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Criminal Appeal No. 67 of 1985, decided on 7th July, 1985.

‑‑‑S. 304, Part I‑‑Murder‑‑Grave and sudden provocation‑‑Witness father of one deceased though claimed to be an eye‑witness while lodging first information report but did not state during trial that he had himself seen occurrence and on other hand admitting that some one had informed him of occurrence‑‑Another prosecution witness in his examination‑in‑chief did not at all name accused to be murderer of deceased and did not state about presence of accused at spot at time of occurrence‑‑Perusal of statement of said witness showing that he did not himself see occurrence‑‑Thus, no eye‑witness available to support prosecution case‑‑Recovery of Kapa (weapon of offence) admitted by accused in his statement under S. 342, Criminal Procedure Code of no avail to prosecution because of absence of eye‑witness of occurrence‑ Investigating Officer absconding due to his involvement in some other case and not appearing as witness during trial‑‑No other witness appearing to identify his handwriting or signatures on various documents relied upon by prosecution‑‑First information report disowned by complainant and not duly proved by examining its scribe during trial‑‑No circumstance available against accused requiring his explanation There being no eye‑witness and as such accused could not have been asked any question regarding allegation of murder‑‑Conviction and sentence of accused set aside.

‑‑‑S. 342‑‑Penal Code (XLV of 1860), S. 304, Part I‑‑Evidence Act (I of 1872), S. 24‑‑Confession‑‑Unless a circumstance appears in evidence against an accused, he cannot be questioned about it and if any such question is put to him and in reply he admits existence of that circumstance, statement of accused even if it amounted to a confession, held, cannot be acted upon at trial‑‑Only such material can be used against accused person as has been obtained in accordance with relevant provisions of law and nothing, that is not obtained, is relevant.

Ghulam Farid v. Crown P L D 1950 B J 5 and Jahangir v. The State 1984 P Cr. L J 1015 rel.

‑‑‑S. 304, Part I‑‑Criminal Procedure Code (V of 1898), S. 342‑ -Murder‑‑Grave and sudden provocation‑‑Admission of accused under S.342, Cr.P.C.‑‑There being no eye‑witness and accused could not have been asked any question regarding allegation of murder and if he admitted in his statement under S. 342, Cr.P.C., to have killed deceased under grave and sudden provocation, his said statement having been made in answer to a question which could not have been asked from him, held, could not be taken into consideration to record conviction against him.

Ch. Mahboob Ahmad for Appellant.

Tassadaq Hussain Gillani A.A.‑G. assisted by Zafar Anjum for the State.

Date of hearing: 7th July, 1985.

This is an appeal by Abdul Khaliq (20) against his conviction under section 304(I), P.P.C. on two counts by learned Additional Sessions Judge, Vehari, who vide judgment dated 3‑4‑1985, sentenced him to five years R.I. on each count.

2. The occurrence in this case took place at 2‑30 p.m. on 12‑8‑1983, in a sugar‑cane field belonging to the father of the accused in Chak No. 377/E. B., 3 miles from Police Station Gaggo, District Vehari. The F.I.R. Exh. P.D. was recorded on the same day at 4‑30 p.m. at the Police Station by S.I. Riaz Ahmad (not examined) on the statement of Muhammad Ibrahim P.W.3.

It was stated by the complainant in the F.I.R. that on 12‑8‑1983, at about 2‑30 p.m., he alongwith Ali Gohar P.W. and Loona P.W. after saying Jumma prayer was returning to his Chak. When they reached near the sugar‑cane field of Asghar Ali (father of the accused), he saw Abdul Khaliq accused armed with a Kapa entering the sugar‑cane field in Killa No. 39/12. Immediately thereafter, he heard alarm. He alongwith the two witnesses rushed to the spot and saw Abdul Khaliq accused causing injuries to his son Muhammad Latif, who was naked, With the said Darant (Kapa). After killing Muhammad Latif, the accused caused injuries to his own sister Mst. Haleema who was present there naked. She also died of the injuries at the spot. The accused ran away with his Darant. It was further stated in the F.I.R. that a few days before the occurrence, Abdul Khaliq accused had asked him to stop his son Latif from having illicit relations with Mat. Haleema. It was further stated in the F.I.R. that the accused killed Muhammad Latif and Mst. Haleema finding them naked at the spot. Leaving the two dead bodies in the sugar‑cane field, Muhammad Ibrahim went to P.S. and lodged the F.I.R. Exh. P.D.

3. The police after registration of the case undertook investigation. The dead bodies of Muhammad Latif and Mst. Haleema deceased were found lying at the place of occurrence and sent for post‑mortem examination which was conducted by Dr. Shamshad Hussain Tirmazi P.W.5 on 13‑8‑1983 at about 4‑00 p.m.

On external examination of the dead body of Muhammad Latif aged about 20/22 years, the Medical Officer found 12 incised wounds of various dimensions on the neck, right and left shoulders, left side of chin and right hand. There were corresponding cuts on shirt under injuries Nos. 8 and 9. On internal examination. the 2nd cervical vertebra and spinal cord were found cut through and through under injury No.1. All other organs were healthy. Injuries Nos. 10 and 11 were grievous. Injury No.1 was fatal and had caused shock and haemorrhage. This injury was sufficient in the ordinary course of nature to cause death. All the injuries had been caused by sharp‑edged weapon. The death followed immediately after receipt of injuries while the post‑mortem was conducted after about 28 hours of the death.

