NASIM HASAN SHAH, J.--Muhammad Asghar stands convicted under section 302, P. P. C. For having committed the murder of his wife Mst. Surriya on the night between 12th and 13th November 1968, and sentenced to death by the judgment dated 21-9-1970 passed by Mr. Zafar A.I, Additional Sessions Judge, Lahore. The convict has appealed against his conviction and sentence. The proceedings have also been referred to us under section 374, Cr. P. C. For confirmation of the death sentence. This judgment will dispose of both the appeal and the reference.
2. Briefly stated the prosecution case is that Mst. Surriya was married to the appellant on 2-6-1968.
In the nikahnama (Exh. P. H.) ornaments weighing in Tolas in addition to the Dower money (Rs. 32.62 only) were shown as her property. Mst. Surriya Begum alongwith her husband Muhammad Asghar appellant began to live in a room in the upper storey of house No. 1, Gali No. 18, Bharat Nagar, Lahore while the brother of the appellant Muhammad Ashraf occupied the room opposite to theirs, in the upper storey and the mother of the appellant and Muhammad Ashraf, Mst. Nawab Bibi was residing in the lower portion. Soon after the marriage Mst. Nawab Bibi started demanding the return of the ornaments given on behalf of Muhammad Asghar appellant to the deceased on the plea that these had been purchased with, the earnings of her husband. Mst. Surriya Begum refused to do so on the ground that all the ornaments had been entered in the nikahnama as her own property. This dispute resulted in frequent quarrels between the two ladies.
3. On 12-11-1968 at about 5-30 p.m. Barkat A.I (P. W. 18), the grand uncle of the deceased, Ghulam Mustafa (P. W. 22) her father, and Muhammad Habib (P. W. 19), her uncle, came to the house and found Mst. Nawab Bibi and Mst. Surriya Begum quarrelling over the question of ornaments. On the advice of Barkat A.I, Mst. Surriya Begum handed over all the ornaments to Mst. Nawab Bibi except a pair of gold bangles (karas). Mst. Nawab Bibi was insisting that she should return the bangles as well, but the deceased refused to do so. Barkat A.I asked Mst. Nawab Bibi to wait for a couple of days and that he would also get her the bangles from the deceased. After having got most of the ornaments restored to Mst. Nawab Bibi, Barkat A.I and his companions started for their homes. On the way back, however, Barkat A.I opined that they should have settled the dispute once and for all and suggested that they should go to Mst. Nawab Bibi's house again on the next day and have the bangles returned to her.
4. On the next morning (13-11-1968) at about 8-30 a.m. All three of them again came to the house and met Mst. Nawab Bibi. They enquired from her about Muhammad Asghar appellant and Mst.
Surriya Begum deceased and she told them that they might be in their room up-stairs They went up to the room on the first-floor and found the room chained from out--side. Barkat A.I unbolted the door and on entering the room saw Mst. Surriya Begum lying dead on the floor. She was besmeared with blood. They also noticed a chit lying on a pillow of the bed (palang). It was stained with blood and there were some holes in it. On the chit the following words were written Barkat A.I picked it up and after directing Ghulam Mustafa and Habib P. Ws. To go and inform the relatives, he himself left for the Police Station Misri Shah, situate about a furlong from the place of occurrence and lodged the F. I. R. Exh. P. B. With Muhammad Aslam Khan S. I. (P. W. 21). The blood-stained chit Exh. P. A. Was also taken into possession of by the Sub-Inspector vide memo. Exh. P. S. He reached the spot accompanied by Barkat A.I at about 9 a.m. He prepared the injury statement Exh. P. T. And inquest report Exh. P. C. And sent the dead body to the mortuary for post-mortem examination. He inspected the spot and took into possession the blood-stained articles which were lying in the same room in which the dead body was lying. He also took into possession blood from the floor of the room and made it into a sealed parcel vide memo. Exh. P. F.
5. The appellant, it is alleged, was produced before the Sub-Inspector on the same day at about 3 or 4 p.m. At the spot by Rehmat A.I and Qamar Din P. Ws. Before whom he bad allegedly confessed his guilt and had requested to be produced before the police in order to escape the, wrath of the heirs of the deceased. At the time he was produced before the police, he was wearing blood- stained banyan (Exh. P. 2) and blood-stained dhoti (Exh. P. 3) which were got removed from his person and taken into possession vide memo. Exh. P. E. While in the custody of the Sub-Inspector, he allegedly also led the police-party to a heap of sand lying along the wall of Fardaus Tannery on Akram Road, Bharat Nagar, and after pointing out the said heap, took out from it the blood-stained chhuri Exh. P. I which was taken into possession vide memo. Exh. P. I3. The appellant had, allegedly after committing the murder of his wife, left the room and spent the night at Peshawar Hotel, McLeod Road, Lahore. Fiaz A.I (P. W. 13) who was employed as a munshi in the hotel produced the register contain--ing entries regarding the arrival and departure of passengers at the hotel Exh. P.
