The appellant was tried for the offence of committing Qatl-i-Amd of Mst. Zainab Bibi, his wife during the night between 22-10-1990 in the area of Mauza Sheikh Chuhar about ten miles away from Police Station Saddar Jhang. He was found guilty under section 302. P.P.C. On 23-4-1991 and was sentenced under section 308, P.P.C. He was ordered to pay Diyat to the legal heirs of the deceased including her parents if alive. The Diyat was further ordered to be paid within period of three years from the date of judgment through instalments at the rate of Rs.5,000 each. It was further ordered that in case of default in payment he was to be kept in jail in simple imprisonment till the whole amount of Diya; was paid. He was further sentenced to undergo R.I. For seven years and was given benefit of section 382-B, Cr.P.C.
2. Yousaf Shah son of Ramzan Shah made statement to Dost Muhammad, S.-I. Of Police Station Saddar, Jhang at about 3-45 p.m. When the said S.-I. Was on patrol duty and was present at Nawaz Chowk, Jhang. In his statement he alleged that the niece Mst. Zainab Bibi, deceased was married to Ghulam Mustafa Shah appellant who in Watta had promised to give the hand of Mst.Farzan Bibi, his niece to Muhammad Shah, the brother of the deceased. The appellant backed away and was to marry Mst. Farzan Bibi with Ahmad Shah son of Umar Hayat Shah which was not acceptable to Mst. Zainab Bibi, deceased and the spouses developed sour relations. On the evening preceding the night of occurrence an altercation took place between the appellant and the deceased and Mst. Zainab Bibi refused to live with him. At about 3-00 a.m. During the night the appellant allegedly started beating her. The deceased raised hue and cry and on her cries Muhammad Shah son of Ahmad Shah and Tahammal Shah son of Ahmad Shah reached the spot and saw that the appellant was giving blows to Mst. Zainab Bibi with a Sota. She fell down. Then the appellant picked up of Churri and stabbed the deceased in her belly. When the witnesses reached near the appellant he ran away alongwith the Churri. The deceased was taken to Civil Hospital, Jhang, where she expired at 3-00 p.m.
3. On the basis of the statement F.I.R. Was recorded and Dost Muhammad conducted the investigation. After completion of the investigation report under section 173, Cr.P.C. Was filed in Court and the appellant was sent up to stand his trial in Court of Session by the Illaqa Magistrate.
4. At trial the appellant was charged under section 302, P.P.C. On 21-4-1991 which was put to the appellant. He pleaded not guilty and claimed trial.
5. At the trial the prosecution produced as many as eleven witnesses. P.W.9 Dr. Khalid Masood Ahmad had medically examined the deceased at 7-50 a.m. On 22-10-1990 and found six injuries on her person. Injury No.5 was a stab wound caused with sharp-edged weapon. Rest of the injuries were caused with blunt weapon. Exh.PG was the carbon copy of the medico-legal report. Dr. Allah Bakhsh Chaudhry P.W.1 conducted the post-mortem examination on the dead body of Mst. Zainab Bibi on 23-10-1990 and found six injuries on her person. Injury No.5 which was a stab wound was declared to be sufficient, in the ordinary course of nature to cause death. Rest of the injuries were caused with blunt weapon. Injury No.5 was described as under:--- "5. Stabbed wound 4 c.m. x 2 c.m. Omentum coming outside of the wound on outer and left side of lower abdomen. "
Probable time between the injuries and death was 12 to 24 hours and between death and post- mortem was 12 to 24 hours. Exh.PA was the correct carbon copy of Post-mortem Report Exh.PA/1 and Exh.PA/2 were the diagrams showing the location of the injuries. The description of injuries as given by P.W.9 was the same as given by P. W.1 but as the description of injuries is not material for the decision of the present appeal the same is the being reproduced.
