' MAZHARUL HAQ, J.--Chakar (70), Rajad (60), Toga (45) sons of Nawab, Muhammad Habib (20) son of Rajad and his cousin Allah Ditta (20) were tried for the murder of Mumtaz. On 26-7-1980 Ch. Muhammad Saeed Akhter, Sessions Judge, Vehari convicted them under sections 302/149, 147, P.P.C. Habib was sentenced to death and to a fine of Rs,2,000 in default to undergo one year's R.I.
The remaining accused were sentenced to imprisonment for life and to a fine of Rs,1,000 each in default to undergo six months' R.I. Further. Half of the fine was ordered to be paid as compensation to the heirs of the deceased. On the second count all accused were. Also sentenced to six months'
R.I. Appeal of the convicts, the connected murder reference and complainant's revision for the enhancement of sentence are before us.
2. In the afternoon on 22-6-1979 Ismail, a servant of Habib, took away a he-buffalo of Mumtaz (deceased). When he brought it back, its iron chain was missing. For having caused this loss, Mumtaz (deceased) gave a stick blow to him for which reason the accused bore a grudge. The second motive alleged was that Mst. Ghulam Fatima wife of Habib had illicit connection with Mumtaz (deceased), therefore, the accused used to stop him from bathing at the rajbah situated near the house of the accused. According to the prosecution on 22-6-1979 at 4-30 p.m. Mumtaz (deceased) went to the aforesaid Rajbah for bathing. As he reached there Chakar, Toga, Habib and Rajada rushed there. Habib put a Patka around the neck of Mumtaz (deceased). The remaining four grappled with him, Habib had a licenced pistol from him and fired thrice but the shots missed.
Nazar Muhammad (informant) maternal uncle of Mumtaz raised an alarm. The accused carried away Mumtaz and lay him in front of their shop. Rajada and Toga caught hold of his arms, Chakar and Allah Ditta secured his legs, twisting the Patka Habib strangulated Mumtaz. The occurrence was witnessed by Muhammad Ashraf and Muhammad Khan who had reached there on the alarm.
They intervened and rescued Mumtaz but he had died by then. Covering a distance of six miles'
Nazar Muhammad (informant) reached the Police Station Sahoka and made F.I.R. Exh. P.O. The same evening at 7-15 p.m. To P.W.10 Zafar An, S.I. /S.H.O. After registering the case, the S.I. Went to the place of occurrence, prepared the necessary documents and sent the dead body for its post- mortem examination. From the place of occurrence, he took into possession towel P.14, Soap case P.5, Soap cake P.8, a Dhoti P.4, a pair of Chappal P.6/1-2 of the deceased and another pair of Chappal P.7/1-2 of Habib accused, these were secured through memo. Exh. P.B. Attested by P.W.6 Muhammad Khaqan and P.W.10 Zafar Ali, S.I., P.W. Inayatullah was given up as unnecessary. The S.I.
Also took into possession blood-stained Patka P.9 with which the deceased was strangulated to death. Exh. P.F. Is its memo. Attested by the same aforesaid witnesses.
3. P.W.2 Dr. Muhammad Afzal Saleemi, Medical Officer, Vehari held the autopsy on 23-6-1979 at 8- 00 a.m. And noticed the following injuries on the dead body of Mumtaz.
"(1) There is a ligature mark 30 c.m. x 21 c.m. On the left, front and right, side of neck. The mark was at the middle in front of neck but was oblique on the side more oblique was on the left side rather than right side.
(2) An abrasion # c.m. x 4 c.m. On the bridge of nose.
(3) An abrasion 1 c.m. x 4 c.m. On the right side of forehead 2 c.m. Above the right eye-brow.
(4) An abrasion 1 c.m. x 1 c.m. On the right side of forehead 1/ c.m. Inner to injury No, 3."
' The doctor found accumulation of blood clots clothes and blood underneath injury No,1. The muscles were also lacerated. There was accumulation of blood clots and blood on the sound box.
The layrnx and the membranes were congested. There was accumulation of blood on and around the layrnx. The right side horn of cartilage of larynx was fractured. Both lungs, pericardium and heart were congested. The stomach was empty and congested. Small intestine contained faecal matter. There was 5 ounces of urine in the bladder. Pancreas, liver, spleen and kidneys were also congested. The death was caused by strangulation. This injury was sufficient to cause death in the ordinary course of nature. Probable time that lapsed between injury and death was about five to ten minutes and between death and post-mortem was about 12 to 24 hours.
4. On 24-4-1979 Shamir, Lumberdar (not produced) produced Rajad, Chakar, and Allah Ditta, accused, before P.W.10 Zafar Ali, S.I. The same day, Allah Ditta in custody led to the recovery of revolver P.3 from within the earthen bin placed inside his house. Crime empty P.10 and three live missed cartridges P.11-13 were removed out of it. These and the revolver were secured vide memo.
