RIAZ AHMAD, J..-- Appellants Muhammad Sharif and Mst. Shamshad were tried on the charge under section 302/34 PPC by an Addl: Sessions Judge for having caused the murder of Muhammad Rafique (deceased) husband of Mst. Shamshad.
2. Vide judgment dated 20.12.1989, the learned Addl: Sessions Judge found both the appellants guilty on the aforesaid charge. Appellant Muhammad Sharif was convicted and sentenced to death and to pay a fine of Rs.500/- or in default thereof to suffer S.I. For a term of 15 days. Appellant Mst. Shamshad was sentenced to undergo life imprisonment and no fine was imposed.
3. Aggrieved by his conviction, the appellant Sharif has preferred appeal bearing No. 919-89 and Mst. Shamshad has filed separate appeal through Jail bearing No. 23-J/90 and the case has also been referred to us under section 374 Cr.P.C. This judgment shall dispose of both the appeals as well as the reference.
4. The unfortunate occurrence resulting into the death of Muhammad Rafique allegedly took place on 22.3.1987 at about 6 p.m. In New Abadi, Akram Park near Chah Pir Bakhsh Band Road, lahore, in the house of the deceased. The first informant Muhammad Rashid, PW 8, brother of the deceased who claimed himself to be the eye witness, after the occurrence, proceeded to lodge the report to the police station when on his way to Police Station Islampura, he came across, the investigating officer Muhammad Saleem Inspector, S.H.O., P.W 14 who recorded his statement Ex.PE at about 6.40 p.m. And the same was sent to the police station for registration of formal case. The formal FIR Ex.P.E/1 was recorded at 7 p.m. By Muhammad Munir Ahmad ASI, PW 12.
4. The prosecution case in brief as disclosed by the first informant in the FIR was that he was a resident of Abdullah Pur Kolar, in District Sheikhupura and had four more brothers out of whom, Muhammad Rafique deceased was pensioner from Pakistan Army. He had shifted to Lahore alongwith his wife Mst. Shamshad and four children. He was a labourer by profession. It was further stated by him in the FIR that 1 months or 2 months before the occurrence, deceased Muhammad Rafique shifted his new residence at the place of occurrence in Akram Park near Chah Pir Bakhsh Bund Road, Lahore and this house was taken by the deceased on rent by Malik Ishtiaq at the rate of Rs.50/- per month. The complainant further stated that 1 months before the occurrence his deceased brother suspected that his wife had developed illicit liaison with appellant Muhammad Sharif resident of village Rudiana, a place adjacent to the village of the complainant, and thus on the basis of the complainant, and thus on the basis of this suspicion, the deceased forbade Muhammad Sharif to visit his house and he had also complained about his conduct to the complainant. On the fateful day at about 6 p.m., the complainant, alongwith his brother Muhammad Siddique and his brother in law Muhammad Saleem, PW 9 visited the house of the deceased with a view to enquire about the complaint or so called suspicion of the deceased as to the illicit liason of Mst. Shamshad. It was further alleged by the complainant that as soon as they reached near the house of the deceased, they heard the cries being raised by the deceased. They rushed to the house and from the outer wall of the residential room, they saw Mst; Shamshad holding both the legs of the deceased while appellant Muhammad Sharif who was armed with a knife inflicted two blows upon the deceased. The first blow was inflicted near the pinus while the other was inflicted on the back side of the head and thus, on the receipt on these injuries, deceased fell down on the cot.
5. The motive for the commission of the offence as stated above was that both the appellants after conspiring with each other with a view to remove Muhammad Rafique deceased from their way had killed him. It was also alleged by the complainant that after the occurrence, the appellant then abducted the four children as well as Mst. Shamshad and they on account of fear could not chase them, It was further alleged that appellant Muhammad Sharif while brandishing the knife in the air escaped from the scene of occurrence alongwith Shamshad and the children and such escape was also noticed by the other Mohallah Dars.
6. On 24.3.1987, PW 3 Dr. Khalid Aziz, Assistant Professor, K.E. College, Lahore, conducted the autopsy on the deadbody of Muhammad Rafique and the following injuries were noticed:-
(1) 2x5cm spindle shaped incised wound with clean cut margine and acute angles, bone deep situated on left temple 2cm above an enterior to left ear pinna.
(2) 1.5 x .5cm spindle shaped incised wound with clean cut margin and acute angles situated on left paroccipital region.
(3) 1 x 5 cm spindle shaped incised wound with clean cut margin situated on halix of left car.
(4) 1.5 x .5 spindle shaped incised wound muscle deep situated on left side of neck 2.5cm below left angle of jaw.
(5) 2.5 cm x c .5 cm incised wound on Dorsal aspect of little finger of left hand.
(6) 13 x .5 cm superficial incised wound transversely placed 11 x 3 cm incised wound muscle deep situated on anterolateral aspect of penus and scrotal going up to the left side of scrotal sac.
(8) Lacerated wound (cruciat) measuring 2.5 x 1.5cm with wracked and irregular margin with pcrepheral bruising around situated on left ear pinna. Underlying skull bone was fractured blood and brain matter was coming out of this wound.
(9) lacerated wound measuring 3.5. x 1.5 cm with rack and irregular margins and intact tissue tags crossing the depth of the wound situated on left occipital region. Underlying skull bone was fractured. Bone crapilus was present. Blood and brain matter was coming out of this wound.
(10) Abrasion 2 x .5 cm situated on top of left shoulder
(11) Abrasion 2 x 1.5 cm on left ala nasi.
