' Muhammad Hussain (35 years) and Mst. Muniran (24 years) were tried for the murder of Muhammad Yar deceased and the learned Additional Sessions Judge, Bahawalnagar vide his impugned judgment, dated 2-11-1992 convicted and sentenced the appellants under section 302/34, P.P.C. To rigorous imprisonment for 25 years each. They were extended the benefit of section 382-B, Cr.P.C. The appellants have come up in appeal to assail their conviction and sentence.
2. The prosecution case as unfolded in the F.I.R. Exh.P.C. Recorded on the statement of P.W.5 Ali Muhammad at Police Station Takht Mahal, District Bahawalnagar on 12-3-1991 drafted by P.W.13 Feroze Ahmad, Inspector is to the effect that they were four bothers. Noor Ahmad and Muhammad Yar were elder to him and Fayyaz Ahmad was the younger. All the four brothers were labourers and were living in separate houses. About 15/20 days earlier to the registration of the case, Fayyaz Ahmad P.W. (given up) brother of the complainant reached from Multan where he was a labourer.
P.W.5 Ali Muhammad alongwith Fayyaz Ahmad P.W. (given up) went to the house of Muhammad Yar deceased. The outer gate of the Ehata of 'Muhammad Yar was locked. They came back and for about 4/5 days they continued waiting for Muhammad Yar deceased, who did not return.
Thereafter, P.W.5 sent Fayyaz Ahmad P.W. (given up) to inquire about the deceased from the relatives, but no clue of Muhammad Yar deceased was found. On 12-3-1991 at about 10.00 a.m.
P.W.5 alongwith Fayyaz Ahmad P.W. (given up) again went to the house of the deceased Yar Muhammad and the outer door was as usual found locked, and terrible bad smell was coming out.
P.W.5 alongwith Fayyaz (given up) after scaling over the wall went in the courtyard and the inner room was also locked and from inside the room bad smell was coming. They peeped through the window and found Muhammad Yar deceased lying wrapped in a quilt and a large quantity of dry blood was under the cot, on which they believed that Muhammad Yar was dead. They called for Sarfraz P.W. (given up), Allah Din (P.W.10), Councillor and other residents of the village, broke open the lock of the house, entered the room and found Muhammad Yar deceased dead, whose throat had been cut with a sharp-edged weapon and the dead body was decomposed. Muhammad Yar had been killed by Mst. Muniran, his wife and Muhammad Hussain, her paramour, as they had illicit relations and due to the illicit relations there was always quarrel between Mst. Muniran and Muhammad Yar deceased. Muhammad Hussain was also stopped by the deceased and due to that grievance he was done to death by Muhammad Hussain and Mst. Muniran. Leaving behind Fayyaz Ahmad P.W. (given up) to guard the dead body P.W.5 All Muhammad alongwith others reached the police station and lodged F.I.R. Exh.P.C. The appellants were challaned and sent up for trial. A charge under section 302/34, P.P.C. Was framed against them, to which they denied and claimed trial.
3. The prosecution examined 13 P.Ws. In all to substantiate its case. P.W.1 Muhammad Jahangir, Constable on 12-3-1991 escorted the dead body of the deceased to the mortuary and after post- mortem examination the Doctor handed over blood-stained clothes of the deceased P.1 to P.3 which he produced before P.W.13 Feroze Ahmad, Inspector/S.H.O., who secured the same vide memo Exh.P.A. P.W.1 also produced bedding and cot, all bloodstained P.4 to P.8 and the relevant papers. P.W.2 Muhammad Hanif H.C. On 12-3-1991 had received a sealed parcel containing blood- stained earth which he handed over on 19-3-1991 to Haq Nawaz Constable (P.W.3) for delivering the same in the respective office. He had also handed over sealed parcels of hatchet and Chhuri on 24-3-1991 to P.W.3 for onward transmission of the same in the respective office. The above said two sealed parcels were handed over to him by P.W.13. P.W3 Haq Nawaz Constable had delivered the sealed parcels containing blood-stained earth on 20-3-1991 and two sealed parcels containing hatchet and Chhuri on 20-3-1991 in the office of Chemical Examiner.
4. P.W.4 Dr. Shamshad Hussain on 12-3-1991 at about 4-30 p.m. Conducted autopsy on the decomposed dead body of Muhammad Yar deceased and found the following injuries:---
(1) An incised wound extending from one side of neck to the other side was seen on the partially decomposed muscles at the level of thyroid cartilage and underlying trachea and oesophagus was also cut.