Exh. P.H. On the following day, Shamir, Lumberdar, also produced Toga, accused. Habib was arrested from Nishter Hospital, Multan on 28-6-1979 where he had been admitted.
5. C.W.1 Mrs. Asmat Jafari, W.M.O., Civil Hospital, Burewala on 22-6-1979 at 6-30 p.m. And 7 p.m. Had examined Muhammad Habib and Ismail, respectively and made the following observations about their injuries: - ' Muhammad Habib "1. Lacerated wound 1.5 c.m. x 0.5 c.m. x going deep, 3.5 c.m. From right angle of the mouth and 6 c.m. From right louble of the ear with surrounding ecchymosis of two c.m. In diameter and a large swelling 6 c.m. x 4 c.m. On right side of neck which is tender and due to haemorrhage underlying tissues.
2. Contusion 10 c.m. x 1.25 c.m. On left side of front of chest transverse in direction little above anterior auxiliary angle.
3. Contusion 2.5 c.m. On front of left thigh, 9 c.m. Above the knee.
' The injury No,1 was caused by a fire arm. The rest were caused with blunt weapon.
' Muhammad Ismail: "Contused wound 3 c.m. x 0.5 c.m. On the upper part of the pinna of the left ear cartilage. Skin and other tissues completely divided upto its middle vertically."
6. After completing the investigation, the accused were sent up for trial. All accused denied guilt.
Denying his suspicion against his wife Mst. Ghulam Fatima and Mumtaz of a liaison and explaining the case against him, he made the following statement:- "The deceased was a man of bad character and a desperate person. He used frequently to visit the street in front of my house. He was asked not to do so and on the day of occurrence, he came and he was asked not to walk around. I alongwith Ismail my servant were standing in front of my house when the deceased abused and on our asking not to visit the street, pulled out his pistol and fired four shots. The last shot hit me and I was injured. Ismail caught hold of the deceased and in the struggle he was also injured. I caught hold of the Patka which was in the neck of the deceased and the deceased tried to pull away from me and in the process, he expired.
' After the fire-arm injury I had fallen down and had sustained two contusions. Thereafter, I got up and pulled him from the Patka around his neck. The place from where the blood was taken up was right in front of my house where I had fallen down on receiving the fire-arm injury. I produced an attested copy of the F.I.R. Dated 13-7-1974 lodged by Nazar Muhammad P.W. Against the deceased under section 307, P.P.C. And another F.I.R. Dated 29-6-1975 lodged by Mst. Sabban w/o Mokha against the deceased under section 430/354, P.P.C. I also produced attested copy of list of witnesses filed by Khaqan P.W. In a suit before a Family Court Judge in which Nazar Muhammad and Ashraf P.W. Have been cited as P.Ws."
' According to Allah Ditta, in fact he took the medico-legal reports of Habib and Ismail to the police station where he went with one Ihsan but a report was not registered by the police, instead he was made to sit there and the documents were taken away from him. Chakar, Rajad and Toga stated that since they are related to Habib, therefore, they have been falsely roped in so that no other male member be left out to pursue the case. Besides, the documents produced by Habib in his statement, no evidence was produced by the accused in their defence.
7. Relying on the statement of P.W.7 Nazar Muhammad about the two motive stories as set out in the F.I.R., the testimony of the two eye-witnesses namely P.W.7 Nazar Muhammad and Muhammad Khaqan and that of the recovery of Patka P.9 with which the deceased was said to have been strangulated, trial Court came to the conclusion that the prosecution case was satisfactorily proved against the accused. It, however, did not consider it safe to rely on the evidence of the recovery of revolver P.3 because of the glaring contradictions between the statements of the Sub- Inspector and P.W.5 Ghulam Abbas a witness of recovery.
8. Criticizing trial Court's finding, learned counsel for the appellant contended that the first motive story was on the face of it a cooked up one because it was in conflict with the second motive, inasmuch as that the appellant suspected Mumtaz deceased of a liaison with his wife Mst. Ghulam Fatima. Would then, under the circumstances, appellant's servant Ismail have anything to do with Mumtaz or his he-buffalo which he allegedly took away without deceased's consent. It was argued that the buffalo story had been put up to explain away the injuries suffered by Ismail. We have considered this aspect of the case and find that Ismail's having taken away the he-buffalo without deceased's consent was not mentioned in the F.I.R. By P.W. Nazar nor it was so stated by P.W.8 Ali Shan. This witness was not relied upon by the trial Court because his statement was recorded nine months after the occurrence. For what Ismail took away the he-fuffalo of Ismail is not known. With regard to the first motive, there is the solitary statement of P.W.7 Nazar Muhammad (informant) which is not corroborated by any other evidence. On the other hand, there is force in the submission that appellant's servant would have nothing to do with the deceased because of appellant's suspicion against the deceased of a liaison with his wife. Even if it be accepted that Ismail was given a stick blow by the deceased in the morning would then it be enough motive for Ismail's master i.e, Habib appellant and others to kill Mumtaz. It seems highly improbable. As to the second motive, Habib, appellant had not denied his suspicion against the deceased. It is in fact the defence case that the deceased was hovering around appellant's house and when checked he pulled out a pistol and that after having been fired at by the deceased Habib acted in self-defence by strangulating him with deceased's own Patka.
