MUHAMMAD AFZAL ZULLAH, J.-Mubarak Ali, aged 26 years has been convicted and sentenced to death under section 302, P. P. C. By the Additional Sessions Judge, Lahore Camp, Sheikhupra, vide his judgment, dated 8th August 1968. The convict has appealed and the case is also before us under section 374, Cr. P. C., for the confirmation of the death sentence.
2. The prosecution case, as disclosed in the evidence, is that Afzal Ahmad (P. W. 2) wanted his daughter Mst. Mussarat Bibi to marry Rehmat Ullah deceased, after getting divorce from her husband Ali Akbar (P. W. 20). The appellant who is the real brother of Mst. Mussarat Bibi did not like this idea because he wanted her to remain faithful to her husband. There was another cause for estrangement between the father and the son (appellant) on account of the fact that Afzal Ahmad had contracted a second marriage with Mst. Zeenat Begum, in 1947. She used to live with him while the appellant and his mother along with her other children started living in the house of his maternal grand--father at lyallpur and was not on visiting terms with his father. The mother of the appellant had died in 1959/60 and it was in these circumstances that with the concurrence of the maternal grandfather, the, appellant had given the hand of his sister Mst. Mussarat Bibi in marriage to Ali Akbar, mentioned above. This circumstance also, it has been suggested, was a motive for the appellant having, resented the idea of his father to get a divorce from Ali Akbar for Mst. Mussarat Bibi and. To marry her with Rehmat Ullah deceased.
Negotiations in respect of the proposed marriage were going on- between Afzal Ahmad on the one side and the deceased and his brother Muhammad Saeed (P. W. 23) on the other, when the former took employment with Sunshine Cotton Mills, Sheikhupura on 1st May 1967 and occupied a bungalow in the Mill premises. Before that, he was living at Lyallpur. On the morning of 17th May 1967, Afzal Ahmad left his bungalow for Lahore in connection with his duty. As nobody else was living with him at that time, he locked the bungalow and kept the key with him. On 21st May 1967, he returned to his bungalow at about 6 p,m. And found that the dead body of Rehmat Ullah was lying in one of the rooms. He immediately locked the bungalow and reported this matter to Mr. Latif Sheikh (P. W. 21) who is the Manager of the Mill. After leaving a Chowkidar (Mohd, Zaman P. W. 5) at the spot, Afzal Ahmad went towards the police station and made his report to Aman Ullah, A. S. I. (P.
W. 28), on the way at the place near Khanpur canal bridge. On this report which is Exh. P. A. The case was sub--sequently registered at Police Station Warberten at 9 p.m.
3. Dr. Mohammad Aslam (P. W - performed the autopsy on 22nd May 1967 at 12 noon. He found the following two wounds: --
(1) An incised wound 3-- x --" x 3" deep oil the left side of the neck extending from midline to the outer side up to a distance of 1-- from the ear and 1" below the angle of mendible cutting the muscle underneath left side of larynx in the upper part and left common carotedartely. There was also--" deep cut in the 5th cervical vertebra on the left side with fracture.
(2) An incised wound 1-- x --" skin deep on the left side of neck 1" behind the ear."
The bladder and stomach were found empty. The death was due to haemorrhage and shock caused by injury No. 1 inflicted with a sharp-edged weapon. The time between the injuries and death was about 15 to 30 minutes and that between the death and the post-mortem was about 64 to 80 hours. According to this opinion the death, may have taken place on 19th May 1967 within 4 a.
Into 8 p. m.
4. The prosecution had made an effort to connect the appel--lant with the crime, by producing the evidence of "last-seen". Therefore, it is necessary to give a resume of that evidence. Muhammad Mushtaq (P. W. 4), a cousin of the deceased, who is resident -of Lyallpur, stated that on 18th May 1967, at about 3 p. m., he met the deceased at Lyallpur. The witness was told that the deceased wanted to go to Afzal Ahmad P. W. At Sheikhupra on next moning, i.e. 19th May 1967, in connection with the negotiation for the marriage of Mst. Mussarat Bibi to him. Muhammad Zaman (P. W.5), Muhammad lqbal (P. W. 6), Sana Ullah (P. W. 8), Muhammad Sadiq (P. W.10), Bashir Hussain (P. W.
