Dost Muhammad, aged 70 years, was tried by Additional Sessions Judge, Sargodha, for having murdered his were Mst. Badshahi Bibi on 5-ti-1988 at 3-00 a.m. In his house in village Kundan at a distance of six miles from the Police Station Shahpur Saddar.
2. Learned trial Judge vide judgment, dated 5-3-1989 convicted him under section 302, P.P.C. And sentenced him to undergo imprisonment for life plus to pay a fine of Rs.5,000 in default whereof to undergo R.I. For one year.
3. The convict has filed appeal from jail.
Since nobody represents the appellant, I proceed to decide the appeal with the assistance of learned counsel for the State.
4. F.I.R. Exh. P.G. Was recorded at the police station by Abaidullah Khan S.I./S.H.O. (P.W.8) at the instance of Muhammad Ramzan (P.W.7) at 4-30 a.m. On 5-8-1988.
According to the F.I.R., Mst. Badshahi Bibi (deceased) daughter of the complainant was married to the appellant. She had given birth to four sons and a daughter. The complainant had come to the house of his daughter at 5-00 p.m. On 4-8-1988 accompanied by Sher Muhammad (P.W.6) and Allah Ditta (given up P.W.) from-his village Kumharanwala Khushab. They slept in the courtyard. An electric bulb was burning. At 3-00 a.m.' the complainant got up for evacuation. He saw the appellant standing in an angry mood near the cot of the deceased armed with a hatchet. He raised alarm whereupon both P.Ws. Were up. Within their view, the appellant gave hatchet blows to Mst. Badshahi Bibi on the left side of neck and right wrist. They caught the appellant and snatched the hatchet. Mst. Badshahi Bibi died lying on the cot.
Motive for the occurrence mentioned therein, is, that Dost Muhammad appellant wanted to sell the ornaments of the deceased for which she was not agreeable. The dispute was going on amongst them. The complainant had come on the message of his daughter to advise the appellant.
However, he had felt annoyed and murdered the deceased.
5. Abaidullah Khan S.I./S.H.O. After recording the F.I.R. Reached the spot. He despatched the dead body for post-mortem after preparing injury statement Exh. P.H. And inquest report Exh. P.I. Blood- stained earth was collected by him from the spot vide memo. Exh. P.D. Blood-stained hatchet P.4 produced before him by Sher Muhammad P.W. Was taken into possession vide memo. Exh.P.E The appellant was produced before him by the P.Ws. He was arrested by him there and then Challan was submitted to Court after completion of the necessary investigation.
6. Statements of 9 P.Ws. Were recorded at the trial.
(i) Dr. Sher Muhammad Rana, who had performed autopsy on the dead body at 4-00 p.m. On 5-8- 1988 appeared as P.W.1. According to him, the deceased was middle-aged woman of about 50 years. He had noted the following injuries on the body of the deceased:-- (1)Neck almost was separated from trunk at the root of the neck. Neck was attached with trunk on right side of the neck with seven c.m. (in width; strip of skin. Underneath all structures skin, muscles, blood vessel wind-pipe oesophaguse were cut down.
(2)Right hand was almost separated from right arm at the level of wrist, hand was attached with 5 c.m. (in width) strip of skin to arm on lateral side. Underneath all the structure skin, muscles, blood vessels and bones were cut down.
(ii)Vertebral column, spinal cord and larynx were found cut at the level of first cervical vertebral.
Whole vessels of neck were cut down. Muscles and bones of neck were also cut down.
(i.e) Death was opined to have occurred due to shock and haemorrhage resulting from injury No.1 which was opined to be sufficient to cause death in the ordinary course of nature: Injuries were opined to have been caused by sharp---edged weapon. Time between injuries and death was opined to be immediate while the time between death and post-mortem was opined to be within 12 hours.
7. Ocular account was deposed to by Muhammad Ramzan (P.W.7) and Sher Muhammad (P.W.6).
Muhammad Ramzan after repeating the facts given by him in the F.I.R. Claimed that he had witnessed the collection of blood-stained earth from the spot and taking into possession of hatchet P.4 by the S.H.O. During cross-examination, he admitted that one son of the deceased was a student while two sons and a daughter were married. He stated that he had not seen the son, who was a student. According to him, except the dispute regarding ornaments there was no other dispute between the deceased and the appellant. He stated that he had come to the house of the deceased on a wagon. According to him, Javed and Ghaus, sons of the deceased, had reached before the burial of the deceased. He denied the suggestion that some people had appeared before the police on the following day to prove the innocence of the appellant.
8. Sher Muhammad (P.W.6) corroborated the statement made by P.W.7 in so far as it pertains to the actual occurrence and taking into possession of the blood-stained earth from the spot and hatchet P.4 was concerned. During cross---examination, he stated that they had come to the village of the deceased on bus. According to him, they had gone to sleep at 8-00 p.m. When Dost Muhammad was not present in the house. He stated that he had got up on the noise raised by Ramzan and it was thereafter that the appellant had inflicted blows to the deceased. Ire expressed ignorance whether the deceased had sent any message to her sons about the dispute of ornaments with her husband. He denied the suggestion that Javed and Iqbal sons of the deceased and some other people had appeared before the D.S.P. To prove the innocence of the accused, Both P.W.6 and P.W.7 stated that when they had seen the appellant standing armed with a hatchet, he was in angry mood.
