SH. KHIZAR HAYAT, J.--- Ghulam Rasool son of Ghulam Qadir caste Jammon resident of Mandi Sadiq Ganj, Tehsil Minchinabad, was tried and convicted by Additional Sessions Judge, Bahawalnagar, vide his judgment, dated 21-3-1987, for the murder of Mst. Nawab Bibi and sentenced to death and a fine of Rs.10,000 or in default thereof to undergo 2 years' R.I. He has appealed to this Court. We have also before us a reference made under section 374, Cr.P.C. For confirmation of death sentence of the appellant. We propose to dispose of the appeal as well as the reference by this single judgment.
2. The prosecution story as disclosed at the trial was that Mst. Nawab aged 65/70 years used to live in village Hama Khera, District Bahawalnagar, with her son Khadim Hussain, complainant. On 20-11- 1986, at about evening time the complainant was packing up luggage, etc., for taking it to Bhaini Haji Waryamwali situate near Mandi Sadiq Ganj on his tractor-trolley, when Ghulam Rasool (appellant) happened to visit his house on a motor-cycle: The complainant served him with tea and when the appellant got ready to leave for Mandi Sadiq Ganj the complainant requested him to take his (complainant's) mother Mst. Nawab Bibi with him and leave her at Bhaini Haji Waryamwali and that he would follow them shortly. He gave her a cash of Rs.5,000 and a Kentha of gold to be taken with her. The appellant made Mst. Nawab Bibi (deceased) sit on the rear seat of his motor- cycle and left. The complainant reached Bhaini Haji Waryamwali at about Maghribwela but did not find his mother to have arrived there. He, therefore, started searching for her at Mandi Sadiq Ganj and village Dubwala but neither his mother nor Ghulam Rasool (appellant) was traceable.
However, in last part of the night, Nazar Muhammad and Ahmad Rafiq P.Ws. Informed him at Dubwala, the village where his in-laws also resided, that on the previous evening, they were returning from Mandi Sadiq Ganj and in the way, near the bridge of Rajbah Bholeywala, they heard cries of a woman. They rushed in that direction and saw Ghulam Rasool running away on a motor- cycle carrying a knife and bag after murdering Mst. Nawab Bibi. At this the complainant alongwith Nazar Muhammad and Ahmad Rafiq P.Ws. Reached the spot and found the deceased Mst. Nawab Bibi lying in a pool of blood with her throat almost cut. Leaving the P.Ws. There, the complainant went to the Police Station Mandi Sadiq Ganj and lodged F.I.R. (Exh. P.C.) there at 8-15 a.m., on 21-11- 1986, recorded by Allah Bakhsh, Inspector (P.W.8). It was also stated in the F.I.R. That Ghulam Rasool (appellant) had murdered his mother to take away a sum of Rs.5,000, a Kentha of gold and ear- rings of gold which she had on her person.
3. Allah Bakhsh, Inspector (P.W.8), after registerting the F.I.R. (Exh. P.C.) visited the spot at 8-45 a.m.
Lie secured blood-stained earth from there under memo. Exh. P.F. And sent the dead body under police escort after preparing the injury statement and inquest report of the deceased, for post- mortem examination which was carried out by Dr. Afzal Ahmad Bashir (P.W.2) vide post---mortem report (Exh.P.A.). The appellant was produced before him on 28-111986 at the police station whom he arrested and removed blood-stained shirt (P.6), blood-stained Shalwar (P.7) and blood-stained sweater (P.8) from his person and seized them under memo. Exh. P.H., in the presence of Muhammad Yasin (P.W.10) and Muhammad Nawaz (P.W.11). On 1-12-1986, the accused while under custody led to the recovery of blood-stained knife (P.9) from his house which was seized under memo. Exh. P.J. And on the same day he got recovered a bag (P.10) containing 50 currency notes of the denomination of Rs.100 each (P.11/1-50), Kentha of gold (P.12) and ear-rings of gold (P.13/1-2) which were secured under memo. Exh. P.K. These recoveries were also witnessed by Muhammad Yasin (P.W.10) and Muhammad Nawaz (P.W.11). It may be mentioned that the blood-stained earth removed from the spot, blood-stained clothes removed from the person of the appellant and blood-stained knife (P.9) were found by the Chemical Examiner and the Serologist vide their reports (Exh. P.L. And Exh. P.M.) as stained with blood of human origin. After completing the usual investigation the challan was put in Court.
