The appellant, Abdul Ghafoor son of Mian Nosher Ali, was convicted and sentenced under section 302, P.P.C. To suffer life imprisonment by Ch. Muhammad Aslam Zia, Additional Sessions Judge, Faisalabad, on 13-8-1985, for the murder of his wife, Mst. Haliman Bibi on the night of 31-5-1984, in Malikpura locality within the area of Chak No. 214/R.B., District Faisalabad. He was also fined a sum of Rs.3,000 or in default thereof he was ordered to suffer further one year's rigorous imprisonment.
The convict-appellant has come through this jail appeal in this Court against his conviction and sentence.
2. Briefly stated, the facts as narrated in the F.I.R. Are that on 31-5-1984, at about 1-00 a.m., the complainant Muhammad Sabir lodged the F.I. R. With Police Station Saddar, Faisalabad, that he was a National Police Volunteer and on the night he and another National Police Volunteer Muhammad Sharif, son of Umar Din, were on patrol duty in Malikpura locality within the area of Chak No.214/R.B. The complainant stated that at about 1-00 a.m. When they were about to pass through the house of the appellant, they heard a hue and cry from above the roof of the house of late Mian Nosher Ali. The door of the house was open. They ran and went over the roof of the house.
They saw that a knife was in the hands of the appellant and that he was causing injuries with the same to his wife, Mst. Hallman Bibi. Both of them prevented the appellant whereupon the appellant disclosed to them that his wife was of bad character and that she wanted a divorce from him. In these circumstances, he will not leave her alive and that within their view the appellant inflicted a knife blow on the right side of the abdomen of Mst. Hallman Bibi. Immediately thereafter he caused the second knife blow which straight landed on the neck of Mst. Hallman Bibi. On the receipt of these two knife blows, Mst. Hallman Bibi fell on the roof of the house. Thereafter, the appellant threw down Mst. Hallman Bibi from the roof of the house in the courtyard. The complainant further stated that the appellant while holding the knife in his hands went away through the staircase. Both .The complainant and his companion Muhammad Sharif came down in the courtyard and saw Mst.
Hallman Bibi lying dead there. Besides these two blows, there were many other injuries on the body of the deceased Mst. Hallman Bibi. The brothers of the appellant, his mother and sister also came near the dead body of Mst. Hallman Bibi. They lifted the dead body and placed same on a cot. The complainant stated that he left behind Muhammad Sharif P.W. To look after the dead body and himself went to the police station for lodging the F.I.R.
3. Mehr Khan S.I. Police Station Saddar, Faisalabad (P.W.9) investigated the case and stated that he recorded the F.I.R. (Exh.P.H.) on the statement of Muhammad Sabir complainant (P.W.6). He stated that he reached the spot on the same day. He prepared the injury statement (Exh.P.J.) as well as the inquest report (Exh.P.K). He escorted the dead body to the hospital for post-mortem examination under the supervision of Muhammad Ashraf F.C. (P.W.3). Blood-stained earth from the courtyard was taken into possession vide memo. Exh . P . D. And blood-stained earth from the roof of the house was taken vide memo. Exh.P.E. Muhammad Ashraf F.C.(P.W.3) produced before him the last worn clothes of the deceased which were taken into possession vide memo. Exh.P.C. He recorded the statements of the witnesses under section 161, Cr.P.C. At his instance site plan (Exh.P.B.) was prepared by Aurangzeb Draftsman (P.W.2). The appellant was arrested on 4-6-1984 and at the pointing out of the accused, knife (Exh.P.6) was recovered in the presence of Abbas Ali (not produced) and Muhammad Rafique (P.W.5). This knife was taken into possession vide memo.
Exh.P.G. It was found stained with human blood vide the report of Serologist (Exh.P.M.). Blood- stained clothes i.e. Kurta (Exh.P.4) and Shalwar (Exh.P.5), which belonged to the appellant, were also recovered at his instance which were taken into possession vide memo. Exh.P.F. And the recovery memo, was attested by the same set of witnesses. In cross-examination, the Investigating Officer admitted that two brothers of the appellant, namely, Zulfikar and Zahoor also resided in the same house.
4. Muhammad Sabir and Muhammad Sharif (P.W.6 and P.W.7) are the only two eye-witnesses who have witnessed the occurrence. Muhammad Sabir (P.W.6) stated that he in the company of Muhammad Sharif (P.W.7) was on patrol duty in Malikpura locality. He stated that he and his companion Muhammad Sharif P. W. Saw the appellant while inflicting injuries on the person of Mst.
Haliman Bibi deceased. On their inquiry the appellant disclosed that his wife was of bad character and that she wanted a divorce from him and this was the reason that he was going to finish her.
