ATAULLAH SAJJAD. J.-The four appellants, namely, Muhammad Ayub, Mir Afzal, Muhammad Sultan and Miskin Khan have been sentenced to death by order dated 13th of January 1971, of Mr. Shamas- ud-Din, Additional Sessions Judge, Lahore, for the murder of Rafiq. Each of the appellants was also sentenced to pay a fine of Rs. 1,000. The trial Court did not say as to what term of imprisonment they shall have to undergo in case of non-payment of fine.
2. The incident occurred on 2nd of June 1968, at 3 a. m. In Katri Bashir in the area of Wassanpura in.
The City of Lahore. The F. I. R. Exh. P. A./1 is based on the statement Exh. P. A. Of Muhammad Din; (P.
W. 14) which he made to Inspector Muhammad Azam Hayat (P. W. 19) at 3-45 a. m. When the latter came to the spot in response to a telephonic call made by Muhammad Din P. W. To the Misri Shah Police Station. The distance of the police station from the place of occurrence is one mile.
3. The occurrence was actually seen by Meraj Din (P. W. 15) and Allah Rakha (P. W. 16). It was after hearing a noise that Muhammad Din (P. W. 14) was attracted to the spot and while he was proceeding towards it he came across Ayub appellant and finding him to be a stranger in a state of agitation he took him to the roof of Allah Rakha. The deceased Muhammad Rafiq was then lying in an injured condition on a cot. Allah Rakha and Meraj Din P. Ws. Were present with him. Rafiq identified Ayub as one of his assailants and further said that he had injured him along with Mir Afzal. Sultan and Miskin with knives and daggers. Rafiq further told Muhammad Din P. W. That Mir Afzal appellant was previously married to Mehar Ferozan who was a sister---in-law of the deceased and a daughter of one Faqir alias Sain. Mir Afzal divorced Mst. Mehar Ferozan who married a nephew of the deceased. Mir Afzal, however, succeeded in seducing the woman again and had brought the deceased with him on the pretext of returning her hand to him. The injured person after making this statement lost his consciousness. Muhammad Din then went to inform the police on the telephone and when he came back he found Rafiq dead.
4. From among the accused, Muhammad Ayub had already been apprehended while the others were also arrested on the same day. Their blood-stained garments were taken into possession by Inspector Muhammad Aslam Hayat. It appears from the record as well as from the plan of the spot that Katri Bashir where this occurrence took place has two rows of quarters which are occupied by various persons. The case of prosecution is that Mir Afzal appellant was the tenant of a quarter adjacent to that of Allah Rakha P. W. Which is at the end of the western row. In-- between the quarters of Mir Afzal and Miskin appellants, there are three other quarters. One of them is occupied by Sikandar a brother of Miskin appellant. The case of the prosecution is that the deceased was first injured by the four appellants in the quarter occupied by Mir Afzal and he after their escape went on the roof of Allah Rakha through a bamboo ladder. Allah Rakha P. W. Was sleeping with his family members on the roof and the deceased lay on a charpoy there. Miraj Din (P. W. 15) was awakened by a noise. He looked into the quarter, of Mir Afzal and saw the appellants causing injuries to Rafiq. He came into the quarter of Mir Afzal. The assailants had escaped and Rafiq land by then gone on the roof of Allah Rakha.
5. The Inspector after recording the statement of Muhammad Din took, into possession, among other things, from the quarter of Mir Afzal charpoy P. 1, bed sheets including a tolai and a shirt Exh. P.
6. All of them were blood-stained. He also took into possession blood-stained earth from underneath the cot in the courtyard of Mir Afzal appellant. A blood-stained piece of wood from the door-frame of the room of Mir Afzal and a bamboo ladder P, 11 from the quarter of Allah Rakha were also taken into possession. The Inspector also took into possession a blood-stained tolai from the cot on the roof of Allah Rakha on which the deceased had been lying and had breathed his last. He took one lantern P. 25 from the quarter of Mir Afzal appellant and another lantern P. 26 from the roof of Allah Rakha. It has already been mentioned above that the blood-stained garments of the accused had been taken into possession by the Investigating Officer at the time of their arrest.
