Muhammad Sharif son of Muhammad Din has filed appeal against the order, dated 25-9-88 of Additional Sessions Judge, Lahore whereby learned A.S.J. Convicted him under section 302, P.P.C.
And sentenced him to imprisonment for life plus to pay a fine of Rs.10,000 in default whereof to suffer R.I. For two years, for having murdered Muhammad Ashiq his real brother.
2. F.I.R. Each. PD was registered at Police Station Baghbanpura on 18-4-87 at 2-55 a.m. By Muhammad Arif, A.S.I. P.W. 6 on receipt of statement Exh.PD/1 of Mst. Rashida Bibi P.W.2, recorded by Muhammad Ashraf, S.I. P.W.12 at 2-00 a.m. (during night) in General Hospital; Lahore on the same day. According to F.I.R. The complainant was sleeping in her Courtyard. Muhammad Ashiq her deceased husband was also sleeping there. The appellant who was residing m the same house, was also sleeping nearby. The complainant got up hearing the noise of the deceased at 2-00 a.m.
Her son Waris also got up. They saw Muhammad Sharif appellant giving saria blows on the head of the deceased. Azmat A.I who was staying as a guest in their house and Allah Bakhsh, who was also sleeping nearby, were attracted to the spot. They snatched the saria from Muhammad Sharif.
Muhammad Ashiq (deceased) lost consciousness. He was removed to Mayo Hospital wherefrom he was taken to the General Hospital.
3. The efforts made and the steps taken by Muhammad Ashraf, S.I. To record the statement of the deceased while he was alive, could not bear fruit as each time he was reported to be unift to make a statement. On the expiry of the Muhammad Ashiq on 22-4-87 in General Hospital, the S.I. After preparing the inquest report Exh. P.C, sent the dead body for post-mortem examination which was performed by Dr. Aamer A.I Chaudhry P.W.1.
4. The accused was arrested from near the place of occurrence by Muhammad Ashraf, S.I. On the very first day, on going to the spot. Saria (the weapon of offence) produced by Azmat PW at the spot before the S.I. P.W.12 was taken into possession vide memo Exh.PF. Blood-stained earth was also collected from the spot.
5. Statements of twelve prosecution witnesses were recorded at the trial. Dr. Aamer A.I Chaudhry who had performed autopsy on the dead body of Muhammad Ashiq at 12-00 noon on 23-4-87, appeared as P.W.1. He had noted a lacerated wound measuring 2 c.m. x .5 c.m. Present just above the centre of left eye-brew. On internal examination he noted Haemotoma under the scalp. Skull was found fractured on the left side of frontal bone, left parietal bone and left temporal bone.
According to doctor's opinion, death had occurred due to the above--noted injury, which was opined to have been caused by a blunt weapon. Time between the death and post-mortem was opined to be 12 to 48 hours. No opinion was expressed about the duration between the death and injury.
6. Out of the four eye-witnesses named in the F.I.R., Allah Bakhsh P.W.4 and Azmat P.W.5 did not support the prosecution case. They were declared hostile but nothing incriminating could be brought on record.
7. P.W. Azmat son of Abdul Latif about whom the Sub-Inspector stated of having produced the Saria (the weapon of offence) at the spot, did not say any such thing while appearing as P.W.5. Although he was cross-examined by the State but no such question was put to him.
8. Mst. Rashida widow of the deceased who had lodged the report, during examination-in-chief stated in the opening sentence that, "I do not know about the occurrence. I do not know, who had killed my husband." Thereafter, she said that Muhammad Sharif had murdered her husband and that she had seen Saria in his hand, but immediately made a change saying that she had seen Saria lying away from the place of occurrence, and the accused standing away from the dead body of her husband. She did not deny of having thumb-marked statement Exh.PD/1 on the basis of which F.I.R. Exh. P.D was registered. She did not name Azmat and Allah Bakhsh P.Ws. Having seen the occurrence although she was found to have named them in the F.I.R. Instead she named her mother-in-law Mst. Jiwan (mother of the deceased), her sister-in-law Mst. Baidi (sister of the deceased) and one Nazir to have witnessed the occurrence, apart from her son Waris. Neither Nazir nor Mst. Jiwan nor Mst. Baidi were produced at the trial. In fact, their names do not appear in the calendar of witnesses as well. She was declared hostile.
During cross-examination she stated that she had got up on hearing noise and that the occurrence had taken place because Muhammad Sharif was not mentally fit and that Sharif had struck her husband during the period of mental disturbance. She admitted that Muhammad Sharif was married to her sister and that she had pardoned him.
