' Muhammad Waris alias Kuk, son of Fazal Din, caste Rajput, (16/17) has filed this appeal against his conviction under section 302, P.P.C. Recorded by learned Additional Sessions Judge, Sialkot vide impugned judgment, dated 27-41987, sentencing him to imprisonment for life and a fine of Rs,5,000 or in default to undergo two years' R.I.
2. Mst. Sharifan, deceased, in this case, is wife of Sardar, maternal-uncle of the appellant. Mst.
Sharifan's elder daughter (Mst. Rashidan) is wife of Rehmat Khan, complainant (P.W.2), while his other daughter namely, Mst. Majidan is married to Muhammad Ishaq younger brother of said Ramat Khan. Rehmat Khan complainant lived in village Wazirpur Mararra, at a distance of about 10 miles from village Mandiala where Mst. Sharifan deceased lived and had been allegedly murdered.
3. According to prosecution, on 3-6-1986, Rehmat Ali complainant (P.W.2) came to village Mandiala for seeing his mother-in-law Mst. Sharifan, deceased. He found the house of the deceased locked.
He went to appellant's house to enquire about Mst. Sharifan who expressed his ignorance. Manzoor Ahmad (P.W.4) and Mahmood Hussain (P.W.5) having met the complainant told him that four days ago they had seen the appellant quarrelling with the deceased. They went together to the house of Waris appellant who on seeing them ran away. They felt foul smell emanating from appellant's locked room, and peeped into the room through a window and saw a dead body lying there. They entered the room by breaking open the lock and identified the dead body to be that of Mst.
Sharifan which was naked and covered with a quilt and a `Dopatta' was tied around her neck.
Rehmat Ali complainant leaving the dead body in the care of Manzoor Ahmad (P.W.4) and Mahmood Hussain (P.W.5) went for lodging the report with police and having met A.S.I. Abdul Majid (P.W.9) in the way made statement Exh.P.B. Before him. On its basis formal F.I.R. Exh.P.B./1 was drawn up by Arif Hussain. Muharrir Head Constable (not produced) at Police Station Phillpura District Sialkot. The motive for the offence was stated to be that the appellant had demanded the hand of Mst. Majidan daughter of the deceased for himself in order to grab the property owned by the deceased but it was declined by her, hence this occurrence.
4. Abdul Majid A.S.I. (P.W.9) having recorded the F.I.R., visited the spot and after preparing necessary documents, sent the dead body for post-mortem examination under police escort. Dr. Muhammad Sarwar (P.W.7) Medical Officer, Civil Hospital, Pasrur, on 3-6-1986, at 5 p.m. Conducted the post- mortem examination on the dead body and found deceased's face swollen, eyes closed, tongue protruded out, colour of the face and body as purplish black, putrefaction of body had started and maggots were all over the body. He observed Dopatta wrapped round her neck and three depressed grooves on all sides of the neck as a result thereof tracheal rings were fractured and hyoid bone was also fractured. In the opinion of the doctor, death had occurred due to strangulation.
5. A.S.T. Abdul Majid (P.W.9) investigated the case partly and then handed over it to S.I. Abdul Haq (P.W.10) who arrested the appellant on 21-6-1986. He collected incriminating circumstantial evidence and after completing the investigation challaned him to Court.
6. At the trial ten witnesses were examined. The prosecution has mainly relied on the following pieces of evidence:--
(a) Evidence of motive as stated by Rehmat Ali complainant (P.W.2), Manzoor Ahmad (P.W.4) and Mahmood Hussain (P.W.5).
(b) Evidence of extra-judicial confession deposed to by Rafiq Ahmad (P.W.3) and Muhammad Rafiq (P.W.6) and
(c) Recovery of dead body effected from the house of the appellant witnessed by Rehmat Ali complainant (P.W.2), Manzoor Ahmad (P.W.4), Mahmood Hussain (P.W.5) and the investigating officers besides the medicel evidence.
7. The appellant in his statement under section 342, Cr.P.C. Denied the allegation and attributed his involvement in the case to his opponents but produced no evidence in defense.
8. Learned trial Court believing the prosecution version convicted and sentenced the appellant as indicated above, hence this appeal.
9. Learned counsel appearing on behalf of the appellant contends that circumstantial evidence brought on record by prosecution is not sufficient to prove the murder charge against the appellant. He further submits that the evidence of motive has been disbelieved by the learned trial Court in para. 9 of its judgment and that the statements of Manzoor Ahmad (P.W.4) and Mahmood Hussain (P.W.5) and that of Rehmat Ali complainant (P.W.2) regarding recovery of dead body from appellant's house are discrepant and irreconcilably inconsistent, therefore, they cannot be safely relied upon. About evidence of extrajudicial confession furnished by Rafiq Ahmad (P.W.3) and Muhammad Rafiq (P.W.6) he submits that they belong to the brotherhood of Rehmat complainant (P.W.2) and have failed to give reasonable explanation for not disclosing about it for a week or so, therefore, their evidence too deserves to be discarded. Replying, learned State counsel submitted that the P.Ws. Have no animosity with the appellant, therefore, their testimony coupled with recovery of dead body has been rightly relied upon by the learned trial Court and that the conviction and sentence recorded by the learned trial Court, so it does not call for any interference.
