SARDAR MUHAMMAD DOGAR, J: -- Alimuddin was tried by the Additional Sessions Judge, Sargodha, for having murdered his mother-in-law, Mst. Hafizan in her house, on 26-2-1986 at 4-00 a.m. In Mohallah Moti Masjid, Miani, at a distance of one kilometre from Police Station Miani.
Learned trial Judge, vide judgment, dated 1-10-1988, convicted him under section 302, P.P.C. And sentenced him to death plus to pay a fine of Rs.10,000 in default whereof to undergo R.I. For 2 years.
2. F.I.R. Exh. P.F. Was recorded at the police station by Maula Bakhsh, A.S.I. (P.W.8) on 26-2-1986 at 5- 00 a.m. On the statement of Intizar Hussain (P.W.6).
According to F.I.R. Mst. Zaitun the only daughter of Mst. Hafizan was married to Alimuddin.
Alimuddin often used to ask Mst. Hafizan to transfer in his name the land owned by her husband Nagina but she (Mst. Harman) used to refuse that. A day before the occurrence, Alimuddin and Mst.
Hafizan quarrelled over the issue. The complainant and other residents of the house, with the help of Chand Khan (neighbour) intervened and got the matter warded of. Alimuddin however told Mst.
Hafizan that he will teach her a lesson for not transferring the land in his name and that Nagina will then transfer the land to him.
During the night of occurrence, the complainant slept in the eastern room of the house, alongwith Mst. Hafizan and her husband Nagina. The room was without shutters. A lantern was burning.
Alimuddin went to sleep in the western room. A leg of Nagina was fractured. He was feeling pain in that. On that account, the complainant and Nagina were awake. It was 4-00 a.m. Alimuddin came there with a hatchet. He gave a blow on the right temple of Mst. Hafizan. The second blow given by him, hit her on the forehead. The third blow struck her on the neck. Thereafter he gave many more blows. The complainant did not get up due to fear. Nagina also could not get up because of fractured leg. Alimuddin ran away, while waving hatchet. Mst. Hafizan died on the spot.
3. Maula Bakhsh, A.S.I. (P.W.8) after recording the F.I.R. Reached the spot. He despatched the dead body for post-mortem examination after preparing inquest report Exh. P.G. And injury statement Exh.P.G./1. Blood-stained earth was collected by him from the spot vide memo. Exh. P.H.
The appellant was arrested by him on 28-2-1986. Hatchet P.4 got recovered by him from the rear portion of his house on the same day, was taken into possession vide memo. Exh. P.D. The challan was submitted to Court after completion of necessary investigation.
4. Statements of eight P.Ws. Were recorded at the trial.
Dr. Nisar Hussain, who had performed autopsy on 26-2-1986 at 3-00 p.m. Appeared as P.W.7. He had noted following injuries on the body of the deceased:- (1)A lacerated wound 6 c.m. x 3/4 c.m. x bone deep with fracture of underlying temporal bone.
Injury was 3 c.m. Above the right ear in right temporal region.
(2)A lacerated wound 3 c.m. x 1 c.m. x bone deep on the right side of forehead 3 c.m. Above right eyebrow with fracture of underlying frontal bone and damage was done to underlying meninges and corresponding part of brain alongwith internal haemorrhage was there.
(3)A lacerated wound 2-1/2 c.m. x 1 c.m. x bone deep on right eyebrow.
(4)A lacerated wound 2 c.m. x 1 c.m. x bone deep on the right side of the face, 1-3/4 c.m. In front of right ear. There was underlying fracture of neck of mandible.
(5)A contusion 4 c.m. x 2 c.m. On the right side of face 1-1/2 c.m. Below injury No.4 with underlying fracture of ramus of mandible.
(6)A contusion 1-1/2 c.m. x 1 c.m. On the right side of face 3 c.m. Below injury No.5.
(7)A lacerated wound 4 c.m. x 1 c.m. x bone deep on the right cheek just below right lower eye-lid alongwith fracture of underlying zygomatic bone.
(8)An incised wound 2 c.m. x 1/4 c.m. x bone deep one c.m. Below injury No.7 alongwith fracture of underlying maxillary bone.
(9)A lacerated wound 1 c.m. x 1/2 c.m. Through and through on the right side of the upper lip alongwith with displacement of right incisor teeth (both).
(10) A lacerated wound 1-1/2 c.m. x 1/2 c.m. Through and `through on the left side of the upper lip alongwith dislocation of underlying both incisor teeth.
(11) A lacerated wound 3/4 c.m. x 1/2 c.m. Through and through on the right side of the lower lip alongwith dislocation of both right incisor and right canine tooth. .
(12) A contusion 3 c.m. x 2 c.m. On the left teeth bone deep with underlying fracture of zygomatic bone.
(13) An incised wound 6 c.m. x 1-1/2 c.m. x skin deep on the left side of the neck 3 c.m. Below left ear.
(14) An incised wound 9 c.m. x 1 c.m. x bone deep on the left side of face 7 c.m. Below left arbit with fracture of underlying ramus of mandible.
(15) An incised wound 7 c.m. x 1 c.m. Bone deep on the left side of face 1/2 c.m. Above injury No.14 with underlying fracture of ramus of mandible.
(16) An incised wound 4 c.m. x 1 c.m. x bone deep on the left side of face 1 c.m. Above injury No.15 with underlying fracture of ramus of mandible alongwith incision of left lower lip and left side of gum.
(17) An incised wound 3 c.m. x 1/2 c.m. x bone deep on chin in centre alongwith fracture of mandible.
(18) A contusion 4 c.m. x 1 c.m. On the right side of neck 7 c.m. Below right ear.
