MUHAMMAD ASIF JAN, J.---Meva aged about 20/22 years, his brother Seva aged about 23/24 years, a third brother Jalab, 40 years and a fourth brother Miroo aged about 25/26 years were convicted by Mr. Muhammad Aslant Soomra, Additional Sessions Judge of Rajanpur vide judgment/order dated the 21st of September, 1992, for having murdered Saifullah deceased aged about 25 years and Mst. Zarro wife of the fifth brother of the appellants, namely, Khairoo who is an absconding accused. Mst. Zarro was also aged about 25 years.
2. Meva and Seva appellants were convicted under section 302(a), P.P.C. And sentenced to death as Qisas. Jalab and Miroo were convicted under section 302(c), P.P.C. And sentenced to 10 years' R.I.
The fifth accused Khairoo is an absconder.
3. The learned trial Court has referred this matter to this Court for confirmation of the death sentence by way of Murder Reference No.345/92. The appellants have appealed against their conviction and sentence by way of Criminal Appeal No.254/92. By this judgment/order we propose to decide both the matters together.
4. The occurrence took place on the 7th of December, 1990, at about 5-00 p.m. In the area of Rakh Charrohawah, which is about 14 kilometres from the Police Station Dajil of District Rajanpur where the first information report (EXh.PA) was lodged at 1-00 a.m. On the 8th of December, 1990, by Amir Bakhsh (P.W.1) father of Saifullah deceased whose statement was recorded by Inspector Sher Shah (P.W.8) the then Station House Officer of Police Station Dajil.
5. Amir Bakhsh (P. W did not witness the occurrence himself but was informed about the occurrence by his brother Pir Bakhsh (P.W.2) and his nephew Manzoor Hussain (P.W.5).
6. The motive as set up by the prosecution is that Saifullah deceased wanted to marry his cousin Mst. Anwar, a daughter of his uncle Faqir Bakhsh but the absconding accused Khairoo obstinately resisted and ultimately --succeeded in obtaining the hand of the said Mst. Anwar but at a very high price as per local traditions for which he had a constant grudge against Saifullah deceased and ultimately made Saifullah deceased pay by the price of his life.
7. As against that the counter-version of the defence is that actually the two deceased persons were seen in an objectionable and compromising position and killed by Khairoo absconder, in the house of Mst. Zarro deceased.
8. In other words the defence version is that co-accused Khairoo the absconding accused acted under sudden and grave provocation.
9. The four appellants pleaded total denial and false implication due to their relationship with Khairoo absconder.
10. Meva appellant was arrested on the 26th of December, 1990 Seva appellant was arrested on the 13th of September, 1991. Both arrests were made by Inspector Sher Shah (P.yV.8). Jalab and Miroo appellants were not arrested at all because they were declared to have been falsely involved and were, therefore, declared to be "innocent" during the course of investigation. They were later summoned by the Trial Court.
11. Meva appellant allegedly led to the recovery of a hatchet (P.1) on the 30th of December, 1990, from his shop which was taken into possession vide recovery memo. Exh.PE. The hatchet in question was not stained with blood.
12. Seva appellant allegedly led to the recovery of hatchet (P.4) from his residential house on the 13th of January, 1991, which was taken into possession vide recovery memo. Exh.PF. This hatchet also was not stained with blood.
13. These recoveries were witnessed by the two eye-witnesses, namely, Peer Bakhsh (P.W.2) and Manzoor Hussain (P.W.5) alongwith the Investigating Officer Sher Shah (P.W.8).
14. Blood-stained earth was recovered from the place where Mst. Zaroo was killed vide recovery memo. Exhs.P.B. Blood-stained earth was also recovered from the place where Saifullah deceased was murdered vide recovery Memo. Exh.P.D. Shoes (P.2) and belt (P.3) of Saifullah deceased were recovered from near his dead body vide recovery memo. Exh.P.C.
All these recoveries were made by the Investigating Officer Inspector Sher Shah (P.W.8).
15. Dr. A.I Asghar (P.W.6) conducted the autopsy on the dead body of Saifullah deceased on the 8th of December, 1990, and found 9 incised wounds on his body mostly on the head and the neck. All these injuries were ante--mortem and were caused by a sharp-edged weapon and were sufficient to cause death in ordinary course of nature. Death occurred almost instantaneously.
16. The same doctor examined Mst. Zaroo Mai on the same day at about 4-00 p.m. And found 4 injuries on the neck and head. All four injuries were caused by a sharp-edged weapon and were sufficient to cause death in ordinary course of nature: Death occurred instantaneously.