6. Zafar Abbas P.W.2 had taken two sealed parcels from the police station to the Office of the Chemical Examiner which he delivered there on 6-11-1990. Qadeer Akhtar P.W.3 was posted as Moharrir at the police station on 22-10-1990 and on the receipt of Fard Bian of Yousaf Shah Exh.PB as recorded by Dost Muhammad, S.-I. He registered the formal F.I.R. Exh.PB/1. On 23-10-1990 he was handed over a sealed parcel containing blood-stained earth which he handed over to Zafar Abbas for onward transmission to the Office of the Chemical Examiner. Muhammad Safdar, Constable P.W.4 was handed over the dead body of Mst. Zainab Bibi, deceased which he delivered intact to P.W.1 Dr. Allah Bakhsh Chaudhry at the time of Post-mortem Examination. He was delivered shirt P.1, Shalwar P.2, the last worn clothes of the deceased, by the Medical Officer which he produced before the Investigating Officer who secured the same vide memo. Exh.PC. Abdul Haleem, draftsman P.W.5 prepared site plan of the alleged place of occurrence Exh.PD and Exh.PD/1.
Tassaduq Hussain Shah P.W.6 was present at the time of spot inspection by Investigating Officer and blood-stained earth was collected, made it into a sealed parcel and secured in his presence vide memo. Exh.PE. Khadim Hussain P.W.7 had identified the dead body of the deceased at the time of post-mortem examination. He also stated that he was present with the police on 5-11-1990 when the appellant led to his residential house and from the northern room he got recovered Churri P.3 and Sota P.4. Chhurri was made into a sealed parcel and both the articles were secured vide memo. Exh.PF. Yousaf Shah P.W.8 was the first informant and he narrated the same story as contained in Exh.PB. Tahammal Shah P.W.10 was the other eye-witness whereas Dost Muhammad, S.-I. Appeared as P.W.11. The A.D.A. Gave up Muhammad Shah, Imdad Hussain and Haider Shah P.Ws. As unnecessary on 21-4-1991 and on 22-4-1991 he tendered, in evidence, report of the Chemical Examiner Exh.Pl and that of the Serologist Exh.Pl/1 and closed the case of the prosecution.
The appellant was examined under section 342, Cr.P.C. He denied all the allegations and stated that he was falsely implicated in the case and that the deceased was put to death by her own brother and as the witnesses were related to the actual culprit he was falsely roped in. He did not offer to appear as his own witness under section 340(2), Cr.P.C. And also did not opt to produce defence.
7. During the investigation Dost Muhammad, S.-I. After the recording of the statement of the first informant and sending the same for registration of the formal F.I.R., went to the Civil Hospital, prepared injury statement Exh.PA/3 and inquest report Exh.PA/4. He handed over the dead body of Mst. Zainab to Muhammad Safdar, Constable P.W.4 for taking the same to the mortuary and went to the spot. 'He inspected the spot, prepared rough site plan Exh.PH and collected blood-stained earth from the spot, made the same into a sealed parcel and secured the same vide memo. Exh.PE.
On the following day he secured the last worn clothes of the deceased Exhs.P1 and P2 vide memo.
Exh.PC. And recorded the statements of the P.Ws. On 3-11-1990 the appellant was arrested who, while in police custody on 5-11-1990 led to the recovery of Churri P3 and Sota P.4. Churri P.3 was made into a sealed parcel as the same was found to be blood-stained. Both the weapons were secured vide memo. Exh.PF. The site plan of the place of recovery was also prepared by him which was Exh.PF/1. The sealed parcel containing blood-stained earth was given to the Moharrir whereas the blood-stained Churri was handed over to Zafar Abbas P.W. For taking the same to Chemical Examiner. He got prepared site plan from Abdul Haleem, draftsman P.W.5 and gave his notes in red ink thereon. He got the accused challaned.
