' SARDAR MUHAMMAD. J.-Muhammad Rafiq aged 30 years has been convicted by Mehr Muhammad Nawaz Khan, Additional Sessions Judge, Kasur, vide order dated the 5th January, 1980 for having committed the murder of Mst. Zainab (25) and her sister Mst. Hussaina (12), at midnight, after entering their house armed with a Toka (P. 15), said to have been recovered at his instance on the 3rd June, 1977. He was sentenced to death and. To pay a fine of Rs, 5,000 on both counts. In default of payment of fine he has been directed to suffer R. I. For six months on each count. Mst.
Zainab was murdered when she was lying on a cot while Mst. Hussaina was done to death when she had pursued him and tried to catch hold of him. The occurrence was stated to have been witnessed by Manda P. W. 9, their uncle, Mansha, P. W. 10, their brother and Muhammad Mansha (P.
W. Given up) son of Qasim. The P. Ws. Have claimed that a lantern was burning in the courtyard at the time of occurrence.
2. Mst. Zainab was married to Muhammad Ashiq son of Karim. Phaphan, sister of Muhammad Ashiq was married to Muhammad Amin, P. W. 6, brother of the deceased. Muhammad Amin and Phaphan could not pull on amicably. She want back to her parents, as a result of which Muhammad Amin brought back Mst. Zainab from the house of her in laws. Efforts made by Mst.
Haliman, mother of Muhammad Ashiq for a compromise failed. Mst. Hallman demanded the divorce of her daughter but refused to agree for divorce of Mst. Zainab. One-and-a-half year before the occurrence Mst. Phaphan filed a suit for dissolution of marriage against Muhammad Amin in the Court of Judge, Family Court, Okara while Mst. Zainab deceased filed a suit for dissolution of marriage in the Court of Judge, Family Court, Kasur. Two days prior to the occurrence Muhammad Amin left for Okara to pursue the case against him which was fixed for 10th May, 1977.
He requested Manda, P. W. 9 to sleep in his house during his absence.
3. F. I. R. Exh. P. M./1 was registered on receipt of statement Exh. P. M. Made by Manda, P. W. 9 to Zaka Ullah, A. S.-I. P. W. 11 at village Khai at 2-30 a. m. On 11th May, 1977.
Zaka Ullah A. S.-Z. P. W. 11, the Investigating Officer, had taken into possession Identity Card P. 12 of the appellant and parna, P.11 stated to be belonging to the appellant from the spot vide memos.
Exhs. P. G. And P. F. Respectively. The memos. Were attested by Gul Muhammad P. W. 5 and Muhammad Hussain, P. W. (given up). Dost Muhammad S.-I. P. W. 13 arrested the appellant on 31st May, 1977. At the time of arrest the S. I. Took into possession chaddar, P. 14, which the appellant was wearing, vide memo. Exh. P. K. The chaddar bore blood-stain marks; Toka, P. 15 was recovered from a khalwara on 3rd June, 1977 on the pointing out of the appellant, which was taken into possession, vide memo. Exh.. P. L. Attested by Jahanan, P. W. 8 and given-up, P. W. Khushi Muhammad.
4. The convict has filed Criminal Appeal No, 172/80, through Jail. Murder reference for confirmation of death sentence is also before us. Both the matters are being disposed of by one judgment.
5. The prosecution in all produced fourteen witnesses. Dr. Iqbal Chaudhry, P. W. 14 had conducted the post-mortem examinam on the dead bodies of both the deceased. He had noted six cut wounds on the dead body of Mst. Zainab. He opined that the deceased died of haemorrhage and shock due to injury No, 3 which has been described as under :- "(3) A large gaping cut wound back and left side of neck middle and lower parts 6 x 4." The wound was a result of 2 blows, cervical vertebrae underneath were cut and spine was injured, neck vessels were cut."
The same doctor, the same day i. e. 11th May, 1977, at 6-00 p. m. Conducted the post-mortem examination of Mst. Hussaina. He noted eight cut wounds on her person. According to his opinion the deceased died of haemorrhage and shock due to injury No, 1, which has been described as under :- "(1) A large gaping cut wound 8" x 5" on the back of head and neck up to left angle of jaw and right shoulder top. The wound was a result of 4 blows. Underneath occipital bone piece was scraped.
