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Criminal Miscellaneous No. 653-S of 1982, beard on 23rd April, 1984,

-- S. 417 (2)-Penal Code (XLV of 1860), Ss. 302 & 120-B-Petition for special leave to appeal against acquittal-Appreciation of evidence-Gist of evidence of important witnesses showing that pro secution failed to establish murder charge against accused-Evidence of solitary eye-witness not inspiring confidence-Prosecution witnesses at magisterial inquiry not stating that eye-witness named accused before him as murderer of deceased and this omission weakening claim of eye-witness to have seen accused killing deceased --Extensive fatal injury found on neck of deceased not appearing to have been caused with a chhurri as claimed by eye-witness but appearing to have been given by a heavy sharp-edged weapon --Trial Court, held, rightly acquitted accused and judgment of trial Court not resulting in miscarriage of justice-No exceptional and strong grounds available in case to warrant grant of petition for leave to appeal against acquittal-Petition dismissed.-[Appeal against acquittal].

-- S. 417 (2)-Penal Code (XLV of 1860) Ss. 302 & 120-B-Acquit tal, interference with-Very strong and exceptional grounds, held, required to interfere with judgment of acquittal as on acquittal pre sumption of innocence of an accused becomes double.-[Appeal against acquittal].

Sardar Mehmood Khan for Petitioner.

Date of hearing: 23rd April, 1984.

Bahawal, petitioner has filed this petition for special leave to appeal against order of Additional Sessions Judge, Bahawalnagar, dated 4^th April, 1982 acquitting Muhammad Din and Abdul Aziz, respondents from charges under section 302/120-B, P. P. C. in a complaint case filed by the petitioner.

2. The incident took place on the night between 13th and 14th May, 1978 wherein Muhammad Hussain son of a cousin of the petitioner was murdered while asleep in his house in Chak No. 70/M at a distance of 7 miles from Police Station Dahranwala. The incident -was reported by Shah Muhammad Lambardar of the Chak through F. I. R. (Exh. D. A.) No. 49 dated, 14th may. 1978. It was alleged in the F. I. R. that Muhammad Sharif son of Pathana and Ghulam Dastgeer son of Haji Ahmad who removed Muhammad Hussain in injured condition to Dahranwala Hospital by a cart told him on the way that some unknown person had attacked and injured Muhammad Hussain. He accompanied them to Dahranwala Hospital where Muhammad Hussain was admitted in an unconscious condition. Towards the end of F. I. R. he expressed suspicion against the brothers of Muhammad Hussain as culprits for they had disputes regarding his second wife. Initially a case under section 307, -P. P. C. was registered and after Muhammad Hussain died the charge was changed to one under section 302, P. P. C. After prolonged investigations, the police sent the case as untraced, therefore, Bahawal petitioner filed a private complaint Exh. P. W. 9/A against the two respondents under section 302/120-B, P. P. C. on 24th February, 1979.

3. The prosecution story as set up in the complaint is that Mst. Sharifan (P. W. 5) was first wife of the deceased. Subsequently, he married Mst. Sakina (P. W. 8) and divorced Mst. Sharifan who filed a civil suit in the Court of Civil Judge, Chishtian, claiming possession of a piece of land from the deceased. He effected a compromise and promised to pay a sum of Rs. 20,000 to her in lieu of the land and a date was appointed for payment. It is alleged that some 20 days before the appointed day Muhammad Hussain (deceased) gave Rs. 20,000 to Muhammad Din, respondent, his sister's husband, who was his most trusted man. Muhammad Din allegedly had a bad eye on Mst. Sakina P. W., wife of the deceased, therefore, in order to misappropriate Rs. 20,000 and also to get Mst. Sakina for good, he conspired with Abdul Aziz, respondent, to remove Muhammad Hussain from his way. Pursuant to the conspiracy on the fateful night he attacked Muhammad Hussain while asleep in his house on a cot lying close to the cot of his wife Mst. Sakina (P. W. 8). Hearing the noise, Mst. Sakina woke up but Muhammad Din, respondent, threatened her not to raise alarm and declared that he had done away with Muhammad Hussain to secure her and then ran away. Sajwara and Yasin P. Ws. who were sleeping in the street saw him coming out of the house of the deceased after the occurrence. The complainant hearing about the incident went to Police Station Dahranwala for report but Abdul Aziz, respondent, met him outside the Police Station and asked him to go to the hospital as Muhammad Hussain was about to die and that he would get the case registered and ultimately through Shah Muhammad, Lambardar he got a report entered with police (F. I. R. Exh. D. A.) based on wrong facts wherein a suspicion was laid against the brothers of the deceased. According to the complainant, Abdul Aziz, respondent, a retired police man, was instrumental for registering wrong F. I. R. as he had pull with the police. Learned Sessions Judge after getting the complaint inquired into by a Magistrate summoned the respondents to face trial on the charges of conspiracy and murder.

