' Muhammad Younas (37) and his father Karam Dad (70) were tried under section 302/34, P.P.C. For the murder of Mst. Azra by the learned Additional Sessions Judge, Rawalpindi who vide his judgment, dated 4-11-1986 convicted them thereunder and sentenced them to imprisonment for life plus a fine of Rs,10,000 or in default 2 years' R.I. Each. Half of the fine, if recovered, was ordered to be paid to the children of the deceased. They were further directed to pay Rs,10,000 each to the legal heirs of the deceased as compensation or in default 6 months' R.I. The convicts have appealed.
2. The occurrence took place on the night between 12/13-5-1986 and F.I.R. Exh.P.C./1 was recorded on 13-5-1986 at 12-05 p.m. On the written complaint of Mazhar-ul-Haq S.I. Police Station Kalar Syedan, District Rawalpindi. The deceased in this case is the wife of Muhammad Younas appellant.
The motive for the occurrence is stated to be that the deceased was pregnant. Both the appellants suspected this pregnancy as illicit. It is alleged that this suspicion on the part of the appellants culminated in the present occurrence.
3. As for the main occurrence Allah Ditta complainant (P.W.5) stated that about 23 years back he married Mst. Anwar Jan widow of Wadi Hussain. Out of this wedlock three daughters Mst. Gul-e- Shan, Hafifa and Mst. Shamim Akhtar were born. The said Mst. Anwar Jan had three sons and two daughters from her previous husband. The deceased was previously married to one Muhammad Yasin brother of the complainant who divorced her. Then she married Muhammad Younas appellant. Out of this wedlock two sons and three daughters were born. After the marriage of the deceased with Muhammad Younas appellant, the appellant used to quarrel with the deceased.
Many a time she came to the house of the complainant who used to send her back to her in-laws.
It is alleged that Karam Dad in the presence of the complainant Allah Ditta threatened the deceased that they would not leave her alive. About two months prior to the occurrence, the appellants gave her beating and she went to the house of her sister. However, she was again sent to her in-laws. It is alleged that Muhammad Younas appellant who was earning his livelihood in Lahore came to his house a few days back. It is further alleged that on the fateful night the appellants gave her beating and also inflicted hatchet blow on the left side of her face and killed her. The complainant was informed about this occurrence by Mst. Razia sister of the deceased.
4. After the registration of the case Mazhar-ul-Haq Shah, Inspector/S.H.O. (P.W.11) went to the spot, prepared the inquest report Exh.P.G. And injury statement Exh.P.H. And despatched the dead body to the mortuary under the escort of Muhammad Boota, F.C. For post-mortem examination. He collected blood-stained earth from the spot vide memo. Exh.P.E. And also recorded the statements of the P.Ws. On 15-5-1986 Hawaldar Abdul Rehman produced the appellants before the Investigator. On 18-5-1986 Muhammad Younas appellant got recovered hatchet P.4 vide memo.
Exh.P.D. After post-mortem examination, Muhammad Boota produced the last-worn clothes of the deceased vide memo. Exh.P.B. Abdul Qadoos, Patwari (P.W.10) prepared the site plan in triplicate.
After completion of the investigation the challan was submitted in the Court.
5. On 13-5-1986 at 4-30 p.m. Dr. Riaz Ahmad (P.W.12) conducted the post-mortem examination on the dead body of Mst. Azra deceased and found the following injuries on her person:--
(a) An oval penetrating wound 6/8" x 4/8" bone deep on left side of her face about 3/4" in front of tragues of the left ear. Bones underneath i,e. Tempromandibular joint, left temporal bone, left prietal bone and left side of occipital bone were fractured. This was seen after dissection. Middle cranial fossa and anterior cranial fossa were also fractured.
(b) A wound 1/2" x 1/3" bone deep about 1/2" in front of injury No,1. Left ramus of mandible left maxilla anterior cranial fossa of left side, parietal bone of left side were fractured underneath.
' In the opinion of the doctor the death in this case was due to shock and haemorrhage as a result of injury to the brain. Both the injuries were ante-mortem, caused by blunt pointed weapon and were sufficient to cause death individually or collectively in the ordinary course of nature. Probable time between injuries and death was immediate.
6. When examined under section 342, Cr.P.C. Both the appellants professed their innocence, and they. Deposed that they were involved in this case just out of suspicion, as the prosecution witnesses were inimical towards them.
