RAJA AFRASIAB KHAN, J.-- Muhammad Tayyab (30) son of Muhammad Shafi was tried by Ch. Iftikhar Hussain, learned Additional Sessions Judge, Faisalabad, for the murder of his were Mst.
Akbari Bibi (30). By Judgment dated 4-2-1988 the learned trial Judge convicted and sentenced the appellant to death plus a fine of Rs.10,000 or in default thereof to suffer two years R.I. Under section 302, P.P.C. It was directed that in case of recovery of fine it shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. Muhammad Tayyab has appealed against his conviction and sentence. The learned trial Judge has sent a reference under section 374, Cr.P.C. For confirmation of death sentence of Muhammad Tayyab. We propose to dispose of both the matters together by this judgment.
2. The prosecution story is that Rehmat Ullah complainant is the resident of Chak No. 351/G.B., Nagra Police Station Rajana. His daughter Mst. Akbari Bibi was married to Muhammad Tayyab about ten years ago. She had given birth to two sons and two daughters. She lived with her husband but the couple had strained relations. The complainant used to effect compromise between them of and on. Muhammad Tayyab had a strong suspicion that his were was not of good moral character. About a few days ago, they quarrelled with each other. On 17-4--1986 at about 8 a.m., Rehmat Ullah, Abdul Hameed and Muhammad Mushtaq came to Chak No. 198/RB for effecting a compromise between the husband and were. The differences,, were patched up by the witnesses. At about 5 p.m. On the same day, Muhammad Tayyab and Mst. Akbari Bibi went to Faisalabad on their Rehra in order to purchase doors and windows. At about 8 p.m., Rehmat Ullah went out to find out as to why the couple had not returned home. Abdul Hameed and Muhammad Mushtaq also accompanied Rehmat Ullah. When they covered about 3/4 Acres from Blue Star Petrol Pump, they saw a cart being driven on their left side. They suspected that the cart was that of Muhammad Tayyab. They chased it and heard a cry. Immediately, they rushed towards the cart only to find that Muhammad Tayyab had over-powered Mst. Akbari Bibi and was cutting her throat with a sickle, On an alarm, Muhammad Tayyab left the victim and disappeared along with his sickle. The witnesses tried to apprehend the accused but he succeeded in running away swiftly. He also took away the ear-rings of Mst. Akbari Bibi. Mst. Akbari had fallen down from the cart and lot of blood was oozing out from her wound. She died on the spot. On the statement of Rehmat Ullah complainant. P.W.12, Javed Nisar S.I./S.H.O. (P.W.10) registered the F.I.R. Exh P.H. At Police Station Nishatabad, Faisalabad. Positive reports of the Chemical Examiner and Serologist vide Exh. P.M., Exh.
P.N. Exh. P.O. Exh. P.Q. Exh. P.R. And Exh. P.S., were tendered in evidence by the prosecutor.
3. Dr. Muhammad Anwar Khan P.W.1 conducted the post-mortem examination upon the dead body of Mst. Akbari Bibi and found the following injuries on it:
(1) Cut throat 19 c.m. x 5 c.m. x bone deep horizontally middle front of neck. Trachea and Oesophagus, larynx, pharynx and big vessels on both sides of the neck were cut.
(2) Lacerated wound 3/4 c.m. x 1/2 c.m. Laceration through lobule of right ear.
(3) Lacerated wound 2 c.m. x 1-1/2 c.m. x bone deep right side of head.
(4) Incised wound 4 c.m. x 1/4 c.m. x scalp deep on left side of head.
Death occurred due to shock and haemorrhage as a result of injuries Nos. 1 to 3, which were sufficient to cause death in the ordinary course of nature. It was also opined that the injuries were responsible for death individually as well as collectively. Injuries Nos. 1 and 4 were caused by sharp edged weapon while injuries Nos. 2 and 3 were inflicted by blunt weapon. All the injuries were ante- mortem. Probable time between injuries and death was instantaneous and the time that elapsed between death and post-mortem examination was about 18 to 22 hours.
4. Eye-witness account was provided by Rehmat Ullah P.W.12 and Abdul Hameed P.W.13 The appellant while making a statement under section 342, Cr.P.C. Denied the allegation levelled against him. He took the plea that Mst. Akbari Bibi left his house in his absence. At evening time, he started search of his were. He stated that on Loudspeaker in the village mosque an announcement was made about death of his were. He also disclosed that dead body of Mst. Akbari Bibi was lying in the nearby field of the village. He in the company of co-villagers went to the fields from where dead body of Mst. Akbari Bibi was brought to the office of Union Council. An, information was also sent to police. The police reached the spot. The complainant,, Rehmat Ullah was also summoned by the police. He stated that he had strained relations with his father in law on the ground that his uncle Muhammad Sharif had abandoned Mst. Amna, a relative of the were of the complainant Rehmat Ullah. Rehmat Ullah expressed a suspicion against the appellant that Mst. Akbari Bibi might have been murdered by him. It was further disclosed by the appellant that he was subjected,, to severe torture by the police. He pleaded his innocence. However no evidence in defence was led by the appellant.
5. It is contended by the learned counsel that the case against the appellant is highly doubtful inasmuch as there is absolutely no evidence to connect him with the commission of the crime. The learned State counsel defended the conviction and sentence of the appellant.
6. We have heard the learned counsel for the parties at considerable length and have carefully gone through the record. The evidence of Dr. Muhammad Anwar P.W.1 has assumed considerable importance in the case because of nature of injuries found on person of deceased. As per medical evidence injuries Nos. 1 and 4 were caused by a sharp edged,, weapon whereas the remaining injuries were inflicted by a blunt weapon. It has been opined by the Doctor that injury No. 3 must have been caused,, by some heavy blunt weapon. In this connection, sickle P.1, the weapon of offence, was shown to the Doctor (P.W.1) and according to him the said sickle was not a heavy weapon with which injury No. 3 could be caused. Similarly, the Doctor opined that injuries,, Nos. 1 and 4 could not be caused by a sickle because there were no jagged margins of the wound on the dead body. He also conceded that there were no such marks,, in injures Nos. 1 and 4. The medical evidence has thus totally negated the eye-witness account of Rehmat Ullah P.W.12 and Abdul Hameed P.W.13. This would lead us to hold that Rehmat Ullah and Abdul Hameed did not see the occurrence at all. The prosecution case is that the appellant Muhammad Tayyab was seen while inflicting injuries to Mst. Akbari Bibi with a sickle. The ocular account is, therefore, not in line with the medical evidence. We, accordingly, reject the eye--witness account. It is in the evidence that a compromise was effected between the appellant and his were (deceased) and that they were living together happily. This being so, the prosecution story even otherwise does not fit in the facts and circumstances of this case. Possibility of murder of Mst. Akbari Bibi by some unknown person, therefore, cannot be ruled out.
7. Conclusion of the above discussion is that the prosecution has failed to. Prove its case beyond reasonable doubt against the appellant. Resultantly, the conviction and sentence of the appellant is set aside and he is acquitted. He shall be released forthwith provided of course he is not required in some other criminal case. The appeal succeeds and is allowed. The death sentence of the appellant is not confirmed. The Murder Reference is answered in negative.