J. Which contained an entry Exh. P. J/1 to the effect that Asghar A.I son of Sardar Muhammad, case Mughal, occupation Lobar, resident of Gali No. 18, Misri Shah, Lahore had come to the hotel at 1 a.m.
In the night between 12th and 13th of November 1968.
6. Dr. Nusrat Ullah, Deputy Surgeon Medico-legal, Punjab, Lahore conducted the post-mortem examination on the dead body of Mst. Surriya deceased on 14-11-1968 at 2 p.m. And found the following injuries on the persons of the deceased
(1) An incised wound 6-- ' x 1-- in front of neck below the level of thyroid cateladge all the structures in front of neck including trachea, oesophagus, carotid and juglar vessels were cut.
There was cut in the inter-vertebral disc of 3rd and 4th vertebra was cut in front.
(2) An incised wound 4' x -- ' x skin deep front of neck -- ' above injury No. 1.
(3) An incised wound 1' x 1/8' x skin deep at the chin.
(4) An incised wound 5' x 2' lumber region anterior aspect extending upto posterior side. Omentum and intestine was coming out of this wound. Intestine was cut at three places.
(5) An incised wound 1-- ' x. 1' left lumber region lateral aspect 1' above injury No. 4. It was muscle deep.
(6) An incised wound 1-- ' x 1' left iliac fossa 1' above injury No. 6. It had cut the uterus on left side 1-- ' long. Right leg of the foetus was coming out of the ulterus through this wound. There was cut -- " x 1/16' x muscle deep at lateral shot of leg of the feature.
(7) An incised wound 1-- ' x 1/16' right hypochondrium. It had cut the abdominal wall, paritomum, uterus on right side, placenta and finally bad a cut at the back of the foetus -- ' x 1/8' x muscle deep.
(8) An incised wound -- ' x 1/8' x tendons deep at the fexion crease of 2 interphalyngeal joints of left little, ring, middle and index fingers at palmer surfaces. There was cut 1' x -- ' x muscle deep at the web between thumb and left index finger.
(9) An incised wound 1' x -- ' x muscle deep at the hypthendrax eminence lateral aspect of left hand.
(10) An incised wound -- " x 1/8' x skin deep at the lateral aspect of right index finger proximal diget."
The uterus had a male foetus. The cause of death in his opinion was cardio respiratory failure due to haemorrhage and shock by injuries Nos. I and 4 which were individually sufficient in the ordinary course of nature. The injuries were anti-mortem and caused by sharp edged weapon. The duration between injuries and death was a few minutes and the duration between death and post-mortem examination was about 40 hours.
7. On 14-11-1968 the Investigating Officer also allegedly produced the appellant before the Duty Magistrate, District Courts, Lahore to get his specimen handwriting which w-as taken on the same day by the Duty Magistrate. The specimen writings Exh. P. W. 21 /A alongwith the sealed parcel of the chit Exh. P. I was sent to the Handwriting Expert for com--parison The Handwriting Expert Qamar Ahmad (P. W. 11) opined that both the disputed and the specimen writings were in the handwriting of one and the same person.
8. The appellant pleaded not guilty. He denied that chit Exh. P. A. Was written by him. He also denied having scribed the sample writings Exh. P. W. 21/A in the presence of the Duty Magistrate on 14-11- 1968. He denied having made an extra judicial confession before Rehmat A.I and Qamar Din P. Ws.
He also denied the recovery of the blood-stained clothes from his person and the recovery of blood-stained chhuri at his instance. He attributed his implication in the case due to suspicion.
9. The learned trial Judge, who has not discussed all the pieces of evidence brought on the record, held the appellant guilty on the grounds that the deceased bore ill-will to no one else; that she was found murdered in a room on the upper storey and in the absence of any suggestion that any one else had intruded into the house, the dastardly act could not be com--mitted by any one else except the appellant. The further circumstance that the room was not bolted from inside, which would have been the case if the appellant had remained outside the house during the night showed that the appellant was inside the room with his wife before the occurrence. Learned counsel for the appellant has argued that the learned trial Judge has based his conclusions simply on conjectures. He concedes that the crime was apparently committed by the inmates of the house but points out that Mst. Nawab Bibi had a stronger motive and that the crime could equally have been committed by her and the other son Muhammad Ashraf. Furthermore, the inference that Muhammad Ashraf must have been with the deceased on the night of the occurrence drawn from the circumstance that the door was bolted from outside was contradicted by the evidence of Barkat A.I P. W. That the appellant was not in the house when be visited it in the evening shortly before the occurrence. It was submitted that the guilt of the appellant in the absence of direct evidence could be established only on the basis of such circumstantial evidence which left absolutely no possibility of doubt as to his guilt. In the present case the above condition was not fulfilled.nd
10. On examining the record we observe that in order to establish the guilt of the appellant the following circumstances were relied upon by the prosecution
(a) Chit Exh. P. A. Found on the pillow of the bed of the deceased wherein the writer admitted his guilt and which in the opinion of the Handwriting Expert was written by the appellant.
