SARDAR MUHAMMAD DOGAR, J.--- Muhammad Asghar (26) was tried by the Additional Sessions Judge, Sargodha, for having murdered Mst. Naheed Khalida on 5-3-1989 at 4-30 p.m. In a Khattan at a distance of 3-1/2 Karams from the Western bank of Lower Jhelum canal, in the area of Chak No.71/NB at a distance of 7 k.m. From Police Station Jhaal Chakkian, District Sargodha.
Vide judgment, dated 28-2-1990 he was convicted under section 302, P.P.C. And sentenced to death, plus to pay a fine of Rs.10,000 in default whereof to undergo R.I. For two years. He was further directed to pay a sum of Rs.20,000 as compensation to the heirs of the deceased, in default whereof to undergo R.I. For 6 months. The fine, on recovery, was also directed to be paid as compensation to the heirs of the deceased.
2. The appeal filed by the convict, the reference made by learned trial Judge for confirmation of death sentence and the revision petition filed by the complainant for enhancement of the amount of compensation are being disposed of together.
3. F.I.R. Exh.P.C. Was recorded at the police station by Muhammad Anwar Khan, S.I. P.W.9 on 5-3- 1989 at 5-00 p.m. On the statement of Muhammad Sarwar P.W.3 husband of the deceased.
According to F.I.R. The complainant had married the, deceased 9/10 years prior 'to the occurrence.
They had two sons and two daughters. The appellant used to visit the house of the complainant. He cultivated illicit liaison with the deceased. The complainant snubbed him 2/3 days prior to the occurrence and estopped him from visiting his house. Mst. Naheed Khalida used to attend Al- Farooq School (Private), Satellite Town, Sargodha, as she intended to appear in Matric Examination.
On the day of occurrence the complainant after leaving his wife in the school at-2-00 p.m. Went to his shop. He went to the school at 3-00 p.m. To bring back his wife. She was not there. On query, he was told that Muhammad Asghar (appellant) had taken her away on a motor-cycle. He went in search of his wife alongwith his brother Muhammad Aslam and Irfan Javed P.W: Sana Ullah P.W.
Met them at the Lower Jhelum canal. On inquiry he told them that he had seen the deceased going alongwith Muhammad Asghar on a motor-cycle on the western side of canal bank short while before that. The complainant and his companions went towards that. They reached near the canal bank at 4-30 p .m. And saw Muhammad Asghar giving knife blows to the deceased: The deceased was resisting and crying. They tried to catch Muhammad- Asghar but he escaped riding motor- cycle. Mst. Naheed Khalida died at the spot.
The complainant stated towards the end of the F.I.R. That Muhammad Asghar had murdered his wife as he had insulted him by stopping him from visiting, his house.
4. Muhammad Anwar Khan, S.I. P.W.9 after recording the F.I.R. Reached the spot and despatched the dead body for post-mortem examination after preparing necessary papers. He collected blood-stained earth from there, vide memo. Exh.P.D. During spot inspection he collected watch P.11, pen P.12, satchel, a text-book P.15 and rough note book P.14, belonging to the deceased and took the same into possession vide memo. Exh.P.E.
The appellant was arrested by him on 12-3-1989 from his house. Motor-cycle P.16 standing there was taken into possession by the Investigating Officer vide memo. Exh.P.G. Knife P.17 got recovered by the appellant on the same day from a place near the canal bank, was taken into possession by the I.O. Vide memo. Exh.P.H. Challan was submitted to Court after completion of necessary investigation.
5. Statements of nine P.Ws. Were recorded at the trial.
Dr. Shahid Manzoor who had performed autopsy on 6-3-1989 at 11-00 a.m. Appeared as P.W.6. He had noted 7 stab wounds, 7 incised wounds and 4 abrasions on different parts of the body of the deceased, including arms, hands, chest and neck.
Death was opined to have occurred due to shock and haemorrhage, resulting from rupture of pleura and both lungs, which had occurred due to injuries Nos.5, 6, 7 and 8. The said injuries have been defined as follows:-- "(v) Stab wound 3 in number, each 3 into one c.m. On left mamray gland, corresponding cut on shirt was present.
(vi) Stab wound 3 x 1-1/2 c.m. On right side of chest, 6 c.m. From right nipple of mamray gland, corresponding cut on shirt was present.
(vii) A stab wound 2-1/2 x 1 c.m. On the right side of chest; .6 c.m. Above injury No.6 with corresponding cut on the shirt.