First cervical vertebrae and 3 other cervical vertebrae were cut and spine was injured."
6. The prosecution case is based on the eye-witness account of Manda P. W. 9, uncle of the deceased, Mansha P. W. 10, brother of the deceased, recovery of Parna P. 11, and the Identity Card P.
12 from the spot, of the appellant : recovery of the toka at the instance of the appellant, blood- stained cnadar P. 14 of the appellant which he was found to have been wearing at the time of his arrest, and the medical evidence.
7. The appellant took up the plea during the trial that he is innocent. He denied the recoveries and stated that : "The complainant-party suspected me for helping the other party, therefore, they have falsely implicated me in this case due to suspicion."
8. The appellant was produced before us at his request on the 17th April, 1983. He stated that he was behind the bars for the last '7 years and that he has lost his parents and has no family. He submitted that benefits of the 6 Acres of land owned by him are being derived by the complainant-party and that he could not engage a counsel for him, both during the trial and for filing the appeal before this Court.
' Learned counsel appearing for him before us has been engaged at State expense.
9. The evidence of recoveries of all the incriminating articles in this case is doubtful. It does not seem to be logical that the appellant would be wearing the blood-stained thaddar 20 days after the occurrence. The evidence regarding chaddar is even otherwise discrepant. According to the recovery memo. The chaddar had been washed but according to Ibrahim, P. W. 7, the attesting witness of the recovery, the chaddar was unwashed at that time and the blood-stains also did not appear to be washed.
' The attesting witness of recovery of Toka is real uncle of the deceased. The recovery was effected from a place in the area of some other village. No peason from that village had joined the recovery proceedings. It has not been elucidated as to whom the khalwara, from where the toka was recovered, belonged. The recovery was after about 24 days of the occurrence. If it is to be believed that the appellant had the sense of concealing the toka in the khalwara, it may be granted that he would have the sense of washing the same, so that no blood-stains are found. The evidence of recovery of toka does not inspire confidence particularlym when the attesting witness is an interested witness and does not belongs to the village wherefrom the recovery was effected.
' The prosecution case that Parna P. 11, belonging to the appellant and Identity Card P. 12, of the appellant were found lying on the spot, is also not trust-worthy. The fact of either of the two articles being present somewhere near the spot has not been mentioned in either of the two inquest reports prepared by the Investigation Officer regarding the dead bodies of the two deceased.
These things, if at all could have fallen, should have fallen either at the place where Mst. Zainab was found lying murdered or where Mst. Hussaina was found lying murdered. The fact of their having not been found lying near the dead bodies at the time of preparation of inquest reports, smacks some sort of padding. The statement of Ghulam Muhammad P. W. 5, the only recovery witness from public examined at the trial, stated that "the Parna and the Identity Card were discovered at about sunrise after the arrival of the S H.
0.", shows that the existence of the Identity Card and that of the Parna at the spot was not known to anybody including the Police till at about sunrise when the same were taken into possession. If this was a fact then the fact of their having been mentioned in the F. I. R., devalues the authenticity of the contents of the F. I. R. As it is recorded in the F. I. R. That these articles were found lying on the spot after the accused had run away. In fact the recording of the F.I.R. In village Khal, as stated by the A. S.-I. Is doubtful in view of the clear statement made by the complainant Manda P. W. 9 in examination.In-chief that' "his statement was not complete and the remaining portion was recorded in the village". Particularly from this fact and from some other material on record it is not difficult to come to a conclusion that the statement of the complainant was recorded by the A. S.-I.
After having reached the spot, after having deliberated and having sought instructions from the S. H.
0. About whose arrival at the sunrise time has been stated by P. W. 5, Ghulam Muhammad.
10. Apart from what has been observed above, We even otherwise do not feel convinced that the appellant would have gone to the place of occurrence with his identity card in his pocket. No witness has particularly stated that he had ever seen the recovered parna on the person of the appellant before the day of occurrence. The evidence regarding the parna having been blood- stained is also discrepant, according to the A. S.-I. The parna was blood-stained On the other hand P. W. 5, Ghulam Muhammad has positively stated the examination-in-chief that the parna was not stained with anything.
