' MANSOOR ALAMGIR QAZI, J.--- Muhammad Anwar aged 38 years was arraigned for trial in the Court of Mehr Muhammad Altaf Hussain, Additional Sessions Judge, Faisalabad. Vide judgment, dated 29-11-1992 he was convicted under section 302(b), P.P.C. And sentenced to death and was also sentenced to a fine of Rs,10,000 or in default of payment of fine to suffer R.I. For two years. He was also directed to pay Rs,25,000 as compensation to the legal heirs of the deceased or in default of payment of compensation to suffer R.I. For six months.
2. Feeling aggrieved by this judgment he has challenged the same through Criminal Appeal No,1007 of 1992 while the State has preferred Murder Reference No,470 of 1992 for the confirmation of the death sentence.
3. The present occurrence took place on 4-6-1991 in front of the house of one Muhammad Tahir in Street No,27, Madina Town, Faisalabad at a distance 3 Kms. From Police Station People's Colony, Faisalabad. The statement Exh.P.D. Of Muhammad Shafi complainant (P.W.4) was recorded on the same day at 10-30 a.m. At Civil Hospital, Faisalabad by Mushtaq Hussain S.-I. While he was posted at Police Post Madina Town, Faisalabad. The statement was sent to the police station where formal F.I.R. Exh.P.D./1 was recorded by Zawar Hussain, Moharrar/Head Constable at 10-45 a.m.
4. The motive behind this occurrence is that 3/4 months prior to the occurrence wife of Muhammad Rafique deceased had gone to her parental house being displeased and the accused wanted her divorce but the deceased was not willing, on account of which the appellant/accused has committed this offence.
5. Briefly the facts of the case are that the complainant Muhammad Shafi who is resident of Chak No,75/GB on the day of occurrence he came along with Muhammad Shafique (not produced), his son and Muhammad Jamil P.W.5 to the house of Muhammad Tahir, Street No,27, Madina Town to see his son Muhammad Rafique deceased. They saw Muhammad Anwar and Muhammad Siddique accused inflicting injuries with dagger to his son Muhammad Rafique deceased who fell down on receipt of the injuries. On alarm Muhammad Anwar and Muhammad Siddique both accused ran away from the place of occurrence along with their weapons of offence. The deceased was shifted to the hospital in injured condition where he died at 9-30 a.m.
6. Muhammad Siddique accused was stated to have been murdered on 25-5-1992 and a case F.I.R.
No,81 of 1992 under section 302/34, P.P.C. Stood registered for his murder, which means that at the time of trial which commenced on 1-10-1992 the proceedings against him stood abated.
Muhammad Siddique accused (dead) was the first cousin of Muhammad Anwar appellant.
Muhammad Anwar appellant is the real brother of the wife of the deceased and he is also the real sister's son of the complainant Muhammad Shafi (P.W.4).
7. After recording the statement of the complainant at the hospital the Investigating Officer Mushtaq Hussain (P.W.7) proceeded to prepare the injury statement Exh.P.H. And inquest report Exh.P.J. In respect of the dead body of Muhammad Rafique and despatched the same to the mortuary-for post-mortem examination. He visited the spot and collected the blood-stained earth which was made into a sealed parcel and taken into possession vide memo. Exh.P.E. On 11-6-1991 the Investigating Officer arrested Muhammad Anwar and Muhammad Siddique accused who were present at bus stop Abdullahpur. On 16-6-1991 while in police custody Muhammad Anwar appellant got recovered bloodstained dagger Exh.P.5 from Christian Graveyard, Khiaban Colony Road, Faisalabad. It was made into a sealed parcel and taken into possession vide memo. Exh.P.G. On the same day Muhammad Siddique accused got recovered dagger Ex.P.4 from underneath a Shisham tree in the said graveyard. It was made into a sealed parcel and taken into possession vide memo.
Exh.P.F. Both these recoveries were attested by Bashir Ahmed (P.W.6), Muhammad Khaliq (given up) and Mushtaq Hussain, 5.-I. (P.W.7). After completion of the investigation the accused were challenged and sent up for trial.
8. Prosecution produced eight witnesses to prove the charge and Ijaz Ahmed was examined as C.W.1. The reports of the Chemical Examiner Exh.P.M., Exh.P.N. And Exh.P.O. And that of the Serologist Exh.P.P., Exh.P.Q. And Exh.P.R. Were tendered in evidence. The statement of the accused under section 342, Cr.P.C. Was recorded who denied the prosecution case and stated that his implication is due to party faction and enmity with the witnesses. He did not appear as his own witness to disprove the allegations on oath nor opted to produce any defence evidence.
9. Dr. Zahid Hussain, C.M.O., D.H.Q., Hospital, Faisalabad appeared as P.W.8 and stated that on 4-6- 1991 he medically examined Muhammad Rafique aged 30 years who was brought by Shamshad Ali, Constable, Police Station, People's Colony, Faisalabad and found the following injuries on his person:--
(1) An incised wound/stab 1-1/2 c.m. x 1-1/2 c.m. D.N.P., outer side left chest 7-1/2 c.m. From the left nipple at 5'o Clock position.