(2) Fracture at the temporal area of skull on left side.
' In the opinion of the Doctor, the cause of death was due to injuries Nos. 1 and 2. Injury No,1 caused injury to the trachea and blood vessels in the neck which gave excessive haemorrhage and shock while injury No,2 caused fracture of skull at the temporal area and led to death. Both the injuries were sufficient to cause death in the ordinary course of nature. Injury Nol was caused by sharp- edged weapon while injury No,2 was by blunt and hard weapon. Probable time that elapsed between injury and death was within one hour and between death and post-mortem was within three weeks.
5. P.W.5 All Muhammad is the complainant and real brother of the deceased who narrated the facts mentioned by him in F.I.R. Exh.P.C. He had also witnessed the recovery of blood-stained earth from underneath the cot of Muhammad Yar deceased which was taken into possession by P.W.13 vide memo Exh.PD attested by him. He further stated that P.W.13 also secured lock P.9, pairs of shoes P.10 to P.12 from inside the Kotha vide memo. Exh.PF attested by P.W.5. The last-worn clothes of the deceased and his cot P.1 to P.8 were obtained by the police vide memo. Exh.PA. Attested by P.W.5. P.W.6 Muhammad Anwar had witnessed the recovery of Key P.13 from accused Mst. Muniran which was secured by P.W.13 vide memo Exh.P.G. Attested by him. P.W.7 Ghulam Sarwar Lamberdar stated that the deceased had stated before him that Muhammad Hussain appellant had been taking away his wife to her parents in Pir Sikander and that he did not allow her to live alongwith him and in those days she was in Mauza Pir Sikander and was living away from her husband. The deceased requested P.W.7 to reconcile the matter. Therefore, P.W.7 accompanied Muhammad Yar deceased to the parents of Mst. Muniran in Mauza Pir Sikandar to bring her back. P.W.7 reached there and found Muhammad Hussain appellant present in the house of the father of his co- accused Mst. Muniran. He requested the father of Mst. Muniran to send her with her husband, but Muhammad Hussain appellant stated that she would never go to the house of her husband and that she would live along with him and that they would contract marriage. He further stated that in his presence Muhammad Hussain and Mst. Muniran appellants cut jokes inter se and due to that he was of the view that Muhammad Hussain and Mst. Muniran had murdered Muhammad Yar deceased. P.W.8 Ghulam Muhammad stated that the accused Muhammad Hussain while in police custody had led to the recovery of blood-stained hatchet P.14 from the roof of the residential Kotha of Muhammad Yar deceased which was made into a sealed parcel and secured vide memo Exh.P.H. Attested by him. Thereafter Muhammad Hussain appellant also led to the recovery of a Chhuri P.15 (blood-stained) from near a Saimnala from a tree of date, which was made into a sealed parcel and obtained by P.W.13 vide memo Exh.P.I., attested by P.W.8, P.W.9 Nawab stated that after three days of the discovery of dead body of the deceased, Muhammad Hussain and Mst.
Muniran appellants had come to him. Allah Din (P.W.10) was present alongwith him. Mst. Muniran confessed before them that she and Muhammad Hussain had murdered Muhammad Yar on account of their illicit relationship inter se and that they were going to marry, and that they might be got pardoned for the said act. Muhammad Hussain also confessed before them that they had murdered Muhammad Yar deceased and that they might be got pardoned on every condition.
P.W.9 replied that after a day or two the police was going to visit the spot and they should also come and that they would make a request to the complainant party. The accused/appellants went away but did not return when the police party visited the spot. He narrated the confession of the appellants to the police. P.W.10 Allah Din stated that he was sent for by P.W.5 complainant and he went to the house of the deceased and found the door locked. One mistry broke open the lock.
They went inside and found the dead body of Muhammad Yar which was in decomposed condition. There was blood under the cot. He remained at the spot. Sarfraz P.W. (given up) and P.W.5 Ali Muhammad were sent to the police station for reporting the matter. Since Muhammad Hussain appellant had illicit relations with Mst. Muniran, appellant and, therefore, they had murdered Muhammad Yar deceased. He further stated that before the murder of Muhammad Yar deceased, Mst. Muniran appellant and the deceased used to quarrel. Muhammad Yar had stopped Muhammad Hussain from visiting his house and their guess was that Muhammad Hussain and Mst. Muniran appellants had murdered Muhammad Yar. He further stated that on third day of the discovery of the dead body he was present in the house of Nawab (P.W.9) where Muhammad Hussain and Mst. Muniran came. Mst. Muniran confessed before them that a mistake was committed by them and they had murdered Muhammad Yar deceased due to her illicit relations with Muhammad Hussain appellant and that they might be got pardoned. Similar confession was made by Muhammad Hussain appellant. P.W.10 and P.W.9 told them that they should come after two days because the police was also to visit the spot. The police reached there after two days, but they did not come. He made statement about confession of the appellants before the police. P.W.11 Muhammad Ahmad is a Revenue Patwari in Mauza Hafiz Abad, who had prepared site plan Exh.P.J.
