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Criminal Appeal Nts.135 of 1979, decided on 26th March, 1984.

(On appeal from the judgment and order of Lahore High Court, dated 30‑9‑1976 passed in Cr. Appeal No. 729 of 1976).

‑‑‑Art.185(3)‑‑Penal Code (XLV of 1960), S.302‑‑Murder‑‑Leave to appeal‑‑Granted on ground that one of eye‑witnesses lived thirty miles from place of occurrence and, therefore, he was a chance witness whose evidence was not worth credence.‑‑[ Witness ]

‑‑‑S.302‑‑Murder‑‑Evidence‑‑Prosecution story belied by fact that there was deliberation and consultation before charging accused‑‑No plausible explanation given for presence at place of occurrence of eye‑witness living at distance of thirty miles from such place‑‑Version of prosecution also contradicted by medical evidence‑‑Nature of injuries on body of deceased reflecting on prosecution case adversely‑‑Conviction and sentence set aside.

Agha Aziz Ahmad Khan, Advocate Supreme Court and Sh.Abdul Karim, Advocate‑on‑Record (absent) for Appellant.

Ghulam Ahmad, Advocate Supreme Court for Advocate‑General (Punjab) and R. Muhammad Yusuf, Advocate‑on‑Record for Respondent.

Date of hearing: 26th March, 1984.

. Leave was granted to the appellant vide order of this Court dated 28‑11‑1983 on the ground that, the witnesses examined as eye‑witnesses of the occurrence were Mst. Halima P.W.6, Allah Ditta P.W.7 and Sardara P.W.9, Allah Ditta P.W.7 lived thirty miles from the place of occurrence and, therefore, it was contended that he was a chance witness whose evidence was not worth credence. According to the prosecution the occurrence was witnessed) by one Shafi also who was an independent person yet he was not examined while the prosecution examined only the witnesses who were related to the deceased. Sardara and Allah Ditta could not have witnessed the occurrence as they admitted to have been attracted to the scene of occurrence on hearing the alarm only and this means that the evidence of Mst. Halima alone is crucial to the case but she admitted in the lower Court that she and the other persons examined as eye‑witnesses had discussed the case before their statements were recorded and thereafter the accused /appellant was charged. The appellant was tried by the learned Additional Sessions Judge, Kasur for the murder of Mst. Hajran committed on 14‑3‑78 at about Deegarwela in the area of Bia Singhwala near the tube‑well of Ch. Muhammad Hasan by inflicting hatchet blows to deceased Mat. Hajran. He was convicted under section 302, P.P.C., per judgment dated 8‑6‑76 and was awarded death penalty. Appellant filed an appeal in the Lahore High Court and Murder Reference ‑was placed before the learned Judges who rejected the appeal and confirmed the death sentence vide the impugned judgment dated 30‑9‑78.

2. According to the evidence against the appellant, the deceased Mst. Hajran, was daughter‑in‑law of Sardara P.W.9 the complainant. A month prior to the occurrence the deceased complained to Sardara that the accused /appellant had made indecent jokes with her. He called Siraj appellant and admonished him to behave. On the day of occurrence i.e. 14‑3‑73 at about Deegarwela, Sardara P.W.9 alongwith Shafi, not produced, were coming from the Dera of Ilam Din, when they covered some distance they saw the accused /appellant Siraj giving hatchet blows to the deceased Mst. Hajran and was about to run away. Allah Ditta P.W.7 also arrived there while Mst. Halima P.W.6 was already present with the deceased. The accused ran away alongwith the weapon of offence i.e. the hatchet. The deceased died on the spot. Leaving his brother Jalal Din at the spot, Sardara proceeded to Police Station Kanganpur and lodged the report Exh. P.A which was recorded by Ch. Muhammad Riaz P.W.8 then S.I/SHO P.S. Kanganpur.

3. After recording the aforesaid report Exh. P.A the Investigating Officer visited the spot and found there the dead body of Mst. Hajran; prepared inquest report Exh. P.G and injury statement Exh. P.H; he sent the dead body for post‑mortem examination in custody of Muhammad Yusuf and Muhammad Khan Constables. The 1.0 took the blood‑stained earth from the spot and arrested the accused /appellant. While in police custody the accused /appellant led to the recovery of blood‑stained hatchet which the Investigating Officer took into possession vide Memo Exh. P.C. He also got prepared site plans Exh. P.F and Exh. P.F/1 through the Halqa Patwari giving red notes thereon in his own hand.

