' KHALID PAUL KHAWAJA, J.--- By his judgment, dated 25-5-1991 the learned Additional Sessions Judge, Lahore convicted Javaid Iqbal alias Akhtar Shah (42) appellant under section 302, P.P.C. For having murdered Mst. Hanifan Bibi (65) deceased and sentenced him to death and a fine of Rs,20,000 or in default of the payment of the fine to suffer two years' rigorous imprisonment. It was further directed that the fine, if recovered, should be paid to the heirs of the deceased by way of compensation. The appellant was further convicted under section 460, P.P.C. And sentenced to ten years' rigorous imprisonment and fine of Rs,5,000 in default whereof he had to suffer six months' rigorous imprisonment.
2. The occurrence took place on 8-6-1990 at about 2-30 a.m. In the house of the complainant Muhammad Siddique P.W.1, the husband of the deceased, situated in Ghazni Street No,6 outside Bhati Gate, Lahore which was at a distance of half a kilometre from Police Station New Anarkali.
3. The occurrence was reported by Muhammad Siddique P.W.1 aforesaid on the same day at 3-00 a.m. To Inspector/S.H.O., Alamdar Hussain Shah, P.W.13 through statement Exh.P.A. Which the latter recorded in the Urdu Bazar, Lahore. On the basis of the said statement formal F.I.R. Exh.PA/1 was recorded by Moharrir A.S.I. Aish Muhammad P.W.9 on the same day at 3-10 a.m. At Police Station New Anarkali, Lahore.
4. The prosecution case as per F.I.R. Is that Muhammad Siddique P.W.1 alongwith his wife Mst.
Hanifan Bibi deceased was living in his house situated in Ghazni Street No,6 outside Bhati Gate, Lahore. In the neighbourhood the house of Mian Tausif was under construction where Javaid Iqbal alias Akhtar Shah appellant was working as an electrician and used to sleep on the top floor of the said under-construction house. Two days prior to the occurrence at about 9 a.m. When the deceased was going upstairs she saw the appellant coming down from the house of the complainant but on seeing the deceased he went back to the under-construction house. On this the deceased asked him as to why he had come to her house. The appellant denied having done so and when he was preparing to sleep on the top floor the deceased forbade him on the ground that she, and other females of the family were also sleeping on the roof of their house as a result of which their privacy would be violated. On this both of them had an altercation. The deceased asked the appellant not to sleep there on which he threatened that she would not be left alive to raise such objection. On the same night she narrated the incident to, the complainant. On the next morning the complainant asked the appellant as to why he had quarrelled with his wife who on the other hand blamed the deceased. Meanwhile Manzoor Ahmad Contractor (D.W.1) under whose supervision the house of Mian Tausif aforesaid was being constructed came there and the complainant narrated the incident to him in the presence of Muhammad Sadiq (the brother of the complainant who was not examined). Manzoor Ahmad aforesaid assured that he would take back the keys of the house from the appellant who would not sleep in the said house again. On the fateful night the complainant and the deceased slept on the roof of their house. About 2 a.m. He woke up and found that the deceased was not on her cot. He thought that she might have gone to the latrine and went to sleep again. At about 2-30 a.m. He again woke up and found that the deceased was not on her cot and was lying near the eastern wall of the house drenched in blood.
She had a sharp-edged weapon injury on the left side of her neck. The complainant expressed his suspicion that the appellant had murdered the deceased because she had objected to his sleeping on the top floor of the under-construction house.
5. Muhammad Siddique complainant P.W.1 was going to the police station to report the matter, when on his way at Chowk Urdu Bazar he met S.H.O. Alamdar Hussain Shah, P.W.13 who recorded his statement Exh.P.A.
6. After sending the abovementioned statement of the complainant to the police station for formal registration of the F.I.R. The S.H.O. Proceeded to the place of occurrence and on reaching there prepared rough sketch of the spot Exh.P.K. He prepared the injury statement of Mst. Hanifan Bibi deceased Exh.P.L. And inquest report Exh.P.M. He took into possession Chhuri P.5 which was lying on the cot of the deceased vide memo. Exh.P.G. Then he secured a blood-stained Chhuri P.4 from the shed of the staircase of the complainant's house vide memo. Exh.P.F. Both the Chhuris were sealed into separate parcels. He then took into possession and sealed into a parcel blood from the place of occurrence vide memo. Exh.P.D. A pair of blood-stained shoes Exh.P.3/1-3 belonging to the deceased was also taken into possession vide memo. Exh.P.E. He despatched the dead body for post-mortem examination. Later on he got the site plans of the place of occurrence Exhs.P.H. And P.H./1 prepared through Younas Ali Shah, Draftsman P.W.B. On 16-6-1990 he arrested Javaid Iqbal appellant. On the transfer of S.H.O. Alamdar Hussain Shah, P.W.13 the investigation was entrusted to P.W.12 Muhammad Ajmal, Inspector C.I.A., Kotwali, Lahore. He concluded the investigation and challaned the appellant.
