' MAZHARUL HAQ, J.- Munira Masih (23) and Amin Masih were tried for the murder of Msr. Wazifan.
On 17th January, 1977, Additional Sessions Judge, Lahore, convicted Munira Masih under section 302, P. P. C. And sentenced him to death with a fine of Rs, 2,000 out of which half was ordered to be paid as compensation to the heirs of the deceased. Amin Masih was acquitted on benefit of doubt.
Appeal of the convict and the connected murder reference are before us.
2. About eight months before the occurrence, Rashid Ahmed (informant) had shifted from Sialkot to Shahdara where he took abode in the huts (juhgis) near Power House, Shahdara. Members of his brotherhood also lived with him. He worked as a labourer. In the morning of 5th April, 1971 Rashid Ahmad's cousin Mst. Naziran wife of Muhammad Sharif and her daughter Mst. Faryad and his niece Mst. Wazifan (deceased) went with Baba Divan Ali (not produced) to the tube-well of one Malik for washing clothes. In the afternoon P. W. 6 Rashid Ahmed also went there for bathing. Just then, Mst.
Naziran and Mst. Wazifan finished washing clothes, Baba Divan Ali had also bathed and proceeded towards their house. P. W. 6 Rashid Ahmad had a quick bath and after putting on clothes, he followed them. When Mst. Wazifan and others reached Chauk Shore Kothi, just then, Munira Masih (accused) appeared there and tried to lift Mst. Wazifan. According to the prosecution, he often tried to take liberties with her, but Mst. Wazifan always resisted him and, out of vengeance, Munira Masih tried to forcibly take her away. He pulled her into the rickshaw driven by Amin Masih (acquitted accused). She raised an alarm upon which Munira Masih ripped out a knife and gave several injuries to her in the chest and flank, as a result of which she fell dead. Baba Divan Ali inflicted 2/3 stick blows to Munira Masih, but was pushed away by him. The accused fled away in the rickshaw towards Jehangir's tomb. Besides P. Ws. Rasbhd Ahmad and Mst. Naziran, the occurrence was also witnessed by P. Ws. Sarwar and Bhali Gujjar (given up). P. Ws. Rashid Ahmad went to make a report.
On his way near railway crossing, he met P. W. 12 Qazi Ghuiam Rubbani, S. I. And made statement Exh. P. F. At 12-10 p. m. On the basis of which formal F. I. R. Exh. P. F./1 was registered at Police Station Shahdara at 12-25 p. m. At a distance of half a mile from the place of occurrence. The S. I. Reached the place of occurrence at 12-15 p. m., prepared the necessary documents and sent the dead body for its post-mortem examination. From the place of occurrence, he recovered bucket P. 4, shirt P. 5, chaddar P. 6 and danda P. 7, these were taken into possession vide memo. Exh. P. C. Attested by P.Ws. Muhammad Yunus and Muhammad Hussain (given up as unnecessary).
3. As the doctor who held the autopsy had proceeded abroad, therefore, P. W. 5 Abdul Sattar, Dispenser, verified the post-mortem report. On 6th April, 1971 at 3 p. m. Dr. Nusrat Ullah, Deputy Police Surgeon, Lahore, held the autopsy on Mst. Wazifan's dead body and found the following injuries on it :-
(1) Incised wound 3/4" x 1/8" x muscle deep right and auxiliary wounds pectorals muscle is partially cut.
(2) Stab wound 3/4" x 1/8" epi-gastra 1/2" away from mid-line on left side oblique in direction.
Abdominal wall, left lobe of lower and out layer of tissue omentum are cut.
(3) Stab wound 1" x 1/8" right flank oblique in direction. Abdominal wall and lower part of right kidney are cut through and through. Extension collection of blood present in tissues.
(4) Incised wound 3/4" X 1/8' x skin deep 1/4" above right elbow lateral aspect.
(5) Incised wound 3/4" x 1/6" x skin deep right index finger middle digit palmer aspect.
' In his opinion death was due to shock and haemorrhage caused by injuries Nos. 2 and 3 which were individually sufficient to cause death in the ordinary course of nature. The remaining injuries were simple.
4. P. W. Qazi Ghulam Rubbani, S. I. Investigating officer searched for the accused. He received information that Munira Masih, accused, would be alighting at about 10-00 p. m. At Shahdara Railway Station from the train and would be going to his maternal uncle's house. The S. I. Went there and arrested the accused at Shahdara Railway Station. On search of his person, dagger P. 8 wrapped in a cloth was recovered from the nefa of his Shalwar. The knife was made into a sealed parcel vide memo. Exh. P. H., attested by P. W. 9 Muhammad Sarwar, Nazir Ahmad and Taj Din (given up as unnecessary). The clothes of the accused were also stained with blood, these were taken into possession vide memo. Exh. P. J., attested by the same aforesaid witnesses. Munir Masih accused bore injuries. The S. I. Got him examined. P. W. 7 Dr. Muhammad Iqbal Chaudhry, M.