(2) An incised wound 5 c.m. x 1/2 c.m. x muscle deep, outer side left arm middle part.
(3) An incised wound 1 c.m. x 1/3 c.m. Muscle deep on outer side left arm 1 c.m. From injury No,2.
(4) An incised wound 5 c.m. x 1 c.m. x muscle deep inner side left wrist extending to palm.
(5) An incised/stab wound 2-1/2 c.m. x 1/2 c.m. x DNP on mid back of chest.
(6) An incised/stab wound 2 c.m. x 1 c.m. DNP on back of right abdomen 6 c.m. From mid line.
(7) An incised wound/stab 2 c.m. x 1/2 c.m. DNP on left side back of abdomen lower part.
(8) An incised wound/stab 2 c.m. x 1 DNP on back of left buttock.
(9) An incised wound/stab 2 c.m. x 1 c.m. DNP on back of left buttock 2 c.m. From injury No,3.
(10) An incised/stab wound 2-1/2 c.m. x 1/2 c.m. DNP inner side right buttock.
(11) An incised wound 2-1/2 c.m. x 1/2 c.m. Muscle deep on back of left thigh upper part.
(12) An incised wound 2 c.m. x 1/2 c.m. Muscle deep on back inner of left thigh 6-1/2 c.m. From injury No,11.
(13) An incised wound/stab 3 c.m. x 1-1/2 c.m. DNP on inner side right thigh upper part.
(14) An incised wound 3 c.m. x 1/2 c.m. Muscle deep on back of left forearm lower part.
(15) An incised wound 3 c.m. x 1/2 c.m. Muscle deep on back of left wrist.
(16) An incised wound 2-1/2 c.m. x 1/2 c.m. Bone deep on front of left leg middle part.
' All the injuries were kept under observation and were found to have been caused by sharp-edged weapon and the injured was admitted in the hospital.
10. Dr. Tariq Salam, M.O., D.H.Q., Hospital, Faisalabad appeared as P.W.1 and stated that the injured was received in the Emergency Ward, D.H.Q. Hospital, Faisalabad at 9-30 a.m. On 4-6-1991 and he expired in the surgical unit of the said hospital at 9-35 a.m. He has further stated that on the same day at 5-45 p.m. He conducted the autopsy on the dead body of Muhammad Rafique and found the following injuries on his person:--
(1) A stab wound 1-1/2 c.m. x 1/2 c.m. On outer side of left chest, 7-1/2 c.m. From left nipple at 5'o Clock position. On exploration, the weapon entered into the chest cavity through fifth intercostal space and penetrated into the middle lobe of left lung.
(2) An incised wound 5 c.m. x 1/2 c.m. On outer side of left arm in the middle part, cutting the underline muscle.
(3) An incised wound of 1 c.m. x 1/2 c.m. On the outer side of left arm, 1 c.m. Below under injury No,2 cutting the underline muscles.
(4) An incised wound of 5 c.m. x 1 c.m. On inner side of left wrist cutting the underline muscle.
(5) A stab wound 2-1/2 c.m. x 1/2 on back of chest on mid line in middle. It entered the chest cavity from behind through seventh intercostal space after piercing the intercostal muscles penetrated into the middle lobe of right lung from behind. Right side of chest cavity was full of blood.
(6) A stab wound 2 c.m. x 1 c.m. On back of right side of abdomen (right lumbar region) 6 c.m. From mid line. On exploration just entered the abdominal cavity after piercing the muscles not injured any abdominal viscera.
(7) A stab wound 2 c.m. x 1/2 c.m. On left side back of abdomen, lower part cutting the underline muscles.
(8) A stab wound 2 c.m. x 1 c.m. On back of left buttock, cutting the underline muscle.
(9) A stab wound of 2 c.m. x 1 c.m. On left buttock 2 c.m. From injury No,8.
(10) A stab wound of 2-1/2 c.m. x 1/2 c.m. On inner side of right buttock, cutting the underline muscles.
(11) An incised wound 2-1/2 c.m. x 1/2 c.m. On back of left thigh upper part cutting the underline muscle.
(12) An incised wound 2 c.m. x 1/2 c.m. On inner side of left thigh 6-1/2 c.m. From injury No,11.
(13) An incised wound 3 c.m. x 1-1/2 c.m. On innel side of right thigh upper part, cutting the underline muscle.
(14) An incised wound of 3 c.m. x 1/2 c.m. On back of left forearm at lower part.
(15) An incised wound of 3 c.m. x 1/2 c.m. On back of left wrist cutting the underline muscles.
(16) An incised wound of 2-1/2 c.m. x 1/2 c.m. On front of left leg middle part cutting the underline muscles up to bone.
