' KHALIL-UR-REHMAN RAMDAY, J.--- One Muhammad Ali had been tried by the learned Sessions Judge of Bahawalpur for the murder of Muhammad Aslam and having been found guilty of the charge vide a judgment, dated 31-3-1993 and upon his consequent conviction under section 302, P.P.C., the said Muhammad Ali was punished with death and a fine of Rs,10,000 or two years' R.I. In default of payment of fine. The amount of fine was directed to be paid to the heirs of the deceased as compensation under section 544-A of the Cr. P. C .
2. Murder Reference No,19 of 1993/BWP, seeks confirmation of the said sentence of death while Muhammad Ali convict has approached this Court through Criminal Appeal No,29 of 1993/BWP and calls in question the above noticed conviction and sentences recorded against him. Both these matters are being disposed of together through this single judgment
3. The occurrence in question had taken place at about 9-00/10-00 p.m. On 20-5-1991 in the Courtyard of a mosque at Darbar Shah Syed Meeran near Basti Ghuman in the area of Mauza Khairu Deh about 23 kilometers from Police Station Hasilpur of District Bahawalpur and had been reported at the said police station by the mother of Aslam deceased, namely, Mst. Naziran P.W. On 21-5-1995 at 7-50 a.m. Narrating the said occurrence and the background leading thereto, Mst.
Naziran complainant had mentioned that she was a resident of Shahid Colony of Luddan; that she had a son by the name of Muhammad Aslam aged 16/17 years from her first husband who lived with her; that in the same colony one Muhammad Ali also resided and that the two families were on visiting terms with each other. The complainant had added that about two months prior to the present occurrence, the said Muhammad Ali had complained to her that her son Muhammad Aslam had developed illicit relations with his sister Mst. Nooran at which, the complainant inquired about this allegation and finally satisfied the said Muhammad Ali that his suspicion about the abovementioned immoral relationship was not correct. The complainant had further reported that on 20-5-1995 she went to Darbar Shah Syed Meeran abovementioned at about Dopherwela alongwith her abovementioned son Muhammad Aslam, her husband Ghulam Nabi, a brother of her husband, namely, Rab Nawaz, P.W., Ahmad Bakhsh and Muhammad Ali accused for performing the Mannat about her son Muhammad Aslam and that since it had become late at night, therefore, they did not return home and instead stayed at the said Darbar for the night. The complainant had further claimed that she, her husband Ghulam Nabi and the abovementioned Rab Nawaz and Ahmad Bakhsh went off to sleep on the cots while her son Aslam deceased and the said Muhammad Ali accused went and slept in the courtyard of the nearby mosque. She had further alleged that at about 9-00/10-00 p.m. They heard alarm from the mosque and rushed towards the same where they saw Muhammad Ali accused plunging a Dagger in the abdomen of Aslam deceased. She had added that the said accused was intending to inflict another blow but ran away from the place of occurrence on seeing the complainant and her companions rushing towards the mosque. The complainant had further reported that when she and her companions went near the said Aslam, they found his intestines protruding out of his abdomen and he succumbed to the injuries a short while thereafter.
4. Muhammad Ramzan, Investigating Officer/S.H.O. (P.W,7) visited the place of occurrence and collected blood-stained earth vide memo. Exh.P.H. And a piece of blood-stained mat P.3 vide memo. Exh.P.J. Which he had found at the venue of occurrence. He arrested Muhammad Ali appellant on 25-5-1991 who thereafter, allegedly led to the recovery of a blood-stained dagger P.4 on 31-5-1991 which was seized vide memo. Exh.P.K.
5. When confronted with the prosecution case Muhammad Ali appellant denied his involvement in the murder in question and submitted that he had been falsely involved because of enmity. He, however, produced Ghulam Muhammad, Hakeem, Abdul Majeed and Syed Akhtar Hussain in his defence as D.W.1, D.W.2, D.W.3, and D.W.4 respectively who were the Majawar of the abovementioned Darbar, the Chowkidar of Basti Luddan Riyasti, the Lumberdar of the said Basti Luddan Riyasti and a Zamindar of Basti Nai Abadi Gulpur, respectively.
