SARDAR MUHAMMAD DOGAR, J.--- Mst. Zareen Akhtar, sister of Muhammad Ayub (complainant) was married to Mukhtar Ahmad (appellant), 2 years prior to 17-11-1987, and in turn Muhammad Ayub was married to Mst. Aasia, sister of Mukhtar Ahmad. Mst. Aasia gave birth to two sons, first aged one year and the second aged one month. However, there was no issue from Mst: Zareen Akhtar. The 17-11-1987, Muhammad Ayub was at his godown in Octroi Post No.3, at 9-00 a.m. He received information that his sister Mst. Zareen had been murdered and her dead body was lying in the house of her husband. He went to the house of his sister in Mohallah Bhabhrana, and saw the dead body of Mst. Zareen lying on a cot, with her neck deeply cut. Both her feet were tied with a Dopatta. Quite a number of females and males including Haji Muhammad Aslam, Councillor, Sh.
Muhammad Iqbal, Chairman, 'Municipal Committee,. Jhang, Hafiz Muhammad Tariq and Sh. Allah Ditta were present there. Mukhtar Ahmad confessed his guilt in the presence of Muhammad Ayub and other respectable and presented his blood-stained shirt and Shalwar. Leaving the clothes with Chairman of the Municipal Committee, Muhammad Ayub proceeded to the police station to lodge the F.I.R. Ghulam Hyder, S.I. Met him at Adda Tonga, on the Circular Road at 10-15 a.m. He made statement Exh.P.A. To him. The S.I. Despatched the statement (Exh. P.A.) to' Jhang Kotwali, and proceeded to the spot. Sultan Sikandar, A.S.I: (P.W.3) on receipt of statement of Muhammad Ayub P.W.5, recorded formal. F.I.R. Exh P.A. l at 10-25 a.m.
2. The complainant while lodging the report stated that Mukhtar Ahmad wanted to go in for a second marriage as Mst. Zareen Akhtar had failed to give birth to a child but she (Mst. Zareen) did not agree. She also turned do" the demand of Mukhtar Ahmad to hand him over ornaments weighing 26 Tolas. The complainant stated that Mukhtar Ahmad had murdered his sister with a Chhuri,, on that account.
3. Ghulam Hyder, S.I. P.W.9 on reaching the spot despatched the dead body of Mst. Zareen Akhtar for post-mortem examination, after preparing injury statement Exh. P.J. And inquest report Exh. P.K.
Blood-stained shirt P.5 tied with the cot and blood-stained Dopatta P.6 with which legs of the deceased were tied, were taken into possession by him vide memo. Exh. P.G. Blood-stained shirt P.2 and Shalwar P.3 of Mukhtar Ahmad produced by Sh. Muhammad Iqbal, Chairman, Municipal Committee were taken into possession by him vide memo. Exh. P.E.
4. Mukhtar Ahmad was arrested on 22-11-1987. Chhuri P.1 got recovered by him on 5-1.2-1987 from near a water-pump in his house, was taken into possession by the S.I. Vide memo. Exh. P.D. The challan was submitted to Court after completion of necessary investigation.
5. Statements of ten P.W s. Were recorded at the trial.
Dr. Muhammad Sarwar, who had performed autopsy on 17-11-1987 at 4-45 p.m. Appeared as P.W.4.
He had noted following injuries on the body of the deceased
(1) An incised wound 16 c.m. x 5 c.m. On the front of neck extending to both sides, cutting the external juglar veins, medial part of both stern mastoid, both carotids, both internal juglar veins, trachea and oesophagus, up to the vertebral column.
(2) An incised wound 8.5 c.m. x 2 c.m. x muscle deep on the front of right shoulder.
(3) An incised wound 4.5 c.m. x 1 c.m. x muscle deep on the palm of left hand.
According to his opinion, death had resulted from shock and haemorrhage resulting from injuries Nos. l, 2 and 3. The injuries were opined,, to have been caused by a sharp-edged weapon. He had also removed vaginal swa bs and sent the same to the S.H.O. In a sealed cover.
Probable time between the injuries and death was opined to be immediate while the time between death and post-mortem was opined to be within about 4 to 6 hours.
During cross-examination, he stated that if a young healthy person, tied with a rope or some other article, struggles for rescue, he/she must sustain bruises and contusions. According to him injury No.1 was a fine cut as a result of one blow.