4. At the trial, the prosecution, in order to prove its case, examined 12 witnesses. Dr. Afzal Ahmad (P.W.2) who conducted autopsy on the dead body of Mst. Nawab Bibi noted following injuries on it:- --
(1) There was a clear cut incised wound, were open neck completely cut with sharp weapon starting from left side 4 c.m. Below the lobule of ear and passing to the close of the lower mandible and front of neck upto 6 c.m. Below the lobule of the right ear. All the vital arteries and veins, nerves were completely cut. Thyroid glands, hyoid bone, trachea, oesophagus cut completely.
Oesophagus retracted at sterno clavicular notch. Heave blood, which was clotted was found.
Vertebrae were visible and the side muscles were also completely cut.
(2)Various bruise marks present on back.
(3)Multiple small bruises were present on right calf.
(4)Post-mortem staining was present on the dependent parts. Rigor mortis was present.
Khadim Hussain (P.W.6), Nazar Muhammad (P.W.7) and Ahmad Rafiq (P.W.8) narrated the facts as mentioned in para. 2 above. Muhammad Nawaz "P.W.11) deposed to about the recoveries of incriminating articles made from the accused. Muhammad Yasin (P.W.10), the other recovery witness, however, did not support the prosecution case and was declared hostile.
5. The accused when examined under section 342, Cr.P.C., denied the allegations. He also denied the recoveries alleged to have been effected from him and professed innocence. When asked, why the P.Ws. Have deposed against him and why this case was brought against him, he replied:-- "About three years before this occurrence Muhammad Shari, my brother-in-law was murdered and Abdus Sattar, uncle, Muhammad Majeed and Muhammad Rashid cousins of Khadim Hussain P.W., I and my brother Fazil were prosecuting that case. Khadim Hussain and others had grudge of that. I have been falsely involved in this case due to that grudge. It was a blind murder. Nobody witnessed the occurrence. The dead body was seen by persons of the locality and informed the police about it on the next day. I was arrested from my shop. Recoveries have been planted upon me in order to create corroborative evidence against me. It is also a fact that Mst. Nawab Bibi deceased got divorced were of Khadim Hussain and the ex-in-laws of Khadim Hussain P.W. Had enmity with the deceased and Khadim Hussain P.W. They had also other enmities in the village. The P.Ws. Have deposed against me due to enmity and their relationship with the deceased:"
He did not appear under section 340(2), Cr.P.C., in disproof of the allegations nor did he examine any witness in his defence.
6. Learned trial Court on consideration of the material on record discarded the recovery of blood- stained clothes said to have been removed from the person of the appellant at the time of his arrest but believing the remaining recoveries, the evidence of last seen furnished by Khadim Hussain (P.W.5) and the eye--witness-account furnished by Nazar Muhammad (P.W.6) and Ahmad Rafiq (P.W.7) convicted and sentenced him, as indicated in para. 1 above. Hence this appeal.
7. We have heard learned counsel for the appellant as well as for the State and perused the record.
8.The prosecution mainly relies on the following pieces of evidence:-- (a)Evidence of Nazar Muhammad (P.W.6) and Ahmad Rafiq (P.W.7) who stated to have seen the appellant running away from the spot on a motorbike; (b)Evidence of last seen furnished by Khadim Hussain, complainant (P.W.5), son of the deceased; and (c)Incriminating recoveries, deposed to by Muhammad Nawaz (P.W.11) and Allah Bakhsh, Police Inspector (P.W.8).
9. The most important evidence in this case is that of Nazar Muhammad (P.W.6) and Ahmad Rafiq (P.W.7) who claimed to have seen the appellant running away on a motorbike carrying a bundle and a knife from the spot where dead body of the deceased was lying. Nazar Muhammad (P.W.6) is resident of village Massa Singh Kohna Tehsil Minchinabad. He is the husband of the daughter of the deceased while Ahmad Rafiq (P.W.7) lived in Hama Khera and his sister is married to Zafar, son of the deceased. On the fateful day, both the witnesses had gone to Mandi Sadiq Ganj for making certain purchases where they happened to meet each other and while returning home in the way they saw the occurrence and went to Hama Khera for informing the complainant about it.
