JUDGMENT RAJA ABDUL AZIZ BHATTI, J.- Jamal Nasir son of Abdul Mateen aged 28 years resident of R-Block, Attock City has been convicted under Section 302 PPC for the murder of Mst. Sheerin Begum daughter of Hafiz Sher Muhammad son of Ghulam Muhammad, resident of Attock City. The learned Sessions Judge, Attock convicted the appellant and sentenced him to imprisonment for life and a fine of Rs. 5000/-, in default whereof to further undergo two years R.I. The convict has also been awarded benefit of Section 382-B Cr.P.C, vide judgment dated 26-06- 1986.
2. Through the present appeal, the appellant has challenged the judgment of the learned Sessions Judge, Attock, whereby he has been convicted and sentenced. Criminal Revision has been filed by the complainant party seeking enhancement of the punishment awarded to the convict. Through this order both Criminal Appeal and Criminal Revision will be disposed of.
3. Hafiz Sher Muhammad son of Ghulam Muhammad resident of Attock City, PS City District Attock lodged report in the Police Station on 10-08- 1985 at 6.30 PM to the effect that he married with Mst.
Surrya Begum about 25 years ago. Out of this wedlock Mst. Sheerin Begum now deceased and a son namely Muhammad Shams were born. About one year ago Qazi Jamal Nasir, the present appellant sent his mother and sister to demand the hand of Mrt. Sheerin Begum for him but it was refused by the complainant. During those days the appellant often used to Visit to the house of the complainant and in that course, according to the complainant he developed illicit relations with Mrt. Sheerin Begum. It has also been stated by the complainant that Mrt. Sheerin Begum did not like to mary Jamal Nasir without the consent of the other family members, whereupon the appellant warned the complainant that he would murder her if the hand of Sheerin Begum is not given to him.
4 He further stated that on 10-08-1985 at 10.00 AM he went to his shop located in Civil Bazar, Attock City, while his daughter Mrt. Sheerin Begum was present in the house all alone. At about 5.00 PM Mrt. Surrya Begum were of the complainant and his son Shams, who lived in Mohallah Mehrpura came to his house and when they were near the door of the house they saw Jamal Nasir coming out from the Bethak and went away quite swiftly. According to him when his were and son entered into house they did not find Mrt. Sheerin Begum. They started searching for Mst. Sheerin Begum and in that course when they entered the residential room they saw that certain articles were lying scattered in the room. In that process they opened the big box lying in that room and found dead body of Mst. Sheerin Begum therein. At that time there was a rope around the neck and her both legs and hands were also tied, while the dead body was totally naked. There was some blood on the floor. The complainant has further mentioned that the motive for the offence was that Jamal Nasir was refused the hand of Urn deceased Mst. Sheerin Begum. On the report of the complainant case FIR No.14 dated 10-8-1985 was registered in Police Station City District Attack under Section 302 PPC, at 630 PM while the occurrence took place at dopeher wella, whereas distance between the place of occurrence and police station is half kilometer. FIR is Ex.PH.
5. During investigation the accused was found guilty and challaned to the Court for trial.
6. The prosecution produced 11 witnesses during trial. PW1 Muhammad Hanif, Draftsman, who prepared the site plan which is Ex.PA.
7. PW 2 Muhammad Siddique, HC was working as Muharrir HC at PS Attock City. He was given one sealed parcel containing blood stained earth by Muhammad Nasim, Inspector/SHO for keeping in safe custody on 19-08-1985. Sealed parcel containing danda was also delivered to him. On 24-08- 1985 both these parcels were handed over to Muhammad Siddique FC (PW3) for onward transmission to the office of the Chemical Examiner, Lahore. PW3 Muhammad Siddique, FC delivered these parcels to the office of the Chemical Examiner, Lahore on 24-08-1985.
8. PW4 Shamsher Ali, ASI/IO, joined the investigation and in his presence blood stained danda was taken into possession on 19-08-1985 on the disclosure of the accused, which (P-5) was secured and made into sealed parcel; vide Memo Ex.PC. No witness from the public was associated for the recovery. According to him the place of occurrence is surrounded by many other residential houses. The room from which danda was taken into possession, its lock was opened by Sher Muhammad PW. He further stated that danda was lying open on the floor. Sher Muhammad was not cited as recovery witness by the investigating officer. The witness showed his ignorance as to whether the danda was blood stained in its middle or not.
9. PW5 Zafar Hussain, identified the dead body of Mrt. Sheerin Begum at the time of her post mortem. In cross-examination he admitted that the complainant's were Mrt. Surrya Begum and his son Muhammad Shams PWs have been living in Mohallah Mehrpura at that time, while Sher Muhammad had been living with his daughter in Mohallah Shed.