(b) Extra judicial confession before Rehmat All-and Qamar Din P. Ws. Nos. 15 and 16.
(c) The recovery of blood-stained clothes from the person of the appellant at the time of his arrest.
(d) The recovery of weapon of offence with which the crime was allegedly committed, at the, instance of the appellant.
(e) The circumstance that the appellant went away from the house and took a room at 1 a.m. In the night at Peshawar Hotel, McLeod Road, Lahore.
(f) Motive.
11. Learned counsel for the appellant has argued that the chit Exh. P. A. Is of no evidentiary value. In this connection, he pointed out that the appellant had denied that chit Exh. P. A. Was in his handwriting. Thereafter the specimens of his writings were taken, allegedly before a Magistrate, on 14-11-1968. The appellant however denied the fact that he was produced before any Magistrate or that the specimen hand writing was taken in his presence. The Investigating Officer deposed that he produced the appellant before the Duty Magistrate on 14-11-1964 for getting the specimen signatures which were taken on the same day by the said Magistrate. However, in his cross- examination he admitted that the applica--petition allegedly made by him to the Magistrate for obtaining the specimen hand writing of the appellant was not on the challan. He had not noted the name of the Magistrate in whose presence the specimen handwriting of the appellant was obtained in the case diary prepared by him. He did not cite the said Magistrate as a witness in the case. He did not remember if he had stated before the committing Magistrate that he did not know the name of the Magistrate and before which Magistrate the specimen handwriting of the appellant was obtained although the above statement was made by him before the committing Magistrate. His attention was also drawn to the application for remand Exh. P. W. 21/B submitted by him which did not mention that he had taken the specimen handwriting of the appellant. The cross-examination of the Sub-inspector further revealed that he did not obtain the certificate from the Magistrate to the effect that the specimen handwriting Exh. P. W. 21/A was obtained in his presence nor did he obtain any writing from the Magistrate that the person whose specimen handwriting was taken before him was identified as being Muhammad Asghar appellant. In these circumstances, it was argued that the specimen handwriting Exh. P. W. 21/A was not proved to be that of the appellant and it was accordingly submitted that the mere fact that the specimen writing was opined by the Handwriting Expert to be of the same person who had written the chit Exh. P. A. Did not advance the case of the prosecution, in so far as the appellant had denied that the specimen hand--writing was in his handwriting.
12. The Magistrate before whom the specimen writing was taken was not produced nor is it known as to who was the Magistrate before whom the specimen writing of the appellant was taken. A reference to the original record reveals that the Magistrate before whom the appellant was allegedly produced has only appended his initials on Exh. P. W. 21/A and not signed his name in full.
As the chit (Exh. P. A.) was a vital piece of evidence the learned Assistant Advocate-General prayed for an adjournment to consider the advisability of moving an application for permission to examine addi--tional evidence, namely, the statement of the Duty Magistrate before whom the specimen handwriting of the appellant was allegedly taken. The case was accordingly adjourned but when the matter was taken up today, after a week, he submitted that it was not possible to ascertain the identity of the relevant Magistrate. He further frankly admitted that in so far as the writ--ing contained in the chit Exh P. A. Was disputed by the appellant to be in his hand and there was no other evidence to show that the chit was written by him, the opinion of the Handwriting Expert was of no assistance to the prosecution. The law is quite clear that the writing with which the disputed writing is to be compared must be admitted or proved to be in the writing of the alleged writer.
Consequently one disputed writing cannot be com--pared with another writing, which itself is in dispute. The appellant having denied the specimen writing to be in his hand, the said writing could not be compared with the disputed writing contained in chit Exh. P. A. The said chit Exh. P. A. Cannot, therefore, be taken into consideration against the appellant.
13. We cannot also safely rely upon the extra judicial confession allegedly made before Rehmat A.I and Qamar Din P. Ws. The evidence of these witnesses shows that they were not known to the appellant before the occurrence. It would, therefore, be unnatural that he should have gone to them to unburden himself. The account of how he went to them also does not inspire confidence.
