' This appeal arises from a judgment passed by the learned Additional Sessions Judge, Faisalabad dated 16-9-1987 whereby Allah Ditta appellant was convicted under section 302, P.P.C. For causing the death of Mst. Noor Bakhi, his sister-in-law and Mst. Roshanaee his real sister and was sentenced to life imprisonment with a fine of Rs,10,000 and in default -of payment of fine he was ordered to undergo R.I. For a period of two years. On realization of fine of Rs,10;000 half of it was ordered to be paid to the legal heirs of Mst. Noor Bakhi and other half to the legal heirs of Mst.
Roshanaee deceased as envisaged under section 544-A, Cr.P.C. In default of payment of this compensation he was to undergo R.I. For six months. The appellant was also given the benefit of the provisions of section 382-B, Cr.P.C.
2. Succinctly stated the case of the prosecution as contained in the F.I.R. Recorded on the statement of Ashiq Hussain P.W.4 and recorded by Muhammad Ayub S.I. P.W.11 on 17-12-1986 at 4-15 a.m. Runs as under:- "The complainant is a resident of Chak No,375/G.B. Having four brothers and four sisters. His marriage took place with Mst. Noor Bakhi daughter of Amir by caste Khokhar resident of Tibbi Piran situate within the limits of Police Station Bara Garh and out of this wedlock they have a son and a daughter. That the sister of complainant Mst. Aminan was married to Noor son of Amir, by caste Khokhar in Watta Satta. The F.I.R. Proceeds that Ahmad Ali, father of the complainant promised to give the hand of his other daughter Mst. Roshanaee, sister of complainant to Allah Ditta son of Amir and Mst. Noor Bakhi, his wife was instrumental in arranging the hand of Mst. Roshanaee for her brother Allah Ditta. That accused Allah Ditta took exception to this arrangement, adding that in case it was accomplished, same would result in dire consequences. On the fateful night, i,e. 16/17- 12-1986, complainant Ashiq Hussain alongwith Amir, his father-in-law and Noor Muhammad, his brother-in-law, who had come a day earlier to settle the date of marriage, went to sleep in residential Kotha while Mst. Noor Bakhi, his wife and Roshanaee, his sister and Allah Ditta (accused), his brother, slept in a separate adjoining room. At about 12-30 mid-night, the complainant, Amir and Noor woke up on the shrieks of Mst. Noor Bakhi in hot haste and rushed towards the adjoining Kotha with its door open and the electric bulb was on as usual. They saw accused Allah Ditta, armed with a leg of pitcher stand (Pava) giving consecutive blows to Mst. Noor Bakhi, which landed on her forehead, right side of forehead and right side of head. Then he dealt repeated blows with Pava to Mst. Roshanaee, his sister, who was asleep nearby, hitting on the right side of her head and left tample. The complainant and P.Ws., tried to intervene and apprehend the accused, who gave `Lalkara' that if any body came near, he would meet the same fate. The accused decamped from the scene with crime Pava. Mst. Noor Bakhi and Roshanaee succumbed to the injuries, soon after.
' The motive for the occurrence is that Ahmad Ali father of the complainant promised to give the hand of his daughter Roshanaee (deceased) to Allah Ditta son of Amir and Mst. Noor Bakhi (deceased) wife of complainant, had major' role in the said arrangement. That accused Allah Ditta, brother of complainant, was not happy over it and on account of said grievance, he intentionally committed the murder of Mst. Noor Bakhi and Mst. Roshanaee. The complainant put Amir, his father-in-law on the guard of dead bodies and went to lodge the report. On the complaint of Ashiq Hussain, recorded by said Si. Muhammad Ayub, the case was registered against the accused, at the said police station under section 302, P.P.C."
3. Muhammad Avub S.I. After recording the complaint Exh.P.F. Reached the spot, inspected the dead bodies of Mst. Noor Bakhi and Roshanaee deceased ladies. He prepared inquest reports Exh.P.L. And Exh.P.M. Respectively and secured blood-stained earth from both the places vide recovery memo. Exh.PA. From the place of death of Mst. Noor Bakhi and through Exh.P.E. From the place of death of Mst. Roshanaee. He also took into possession the different articles of the beds of both the deceased vide recovery memo. Exh.P.C. And P.D., respectively. He took into possession the last worn clothes of both the deceased vide recovery memos. Exhs.P.N. And P.O. Respectively. This I.O. Also prepared the injury statements of Mst. Noor Bakhi and Mst. Roshanaee which are Exhs.P.Q.