7. Placing reliance on the prosecution evidence fortified by the recovery of dead body from the house of the appellants, the learned trial Judge convicted the appellants and gave them the sentences indicated above.
8. The learned counsel for the appellants contended that the joint confession is not admissible in evidence, he has placed reliance on PLD 1950 BJ 26, PLD 1957 (W.P.) Lah. 1023 and 1971 P Cr. L J 1299. He also contended that Abdul Rehman (P.W.7) before whom the appellants made a joint confession, was inimical witness as is apparent from the evidence of Mst. Razia Begum (P.W.9). In the end, he vigorously submitted that there is no evidence on the file to this effect, that the appellants were in the house at the relevant time where the murder was committed. It was a blind murder, which was committed in the darkness of the night, when the deceased was sleeping the open courtyard of the house, the appellants have been roped in the cas due to suspicion and there was no evidence whatsoever on the file against th appellants, after discarding the evidence of the motive, hence the conviction I liable to be set aside.
9. The learned counsel for the State has supported the impugned judgment.
10. I have heard the learned counsel for the parties at length, and have examined carefully the record with their able assistance.
11. As per F.I.R., admittedly, it is a blind murder case as none has seen the occurrence. The only piece of evidence on which the learned trial Judge placed reliance while recording the conviction of the appellants is the extrajudicial confession made to Meharbah Hussain (P.W.6) and Abdul Rehman (P.W.7) coupled with the recovery of dead body from the house of the appellants. The learned trial Judge has disbelieved the evidence of Meharban Hussain (P.W.6) and I see no justification to upset the finding of the learned trial Judge which is based on proper appreciation of the evidence.
Anyhow, he has placed reliance on the testimony of Abdul Rehman (P.W.7) before whom the appellants allegedly made joint confession immediately after the occurrence. None of the appellants in their joint confession disclosed the part played by them while allegedly committing the murder of the deceased. Abdul Rehman (P.W.7) deposed that "they disclosed before me that they have committed a blunder and have murdered Mst. Azra Bibi, they have requested me for help. They have also admitted that they have murdered Azra because they had suspicion that the pregnancy of Mst. Azra is illicit".
12. A perusal of the above statement discloses that neither any part played by the appellants is disclosed nor it is described what part was played by each of the appellants while committing the crime, hence this joint confession suffers from two patent legal defects which makes this statement wholly inadmissible and unbelievable. The first defect is that it is a joint confession which is not admissible in law and the second is that it does not disclose the part played by the each appellant in the commission of the crime. Apart from this defect Abdul Rehman (P.W.7) cannot be considered to be an independent witness, as per the statement of Mst. Razia Begum (P.W.9), one Asghar who is the first cousin of Karam Dad appellant, has got enmity and civil and criminal litigation with Abdul Rehman (P.W.7) as admitted by him in the Court. In the presence of this background Abdul Rehman (P.W.7) cannot be considered to be wholly reliable witness and it would not be safe to place reliance on his uncorroborated testimony. In addition to that the version given by Abdul Rehman (P.W.7) is being contradicted by Lehrasib Khan who stated that "Karam Dad accused was arrested by the Police on the day of occurrence at the place of occurrence at 10- 30 a.m. In my presence" whereas Karam Dad appellant allegedly made confession before Abdul Rehman (P.W.7) on 15-5-1986 while the date of occurrence is 13-5-1986. If Karam Dad appellant was arrested by the Police on 13-5-1986, it remains mystery, how he came to Abdul Rehman (P.W.7) on 15-5-1986 to make the alleged joint confession. This evidence as discussed above is not sufficient to bring home the guilt of the accused in this case. After discarding this evidence, I am only left with the evidence of the recovery of dead body from the house of the accused. As accused Younas is the husband of the deceased and if they were living together then mere presence of dead body in the courtyard without there being any supporting evidence per se is not sufficient to sustain the conviction of Muhammad Younas appellant. Even there is nothing on the record to show that Muhammad Younas appellant or Karam Dad appellant, were in the house at the relevant time. The version given by the defence seems to be more plausible and reasonable that the deceased met her death while sleeping outside in the courtyard in the dead of night.
13. In view of the above discussion, the prosecution has miserably failed to prove its case against the appellants. The appeal is accepted, the conviction and sentences of the appellants are set aside and I direct that the appellants shall be released forthwith, if they are not required to be detained in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.