complainant obviously were strained. The complainant in an effort to hide his relationship with Muhammad Rafiq (P. W. 8) denied to have any knowledge that Ahmad Khan and Lal Khan were real brothers of Isis father. He admitted that Muhammad Rafiq is son of Muhammad Husain but denied the knowledge that Muhammad Husain, father of Muhammad Rafiq P. W. Was the son of Lal Khan, his uncle. Muhammad Rafiq (P. W. 8) cross- examination after hesitation has admitted this relationship. The complainant also denied the knowledge that his mother Mst. Reshman Bibi was also the mother of Muhammad Husain, father of Muhammad Rafiq P. W. In the sense that Mst. Reshman Bibi earlier to her marriage with the father of the complainant had married Lal Khan, and after his death had married father of the complainant. We find force in the argument of the learned counsel for the appellant that such deliberate attempt extending to the extent of falsehood 1)y the complainant to hide his so close relationship with the P. W. Makes the veracity of the complainant very doubtful and needs some strong corro--borating evidence to sustain conviction. The only other evidence is the statement of Muhammad Rafiq (P. W. 8) and the alleged recovery of Bugda (P. 4), at the instance of the appellant. Muhammad Rafiq (P. W. 8) is admittedly a relation of the deceased. These two witnesses are not only related inter se and to the deceased but are also inimical to the accused and hance witnesses. Their coming to the place of occurrence does not seem to be logical as the place of occurrence does not fall on their way from Dera to their houses. The Bugda which was recovered on 23-8-1975 was sent to the Chemical Examiner's office on 4-9-1975. According to the Chemical Examiner's report, it was not found stained with blood. It is in evidence that blood-stained earth which was collected from the spot on 13-8-1975 was despatched to the office of the Chemical Examiner through a Foot Constable on 30-8-1975. We find considerable force in the argument of the learned counsel for the appellant that the prosecution case that Bugda was recovered on 23- 8-1975 is doubtful for the reason that had Bugda been recovered before 30-8-1975 there was no reason not to despatch the same to the office of the Chemical Examiner on 30-8-1975 when a constable had gone to deliver the blood-stained earth parcel. The evidence of recovery is also widely discrepant with regard to the timing. According to Sanaullah (P. W. 6), the recovery was effected after 2-30 p. m. While according to Faiz Alam, S. 1. (P. W. 9) the recovery was effected round about 9-30 a. m. This is a wide discrepant statement. Sanaullah (P. W. 6) admittedly is real maternal uncle of the deceased and not resident of the locality wherefrom the recovery was effected. In the circumstances, we find no hesitation in agreeing with the learned counsel for the appellant that no reliance can be placed on the evidence of recovery of Bugda.
We have considered the defence version keeping the same in juxta--position with the ocular account which stands contradicted by the medical evidence in the sense that no marks of violence were found on the neck of the deceased, although the prosecution witnesses asserted that the co-accused of the appellant had dragged the deceased by wrapping Dopatta around her neck. We do not find force in the argument of the learned counsel for the State that Dopatta not being a hard string could not have caused marks of violence. The prosecution version is that the Dopatta was wrapped around the neck of the deceased after twisting it. The actual words used are ---DOPATTAY SAY WAL DAY KAR--- The other thing which strikes strange is, as to how the deceased had reached in the street near the mosque. Her house was on the other end of the village. There is no evidence that she had gone there to see any relative. It also seems to be impossible to believe that the appellant or as a matter of fact the appellant accompanied by his co-accused would have considered it more proper to drag the deceased inside the mosque to murder her. On the other hand, the defence story seems more reasonable that the deceased had come to the place of occurrence by herself. Whether it was by appoint--ment with the appellant or it was a chance she took, makes no difference to the merits of the case. We are also mindful of the argument of the learned counsel for the appellant that the character of the deceased was seriously damaged because of her reputation of having illicit relations with the appellant and it was for this reason that she was engaged to a widower who was far more aged than the deceased. Keeping these facts in view, the departure of the complainant for police station to lodge the F. I. R., three hours after the occurrence makes the case doubtful. Although a delay of three hours is no matter in the ordinary circumstances but in this case having regard to the facts mentioned above, the delay in departure by three hours of the complainant from the spot, lends support to the argument of the learned counsel for the appellant that the P. Ws: had not seen the occurrence and it was for this reason that the complainant took three hours to start for the police station, for which no explanation has been furnished by the complainant. The contention of the learned counsel for the State that no weight should be given to the statement of Mst. Safia Bibi (D. W. 3) for the reason that she has admitted that relations of the complainant with her father were not good, even if granted, does not advance the case of the prosecution in any manner. It is settled law that *he pro--secution has to stand above, the prosecution has not been able to prove its case against the appellant beyond reasonable shadows of doubt. The P. Ws. Are related, interested and inimical to the appellant. The complainant has tried to deliberately hide facts of which he could not be expected to have no knowledge. The evidence of recovery of Bugda which could lend corroboration stands disbelieved. In the circumstances, the appellant is acquit--ted on the basis of benefit of doubt. He shall he released forthwith if not required in any other case. The appeal stands accepted.
As we have accepted the appeal, the revision petition for enhancement of the sentence of the appellant automatically stands dismissed.