Muhammad Ashraf (27) was tried for the murder of his were Mst. Rabia. On 27-6-1983 Additional Sessions Judge, Gujrat, convicted him under section 304, Part I, P.P.C. And sentenced him to imprisonment for life with a fine of Rs.10,000 in default to undergo two years' R.I. Further. The fine, if realised, was ordered to be paid as compensation to the heirs of the deceased. The appeal of the convict is before me.
2. Mst. Rabia was twenty at the time of her marriage with Ashraf accused about a year before the occurrence in this case. It turned out to be a unhappy marriage. The two could not pull on with each other, therefore, a few days before the occurrence after a quarrel with her husband, Mst.
Rabia went to her parents in village Bhiki. On 6-11-1981, her father P.W. Saee Muhammad brought her back to her husband. To bring about a reconciliation, the six persons who were instrumental in arranging the match also accompanied Saee Muhammad to the house of the accused. P.W. 6 Salehoon, brother of the informant and their cousin P.W.7 Lala pressed upon the accused that he should not be harsh to his were and that he should treat her with kindness. For the night, they slept in the house of the accused. The couple slept in the adjoining room. At about mid-night they heard an alarm coming from the room of the two, the three witnesses knocked at the door. Since, it was bolted from inside, they could not open it. They peeped through the window and saw that the accused .Was strangulating his were whom he had laid on the ground. The witnesses stopped the accused and insisted upon him to open the door. After sometime, he opened the door and tried to slip away but was apprehended at the spot. The witnesses went inside the room and saw that Mst.
Rabia had died. They raised an alarm, several persons gathered there including Hayat Muhammad Lumberdar, Thereafter, covering a distance of 3 furlongs, Saee Muhammad P.W. Went to Police Station, Khutiala Sheikhan and reported the occurrence to P.W. 8 Zafar Mahmood S.I. Who registered the case and recorded the F.I.R. Exh. P.C. He then went to the place of occurrence, prepared the necessary documents and sent the dead body for its post-mortem examination. The S.I. Also arrested the accused who was produced before him by the witnesses.
3. P.W. 9 Dr. Nazeer Ahmad Anwar, Senior Medical Officer, Civil Hospital, Phalia, held the autopsy on 7-11-1981 and found six injuries on the dead body of Mst. Rabia out of which five were abrasions on the face and on her knees. There were about 12 contusions between the range of 1-- x 1 cm and -- x -- cm on her neck. On dissection subcutaneous tissues were found ecchymosed. Inner of trachea was congested.
4. Explaining the case against him, Muhammad Ashraf, accused, made the following statement:--- "Prior to my marriage with Mst. Rabia deceased, I was married to Mst. Safia, the daughter of Ziada, of my village. After the birth of a son, I divorced Mst. Safia and my relations became strained with that family. Mst. Safia has two brothers, namely Akbar and Khizar Hayat. There was prior to this occurrence a fight of my party with the party of Ziada and a case under sections 324/326 and 302, read with section 149, P.P.C. As also 148, P.P.C. Was registered against my party including myself and my father Nazar Muhammad at the instance of Ahmad Khan, a member of the party of Ziada. This case is still going on in the Court of law against us. I produce a certified copy of the F.I.R. Exh. D.C. On the night of occurrence my father was away to Sargodha and I was sleeping at my Dera to guard our cattle. My were Mst. Rabia was alone in the house and some body. Either from the party of Ziada or some other criminal entered my house and killed the deceased. It is just possible that the assailant either wanted to commit some theft or rape the deceased which she resisted and ultimately she was killed by the assailants. I learnt of the death of my were on the same night at my Dera and then I came to my ,house and in the company of Umar Hayat, Lambardar went to the P.S. To lodge the report. The police, however, did not record my statement and instead sent for Saee Muhammad, my father-in-law from his Dera and he came alongwith his brother Salehoon P.W. And other relatives both male and female and the police in collaboration with the complainant party registered a false case against me on suspicious. I am absolutely innocent."
Muhammad Ashraf produced Umar Hayat Lamberdar in his defence who according to the prosecution had turned up at the place of occurrence. The defence witness has supported appellant's version.
