K. M. A. SAMDANI, J.--On the night between the 19th and 20th of May 1968, Mst. Zenab and her husband Wali Muhammad were murdered and an attempt was made also on the life of Mst.
Shaffan, a young daughter of the said Mst. Zenab. The matter was reported to the police by Chiragh a brother of Wali Muhammad, deceased, in which he accused four persons of committing the double murder and the attempted murder. They are Jan Muhammad 55, Muhammad Amin 22, Said 29, and Muhammad Siddique aged 80. After the investigation by the police all the four of them were committed to the Court of Session for trial. But the learned trial Court acquitted Siddique accused on the 31st of January 1970, and convicted the remaining three under sections 302 and 307, P. P. C. Read with section 34 of the Code. For each murder, each of them was sentenced to death; and for the attempted murder, to transportation for life. In addition Jan Muhammad was fined Rs. 1,000 on each count of murder and Rs. 5,000 for the attempt on the life of Mst. Shaffan.
The three convicts have appealed and the learned trial Court has made a reference under section 374, Cr. P. C. For the confirmation of the sentences of death. This judgment will dispose of the reference and the appeal both.
2. The background of the incident is as follows:- When the first husband of Mst. Zenab deceased expired about 16 years ago leaving behind one son and three daughters, namely, Said appellant, Mst. Shaffan P. W., Mst. Saman and Mst. Rehman, Wali Muhammad deceased married Mst. Zenab deceased. Wali Muhammad was already a married man with children. His first wife Mst. Kammon is still alive but she lived separately. Now, according to the prosecution, about 8 years prior to the incident in question, Said appellant parted ways with his mother on attaining puberty and took up residence with his maternal uncle, Jan Muhammad, appellant and his son Muhammad Amin appellant. When Mst. Shaffan came of age, the question of her marriage arose. Jan Muhammad appellant was interested in getting her hand for his son Muhammad Amin appellant in marriage and Said appellant supported him. Mst. Zenab deceased was also agreeable at first but later; on account of some minor differences on details, she refused to marry her daughter to Muhammad Amin appellant. The entreaties of Said appellant in this respect failed to change her mind. So it is alleged, one day after an argument with his mother, Said appellant came away threatening to teach her a lesson. On the night that followed he alongwith the three co-accused who were variously armed with hatchets, takwa and chhavi entered the court yard of the house of the deceased at about 1 a.m. And did the two deceased to death and caused grievous hurt to Mst. Shaffan P. W. She was, however, lucky to escape death. Chiragh complainant happened to sleep that night in the house of Wali Muhammad deceased. The hue and cry raised by the victims of the assault attracted, besides Chiragh complainant, two other witnesses, namely Ramzan and Muhammad Din immediately to the scene of occurrence. So they also witnessed the crime.
Ramzan P. W. Is a son-in-law of Wali Muhammad deceased and his first wife Mst. Kammon. He also happens to be a nephew of Wali Muhammad deceased. Muhammad Din P. W. Is not related to any of them. He is a barber of Syed Jaffar Hussain Shah, an Advocate and a big landlord of the village Chak Haider Shah in which the incident in question took place and to which the victims of the crime, the accused persons and the witnesses belong.
On the 21st of May 1968, i.e. a day after the murders, one Muhammad Bakhsh is stated to have produced the three appellants with their respective weapons of offence before `the police, Jan Muhammad appellant with a hatchet, Muhammad Amin appellant with a takwa and Said appellant with a hatchet. This was done in the presence of Luqman and Ghulam Rasool P. Ws.
Siddique the acquitted accused surrendered later to the Court on his own and no weapon of offence was recovered from his possession.
The appellants denied the, allegations not only of the murders and the murderous assault but also of the recovery of the so-called weapons of offence at their instance. They explained that they had been implicated falsely in this case at the instance of the said Syed Jaffar Hussain Shah, Advocate.
Although the enmity of this Advocate with the appellants or the acquitted accused has not been very clearly brought out on record, it does appear that he bad a personal involvement in the matter. Mst. Shaffan P. W. Was kept in his house right from the day the murders were reported to the police till the end of the trial. Further, it was not the said Advocate alone who saw to it that even the closet relatives of Mst. Shaffan P. W. Did not meet her but also Mst. Kammon the first wife of Wali Muhammad deceased. Mst. Kammon's interest in Mst. Shaffan P. W. Also appears extremely curious in the circumstances of the case. In fact in the light of the evidence on record the suggestion by the defence that Mst. Kammon might have had a hand in the murders and Syed Jaffar Hussain.
Shah, Advocate in shielding the real culprits, does not seem to be absolutely baseless. However, such suspicions should not keep us from scrutinising the prosecution evidence with a view to assessing its true value whatever it may be.
