MUHAMMAD MUNIR KHAN, J.--- This Criminal Appeal No.81 of 1988 and the connected Murder Reference No.10 of 1988/BWP, arise from the judgment of learned Additional Sessions Judge, Rahimyar Khan, whereby he on 3-10-1988 convicted Mst. Razia Bibi (28) appellant under section 302, P.P.C. For the murder of Ali Ahmad, her husband and sentenced him to death. No direction for compensation was made.
2. The occurrence took place on 24-11-1987 at 2-30 a.m. In the house of Ali Ahmad deceased situate in Aslam Colony Khanpur at a distance of 2 k.m. From Police Station City Khanpur. F.I.R. Exh. P.B. Was lodged by Muhammad Ibrahim, brother of the deceased at Police Station Khanpur City on the same day at 3-15 a.m. And was recorded by Munir Afzal Khan, S.I. P.W.9.
3. The background of this occurrence was that Mst. Razia Bibi appellant was having illicit relations with one Nazar Hussain. Nazar Hussain had promised to marry her but 4/5 days before the occurrence, he married some other woman. So the appellant planned to kill her husband and substitute Nazar Hussain as murderer in her place.
4. Ali Muhammad deceased used to live in Aslam Colony Khanpur. Muhammad Ibrahim P.W.2 was the resident of Chak No.39/I-L, Tehsil Khanpur. Muhammad Arshad P.W.3 is resident of Satellite Town, Khanpur. Muhammad Afzal is resident of Chak No.93/I-L, Tehsil Khanpur. The deceased was the brother of Muhammad Ibrahim P.W.2. Muhammad Arshad P.W.3 was tenant of the deceased.
Muhammad Afzal P.W.4 is not related to the deceased.
5. As for the main occurrence, it has been stated that on the eventful day, Muhammad Ibrahim and Muhammad Afzal P.Ws. Came to Khanpur to make purchases. Since they became late in night, so, they decided to stay in the house of Ali Muhammad deceased. Muhammad Arshad P.W.3 on having learnt that Muhammad Ibrahim and Muhammad Afzal were in the house of the deceased came to see them. They took meal in the house of the deceased. Since there was no arrangement for the stay of the guests in the house of the deceased, so, the three aforementioned guests slept in the adjacent house of Abdul Ghani. All Muhammad deceased remained with them in the house of Abdul Ghani till 9-00 p.m. Thereafter, he left for his house. Shortly thereafter, Muhammad Ibrahim P.W.2, Muhammad Arshad P.W.3 and Muhammad Afzal P.W.4 heard alarm coming from the house of the deceased. They rushed to his house and found Mst. Razia holding Ali Muhammad deceased from his shirt. Ali Muhammad was saying that Mst. Razia had illicit relations with Nazar and she should discontinue her relations with him, whereas Mst. Razia was shouting that she would not break her relations with Nazar. The aforesaid witnesses patched up the matter and came back to the Baithak of Abdul Ghani. It was about 2/2-30 a.m. When they heard the cries of Ali Ahmad deceased. They ran to his house. The house was closed from inside. Muhammad Ibrahim scaled over the wall and opened the door. Then all the three P.Ws. Entered the room of occurrence. The lantern was burning. They saw that Mst. Razia Bibi was giving Bughda blows, on the neck of Ali Ahmad, who on receiving injuries stood up and fell down near the door and succumbed to the injuries. They apprehended Mst. Razia Bibi and kept her there in private arrest and Muhammad Ibrahim went to the police station to lodge the report.
6. After the registration of the case, Muhammad Munir Afzal S.I. Came to the place, of occurrence.
Muhammad Arshad P.W. Produced blood-stained Bughda Exh.P.2, which he had snatched from the appellant before the police, which were taken into possession vide memo. Exh. P.C. Attested by Muhammad Ibrahim P.W.2, Muhammad Arshad P.W.3 and Muhammad Afzal P.W.4 and Munir Afzal S.I. P.W.9. The police also took into possession Razai Exh.P.4, Palangposh Exh.P.3 vide memo. Exh. P.E.
Attested by Muhammad Arshad P.W.3, Muhammad Afzal P.W.4 and Munir. Afzal, S.I. P.W.9. The police also took into possession lantern Exh.P.5 from the place of occurrence vide memo. Exh. P.F. Attested by the same witnesses.
7. On 24-11-1987 at about 2-30 p.m., Dr. Muhammad Mansha, P.W.10 conducted post-mortem examination on the dead body of Ali Ahmad. He found following injuries on his person:-- (1)An incised wound on the right side of the face of the neck 6 x 3 c.m. x bone deep. All the big vessels were cut. Vertebrae was visible. No hasitation cuts. Blood (serum) was coming out of the found.