4), Mahboob Ali (P. W. 18) and Latif Sheikh (P. W.21) deposed that they saw the appellant in the Mills on 17th May and the appellant and the deceased on 18th May in the Mills at Sheikhupura. Iqbal P. W.
Told the appellant that his father was away. Therefore, the latter stayed for the night with the witness. The deceased gave a ruqqa to Zaman P. W. On 18th May 1967 to be delivered to Afzal Ahmad. The appellant told Iqbal P. W. On the same day that he had obtained the key of his father's bungalow and that he and his companion (the deceased) were staying therein. Bashir Hussain (P.
W. 14) was told by the deceased that he had come to the Mills to seek, employment. These witnesses stand contradicted by Mushtaq P. W. On the question of the presence of the deceased in the Mills on 18th May 1967 because on that day, according to this witness, he was at Lyallpur and was to proceed to Sheikhupura on 19th Sanaullah (P. W. 8) stated that he saw the appellant and deceased together in the Mills on the morning of 19th May. Ahmad Ali (P. W. 9) stated that a portion of Afzal Ahmad's bungalow was lying used as a store. There is one entrance to the entire 16ungalow and the key thereof was with him. One day, in or about May 1967, when he went to Afzal's bungalow, he found it locked but the appellant was standing there. The witness had opened the store portion.
The appellant requested 'him to open his father's portion also, whereupon he opened that lock also with his own key. He left the lock (the lever-pressure one) on the door in opened condition and took away the key, On the next day which was a Friday, he went to a mela on the rehra of Inayat Mochi (P. W. 12). Sadiq (P. W. 10), Mukbtar (P. W. 11), Ilam Din (P. W. 13) and the appellant were also in the relrra. The appellant asked the driver to take them to the mela by 7 p. m. And promised to give him Rs. 2 as reward. They reached the mela 5 minutes late; therefore the appellant paid only Re.
1. After that, the appellant went away from tnela and was not seen again. This witness also stated that the appellant had exchanged two currency notes of Re. I denomination which he had earlier washed, with Sadiq Mali because they had been stained with katha. Sadiq Mali P. W. However, stated that the notes obtained by him in exchange were spent by him in the mela. All the above-mentioned' witnesses have supported the statement of Ahmad Ali P. W. In so far as the above two incidents qua the rehra and the currency notes are concerned. But they are of no conse--quence in the case because they do not connect the appellant with murder. Sadiq (P. W. 10) also stated that on the morning of 19th May 1967, he saw the deceased and the appellant together at Afzal Ahmed's bungalow. At about 4 p.m. When he again visited the bungalow, the appellant was alone and, on the enquiry of the witness, stated that the deceased had left for Lyallpur. This witness also disclosed that on 20th May 1967, Afzal Ahmad returned to his bungalow. On being informed that hi; son Mubarak had visited the place, he said that in future his son should not be allowed to enter his bungalow. It is significant to note that the witness did not inform Afzal Ahmad that the deceased was also with the appellant. In cross-examination, he admitted that after his encounter with Afzal Ahmad at his bungalow on 20th May 1967, the latter again left for Lahore in his presence after staying in the bungalow for 2/3 minutes. 1t is not known as to whether Afzal Ahmad had come to his bungalow between 17th and 19th May 1967. But it is established that he was seen there twice on the 20th. The possibility that he may have come to his bungalow earlier, cannot be excluded. This witness also stated that none of the employees of the Mills made any statement before the first Investigating Officer who remained at the spot till midnight on 21st May 1967; and further that Muhammad Rafiq of Lyallpur, the brother of Afzal Ahmad's wife, was made to join the inves-- tigation. Bashir Hussain (P. W. 14) stated that on 21st May 1967, there was no blood at all in Afzal Ahmad's bed-room but on the next day blood was not only found in that room but also on the walls of the bath-room. Muhammad Nazir (P. W. 15) stated that he was running a canteen in the Mills. Afzal Ahmad had an account with him which was closed by him (Afzal Ahmad) on 17th May 196'4; when he left for Lahore; and that the appellant took meals for two days thereafter for two persons. The meals were served at Afzal's bungalow and the last was of mid-day on the 19th May 1967. He has also proved some entries (Exh. P.L.) on bahi (Exh.P. 7). There entries are not signed by the appellant and are, on a different page with different mode of writing. Moreover, the name of the appellant appears to have been interpolated.