7. On 10-6-1990 at 9 a.m. Dr. Azhar Abid Raza P.W.11 conducted postmortem examination on the dead body of Mst. Hanifan Bibi deceased who was aged about 65. He found the following injuries on it:-- ' Injuries:
(1) Incised wound 10 x 6 c.m. With tail on left side situated at front and left side of the neck starting from mid line 7 c.m. Below chin and 5.5 c.m. Below left ear and 3 c.m. Above supra sternal notch.
Treachea, thyroid gland, all the structures of anterior triangle of neck, sterno mastoid muscle and underlying vertebral body on left side were cut.
' Internal examination revealed that other organs of the body were healthy. In his opinion the injury in question was ante-mortem, sufficient to cause death in the ordinary course of nature and had been caused with a sharp-edged weapon. He further opined that death had been caused by the said injury resulting in damage to treachea and major blood vessels causing severe haemorrhage and shock. Time between injury and death was immediate and between death and post-mortem was 2 to 3 days. Exh.P.J. Is the correct carbon copy of his post-mortem examination report while Exh.P.J./1-2 are the diagrams showing the location of injury.
8. The appellant was formally charged under sections 459 and 302, P.P.C. He pleaded not guilty and claimed trial.
9. The prosecution examined 13 witnesses in support of its case.
10. In his statement under section 342, Cr.P.C. Javaid Iqbal appellant denied having caused the death of Mst. Hanifan Bibi deceased. He denied the allegations levelled against him in the prosecution evidence and maintained that he had been implicated due to suspicion. He made a statement on oath under section 340(2), Cr.P.C. He also examined Maznoor Ahmad Contractor D.W.1, Abdul Ghaffar D.W.2, Manzoor Hussain Naqvi D.W.3 and Muhammad Hussain D.W.4 who deposed about his innocence.
11. After considering the evidence on record and hearing the parties' learned counsel the learned trial Court convicted and sentenced the appellant as stated above.
12. Feeling aggrieved the appellant has come up in appeal while the learned trial Court has referred the matter to this Court for confirmation of his death sentence under section 374, Cr.P.C. Since both the matters are interconnected and arise out of the same judgment we propose to dispose them of by this judgment.
13. We have heard the parties' learned counsel at quite some length and have also gone through the record with their assistance.
14. At the very outset it may be pointed out that there are no eyewitnesses in this case because nobody had seen the appellant inflicting any injury on Mst. Hanifan Bibi deceased. The entire evidence produced against him is circumstantial in nature. We have to examine if the said evidence was sufficient for the conviction of the appellant.
15. P.W.1 Muhammad Siddique complainant the husband of the deceased has restated the facts contained in the F.I.R. P.W.2 Muhammad Rafiq who is a nephew of the complainant has stated that on the fateful night at about 12-00 or 12-30 mid-night he woke up after having a nightmare and found Javaid Iqbal appellant coming down from the house of the complainant and consequently going out of the said house. He further stated that when he also came out of his house which was opposite to the house of the complainant, the appellant ran away. According to him Muhammad Bashir Gujjar (not examined) and Muhammad Siddique complainant had also joined him and he had narrated to them what he had seen. Besides the testimony of these two witnesses the prosecution has relied on the statement of Asghar Ali P.W.5 to prove the recoveries.
16. The testimony of the other witnesses examined by the prosecution is of formal nature only. P.W.3 Haji Shah, Head Constable, P.W.4 Pervaiz lqbal Constable, P.W.6 Muhammad Sabir, P.W.7 Muhammad Afzal Constable, P.W.8 Younas Ali Shah Draftsman, P.W.9 Aish Muhammad A.S.I., P.W.10 Ashgar All Head Constable, P.W.12 Muhammad Ajmal Inspector and P.W.13 Alamdar Hussain Shah, S.H.O. Were associated with the investigation of the case and have deposed about the taking of the dead body to the mortuary for post-mortem examination, identification of the said dead body, preparation of recovery memos. And keeping in safe custody of parcels containing bloodstained articles recovered from the place of occurrence. P.W.11 Dr. Azhar Abid Raza has provided the medical evidence.
17. First of all we will take up the prosecution evidence about recoveries. A pair of blood-stained Chappals Exh.P.3/1-2 belonging to the deceased was recovered from near her cot and taken into possession vide memo. Exh.P.E. Blood-stained Chhuri P.4 was recovered from the shed of the house and sealed into a parcel vide memo. Exh.P.F. Another Chhuri P.5, not stained with blood, which was lying on the pillow of the deceased was also recovered and taken into possession vide memo.
Exh.P.G. These articles were not recovered from the appellant nor did he lead to their recovery. The recovery of these articles, therefore, does not connect him with the crime charged against him.
