Muhammad Hussain aged 50 years, his brother Muhammad Amin aged 40 years, their sister's husband Manna aged 45 years and Mst. Naziran wife of Muhammad Hussain have appealed against their conviction under section 364/34, P. P. C. And sentence of transportation for life.
2. The prosecution case in brief is that Mst. Nazir Begum, the deceased, was a daughter of Ghulam Mustafa P. W. 16 and had been married about 15/16 years before the occurrence to Akbar, who had died about six years before the occurrence. She had from Akbar a daughter Mst. Nargis aged about 11 years, Farooq P. W. 18 aged 9 years and Iqbal aged about 5 years. Akbar was the brother of the first two appellants and brother-in-law of the third. In spite of the death of Akbar A.I she had been living alongwith her children in the same Khata in which the appellants lived i.e. At the place where her husband during leis lifetime lived. She also had certain land which provided her the sustenance. Muhammad Hussain had asked for the band of Mst. Nargis for his son. The deceased Mst. Nazir Begum had declined the propose because she intended to marry bar in her parent s family. Ibis refusal on her part had led to disputes between the two families. On the night of 20th/21st December 1968, at about Isha time the deceased along with her children was in the kotha when there was a knock at the door, on which the door was opened by Mst. Nargis when Mst.
Naziran, appellant entered followed by the other three appellants. They all insisted on taking the deceased to the house of her parents and on her resistance dragged and pushed her out of the kotha with a view to take her at that very moment to her father's house as they were fed up with the dispute that had been taking place between her and the wife of Muhammad Hussain. Her entreaties to be permitted to do so the next morning were of no avail. The whereabouts of the deceased thereafter were not known, to anyone. It was Ghulam Mustafa who happened to come to the house of the deceased on the 24th of December 1968, and found her missing. He took the children with him and went straight to village Ganeshpur his house and the next morning lodged a report about the disappearance of the deceased and his suspicion that the appellants had done her to death. He also mentioned the names and particulars of certain witnesses who could be of assistance in tracing the woman and who had informed. Ghulam Mustafa as to where she had been last seen. Mr. Iftikhar Hussain Jaffery P. W. 1.9 recorded the F. I. R. And took up the investigation of the case. He arrested the first three accused on 31st December 1968 and on the pointing of Muhammad Amin recovered a trunk of dead body from Upper Chenab Canal, which Ghulam Mustafa identified to be the dead body of his daughter. It was despatched for post---mortem examination. On 12th January 1969, Muhammad Amin got recovered the blood-stained toka Exh. P.
9 from his cattle-shed while Muhammad Hussain appellant led to the recovery of -gold necklace P.
3, mala P. 4, ring P. 5, jhumkey P. 6 and clips P. 7 and handkerchief P. 8 from his house after digging the ground. These were also of deceased. The post-mortem examination was conducted by Dr. Muhammad Aslam Arshad on the same day what the trunk was recovered. He found the following injuries:--
(1) There was a cut on the first thoracic vertebrae up to the body, rest of which was fractured. Cut was of sharp weapon.
(2) There were two cuts on the head of left humerus bone on the outer and front side by which arm had been cut by sharp weapon from the trunk.
(3) There was cut on the -- ' depth (roundness) of right humerus bone 2 -- ' below the tip of head of the humerus bone rest of which was fractured.
(4) Both femur bones were fractured with blunt object.
The dead body bad no head, arms or legs. It was decomposed trunk. The doctor was not in a position to know the exact cause of death from the injuries. He could not say whether the injuries found were ante-mortem or post-mortem.
3. The appellants admitted only this much that the deceased along with her children had been living in the same haveli, but denied the sugges--petition that ever the hand of Mst. Nargis was asked for, that there were quarrels or that the deceased was dragged, pulled and taken out of the kotha at night immediately before Eid, and that she was done to death. The concerned appellants also denied having led to the recovery of the dead body, the ornaments or the toka. They pleaded that they have been implicated in the crime due to enmity.
4. The trial Court believed the motive given for the occurrence, the eye-witness account of Mst.
Nargis P. W. 17 and Farooq P. W. 18 and on this evidence recorded the conviction under section 364/34, P. P. C. In disbelieving the case of murder against the appellants the trial Court rejected the evidence of last seen coming from Sardar A.I P. W. 7, Shahab P. W. 8, the extra-judicial confession said to have been made by the appellants before Akbar P. W. 14 and Boota P. W.
15. The recoveries attributed to the appellants, toka, the dead body, and the ornaments by Sadiq A.I P. W. 11, Amjad P.
W. 12 were also disbelieved. The identification of the dead body was also held not free from doubt.
5. As regards the rejection of evidence brought by the prosecution on the charge under section 302/34, P. P. C. Much need not be said, for I find that for very cogent reasons that evidence had been rejected as not above suspicion. A reference to it will, however, be necessary only in the context of testing the over all credibility of the prosecution case even in respect of offence under section 364/34, P. P. C. s6. So far as the motive for the crime is concerned, two have come on the record. One is the fact that the hand of Mst. Nargis was asked for by Muhammad Hussain for his son and the deceased had declined it and wanted to marry her elsewhere in her parent's family. The second is that there used to take place frequent quarrels between the family of the first two appellants and that of the deceased; which had its roots in the dispute arising out of the refusal of the hand of Mst. Nargis. So far as the first motive is concerned two points were required to be established by the prosecution.