' In his opinion the death was due to hemorrhage and shock caused by injuries Nos.1 and 5 which were collectively as well as individually sufficient to cause death in the ordinary course of nature.
Both these injuries were declared grievous and fatal while the other injuries were declared simple.
They were caused by sharp-egged weapon and were ante-mortem. The time between injuries and death was within one hour while that between death and post-mortem was within eight hours.
11. The learned counsel for the appellant has taken us through the entire evidence recorded and the record of the case has been perused and scrutinized. The learned counsel for the State has, however, opposed and rebutted the arguments of the learned counsel for the appellant and has prayed that the sentence of the appellant be upheld.
12. Before we launch ourselves into the appreciation of merits and demerits of the case it would be relevant to mention here that at the fag-end of the trial just before announcement of the judgment Mst. Jamila Bibi widow of Muhammad Rafique deceased and sister of the appellant presented an application through the learned defence counsel stating that she had waived her right of Qisas and she had done so acting as guardian of her four minor daughters. The learned trial Judge recorded her statement and thereafter, convicted the appellant under section 302(b), P.P.C. As right of Qisas had been waived.
13. It has been stressed by the learned counsel for the appellant that Muhammad Shafi P.W.4 and Muhammad Jamil P.W.5 were not the eyewitnesses to the occurrence and while substantiating his stance from the evidence he has submitted that both these witnesses belong to Chak No:75/GB which is at a distance of 10/12 miles from the place of occurrence and reached there at 7-30 or 7- 45 a.m. And the deceased was being caused blows and the accused ran away on seeing them.
The deceased was taken to the hospital at 9-30 a.m. What happened in this 1-1/2 hours duration.
Had these witnesses been present then either of them would have taken the deceased in an injured condition to the hospital in time but from the M.L.R. It is abundantly clear that the deceased was brought by Shamshad Ali, Constable in an injured condition. Secondly he has also drawn our attention to the admission made by the Investigating Officer that the F.I.R. Was recorded after conducting preliminary investigation at the spot and absence of these P.Ws. Is also indicated form the inquest report as none of them has been cited as witness of the inquest. Furthermore, Tahir at whose house they were supposed to meet and had to purchase a .Buffalo has not been produced as witness. At the time of trial it has been admitted by Muhammad Jamil P.W.5 that Tahir was not there when they reached there. If at all these witnesses had to meet the deceased then they could not have gone to the place where he worked. Why at the house of Tahir who was not at home at that time. The story of purchasing a buffalo is a lame pretext and cannot be digested without a pinch of salt. It has been further stressed that there was litigation pending between one Ghulam Muhammad alias Chakkar and.The deceased and the complainant party and the deceased was done to death on account of this enmity. That Muhammad Siddique was suspecting that the deceased had been instrumental in breaking of the engagement of his sister. On the other hand he stated that Muhammad Anwar appellant was brother of the wife of the deceased and that he had through his good office got the deceased employed in the Telephone Department and that he was having cordial relations with the deceased and no reason to murder the husband of his real sister.
14. We have given our anxious thought to all that has been stated and submitted by the learned counsel for the parties. In the present case no doubt that the motive as laid down in the F.I.R. Is a very strong factor contributing to the present occurrence and the other aspect regarding the complicity of the appellant is that his own real sister wife of the deceased while submitting application waived her right of Qisas and got her statement recorded where she stated that she had pardoned the appellant and waived her right of Qisas but she has said nothing as to motive or innocence of the accused. The P.Ws. Also have no enmity to falsely implicate the appellant rather they are closely related and if someone else had committed the murder they 1:ao no low! Or such relation so as to spare them and involve their qwn rei al ix,e. The other evidence incriminatinp the appellant is the recovery of the blood-stained dagger and the m .(11( al evidence indicates ria, there were sixteen injuries on the person of the deceased. Be that as it may, all this evidence would not be collectively or 11( visually sufficient to form basis of conviction unless the presence of the two eyewitnesses is established and credence could be attached to their testimony. We agree with the submissions made by the learned counsel for the appellant that the presence of the eye-wtinesses at the time of incident has not been established beyond doubt. The present occurrence was witnessed one and the appellant cannot be saddled just on account of very strong motive or other incriminating connected evidence. Had the presence of eye-witnesses been accepted then the connecting evidence would have been a very strong incriminating corroborative piece of evidence but since we are of the mind that the presence of these eyewitnesses at the spot at the relevant time is doubtful and not established. Hence it is but natural that the benefit of doubt would flow in favour of the appellant. Giving the benefit of doubt to the accused we accept the appeal; set aside the impugned conviction and sentences recorded against Muhammad Anwar appellant and acquit him of the said charge and direct that he be released from the jail forthwith if not required in any other case. The Murder Reference is answered in the negative.
15. Before parting with this appeal we would like to record that the learned trial Judge was oblivious of the change in law. He has sentenced the appellant to fine which he could not do so under the amended new law.