(12) Abrasion 1.5 x 1 cm situated on front of left thigh 3 cm below and medial to anterior superior iliac spine.
(13) Abrasion 1.5 x 1 cm on left knee cap All the skull bones including the parietal, temporal and occipital were found to be fractured. In the opinion of the doctor, the injuries Nos. 1 to 7 were caused by sharp-edged pointed weapon while injuries 8 to 13 were caused by blunt weapon. Cause of death was fracture of skull leading trauma to brain which was sufficient in the ordinary course of nature to cause death.
2. On 27th of March, 1987, both the appellants were allegedly arrested from the Bus Stand of Badami Bagh At the time of arrest, it was noticed that appellant Sharif was wearing blood stained Chadar P.4 and blood-stained shift P.5 which were taken into possession vide memo Ex.P.D. attested by SI Shahbaz Ahmed, PW 7, and Muhammad Ashraf PW 6 besides Inspector Muhammad Saleem, PW 14. On lst of April, 1987, appellant Muhammad Sharif while in custody led the police and got recovered blood-stained Chhuri P.13 from the graveyard which was taken into possession vide memo Ex.P.H. attested by Muhammad Jehangir, PW 11, Muhammad Saleem Inspector, PW 14 and Muhammad Jehangir who was given up as unnecessary. The Chhuri and the clothes were sent to the Chemical Examiner and Serologist. According to the report of the Chemical Examiner, the Chhuri and the clothes had stains of blood, These articles were also transmitted onwards to the Serologist for his analysis but no report of the Serologist has been produced by the prosecution.
3. In this view of the matter, the recovery of the knife and the clothes cannot be said to service' as corroborative evidence tending to connect the appellant with the commission of crime.
4. With the assistance of the learned counsel for the appellants and the Stale, we have carefully perused the entire evidence on the record as well as the judgment and wc have also heard the various contentions raised by both sides.
5. Our first impression is that the prosecution story as narrated by the eye witnesses is highly improbable. For instance, the complainant and his sister's husband Muhammad Saleem PW were smuggled into the occurrence so as to become eye witnesses in this case. The medical evidence clearly shows that deceased Muhammad Rafique was stout and well built person and similar is the statements of two eye witnesses and in cross-examination, they deposed that the deceased was known as wrestler in the army. The witnesses further deposed that when they reached near the house, they heard cries and from the wall of the house saw the deceased receiving injuries at the hands of the appellant withoqt resistance but the witnesses did not intervene. Thfcir conduct to our mind seems to be unnatural and on this single score, we will be inclined to observe that they had not seen the occurrence.
Furthermore, as far as Mst. Shamshad Begum is concerned, it was unnatural for her to hold both the legs of her husband to facilitate the appellant Muhammad Sharif to inflict knife blows.
12. The medical evidence is contradicted by the ocular account as the prosecution witnesses want us to believe. According to them, both the witnesses had seen the appellant giving two blows to the deceased but the medical evidence shows that there were at least 13 injuries on the person of the deceased. Injuries Nos. 1 to 7 were caused by sharp-edged pointed weapon while injuries 8 to 13 were caused by blunt weapon. The next suspicious circumstance is that the cause of death was fracture of the skull which could be caused by the blow of blunt weapon but the infliction of such injury was not at all seen by the eye witnesses nor it was mentioned in the FIR nor in their statements.
13. Furthermore, the motive for the commission of crime i.e. the alleged illicit liaison of Mst.
Shamshad with the appellant Muhammad Sharif has not at all been proved. Muhammad Saleem, PW only deposed that they had heard that Mst. Shamshad was carrying on illicit liaison. Similar is the position of the brother of the deceased Muhammad Rashid complainant, his statement about the motive for the commission of this offence is unsatisfactory. Furthermore, the evidence as to the motive cannot be believed because its source has not at all been disclosed.
14. It is also pertinent to mention that on the 3rd day of the occurrence, the postmortem was conducted and in our view, it was unseen crime and the police kept on waiting for the relatives of the deceased to reach Lahore so that somebody could be made up as eye witness. In this behalf, it will be relevant to reproduce a portion of the cross-examination of Muhammad Saleem, PW which is reproduced hereunder:- " It is correct that if we wanted we could reach the place of occurrence within two seconds. It is correct that we did not try to intervene and save the life of our brother. We did not enter the house till the time, accused had departed. We were at a distance of 8 feet from the outer door when we saw the occurrence."
15. It is also strange to note that children were present in the house and after the occurrence, appellant Muhammad Sharif,had abducted the children and Mst. Shamshad as deposed by the complainant in his statement while according to Muhammad Saleem PW, the children were not present in the house at that time. Furthermore, we fail to understand that as to now Mst. Shamshad with her children could leave the place of occurrence. Moreover, if the eye witnesses had seen the appellant inflicting injuries with the knife on the deceased from the outer wall of the house, they would not have allowed the appellants to leave the scene of occurrence. Strangely enough, the house where the occurrence took place has a single door. It is not the case of the prosecution that it was bolted.
I6. The upshot of the above discussion is that the prosecution or has failed to bring guilt home to the appellants. The prosecution case is highly importable and cannot be believed. Consequently, the appeals filed by both the appellants are is accepted. The death sentence awarded to Muhammad Sharif is set aside and the life imprisonment awarded to Mst. Shamshad is also set aside. They shall be released forthwith if not required in any other case. The death sentence is not confirmed and thus, the Reference is answered accordingly.