9 Sole question for determination in this case would be whether the occurrence took place as stated by the prosecution or whether the appellant acted in defence. Undoubtedly, the occurrence took place in front of the house of the appellant who also suffered a fire-arm injury. It is prosecution's own case, that the deceased used to carry a pistol with him. The medical examination of Habib was suppressed by the prosecution which was proved through a Court witness Dr. Mrs. Asmat Jaffery, Woman Medical Officer, Civil Hospital. Further we find that Mumtaz, deceased's pistol which was said to have been snatched away by Allah Ditta appellant was later recovered from him and has rightly been discarded at the trial. According to the prosecution, Mumtaz had gone to the Rajbah situated near the house of Habib for a bath. P.W.7 Nazar Muhammad a maternal uncle of the deceased, admitted under cross-examination that there was a hand pump in his house and there was one in the house of the deceased. Under these circumstances, the story of a bath at the Rajbah would be doubtful and appears to have been put up as an excuse to justify deceased's presence near the house of Habib with whose wife, he was carrying on. In all probability, the deceased may have found an opportunity to visit Mst. Ghulam Fatima. Although, there is no direct evidence to prove that he was seen with Habib, appellant's wife but the place of occurrence, other circumstances, and reasons mentioned above would indicate that all probably the deceased may have gone there in pursuit of his affair. He even carried a weapon with him. It was mid June, expecting male members to be in the field, the deceased may have considered it a good opportunity to meet Mst. Ghulam Fatima but to his surprise, he was checked by her husband. There is yet another improbability in the prosecution story which does not appeal to reason i.e, after having overpowered the deceased by putting the Patka around his neck, there was no sense in carrying him in front of the Dhari of Allah Ditta, appellant. If the accused had decided to take him to their Dhari, and strangulate him there, they would have then taken him inside the Dhari so that none could see them strangulating him to death. The story of lifting him from the place where they first grappled with him and then took him in front of their Dhari is an improbable story. Again, in the F.I.R. The first part of the narration about the attack and informant's statement at the trial do not appeal to reason because the accused who were six in number were said to have first grappled with the deceased when Habib put a Patka around his neck, could in this situation deceased be in a position to pull out the revolver and fire at Habib. The answer would be in the negative. On the other hand, it is more likely that on surprise appearance and questioning by Habib and his servant as they approached the deceased who with a guilty mind due to the love affair may have opened the attack but could not effectively hit Habib and Ismail and may have been overpowered by them by the twisting of deceased's own Patka around his neck. It may also be added here that in reconstructing the scene of crime, theF one described Habib, appellant, appears to be more plausible and nearer truth if not the whole truth because if it is believed that all accused were grappling with the deceased and Habib had put a Patka around his neck then would the deceased be in a position to pull out the revolver and fire it hitting Habib. This story is highly improbable. However, assuming that it happened the way prosecution has described it, then there would have been blackening and charring around Habib's wound. But if Habib appellant, and his servant had gone up to him and had not yet come in physical contact with him and were fired at from a distance of a few feet, then there would be no blackening and charring because they would not be closed enough to the deceased. It appears that while reconstructing the scene of crime, trial Court overlooked this aspect of the case. On the other hand in a case like this in which there is a liaison with the wife of another, the recovery of a towel, soap cake and the soap case cannot be accepted as a corroborative circumstance for believing that the deceased had actually gone to take a bath at the Rajbah situated near the house of the woman. Mumtaz deceased may have carried these articles as a pretence so that he may not be found out and that there may not be a suspicion about his visit to Habib's wife.
10. Before parting with this case, a few words about the investigation are necessary. P.W.10 Zafar Ali, S.I., admitted that Habib was arrested by him from the Nishter Hospital on 28-6-1978 where he was admitted, but the S.I., made no mention of his injury statement. Under cross-examination, he admitted that the medico-legal certificate of Habib was produced before him at the Nishter Hospital. Thereafter, he took down the extract from the medico-legal certificates of Habib and Ismail on 28-6-1979 at the Hospital. It may be added here that the injuries of Habib and Ismail were proved by a Court witness. Though the S.I. Took the medico-legal certificates of the two injured at the Nishter Hospital yet the lady doctor who had examined them was not cited as a witness in this case.
11. For what has been stated above, we are not satisfied with the prosecution case. Accepting their appeal, we give the benefit of doubt to the appellants and acquit them. They shall be released forthwith if not required in any other case.