And its duplicate Exh.P.J./1 on the direction of the police and on pointation of the P.Ws. On 23-3-1991 P.W.12 Taj Muhammad, S.I./S.H.Q. Had arrested appellant Muhammad Hussain, who while in police custody led to the recovery of hatchet P.14 from the roof of the residential Kotha of the deceased which he made into a sealed parcel and secured the same vide memo Exh.P.H. And the same was attested by the P.Ws. Thereafter, Muhammad Hussain appellant led to the recovery of Chhuri P.15 from a tree of date near Saimnala which was taken into possession and made into a sealed parcel vide recovery memo Exh.P.I attested by the same P.Ws. On the same day he arrested Mst. Muniran from the house of her father, who while in police custody produced Key P.13 which was secured by him vide memo Exh.P.G. Attested by P.W.6 Muhammad Anwar. He recorded statements of the P.Ws.
And after completion of the investigation had challaned the appellants.
6. P.W.13 Feroze Ahmad, Inspector/S.H.O. Had recorded the F.I.R. Exh.P.C. On the statement of P.W.5 All Muhammad, had prepared inquest report Exh.P.B./2 and injury statement Exh.PB/3. He also secured bloodstained earth from the place of occurrence vide memo Exh.P.D. He had also taken into possession blood-stained pairs of shoes P.10 to P.12 from the spot vide memo Exh.P.F. He also secured cot and clothes of the deceased P.1 to P.8 vide memo Exh.PA. The above memos were attested by Ali Muhammad (P.W.5) and Sarfraz P.W. (given up). Muhammad Jahangir Constable produced before him last-worn clothes of the deceased after post-mortem. He had inspected the spot and thereafter the investigation was taken over by P.W.12 Taj Muhammad, S.I./S.H.O.
7. The appellants when examined under section 342, Cr.P.C. Denied the prosecution evidence against them. Appellant Muhammad Hussain denied the recoveries of blood-stained hatchet P.14 and blood-stained Chhuri P.15 at his instance and had stated that the case was falsely made against him. In answer to the question "Have you anything else to say?" he replied that he was innocent and on the day of discovery of the dead body and after receipt of message of P.W.5 Ali Muhammad to the father of Mst. Muniran that the deceased had committed suicide, he alongwith Faiz father of Mst. Muniran and whole family on a tractor-trolly reached the house where the police was present and he was arrested. He, however, stated that P.W.5 Ali Muhammad wanted to marry the sister of Mst. Muniran with the son of his brother-in-law, but Faiz, father of Mst. Muniran co- accused refused and married his two daughters with his two brothers 1-1/2 months earlier to the discovery of dead body. The deceased had participated in the marriage, but P.W.5 complainant' bore a grudge. The relations between the deceased and Mst. Muniran were cordial. He was a married man having children. He had no illicit relations with his co-accused. The story of confession at the house of P.W.9 Nawab was fabricated. He was innocent and had been falsely implicated in this case by the complainant in connivance with the police. He neither produced evidence in defence nor made statement on oath as envisaged under section 340(2), Cr.P.C. Mst.
Muniran appellant also denied the prosecution evidence against her. While making her statement she denied the recovery of Key P.13 at her instance. In answer to the question "Have you anything else to say?" had made the same statement as that of her co-accused and had further stated that she never went to the house of Nawab (P.W.9) to make confessipn. She had been falsely implicated by P.W.5 Ali Muhammad complainant in connivance with the police. The complainant had deprived her of her dowry and the house of he husband and she was bound to live with her parents alongwith her orphan children and the complainant had not even cared for the children of his deceased brother. D.W.1 Muhammad Akhtar had stated that he had written applications Exhs. D.D.
And D.F. On the dictation of Faiz, father of the appellant Mst. Muniran. Mst. Muniran appellant had not opted to make statement on oath as envisaged under section 340(2), Cr.P.C.