9. Waris son of the deceased who appeared as P.W.3, however, made a statement that the accused had hit his father on the head with Saria. He also stated that he had quarrelled and exchanged abuses with his father a day before the occurrence. He clarified that he had got up on hearing banging noise and had seen the accused standing in a corner of the courtyard with Saria in his hand. He did not name anyone except his mother being present at the time of occurrence.
During cross-examination he admitted that the house in which they were. Living was owned by Muhammad Sharif his uncle (accused). He admitted that the accused had a daughter named Mst.
Parveen aged about 15 years, but denied that he wanted to marry her and had asked for her hand.
He also admitted that he had made statement before the Police that the accused had inflicted other injuries also prior to the infliction of one injury within his view.
10. Muhammad Hanif P.W.7 stated that Mst. Rashida P.W.2 had told him on 18-4-87 that her husband was murdered and that she did not know as to who had killed him? She also informed him that he was lying in the General Hospital (The witness was not declared hostile).
11. Muhammad Bashir P.W.8 stated that his son Muhammad Aslam, who is nephew of the deceased, had told him that the deceased had been murdered by somebody and was lying in hospital. He stated that when he went to the Mayo Hospital, he saw Muhammad Sharif accused present there.
He added that Muhammad Ashiq (deceased) was then alive and was shifted from there to the General Hospital where he died 5 days later. (The witness was not declared hostile).
12. Relevant portions of the statement of Muhammad Ashraf, S.I. P.W.12 have already been noted above.
13. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole. He stated as follows, in answer to the question, "why this case has been registered against you?":-- "I have been falsely implicated in this case, because Muhammad Wars P.W. Wants to marry my daughter as I refused to give her hand, to him, and also Muhammad Waris P.W. And Mst. Rashida Bibi P.W. Want to possess my house, and for my bad mental condition."
He also made statement under section 340 of the Code of Criminal Procedure, wherein he proclaimed innocence.
14. As noted earlier, two eye-witnesses, i.e. Allah Bakhsh P.W.4 and Azmat P.W.5 did not support the prosecution version and were declared hostile. No evidence of recovery of weapon of offence from or at the pointing out of the appellant has been led. Except the statements made by P.W.2 and P.W.3,` no other incriminating evidence is available on the record. The statement made at p the trial by Mst. Rashida Bibi wife of the deceased, who had lodged the F.I.R. Is not only contradictory to the one made by her at the time of lodging the F.LR. But in itself is contradictory too. In that, in one sentence she proclaimed that she did not know, who had murdered her husband while in the other she held the appellant responsible for the murder. However, in that, also she did not specifically claimed to have seen the infliction of the fatal blow to the deceased. Another significant situation which appears-from her statement is that the appellant was not mentally fit and that he had killed the deceased while in "fit of mental disturbance". Apart from that Muhammad Hanif P.W.7 and Muhammad Bashir P.W.8 categorically stated that Mst. Rashida Bibi had told them that Muhammad Ashiq had been murdered by somebody and that she did not know as to who had killed him? They were neithtr declared hostile nor asked to give any further explanation with regard to that. The prosecution case, therefore, about the knowledge of Mst. Rashida Bibi, pc;r statement of Muhammad Hanif and Muhammad Bashir about the actual culprit, was of `ignorance'. However, she was declared hostile also. As such no reliance whatsoever can be placed on her testimony to maintain the conviction.
15. That being the position, the case, therefore, rests entirely on the testimony of Waris P.W.3 son of the deceased. His statement that the appellant had inflicted other injuries to the deceased also than the one witnessed by him, is clearly contradictory to the medical evidence. The doctor who performed autopsy, had only noted one lacerated wound. No marks of violence even were noted on the body of the deceased. In the matter of having witnessed the infliction of one blow also, the position appears to be doubtful. In that, he had claimed that he had got up after hearing banging noise land then had seen the appellant standing on corner of the courtyard holding a Saria. If that was so, what he had seen, how could he say that the appellant had given a Saria blow to the deceased because prior to that he was sleeping and had not even got up. His statement about the presence of persons other than himself and his mother, is contradictory both, to the version of the prosecution narrated in the F.I.R. And to the statement made by his mother at the trial. In the F.I.R.
His mother named Allah Bakhsh and Azmat P.Ws. To have witnessed the occurrence but at the trial she stated that mother and sister of the deceased had seen the occurrence.
Apart from the above-noted shortcomings, the statement of this witness even otherwise appears to be incoherent and does not inspire confidence at all.
For all the reasons noted above, doubts have arisen in my mind about the prosecution having succeeded to prove the case for maintaining the conviction. This appeal is therefore allowed and the appellant is acquitted by way of grant of benefit of doubt.
N.H.Q./M-1331/L