10. PW 6 Gul Muhammad, stated that police had secured blood stained earth in his presence and made into a parcel vide Memo Ex.PD. It bears his thumb impression. The investigating officer also secured certain dabas of ornaments vide Memo Ex.PE. One dopata P13 was secured in his presence and Allah Ditta from the bethak. In cross-examination he voluntarily stated that he had no acquaintance with Sher Muhammad. He stated that he reached the place of occurrence at about 7/8 PM. No person of the Mohallah was present at the time of recovery. The complainant and his son were not present at the time of recovery.
11. PW 7 Dr. Ataullah, Medical Officer, conducted the post mortem examination of the dead body of Mrt. Sheerin Begum, which was brought by Muhammad Siddique, FC and identified by Abdul Ghaffar and Zafar Hussain PWs. According to him the dead body was without clothes. Rigor mortis was partially present. According to Doctor two well defined and depressed ligature marks, one at the level of thyroid cartilage and other 2 Cm below it, completely encircling the neck were found.
On dissection there is extra bastion of blood in sub coetaneous tissues, under the ligature as well as in the adjacent muscle. He further stated that there was a lacerated wound deep on left parieto occipital region of scalp and clotted blood was present around the wound. An abrasion was present on back of her both elbows. The deceased died because of asphyxia caused by constriction of neck, as a result of injury No.1, which was sufficient to cause death in ordinary course of nature. All the injuries were ante mortem and caused by blunt weapon. The probable time that elapsed between death and post mortem examination was about 18 hours. Post mortem report is Ex.PG. He has not recorded any opinion about the injury No.2 of the post mortem report.
12. PW8 Sher Muhammad, the complainant and father of the deceased Mrt. Sheerin Begum, has admitted that Mst. Surrya Begum and Muhammad Shams are his were and son respectively. He married Surrya Begum about 28/19 years ago. At the time of occurrence the were and the son were living in Mohallah Mehrpura permanently. While he was living in Mohallah Shed, the place of occurrence. The witness stated that about one year prior to this occurrence the mother and sister of the accused approached him for the hand of Mrt. Sheerin Begum for the accused, to which he did not agree but inspite of that the accused kept approaching him through certain persons. He insisted to say that the hand was refused by him to the accused as he was poor as well as illiterate person. He claims to be millionaire. He further admitted that the accused developed relations with the deceased through the intervention of his mother and sister. The accused had been visiting his house and he had prevented him from doing so. He told that accused asked him to give the hand of deceased, otherwise he would murder her in examination-in-chief he stated that on 10-08-1985 he had gone to his shop at about 10.00 AM and returned at about 5.00 PM, when his were and son were already standing in the street. He claims that in his presence after opening the door of bethak the accused escaped, when he identified him. Thereafter he entered the house through the same gate and called his daughter but there was no response. He reached the residential room and saw that house-hold articles were lying scattered. The boxes meant for keeping clothes were not in proper order. He opened the box (peti), where dead body of the deceased was lying naked rope was tied around her neck, hands were tied behind, and her feet were also tied with rope. He saw blood lying on the ground. When he saw all this, he raised cries and number of people were attracted. He then went to police station to lodge the report, which was recorded by Muharrir.
According to him, Inspector/SHO was also present over there. He endorsed the FIR Ex.PH. On his report and after the registration of the case Inspector/SHO and other police officials came to the place of occurrence, completed the formalities and despatched the dead body to the mortuary for post mortem examination. After despatching the dead body, the complainant's version is that he checked his belongings and found that ornaments weighing about 45 tolas and a cash of Rs.25,000/- was also missing. In cross- examination he admitted that police station was at the distance of half kilometres from his house. He denied that the accused developed illicit relations with the deceased through her mother and sister. He admitted that his were and son were living separately. A/sf. Surrya Begum is his second were. She was Christian and embraced Islam after marriage. He admitted that he had a daughter from his first were, who is married and another daughter who died and had left issues. He claimed that he has got 70/80 houses in Mohallah Mehrpura and had not alienated any property either in the name of Mst. Surrya Begum and Muhammad Shams PWs. He further admitted that he had not stated in the FIR that he happened to see the accused going out of the house through bethak when he had entered the house, searched for the daughter raised cries, and some persons were attracted. In cross-examination he deposed that Muhammad Shams was suspected for this murder. An important fact has been admitted by this witness that the police had secured the clothes of the deceased in his presence and no search was conducted to procure or locate the clothes which the deceased was wearing at the time of occurrence. He further admits that the place of occurrence is situated in a populated locality. This witness admits in the last portion of his cross-examination that he was challaned under Section 411 PPC in connection with theft of fans pertaining to Civil Hospital, Attock. He was proceeded under Preventive proceedings and Control of Goondas Act and detained for three months. He was convicted by Military Court and sentenced to R.I. For one year and fine of Rs.10,00,000/-. He was challaned under Section 61-1-14. According to him he has litigation with his brother over property, whose residential house is adjacent to the place of occurrence.