6. On 8th of June 1968, Muhammad Sultan led to the recovery of dagger P. 23 vide memo: Exh; P.A.
From under a heap of refuse near the shop of Ch. Sardar A.I. This recovery is attested by Niaz Ahmad (P. W. 8) and S. I. Abdur Rahman (P. W. 18): On 9th of June 1968, Mir Afzal led to the recovery of knife P. 24 vide memo. Exh. P. N. From underneath a heap of earth on the eastern bank of ganda nala. This recovery is attested by Azizur Rehman (P. W. 9), and S. I. Abdur Rehman (P. W. 18). On 10th of June 1963, Miskin led to the recovery of blood. Stained knife P. 23/2 which was lying in the grass near the house of Sh. Umar Din vide memo. P. O./1. This recovery is attested by Ghulam Mustafa (P.
W. 10) and S. I. Abdur Rehman (P. W. 18). The weapons so recovered and the garments of the appellants were found to have been stained with human blood.
7. The motive story as contained in the F. I. R. Is only partly correct. It appears from the documentary evidence placed ors the record by the defence as also from the statement of Muhammad Sultan (P. W. 17) the brother of the deceased that after Mir Afzal appellant had divorced Mst. Mehar Ferozan, she married Aurangzeb a nephew of the deceased. Aurangzeb also divorced her. We find from the statement of Sultan (P. W 17) the brother' of the deceased that Mir Afzal had twice taken Mst. Mehar Ferozan from her house in Hazara District to Lahore. Mir Afzal, his brother Sadiq and Faqir alias Sain father of Mehar Ferozan came to the deceased in Hazara District and told him that their dispute had ended and that he should accompany him to Lahore for solemnising Mir Afzal's Nikah with Mst. Mehar Ferozan. This witness also stated that Mir Afzal had a suspicion that Rafiq deceased had illicit relations with Mst. Mehar Ferozan. This later assertion appears to be an after--thought, but there is no denying that relations of Rafiq deceased with Mir Afzal could not have remained happy after the divorce of Mst. Mehar Ferozan. There is nothing to show that Mst. Mehar Ferozan was actually seduced by Mir Afzal appellant again and was brought to Lahore. None of the witnesses asserted that Mst. Mehar Ferozan was residing with Mir Afzal. Muhammad Din clearly stated that Mir Afzal used to reside in his quarter with his wife Yasin. Muhammad Sultan (P. W. 17) the brother of the deceased had of course asserted that Mst. Mehar Ferozan was residing with Mir Afzal in his quarter. This assertion, however, is belied by the neighbours of Mir Afzal.
The Inspector was asked whether he examined Mst. Mehar Ferozan. He said that she was in the custody of the accused and he was, therefore, not able to record her statement. This reason has not convinced us. The accused had been arrested, on the very day of the occurrence and if they could lead to the recovery of incriminating articles against them, surely it would have been possible for the Investigating Officer to find out the whereabouts of Mst. Mehar Ferozan. The motive part of the story that Mir Afzal had seduced Mst. Mehar Ferozan and had brought her to Lahore is, therefore, not substantiated. It is also not clear why Faqir alias Sain the father of the girl should join hands with Mir Afzal because latter's conduct vis-a-vis Mehar Ferozan must have given more offence to tire father.
8. The text of the telephonic message sent by Muhammad Din P. W. To the Misri Shah Police Station was not placed on the record. Vie actually sent for the relevant roznamcha of the Misri Shah Police Station but were told that it had been destroyed. Muhammad .Din admitted that he had beers told the names of the assailants by the deceased but he forgot the names when he went to inform the police on the telephone. The place wherefrom he telephoned go the police is a school run by the Shia Community under the management of Mr. Mustafa A.I Hamdani opposite the place of occurrence. Muhammad Din had stated before the committing Magistrate that he had telephoned the police after he obtained the permission of Mr. Mustafa A.I Ramdani, but had not told anything to Mr. Hamdani about the incident. This conduct appears to be quite unnatural. If Muhammad Din had actually gone to inform the police on the telephone about the commission of a serious crime, he would have certainly told Mr. Hamdani as to what had happened and the latter might have chosen to come to the spot to find out the facts, at least on account of human sympathy. The statement made at the trial that the telephone was dialled by some unnamed student was perhaps made to escape this difficult situation.