6. Muhammad Ayub complainant while appearing as P.W.5, by and large, repeated the facts given by him in the F.I.R. During cross-examination he stated that apart from Molialladars, he had also found P.W s. Sh. Muhammad Iqbal (Chairman, Municipal Committee), Sh. Muhammad Aslam, Hariz Tariq and Allah Ditta and Mukhtar Ahmad accused present near the dead body. The house of Hafiz Tariq P.W:, according to him, was in the second Mohalla, from the place of occurrence. He stated that the news of murder had spread in the city like fire. He conceded that there were many houses around the 'place of occurrence. He admitted that locker was broken and the ornaments of the deceased were found missing while the keys were lying outside the room.
The accused, according to him, was not arrested on the spot. His were, according to him, had continued living with him till one month before he made statement i.e. 12-4-1989. He admitted that the accused had not turned out his sister nor had she left the house, of her own accord in spite of the alleged differences. He also admitted that the accused had not sought permission from the Union Committee for contracting second marriage. The mother-in-law of the accused, according to him, used to live with him but on the day of occurrence she had gone to Lahore. He denied the suggestion that the case was registered after preliminary investigation and that he had made a false statement. He also denied the suggestion that the Mohalladars had been joined as suspects, in the investigation.
7. Hafiz Muhammad Tariq who appeared as P.W.7, stated that he was present in the house of the accused/deceased alongwith Sh. Muhammad Iqbal, Sh. Muhammad Asiam and Allah Ditta at 9-00 a.m. On the day of occurrence and that Mukhtar AhmIad had turned up there after the arrival of Muhammad Ayub P.W. And confessed in their presence, of having murdered Mst. Zareen Akhtar. He stated that Mukhtar Ahmad had produced his shirt P.2, Shadwar P.3 (blood--stained) before the Thanedar, who had taken the same into possession vide memo. Exh. P.E. He also claimed that the police had taken into possession, blood--stained earth, shirl P.5 and Dopatta P.6 (both belonging to the deceased) from the spot. During cross-examination he stated that the accused had made a confession before him, P.W s. And the Thanedar and had then produced his blood--stained clothes and slipped away. He denied the suggestion that the accused had not confessed his guilt before him or that he had made false statement.
8. Muhammad Yaqub P.W.6 brother of the deceased and the complainant claimed that he had witnessed the recovery of blood-stained Chhuri P.1 at the instance of the appellant' from his house and had attested the recovery memo. (Exh. P.D.). During cross-examination he stated that he had reached the place of occurrence on receiving information of murder at 10-00 a.m. According to him, the accused by that time had slipped away from the spot. During' cross---examination he denied the suggestion that he and his brother Ayub P.W. Had submitted application to the Superintendent of Police, Jhang complaining that the accused had been sent to the judicial lock- up without effecting the recovery of Chhuri from him: He admitted that parents and brothers of the accused alongwith their wives, were living in the house wherefrom the Chhuri was recovered. He denied the suggestion that no recovery of Chhuri was effected and that the same was planted.
9. Ghulam Hyder, S.I. Who had recorded statement Exh. P.A. Of the complainant, on the basis of which F.I.R. Exh.PA./1 was, recorded and had submitted challan to the Court after completion of investigation, appeared as P.W.9 and gave the details of the investigation. According to him the blood-- stained clothes of the accused were produced before him by Sh. Muhammad Iqbal.
During cross-examination, he denied the suggestion that locker of the dressing table was broken or that ornaments were missing. According to him everything was lying in order. While denying the suggestion that Allah Ditta P.W, had not supported the prosecution case, during the investigation, he admitted that he had not recorded his statement under section 161, Cr.P.C. While answering the questions about the recovery of Chhuri at the pointing out of the appellant, he stated that none from the Mohalla, wherefrom the recovery of Chhuri was effected, was joined in the recovery proceedings. He denied the suggestion that he had fabricated the evidence to strengthen the prosecution case.
10. Sh. Muhammad Iqbal and Sh. Muhammad Aslam P.W s. Were given up as having been won over.
The statement,, of the remaining P.W s. Are more or less of a formal nature.
11. The appellant during his statement under section 342, Cr.P.C. While admitting that he was married to the deceased in exchange of the marriage of his sister Mst. Aasia with Muhammad Ayub P.W. And that his were had not given birth to any child during the 2-year married life, 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 why the P.W. Have deposed against you'?