4. The eye-witnesses in this case are Charagh (P. W. 3) (the com--plainant), Mst. Shaffan (P. W. 4) who sustained injuries in the course of the incident, Ramzan (P. W. 15), a nephew of Wali Muhammad deceased and a son-in-law of the said Mst. Kammon, and Muhammad Din (P. W. 16) a barber of Syed Jaffar Hussain Shah, Advocate. It will be pertinent to point out here that Charagh complainant is not only the brother of Wali Muhammad deceased but also the father-in-law of one of Mst. Kammon's daughters. According to the first information report the assailants entered the courtyard of the house of Wali Muhammad deceased at about 1 a.m. And assaulted the two deceased and Mst. Shaffan P. W. The exact time of occurrence is of significance in this case inasmuch as the crime was com--mitted at sight and the question of the identification of the assailants, therefore, assumes importance. The witnesses have mentioned of the trial that they identified the assailants in the moonlight but the Calendar shows that the moon rose on the fateful night at 1-20 a m. It may, however, be said that the complainant was mistaken about the hour of the night when the crime was committed. But the medical evidence clearly indicates that Wali Muhammad and Mst. Zainab deceased died at the latest at about 10 or 11 p.m. Further, Charagh P.
W. Clearly lied when he said that he left for the police station soon after the incident. For, he was contradicted by his own brother P. W. 5 who reached the scene of occurrence some time after the assailants had left. According to him, Gharagh complainant set out for the police station about one and a half hours after the arrival of P. W. 5 at the scene. Therefore, he cannot be believed with regard to the time of occurrence given by him. We have no doubt in our mind that the crime was committed well before midnight when there was no possibility of moonlight. In fact the witnesses introduced the existence of moonlight for the first time at the stage of trial.
Thus the identification of the assailants by the witnesses is doubtful.
5. The second question is whether the so-called eye-witnesses, except Mst. Shaffan P. W., witnessed the occurrence at all. They failed to explain the blunt weapon injuries on the person of Mst. Zainab deceased. Further the number of injuries that according to them each deceased received is inconsistent with the number of injuries found on the persons of the deceased at the time of the post-mortem examination. All this is in addition to the several improvements made by them at the trial over their previous statements and the irreconcilable discrepancies in the statements of each of them recorded at the stage of investigation, inquiry and trial. Therefore, we are of the opinion that it is not safe to rely upon the testimony of either Charagh complainant or Ramzan and Muhammad Din P. Ws.
The case of Mst. Shaffan P. W. Is, however, different inasmuch as her presence at the scene in view of the injuries sustained by her cannot be doubted. But she admitted unequivocally before the trial Court that she had been told by the thanedar to make a statement in accordance with the statement of Charagh P. W. Recorded by him and accordingly she had corroborated Charagh P. W.
Further, it is much too evident that she remained under the influence of Syed Jafar Hussain Shah, Advocate all along and thus also under the Influence of Mst. Kammon who kept a constant watch on her until the conclusion of the trial.
We, may at this stage, pause to reflect as to why Said appellant should kill his own mother and Jan Muhammad appellant should kill his own sister. Refusal to give the daughter's hand in marriage to Amin appellant cannot be a motive strong enough for Said appellant at least to murder his own mother and to make an attempt on the life on his own sister. On the contrary, Mst. Kammon's grudge against her husband Wali Muhammad deceased and his second family is understandable.
It is significant that Muhammad Din (P. W. 16) very clearly admitted in his cross-examination that in the early hours of the fateful night Mst. Kammon, her sons and P. Ws. Ramzan and Charagh had had an altercation with Wali Muhammad deceased and Mst. Zainab deceased while the other witnesses tried their best to conceal this fact.
The only reasonable inference that can be drawn from this circumstance in the light of all the lies told by the so-called eye-witnesses is that the prosecution version does not represent the truth.
6. As for the recoveries allegedly effected from the appellants, the evidence relating thereto inspires no greater confidence than the ocular testimony. One Muhammad Bakhsh is stated to have produced the appel--lants before the police along with their respective weapons of offence.
They are also stated to have been wearing blood-stained clothes when they were brought before the S. H. .O. If the prosecution were to rely upon the recovery of the blood-stained clothes and the alleged weapons of offence as a piece of circumstantial evidence incriminating the appellants, the most important person that should have been examined, was Muhammad Bakhsh himself. He was given up as a witness on the excuse that he had been won over. This circumstance is enough to discredit the testimony of Luqman (P. W. 10) and Ghulam Rasool (P. W. 12) who testified to the production of the appellants and the weapons of offence. Further, none of the weapons was found to be stained with blood. There is no mention of any stains of blood on the weapons either in the recovery memos or in the statements of P. Ws. 10 and 12. Therefore, there is nothing on record to connect the weapons recovered from the appellants with the crime m question.
7. In short, in our view, neither the direct evidence nor the indirect evidence produced against the appellants carries conviction.
8. We, therefore, refuse to confirm the sentences of death passed upon the appellants, accept their appeal, set aside their convictions and sentences and acquit them.