' For the reasons enumerated above, no doubt is left in our mind that no reliance can be placed on the evidence of recovery of any of the incriminating articles.
11. The prosecution is thus left only with the eye-witness account furnished by real uncle and brother of the deceased. It is admitted fact that Manda P. W. 9, was not residing in the house where the occurrence took place. It is his own statement that he slept in that house only on the night of occurrence at the request of the brother of the deceased girls. He is thus a chance witness apart from being releated to the deceased. It was a dark night. According to P. W. 9 Manda it had rained on that night while according to P. W. 10, Mansha, dust storm had blown at night. In view of this fact we do not feel that any reliance can be placed on the statements of the witnesses that the lantern had remained kindled while hanging on a tree. The house-inmates would have definitely removed it firstly for the reason that they would have required the lights in the rooms where they wanted to sleep, secondly for the reason that the lantern could have been broken in view of the rain or dust storm, whatever happened on that night. If the dust storm had blown, the lantern could not have remained kindled and if it had rained, the glass of the lantern would have broken. It seems that the presenle of the lantern has been introduced as a device for justifying identification because of the occurrence having taken place in the darkness.
' Zaka Ullah, A. S.-I. P. W. 11, has also stated that on the night of occurrence there had been some rain.
' According to P. W. 9, he had moved to a different room after it had started raining, than the room where Mst. Zainab deceased was done to death. He could possibly not have reached in time to see the injuries being inflicted by the appellant to Mst. Zainab deceased, the number of which, he has particularly mentioned.
12. According to the eye-witness account Mst. Hussaina had chased the appellant and had caught him from behind, whereafter she was given injuries by the appellant. If a girl of 11/12 years could have made that attempt, Manda P. W. 9, who was an uncle of the deceased and was a young person being 40/41 years old, at the time of occurrence, would certainly have been able to do the same but he does not say that he either did that or made any effort to do the same. Mansha P. W.
10, who was 19 years of age at the time, of trial which took place two years after the occurrence, was also certainly in a better state than Mst. Hussaina who was only 11/12 years old at the time of occurrence, and he too, if he had seen anybody committing the crime, would have made some effort and helped her sister Mst. Hussaina, if her having caught the appellant is to be believed.
Apart from the above-pointed infirmities the evidence of the two witnesses even otherwise does not inspire confidence, particularly when considered keeping in view the fact that no particular motive has been stated against the appellant. The statement of Muhammad Amin at the trial that the appellant had asked him to send his sister to the house of her husband and that in case of non-compliance of the request, he had threatened him, was not found to have been recorded in his statement Exh. D. A. Before the Police under section 161, Cr. P. C. His statement that he had asked the appellant that he should make arrangements for his wife's return, was also not found to have been recorded in his statement Exh. D. A before the Police. The only insinuation made against the appellant in the first information report is that Muhammad Amin, brother -of the two deceased suspected the appellant of taking side with his in-laws. This insinuation cannot be termed as a motive. This fact rather supports the plea taken by the appellant that he has been involved in the case for the reason that the complainant suspected that he is taking side with the in-laws of Muhammad Rafiq.
13. As stated by the appellant before us, he was all by himself, had no parents, and no family. He had no interest in the family affairs of the complainant party. There was no motive for him to have murdered Mst. Zainab. If at all anybody was aggrieved of the deceased, that could be Muhammad Ashiq, her husband, or her in-laws The suggestion put to Manda P. W. 9, was denied by him that Muhammad Ashiq was kept as suspect by the Police in this case. Dost Muhammad, Sub-Inspector (P. W. 13) in cross-examination stated that he did not remember it Muhammad Ashiq, husband of Mst. Zainab (deceased) was joined in the investigation or not. If proper investigation had been conducted, the mystery of the murder of the two deceased might have been un-earthed, or some better evidence might have been collected.
' As a result of the above analysis and sifting of the -evidence, no doubt is left in our mind that the prosecution has not been able to prove the case against the appellant beyond reasonable shadows of doubt. He is acquitted on the basis of benefit of doubt. He shall be released forthwith if not required in any other case.