According to the statement made by Qamar Din P. W. 16, the appellant came to his shop alongwith Rehmat (P. W. 15). Since the appellant was not known to Rehmat A.I, it is difficult to believe that he would have gone to him for confessing his guilt and then accom--panied him to the shop of Qamar Din P. W. There is also a discrepancy in the statement of these witnesses about the actual words used by the appellant while making the confession before them. Furthermore, the reference to having committed the murder with a. Chhuri was an improvement from the statement made by Qamar Din P. W. Before the police. The inference that these two witnesses are not truthful witnesses, is further strengthened from the circumstance that the P. Ws. Stated that the clothes which the appellant was wearing when he came to the shop of Qamar Din P. W., viz. Banyan without sleeves and lacha (dhoti) were bloodstained. The appellant, according to the evidence of Fiaz A.I (P. W. 13) spent the night in the Peshawar Hotel at. McLeod Road, Lahore, and when he saw him there his clothes were not blood-stained. It is not possible to believe that he would have continued to wear the blood-stained clothes right till 2 or 3 p. m. Next day. Qamar Din P. W. Was a B. D. Member and apparent--ly had close relations with the police and could easily become a witness on its persuasion. But it is significant that even he stated that the chhuri was not recovered in his presence or in the presence of Rehmat A.I. This statement casts a grave doubt on the reliability of Rehmat A.I's statement that the chhuri was recovered in his presence. In view of improvements made by the witnesses in their statements at the trial, the untrue statement made about the appellant coming to them in blood-stained clothes, the discrepancy with regard to the circumstances in which the appellant came to the shop of Qamar Din P. W. And the possibility that the statement of Rehmat A.I P. W. About the recovery of chhuri before him was false and above all the absence of any cogent reason why the appellant should have confessed before the said two witnesses, we are driven to conclude that .The extra-judicial confession cannot be safely retied upon. Accordingly it must also be excluded from consideration.
14. The remaining pieces of evidence, namely, the recovery of the blood-stained clothes, the chhuri as well as circumstance that the appellant entered a hotel at 1 a.m., in the night cannot, by themselves in the event of extra-judicial confession being disbelieved, be regarded as sufficient to hold the appellant to be guilty of the murder of his wife. Even otherwise these pieces of evidence cannot be relied upon. It has already been noticed that the evidence relating to the recovery of blood-stained clothes from the person of the appellant, as well as the recovery of chhuri Exh. P. 1 at his instance is unsatisfactory. So far as the evidence relating to the appellant's stay in Peshawar Hotel is concerned, the same rests principally on the entry Exh. P. J/1, in the register of Peshawar Hotel. A perusal of the entry shows that it relates to Asghar A.I whereas the name of the appellant is Muhammad Asghar. Hence the above mentioned pieces of evidence also do not inspire confidence. In these circumstances, the appellant is entitled to benefit of doubt.
15. Before concluding, we must observe, however, that the investiga--petition carried on by Muhammad Aslam Khan S. I. In this case has been extremely unsatisfactory. The learned Assistant Advocate-General has described it as "criminal" and prima facie this remark appears to be justified The undisputed facts are that the deceased was found dead in the room in the upper storey of Mst. Nawab Bibi's house on a winter-night. There is not the slightest indication that any outsider entered the house during the night and could be responsible for the murder. It was, therefore, clear that the crime was not committed by any intruder but was the handiwork of the inmates of the house. The person who was deeply annoyed with the deceased was Mst. Nawab Bibi and she was constantly quarrelling with her. The only other inmate of the house besides the appellant, was her son Muhammad Ashraf. A glance at the injuries received by the deceased shows that two types of weapons appear to leave been used in the commission of the crime and this would indicate, prima facie that more than one person was involved in the transaction. But neither Mst. Nawab Bib, nor her other son Muhammad Ashraf were joined as accused. On the other hand the Sub-Inspector appears to have deliberately left loopholes so that the only incriminating evidence against the third son, the appellant before us, namely, the chit (Exh. P. A.) may not be used against him. It was manifest that in so far a9 the appellant was denying having written the chit (Exh. P.A.) it was necessary, in order to establish the fact that he was the writer of it, that his specimen handwriting should be taken. This was indeed clone in the presence of & Magistrate.
Subsequently the position was taken by the appellant, perhaps with the blessings of the Investigating Officer, that the specimen writing was not that of the appellant. In these circumstances, it was perfectly obvious that the learned Magistrate before whom the admitted specimen writing was taken had to be produced since the appellant was challenging the fact that Exh. P. W. 21/A was his specimen writing. But the Investigating Officer made no effort to do the obvious thing and to produce the said Magistrate, thus leaving an obvious lacuna. In these circumstances, the suggestion that the investigation was an dishonest one and deliberately conducted in a manner so as to favour the accused party seems try have some force. We would direct that a copy of this judgment should be sent to the Inspector-General of Police with a view to his considering whether a case under section 302/34, P. P. C. Should not be registered against Mst.
Nawab Bibi and her son Muhammad Ashraf. Action against Muhammad Aslam Khan S. I. Also appears to be called for. The learned Inspector-General of Police, will inform this Court of the action taken in the above matter, as soon as it is finalised.
16. In conclusion, the death sentence is not confirmed. The appellant shall be released from custody if he is not wanted in any other case.