And P.R. Respectively. On 19-12-1986 he arrested Allah Ditta appellant and during investigation he took into possession his clothes and a Pava (leg of pitcher stand) all blood-stained vide recovery memo. Exh.P.H. He got prepared the site plan Exhs.P.K. And P.K./1 from Aurangzeb Draftsman P.W.
After the investigation the appellant was challaned which was submitted in the Court for trial.
4. In order to substantiate the charge against the appellant, the prosecution examined eleven P.Ws.
Including Ashiq Hussain P.W.4, Amir P.W.5, Noor Muhammad P.W.6 as the eye-witnesses; Dr. Muhammad Afzal P.W.7 who did the post-mortem examination and Muhammad Ayub S.I. P.W.11 as the Investigating Officer besides the formal witnesses.
5. Dr. Muhammad Afzal P W 7 did the post-mortem examination on the dead body of Mst. Noor Bakhi and found three injuries on her person. All the injuries were grievous and caused by blunt weapon and were sufficient to cause death in the ordinary course of nature individually and collectively. All the injuries were also found as ante-mortem. Probable time that elapsed between injury and death was immediate and between death and post-mortem was twelve hours. Exh.P.I. Is the correct carbon copy of the post-mortem report and Exh.P.I./1 is the pictorial diagram showing the seat of injuries.
' On the same day this very doctor also did post-mortem examination on the dead body of Mst.
Roshanaee and found two injuries which were grievous in nature and caused by blunt weapon.
Both the injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature inidvidually and collectively. Probable time that elapsed between injuries and death was immediate and between death and post-mortem was about 12-1/2 hours. Exh.P.J. Is the copy of the post-mortem report and Exh.PJ./1 is the pictorial diagram showing the locale of injuries. Learned D.DA. Tendered in evidence the report of Chemical Examiner Exh.P.I. And that of Serologist Exh.P.U.
And closed the case for prosecution.
6. The appellant when examined under section 342, Cr.P.C. Took up the plea of denial simpliciter and pleaded innocence adding that he was roped in due to suspicion, nevertheless he neither appeared as his own witness in disproof of the allegations levelled against him as provided under section 340(2), Cr.P.C. And nor he led any defence evidence. The learned trial Court at the conclusion recorded the conviction of the appellant as mentioned above.
7. The learned counsel for the appellant contended that Ashiq Hussain P.W.4 who was the complainant and lodger of the F.I.R. Did not support the case of the prosecution, and the testimony of other two eye-witnesses namely Amir P.W.5 and Noor Muhammad P.W.6 who were father and brother respectively of Mst. Noor Bakhi deceased cannot be relied upon being interested witnesses.
It was also argued that motive in this case does not stand proved and the ocular evidence is full of material discrepancies and contradictions which makes the case of the prosecution doubtful. The evidence of the recovery of crime weapon Pava and the medical evidence was also assailed being not corroborative to the ocular account furnished by P.W.5 and P.W.6.
8. The learned State counsel repelled the arguments of the learned counsel for the appellant and supported the judgment of the trial Court.
9. I have considered the arguments and have also gone through the prosecution evidence very minutely. I find that Ashiq Hussain P.W.4 had lodged the first information report in this case wherein he gave a detailed story of his relationship with the appellant and with the parents of Mst. Noor Bakhi his wife and P.W.5 and P.W.6 and also gave the details that how this murder took place. When examined before the trial Court as P.W.4 he resiled and stated that he alongwith Allah Ditta appellant and Liaqat were sleeping at their Dera outside the village and it was Anwar Barber of their village who informed them about the murder of his wife and their sister. They reached to the spot and found both the ladies as being dead. During cross-examination he stated that Amir and Noor P.W.5 and P.W.6 respectively belonged to a village which is at a distance of forty miles from the place of occurrence and they reached at the spot at 4 p.m. On the following day as they were informed through Allah Ditta Machhi about this incident. He further stated that these two P.Ws.