6. The defence case, as the same emerges from the testimony of these defence witnesses is that Ghulam Muhammad Mujawar (D.W.1) went to the mosque which is the venue of the murder in question on 21-5-1995 to offer morning prayers and saw the dead body of an unknown person lying in the courtyard of the said mosque. He went to Majeed Khan Lumbardar (D.W.3) and informed him of the presence of the said dead body where Hakeem Chowkidar (D.W.2) was also present. Majeed Lumbardar sent Hakeem Chowkidar to Police Station Hasilpur to inform the police about this dead body which dead body was then removed to the said police station where Syed Akhtar Hussain (D.W.4) informed the police that the dead body was that of one Dhirkhan of village Luddan at which, Hakeem Chowkidar D.W. Was sent by the police of Police Station Hasilpur to Luddan where he informed the mother of the deceased about the murder in question.
7. Inspite of the fact that the complainant and the other two eye-witnesses i,e, her present husband, namely, Ghulam Nabi (P.W.10) and Ghulam Nabi's brother, namely, Rab Nawaz (P.W.9) are closely related to Muhammad Ali appellant and no apparent reason exists for the appellant's false implication at the instance of these eye-witnesses except the reason mentioned as the motive for the present occurrence, the ocular testimony somehow does not inspire confidence for the reasons hereinafter mentioned.
8. Before proceeding further, it may be mentioned here that a niece of Rab Nawaz and Ghulam Nabi P. Ws. Is married to a brother of Muhammad Ali appellant and the wife of the said appellant, namely, Mst. Hafeezan is a Phuphizad of Mst. Nazeeran complainant.
9. The occurrence in question is stated to have taken place at about 9-00/10-00 p.m. The date of occurrence is 20-5-1991 when the Isha prayers started at 9-00 p.m. In this view of the matter, the time of occurrence as alleged would not be the kind of hour of the night when the mosque which is the place of occurrence would be deserted and which time could have been considered opportune by Muhammad Ali appellant to kill the deceased. Thus, the prosecution claim that the occurrence had taken place at about 9-00/10-00 p.m. Does not sound plausible and convincing. It was the complainant's own case that Muhammad Ali appellant had suspected Muhammad Aslam deceased to have developed an immoral connection with his sister. Despite the unsubstantiated assertion of the complainant that she had satisfied the appellant about the falsity of this suspicion, it does not inspire confidence that she would have elected to take the said Muhammad Ali appellant to the said Darbar for offering the Mannat in respect of Muhammad Aslam deceased.
The Darbar in question was not a deserted part of the country. There were villages quite near the said Darbar and it is on record that Basti Luddan Riyasti of which Majeed D.W. Was a Lumberdar was only about two Acres i,e, about 400 feet away from the said Darbar. The said Lumbardar (sic) owned a motor car. If the occurrence in question had taken place at about Isha time then, the claim of the eye-witnesses that they could not go to the police station because of the late hour of the night, is not plausible. As has been mentioned above, the time of occurrence could not be said to be/ that late hour of the night when the complainant and the other eyewitnesses or other people living at and around the Darbar could not have managed or found any transport for the eye- witnesses to reach the police station. As has been noticed above, according to the prosecution, the occurrence had taken place at about 9-00/10-00 p.m. On 20-5-1991. According to Dr. Abdul Ghafoor (P.W.5) who had conducted the post-mortem examination of the dead body of Aslam deceased, the dead body of the said deceased had reached the T.H.Q. Hospital Hasilpur at 12-00 noon on 22-5-1995 and the post-mortem examination had been conducted at 1-00 p.m. The dead body had been identified inter alia by Syed Akhtar Hussain Shah, the abovementioned D.W.4. Even if it be assumed for the sake of arguments that the occurrence had taken place at the time alleged by the prosecution and the F.I.R. Had been recorded at 7-15 a.m. On 21-5-1991 as claimed by the prosecution, the arrival of the dead body in the hospital about 40 hours after the occurrence and about 30 