' TASSADUQ HUSSAN JILANI, J.---This judgment shall dispose of Criminal Appeal No,679 of 1992 filed by the appellants and Murder Reference No,327 of 1992 as also Criminal Revision No,669 of 1992 filed by the complainant as they arise out of the same judgment. Appellants were tried under section 302/34/449, P.P.C., for the murder of Mst. Shamim Akhtar (in case registered vide F.I.R. No, 465, dated 8-10-1990 P.S. Chak Jhumra, District, Faisalabad) by learned Additional Sessions Judge who vide his judgment, dated 2-7-1992 convicted the appellants and sentenced both of them lo death. They were also burdened with Rs,25,000 each and in default whereof to undergo R.I. For six months each. They were further directed to pay compensation of Rs,25,000 each to the legal heirs of the deceased failing which they were further to undergo S.I. For six months each. They were also convicted under section 449, P.P.C., and were sentenced to undergo 7 years' R.I. With a fine of Rs,10,000 each failing which they shall undergo six months' S.I.
2. The prosecution story as given in the F.I.R., Exh.PF/1 registered on the statement of Niaz Ahmad P.W.6 recorded by Nazar Husqin S.I. P.W.10 briefly stated is that on 9-10-1990 at about 10-30 p.m.
Complainant had gone to water his fields and his wife. Mst. Shamim Akhtar was asleep in his house alongwith the children. At about 3 a.m. When the complainant came back to his house he heard hue and cry of his wife. As he entered the house, he saw that appellant Nazir Hussain armed with Chhuri and Manzoor Hussain armed with hatchet and caught hold of his wife and were trying to throw her on the ground. Within his view Manzoor Hussain appellant gave a hatchet blow on the head of Mst. Shamim Akhtar deceased and she fell down on the cot and, thereafter, Nazir Hussain appellant cut the throat of his wife which he was carrying. On complainant's cry, P.Ws. Ashfaq Ahmad and Muhammad Hussain came to the spot and the accused decamped holding out threats to them. The motive alleged in the F.I.R., was that brother of Mst. Shamim Akhtar had abdUcted wife of appellant Nazir Hussain namely Shamshad Bibi, two years prior to the occurrence.
Nazir Hussan accused were demanding the return of Mst. Shamshad Bibi and a few days prior to the occurrence Nazir Hussain and Manzoor Hussain appellants had threatened the complainant of dire consequences. On that grudge, it was alleged that the appellants had killed the wife of the complainant Mst. Shamim Akhtar.
3. After recording the F .1. R . , P.W.10 Nazar Hussain went to the spot, prepared the inquest report, secured the blood-stained earth vide memo. Exh.PE which was witnessed by Ashfaq Hussain and Muhammad Hussain P.Ws. He also prepared the site plan of the place of occurrence. He arrested Manzoor Hussain on 26-11-1990 and on the same day he produced hatchet P1, which was taken into possession vide memo. Exh.PA. On 13-11-1990, Nazir Hussain appellant led to the recovery of blood- stained Chhuri P2 from his house which was taken into possession vide memo. Exh.PB. Dr. Iqbal Ahmad Javed P.W.7 conducted the postmortem examination of Mst. Shamim Akhtar and found the following injuries:---
(1) An incised wound on back surface of the head 2-1/2" above the left ear and 5" above the right ear. 3" x 1/2" into fracture of the bone, occipital bone,
(2) An incised would in front of the upper most part of the neck chest below the chin, 3-1/2" x 2" trachea and caroited vessels, sternomastosid were cut through and through.
(3) An incisecl,:wound in front of the right shoulder 3/4" x 1/2" into muscle deep the direction was oblique. A corresponding was present on the shirt which was also blood-stained at the time my examination.
' According to him the cause of death was injuries Nos.1 and 2 which were sufficient in the ordinary course of nature to cause death.
4. During the trial the prosecution examined 11 witnesses including the doctor and the Investigating Officer. Faryad Ali P.W is a formal witness who identified the dead body of Mst. Shamim Akhtar at the time of post-mortem examination. Ghulam Muhammad P.W.2 is a witness of recovery of hatchet P1 and Chhuri P2. P.W.3 A urangzeb is a draftsman who prepared duplicate site plan of the place of occurrence which are PC and PC/1. P.W.4 Hadayat Ali is a constable who escorted the dead body to the mortuary for post-mortem examination. P.W.5 is Muhammad Hussain. According to him he saw both the appellant slaughtering Mst.Shamim Akhtar with their respective weapons.