4. The prosecution in support of its case examined 11 witnesses. Important among them are Mst. Sakina (Q. W. 8) the solitary eye-witness who allegedly saw the respondent Muhammad Din committing murder of her husband Muhammad Hussain; Yasin and Sajwara (P. Ws. 6/7) saw Muhammad Din coming out of the deceased's house after the occurrence; Dr. Ajab Khan Afridi, Demonstrator, Quaid-e-Azam Medical College, Bahawalpur (P. W. 1) conducted autopsy on the dead body of deceased; Shah Muhammad (P. W. 4) lodged the First Information Report Exh. D. A (against which present complaint has been filed); Mst. Sharifan (P. W. 5) the divorced wife of the deceased ; Bahawal (P. W. 9) the complainant and Muhammad-ud-Din (P. W. 10) a real brother of the deceased. A. S. 1. Manzoor Ahmad Khan who recorded the F. I. R. Exh. D. A. investigated the case and declared it as untraced, was examined as C. W. 1.

5. Muhammad Din, respondent, when examined under section 342, Cr. P. C., in reply to the question, "Why this case and why do the witnesses depose against you ", stated as under: -

"The brothers of the deceased bad enmity with him. They bad com mitted his murder. Ahmad Din, Muhammad Din who were brothers of the deceased, P. Ws. Mst. Sharifan and Mst. Sakina, P. Ws. Ghulam Rasool nephew of P. W. Sajwara, Muhammad Yousaf son of P. W. Mst. Sharifan and relatives of complainant Bahawal namely Muhammad Rafique and Rahmat Ali were involved in this case as suspects and in order to save their own skin, they falsely implicated me in this case after fabricating a false story. The brothers of the deceased suspected me that the deceased disputed with Mst. Sharifan on my instigation and since I was trying that the real culprits namely the brothers and other relatives of the deceased should be involved in the case, they all joined hands and fabricated evidence against me. The police case was filed for want of evidence and the present complaint was filed against me in order to pressurise me before the finalization of the investigation in the police case. P. Ws. Yasin and Sajwara were bribed by the complainant to fabricate evidence against me."

6. Dr. Ajab Khan Afridi, Medical Officer. Dahranwala (P. W. 1) on 14th May, 1978 at 4-25 a.m., during ante-mortem examination of Muhammad Hussain noted the following injury on his person: -

"An incised wound 11 c.m. x 3 c.m. x 5 c.m. deep on the outer aspect of left side of neck cutting the big blood vessels and tissues and fracturing the third cervical vertebra at the outer side. There was severe haemorrhage from the neck."

At that time the injured was completely unconscious and was in a comatose condition. He was not in a position to give statement as his respiration was irregular. He died at 5 a. m., and post-mortem examination was conducted at 8 a. m., the same day. The doctor positively asserted that he knew Muhammad Din, respondent by face who had identified the dead body before him.

7. On a detailed analysis of the evidence on record, learned trial Court found that the prosecution failed miserably in proving the two-fold motive set up against Muhammad Din, respondent, and the only eye witness Mst. Sakina was not reliable either. He also found that because Muhammad Din, respondent, was pursuing the investigation about Muhammad Hussain's murder against both the wives of the deceased, their relatives, and Ghulam Rasool nephew of Sajwara P. W., therefore, all of them joined hands against him and involved him in the case to save themselves. He further found the civil as well as criminal disputes between the deceased and his brothers were still pending wherein Muhammad Hussain, deceased, levelled allegations in the civil Court against his brother Ahmad Din as having illicit connection with his first wife Mst. Sharifan whom he divorced and in these disputes, the respondent Muhammad Din sided with the deceased. Ultimately, learned trial Court concluded that the prosecution failed to establish the murder charge against the respondents beyond reasonable doubt and acquitted them. Feeling aggrieved, the complainant Bahawal filed the instant petition for leave to appeal.