hours after the recording of the F.I.R. Is not understandable. Muhammad Ramzan, Inspector/ S.H.O. (P.W.7) deposed that after recording the F.I.R. At 7-15 a.m. He had reached the place of occurrence which was at a distance of about ten miles from his police station within about half an hour meaning thereby that he should have been at the place of occurrence at about 8-30 a.m. On 21-5-1991. He claimed to have handed over the dead body of Aslam deceased to Muhammad Rafiq F.C. (P.W.6) at about 11-00 a.m:/12-00 noon on the said day which was then carried to the hospital on a tractor trolly. Rafiq F.C. (P.W.6) admitted having been handed over the dead body at 12-00 noon on the day of occurrence and to have taken the same to the hospital on a tractor trolly as claimed by the Investigating Officer. According to the F.I.R. Hasilpur was at a distance of about 23 kilometers i,e, about 15 miles from the place of occurrence but according to the Investigating Officer (P.W.7) his police station at Hasilpur was at a distance of about 10 miles from the venue of occurrence. Even if it be presumed that the hospital at Hasilpur was at a distance of about 15 miles from the place of occurrence, it should not have taken the tractor trolly more than two hours to cover the said distance. In the circumstances, the dead body should have reached the hospital at about 2-00 p.m. On 21-5-1991. Given a margin of another one hour or even two hours, the dead body should have been at the hospital by 4-00 p.m. The sun set on the day of occurrence was at 7-00 p.m. Rafiq F.C. (P.W.6) deposed that he handed over the dead body to the doctor in the evening when sun had already set. Where was this Rafiq F.C. (P.W.) and where was the dead body from around 2-00/3-00 p.m. On 21-5-1991 when the same should have reached the hospital in due course of things till after sun set is not known and this claim of Rafiq F.C. Is, therefore, not acceptable. This P.W. Is contradicted by the doctor who despite being a prosecution witness declared that he had received the dead body not in the evening whether before or after the sun set on 21-5-1991 but had received the same at 12-00 noon on the next day i,e, on n 22-5-1991. Where was the dead body from around mid-day on 21-5-1991 till around the mid-day on 22-5-1991, thus, remains a mystery, for which the prosecution has no reasonable explanation. The only inference which can be drawn from such an inordinately delayed arrived of the dead body in T.H.Q. Hospital is that the F.I.R. And the other relevant documents which are to accompany the dead body to the hospital had not been prepared till 22-5-1991 and the half cooked explanations offered by Rafiq F.C., are only a futile attempt to cover up this lacuna in the prosecution case.
10. These circumstances lend support to the defence version that the murder in question had taken place some times in the late hours of the night between 20th and 21-5-1991; that the dead body of Aslam deceased had been discovered by Ghulam Muhammad Majawar (D.W.1) at the Fajjar prayer time on 21-5-1991 who then brought the matter to the notice of the Lumbardar Majeed (D.W.3) and Chowkidar Hakeem (D.W.2) of the nearest village i,e, Basti Luddan Riyasti and it was thereafter, that the dead body had been identified by Syed Akhtar Hussain (D.W.4) whereafter the mother of the deceased had been informed.
11. The abovenoticed infirmities in the prosecution case and the reasonableness of the defence version do cast doubts on the prosecution story of the present occurrence and do raise a definite possibility of the occurrence having gone unwitnessed and of Muhammad Ali appellant having been involved on account of suspicion because of his having complained of the immoral relationship of the deceased with the said appellant's sister. In this view of the matter, it could not be said that the prosecution had proved its case against Muhammad Ali appellant beyond all reasonable doubts.
12. Consequently, Criminal Appeal No,28 of 1993/BWP is allowed. The impugned conviction and sentences recorded against Muhammad Ali appellant through the impugned judgment are set aside. He is acquitted of the charge in question and shall be set at liberty forthWith if not required to be detained in any other case.
13. Murder Reference No,19 of 1993/BWP is answered accordingly. .