8. The learned counsel for the appellant submitted that the alleged eye--witnesses were related to the deceased and were not supposed to be around the place of occurrence at the alleged time of occurrence which was 3 a.m. He further contended that the injured was taken to the hospital and expired almost after twelve hours but no attempt was made to get her statement recorded or even get the case registered running her lifetime and that the appellant was substituted for the real brother of the deceased as the P.Ws, were closely related to him and there was a dispute regarding Watta marriage between the spouses and the actual culprit had suspected the moral character of the deceased. She also stated that the alleged recovery was fake. The first informant and the eye-- witnesses had stated earlier that the appellant had allegedly run away alongwith the weapon of offence but the place of recovery was same residential house which he alleged abandoned and never returned after the commission of the crime. He stated that it was the night time occurrence and was not witnessed by anybody and the prosecution having failed to prove its case beyond all reasonable doubt and the eye-witness account not coming from unimpeachable sources the appeal merited acceptance.
9. The learned counsel appearing on behalf of the State defended the impugned judgment and while taking me through the evidence of the eye--witnesses and the judgment stressed that the appellant was not entitled to acquittal in the case.
10. I have given my anxious thoughts to the submissions made before me. So far as the medical evidence is concerned the same is not relevant for the disposal of the present appeal. So far as the evidence of collection of the blood--stained earth despatch thereof to the Office of the Chemical Examiner and the reports EXhS.PI and P1/1 are concerned they are also not relevant for the decision of the present appeal.
11. The alleged recovery of Churri P.3 and Sota P.4 has been supported by Khadim Hussain P.W.7 and Dost Muhammad P.W.11. Khadim Hussain was closely related to the deceased. The place of recovery was the house of the appellant who according to the F.I.R. Had fled away from the place of, occurrence alongwith Churri. It is not in evidence that the appellant returned to his house till the date of his arrest and P.W.11, who arrested the appellant has not stated that the appellant was arrested from his residence and no presumption can be drawn against the accused person in criminal case where the fact has not been brought on the file through a deposition. As the place of recovery is in contradiction to the statement as contained in Exh.PB and in the statement of P.W.8. I disbelieve the recovery evidence accordingly.
12. The place of occurrence was about ten miles from the police station. The injured was brought to the District Headquarters Hospital, Jhang and was examined at 7-50 a.m. She remained alive till 3 p.m. And the condition of the deceased at the time of her medical examination was not stated to be critical. The first informant received the copy of the Medico-Legal Report at 7-50 a.m. But did not care to lodge the F.I.R. At the police station which was admittedly a few meters away from the District Headquarter Hospital. The first informant and P.W.10 are related inter se and are also admittedly related to Anwar Shah and Muhammad Shah who had murdered the father of the appellant and were thus interested against the appellant. Sufficient material has come on the file during the cross-examination of P.W.8 which goes long way to prove that P.W.8 and P.W.10 were not independent witnesses.
13. On close scrutiny of site plan Exh.PD it transpires that the house of Tahammal Shah P.W. Was quite away from the place of occurrence. The house of the appellant had four walls in the height of 5.6" on the side of the house of P.W.10. The explanation that P.W.10 was passing in the open outside his house, when he heard the cries of the deceased is not believable. He was not supposed to scale over the wall of the house of the appellant and there was no opening on the side of the house of P.W.10 and the door opened towards the street on the other side of the house of P.W.10. The presence of the first informant in the house of Mst. Nazir Fatima, the real sister of appellant was not plausible and as such I hold that P. W.8 and P.W.10 had not seen the occurrence as stated by them.
It was a night time occurrence not witnessed by anybody and the mere fact that the blood-stained earth was collected from the residential house of the appellant was not enough to connect the accused-appellant with the commission of the crime. Suffice was for him to deny his presence at the time of occurrence and he did claim that he had gone to Mauza Waghi during that night.
14. In view of what has been stated above I am of the view that the prosecution has failed to prove its case against the appellant beyond all reasonable doubt and as a result the appeal is accepted.
The conviction of the appellant as recorded by Additional Sessions Judge, Jhang is set aside and the appellant is acquitted. He shall be released forthwith if not required in any other case.