Firstly that Muhammad Hussainabad a son who could in normal circumstances be married to Mst.
Nargis and secondly that there was an alternative which the deceased bad in her mind. None of the witnesses produced by the prosecution in the case has named the son of Muhammad Hussain for whom the hand of Mst. Nargis was sought. Nobody claims to know it. The utmost that Ghulam Mustafa has said about it is that he was about 13 years old and he was studying in 7th Class. A man who frequently visited the deceased before the occurrence, who had known the family being the father of the deceased, could not have after knowing so much of the son i.e. His age and the class in which he was studying remain unaware of his name. Muhammad Hussain has denied having ever demanded the hand of Mst. Nargis. There is no question whether Muhammad Hussain had a son of marriageable, age or not put to Muhammad Hussain himself. There is also no evidence on the record to show that there was any other eligible person in the family of Ghulam Mustafa on whom the, deceased had an eye for marrying Mk. Nargis. In a case like this much depends on the circumstantial evidence, motive forms an important link and it should have been proved like any other fact. As regards the frequent disputes between the two families the most competent witnesses would have been the neighbours. It is also in evidence that close relatives of deceased were in the same village. The prosecution took efforts to procure witnesses from the neighbouring villages of Kot Mahmood and Ganeshpur who have all been disbelieved but produced no natural witness so far as these frequent disputes are concerned. We are left, there--fore, to the statements of the two child witnesses and none of them is aware for what these disputes were taking place:.
Therefore in the absence of better evidence with regard to motive it cannot be sail that it is made out from the record.
7. As regards the two child witnesses one would find definite improve--ments in their statements at various stages to indicate that they are amenable to suggestions like most children and if what they say were true the pro--secution case as a whole is not free from the taint which renders it unacceptable for recording the conviction of the appellants even under section 364, P. P. C. 1 he occurrence is said to have taken place on the night intervening Juma'tul wida and Eid. The disappearance of the deceased was not detected on Eid or on the following day. In spite of the fact that the father of the deceased was living in a neighbouring village and two of her relatives from the parental side were living in the same village. Ghulam Mustafa and his son Jamil Asghar P. W. 13 gave the impression that they had been frequently visiting her. If the deceased had been living in an atmosphere which was not congenial she could have moved away to her parents' house but she took no such a step. The intrinsic consistency of the statement of Mst. Nargis and Farooq suffers from many defects. Firstly Mst. Nargis P. W. 17 has stated in the commitment Court that none of her maternal relations visited them for four months prior to the occur--rence. She repudiated this statement at the trial explaining that Aslam her maternal uncle had come only 10 or 15 days before the occurrence and Mustafa P. W. 16 states that he last visited his daughter in her lifetime two months before Eid. Secondly both the child witnesses have stated that when the appellants had asked the deceased to accompany them to her father's house at that late hour of a winter night she did not say at all what would happen to the children. This would be most unnatural conduct attributed to the mother. Thirdly both the witnesses introduced the---improvements at the trial that while taking away the deceased the door of the kotha was chained from outside and they were at no time allowed to go beyond the courtyard. Their conduct on seeing Ghulam Mustafa would appear to be not consistent with restraint that had been allegedly put on their movements.
One of them went to the extent of saying that he received no meals till the maternal grand-father arrived to their rescue i.e. For about four days. Both the children stated at the trial that they accom- -panied the complainant Ghulam Mustafa to the Police Station when he went to lodge the report and immediately after the report was lodged their statements were recorded by the police. This fact has been repudiated by Ghulam Mustafa as well as by the Police Officer.
8. In a case where most of the prosecution evidence appears to be tainted and even the statements of the child witnesses who could be natural witnesses to an occurrence of this sort appears to be highly artificial and full of material improvements on various stages it would be unsafe to rely on them and on them alone rejecting all the other evidence for holding that the prosecution case is proved beyond all doubts. The way in which various links have been provided by the prosecution in the form of chance witnesses seeing the deceased last with the appellants, the extra-judicial confession and the recovery all go to show that there was an effort to fill in the gap by whatever means it was possible to do so and for that not to seek the assistance of natural witnesses or credit-worthy witnesses. It is also to be noted that these two child witnesses are living under the care and physical proximity of Ghulam Mustafa who has been instrumental in implicating the appellants.
9. Learned counsel for the State has mainly relied on the fact that as the deceased was living in the same haveli in which the appellants lived so there was a heavy duty on them to account for her absence. In the trial the suggestion was put to all the witnesses that the deceased along with the children had on the occasion of the Eid gone to her paternal house and this accounts for the maternal grand-father or the maternal relatives living in the village not coming and seeing the children on Eid day or after the Eid. It was repudiated but the explanation for their not coming, meeting or knowing about the deceased and the children on the occasion has not been satisfactorily explained.
10. I find, therefore, that a case beyond reasonable doubt has not been made out against the appellants and finding them not guilty, I set aside their conviction and sentence. They shall be released forthwith from the Jail if their detention is not required in any other case.