AFRASIAB KHAN, J.--The appellant, Muhammad Latif aged 15/16 years was convicted under section 302 P.P.C. By the learned Additional Sessions Judge, Faisalabad vide his judgment dated 14-1-1985 and was sentenced to death for the murder of Mst. Shamshad Begum aged 25 years plus fine of Rs.5,000 and in default thereof to suffer two years' rigorous imprisonment. The proceedings for confirmation of the death sentence so awarded to the appellant are also before us. We propose to dispose of the Murder Reference No.44 of 1985 and Cr. A. No.106 of 1985 by this consolidated judgment.
2. Briefly stated the facts of the case as narrated by the complainant Muhammad Saddique PW 7 vide his statement Ex.PF are that the complainant is the resident of Street No.9, Mohallah Siddiqueabad, Nishatabad, Faisalabad and works as a sizer in the Awarmi Sizing Factory at Faisalabad Road. On 5-5-1983 at about 2-00 p.m. The complainant came back home after finishing his job. His cousin Muhammad Rafiq PW8 also came to his house to see him at that time Mst. Shamshad Begum, deceased, wife of the complainant was busy in washing clothes at the hand-pump in the courtyard of the said house. The appellant, Muhammad Latif, entered the house.
The appellant is a boy of questionable character and his entry in the house of -the complainant was banned by him as he was not liked by the members of the complainant's family. In the presence of the complainant, Mst. Shamshad Begum, deceased, addressed the appellant saying as to why he had come to their house as he had been forbidden to visit them. However, the appellant declared that nobody could prevent him from coming to the house of the complainant.
Immediately thereafter the appellant took out a Chhuri P3 from the fold of his shalwar and gave two successive blows with it which landed on the abdomen and left jaw of the deceased. The witness Muhammad Rafique PW8 tried to intervene but the appellant ran away in the street. Mst.
Shamshad Begum was lifted and placed in a Rickshaw and was brought in the Civil Hospital, Faisalabad in an injured condition. Initially a case under section 307 P.P.C. Was registered against the appellant but later on after the death of Mst. Shamshad Begum, the offence was converted into section 302, P.P.C.
3. Muhammad Aslam S.I. PW9, who was at that time posted as ASI at Police Station Nishatabad, investigated the case. On 5-5-1983 he recorded the F.I.R. Ex.PF on the statement of Muhammad Saddique, complainant, at 3.50 p.m. Thereafter the witness went to Civil Hospital, Faisalabad and prepared the injury statement Ex.PH. The witness visited the place of occurrence and prepared the rough sketch of the place of occurrence Ex.PJ. He secured the blood-stained earth from the site and took the same into possession vide memo Ex.PD. Site plan Ex.PC was also got prepared by the witness by the Draftsman Aurangzeb PW3. The inquest report Ex.PK was got prepared by the witness. On 6-5-1983 at about 5-00 p.m. The appellant was arrested from the General Bus Stand, Faisalabad and on the same day Chhuri P.3 was recovered by the witness or, .The pointing out of the appellant. The said Chhuri P.3 was placed in -a sealed parcel vide memo. Ex.PG. Chhuri P.3 was blood-stained vide the report of the Chemical Examiner Ex. PM and the same was found to be stained with human blood vide the report of the Serologist Ex. PN.
4. On 5-5-1983, Dr. Iftikhar Ahmad Piracha, Medical Officer, DHQ Hospital, Faisalabad, PW1 examined Mst. Shamshad Begum and found the following two injuries on her person:-
(1) An incised wound 2 cm x 1/2 cm x muscle deep under left jaw.
(2) A stab wound 4 cm x 3 cm x abdominal cavity deep with prolaspe of intestines and peritoneum with corresponding cut mark on shirt. It was 9 cm above and on line of umbilicus.
The Doctor noted that the patient was in severe shock and her pulse was weak and fast. Injury No.2 was kept under observation. In cross-examination, the witness stated that he noticed only two injuries at the time of examination of the deceased. He observed that these injuries could have been inflicted from 12.00 to 3.00 p.m. He further opined that he could not give the time of death of Mst. Shamshad Begum without consulting the record. She expired in the hospital on the same day at 5-30 p.m.
5. On 6-5-1983 at 8-30 a.m., Dr. Muhammad Ajmal Mian, S.M.O. DHQ Hospital, Faisalabad, PW 2 conducted the post-mortem examination on the dead body of the deceased. The witness found the following injuries on the person of the deceased:--
(1) A stab wound 4 cm x 2-- cm abdomen deep situated at 12 O'clock position of umbilicus 9 cm above directed backwards cutting the abdominal wall, peritoneum, small intestine and liver through and through underneath. A portion of small intestines was coming out of the wounds.
