' Muhammad All (14) and his brother-in-law Haider An (31/32) were tried for the murder of their co- villager Sharf Din. On 2-12-1984 Additional Sessions Judge, Qasur, convicted them under section 302/201/34, P.P.C. And sentenced Muhammad Ali to imprisoment for life and with a fine of Rs,5,000 in default to undergo six months R.I. Further. The fine if realised was ordered ,-tO be paid as compensation to the heirs of the deceased. On the second count, he was sentenced to four years R.I. With a fine of Rs,2,000 in default to undergo three months R.I. Further. Both the sentences were ordered to run concurrently. Haider Alk:- was acquitted of the charge. Appeal of the convict and the connected revision filed by the State for the enhancement of sentence are before me.
2. Sharf Din (deceased) lived in Mauza Nainwal Jagir with a family of nine children. Hiss sister Mst.
Sabran Bibi was married in Village Chah Padanwala. Sharf Din often used to visit her. He developed illicit relations with Mst. Fatima alias Phama wife of one Allah Ditta who also lived in the same village. He gave a loan of Rs,5,000 to Mst. Phama's son-in-law of Haider Ali (acquitted-accused).
About 14 days before the report in this case, Sharf Din went to Village Chah Padanwala for the return of the loan because he required the money for the purchase of some land. He also carried with him Rs,13,000 which was required for the registration. Since Sharf Din did not return to his village, his relations became suspicious that he may not have been got murdered by Muhammad All son of Mst.. Phama and her son-in-law Haider Ali. Consequently on 14-7-1983 Muhammad Rang proceeded towards Police station Khudian for making a report but met with Muhammad Siddique, A.S.I. (P.W.11) on the way in Mandi Dholen and made statement Exh.P.C. To him on the basis of which formal F.t.R Exh.P.C/1 was registered at Police Station Khudian the same day. P.W.11 Muhammad Siddique A.S.I. Partly investigated the case and recorded the statements of Mst. Sabran Bibi, Kurshid Bibi, Inayat Bibi and Sughran Bibi, thereafter, the case was investigated by P.W.14 Muhammad Akram S.I. On 15-7-1983, he arrested Muhammad Ali who disclosed that 15 days before his arrest, he had murdered Sharf Din who was sleeping in their house and the dead body was buried in the field situated at a distance of 3 Acres from the Abadi. Thereafter, on his pointation in the presence of Muhammad Hassan, Muhammad Shafi and Bilal P. Ws. The dead body was recovered Its memo of pointation was prepared. After preparing the necessary documents, the dead body was sent for post-mortem examination.
3. P.W.12 Dr. Saeed Ahmad, M.O., D H Q. Hospital, Qasur, on 15-7-1983 held the autopsy on the dead body of Sharf Din and found the following injuries on it:- "Cut mark present on front of neck below the adam apple size 10 c.m. x 6 c.m. The underlinot part of trichea and large vessels of the neck on both. S)tlei* ond muctles on both sides were cut. The fourth cervical vertebra, sonat cord and oesophagus were cut."
' In his opinion death occurred due to shock and .h-emorrhage as a result of cutting trichea and large vessels of the neck under injury No,l. Which was sufficient to cause death in the ordinary course of nature.
4. On 26-7-1983 Muhammad All got recovered blood-stained Toka P.8 which had been hidden under a Bunna tree in the land of one Sultan Ahmad, it was made into a sealed parcel through memo Exh. P.Q. Attested by P.Ws. Ahmad Din and Muhammad Ashraf (both were given up as won over) besides the investigating officer. On 29-7-1983 Haider Ali was arrested. He also pointed out the place of recovery of dead body. Its memo of pointation was prepared. After completing the investigation, the accused were sent up for trial.
5. In their examination under section 342, Cr.P.C. Both accused denied guit. According to Muhammad Ali, there was litigation over landed property between his father and Hassan Din brother of Mst. Janat Bibi wife of the deceased. According to Haider Ali, he has been involved in his case due to his relationship with Muhammad Ali. Exh.D.C. And Exh. D.D. Are copies of plaint and complaint relating to the litigation mentioned by Muhammad Ali. No accused produced defence.
6. Relying on the evidence of Mst. Khurshid Bibi that the deceased was last seen in the house of Mst.
Fatima mother of Muhammad All accused, evidence of recovery of dead body at the instance of Muhammad All and that of the recovery of Toka P.8, the weapon of, offence, trial Court found the case satisfactorily proved against him. Since there was no evidence to connect Haider All with the crime, he was given the benefit of doubt and acquitted.
7. Criticizing the finding, learned counsel for the appellant contended that in this case the prosecution has been fishing evidence against the accused which is evident from the statement of Mst. Inayat Bibi who was produced to show that she had seen Sharf Din and Mst. Fatima in the rice field but the witness under cross-examination took up a fantastic position saying that she had not disclosed this fact to any of the relations of the deceased nor mentioned it to anyone else including the police and she was making this statement for the first time in Court. He next contended that Mst. Khurshid Bibi is the niece of Sharf Din (deceased). According to her, the accused used to stop the deceased from visiting their house because they suspected illicit relations of Mst. Fatima with him, but Mst. Fatima told her son and son-in-law that Sharf Din would visit her. This is contradictory position taken up by the prosecution because on one hand, prosecution would like it to be believed that Haider Ali had taken a loan of Rs,5,000 from Sharf Din and on the other hand would he then stop Sharf Din from visiting his mother-in-law. Learned counsel further pointed out that according to Mst. Khurshid Bibi, she had parted this information to Rafiq (informant) but Rafiq did not mention this fact in his statement. Even according to Mst.
Khurshid Bibi, she had overheard the conversation while passing in front of the house of Mst.
Phama. It was next contended that the recovery of dead body in this case was not under the supervision of a Magistrate nor the doctor was taken by the S.I. To the spot which is normally done in such cases and that the recovery of dead body at the pointing out of Muhammad All is belied by the evidence of the photographer P.W.5 Bilal Ahmad who was said to be present at the time of the recovery and who also took photographs of the dead body. According to this witness, the pblice had told him that the dead body had been discovered and on reaching there, he took its photographs. Obviously his statement belies the statement of P.W.7 Muhammad Hassan who attested the recovery memo of the dead body. I have considered this aspect of the case. The other witness who attested the memo Exh.P.D. Namely Muhammad Shafi was given up as having been won over and Muhammad Hassan is admittedly a friend of the deceased as he claimed to be on visiting terms with him. The photographer was a disinterested witness. In view of his statement that when he reached the spot, the dead body was already lying there and he took its photographs, as such he contradicted the statements of those who attested the pointation memo of recovery of the dead body. Moreover, neither the Magistrate nor the doctor was taken to the spot before the excavation. I, therefore, do not consider it safe to rely on his statement about the recovery of dead body.
8. Prosecution is left with the recovery of blood-stained Toka P.8, the two witnesses of its recovery Muhammad Ashraf and Ahmad Di were given up by the prosecution and in view of the circumstances fo A this case which have been analysed alone, it would not be safe to rel on the testimony of the Investigating Officer alone. Giving the benefi of doubt to the appellant. I accept his appeal, set aside his convictio and sentence and acquit him of the charge. He shall be released forthwit if not required in any other case.