(viii) A stab wound 2-1/2 x 1 c.m. On left upper chest 10 c.m. Above left nipple with corresponding cut on shirt."
The stab wounds and the incised wounds were opined to have been caused by a sharp-edged weapon while the abrasions were opined to have been caused by a blunt weapon. Probable time between injuries and death was almost immediate while the time between death and post- mortem was about 19 hours.
6. Ocular account was deposed to by Muhammad Sarwar P.W.3 and Irfan Javed P.W.4.
Muhammad Sarwar while repeating the facts given by him in the F.I.R. Gave out that they had gone in search of the deceased and the appellant, and reached the spot on motor-cycles. On confrontation with F.I.R. He was not found to have stated that they had gone there on motor-cycles.
He also claimed to have witnessed the collection of blood-stained earth and the articles belonging to the deceased from the spot. During cross-examination he admitted that there were two factions in the village, one of which was being led by Mushtaq Shah while the other was being led by P.W.
Sana Ullah. He denied the suggestion that Irfan Javed P.W. Was either related to him or Sanaullah P.W. He stated that he had come to know of illicit relations between the deceased and the appellant on having seen them sitting together in his house. While admitting that he had a lot of resentment in his mind about the conduct of the deceased, he stated that had he seen the deceased in a compromising position with anybody, he would have certainly murdered her: He stated that after having learnt from Farooq (owner of the school) that the deceased had gone away with the appellant, he returned to his shop and remained there for 10 minutes, talking to the P.Ws. And from there he went to his house alongwith them (the P.Ws.). He stated that before having met Sana Ullah they had searched for the deceased at the wagon-stand, Railway Station Kutchery Bazar and Amin Bazar, and thereafter had gone to a picnic point near Jhaal Chakkian, which was at a distance of 7 miles from the bridge of Lower Jhelum Canal. He stated that the appellant had given about 4/5 injuries to the deceased within their view, before running away. He gave the distance of the place of occurrence from his shop as about 4 miles. The suggestion that he had lodged a false report against the appellant about commission of murder of the deceased, was denied by him.
7. Irfan Javed P.W.4 corroborated the statement made by Muhammad Sarwar, in so far as it pertained to the pursuit of the deceased and the appellant and infliction of injuries by the appellant to the deceased at the place of occurrence. During cross-examination he stated that the complainant suspected that the appellant had developed illicit relations with the, deceased. He stated that they had searched for the deceased in the city for about 45 minutes. According to him the place of occurrence was at a distance of 20 Karams from the place where they had stopped their motor-cycles. He denied the suggestion that he had made a false statement because of his association/relations with the complainant.
8. Sana Ullah who had met the complainant and Irfan Javed P.W., near the bridge of Lower Jhelum Canal and had informed them of having seen the deceased accompanying the appellant on a motor-cycle, appeared as P.W.5 and narrated that fact. During cross-examination he stated that he was a candidate in the Bye-election and P.W. Irfan Javed had proposed him. During cross- examination he stated that on having come to know about murder of the deceased he had also reached the spot and gone to the police station from there. He denied the suggestion that he had made a false statement.
9. Ghulam Hussain, Head Constable P.W.8 claimed to have witnessed the arrest of the appellant from his house and of motor-cycle (P.16) of the deceased, having been taken into possession by the Investigating Officer. He also claimed that the appellant in his presence had got recovered knife P.17 from a place near the bank of canal, after digging out the same. He stated that none from Chak No.31 had joined in the recovery proceedings of knife P 17. He denied the suggestion that no recovery had been effected and he had made a false statement. He stated that the accused had dug out the knife with the help of a brick.
10. Muhammad Anwar Khan, S.I. Who had registered the case, investigated the same and submitted challan to Court after arrest of the appellant and recoveries from him, appeared as P.W.9 and gave the details of those facts. During cross-.Examination he stated that the appellant had come out of his house when he had gone there and knocked at the door. He stated that the appellant had dug out knife P.17 from a place 3/4 Karams away from the bank of the canal. He admitted that no person from the nearby locality had joined for witnessing the recovery proceedings of knife. He stated that the appellant had not used any piece of brick or wood for digging out the knife. He denied the suggestion that the complainant himself had murdered the deceased.
11. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question, `Have you anything else to say and why the P.Ws. Have deposed against you?':-- "The complainant suspected that I had illicit intimacy with his wife so he himself murdered his wife and falsely implicated me to save his own skin."