The witness stated that in their presence the appellant inflicted two knife blows which landed on the right flank and on the front of the neck of the deceased. The dead body of Mst. Hallman Bibi deceased was thrown from the roof in the courtyard. In cross--examination, the witness stated that he and Muhammad Sharif P.W. Were the first persons who entered the house and that other people came later on. He further stated that women-folks of the appellant's family did not go upstairs and they woke up later on. He conceded that it took 3/4 minutes to reach the place of occurrence after hearing the hue and cry of the victim. He further conceded that the house where the occurrence took place was situated in the middle of Malikpura locality. He, however, denied the suggestion that they reached the place of occurrence when the injuries had already been caused to the victim. The witness conceded that two brothers, one sister and children of the appellant were also present on the night of the occurrence. The witness denied the suggestion that he had not seen the occurrence. He had also denied the suggestion that being a National Police Volunteer, he was introduced as an eye-witness. Muhammad Sharif (P.W.7) also supported the main theme of the evidence of Muhammad Sabir (P.W.6).
5. Dr. Imtiaz Ahmad Gill (P.W.1) conducted the post-mortem examination on the dead body of Mst.
Hallman Bibi on 31-5-1984, at 4-00 p. m. He found as many as ten injuries on the person of the deceased. He stated that all the injuries were ante-mortem and the same were caused by a sharp-edged weapon. Except injury No.8, which was an abrasion, of the size of 11 c.m. x I c.m. On the right cheek all the other injuries were incised wounds. The injury No.3 was a stab wound of the size of 3 c.m. x I c.m. On the left side of the neck. This injury went into the chest. The witness stated that in his opinion, death occurred due to shock and heamorrhage. Injury No.3 was sufficient to cause death in the ordinary course of nature. He further opined that. The death was immediate and the time between death and post-mortem examination was 12 to 18 hours.
6. The appellant made a statement under section 342, Cr.P.C. Wherein he has denied the prosecution allegations against him and submitted that the case had been fabricated against him in connivance with the parents of the deceased lady and had introduced the National Police Volunteers as eye-witnesses against him. The specific question put to the appellant as to the bad character of the deceased and demand for divorce from him was denied specifically by him.
7. This is a jail appeal filed by the appellant, as stated earlier. I have heard Mr. Muhammad Aziz Qureshi Advocate appearing on behalf of the appellant at State expense as also Mr. Muhammad Rafique Butt Advocate whom I asked to assist this Court as 'amicus curiae' in the case. It has been submitted by the learned counsel for the State that in view of the circumstances and evidence on record, this murder case appears to be an unseen murder case. It is submitted that there are serious contradictions in the statements of Muhammad Sabir and Muhammad Sharif P.Ws.
Inasmuch as the conduct and evidence of these two eye-witnesses was not only objectionable but was doubtful as well. The learned counsel submitted that it will not be safe to uphold the conviction and sentence of the appellant in view of the solitary statements of Muhammad Sabir and Muhammad Sharif P.Ws. Who cannot be termed as independent witnesses in the case without any other corroborative evidence. Learned counsel also pointed out that the recovery of knife (Exh.P.6) and blood-stained clothes was also doubtful. This being so, he submitted that the prosecution has totally failed to prove any case against the appellant beyond reasonable doubt. Mr. Muhammad Rafique Butt Advocate also supported the contentions of the learned counsel for the State.
8.I have considered the submissions of learned counsel appearing in the case and have very minutely gone through the record of the case. To begin with, I cannot believe the statements of Muhammad Sabir and Muhammad Sharif P.Ws who have stated that they climbed up to the roof of the house without any interruption. The statements of these two witnesses cannot be believed and relied upon for variety of reasons. It is strange enough that Muhammad Sabir and Muhammad Sharif P.Ws. Came at the spot first of all and at that time the inmates of the house even did not wake up to see what was happening in the house. This is in the prosecution evidence that the house was inhabited one. The brothers and sister of the appellant as well as his children were also living in the same house. None came for the rescue of the deceased when the appellant was causing injuries on the person of the deceased (wife). It is again very curious to know that none from the locality came to see the occurrence. In my considered view, the murder in hand was an unseen murder. It was not possible for the eye-witnesses to have come on the top of the house to see the occurrence. The site plan (Exh.P.B.) of the place of occurrence will show that the eye- witnesses heard the shrieks of the victim while they were on the road. They entered the courtyard of the house through the porch. Then both the eye-witnesses entered another room passing through the rooms of Zahoor and Zulfiqar. They reached the place of occurrence at point No.l. This was absolutely impossible for the strangers and outsiders, like P.Ws. 6 and 7 to have come to the place of occurrence so easily and without any obstacle in the way. The site plan shows the arrival of the P.Ws. As if they previously knew each and every inch of the residential house where the occurrence had taken place. It is nothing but natural that a stranger is always not in a position to reach the place in a house unless and until he is guided by some inmate of the house. It appears from the circumstances as well as from the site plan that the prosecution story has been cooked up to make Muhammad Sabir and Muhammad Sharif P.Ws. As eye-witnesses in the case. In my view, it is not possible for them to have witnessed the occurrence. They might have reached the place of occurrence after the offence of murder had already been committed by some unknown criminal.