Alongwith other residents and relatives of their village who were fifteen in number reached in this village for the puprose of condolence. He emphatically denied that Amir and Noor P.Ws. Were already stayed at their house as guests. On the point of motive he stated that his father Ahmad Ali had not agreed to give hand of Mst. Roshanaee to Allah Ditta son of Amir brother of Mst. Noor Bakhi deceased. He also denied that Allah Ditta appellant was nourishing grudge against Mst. Noor Bakhi and Mst. Roshanaee due to marriage of Mst. Roshanaee with Allah Ditta. He further stated that he had not thumb-marked the statement and nor he was deposing falsely in order to save the skin of his brother Allah Ditta appellant. Anyhow he signed some papers at the direction of the police.
Lastly he during cross-examination of the learned D.DA. Denied that Allah Ditta murdered his wife Mst. Noor Bakhi and his sister Mst. Roshanaee because their father having had settled the marriage of his daughter with Allah Ditta brother of Mst. Noor Bakhi deceased and, therefore, the appellant committed those two murders.
10. I find that Ashiq Hussain P.W.4 has narrated the truth. His statement is natural and is confidence inspiring. It is a night time occurrence so the statement made by this witness while appearing in the Court rings true as it was without any coercion and pressure of the police when he was examined. No doubt a double murder had taken place but in my view it was an unwitnessed occurrence. The presence of Amir and Noor Muhammad P.W.5 and P.W.6 at the place of occurrence is neither natural nor probable. They came from a village forty miles from this place and being father and brother of Mst. Noor Bakhi are interested witnesses and their testimony finds no support from an independent source. Ashiq Hussain was the natural witness of this occurrence but he is not supporting the case of the prosecution. In my view it shall be highly unsafe to place implicit reliance on their testimony who in my view are not the eye-witnesses. It is established on record that the parties are closely related to each other on account of inter-marriages and the appellant could not think of committing the murder of his own real sister Mst. Roshanaee when she was not responsible of any cause of grievance to the Appellant.
11. The most important aspect of this case is that the appellant is said to be armed with Pava and the occurrence is claimed to be witnessed by three persons namely P.W.4, P.W.5 and P.W.6 but it does not believe to reason that they did not intervene and caught hold the appellant while giving injuries to the deceased ladies and watched the occurrence like silent spectators which is against human conduct. The version of the prosecution is that Mst. Noor Bakhi instead of sleeping in the room of her husband chose to sleep with her father and brother.
12. I do not find that the prosecution successfully proved the motive perpetrated for the crime charged against the appellant for this occurrence as Ahmad Ali, the father of the appellant had two other sons and there was no girl in the house of Amir P.W. To give her in Watta Satta to the appellant or his brothers. I do not agree that Allah Ditta appellant was nourishing grudge against both the deceased, when Mst. Roshanaee was his real younger sister and Mst. Noor Bakhi was a sister-in-law.
13. Muhammad Shall P.W.3 who was produced to attest the recovery also did not support the case of the prosecution on the point of recoveries of the blood-stained clothes and that of the weapon of offence which gives support to the contention of the learned counsel for the appellant that the recovery was fake and fabricated as the factum of recovery did not find support from the statement of P.W.3 and P.W.4 respectively.
14. The cumulative effect of the whole discussion is that the prosecution in my view has utterly failed in bringing home the charge against the appellant. The ocular account furnished by P.W.5 and P.W.6 does not get support from the evidence of motive or from that of recoveries. The defence plea raised by the appellant appears to be more probable as compared to the prosecution version which is not coming from unimpeachable source. P.W.5 and P.W.6 are the father and brother of Mst.
Noor Bakhi deceased and being resident of district Sheikhupura their testimony is not worth credance. I do not agree that Ashiq Hussain gave generous concessions to the appellant in support of his defence plea. Rather I find that he is the only natural witness of the occurrence and whatever he has stated that is true. In these circumstances this Court is left with no alternative but to believe that the prosecution has failed in bringing home the charge against the appellant.
13. Resultantly this appeal has force and is accordingly accepted. The conviction and sentence recorded by the learned trial Court is set aside. The appellant is on bail. His bail bond shall stand discharged.