Muhammad Din further stated that he did not know the name of the deceased and it was revealed to him when the latter's brother Firdaus P. W. Came to the spot after hearing the news of the death of his brother. Muhammad Din had stated before the committing Magistrate that he had even making enquiries from the deceased for about half an hour after which he went to inform the police on the telephone. He reduced this time from five to six minutes at the trial. Whatever time was taken by him in eliciting information from Rafiq, the first question that he should have put to the dying stranger should have been about his name and whereabouts.
9. Muhammad Din's statement gives us further clue to the fact that the story as contained in Exh. P.
A. Was developed much later than the record shows. According to the Inspector, Exh. P. A. Was recorded at 3-45 a. m. But Muhammad Din says that this was recorded after all the accused had been arrested. According to this witness the arrest of all the accused had been effected by 10 a. m.
Inspector Muhammad Aslam Hayat yen the other hand said before the committing Magistrate that Miskin and Mir Afzal were arrested at about noon. It would, therefore, be legitimate to presume on the basis of his statement that the statement Exh. P. A. Which purports to have been recorded at 3- 45 a. m. Was actually drawn up some time after 10 a. m.
10. We further feel that it is very unlikely that the deceased was in a position to make any statement to Muhammad Din after he had received the fatal injuries. The doctor said that the time between the injuries and the death was a few minutes. The claim of Muhammad Din before the committing Magistrate that he had been talking to the deceased for half an hour is completely belied by the medical evidence. Allah Rakha P. W. Stated that Muhammad Din came to his roof 10/11 minutes after the deceased had arrived there. If we analyse this statement in the light of the medical evidence the deceased must have breathed his last by the time Muhammad Din arrived at the spot. The prosecution would have us believe that after receiving the injuries the deceased went on the kotha of Allah Rakha. Khawaja Sultan Ahmad who appeared for the appellants, except Miskin, pointed to a significant fact in the prosecution story. He invited our attention to the statement of the Investigating Officer that he collected blood from underneath the charpoy lying in the quarter of Mir Afzal. The learned counsel argued that if the deceased had gone on to the roof of Allah Rakha P. W. After receiving injuries, which according to Allah Rakha P. W. He received in a standing position, there would have been no blood underneath the cot lying its the Kotha of Mir Afzal. The case of the defence was that Rafiq deceased had illicit relations with the wife of Allah Rakha P. W.
And he was injured on the roof of Allah Rakha and it was after receiving injuries that he came down to the Quarter of Mir Afzal where the blood was found from underneath the cot.
The allegation of the defence regarding the liaison between the wife of Allah Rakha and the deceased may or may not be correct but the fact stands that the deceased must have been injured while he was lying on the cot in the quarter of Mir Afzal appellant and remained lying there for a considerable time during which the blood trickled through the bedding which also contained a tolai. There was no blood underneath the cot on Allah Rakha's roof where according to the prosecution the deceased breathed his last. It is also very unlikely that the alleged eye-witnesses actually saw the occurrence. Allah Rakha stated at the trial that he found five persons fighting in the quarter of Mir Afzal and while he was descending from the stairs, the injured person was coming up to his roof. He had stated before the committing Magistrate that he had not been able to identify the accused. Both Allah Rakha and Meraj Din said that the injured person had stated that his brother-in-law had killed him along with others. It was a dark night. There is no electricity in the katid but the witnesses claimed to have seen the occurrence in the light of the lantern which was burning in the courtyard of Mir Afzal and the one which was burning on the roof of Allah Rakha P.W. As. To the lantern in the courtyard of Mir Afzal, their versions do not agree. While Meraj Din said that the lantern was lying in the courtyard of Mir Afzal, Allah Rakha had said that it was hanging on peg. The Investigating Officer was not sure that when he took possession of these lanterns they were burning. If the police officer reached at 3-45 a. m. As he claims to have done, the lanterns, if they were burning, would have continued to burn because it was nobody's case that the lanterns had been extinguished after the incident.
