The present appeal is preferred against the judgment dated 13-11-1989 by the Additional Sessions Judge-II, Bahawalnagar, whereby the appellant was convicted under section 302, P.P.C. And sentenced to imprisonment for life, and to pay a fine of Rs.5,000, or in default thereof to undergo further R.I. For two years. It was further directed that the fine, if recovered, was to be paid as compensation to the heirs of the deceased, Mst. Zareena Bibi.
The co-accused of the appellant, namely, Abdur Razzaq and Shah Muhammad, were acquitted by the same judgment.
2. The brief facts leading to the present case are that about 10/11 years ago, Mst. Zareena Bibi deceased was married with Muhammad Arif appellant, and out of the wedlock no male issue was born. About 1-1`2 months before the present occurrence she had gone to the house of the appellant. One day prior to the present occurrence, Muhammad Iqbal complainant had gone to the house of the appellant and inquired about Mst. Zareena Bibi. He was told by the appellant Muhammad Arif that she had gone to her parents' house. The complainant pointed out that she was not in her parents' house, and the appellant replied that she might be on her way to her parents' house. The complainant then went to the Police Station, Chishtian, for reporting the matter but in the way he came to know that the dead body of Mst. Zareena Bibi was lying at Bridge Fateh Canal near Chak No.109/F. Muhammad Arshad, A.S.I. Was present there, who recorded the statement, Exh.P.A. The dead body was identified by Muhammad lqbal complainant at the time of her post-mortem examination. The doctor did not report regarding the cause of death of the deceased and deferred the result till the receipt of the report from the office of the Chemical Examiner, and on receipt of the report from the office of the Chemical Examiner, he gave opinion that she, was strangulated and was thrown into the canal. Accordingly, the complainant reported the matter to the police station on 6-7-1988 at P.S. Doonga Boonga and then got the case registered against the appellant. The police investigated this case and made certain queries from the doctor regarding the cause of death. This did not satisfy the police and accordingly a Board was constituted by the directions of the District Magistrate, Bahawalnagar to determine the cause of death of Mst. Zareena. The Board did not give any opinion regarding the cause of death.
Ultimately, the police challaned the appellant and his co-accused, Abdur Razzaq and Shah Muhammad.
3. At the trial, the prosecution produced and examined as many as eight P.Ws. Jar. Saeed Ahmed, Medical Superintendent, D.H.Q. Hospital, Bahawalnagar was examined as a Court-witness.
4. P.W.1 was Muhammad Iqbal complainant in this case. He first of all reported the matter to the police on 22,5-1988 regarding missing of his sister, and made statement before Muhammad Arshad, A.S.I. He again got recorded his statement on 6-7-1988 at Police Station Doona Boonga and stated that the accused persons had murdered his sister, and they disposed of the dead body by throwing it in the canal. He also stated that the motive of the occurrence was that no male issue was born out of the wedlock and the wife and the husband had strained relations. He also deposed that after burial of the dead body, Khair Din P.W. Told him in the evening time that during night time between 22/23-5-1988 the husband and wife had a dispute with each other in the house and the appellant Muhammad Arif killed her. Later on he alongwith Khair Din and Ghulam Muhammad P.Ws. Etc. Came to the house of the accused persons and they made extra-judicial confession for murdering the deceased Mst. Zareena Bibi. They also made a confession that after the murder they had thrown away the dead body of Mst. Zareena Bibi in the canal.
5. P.W.2 Khair Din was a witness regarding the extra-judicial confession of the accused persons and he had deposed that on the day of occurrence he had heard the cries of Mst. Zareena Bibi and she was saying that she should not be killed, and he had also seen the appellant Muhammad Arif, and Abdur Razzaq and Shah Muhammad, co-accused, giving slaps to the deceased. He rescued her and went away. Later on he came to know that she had died. He also deposed that the accused persons begged pardon and mercy, and admitted /that they had murdered the deceased.
6. P.W.3 Ghulam Muhammad also deposed in the same manner as P.W.2. He was also a witness of extra-judicial confession made by the appellant, Muhammad Arif and Abdur Razzaq and Shah Muhammad, acquitted co-accused.