13. PW 9 Mst. Surrya Begum, were of the complainant, stated that during her absence the accused developed illicit relations with the deceased and she had been preventing the accused from coming to their house. Regarding occurrence, she stated that she along with her son Muhammad Shams PWs had just reached in front of the house at about 5.00 PM, when her husband also came over there just at that time. The convict Jamal Nasir came out of the bethak and went away swiftly.
She stated that the accused simply saw towards them and they also saw, him, thereafter they rushed into the house through the door of the said bethak. The deceased was not seen in the house. They started calling her but there was no response, as such search was carried out and found that house-hold articles were lying scattered. Some blood was lying near the box and when that box was opened dead body was lying naked in the box. Her hands and feet were tied with a rope and also her neck. Certain injuries were seen on her person and the blood was coming out of the injuries. According to her the accused developed illicit relations with the deceased one year prior to the occurrence. She admitted that both father and daughter were living alone in the house.
She was living separately in Mohallah Mehrpura because, she had to look after the property of Mohallah Mehrpura and had to impart religious education to the children of Mohallah Mehrpura.
According to her the house of the accused was situated in the same street, where the occurrence took place. She was confronted regarding the factum of her husband's arrival when this witness and her son had just reached and about the entry of her husband in the house at that moment.
The controversial portion is contradicted by Ex.DA. She denied that her son Mohammad Shams was suspected for this murder. According to her Muhammad Shams PW is private student and he was not admitted in any college. She denied that her husband was challaned in any other criminal case.
14. PW 10 Muhammad Shams, is the son of complainant. He stated that just after their arrival out side the house his father came there and Qazi Jamal Nasir accused came out of the bethak and ran away. When they entered the house, they did not find Mrf. Sheerin Begum there. They started for the search of the deceased. Certain articles were lying scattered. The box was opened, where dead body was found lying naked with her hands and feet tied with a rope. He denied that he was suspected regarding this murder. He admitted that he produced defence evidence before the police regarding his innocence. He stated that he and his mother came to the house of his father without any specific purpose. He stated that he with his mother and father entered the house through bethak. The Ex.DB contradicts this version. He admits that clothes of the deceased were not taken into possession in his presence. He has not made any statement as to whether the clothes of the deceased were searched out or not at that time in the house.
15. PW 11 Muhammad Nasim, Inspector/IO, carried out investigation. He admitted that there are houses on three sides of the place of occurrence. No witness from the locality was found or examined who could say anything about the occurrence, especially about the accused and his entering the place of occurrence. According to him, only Myt. Surrya Begum and Muhammad Shams had seen the accused coming out of the bethak and contradicts the presence of the complainant. He stated that only dopatta of the deceased was found in the house which was not blood stained. The other clothes of the deceased including her shirt and Shalwar were not traceable in the house. The danda was lying open in the room. He categorically admitted that Muhammad Shams son of the complainant was associated with the investigation as suspect and he produced witnesses in his defence. He has further stated that no other witness appeared to support the alleged presence of Muhammad Shams and Mst. Surrya at about 2.00 to 5.00 PM near the place of occurrence.
16. The reports of the Chemical Examiner Ex.PL, Ex.PM and Serologist report Ex.PN were produced and thereafter the prosecution case was closed.
17. Learned Trial Court examined the accused under Section 342 Cr.P.C. The appellant/convict stated in this statement that he has been falsely involved in the case only on the account of suspicion and in order to save their on kiths and kins as well as their skin. He admitted that his only part was that his mother and sister demanded the hand of the deceased a year before the occurrence and except this solitary demand he never approached Sher Muhammad PW or his family again for that purpose. He further stated that Sher Muhammad PW involved him to save his son Muhammad Shams PW. After the recording of the statement under Section 342 Cr.P.C, the accused/convict Jamal Nasir also appeared and made statement on oath in his defence. In the statement he reiterated the same version. The plea of defence is that he was involved falsely in this case. However, nothing important was traced out through cross-examination by the prosecution from Jamal Nasir accused/convict.