4. Dr. Naseem Ahmad Qureshi P.W.1 performed the post‑mortem examination on the dead body of Mst. Hajran on 15‑3‑73 at 4‑30 p.m. and found.

(i) cut wound on the back of head lower part starting to the left midline and going transversely to the front of left ear which was completely cut in its middle 4" x 8 " the base of the skull-underneath was cut.

(ii) cut wound transversely in direction on the back of neck upper part starting 1" to the left of mid‑line and going to the lower end of the right ear 5 " x 1 " The vertebral column and blood vessels and other soft tissues were completely cut underneath and pharynx was reached.

(iii) cut wound on the back and right side of the neck " below injury (ii) slightly oblique in direction 3 " x 1" vertebral column underneath cut completely.

(iv) cut wound on the back and left side of the neck lower part direction was slightly oblique 3 " x 2 " x 1" x vertebral column underneath partly cut, and

(v) cut wound on the back of the left scapular region 6" x 3" scapular underneath was cut. The wound was the result of two blows.

According to the doctor death of the deceased was caused due to shock and haemorrhage from wounds (i), (ii) and (iii) which were individually sufficient in the ordinary course of nature to cause death. The doctor also found that the small intestines contained gases and the large intestines contained foecal matter and the bladder contained ounces urine. Vaginal swabs were taken and sent to the Chemical Examiner.

5. According to the ocular testimony of Mst. Halima P.W.6 she had accompanied the deceased on the eventful day to the fields to answer the call of nature; the deceased Mst. Hajran was the wife of her maternal‑uncle; at Deegarwela when they were returning home and reached near the tube‑well of Ch. Muhammad Hasan the accused Siraj crossed them carrying a hatchet in his hand lie asked Mst. Hajran to accompany him but she declined to do so; on this the accused /appellant started giving hatchet blows to the deceased; she raised alarm which attracted Sardara P.W.9, Shafi and Allah Ditta P.W.7 but the accused appellant seeing the witnesses coming, decamped while Mst. Hajran breathed her last there.

6. In cross‑examination we find that Mst. Halima was confronted with her statement recorded by the Committing Magistrate where she had stated :

"It is incorrect that I told Sardara in the house Siraj accused has murdered Mst. Hajran. I did not state before the Committing Magistrate that when I told this fact to Sardara at that time Shafi and Allah Ditta P.Ws. were also sitting with him."

She was further confronted with her statement before the Committing Magistrate that before recording the statements of Sardara, Shafi and Allah Ditta, she remained sitting in a separate place in the Police Station to make deliberation as to what statements may be given when Sardara told her that since Siraj used to take liberty with Mst. Hajran he would have committed the murder of the deceased Hajran.

7. Thus the whole prosecution story is belied by the very fact that there was deliberation and consultation before the accused /appellant' was charged. It is also admitted fact that Allah Ditta belongs to village Kot Jamber which lies at a distance of thirty miles from the place of occurrence and he could not give any plausible explanation for his presence at the spot at the time of occurrence. Sardara P.W.9 himself has not been very helpful to the prosecution case as he was confronted with his statement recorded under section 342, Cr.P.C. where he stated that he saw the accused /appellant Siraj giving hatchet blows to Mst Hajran deceased. This statement was recorded on 7‑6‑1974 and he could not offer any explanation as to why this fact had not been recorded in his statement recorded by the Committing Magistrate. Shafi was the only witness who was termed as "independent" but the prosecution gave him up at the trial.

8. Besides the points discussed above the fact that the deceased had gone to answer the call of nature is belied by the statement of the doctor who found that the large intestines of Mst. Hajran deceased contained foecal matter and so also urine in her bladder. Had the deceased been out for this purpose both the intestines and the bladder should have been found empty because Mst. Halima stated that she and the deceased were returning home after attending the call of nature. The nature of injuries also reflects on the prosecution case adversely because it appears that whosoever has caused them, has caused the injuries with extreme cruelty and vengeance and such a person could only be one having such suspicion which would normally be resented by close relatives of the deceased like her husband particularly who did not appear in the Courts below nor gave any reference to the previous behavior of the accused /appellant. We, therefore, accept the appeal and direct that Siraj accused /appellant be set at liberty forthwith, if not required in any other case.

S . Q. Appeal accepted.

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