(2) An incised wound 2 cm x 1/2 cm muscle deep on the left side of chin obliquely.
(3) An incised wound 2 cm x 1/2 cm x muscle deep on the back of left shoulder obliquely.
(4) An incised wound 3 cm x 1/6 cm x skin deep on the front lower part of left thigh obliquely.
The Doctor found that injury No.1 was grievous and rest were declared simple in nature. In cross- examination the witness stated that there were two cut marks on the shirt and one on the shalwar.
He stated that there were two injuries mentioned in the inquest report but four injuries are mentioned in the injury statement relating to the dead body.
6. The prosecution produced two eye-witnesses to prove the guilt against the accused.
Muhammad Saddique PW.7 is the husband of the deceased. He stated that on 5-5-1983 at about 2.15/2.30 p.m. He was present in his house along with his cousin Muhammad Rafique PW.8. He stated that the deceased was busy in washing the clothes. The appellant Muhammad Latif entered the house and his entry was objected to by the deceased. Whereupon the appellant declared that nobody could prevent him from coming to the house of the witness. The witness further stated that immediately thereafter the appellant inflicted two successive chhuri blows which landed on the left side of the neck and abdomen of the deceased. The deceased was shifted to Civil Hospital, Faisalabad in a Rickshaw where she was medically examined and medico-legal report was prepared which was presented to the police at the time of registration of case. In cross- examination, the Witness stated that his place of work is 3-- miles away from Faizabad Road. He stated that his usual working hours were from 6.00 a. m. To 2 p. m. He disclosed that on the day of occurrence he was free from his duty at about 1.45 p.m. He stated that 15 to' 20 minutes are required to reach home from his Factory. He stated that Muhammad Rafique PW.8 had come to his house to see him and there was no specific purpose of his visit. He stated that he tried to find out some weapon in order to repulse the attack of the appellant. He admitted that he saw the appellant causing only two blows. He stated that he did not remember as to whether his clothes as well as that of the other eye-witness Muhammad Rafique were stained with blood during the process of removing the deceased from house to Hospital. Specific suggestion was put to the witness that he as well as Muhammad Rafique PW8 were not present at the time of occurrence. To the same effect is the statement of Muhammad Rafique PW8. He stated that the appellant inflicted two chhuri blows on the person of the deceased. He stated that the chhuri P.3 was recovered on the pointing out of the appellant in his presence. He conceded that he was the only private person who joined the recovery proceedings of chhuri P3. He disclosed that in those days he had been performing his duty in the night shift. He admitted that in the process of shifting and placing the deceased in the Rickshaw, his clothes were stained with blood and that police had seen his blood- stained clothes.
7. The appellant when examined under section 342, Cr.P.C., denied the allegations against him. He denied the recovery of chhuri P3 at his instance. He stated that both the eye-witnesses are closely inter-related. He maintained that the parents of the deceased are the close relatives of his father.
He took the plea that there was matrimonial dispute between Muhammad Saddique PW7 and his deceased wife in which he as well as his father had been supporting, the deceased. He disclosed that his brother Muhammad Hanif who was married with the sister of the complainant Muhammad Saddique PW7 had gone to Saudi Arabia leaving his wife Mst. Nasreen with the complainant Muhammad Saddique. The complainant Muhammad Saddique PW7 desired that his brother Muhammad Hanif should send money to the complainant directly for the maintenance of his wife Mst. Nasreen. However, this desire of the complainant was opposed by the appellant as well as his father. The appellant pleaded that the deceased had been done to death by some unknown person who had entered the house in order to commit theft. The appellant maintained that he had been involved in the case on account of enmity, suspicion and bad impression about his activities.
8. Learned counsel appearing on behalf of the appellant submitted that it is established that Muhammad Saddique PW.7 and Muhammad Rafique PW8 did not witness the occurrence. Learned counsel forcefully submitted that the medical evidence is in direct conflict with the eye-witness account. Learned counsel urged that recovery of chhuri P3 -has not been proved beyond reasonable doubt. He stated that no independent witness has been produced to prove the factum of recovery of chhuri P3. Learned counsel maintained that the evidence of Muhammad Rafique PW8 is not the relevant evidence for the purpose of proving the recovery of the weapon of offence.
9. Learned counsel for the State strongly supported the conviction and sentence awarded to the appellant by the learned trial Court. He stated that the appellant is named in the F.I.R. Which was lodged promptly.