The witness also deposed that the hatchet (Exh. P. 5) belonged to him and that it was missing on the 19th May 1967. Muhammad Shafi son of Inayat Ali (P. W. 16) and Muhammad Shafi'(P. W: 17) supported Muhammad Nazir P. W. Muhammad Aslam (P. W. 19) stated that on 19th May at about 4 p.m., he went to take bath at the water tap in Afzal's bungalow. The appellant was there and that he was staying there for the last 4/5 days. He, however, made no mention of the deceased having stayed in the bungalow. To a Court question, he replied that he "had seen the bungalow from inside" Lath' Sheikh (P. W. 21) stated that Afzal Ahmad returned to the Mills on the evening of 19th May 1967. It was on this occasion that he was told by him that a dead body was lying in his bungalow.
Evidence has been led to prove the recovery from the appellant of a pair of shoes (Exh. P. 6/1-2) vide memo. Exh. PF (allegedly of the deceased) Chadar (Exh. P. 4) and hatchet (Exh. P. 5) (stained with human blood) are also alleged to have been recovered tit the instance of the appellant from the bungalow, vide memos. Exhs. PD and PE respectively. All these recoveries are of 22nd May 1967.
5. The appellant denied allegations about his having been last-seen with the deceased or his having visited the Mills during the days of occurrence. The recoveries and motive have also been denied. He, however, admitted that he got his sister Mst. Mussarat Bibi married to Ali Akbar (P. W.).
After denying any connection with the murder, he explained that due to the strained relations with his father, the latter might have involved him in this case.
6. The learned Additional Sessions Judge disbelieved the evidence in respect of recoveries of the shoes (Exh. P. 6/1-2) Chador (Exh. P. 4) and the hatchet (Exh. P. 5). He has given convincing reasons in this behalf. The learned Assistant Advocate-General appearing for the State has not contested the findings in respect of chadar and hatchet but has relied upon the recovery of the shoes (Exh.P.
6/1-2). The memo about this recovery is Exh. PF. It appears to have been signed by two witnesses, viz. Ahmad Ali (P. W.22) and Muhammad Saeed (P. W. 23). Ahmad Ali has not said a word about this recovery. Muhammad Saeed deposed that it was made at Lyallpur and that the recovery memo. In respect thereof was not signed by anybody else. It appears from the statement of Ahmad Ali that he had not gone to Lyallpur at all during the investigation of this case. Moreover, according to Muhammad Saeed P. W. The shoes recovered from the appellant (Exh. P. 6/1-2) belonged to his deceased brother; while according to Aman Ullah. A. S. I. (P. W. 28) (in cross-examination), the shoes (Exh. P. 3/1-2) were identified by Muhammad Saeed (P. W.) during investigation as that of his deceased brother. This last-mentioned pair of shoes was recovered from near the dead body.
(vide memo. Exh. PC). In fact the description of the two.Pair of shoes, Exh. P. 3/1-2, and Exh.P. 6/1-2 given in the memos. (Exh. PC and Exh. PF) is absolute--ly identical. The evidence on the recovery and identity of the shoes alleged to have been recovered from the appellant is so incon--sistent and unconvincing that no reliance can be placed on it: We, therefore, agree with the learned Additional Sessions Judge and hold that there is no evidence of the recovery of any article against the appellant to connect him with the offence.