12. The two eyewitnesses and Muhammad Din said that the people of the Katri were awakened and were looking from their roofs but none; of them appears to have come to the spot. The witnesses said they did not raise any noise which again is unnatural. In any case, there was nothing to prevent the neighbourer who were looking from their roofs to come immediately to the place of occurrence. The dead body was found on .The roof of Allah Rakha and we find force in the contention raised by the learned counsel that he offered to become a witness in order to avoid his being arraigned as an accused person: Whatever the motive with which Meraj Din and Muhammad Din came to support the prosecution story, their evidence does not carry conviction.
13. It may also be pointed out that it was nobody's case that the deceased was putting up with Mir Afzal at the time of the occurrence. On the other band, our attention was invited to the statement of Meraj Din P. W. Who categorically denied that Rafiq deceased was putting up with Mr. Afzal. The circumstances in which the deceased was found on the roof of Allah Rakha therefore, remain undiscovered. The allegation of the prosecution that Mir Afzal appellant bad enticed Mst. Mehar Ferozan and was residing with her is belied by the prosecution evidence itself. Best evidence has not been adduced to show that Mir Afzal appellant was actually occupying the quarter adjacent to that of Allah Rakha. We find from the record to that one Abdur Rehman who resides in the same karti used to realise the rent from the occupants on behalf of the owner.
He was not produced at the trial nor was he examined by the police. We, therefore, find that the motive story is not borne out by the record. The eye-witness's account is doubtful and the foundations of this case were laid by a fabricated statement which was clearly recorded about or after 10 a. m. It may be incidentally pointed out that the original statement Exh. P. A. Does not bear the signatures or the thumb-impression of Muhammad Din and it is strange that this fact remained unnoticed in the trial Court. The whole investigation; therefore, becomes suspicious and the ocular testimony bang what it is, it is not possible to rely upon it.
14. Next we come to the circumstantial evidence. There is no doubt that the garments of all the appellants were found to have been stained with human blood. But since there are indications of fabrication during the investigation, we are not prepared to rely on this evidence. The witnesses of these recoveries are Allah Rakha (P. W. 16) and Muhammad Din (P. W. 14). We have found their statement to be false in material particulars in respect of other aspects of the case and we are not prepared to place any reliance on their testimony so far as these recoveries are concerned.
15. So far as the recoveries of weapons are concerned, it may be pointed out that none of the witnesses testifying to them belongs to the locality. Niaz Ahmad (P. W. 8) admitted that the dagger recovered at the instance of Sultan appellant was recovered from an open place. He claimed to have been present in the Police Post Shad Bagh when he accompanied the police for this recovery, but he forgot the purpose which had brought him to the police post. It may also be pointed out that this dagger was in a scabbard and if the dagger was blood-stained the inner side of its scabbard must have been blood-stained. There is no evidence to this effect.
The recovery from Mir Afzal is also from an open place, namely, the bank of ganda nala. This knife was also wrapped in a cloth and there is no evidence that the cloth in which this knife was wrapped was also blood-stained. Azizur Rehman P. W. Who has testified to this recovery appears to be a chance witness because he says that he was sitting' in Shad Bagh when he accompanied the police for the purpose of recovery.
The recovery from Miskin was also from an open place in a grassy plot. Ghulam Mustafa P W who has testified to this recovery was taken by the police from the Chauk of Wassanpura. According to Ghulam Mustafa he accompanied the police from the Chauk of Wassanpura, but according to the Investigating Officer Ghulam Mustafa was taken by him from the market of Shad Bagh for the purpose of recovery. 7 he evidence of recoveries is, therefore, also not worthy of credence.
16. For the foregoing reasons, we have no alternative but to allow this appeal, we set aside the conviction and the sentences passed on the appellant. We refuse to confirm the sentence of death passed on the appellants. The appeal and the murder reference are decided accordingly.