5. Disbelieving the defence version, trial Court came to the conclusion that the prosecution has satisfactorily proved its case through the evidence of three eye-witnesses who were present in the house at the time of occurrence. It also relied on the story of the motive and the apprehension of the accused at the spot as a corroborating circumstance of the ocular testimony.
6. Criticizing the finding, learned counsel for the appellant contended that there was a delay in reporting the occurrence and that the motive was found to be false and that the presence of the eye-witnesses at the place of occurrence was highly doubtful.
7. I have considered the matter. No doubt the occurrence in this case was said to have taken place at about mid-night but the matter was reported at the police station which is situated at a distance of four furlongs in the morning at 5 a.m. The explanation of the delay is not forthcoming. It is not the prosecution case that sometime was spent in looking after Mst. Rabia because she was said to have died then and there after she had been strangulated. An argument 'was advanced on behalf of the appellant that the delay had occurred because relations of Mst. Rabia were sent for from village Bhiki and it was thereafter that the report was made. To support this submission, learned counsel contended that in fact the informant, his brother P.W. Salehoon and their cousin Lala were not present in the house of the appellant and the story put up by them that they had brought Mst. Rabia to patch up her differences with her husband was cooked up, because if they had really brought her that day, they could have come earlier and left the two alone but according to them, they left their village Bhiki at Digerwela and since it became dark, therefore, they stayed on for the night in the house of the accused. It was admitted under cross examination by the, informant that his Dera was about a mile away from the place of occurrence, the witnesses could have easily gone back that every day. Admittedly,` appellant's father was not in the house or that day who was said to have gone to Sargodha. This was another reason for which the witnesses should have left for their own village because the elder of the family, was riot present. Be that as it may, to my mind, if 'the three witnesses had stayed on for the night in the house of the appellant, normally, the appellant would not have chooser that, night to do away with his were if he really wanted to kill her Further, I find that the story of strangulation as depicted in their evidence was unnatural. According to them, Muhammad. Ashraf (appellant; continued strangulating her for about 20 minutes till she breathed her last and all along her father, 'her uncle and their cousin - kept or watching this from the window which they had opened. Had they beer there, each one of them could have jumped over into the room through the window, if the door was already bolted from inside. They could have even broken the door but from their evidence it seems that the' kept on watching through the window as if it was a movie and not at actual happening. It may also be added here that in strangulation victim's voice would hardly be audible, what to say of a noise that were up those who were asleep at about mid-night. There was ye another circumstance which did not appeal to reason i.e. If the witness had brought Mst. Rabia for a patch up with her husband and later the couple even slept together in a separate room then why should the husband kill her that night when her relations were sleeping in the other room. I am of the view that had the three eye- witnesses been there and had got up in time as they said they did, then they could have easily avoided the occurrence by interference. It may also to mentioned at this stage that according to the prosecution, appellant was not armed with any weapon. Under these circumstances, I am not satisfied with the presence of the eye-witnesses at the time of the occurrence.
8. In so far as the motive is concerned, there are cases where prosecution alleges a motive but for want of proof fails to establish But the motive in this case is one which the prosecution alleged but hrs been proved to be false. This being so then the very foundation on which the prosecution wanted to build its case is missing. This finding is based on the fact that P.W. Salehoon Muhammad, a real brother of the informant when questioned about the motive said that there was none but according to the informant and P.W. Lala, appellant suspected Mst. Rabia to be a woman of immoral character. Had Mst. Rabia been a bad woman, Salehoon P.W. Who had come all the way from village Bhiki to Khutiala Sheikhan with his brother to patch uh the differences of his niece with her husband and who was also instrumental in getting the two married would have known about tree differences of the couple. His complete ignorance about the motive make the prosecution story regarding the immoral character of Mst Rabia highly doubtful. On the other hand, there is nothing unnatural about the defence version. Since, there is nothing to prove that Mst.
Rabia was a bad woman, then why would the accused try to get rid of her particularly, when she was bearing his child. Last but not the least Umar Hayat, Lamberdar, who also reached the place of occurrence has supported appellant's version. He was cross-examined but the prosecute was not able to bring out anything adverse.
For the above reasons, I am in doubt about appellant's guilt Giving the benefit of doubt to him, I accept his appeal, set aside his conviction and sentence and aquit him of the charge. He shall be released fort-with if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.