"On 17-11-19$7 when I was present at my shop at Kot Road, Jhang Sadar from 7-00 a.m. To 9-00 a.m. I was informed about the death of my were Mst. Zareen Akhtar. I rushed to my house and saw Hafiz Muhammad Tariq P.W., Muhammad Ayub complainant, some other persons of the Mohalla alongwith police present at my house. When I reached my house, I was arrested,, by the Police.
Later on I received information from my relatives that all the currency and ornaments belonging to me were also missing and the lock of my dressing table was found broken. All the P.W s. Are closely related to each other except Hafiz Muhammad Tariq, who is elected as Councillor from the vicinity of the complainant party."
He examined Muhammad Hanif, Constable and Mashir Ali, A.S.I. In defence. Muhammad Hanif while appearing as D.W.1 stated that the application received in the office of the D.S.P. Sadar, Jhang from Sh. Muhammad Ayub son of Haji Karam Elahi for the transfer of case F.I.R. No.413/87 dated 17-11-1987 under section 302, P.P.C., was sent to Police Station Kotwali, Jhang on 12-12-198 but it was never received back.
Mashir Ali, A.S.1. While appearing as D.W.2 produced Exh.D.B. Copy of the report submitted by Ghulam Hyder, S.I. On the application of Muhammad Ayub complainant, sent to him by the office of the 34P. The S.I. Reported in Exh. D.B. That the weapon of offence (Chhuri) had been recovered from the accused but the ornaments could not be recovered.
12. We have considered the contentions of learned counsel for the parties after having gone through the record with the assistance of learned counsel for the appellant.
As noted above, there is no ocular account of the occurrence. The prosecution case thus rests on the evidence of motive, evidence of extra-judicial confession, evidence of recoveries and the medical evidence.
13. The statements of Muhammad Ayub complainant and Hafiz Muhammad Tariq P.W. Are not only widely discrepant but contradictory also, with regard to the confession said,, to have been made before them and the other P.Ws., by the appellant in the house of the deceased where her dead body was lying. According to P.W.7, he alongwith Sh. Muhammad lqbal, Sh. Nlunammad Aslam, Allah Ditta and some others, was present at the spot when lvlukhtar Ahmad appellant `turned up' and made confession before them and the Thanedar, who had also arrived at the spot, while according to P.W.5 the accused had made the confession before him, Sh. Muhammad Iqbal, Sh.
Muhammad Adam, Hafiz Muhammad Tariq P W.7 and Sh. Allah Ditta.
According to P.W.5 the appellant had produced hip. Blood-stained clothes before Sh. Muhammad Iqbal and he had handed over tli;, same to the Thanedar at the spot on the arrival of the latter, while according to P.W.7 the accused after having made confession, had personally produced his blood-stained clothes before the Thanedar which the latter had taken into possession.
14. Apart from the fact that statement of both the witnesses are contradictory, with, regard to the confessional statement made by the appellant and production of his blood-stained clothes, the other important aspect is that deposition of P.W.7 with regard to the confessional statement of the appellant, is not admissible. As according to him the confession had been made in the presence of the Thanedar. It is a known proposition of law that confessional statement made before a Police Officer is not admissible,
15. There is not only a clear contradiction between the statements of the two witnesses about the production of his blood-stained clothes by the appellant, but the prosecution has suffered a setback because of non-production of Sh. Muhammad Iqbal P.W. As well, as according to the complainant it was Sh. Muhammad lqbal P.W. To whom the accused had handed over his blood- stained clothes, and it was he, who had handed over the same to the Thanedar.
16. The queer aspect of the case is, that how could the appellant have slipped away after having made a confession before so many witnesses, who were very influential persons, like the Chairman of Municipal Committee, and before many other Mohalladars, and after having produced his blood-stained clothes. Such a situation would have convinced anybody that he was the murderer.
Everybody would have become cautious and alert. In fact, some of them would have even pounced upon him. Still strange is the aspect that if the police was also there (as stated by P.W.7) and the appellant had produced his blood-stained clothes before the Thanedar after having confessed the guilt before him, how the police would have failed to take him into custody immediately? A bare reading of the statements of the witnesses, in this connection leaves a lot of room for doubting that such a thing could not have happened. In our view, it will be highly dangerous to accept this part of the evidence to maintain the conviction of the appellant.