8. At the outset learned counsel for the petitioner submitted that he would not press this petition against Abdul Aziz, respondent, and argued it only against Muhammad Din, respondent.

9. We have heard learned counsel for the petitioner and also perused the record with his assistance.

10. The solitary eye-witness in this complaint case is Mst. Sakina (P. W. 8). She stated that Muhammad Din, respondent, was married .to sister of her deceased husband and bad very cordial relations with him. On the night of occurrence she was sleeping close to her husband. It was moonlit night. She woke up on hearing the bard breathing of her husband and saw Muhammad Din respondent cutting his throat with at chhuri. She entreated the respondent and raised alarm. Muhammad Din threatened her not to raise alarm and told her that by killing Muhammad Hussain he wanted to grab his property and also take her as his wife. She stated that Muhammad Din had bad intentions towards her since long. Her hue and cry attracted Sajwara and Yasin P. Ws. and she told them that Muhammad Din bad murdered her husband. She also stated that the deceased had disputes with his second wife Mst. Sharifan and the latter had filed a civil suit which was compromised and the deceased had agreed to pay Rs. 20.000 to her. The deceased having arranged the said amount gave it to Muhammad Din, respondent, for passing on the same to Mst. Sharifan. In cross-examination she admitted that Muhammad Din had got a case registered regarding the murder of her husband. The police arrived next day in the village. She denied the very knowledge if her statement was recorded by the police. She was confronted with her statement Exh. D. D. wherein it was not mentioned that she had seen Muhammad Din cutting the throat of her husband or that he declared that he had done away with Muhammad Hussain to secure her. There is also no mention that Muhammad Din had illicit connections with her or that Rs. 20,000 were entrusted by the deceased to him either. She admitted that Ahmad Din Lambardar is the brother of the deceased. She conceded that the police had interrogated Ahmad Din and Muhammad-ud-Din brothers of the deceased as suspects in the case. She averred that when she appeared before Magistrate in connection with this case (during preliminary inquiry) she had disclosed about the illicit connections with Muhammad Din, respondent, but on being confronted it was not found so recorded. She also conceded that sister of the deceased was living amicably with Muhammad Din, respondent, as his wife. According to her, short while after the occurrence the mother, the sister, the brothers of the deceased and the complainant Babawal arrived there whom she told about the occurrence and they accompanied Muhammad Hussain, injured, to the hospital.

11. Bahawal, complainant (P. W. 9) in his cross-examination admit ted that Shah Muhammad Lambardar the first informant accompanied the injured to the hospital and then went to the Police Station. He conceded that shortly after their arrival in the hospital the doctor had declared the injured as dead and Muhammad Din, respondent, was present in the hospital at Dahranwala at that time. He also conceded that he gave no written application to any authority that the case was registered on wrong facts at the instance of Shah Muhammad Lambardar. He denied direct knowledge of handing over of Rs. 20,000 by the deceased to Muhammad Din, respondent, or that the latter had any illicit connection with Mst. Sakina.