9. Abaidullah Khan S.H.O. Who had submitted the challan after completion of necessary investigation while appearing as P.W.8 after giving particulars of the investigation and the arrest of the accused stated during cross-examination that he had reached the spot at 5-30 a.m. And that daughter and sons of the deceased were present there alongwith others. However, in the next sentence, he stated that he did not know whether they were present or not. He, however, admitted that Ghaus Muhammad son of the deceased had identified the dead body of the deceased at the time of post-mortem examination. He expressed lack of knowledge about the presence of sons and daughter of the accused in the house during the night of the occurrence. He stated that he had not recorded the statements of the sons and daughter of the deceased. He denied that it had come to his knowledge that Ata Muhammad son of the sister of the accused had murdered the deceased due to dispute over relations (RISHTOON). He stated that clothes of the accused were not found stained with blood.
10. The appellant during statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question, "Why this case against you and the P.Ws. Have deposed against you?"
"P.Ws. Are the relatives of my were. They are interested witnesses. They are the residents of Khushab, which is at a distance of 8/9 miles from my house. They were not at all present in my house at the fateful day."
He stated as follows in answer to the question, "Have you anything else to say?"
"I am innocent. In fact my were was not ready to take the hand of daughter of Muhammad Saddique because that girl was not of good character. Ata Muhammad close relative of Muhammad Saddique was adamant to give the hand of daughter of Saddique, Mst. Khudija to my son Javed Iqbal. For the same reason Ata Muhammad had murdered my were. He is an influential person so he managed to falsely involve me in this case with the connivance of P.Ws. At the time of occurrence I chased Ata Muhammad but he succeeded to run away. I disclosed this fact to the police but none has listened to me:'
11. In the memo, of appeal, appellant has taken up the plea that during the night of the occurrence, his son Ghaus Muhammad and his sister's son Ata Muhammad had entered at 3-00 a.m. In his house. Ata Muhammad was armed with a hatchet and he had started giving blows to the deceased and that, when he had tried to catch Ata Muhammad, Ghaus Muhammad caught him (appellant' According to him, both of them caught him and forced him to accept the responsibility so that they escape liability. He also claimed that the eye-witnesses were not in his house al the time of occurrence, and had come in the morning and the Sub-Inspector had for mala fide reasons made them eye-witnesses.
12. I have considered the pros and cons of the case and the pleas advanced by the appellant after having gone through the evidence with the assistance of the learned counsel for the State.
13. 1t is in evidence that except the alleged dispute regarding the ornaments there was no other dispute between the deceased and the appellant. They had a long-standing marred companionship i.e. 35 years and during this period had not only reared the children but had married two sons and a daughter out of the four children. One of their sons was a student. It looks queer that a man of 70 years, would murder his were just for the reason that she; did not agree to sell her ornaments. 1n fact, the story of dispute about the sale of ornaments itself is not confident inspiring. In that, none stated as to why the appellant wanted his were to sell the ornaments. Two of his sons who had already been married were in service. The only daughter had already been married and was living in her house. In the circumstances, there could be no pressing necessity for the appellant to ask his were to sell the ornaments. There is no evidence that he had any bad habits. The persons i.e. The sons and daughter of the deceased who could have correctly stated about the dispute between their parents were not examined nor their statements were recorded in spite of the fact that they were available. The stance of the S.I. That they had not joined the investigation and so he had not recorded their statements is without any force because for joining the investigation they had not made any special arrangements. All that they were to do was that they should have been available, which they were. It is admitted by the P.Ws. That the sons and daughter of the deceased had come to the house. In fact, S.I. Stated that when he had gone there, sons and daughter were present. Although in the next breath he stated that he did not know.
14. The prosecution also failed to explain as to whether the son of the deceased who was a student was not at home on the night of the occurrence. He was definitely residing with his parents. He would have been in the house. His absence had to be explained particularly when all the witnesses named in the F.I.R. Including the complainant belonged to a different village. The failure of the prosecution to do so casts doubt on the veracity of the version of the prosecution.
15. Both the eye-witnesses are residents of village 8/9 miles away. They claimed that they had come to the house of the deceased on a message sent by her to her father Muhammad Ramzan (P.W.7). According to Ramzan, they had come to the house of the deceased on a wagon while according to Sher Muhammad they had travelled on a bus. Both expressed inability to give the number of the vehicle that they had travelled in. The statements of both the witnesses that when they had gone to sleep, the appellant was not in his house is unnatural because he could not have left his father-in-law and brother-in-law alone in the house. He would have rather remained with them to give them company and to attend them if at all they were there.
16. The stance of both the eye-witnesses that the appellant had not given any blow to the deceased till firstly Ramzan had got up and seen him standing in an angry mood armed with a hatchet and till the other man i.e. Sher Muhammad would rise after the noise raised by Ramzan and would see him standing in that annoyed mood, is unbelievable. If the witnesses could have caught the appellant after he had inflicted the fatal blow to the deceased they could well have made that attempt prior to that. Had they done so, they could have at least succeeded in not allowing him to inflict the second blow. Still another aspect of the case is that if the appellant had inflicted such injuries to the deceased from being so close to the deceased, stains of blood must have fallen on his clothes but according to the S.I. His clothes were not stained with blood at all.
17. The plea raised by the appellant in the memo. Of appeal that the S.I. Had played in the hands of the eye-witnesses and that he had excluded all possibilities for the appellant to prove his innocence fords support from the fact that the S.I. Did not care to record the statements of the sons and daughter of the deceased during investigation at least for coming to know as to what was the dispute between their parents. Moreover, they would have been the best persons to state at least that the eye-witnesses were guests in their house during the night of the occurrence and were there early in the morning. Yet another important aspect of the matter is that the prosecution did not even produce the son of the deceased to state that it was he who had identified the dead body of the deceased at the time of post-mortem. May be, this was done purposely for the reason that if he appeared at the trial he might disclose something to prove the innocence of the appellant.
18. For all the reasons noted above, grave doubts have arisen in my mind about the prosecution version of the occurrence. This appeal is, therefore, allowed and the appellant is acquitted by way of grant of benefit of doubt. He shall be released forthwith if not required in any other case.