10. We have heard the learned counsel for the parties at some length-and have perused the record very minutely. We are of the view that this is an unwitnessed murder case inasmuch as Muhammad Saddique P.W.7 and Muhammad Rafique P.W.8 Cannot be believed to be the eye- witnesses in view of the facts and circumstances of the instant case. This is in evidence of the complainant P.W.7 that his duty hours are from 6 a.m. To 2 p.m. It cannot be believed that on the day of occurrence, he would have come back at 1.45 p.m. Without any specific reason. The complainant has not disclosed in his evidence that as to why on the day of occurrence he came before the expiry of his duty hours. The complainant has admitted in his evidence that his duty hours are from 6.00 a.m. To 2.00 p.m. We believe that the appellant came back home on the day of occurrence after 2.00 p.m. At the end of his duty hours. The place of duty of the appellant is 3-- miles away from his residence and as such the witness must have reached home after the occurrence had taken place. The witness has stated that 15 to 20 minutes are required to come back home from his Factory. Thus on the basis of the evidence of the complainant P.W.'7 it is clear beyond any shadow of doubt that the witness had reached home after the occurrence had already taken place. Thus, we are not persuaded to believe the deposition of the complainant P.W.7 at all. If he was present in the house, he was certain to have physically intervened in order to save the life of his wife. The explanation given by him that he had been searching for some lethal weapon is not at all convincing and is not acceptable to us. We are not prepared to believe him because he could have attacked the assailant instinctively even without any weapon. This is in his own evidence that he was sitting along with P.W.8 Muhammad Rafique on Peeris. He need not have searched for any other weapon. He did not do so. He did not raise an alarm upon the attack made on his wife. He was sitting at a distance of only 22 feet from the place of occurrence. The occurrence took place in the courtyard of the house having only 12 feet wide courtyard. The complainant P.W.7 as well as his companion P.W.8. Were sitting very close to the deceased. They could very well thwart the attack of the assailant, if they were present at the spot. Further he has stated that only two injuries were caused by the appellant upon the person of the deceased.
However, medical evidence show's that the, deceased received as many as four injuries by sharp- edged weapon. Thus, medical evidence runs counter to his evidence Similarly, the presence of Muhammad Rafique P.W.8 is also not proved. Muhammad Rafique P.W.8 stated that during the days of occurrence he was working in the night shift. If the witness was working in the night shift, he was not at all expected to visit the house of the complainant at that odd hour because he was supposed to sleep at that time. It appears from his statement that he was tutored and he gave evidence because he was closely related to the complainant Muhammad Saddique P.W.7. Perhaps after the occurrence had already taken place, he might have been summoned by the complainant to come in order to become an eye-witness in the case. The witness stated that his clothes were stained with blood in the process of lifting the deceased and placing her in the Rickshaw. However, the blood-stained clothes of the witness have not been produced or taken into possession by the investigating officer. If in fact, his clothes were stained with blood, this could be the best circumstantial evidence to prove his presence at the spot. The non-production-of his blood stained clothes has made his presence at the spot doubtful. We have come to the conclusion that -this witness has also not seen the occurrence. He is supporting the case of the prosecution because of his close relationship with the complainant Muhammad Saddique P.W.7. As stated earlier, the evidence of this witness is also in direct conflict with the medical evidence and on that score too, the same cannot be believed.
11. The medical evidence given by Dr. Iftikhar Ahmad Piracha P.W.1 and Dr. Muhammad Ajmal Mian P.W.2 has completely belied the statements of the eye-witnesses in the case. This material contradiction has not at all been reconciled by the prosecution. This apparent and glaring discrepancy in the evidence of the prosecution has created considerable doubt in the truthfulness of the prosecution story. The only irresistable conclusion is that the eye-witnesses are not truthful witnesses and none has witnessed the murder.
12. The prosecution has tried to corroborate the evidence of the eye-witnesses by the recovery of Chhuri P3. The recovery of Chhuri P3 is not at all of any avail to the prosecution case. Chhuri P3 was recovered allegedly at the pointing out of the appellant from an open place which recovery in turn was not witnessed by any independent and competent witness. Muhammad Rafique P.W.8 has not been believed by us as an eye-witness. We will not believe him as a recovery witness too. The recovery of Chhuri P3 appears on the face of the record to be false and bogus.
13. The upshot of the above discussion is that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. We accept this appeal and acquit the appellant from the charge under section 302, P.P.C. The death sentence awarded to the appellant is not confirmed.
The appellant shall be set at liberty forthwith provided he is not needed in any other case.