7. So far as the motive is concerned, the only evidence on the file which has been treated as against the appellant is that he was instrumental in getting his sister carried to Ali Akbar and further that he was not on good terms, with his father due to latter's second marriage. Afzal Ahmad (P. W. 2) has not supported the prosecution at the trial. He was allowed to be cross-examined by the Public Prosecutor and his state--ment made before the committing Magistrate was transferred under section 288, Cr. P. C. In the committing Court, he stated that the appellant did not like the idea of his sister marrying Rahmat Ullah deceased. Mst. Mussarat Bibi has not been produced. Ali Akbar, her husband has appeared as P. W. 20 and he categorically stated that Mst. Mussarat Bibi lived happily with him and that there was never any estrangement between them. Muhammad Saeed (P. W. 23) has stated that Afzal Ahmad was negotiating with him and his brother about the marriage of Mst. Mussarat Bibi; and that Afzal Ahmad had, in this connection, taken Rs. 2,500 from them the receipt of the money has been denied by Afzal Ahmad. Muhammad Saeed P. W. Did not state anything which could shod- that the appellant knew about the proposed marriage. Afzal Ahmad did not support the statement before the committing Magistrate and that statement also stands contradicted by Ali Akhtar and Muhammad Saeed P. Ws. Mst. Mussarat Bibi who was the most important witness .Has not been examined. Therefore,there is no evidence of motiv. Against the appellant.
Afzal Ahmad denied having received the money from Muhammad Saeed while the latter is emphatic on this point. This would show that even Afzal Ahmad had some motive against the deceased, at least, in respect of this money. Muhammad Rafiq; Afzal's brother-in-law; who was joined in the investigation, Ali Akbar and Mst. Mussarat's other relations on the maternal side could also have the same kind of interest and motive in respect of her second marriage as has been suggested against the appellant.
8. The only remaining evidence on which reliance has been placed by the learned trial Judge is that of "last-seen". Some comments on it have already been made. It is true that various employees of the Mill have stated that the appellant was seen in the Mills and in the bungalow of his father from 17th to 19th May and that he was accompanied by the deceased on the last two days. The appellant was alleged to have been last-seen in the bangalow at about 4 p.m. On 19th May and, according to Muhammad Shafi (P. W. 16), he was last-seen with the deceased at about mid-day on the same day when the witness served them with meals in the bungalow. No evidence has been produced to show--
(i) that none else entered the bungalow after mid-day or 4 p. m. On 19th May uptill the discovery of the dead body on the evening of 21.St May;
(ii) that the deceased did not leave the bungalow after the mid-day of 19th May;
(iii) that nobody entered the bungalow after the appellant left it and before Afzal Ahmad visited it on 20th or 21st May; and lastly
(iv) that there was no likelihood of the dead body having been placed in the bungalow between 19th and 21st May.
If the prosecution evidence is examined in the light of the above questions and passibilities, the circumstances discussed in the succeeding paragraphs make it difficult for us to either believe this evidence or to hold that it amounts that of "last-seen"
9. Afzal Ahmad was employed in the Mill on 1st May 1967 and left for Lahore after staying only for 17 days. This is insufficient time for his having fully acquainted with other employees of the Mill. If his son, i.e. The appellant came to the Mill on or about 17th May it cannot be imagined that the employees of the Mill would have taken any notice--able interest in him or in his companion if he was accompanied by anybody. The contest or conversation of the individual witnesses with the appellant and his companion was not of such nature and duration that they would have become known to each other. Therefore, the failure of the police to put the witness to a test identification parade has deprived the Court of a very valuable assistance. This defect cannot be resolved by mere surmises that the witnesses should have known the appellant so well so as to avoid any need for an identification parade.
10. According to Mushtaq (P. W. 4) who is resident of Lyallpur, the deceased had informed the witness on 18th May that lie, the deceased would leave for the house of Afzal Ahmad in the Mills at Sheikhupura, on the morning of 19th May. Muhammad Saeed (P. W. 23) stated that the deceased left Lyallpur in the company of Rafiq for going to a mela on 18th May. This would show that the deceased left Lyallpur on 18th evening and was to reach the Mills at Sheikhupura on the morning of 19th May. The witnesses from the Mill would have us believe that the deceased was seen in the Mills on the morning of l8th May. As already noticed in paragraph 4 above, the evidence on this very important point is highly inconsistent. It is not safe to rely on it.
11. It appears from the statement of Muhammad Siddiq Mali (P. W. 10) that neither he nor any other employee of the Mill made any statement before A. S. I. Aman Ullah, who admit--tedly was the first Investigating Officer in the case and remained in charge of the investigation till about midnight of 21st May.