(19) A contusion 5 c.m. x 1 c.m. On the back of right elbow.
(20) A lacerated wound 2 c.m. x 1/2 c.m. x bone deep 10 c.m. Below right elbow on right forearm, alongwith underlying fracture of right ulna.
Except injuries Nos. 8, 13 to 17, which were opined to have been caused by a sharp-edged weapon, the rest of the injuries were opined to have been caused by a blunt weapon.
Death was opined to have occurred due to shock and haemorrhage resulting from all the injuries collectively. Injuries Nos. 1 and 2 were opined to be sufficient to cause death individually also, The duration between the injuries and death was opined to be immediate while the time between the death and post---mortem was opined to be within about 10 hours.
5. Out of the two eye-witnesses, i.e. Nagina husband of the deceased and Intizar Hussain complainant son of her real sister, only the latter was examined at the trial as P.W.6. The former had died before the commencement of trial.
6. Intizar Hussain P.W. While repeating the facts given by him in the F.I.R., stated that Chand Khan had gone to the police station to inform the police and that he had lodged F.I.R. Exh.P.E., at the spot, on the arrival of the police and had signed the F.I.R. There. During cross-examination he stated that Nagina owned' 5 acres of land while the accused/appellant owned 7-8 acres of land, alongwith his three brothers. He gave out that fie was living with his parents in their house at a distance of one furlong from the residence of Mst. Hafizan. After admitting that he had rushed to the place of the occurrence from his house hearing the noise, he reasserted that when the deceased was attacked, he was already in her (deceased's) house. He explained that he used to go to the house of Nagina to Massage his legs. In answer to another question, he stated that the house of the accused was in front of the house of the deceased in the same lane. According to him the police on arrival at the spot at 8-00 a.m. Had inspected the place of occurrence, enquired from the persons present there and thereafter recorded his report. He denied the suggestion that the accused had not committed the murder of Mst. Hafizan.
7. Kausar Ali who had supposedly witnessed the recovery of hatchet P.4 at the pointing out of the appellant on 28-2-1986, while appearing as P.W.5, stated during cross-examination that he had reached the spot at 3-00 a.m. While the police had reached there at 4-00 a.m. And that the report was registered at the instance of Intizar Hussain P.W. By the police at the spot after making enquiries from the persons present there. According to him Ghafoor Ahmad. Chairman of the Town Committee, was also present at that time. He stated that Intizar Hussain had lodged tile report with Shah Nawaz, S.I. He gave out that the hatchet was recovered on 27-2-1986 and was taken into possession by Shah Nawaz. S.I. Answering another question he stated that the appellant was present at the place of occurrence when the police arrived and was arrested there. He gave out that the police had interrogated the accused at the time of arrest and the report at the instance of Intizar Hussain was registered thereafter. The hatchet, according to him, was recovered on tile following day at 9-00 or 10-00 a.m.
8. Maula Bakhsh, A.S.I. Who had registered the case and submitted the challan to Court after completion of investigation, appeared as P.W.8. During cross-examination he admitted that he had not joined the Lumberdar or the Chowkidar at the time of recovery of crime weapon. According to him, 8-9 persons had assembled at the time of recovery while the were and children of the appellant also were in the house of the accused.
The statements of the remaining P.Ws. Are more or less of a formal 'nature.
9. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Although, initially he opted to adduce evidence in defence yet later declined to do so. He opted not to make statement on oath under section 340(2), Cr.P.C.
10. We have gone through the evidence with the assistance of learned counsel for the appellant and have considered the contentions raised by learned counsel for the parties. Apart from the medical evidence the only evidence, which can connect the appellant with the crime is ocular account deposed to by Intizar Hussain complainant and that of recovery of hatchet P.4 deposed to by P.W.6 and P.W.8.
11. Intizar Hussain who, according to the prosecution, had lodged the report at the police station, candidly gave out at the trial during examination-in-chief as well as during the cross-examination that the F.I.R., had been recorded at the spot. He also gave out that the same had been done, after preliminary investigation. In that regard, P.W.5 also stated that the statement of the complainant was recorded at the spot after the police had taken the accused into custody, interrogated him and enquired from the persons present there.
12. A bare reading of the statements of the two witnesses leaves no room to doubt that the F.I.R. In this case was recorded at the spot, after consultations and deliberations. Intizar Hussain is son of real sister of the deceased. He was residing with his parents at a distance of one furlong from the house of the deceased. He admitted that he had gone to the spot after hearing the noise, although later he changed that stance. The uncorroborated testimony of a related witness in the light of the fact that the F.I.R. Was recorded after consultations and deliberations, in our view, cannot safely form the basis for sustaining the conviction of the appellant, particularly so when the evidence of recovery of crime weapon also does not inspire confidence. In that, the stance of the A.S.I. That the appellant had been arrested on 28-2-86 and the weapon of offence was recovered on that day, stands contradicted by the testimony of P.W.5, according to whom the appellant had been arrested by the Police on the very first day, i.e. 26-2-86 and he had got the hatchet recovered on the following day morning. In fact the claim of the ASI that the appellant had been arrested by him on 28-2-86 stands contradicted by the testimony of PW6 as well, who stated during the cross--- examination that Mst. Zaitun were of the appellant had brought Rafiq and Wakeel brothers of the appellant after the expiry of Mst. Hafizan and that they had confined him in a room.
After having applied our mind carefully and considering all aspects of the case minutely, we are convinced that it would be highly unsafe to maintain the conviction of the appellant on a capital charge, on the evidence, which is contradictory and does not inspire confidence. The appeal filed by the appellant, is therefore, allowed and he is acquitted of the charge. He shall be released forthwith if not required in any other case.