12. Yasin (P. W. 6) claimed that he and Sajwara (P. W. 7) on bearing alarm woke up and went to the house of deceased Muhammad Hussain and reaching there saw Abdul Aziz and Muhammad Din (respon dents) coming out of the said house. On entering the house they found Muhammad Hussain lying dead with a cut wound on his neck. To the contrary, Sajwara (P. W. 7) stated that on reaching near the house of Muhammad Hussain he and Yasin saw Muhammad Din, respondent, alone running from the house of the deceased and on entering the house he found Muhammad Hussain lying with a cut on his neck and breathing with difficulty. In cross-examination, they, however, tried to reconcile the discrepancy. Sajwara (P. W. 7) stated that he had asked the brothers of the deceased to get the case registered and cite him as a witness but he did not know if any of the brothers of the deceased had gone to police to report the occurrence or not. Yasin (P.W. 6) went to the extent of saying that he had seen Muhammad Din, respondent, in compromising position with Mst. Sakina (P. W. 8) about 2/3 months before the occurrence but had neither informed Muhammad Hussain about this incident nor had he reported the matter to the police. Shah Muhammad (P. W. 4) although denied to have expressed a suspicion against the brothers of Muhammad Hussain, deceased, as the assailants in his report Exh. D. A. yet he admitted that Ahmad Din, a real brother of the deceased, had approached him and informed that some unknown person had injured Muhammad Hussain and that he accompanied Ahmad Din to Dahranwala hospital. He was not suggested in cross-examination by the complainant that Ahmad Din or Muhammad-ud-Din had told him that the deceased was murdered by Muhammad Din, respondent. Ahmad Din did not appear. However, Muhammad-ud-Din, brother of the deceased had appeared as P. W. 10 who stated that Mst. Sakina told him that her hasband was murdered by the respondent Muhammad Din. In cross-examination he was confronted with his earlier statement, dated 2nd August, 1979 made during the inquiry before the Magistrate wherein be had not stated so. He admitted that besides him, his relatives were taken in custody by the police as suspects in the case: He also admitted that respondent Muhammad Din had got a theft case registered against his wife and got him (witness) hauled up in proceedings under section' 107/151, Cr. P. C. few days before the occurrence.

13. Rom the above-quoted gist of evidence of important wit nesses, we find that the view of the trial Court that prosecution has failed to establish the murder chare against the respondents appears to be reasonable and correct. The evidence of solitary eye-witness in this case does not inspire confidence. Admittedly, Mst. Sakina did not make any complaint to the higher authorities against the conduct of the police and, culpability of Muhammad Din, respondent, as murderer of Muhammad Hussain. She herself was joined as suspect and Muhammad Din, respondent, had been pursuing the case against the brothers of the deceased and relatives of the witnesses as killers of Muhammad Hussain and, therefore, the reason for Mst. Sakina coming forward as an eye-witness against him is quite understandable. It is in the evidence of Bahawal, complainant, as well as of Dr. Ajab Khan Afridi (P. W. 1) that respondent Muhammad Din was present in the hospital with Muhammad Hussain (while he was still alive) and had also identified his dead body. At that time, brothers, sisters and other relatives of Muhammad Hussain were also there. Had somebody of- Mst. Sakina seen him murdering the deceased then he (respondent) would not have been allowed to walk about freely. He would have been either attacked out of vengeance or at least captured and handed over to the police. It is more significant that real brothers of Muhammad Hussain (deceased) namely, Muhammad-ud- Din and Ahmad Din Lambardar did not report the matter to the police even on the advice of Yasin P. W. who chimed to be a Wajtakkar witness. It means that either Yasin had not seen Muhammad Din respondent, escaping from the scene or had not told so to the brothers of the deceased. Muhammad-ud-Din (P., W. 10) did not state during the magisterial inquiry that Mst. Sakina named before him Muhammad Din, respondent, as murderer of the deceased. This omission weakens the claim of Mst. Sakina to have seen Muhammad Din, respondent, killing Muhammad Hussain. The story of illicit connections of Muhammad Din with Mst. Sakina appears to be a concoction because it does not find place in Mst. Sakina's earlier statements recorded by the police and the Inquiry Magistrate.

14. Again, the extensive fatal injury found on the neck of Muhammad Hussain, deceased, in our view, does not appear to have been caused with a chhuri by using it in butchering manner because in such a situation the victim would have awakened and resisted and in that process suffered injuries on his arms and hands or other parts of his body. Most probably C his injury was given with a heavy sharp-edged weapon and by striking with it once the assailant would have disappeared un-noticed. The version of Mst. Sakina that she saw Muhammad Din cutting throat (obviously in sawing action) of her husband with a chhuri cannot, therefore, be believed.

15. On independent assessment of the evidence made by us it can be said with confidence that the trial Court had rightly acquitted the respon dents and the judgment is neither perverse nor has it resulted in miscarriage of justice. It is well-recognized that for interference with judgment of acquittal very strong and exceptional grounds are required as on acquitted the presumption of innocence of an accused becomes double. There are no exceptional and strong grounds in the case in hand, warranting the grant of leave to appeal against acquittal. Consequently, this petition being without any merit is hereby dismissed in limine.

M. Y. H. Petition dismissed.

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