17. The evidence of motive for the occurrence, in our view, is not worth acceptance. In that, P.W.5 who gave out the motive for the occurrence admitted during cross-examination that neither the appellant had turned out the deceased (his were) from his house for having not given birth to a child nor his sister had left the house of her husband for being pestered or annoyed. His admission that the appellant had never applied for permission to enter into second marriage, further makes his claim doubtful. It is also on record that sister of the appellant had continued living in the house of the complainant happily till one month before he (the complainant) made statement against him (the appellant). Had the sister of the complainant been unhappy or had there been casual disputes between the appellant and his were, it would have re-acted on the inter se relations of the complainant and his were, but no such thing can be inferred from the statement of P.W.5.
18. The evidence of recovery of Chhuri,, apart from the S.I. Was deposed to by a real brother of the deceased and the complainant. According to him the Chhuri,, was got recovered by the appellant from his house.
We have no hesitation in saying that the evidence of recovery is incongruent with the main prosecution evidence, in that, the claim of the complainant was that the appellant had made confession at the spot in his house and had produced his blood-stained clothes as well. It is not his case that he was wearing those clothes. If the accused could have produced his blood-stained clothes, why would he not have produced the Chhuri as well. The hiding of one article and production of the other articles, after having made a clean breast in the manner the prosecution has claimed, is not believable. The evidence of recovery of Chhuri in the circumstances, also does not advance the prosecution case..
19. The medical evidence, in turn, also makes the prosecution case doubtful, in that, the Dopatta with which the hands and legs of the deceased were tied, was not found stained with blood. Had she been murdered after having been tied with the Dopatta, some stains of blood would have definitely fallen on the Dopatta. The doctor did not note any signs of abrasions etc. Either on the wrists or legs of the deceased. It cannot be believed that the deceased would not have struggled when she was being slaughtered. In fact, she would have struggled even when she was being tied down.
The doctor during cross-examination stated that injury No.1 (on front of the neck) was a fine cut and the result of one blow. Had such an injury resulted from slaughtering with a Chhuri, the edges of the wound would have been irregular. The injury could only have been a fine rut if the same had resulted from a single blow with a heavy weapon.
20. The medical evidence in another way, also contradicts the prosecution version. In that, according to the opinion of the doctor, four to six hours had elapsed between the death and post- mortem.
The post-mortem was performed at 4-45 p.m. Going back by six hours, the occurrence would have occurred at about 10-10 a.m. Giving accepted margin of two hours more on either side, the occurrence would, at the best, have occurred at about 8-30 a.m.
It is the prosecution's case that the complainant had arrived some half an hour before 10-15 a.m.
When he made statement to the S.I. The accused was already at the spot when the complainant had gone there. According to P.W.7 the accused had turned up after they had reached the spot. It seems impossible to believe that the accused after having murdered the deceased at 8-30 a.m. Or sometime thereafter, could have been in such a composite mind that he would have gone to his shop after changing his clothes and then would have returned to the spot within less than an hour to make a confession before the respectable of the city and residents of the Mohalla.
21. The prosecution evidence is highly contradictory with regard to another aspect as well. In that, the stance of Muhammad Ayub P.W. (complainant) during cross-examination was that the locker was broken, ornaments of the deceased were found missing and the keys were found lying outside the room, while Hafiz Muhammad Tariq P.W.7 during cross-examination gave out that drawer of the dressing table was broken and a bunch of keys and a Hathori, lying inside the house, were picked up by the police. As against all that, the S.I. Categorically stated that everything was lying in order, locker and dressing table were not found broken and the ornaments of the deceased were not missing.
The doctor who had performed autopsy, had found the deceased wearing four golden bangles and two golden rings. The story of missing of ornaments, furnished by the complainant, therefore, falls flat.
For all the reasons noted above, grave doubts have arisen in our mind about the prosecution having proved the case against the appellant: The, appeal filed by him, is therefore, allowed and he is acquitted of the charge.
22. We would like to note here that before coming to the final conclusion we had also considered the aspect of the case that a heavy responsibility lay on the shoulders of the appellant to explain as to how his were was found lying murdered in his own house. The unfortunate aspect of the matter, which weighed with us for coming to that conclusion, only, was that we could not lay our hands on anything else connecting him with the commission of crime. The mere fact of the were having been fund lying murdered in his house, in our view, could not be considered enough to maintain the conviction on a capital charge.