10. I have carefully considered the contentions of the learned counsel, for the parties and perused the record.
11. Learned trial Court has not given any reason for disbelieving the evidence of motive. It is in evidence that Mst. Majidan, younger daughter of the deceased was married 2-1/2 years before the occurrence when the appellant was 13/14 years old, therefore, it appears improbable that the appellant at that stage of his age was eager to marry Mst. Majidan or for that matter he himself demanded her hand from the deceased, when his mother and elder brother are alive and live with him in the same house. Manzoor Ahmad and Mahmood Hussain P.Ws claimed that 4/5 days before occurrence they saw the appellant quarrelling and threatening the deceased to take revenge from her for not giving him the hand of her daughter, but this story also is not believable, as being afterthought because Mahmood Hussain (P.W.5) frankly admitted in cross-examination that he had not mentioned in his statement made before the police that he saw Waris appellant extending threats to Mst. Sharifan for having not given hand of her daughter to him, while Manzoor Ahmad (P.W. 4) when confronted with his police statement Exh.D.B., the story of appellant's holding out threat to the deceased was found as not recorded in it. I would, therefore, say that the learned trial Court had rightly ignored the evidence of motive set up by the prosecution.
12. To prove appellant's extrajudicial confession, the prosecution produced two P.Ws, namely, Rafiq Ahmad (P.W.3) and Muhammad Rafiq (P.W.6). Both these witnesses are, admittedly, members of the brother-hood of Rehmat Ali complainant (P.W.2) and are also his co-villagers i,e,, they reside 10 miles away from the house of the appellant. They conceded to be neither Lambardar of the village nor elected Councillors. They also admitted that they did not know the appellant before the day he (appellant) had approached them for help and confessed his guilt. In these circumstances it is not believable that the appellant would have approached them for help and confessed before them about having murdered the deceased. Again, on their own showing the appellant had approached them on 4th or 5th June 1986 and asked them to get him pardoned from Rchmat Ali complainant (P.W.2) and that they put him off saying that they would talk to Rchmat Ali P.W. About it but thereafter the appellant did not approach them. In the first instance the story that the witnesses promised to help the appellant by talking about this matter to Rehmat Ali P.W., does not find mention in their police statements Exhs.D.A. And D.C.; and secondly, their conduct in not capturing the appellant when he made clean breast before them offends against normal human conduct particularly when the deceased belonged to their brotherhood and the complainant was their co- villager. It is pertinent to note that they did not inform Rehmat Ali complainant (P.W.2) about it either. They told the investigating officer about this confession as late as 16-6-1986. Their silence about the confession of the appellant (said to have been made before them) for more than weeks' time renders their evidence unworthy of credit on the point. Again procuring these witnesses was, too, easy for the complainant.
13. Last piece of evidence is, recovery of dead body from a locked room of the house of the appellant made on 3-6-1986, which is seriously criticized by the appellant being improbable and untrue. Almost all the witnesses were suggested that the dead body of the deceased was found lying in her own house, many days after she had been murdered and that the venue of recovery was changed in order to falsely implicate the appellant. This suggestion, no doubt was denied by the P.Ws but the question remains if the evidence on record proved it beyond doubt that recovery of dead body, had been effected from the house of the appellant. On this point we have evidence of Rehmat Ali complainant (P.W.2), Manzoor Ahmad (P.W.4) and Manzoor Hussain (P.W.5). Manzoor Ahmad (P.W.4) stated that the room in which the dead body was found was locked and that lock was broken open, whereas Rehmat Ali complainant (P.W.2) stated that the lock of the room could not be broken by them, therefore, the chain of the door had been broken for opening the door.
Mahmood Hussain (P.W.5) went to the extent of D saying that the police had taken into possession that lock but A.S.I. Abdul Majid (P.W.9) who visited the spot first after registering the case gave direct lie to all these P.Ws saying that he did not find any broken lock from the spot. It may be pointed out that Dopatta (P.1) (used for strangulating the deceased), the quilt (P.3) in which the dead body was found covered, and cot (P.2) on which it was E found lying, have not been proved to be belonging to the appellant.
14. For the reasons given above I find that conviction recorded by the learned trial Court based on the evidence of recovery of dead body and extrajudicial confession is not sustainable.
Consequently, the appeal is allowed and conviction and sentence of the appellant are set aside and he is acquitted. He is set at liberty forthwith if not required to be detained in any other case.