8. I have heard the learned counsel for the parties and have perused the record. There is no eye- witness of the present occurrence. The prosecution case rests upon circumstantial evidence i,e, the motive, recoveries, extrajudicial confession and medical evidence.
9. The motive behind the occurrence as stated by P.W.5 All Muhammad complainant in the F.I.R.
Exh.P.C. Was that the appellants had illicit relations. Neither a report was lodged against the appellants by the deceased nor any Punchayat was convened about the existence of illicit relations between the appellants and hence no direction was obtained even from the Punchayat to ask the appellants to discontinue with their illicit relations. P.W.7 Ghulam Samar, a Lambardar stated that he alongwith the deceased visited the house of father of Mst. Muniran to bring her back and there he found appellant Muhammad Hussain present in the house. There were also present in the house the parents of Mst. Muniran and her sisters. P.W.7 further stated that in his presence and that of the deceased and others, the appellants had cut jokes and for that reason he was of the view that the appellants had murdered the deceased. It is surprising that the appellants had cut jokes in presence of P.W.7, the deceased, the parents and sisters of Mst. Muniran, which does not sound to the reason. P.W.10 Allah Din was present at the time of discovery of the dead body of the deceased and had stated that before the murder of Muhammad Yar deceased Mst. Muniran and the deceased used to quarrel with each other and the deceased had stopped Muhammad Hussain appellant from visiting his house and his guess was that Muhammad Hussain and Mst.
Muniran appellants had murdered Muhammad Yar deceased. Nothing was brought on record by the prosecution that the appellants were seen in objectionable position by any person of the locality or by the deceased---husband of Mst. Muniran appellant. There was only suspicion. Neither any report was lodged by the deceased with the police against Muhammad Hussain appellant nor he had stated so before any of his relatives or residents of the locality. In the circumstances, the motive, behind the present occurrence as set up by the prosecution has not been established..
10. The deceased was found dead and his dead body was decomposed and Dr. Shamshad Hussain (P.W.4) had observed two injuries on his person caused with sharp-edged weapon and hard blunt weapon. There is no eye-witness of B the occurrence. None of the P.Ws. Had stated that they had witnessed the appellants inflicting injuries to the deceased.
11. Appellant Muhammad Hussain was arrested by P.W.12 Taj Muhammad, S.H.O. On 23-3-1991 and on the same day he led to the recovery of blood-stained hatchet P.14 from the roof of the residential room of the deceased as well as blood-stained Chhuri P.15 from a tree of date near Saimnala. P.W.12 and P.W.13 had visited the place of occurrence thrice and had not found hatchet P.14 on the roof of the residential house of the deceased whereas the height of the roof was about 7/8 feet. P.W.10 Allah Din had also specifically stated that he alongwith others had searched the whole house as well as the roof. Hatchet P.14 was lying in open on the roof top of the room of the deceased. Blood-stained Chhuri P.15 was found lying near a date tree near Saimnala which is an open place. Crime weapons P.14 and 15 were secured by the police from the open places which were not in the exclusive possession of accused Muhammad Hussain. In the circumstances, recovery of P.14 and P.15 C at the instance of appellant Muhammad Hussain has not been proved on record.The recovery of Key P.13 at the instance of appellant Mst. Muniran has also been disbelieved by the trial Court P.W.9 Nawab and P.W.10 Allah Din have stated about the extra-judicial confession of the appellants. They stated that Mst. Muniran and Muhammad Hussain appellants had come to them and had made extra-judicial confession that due to their illicit relations they had murdered the deceased and they had asked for the help of P.W.9 and P.W.10. The statements made by P.W.9 and P.W.10 before the police Exhs.DA and DB were duly confronted wherein it has not been recorded that Muhammad Hussain appellant had also made extra judicial confession. It is surprising that even if the appellants had made extra-judicial confession before P.Ws. 9 and 10, they had asked them to come after two days when the police would be visiting the spot. They neither produced the appellants before the police after they had made extra-judicial confession nor they had made statements before the police on the same day. They allowed the accused to go and to come to the spot after two days. P.W.9 and P.W.10 had made statements before the police after two days which is not confidence inspiring.
12. Pursuant to the above discussion, I am of the considered view that the prosecution has not succeeded in establishing its case beyond doubt against the appellants and giving the appellants benefit of doubt I acquit them of the charge. They shall be released forthwith if not required in any other case.