(2)An incised wound on the right side of the neck at the level of hyoid bone laterally measuring 5 x 2 c.m. x muscle deep. All blood vessels were cut. Blood was coming out from this wound:'
Instead of giving opinion about the cause of death of the deceased, which was very much apparent, the doctor sent the visceras of the dead body for detection of tranquilliser or poison. At the time of trial, the doctor stated that the injuries found on the body of the deceased were sufficient to cause death in the ordinary course of nature and were caused by sharp-edged weapon.
8: To prove its case, prosecution produced 9 witnesses. Muhammad Ibrahim P.W.2, Muhammad Arshad P.W.3 and Muhammad Afzal P.W.4 have given the ocular account of the occurrence. They claim to have seen the appellant causing injuries with Bughda on the person of the deceased. They claim to have overpowered and apprehended Mst. Razia Bibi with blood-stained Bughda on the spot. The aforesaid 3 eye-witnesses have also proved the production of Bughda Exh.P.2 by Muhammad Arshad P.W. Before the police. The Chemical Examiner Report Exh. P.M. Shows that the Bughda was not stained with `blood. Dr. Muhammad Mansha P.W.10 has proved the post-mortem examination report. The rest of the evidence is of formal nature.
9.When examined under section 342, Cr.P.C. She denied all the incriminating circumstances and raised the plea of false implication. She did not produce any witness in defence.
10. Believing the prosecution case and its evidence and disbelieving the defence plea of false implication, the trial Court has convicted and sentenced the appellant as stated above.
11. Learned counsel for the appellant submits that the eye-witnesses were not present at the time of occurrence; that the story of the arrest on the spot of the appellant stands falsified by the Chemical Examiner's Report to the effect that Bughda which allegedly was snatched from the appellant, thereafter, kept by Muhammad Arshad till the arrival of the police and then produced to the police on the spot, was not stained with blood and that there is no corroboration of the ocular evidence. Learned counsel for the State has supported the judgment of the trial Court.
12. We have carefully attended' to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence produced by the prosecution, the statement made by the appellant and the circumstances appearing in the case. We feel that the prosecution has not been able to prove its case beyond reasonable doubt for the reason that the occurrence took place at 2-30 a.m. On the night between 24/25-11-1987 when the three eye-witnesses, who are not the residents of the Colony where the occurrence took place, normally would have been sleeping in their houses far away from the place of occurrence--- The conduct of the appellant killing the deceased knowing that her brother, tenant and friend are sleeping nearby runs counter to the natural probabilities. Had they been present nearby then Mst. Razia appellant would not have killed the deceased on the same night. Her husband used to sleep in the same house and she could kill her at any time. If it is assumed that the eye-witnesses were sleeping in the house of Abdul Ghani and on hearing the alarm raised by the deceased, had come to the house and had entered into the house of the deceased after scaling over the wall and opening the door even then in view of the short number of the injuries, i.e. 2, which could have been inflicted within a few seconds on a sleeping person, there was no opportunity and occasion for them to see the actual infliction of the injuries on the person of the deceased by the appellant. Furthermore, the eye-witnesses claim to have arrested her red-handed and have snatched blood-stained Bughda from her on the spot.
Thereafter the Bughda remained with Muhammad Arshad P.W. And the police. There was no occasion to wash the blood from Bughda. Had the occurrence taken place in the manner stated by the eye-witnesses and had Bughda been snatched from the appellant at the time of occurrence on the spot, then the Chemical Examiner's Report must have been positive. The negative Chemical Examiner report with regard to blood on the Bughda by itself throws reasonable doubt on the correctness of the entire prosecution case. There is nothing in the statements of the eye-witnesses that Mst. Razia had killed her husband in order to implicate her paramour Nazar Muhammad, who by deceiving her had contracted marriage with other woman. The F.I.R. Is not a -substantive piece of evidence. Muhammad Ibrahim P.W.2 has clearly stated that after her arrest, they had not talked with the appellant. On our assessm ent of the evidence and the circumstances, we find that there is a confusion and darkness all around the occurrence.
Pursuant to the above discussion, there being no satisfactory basis to uphold the conviction and sentence of the appellant, the appeal is accepted and by giving her benefit of doubt, the appellant is acquitted of the charge. She shall be released forthwith, if not required to be detained in any other case.
Death sentence is not confirmed