18. The learned Sessions Judge, convicted the appellant as mentioned above. In the judgment the Trial Court was mentioned that from the perusal of FIR Ex.PH, the complainant PW8 Sher Muhammad was not present when the accused came out of the house through bethak. He also referred the portion of the statement of the Inspector/SHO/IO, who deposed that the complainant was not an eye witness of the occurrence (who allegedly saw the accused coming out of the bethak after occurrence). Learned Trial Court has also admitted that there are certain undue improvements and .Discrepancies in the statement of the witness. The Trial Court has believed the recovery of danda P5, which allegedly found blood stained as per report of the Chemical Examiner.
The version that the accused demanded the hand of the deceased and his request was not accepted by the complainant has been accepted by the Trial Court. No where in the judgment it is mentioned that the deceased was not willing to mary the appellant. Inference drawn by Trial Court from the prosecution evidence is that all the material brought on the record went against the appellant and he was thus convicted and sentenced.
19. I have heard the arguments of the learned counsel for the parties and perused the record with the able assistance of the counsel. Here it may be mentioned that when the learned State counsel ZA. Bhutta was called upon to argue the case and to rebut the contentions raised by the learned counsel for the petitioner/appellant, he without any hesitation stated that prosecution case was very weak. He even made no pause in stating and demanded the acquittal of the appellant.
20. Learned counsel for the appellant raised certain contentions which are worth consideration to appreciate the evidence and circumstances of this case. It has been stated before the Court that the complainant was not present when allegedly the accused/convict was coming out from the bethak. Undue improvements were made during the Trial by all the three witnesses father, mother and brother of the deceased by making complainant's presence just at the moment when Mst.
Surrya Begum and Muhammad Shams PWs were arrived near the house.
21. It is an admitted fact that Ms/.Surrya Begum and Muhammad Shams PWs lived separately quite away from the place of occurrence and there was no specific job for them to come just at that moment when the accused had allegedly came out of the bethak. Their separate living from the complainant can not be an ordinary course of living. Either they had strained relations or on some other exceptional grounds, especially when divided family was living in the same city. The inference which can be drawn in these circumstances is that either they were not present and latron they made statement which is highly doubtful, The deceased was found naked and her last worn clothes were neither found in the house nor there was any evidence to show that the appellant while leaving that house had taken away. This fact leads to conclude that the father, brother and mother of the deceased if they were happened to come just after the occurrence, should have produced those clothes to the police. Failure on their part makes to believe that the clothes were either concealed or destroyed by these PWs and none else. During investigation and after the arrest of the appellant nothing was recovered from him and it is not the case of the PWs that the appellant took along the articles and ornaments etc. These facts make the prosecution case doubtful.
22. It is the case of the prosecution that the appellant had illicit relation with the deceased stretching over the period of one year, the demand of hand of the deceased was refused either by the father or by other family members, but admittedly not by the lady (deceased). None of the PWs have stated that at any stage deceased refused to mary the appellant. This being so, natural out- come is that the father, brother and mother had grudge not only against the appellant but also against the deceased, which resulted in her murder, either by the father or by brother etc. None production of independent PW, residing in the locality with the aforesaid background is damaging factor against the prosecution. After discussing the prosecution story it will be important to analyse that when relation between the deceased and appellant are admitted then in that case it will be un-natural to say that appellant would have committed this murder. The virginal swabs sent to Chemical Examiner for analysis, have been found not stained with semen. She was not subjected to sexual intercourse. Had the swa bs were found stained with semen, some presumption could be drawn against the appellant? Putting dead body in the box is a mysterious phenomena on the part of the person who committed murder. Had it been the paramour, a murderer, he would not have put the body in the box? It is some thing over doing. The dead body was put in the box her clothes were stripped of; concealed, not produced before the police and negative result of swabs, lead to believe that the appellant could not be expected to behave in this manner, had he been connected with the crime.
23. There is delay in lodging the report especially, keeping in view of the distance between the place of occurrence and police station. There is no eye witness of the occurrence. Vajtaker evidence is not reliable, because of their close relationship interse. They are chance witnesses, questionable improvements have been made by them in their statements, which do not fit in the affairs. Effecting recovery of danda, when it was lying open in the room after lapse of many days by the police seems to be absurd. Hence not believable. Thus the prosecution case is highly doubtful.
24. For the foregoing reasons, the appeal is accepted, the impugned judgment is set-aside and the appellant is acquitted. The appellant is already on bail and his bail bond is-discharged. The Criminal Revision No.36/87 is dismissed.