P.W.6 is Niaz Ahmad who is complainant of this case: He made statement in terms of narrations made in the F.I.R. Exh.PF/1. Nasir Hussain P.W.8 recorded the formal F.I.R. Exh.PF/1 having receipt of formal complaint Exh.PF. On 17-11-1990, he delivered sealed parcel of blood-stained earth through Hadyat Ullah constable for onward transmission to the office of Chemical Examiner, Lahore, P.W.9 is Nazir Hussain constable. He is witness of recovery of bloodstained Chhuri P2 from Nazir Hussain appellant. P.W.10 Nazar Hussain, S.I. Has partly investigated the case. P.W.11 is Muhammad Sajid. He kept sealed parcel containing blood-stained Chhuri and handed it over to Hadyat Ali for onward transmission to the office of Chemical Examiner.
5. The appellants when examined under section 342, Cr.P.C. They denied the prosecution story and pleaded their false implication. Manzoor Hussain appellant has given his defence version as under:- ' The sister of the deceased Ms. Habib Akhtar was undergoing a case of Zina. The complainant and the deceased quarrelled on that issue. The informant rubbled the deceased that she was as bad as her sister. She in return abused him. The informant killed the deceased and having won over the police involved us. The Report of the Chemical Examiner Exh.P.N. Shows that the Swabs of the sister of the deceased were found stained with semens.
6. Learned counsel for the appellants in support of the appeal submitted that the appellants have- been falsely implicated; that it was a blind murder, that the marginal swabs were stained with semen which indicates that the deceased must have been found in compromising position with somebody and the complainant party might have done her to death and the appellants have been falsely implicated; that the prosecution story is unnatural inasmuch as is the complainant and other eye-witnesses were present at the spot, they could have caught the appellants.
7. Learned counsel for the State on the other hand has supported the impugned judgment by submitting that both the appellants were specifically named in the F.I.R. Which was lodged promptly; that the ocular account is consistent and is corroborated by the medical evidence which is further corroborated by the recovery of blood-stained Chhuri and hatchet. He lastly added that the appellants had a motive to kill and, therefore, the prosecution case stands proved beyond doubt.
8. We have heard learned counsels for parties and have gone through the evidence on record.
9. A careful analysis of the ocular account would indicate that the conduct of the complainant and eye-witness Muhammad Hussain P.W.5 was not natural inasmuch as if these witnesses along with third (Ashfaq Ahmad not produced) had witnessed the occurrence, there was nothing to prevent them from apprehending the appellants who were not carrying any fire-arm. They permitted the appellants to cause a hatchet blow on the head of Mst. Shamim Akhtar and allow them to cut trachea and charioted vessel through and through and another inflicted wound in front of right shoulder. If the victim was being subjected to these injuries and if she has raised hue and cry as alleged by the prosecution, then she must have tried to ward of the attack with her hands. But there is nothing in the medical evidence to suggest that she resisted the attack. There were no marks of violence on her hands or on her arms. The nature and local of injuries received by Mst.
Shamim Akhtar suggests that she was done to death when she was asleep and she neither resisted the attack nor there was anybody to challenge the assailants. The dimensions of the in cries further negates that weapon used were of two kinds. If there were two weapons i,e,, hatchet and Chhuri as alleged by the prosecution, the dimensions of injuries would have been different.
10. There are material discrepancies in the statement of two eye-witnesses inasmuch, as P.W.5 stated that the accused ran away by jumping over the broken wall whereas P.W.6 stated that the appellants ran away from the side of the said wall. P.W.5 was not aware of the motive part of the prosecution story and the same remained uncorroborated. Muhammad Hussain P.W. Is not a neighbour of the complainant Niaz Ahmad P.W.6 who explained his presence by stating that he was going to his house after attending to his agricultural fields. But when questioned whether on that evening it was his turn of water, he replied in negative. That being so there is no reason why he should have gone to his fields at an odd time like 3 a.m. In the morning. Similarly, the presence of even Niaz Ahmad P.W.6 is doubtful as on his own showing he was away from his house on account of his turn of water. The way he re- acted to the scene of his wife being slaughtered aAld the nature of injuries received by her would show that he was not present at the titer of occurrence.
11. The motive part of the prosecution story has also, no been proved. Firstly, because there is no corroboration of P.W.6 qua the motive and secondly, there was no direct motive against Mst.
Shamim Akhtar deceased to have promoted the appellants to kill her. The evidence of recovery is also of no consequence as it is belated i,e,, the weapons were recovered after more than 1-1/2 months and it is against normal human conduct that the appellants would retain the blood- stained weapons so as they can be used against them.
' For what has been discussed above, we are of the considered view that the prosecution case has not been proved beyond reasonable doubt to sustain punishment of a capital charge. Resultantly, Criminal Appeal No,679 of 1992 is allowed. Judgment, dated 2-7-1992 passed by the learned Additional Sessions Judge, Faisalabad is set aside and the appellants shall be released forthwith unless detained in any other case. Murder Reference is answered in negative. Criminal Revision No,669 of 1992 is dismissed as having no merits.