This statement of Muhammad Siddiq gets support from other witnesses also.
Afzal Ahmad P. W. In his statement, stated that his brother-in-law Muhammad Rafiq was joined as a suspect in the investigation. This statement is supported by Muhammad Siddiq (P. W. 10) and, to some extent also by P. W. 23 Muham--mad Saeed. In fact, it appears from the statement of mentioned witness that Afzal Ahmad, Muhammad Rafiq the appellant were joined in the investigation. It is also in the statement of Muhammad Saeed that Muhammad accompanied the deceased when he left for the mela on 18May and was expected to remain with him till on which day, the witness stated further, his brother, return to Lyallpur. Muhammad Rafiq has not been as witness. In what circumstances Muhammad Rafiq from the deceased and, in this context, how the deceased to the bungalow of Afzal Ahmad, is not known. Muhammad Rafiq was very important witness in the matter. It appears that the police joined Afzal Ahmad and Muhammad Rafiq as initial suspects in the investigation. If that is so, till then, it appears, none of the witnesses from the Mill had given any clue in respect of the appellant having visited the Mill at any relevant time. Thisth circumstance is another very strong support for the supposition that the witnesses from the Mill did not make any prompt disclosure to the police of the facts deposed to by them during the trial.
This all would show that the employees of the Mill who appeared at the trial had no relevant information to convey the police in the initial stages of the investigation which means that the evidence of the last-seen may not be true and may be the result of an afterthought.
12. Muhammad Siddiq Mali was one of the few persons who met Afzal Ahmad when the dead body was discovered. 'He did not inform Afzal Ahmad that the appellant was seen with the deceased at any relevant time. Moreover, when Afzal Ahmad discovered the dead body in his bungalow, he did not inform anybody about the identity of the person who had been killed. Looked at in this light, the admission of Muhammad Siddiq P. W. That Afzal Ahmad was seen to his bun--galow on 20th May whereafter he left again for Lahore and came back the same evening, makes the whole prosecution case very doubtful. If the appellant had been seen and that also in the company of the deceased at the bungalow or within the Mill premises on or about 19th May Afzal Ahmad, must have learnt about it on 20th May. And if Afzal Ahmad had opened the bungalow on the 20th, it remains an enigma as to why he failed to discover the dead body in one of the rooms. If he did discover the dead body why he went away to Lahore without reporting the matter to the police, remains unexplained. We can also take note of the statement of Latif Sheikh (P. W. 21) to the effect that so far as he remem--bered it was 19th May at shamwela, that Afzal Ahmad P. W. Returned, to the Mills. Though this return was linked with the discovery of the dead body, yet we cannot ignore the fact that Latif Sheikh, who was working as a responsible officer in the Mills, would commit a mistake in respect of very fact. In any case, the prosecution did not get a clarification from the witness. Therefore, this statement by Latif Sheikh, when it is seen in context of the above admission made by Muhammad Siddiq P. W. About the arrival of Afzal Ahmad in the Mills on 20th May, makes it clear that he (Afzal Ahmad) did come back to his bungalow on 19th and, in any case, on 20th May. This could make him as the last person seen with the deceased.
13. Bashir Hussain (P. W. 14) is one of those persons who visited the bungalow with the police and saw it from inside along with the police on the day of discovery of dead body as well as on the next day. He categorically stated that originally no blood was found in the bed-room of Afzal Ahmad, marked as 'Mal" in the site-plan (Exh. PK/1). Blood was, however, found in that room on 22nd May.
This shows two things: firstly, that blood was planted in that room during the investigation and admittedly after the discovery of the dead body; and secondly, that the murder might not have been committed in the bungalow and that the same having been committed somewhere else, the dead body was placed in a room of the bungalow marked `Be' where it was ultimately found. In case of the second eventuality, the entire evidence in respect of the last-seen against the appellant becomes meaningless and insignificant.
