' Muhammad Afzal (40) and his wife Mst. Yasmin alias Asma/Samina (25) were tried by the learned Additional Sessions Judge, Lahore, for the offence punishable under section 302/34, P.P.C., for having committed the murder of Mst.Mukhtaran Bibi, the former wife of Muhammad Afzal, in furtherance of their common intention on 8-9-1982 at 11-00 p.m. In the area of Basti Saidan Shah, Wazir Ali Road, at a distance of 4 K.M. From Race Course Police Station, Lahore.
2. The learned trial Judge, vide his judgment dated 27th March, 1983, convicted both the accused under section 302/34, P.P.C. And awarded sentence of life imprisonment and fine of Rs,2,000 (Rs, Two Thousand) each or in default six months' further R.I.
3. The aforementioned convicts have challenged their conviction and sentence through the present appeal.
4. The occurrence was reported to the Police at 1-20 a.m. After mid-night on 9-9-1982 by Muhammad ldrees (P.W.2.) son of the deceased from her previous husband by way of statement Exh.P.B. Which was recorded by Muhammad Sharif S.I. (P.W.9.) at the spot. Formal F.I.R. Exh. P.B./1 at the Police Station.
5. The prosecution version as transpires from the contents of statement Exh.P.B/1, briefly stated, is that Mst. Mukhtaran, the deceased, was the first wife of Muhammad Afzal appellant. Subsequently, he contracted marriage with Mst. Yasin appellant. Both the appellants wanted to get rid of Mst.
Mukhtaran and, therefore, Muhammad Afzal strangulated her while Mst. Yasmin caused injuries by fists etc. On different parts of her body resulting into her death. It is further alleged that on the night of occurrence at about 11-00 p.m. Muhammad Afzal appellant came to the house of ldrees Beg and Muhammad Siddique, the sons of the deceased, from her previous husband where the deceased also used to live. Muhammad Afzal asked the deceased to accompany him as he wanted to consult her in connection with the marriage of Muhammad ldrees. Soon after the departure of Muhammad Afzal and deceased from the house of ldrees and Siddique, they (Idrees and Siddique) heard shrieks of their mother (deceased) and thereupon rushed towards the scene of occurrence.
Muhammad lshaque (P.W.1.) who is a Gariban and per chance happened to be in the vacinity of the place of occurrence and Munir Ahmad (given up) also simultaneously reached the place of occurrence after hearing the alarm. All of them saw that the deceased lying or a cot while Muhammad Afzal was strangulating her and Mst. Yasmin was causing injuries on her person with fists etc. On seeing ldrees, Siddique, Ishaque and Munir,Afzal and Yasmin made good their escape from the place of occurrence. All the aforementioned witnesses found that the deceased had succumbed to the injuries.
6. The autopsy on the dead body of the deceased was performed by Dr. Abdul Hamid (P.W.8) on 9- 9-1982 at 3-00 p.m., vide post-mortem report Exh.P.E. He also prepared Exh. P.E./1 the pictorial presentation of the injuries. The doctor noticed two abrasions, multiple scratches, and three contusions on the dead body of the deceased. These injuries, in the opinion of the doctor were ante-mortem and caused by blunt weapon. He further opined that injury No,7 was sufficient to cause death and that injury No,5 also could cause death on account of obstruction of the respiration. He described injuries Nos. 5 and 7 in his post-mortem report as under:-
5. There were two scratches each measuring point 5 x point 5 c.m. Close to each other in the centre of the neck with multiple contusion over an area 9 x 5 c.m. On the front upper neck on the laryngeal box.
' On exploration there was haemorrhage in the subcutaneous tissue. There was haemorrhage in the muscles of the neck around the laryngal box.Clotted blood was present in the injured thyroid gland. On the opening of hanynx there was sub-muscosal haemorrhage in the laryngal box sub- glottis region and around the vocal card.
6. There were multiple contusions over an area 12 x 7 c.m. On the front upper left abdomen and mid of abdomen and front lower left chest. On opening the abdomen there was 2.00 pints of fluid blood in the abdomen. There was fluid blood in the peritonium blood.
(a) There was lacerated wound 4 x 2 c.m. On the front left to be of liver due to which liver was partially splatted.
(b) There was lacerated wound 6 x 2 c.m. On the under surface of the liver across the left and right lobe. It was evident that liver was ruptured due to the blunt abdominal injury.
7. The doctor estimated the probable time between death and injury as about 'within an hour'.
8. In reply to a question asked during cross-examination, the doctor stated that if knee or elbow is forcibly pressed against the abdomen, injury of the nature as at No,7 may be caused while the victim is being throttled by the assailant. He also said that there was no sign observed immediately after receiving the injuries.
9. The appellants were arrested on 9th September, 1982 but no recovery whatsoever has been effected from them.
10. P.W.1 Muhammad Ishaque, P.W.2 Muhammad ldrees and P.W.5 Muhammad Siddique, have testified at the trial as eye-witnesses to furnish ocular account of the prosecution version. By and large these P.Ws. Have supported the prosecution version as contained in the F.I.R. Muhammad Idrees and Muhammad Siddique are sons of the deceased from her previous husband.
Muhammad lshaque of course is not related to the deceased and seemingly is an unconnected witness.