7. P.W.4 Syed Asghar Ali Shah, S.I. Had recorded the statement of Muhammad Iqbal complainant on 6-7-1988 at Police Station Doona Boonga. He started the investigation of this case, inspected the place of occurrence, got prepared the site plans in triplicate and arrested the accused' persons. He moved the Medico-legal Surgeon, Lahore, for report-mortem examination of the dead body of the deceased. He prepared incomplete challan.
8. P.W.5 Muhammad Abdullah, S.I./Inspector proved the formal statement recorded on 22-5-1988 at Police Station Chishtian on the statement of Muhammad Iqbal.
9. P.W.6 Muhammad Arshad, A.S.I., recorded the statement of Muhammad Iqbal on 25-5-1988. He proceeded to the place of occurrence, prepared the injury statement and inquest report. He despatched the dead body for post-mortem examination.
10. P.W.7 Dr. Zafar Iqbal, Medical Officer conducted the post-mortem examination on 25-5-1988 on the dead body of Mst. Zareena Bibi. In his opinion, the cause of death was deferred till the receipt of the report from the office of the Chemical Examiner. He gave the opinion that the time between death and post-mortem examination was about 40 to 72 hours. On 15-6-1988, on the request of the police he gave the opinion that death was due to asphyxia i.e. Obstruction of respiratory passage.
He also clarified that he gave this opinion as there was no soft tissue injury seen due to putrefaction of the body.
11. P.W.8 Faqir Muhammad Patwari prepared the site plans in triplicate
12. C.W.1 Dr. Saeed Ahmed, Medical Superintendent was a member of the Board which was constituted to determine the cause of death of the deceased. The Board was of the opinion:--
(i) That the presence of diatoms in (he report of the Bacteriologist to Government of the Punjab, Lahore, cannot be taken as for granted to say that the death was due to drowning.
(ii) That no other cause of death can be given at this stage of advanced decomposition of the dead body.
13. After the close of the prosecution case, statements of accused persons under section 342, Cr.P.C. Were recorded. Muhammad Arif appellant 'Admitted that he had been involved due to party faction in the family and that tic was innocent. He further submitted that Mst. Zareena Bibi had a minor dispute in the house and she committed suicide by throwing herself in Malikwah Canal. Her dead body was recovered on 25-5-1988. Muhammad Iqbal complainant under the influence of certain persons, namely, Wazir Ali etc. With whom he had party faction and rivalry got registered the false case against him and his co-accused with a delay of 1-1/2 months.
14. The other co-accused, namely, Abdur Razzaq and Shah Muhammad were real brothers of Muhammad Arif appellant, and they had endorsed the statement of Muhammad Arif appellant.
15. The learned counsel for the appellant, the State and the complainant were heard at length, and the record of the trial Court perused. The learned counsel for the State and the complainant had supported the impugned judgment and contended for maintaining the conviction and the sentence awarded to the appellant.
16. On the other hand, the learned counsel for the appellant vehemently called in question the legality and the propriety of the impugned judgment and submitted that there was no evidence whatsoever on the record to justify the conviction of the appellant and the sentence imposed on him as a result thereof. Submitted that the F.I.R. Exh.P.B. Was legally not an F.I.R. And that, in fact, the earlier recorded Exh.P.A. i.e. Raput No.15 registered at Police Station Saddar, Chishtian, and dated 25-5-1988, being the first information report in respect of the recovery of the deceased from the canal has to be treated as F.I.R. Further, submitted that there is no witness of last seen, the motive is not only weak but there is no corroboration of the same, the extra---judicial confession is an afterthought, and that the medical evidence fails to conclusively establish that the deceased, Mst.
Zareena had died of `asphyxia' i.e. By throttling as alleged. Further, submitted that the testimony of the P.Ws. Was full of contradictions and failed to advance the case of the prosecution in any manner. Further submitted that mere suspicion of the appellant having committed the offence was not enough to sustain the conviction and sentence in question and that, in fact, any doubt remaining unresolved should go to the benefit of the appellant. To support his contentions, the learned counsel for the appellant referred to the relevant evidence on the record.