0. Civil Hospital, Shahdara, examined him the following day I. e. 6th April, 1971 and found the following injuries on his person :-
(1) An abrasion 1/4" x 1/4" on the posterior side of head 1".
(2) An incised wound lf" x 1/8" x 1/16 on the poster medial aspect of left hand on dorsal side superficial and with friendly hand.
(3) Swelling 1" x 1" on the back side of left calf.
4. All injuries were simple. Except for injury No, 2, the rest were caused with blunt weapon.
5. Amin Masih, accused, was arrested on 7th April, 1971 from Badami Bagh area. His rickshaw was taken into possession with his licence, through memo. Exh. P. N. Attested by P. Ws. Nazir Ahmad son of Ghulam Muhammad, Nazir Ahmad son of Alimud Din and Taj Din (not produced).
6. At the trial, Munira Masih, accused, denied guilt and said P. W. 9 Sarwar a stock witness of the police, had got him roped in falsely because of his enmity with his uncle Mubarak. He denied the recovery and asserted that he was arrested from his house in the area of Mughalpura at night.
Munira Masih attributed his injuries to police torture and explaining the case against him, he said that the real culprit was never traced by the police and out of enmity be has been roped in.
According to Amin Masih, during the day of the occurrence, he never plied a rickshaw and that being a Christian, he had been roped in.
7. Relying on the evidence of the three eye-witnesses and that of the recoveries, the trial Court considered the prosecution case satisfactorily proved against Munira Masih. Amin Masih, accused, was given the benefit of doubt, because none of the witnesses had seen him coming out of the rickshaw except P. W. 9 Muhammad Sarwar who had seen him a little before the occurrence with the rickshaw at some distance from Munira Masih but P. W. Rashid Ahmad said that Muhammad Sarwar reached the place of occurrence after the departure of the accused, as such Muhammad Sarwar was contradicted. Moreover, the Investigating Officer said that Amin Masih accused was produced by the respectables of the area before him, but P. W. 11 Muhammad Sharif said that he produced the accused before the Investigating Officer. These circumstances weighed with the trial Court, and Amin Masih, accused, was given the benefit of doubt.
8. Criticizing the finding, it was contended that though the occurrence was said to have taken place in broad daylight and several persons had gathered. Prosecution has relied on either close relations of the deceased or the police stock witnesses. It was next contended that trial Court found that the rickshaw driver had not come out of the rickshaw. Since his identification was doubtful, therefore, Amin Masih, accused, was given the benefit of doubt. This finding shows that without any evidence, Amin Masih was roped in by the Investigating Officer. We also find that there is a material contradiction regarding the arrest of Amin Masih. The Investigating Officer said that Amin Masih was produced before him by the respectable. But P. W. 11 Muhammad Sharif who plied a rehra claimed to have produced him before the Investigating Officer from Adda Lorry Badami Bagh, Lahore. The witness denied having appeared as a prosecution witness in criminal cases. What circumstance led to the arrest of Amin Masih is remains a mystry, so much so, that none out of the three witnesses of the recovery of rickshaw have been produced. There was no identification parade of either accused held in this case. There is force in the submission that since the prosecution case was highly doubtful against Amin Masih. The rickshaw driver, this circumstance, therefore, adversely reflected the prosecution story i. e. The appellant had come to the place of occurrence in a rickshaw and after attack left in it. It may be mentioned here that the defence case was that deceased had been attacked in the early morning and none saw the occurrence but he was roped in out of enmity with Sarwar P. W. Although, defence has failed to establish any enmity but at the same time, it has to be seen whether the eye-witnesses can be relied upon.
9. P. W. 6 Rashid Ahmad is admittedly a close relation of Mst. Wazifan (deceased). It may be mentioned that P. Ws. Rashid, Mst. Naziran, Bhali Gujjar and the deceased were nomads, who had no permanent place of residence but lived in huts. Mst. Wazifan (deceased) was a niece of P. W.
Rashid Ahmad. She was also closely related to P. W. Mst. Naziran, as admitted by her in police statement. Mst. Wazifan (deceased), P. W. 8 Mst. Naziran, Mst. Faryad (not produced) and Baba Divan Ali (since dead) had gone to the tube-well in the morning at about 8 a. m. For washing clothes. The occurrence was said to have taken place at about 12 noon i,e, about 4 hours after their arrival at the tube-well. It is in the cross-examination of Mst. Naziran that Mst. Wazifan (deceased) had to wash her own clothes i,e, shirt P. 5 and chadar P.