11. It has, however, been noticed that these P.Ws. Have made material improvements at the trial vis- a-vis their statements recorded by the Police under section 161, Cr.P.C. For instance. P.W.1 Muhammad Ishaque stated that the deceased had made purchases for the marriage of Idrees P.W. And had also collected some amount for the purpose and the accused Afzal wanted that the deceased should give money which had been saved by her after meeting expenses of the marriage purchases. These facts have not been stated by this witness in his statement under section 161 (Exh.D.A.) made before the police. Muhammad Idrees deposed at the trial that accused Afzal had contracted second marriage with accused Yasmin without the permission of the deceased and that accused Yasmin used to ask accused Afzal either to divorce the deceased or to kill her. He further deposed that the accused Afzal used to demand money which the deceased had saved from the marriage expenses of Idrees. These facts are not recorded in the statement Exh.P.B. Made by this witness before the Police. Similarly, Muhammad Siddique stated at the trial that accused Afzal came to the house of this witness and Idrees and called deceased telling her that Yasmin accused had sent for her as she wanted to consult the deceased in connection with the affairs of marriage of Idrees. These facts are not recorded in the statement Exh.D.B. Made before the Police by this witness. There were many other material improvements in his statement.
12. Muhammad lshaque who is seemingly a disinterested witness is alleged to be a stock witness of the Police. The appellants have produced in defence Exhs. D.E. And D.F. Report under section 173 in respect of Case No,19 under section 380, P.P.C. Of Police Station, Race Course and F.I.R. No,17, dated 17th September, 1982, for an offence punishable under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance', 1979 of the same Police Station, respectively. The contents of these documents are indicative of the fact that in both these cases Muhammad lshaque has been cited as a prosecution witness. He has not been able to furnish any satisfactory explanation about his presence in the vicinity of the place of occurrence at the time of occurrence i,e, an odd hour of the night after 11-00 p.m.He claims that he had come on his bullock-cart and after hearing the cries of the deceased he parked his cart at Wazir Ali Road and rushed to the place of occurrence which has in the lane connected with Wazir Ali Road in front of house of Ditti Masih.
13. In the site plan Exh.P.D, the presence of Muhammad Ishaque is shown at point D which is on the other side of the lane and not towards Wazir Ali Road. If he had parked his cart on Wazir Ali Road, ordinarily his place of presence at the time of occurrence should have been towards Wazir Ali Road and not the opposite direction.
14. In the light of above observations, it transpires that out of the three eye-witnesses, two namely ldrees and Siddique are sons of the deceased while the third viz. Muhammad lshaque is a chance witness and has the label of the stock witness of the Police. In case of witnesses of this type, this Court has always insisted upon independent corroboration for safe administration of criminal justice. That corroboration of course is lacking in this case. No recovery, as already observed has been effected from the appellants. Even the medical evidence does not furnish full support to the version of the prosecution case given out by the eye-witnesses. They have stated that they saw both the appellants when Muhammad Afzal appellant was strangulating the deceased by standing towards the head side of the deceased and Mst. Yasmin was causing fist blows to the deceased. They further deposed that on seeing these P.Ws. The appellants ran away and these P.Ws. Found that the deceased had succumbed to the injuries. In this manner, according to these eye-witnesses, Mst. Mukhtaran deceased died instantaneously after receiving the injuries caused by the appellants. The doctor, however, has opined that there was no signs observed during post- mortem examination to indicate that the victim had died immediately on receiving the injuries.
' The testimony of the doctor further suggest that injury No,7 on the person of the deceased which was responsible for her death could have been caused by an assailant who throttled the deceased by forcibly pressing his knee or elbows against the abdomen of the deceased at the time of throttling. Fist blows caused by a lady aged 25 years cannot ordinarily cause an injury of the nature of injury No,7 which ended in devastating results.
15. None of the P.Ws. Could deny the suggestion that as a matter of fact Mst.Mukhtaran deceased had already been divorced by Muhammad Afzal in October, 1978. The appellants have produced Exh.D.G, a copy of an entry pertaining to Serial No,1248, dated 24th October, 1978 of Petition Writer's register of Muhammad Shafi deceased Petition Writer. This copy has been got duly proved by examining Muhammad Rafiq (D.W.1) son of the said Muhammad Shafi. The contents of Exh:D.G.
Reveal that a divorce deed was written where by Muhammad Afzal appellant divorced Mst.
Mukhtaran and this entry pertains to that divorce deed. The appellants who claimed to be innocent alleged that as a matter of fact Muhammad Afzal contracted marriage with Mst. Yasmin after divorcing Mst. Mukhtaran. In that eventuality, there cannot be any motive for both the appellants to do away with Mst. Mukhtaran.
16. The eye-witnesses have claimed that they were attracted to the place of occurrence by the shrieks of the deceased. According to the authoritative opinion recorded by Moodi as also by other experts in medical jurisprudence a person while being throttled cannot raise cry or shrieks.
17. In the light of the above infirmities noticed in the prosecution's case, it is concluded that the prosecution has failed to bring home the guilt to the appellants beyond reasonable doubt.
18. In this view of the matter, the present appeal is allowed, the conviction and sentence of the appellants, as recorded by the learned trial Court, are set aside and they are directed to be released forthwith, if not required to be detained in any other case.