14. According to Afzal Ahmad, he alone had the key of his bungalo". Ahmad Ali (P. W. 9) stated that he obliged the appellant on his asking and opened the portion of the bungalow in possession of Afzal Ahmad with a key which was in possession, of this witness. This would show that the key of the bungalow was not only with Afzal Ahmad but also with Ahmad Ali P. W. It appears from the statement of Muhammad Aslant (P. W. 19) that any outsider could enter the bungalow without, any let or hinderance. There is a water-tap in the bungalow which was being utilised for men like Aslam P. W. For taking bath. There is no evidence to the effect that' some--body kept a watch over the bungalow in such a manner as to exclude the possibility of anybody else having entered the same, at the relevant times, particularly after the midday/evening of 19111 May,
15. The bladder and stomach of the deceased at the time of post-mortem examination were found to be empty. It is true that the process of digestion may, in some cases, continue for some time after the death. But the above circumstance does not fit in with the prosecution story in this case.
According to the witnesses from the canteen, the last meal served and which must hay a teen taken by the deceased was on mid-day of 19th May. The appellant is said to have left the bungalow at about 4 p. m. On that day. The occurrence according to the doctor may have taken place from 4 a. m. To 8 p. m. On the 19th May. The death, if the circumstan6e of empty stomach is taken into account, may have taken place at about 7/8 p. m.; because if the meals were taken at about 1 p.m., it would take about 6/7 hours for the stomach to become completely empty. The appellant having left at about 4 p. m. Cannot, therefore, be connected with the murder.
16. The dead body at the time of discovery was naked in so far -as its lower part is concerned. One blood-stained chadar was found from the bungalow. It has already been held that it cannot be connected with the appellant. On the contrary, some of the witnesses have deposed that the chadar belonged to Afzal Ahmad. No trousers or other wearing apparel of the deceased was recovered from the bungalow. This means that somehow or other the deceased was wearing the chadar of Afzal Ahmad at the time that he was put to death. In what circum--stances and why this chadar was removed from his body is not known.
It appears from the statements of Zaman (P. W. 5) and Afzal Ahmad (P. W. 2) before the comitting Magistrate (trans--ferred under section 288, Cr. P. C.) that a ruqqa written in hand of the deceased was given to Afzal Ahmad on his first return from Lahore but he tore it off. Why the ruqqa was torn off is not explained. As pointed out above, if it was on the 20th that Afzal Ahmad returned to his bungalow, his conduct becomes most suspicious. Linked with the above circumstances, the denial by Afzal Ahmad that he received any money from the deceased in connection with his proposed marriage, indicates that Afzal Ahmad himself may have had some connection with the murder.
Only this hypothesis explains Afzal Ahmad's entire conduct including his return on 20th May, the absence of blood in his bed-room on 21st, the partial nakedness of dead body coupled with the absence of deceased's trousers and presence of blood-stained chadar of Afzal Ahmad in the bungalow. May be the deceased was murdered elsewhere and his dead body was placed in the bungalow on or about 20th .May.
17. It is clear from the above discussion that the circumstantial evidence produced against the appellant is not such as to warrant an opinion that no hypothesis consistent with the innocence of the appellant can be suggested. The other fairly strong possibilities cannot be excluded. In other words, all the facts alleged or proved can be connected with reasonable hypothesis compatible with the innocence of the appellant. Therefore, the evidence being insufficient, the conviction of the appellant cannot be upheld. In a similar case Siraj v. The Crown (PLD 1956 FC 123) where no evidence was produced to show the exact hour of death and excluding the possibility that somebody else met the deceased before his death and after the accused met him; it was held that the so-called evidence of "last---seen" was insufficient to give a finding of guilty. In this case also, it is not possible to determine the exact hour of death. The margin given by the doctor is of 16 hours. The prosecution has failed to prove that nobody came into contact with the deceased in this case after the appellant is alleged to have left the bungalow. It has also been shown that somebody else might have entered the bungalow and killed the deceased or that the deceased having been killed outside the bungalow, the dead body ma,, have been placed in the bungalow.
These possibilities cannot be excluded.
18. On the view that we have formed in respect of the evident: of "last-seen" and there being no other evidence to connect the appellant with the offence, we hold that there is no proof that he is guilty of the murder of Rehmat Ullah deceased. We, therefore, accept the appellant and acquit him. 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.