18. Muhammad Siddique P.W.1, the complainant, has mainly deposed what he had allegedly heard from the deceased. His entire statement, even if it is accepted as true, does not prove the guilt of the appellant and at the most creates a suspicion against him. A suspicion howsoever strong it may be cannot attain the position of proof which in the present case is needed. Even otherwise it is very difficult to rely on his solitary statement which does not get any support from the material available on record. According to him he had complained to Manzoor Ahmad, Contractor about the conduct of the appellant in the presence of his (complainant's) brother Muhammad Sadiq and had narrated what the deceased had told him. Muhammad Sadiq aforesaid was not examined, Manzoor Ahmad, Contractor was also given up and was examined by the appellant as D.W.1. He did not support the complainant and rather contradicted him by saying that the only complaint of Muhammad Siddique P.W.1 was that their (his and his wife's sleep was disturbed by the appellant who worked the whole night in the adjacent under-construction house of Mian Tausif). He was cross-examined but no question was asked from him about any dispute or quarrel which the appellant had allegedly picked up with the deceased. This omission on the part of the prosecution adversely affects its case.
19. This brings us to the most important piece of evidence on which the prosecution has relied i,e, the statement of P.W.2 Muhammad Rafique. He is the nephew of the complainant. According to him he had narrated to the complainant and Muhammad Bashir Gujjar (not produced), prior to the lodging of the F.I.R., what he had seen. A bare reading of the F.I.R. Reveals that he finds no mention therein. According to P.W.12 Muhammad Ajmal, Inspector who had also investigated the case, his statement under section 161, Cr.P.C. Was recorded on 12-8-1990 i,e, 4 days after the occurrence. This inordinate delay in recording his statement has not been explained. Even in his statement before the learned trial Court as P.W.1 the complainant did not say anything about him or what he had allegedly seen. All these circumstances render his testimony highly doubtful. It is not safe to place any reliance on it in a criminal case. Even otherwise his testimony is highly improbable and unnatural. According to him he had seen the appellant coming down from the house of the complainant and getting out of it at 12 or 12-30 mid-night. On seeing the appellant going away he had come out of his house and asked him what was he doing there on which the appellant had allegedly slipped away. Immediately, thereafter, the complainant came there and told that his wife had been murdered. This means that the occurrence had taken place at or about 12-30 a.m. And the factum of murder had come to the notice of the complainant immediately thereafter. However, the complainant gave an altogether different story and stated that he had come to know about the murder of his wife at 2-30 a.m. This contradiction indicates that the prosecution had tried to concoct a false story to implicate the appellant. A very important question arises if the appellant had come down from the adjacent house of Mian Tausif on to the roof of the house of the complainant to murder his wife, why did he not go back to the said house quietly and why did he choose to make an exit from the house of the complainant. In our view it is not safe to place any reliance on the testimony of Muhammad Rafique P.W.2 which even on legal grounds cannot be used against the appellant. Perusal of the record has revealed that the statement of Muhammad Rafique P.W. Was never put to the appellant in his statement under section 342, Cr.P.C. Thus, he was not afforded an opportunity to explain his position vis-a-vis the evidence which the prosecution wanted to use against him. It is well-settled principle of law that a piece of evidence on which the prosecution relies could not be used against the accused until and unless the same was put to him during his examination under section 342, Cr.P.C. For affording an opportunity to him to give an explanation. There are a number of authorities on this point out of which reliance was placed by the learned counsel for the appellant on Abdul Wahab v. The Crown PLD 1955 FC 88, Shadoo alias Shahzado v. The State 1989 PCr.LJ 1093 (Karachi), Atta Muhammad and 2 others v. The State 1994 PCr.LJ 181 (D.B. Lahore) and Jehandad v. The State PLD 1994 Pesh.
279. In this view of the matter we have no hesitation in holding that the statement of Muhammad Rafique P.W.2 cannot be used against the appellant, and therefore, the same is excluded from consideration.
20. After having thoroughly gone through the record we have come to the conclusion that the murder of Mst. Hanifan Bibi deceased is shrouded in mysterious circumstances. It is strange that the poor old lady was murdered at a distance of less than four yards from the place where her husband, also an old man of 65 years of age, was sleeping but he did not wake up. The recovery of two Chhuris from the place of occurrence suggests the possibility that there were two assailants.
Blood-stained Chappals of the deceased were found near the cot of the deceased but her throat was slashed 8-1/2 feet away from the said cot. Did someone remove those Chappals from the actual place of murder to the said cot after the occurrence if so why? The prosecution has not answered these questions. We are of the opinion that when the deceased was murdered nobody was near her. It was an unseen occurrence and since the complainant had a suspicion against the appellant he implicated him.
21. The upshot of the above discussion is that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. Actually this is a case of no evidence. We, therefore, accept this appeal and giving the benefit of doubt to the appellant acquit him. He shall be released forthwith if not1 H required in any other case. Murder reference is answered accordingly.
' Death sentence not confirmed.