In answer to the question, `Have you anything else to say?' he stated as follows:-- "I am innocent. I had applied to higher authorities that complainant was murderer. I hereby produce acknowledgment:"
He neither adduced any evidence in defence nor made statement on oath under section 340(2) of the Code of Criminal Procedure.
12. Learned counsel for the appellant after having taken us through the evidence, criticised the impugned judgment and contended that the prosecution had failed to prove motive for the occurrence; that the eye-witnesses do not appear to have witnessed the occurrence; that their testimony cannot be relied upon as they were interested and inimical witnesses and that the evidence of recovery of knife was not worth relying upon.
13. Learned counsel for the State/complainant defended the judgment of the trial Court.
14: There is no evidence that the appellant had any grievance against the deceased. According to the evidence on record he had cultivated illicit connections with her, and the day, he was insulted and estopped by the complainant from visiting his house, the complainant had also admonished his wife, i.e. The deceased. It is clear from the testimony of the complainant that the deceased had accompanied the appellant from the school, freely. In fact he stated that he had come to know that the deceased had eloped with the appellant. There is absolutely no evidence on record to hold that the appellant had any grievance or quarrel with the deceased. As such, we are prone to accept the argument of learned counsel for the appellant that the evidence on record does not prove motive for the occurrence.
15. The recovery of knife at the instance of the appellant was not witnessed by anyone from Chak No.71/NB nor anyone from the public had been joined for the recovery proceedings. Only a Head Constable and the Investigating Officer deposed about the recovery. It does not appeal to common sense that the appellant after having committed the murder would have buried the knife somewhere near the place of occurrence, particularly so when he had been spotted by the eye- witnesses and they had chased him. The evidence of both the witnesses, apart from being discrepant even otherwise does not inspire confidence. Learned trial Judge had also not placed reliance on the evidence of recovery. We find nothing tangible to arrive at a different conclusion.
16. According to evidence, the appellant had picked up the deceased from the school and taken her away to the place of occurrence on a motor-cycle: The place of occurrence was about 4 miles away from the shop of the complainant, which was not far away from the school. As noted above the complainant and the P.Ws. After having come to know that the deceased had been taken away on a motor-cycle by the appellant, had remained for about 10 minutes at the shop and then moved away in search of the deceased, after having visited his house. They had gone to the wagon-stand, Railway station and different Bazars of the city. They had also gone to a picnic point which was at a distance of 7 miles from the city. It was thereafter that they had met Sana Ullah P.W.
And started for the place of occurrence which was 3 k.m. Away from there. Such an exercise could not have taken less than an hour. In fact they might have remained roaming about for more than two hours even. There is no evidence that the appellant and the deceased had stayed somewhere before reaching the place of occurrence. It is wholly improbable rather unbelievable that the witnesses could have reached the spot and witnessed the infliction of injuries by the appellant to the deceased. It cannot be believed that the appellant after having taken away the deceased to the spot would have continued waiting for the arrival of the witnesses. The appellant would have covered a distance of 4 miles, at the best, in 15/20 minutes. He could not have been found there, after more than one hour.
17. The testimony of the witnesses does not inspire confidence, looking from another angle as well, in that, they were three in number. The appellant was alone and was armed only with a knife. Had three of them been there, with two motor-cycles in their possession, they could have easily caught the appellant at the spot or chased him on motor-cycles.
18. The deceased was found to have suffered as many as 18 injuries. The number of injuries is an obvious indication of the fact that she was done to death by somebody who had intense hatred for her. If the appellant had wanted to murder her, he would have done so by inflicting one or two injuries on vital parts of the body. He had not to avenge anything from her.
19. Apart from the fact that the testimony of the eye-witnesses does not inspire confidence for the reasons noted above, the other important aspect of the case is that no reliance can safely be placed on the testimony of these witnesses, for the reason that P.W.3, per his own admission, was clearly inimical to the appellant. He had intense hatred for him. The other witness was also interested for being a close friend of P.W.3. The testimony of inimical witnesses cannot be relied upon for maintaining conviction on a capital charge, without some independent corroboration, which is not forthcoming in this case from any source. We have rejected the evidence of motive and the evidence of recovery of weapon of offence, in the earlier part of the judgment.
For all the reasons noted above, we are convinced that the prosecution has not been able to prove the case against the appellant beyond reasonable shadow of doubt. The appeal is, therefore, allowed and the appellant is acquitted of the charge.
20. Since the appellant has been acquitted, the question of enhancement of amount of compensation, does not arise. The revision petition, therefore, stands dismissed.
N.H.Q./M-438/L