17. The Court has given its anxious consideration to the contentions raised on behalf of the parties.
The submissions made on behalf of the appellant merit to be taken seriously as there is lot of force in the same. Therefore, they shall be dealt with at length.
18. As pointed out, the F.I.R., Exh.P.B. Was lodged on 6-7-1988 i.e. After a delay of almost one month and fifteen days after the alleged occurrence dated 22-5-1988. But the body of the deceased had been recovered from the canal in question and a Raput No.15, Exh.P.A., duly registered in respect thereof at Police Station Saddar, Chishtian, on 25-5-1988. Further, notice has been taken of the fact that in the said Raput lodged by the complainant, P.W.I, Muhammad Iqbal, real brother of the deceased, Mst. Zareena, himself, there is no mention of the witnesses subsequently named in the F.I.R. i.e. Khair Dill (P W.2) and Ghulam Muhammad (P.W.3) nor of the said witnesses having informed the complainant at Chishtian of having heard the appellant and his acquitted co- accused holding out a threat to the deceased that they will kill her at night, thus, creating serious doubts about the offence as alleged because of the self-contradictory statements recorded by the complainant in the Raput, Exh,P.A. And the F.I.R., Exh.P.B. As further pointed out the said eye- witnesses, namely, P.W.2 and P.W.3 have made many improvements in their statements that renders their testimony of doubtful value as well. For instance, the said P.Ws. Had stated before the trial Court that they had entered the house on the fateful night to rescue the deceased, whereas nothing of the kind had been stated earlier in their statements before the police and resultantly they were time and again confronted and the said contradictions highlighted during their cross- examination. Similarly, they had come up with a different version in respect of the information made to the complainant about the quarrel that they had witnessed or heard taking place between the accused and the deceased on the fateful night in their statements, Exhs.D.A. And D.B.
And the one made before the trial Court. Further, notice has been taken of the fact that there is no mention of extra-judicial confession in the Raput, Exh.P.A. Nor in the F.I.R., Exh.P.B., and, therefore, it is safe to infer that the same was an afterthought. The motive is not only implausible but no corroboration of the same is forthcoming in any manner on the basis of the evidence on the record. The medical evidence also fails to advance the case of the prosecution, as there is no conclusive evidence on the record to suggest that the deceased had died of `asphyxia'. In the post-mortem examination report, Exh.P.F., Dr: Zafar Iqbal (P.W.7) had failed to express any opinion as to the cause of death and had only subsequently stated in the Exh.P.G. That it `suggested of drowning', but had conceded in his cross-examination that if he had chemical examiner's report dated 2-6-1988 before him, he may have come to a different conclusion. Similarly, the special medical board had simply stated that because of the contradictions in the chemical examiner's report which had stated that there no diatoms had been found in the deceased, and the bacteriologist's report which to the contrary had conceded that the deceased carried diatoms, the cause of death could not be determined. Therefore, as the cause of death cannot be said in definite terms to be of `asphyxia', therefore, it cannot be said with certainty that the death of the deceased had occurred in the manner alleged by the prosecution.
19. Therefore as the testimony of the P.W.2, Khair Din and P.W.3, Ghulam Muhammad suffers from dishonest improvements and vital contradictions, rendering the same doubtful, and as extra- judicial confession and last seen evidence cannot be relied upon for the reasons stated above and as the medical evidence fails to establish with certainty the cause of the death of the deceased, the doubts so created about the case of the prosecution have to be resolved in favour of the appellant in keeping with the established principles of the safe administration of criminal justice.
Therefore, it is further held that the prosecution has failed to bring home the guilt as charged beyond reasonable doubt.
20. In pursuance to the above discussion, the present criminal appeal is allowed and the impugned judgment is hereby set aside. Resultantly, the appellant stands acquitted of the offence charged and shall be released forthwith, if not required to be detained in any other case.
N.H.Q./M-416/1