Reaching Hama Khera they learnt that the complainant had gone to Bhaini Haji Waryamwali, 7/8 miles away, so they went there in his search but he was not available there as well. They went to village Dubwala where Khadim Hussain met them and they broke the sad news about the murder of his mother to him. The conduct of the witnesses that they had been searching for deceased's son from place to place leaving the dead body unattended without informing the police till 4/5 a.m., next morning, runs counter to the normal human behaviour and the story of searching the complainant seems to us as having been coined to cover up delay that he occasioned in lodging the F.I.R. Again, Nazar Muhammad (P.W.6) improved his version at the trial by saying that he had seen the appellant ` actually murdering the deceased. If it were so then he would have told this to Khadim Hussain, complainant, who in turn must have mentioned it in the F.I.R. But it is not there.
Furthermore, the witness is resident of village Massa Singh Kohna which is situate at a distance of about 3 miles towards north of Mandi Sadiq Ganj whereas the plaice of occurrence is situate towards south of Mandi Sadiq Ganj, and Mujtahid Hussain Patwari (P.W.4) clearly stated that if one goes from Mandi Sadiq Ganj to village Massa Singh Kohna, the place of occurrence would not fall in the way, hence Nazar Muhammad's claim that he saw the appellant murdering the deceased or the appellant running away from the spot, is false. Contrarily, Ahmad Rafiq (P.W.7) stated that he saw Ghulam Rasool (appellant) running away from the spot on a scooter from a distance and since it was dark, therefore, he guessed that what he held was a knife and what he picked up from the ground was a bag. Both the witnesses contradicted each other also on the point that at what place and time they informed the complainant about the occurrence. Nazar Muhammad P.W.
Stated that they went to village Dubwala and met Khadim Hussain in his own house where he was sleeping, whereas Ahmad Rafiq P.W. Stated that they had gone to the house of Muhammad Ramzan, father-in-law of Khadim Hussain who had called Khadim Hussain and then they broke the news of his mother's murder to him. Khadim Hussain, complainant, contradicted both of them saying that he was already sitting in the Baithak of his father-in-law Muhammad Ramzan when Nazar Muhammad and Ahmad Rafiq P.Ws. Came there and told him about the murder of his mother. Above all, it is hard to believe that Khadim Hussain instead of himself taking his mother to Bhaini Haji Waryamwali would send her with the appellant to the said Bhaini when he himself was to go there on his tractor-trolley the same evening. The improbabilities and material contradictions in the evidence of the P.Ws. Strongly suggest that the prosecution story does not ring to be true and the testimony of said P.Ws. Is not trustworthy.
10. As for the incriminating recoveries, we find that the learned trial Court has rightly ignored the recovery of blood-stained clothes of the appellant allegedly removed from his person at the time of his arrest as being doubtful on the ground that he was not expected to be wearing tell-tale clothes for 7 days after the occurrence. Likewise, we are not satisfied that knife (P.9) if at all used for commission of murder was kept unwashed for so many days. The currency notes (P.11/1-50) and Kentha of gold (P.12) do not bear any mark of identification. It may be pointed out that the prosecution case that these articles were recovered at the pointation of the appellant on 1-12-1986, is belied by the evidence of Muhammad Ashraf Moharrir, Police Station Mandi Sadiq Ganj (P.W.1) who says that on 28-11-1986 the blood-stained clothes, the ornaments and the cash of Rs.5,000 were received by him at the police station i.e. About 4 days before the alleged date of recovery (1- 1_1986).
11. There is yet another important feature of the case, namely, that the ear--rings of gold (P.13/1-2) arc riot proved to be belonging to the deceased which had been stolen away after she was murdered. According to the F.I.R., her ear-rings weighed two Tolas whereas Muhammad Yasin, Goldsmith (P.W.12) stated that the ear-rings (P.13/1-2) approximately weigh one Tola. He also admitted that receipt (Exh. P .W.12/1) was issued by him in favour of the brother of the appellant who had got ear rings made from him a few days after the occurrence. Therefore, these ear-rings are covered by the said receipt and seem to be belonging to the brother of the appellant rather than belonging to the deceased.
12. For what has gone above, we find that there is no eye-witness of the occurrence in this case and the different pieces of circumstantial evidence relied upon by the prosecution do not connect the appellant with the crime beyond reasonable doubt. Needless to say that circumstantial evidence can form basis of conviction only if it excludes all hypothesis of innocence of an accused but that requirement is not fulfilled. Hence the conviction of the appellant recorded by the trial Court on murder charge cannot be sustained. Consequently, we would allow this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith if not required to be detained in any other case. The death sentence is not confirmed and the reference is rejected. It is further directed that ear-rings (P.13/1-2) claimed by the appellant shall be returned to him. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.