17. Learned counsel for the appellants has contended that there is a delay of about 8 hours in lodging the F.I.R.; that the motive as set up by the prosecution is false, that the ocular account is furnished by two eye-witnesses whose very presence at the time and the place of occurrence is not free from doubt and finally that the counter-version of the appellants when seen in juxtaposition with the prosecution case emerges to be plausible and nearer the truth.
18. Learned counsel for the State has stated that the F.I.R. Has been lodged promptly having been lodged within 8 hours and that the motive has been proved by the eye-witnesses and that case of the prosecution stands proved beyond all reasonable doubts.
19. Not much importance can be placed upon the so-called delay in lodging the F.I.R. Because there is nothing available in the evidence to show as to how did the complainant proceed to the Police Station.
However, the motive as set up by the prosecution is beyond comprehension and does not seem to be true if not positively false. It is the case of the prosecution that Saifullah deceased wanted to marry his cousin Mst. Anwar but ultimately absconding accused Khairoo managed to marry her. If this be true then indeed the shoe would pinch on the other foot. In other words it would be Saifullah deceased who would have a motive rather than absconding accused Khairoo. In this context it is pertinent that Mst. Zaro was a young woman of about 25 and that she was also expecting. It is difficult to understand why would absconding accused Khairoo kill his own wife and why would he be joined in this murderous activity by his brothers to put an end to the life of their own sister-in- law. All these factors raise large questions which have not been answered by the prosecution and which tend to cast a doubt on the veracity of the entire prosecution case.
20. The ocular account has been furnished by Peer Bakhsh (P.W.2) a brother of complainant Amir Bakhsh (P.W.1) and Manzoor Hussain (P.W.5) a nephew of complainant Amir Bakhsh. Complainant Amir Bakhsh would have us believe that he became apprehensive when his son Saifullah deceased a young man of 25 years who had left home in the afternoon did not return by evening time and he, therefore, called his brother Peer Bakhsh (P.W.2) and also his nephew Manzoor Hussain (P.W.5) and asked them to go and look for his son Saifullah deceased. This position taken by Amir Bakhsh (P.W.1) is belied by Peer Bakhsh (P.W.2) who says that he was already in the house when Saifullah deceased left and was not called for this purpose while Manzoor Hussain (P.W.5) says that they were never called because they were already in the house. Therefore, this entire story as set up by the prosecution regarding the summoning of Peer Bakhsh (P.W.2) and Manzoor Hussain (P.W.5) and then being asked to go and search for Saifullah deceased is a matter of serious doubt.
Resultantly the very presence of the eye-witnesses at the place and at the time of occurrence becomes a matter of serious doubt.
21. The ocular testimony is not corroborated by any other evidence. According to the prosecution two hatchets were recovered and the nature of the injuries clearly show that the sharp side of hatchets must have been used yet surprisingly neither the hatchets were blood-stained nor were any blood-stained clothes recovered and although according to the prosecution Saifullah deceased after having been done to death was removed and locked up in the shop of Meva appellant and the cotton inside the shop was stained with blood yet it is in evidence that for no reason whatsoever the said cotton was not only not taken into possession but was actually thrown away to the winds.
22. As against the case of prosecution the defence has come out with a counter-version and which we must now see in the juxtaposition with the case of the prosecution and if in juxtaposition the case of the defence emerges as probable then according to the settled law that has to be accepted because while the case of the prosecution has to be proved beyond all reasonable doubts the case of the defence succeeds if it is shown to be probable. The counter-version of the defence which is to the effect that both the deceased persons were done to death by absconding accused Khairoo seems to find support from various attending circumstances. First, according to the site plan Exh.PO the bodies of the two deceased persons were in fact found near each other; there is no trail of blood from the shop from where according to the prosecution body was removed and placed near the body of Mst. Zarro. Even otherwise the case of the prosecution that Saifullah deceased after having been killed was first taken inside the shop of Meva which was then locked and then unlocked and then removed from the said shop to be placed along side the body of Mst. Zarro sounds more like the story of Romeo and Juliet particularly when Mst. Zarro was also taken out of her house to be placed alongwith Saifullah deceased. All this definitely smacks of a very fertile imagination but does not inspire confidence.
23. The case of the prosecution is not free from doubts while the case of the defence seems to be plausible. We, therefore, give the benefit of doubt to all the appellants. The appeal is accepted. The sentence of death is not confirmed. The murder reference is answered accordingly. All the appellants are acquitted and shall be released forthwith if not required in any other case. Jalab and Miroo appellants are on bail. Their bail bonds shall stand discharged.