6. P. W. Mst. Naziran had three clothes to wash i. e. The one she was wearing and she also washed clothes of her daughter and son. The deceased also washed the clothes of Baba Divan Ali. This would indicate that the three women did not have many clothes to wash yet they remained at the tube-well for nearly four hours. This was an improbability and lent support to the defence case that the occurrence took place early in the morning. It may also be pointed out here that according to the prosecution, P. W. 6 Rashid Ahmad (informant) bad not accompanied the others to the tube- well in the morning. He claimed to have reached there later at noon for bathing. His presence at the tube-well was a doubtful matter for a number of reasons. He was in the service of a Police Inspector and looked-after his buffaloes in Baghbanpura where he used to go daily in the morning and used to come back 'home by 3-30 p. m. But on the day of occurrence, he was not well enough to go to work because he had a severe headache for which he also took a coopyrine. With this state of health, he would normally not expose himself what to say of having a bath in the open.
Furthermore, according to P. W. Rashid Ahmad as he reached the tube-well, the women and Baba Divan Ali were leaving. He had a quick bath, put on his clothes and followed them. He was at a distance of 10 yards from Mst. Wazifan when she was attacked, This account was again improbable because there is no explanation of witness's hurry. Assuming that he did go for a quick bath, even then, it would have taken sometime to undress, bath and put on his clothes and in the meanwhile the deceased and others had only to go maximum 50 yards as estimated from the site plan. Last but not the least, the F. I. R. Was not recorded at the police station although it was only at a distance of 11 furlongs from the place of occurrence where the S. I. Claimed to have recorded the statement of P. W. Rashid Ahmad, and even if the S. I. Had met P. W. Rashid Ahmad on the way, there is no explanation as to why the two did not go to the police station which was within their sight for registering the case. This circumstance also lends support to the defence version. Except for the oral statement of P. W. Rashid Ahmad, there is no evidence to prove Baba Divan Ali's death.
Be that as it may, Baba Divan Ali was said to have had a confrontation with the accused in which he gave stick blows to him. P. W. Rashid Ahmad on his own showing was at a distance of 10 yards at that time. Had he been there, he could have intervened by using Baba Divan Ali's stick or danda P. 5 which. The deceased was carrying for washing clothes. It may also be added here that there are contradictions in the statement of P. W. Rashid Ahmad made before the Committing Magistrate with regard to number of injuries inflicted to the deceased. Under these circumstances. P. W.
Rashid's presence at the place of occurrence is not free from doubt. So, is the case with Mst.
Naziran. Admittedly, she had come 10/15 days before the occurrence and was living in the jhuggis near Shahdara alongwith her baradri. According to her, 10/15 days after the occurrence, she left for Sialkot and started living there, True, the complainant party are nomads, yet there is no explanation of Mst. Naziran's short visit to Shahdara. Had P. W. Mst. Naziran been with the deceased like Baba Divan Ali, she would have interfered because according to her she was two paces behind the deceased whereas Baba Divan Ali was still behind her. Being so near to the deceased, she did not help rescue. Although, she claimed to be of the same brotherhood and was a relation of P. W.
Rashid Ahmad but strangely enough, she did not know his profession. We have observed earlier that four hours stay of the women at the tube-well for washing a few clothes was an improbable story.
10. P. W. Muhammad Sarwar is said to be a stock police witness but he denied it, The witness was suggested whether he was a witness in a pending case before the local Magistrate and had earlier appeared in a murder case. At first he denied the suggestion, but in the same breath he admitted to have appeared in two cases. Later, a large number of cases were suggested to him in which he was said to have appeared as a witness, but he denied it. He is also a witness of the arrest and recovery from the accused. It may be mentioned at the outset that according to the Investigating Officer, he had information that accused would arrive at Railway Station Shahdara. The same evening, as soon as the accused alighted from the train, he arrested him with the dagger which was wrapped in a piece of cloth. The story is highly improbable because would the accused come by train and alight at Railway Station Shahdara, which was at a visible distance from the Police Station. Moreover, it is not known what was the S. l's. Source Of information about accused's arrival by train. On the other hand, we find that the accused was said to have wrapped the dagger in a piece of cloth yet it remained blood stained. This was another improbability. Again, if the accused was careful enough to wrap the knife in a piece of cloth, he would have then washed the blood from it and also from his clothes or he could destroy them. The circumstances of appellant's arrest are, therefore, highly doubtful matters. It is noteworthy that P. W. Muhammad Sarwar claimed to have reached the place of occurrence simultaneously with P. W. Rashid Ahmed. But both according to Rashid and Mst. Naziran, the former had reached the spot when Mst. Wazifa had died and the accused had left. Keeping these circumstances in view and that Muhammad Sarwar was a witness of the arrest and recovery from the accused which has been found doubtful, we are, therefore, of the view that his statement required corroboration from an independent source which there is none in this case.
10. For the foregoing analysis of the evidence, we are not satisfied with the prosecution case. Giving the appellant benefit of doubt, we accept his appeal, set aside the conviction and sentence and acquit him of the charge.
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