The appellant was not arrested at the spot. Additionally, if these two eye-witnesses were present at the spot, they would have naturally tried to apprehend the culprit. I have gone through the evidence of 1 the eye-witnesses and do not find anything to show that they tried to catch hold of the appellant or they caused a chase to him. This circumstance also lends support to the view that these witnesses came much later than the commission of the offence. The police also failed to investigate the case properly, inasmuch as the Investigating Officer did not record the statements of the inmates of the house where the occurrence had taken place or the people from the locality. I, therefore, I reject the statements of Muhammad Sabir and Muhammad Sharif (P.W.6 and P.W.7).
The eye-witnesses have clearly stated that after causing the injuries on the person of Mst. Haliman Bibi deceased the dead body was thrown by the appellant from the roof in the courtyard. The site plan (Exh.P.B.) shows the height of the roof as 10J feet. If the prosecution evidence is believed that the dead body was thrown from the roof in the courtyard, then there must be some grievous injuries on the person of the deceased. The Medical Officer, Dr. Imtiaz Ahmad Gill (P.W.1) who conducted the post-mortem examination, does not point out any such injury except the stab and incised wounds on the person of the deceased. Thus, the medical evidence wholly and completely belies the ocular testimony of the eye-witnesses. This part of the D prosecution evidence will again create considerable doubt over the place) of actual occurrence. In view of the medical evidence as well as the oral evidence, it is rather difficult to find out whether the occurrence had taken place on the roof of the house or in the courtyard of the said house. The prosecution had taken blood- stained earth from both the two places. I have, therefore, come to the conclusion that in view of the medical evidence, the prosecution evidence stands rejected. The burden of proof lies always on the prosecution to prove beyond reasonable doubt a case against the accused for conviction and sentence. If the defence is capable of showing the evidence of eye-witnesses to be doubtful, the benefit of doubt has to be given to the accused under all the circumstances. The mere fact that the stranger like P.W.6, Muhammad Sabir, alone went to the police station for giving the police, the information of murder, unaccompanied by any other relative of the deceased will strongly suggest that the said witness acted under the influence and command of the police. In the presence of the brothers, sister and children of the appellant, there was naturally no need to leave behind Muhammad Sharif (P.W.7) to look after the dead body. After all the children of the deceased were admittedly present there. These eye-witnesses are the National Police Volunteers and were working under the command and instructions of the police. From any test, they cannot be declared as independent and reliable witnesses. If both of them, or any one of them, had sustained injuries while attempting to arrest the appellant, then the position would have been wholly different. They were, under the circumstances, supposed to interfere physically to save the life of the deceased.
They did not do any overt act in the case. If they were bold enough to violate the privacy of the family by their entry in the house, they should have also the courage to prevent the appellant from the commission of the crime and to apprehend him at the spot. The failure to do so on their part, make them the doubtful witnesses, not worthy of any credit.
9.The recovery of the knife (Exh.P.6) as well as of the blood--stained clothes, i.e. Kurta (Exh.P.4) and Shalwar (Exh.P.5) is also doubtful as the same has not been witnessed by independent and competent witnesses. Muhammad Rafique (P.W.5) is not a witness from the same locality. He stated that somebody picked up the knife from F an earthen pot and he did not know his name. He further admitted in his statement that Zulfikar and Zahoor, brothers of the appellant, also resided in the same house. The witness also mentioned that Ch. Abdul Ghafoor, a resident of Chak No.214 produced the appellant before the police at his Dera. In my view, Ch. Ghafoor was an independent witness for the recovery of knife and blood-stained clothes. For unknown reasons, the said Ch. Abdul Ghafoor has not been produced as a recovery witness.
10. The upshot of the above discussion is that the instant case is a case of 'no evidence'. This was a murder case which was not witnessed by any competent witnesses. The prosecution has failed to prove its case against the appellant beyond reasonable doubt. I, therefore, proceed to accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith provided he is not required in some other case.