On the same day at about 5‑30 p.m., this Medical Officer conducted post‑mortem examination on the dead body of Mst. Haleema aged about 17/18 years. On external examination, he found ten incised wounds of various dimensions on the lower part of pinna, right mandible, right side and upper most part of neck, right shoulder, left upper arm and right hand. The muscles, vessels and trachea were found cut through and through as a result of injury No.4 on the right side of neck. On internal examination, the trachea below thyroid cartilage was cut. The blood vessels on the right side of neck were also cut. All other internal organs were healthy. Injuries Nos. 7 and 10 were grievous. Injury No. 4 was fatal. The death was due to shock and haemorrhage resulting from injury No.4 which was sufficient to cause death in the ordinary course of nature. All other injuries were simple in nature. All the injuries had been caused by a sharp‑edged weapon. The death had occurred within few minutes of the receipt of injuries and post‑mortem was conducted after about 28 hours of death. Two vaginal swabs were taken and sent to the Chemical Examiner for detection of semen. According to he report of Chemical Examiner Exh. P.J., the swabs were not stained with semen.

The accused was arrested on 13‑8‑1983. He on that day led to the recovery of Kapa P.7 (Darant) from his residential Kotha which was taken in possession by S.I. Riaz Ahmad vide memo. Exh. P.G. in the presence of Ali Gohar P.W.4 and Ata Muhammad (not examined). This Kapa P.7 was found stained with human blood vide report of Chemical Examiner Exh. P.K. and that of Serologist Exh. P.L. The accused was challaned after completion of investigation.

4. The prosecution during the trial examined 8 witnesses in all. Muhammad Ibrahim P.W.3 and Ali Gohar P.W.4 were examined as eye‑witnesses. Loona, another eye‑witness named in the F.I.R. was given up as having been won over by the accused. The medical evidence was furnished by Dr. Shamshad Hussain Tirmazi P.W.5 as given in detail above. The recovery of Kapa P.7 was witnessed by Ali Gohar P.W.4. S.I. Riaz Ahmad who had investigated the case was not examined during the trial. He was summoned repeatedly by the trial Court. It was reported by A.S.I. Jan Muhammad that S.I. Riaz Ahmad P.W. was declared absconder in a corruption case against him and was, therefore, not traceable. The learned trial Judge, therefore, closed the prosecution case vide order dated 24‑2‑1985. The evidence of rest of the witnesses was of formal nature.

The accused when examined under section 342, Cr.P.C. denied the charge of murder and made the following statement:‑

"It so happened that at the said time and place I climbed up a Sheesham tree for thining it and observed Latif and Haliman making love with each other while naked. Thereupon I lost self‑control, came down and killed them for the sake of honour Mst. Haliman deceased was my real sister.

I caused the murder of Latif and Haliman for honour having lost self‑control on seeing both the deceased indulging in immorality."

He admitted that he had produced Kapa P.7 before the police at the spot.

The learned trial Judge placed reliance on the motive as stated in the F.I.R. and the statement of the accused recorded under section 342, Cr.P.C. and convicted him as stated above.

5. I have gone through the record of this case and have heard the learned counsel for the appellant at great length.

It is contended on behalf of the appellant that the case against him was a case of no evidence; secondly, the appellant was materially prejudiced in his defence as the Investigating Officer was not examined during the trial; and thirdly "there being no incriminating evidence against the accused, he could not have been asked any question under section 342, Cr.P.C. and if the accused made any admission /confession, then the said statement is inadmissible and should be excluded from consideration against him."

6. I have considered the above contentions on behalf of the appellant. The prosecution examined Ibrahim P.W.3 and Ali Gohar P.W.4 as eye‑witnesses in this case. Ibrahim was father of Latif deceased and Ali Gohar P.W. was a brother of his wife. Ibrahim P.W.3 in the F.I.R. Exh. P.D. had stated that he was returning home with the two eye‑witnesses after offering Jumma prayer and saw the accused murdering Muhammad Latif and Mst. Haleema in the sugar‑cane field of his father. However, during the trial, Ibrahim P.W. disowned his statement made by him in the F.I.R. He stated during the trial that he had seen the accused coming out of the field with a saw in his hand. He, thereafter, went to the Police Station and lodged tile report. He further stated that Mst. Haleema was murdered in his absence. In examination‑in‑chief this witness did not claim to have witnessed the murder of his son Muhammad Latif. In cross‑examination, he stated that "it was Sadiq who informed me of the murder of my son by Abdul Khaliq accused. Sadiq did not tell me that he had himself seen the murder. Sadiq also informed me of the murder of Mst. Haleema. Sadiq warned me against my going to the spot since whole of the brotherhood of Abdul Khalio had collected there." Thus, it would be clear that though this witness claimed to be an eye‑witness while lodging the First Information Report. he during the trial did not state that he had himself seen the occurrence and on the other hand admitted that one Sadiq had informed him o: the present occurrence. Ali Gohar P.W.4 during the trial in his examination‑in‑chief did not at all name Abdul Khaliq accused to be the murderer of Muhammad Latif and Mst. Haleema. In fact he did not at all state about the presence of accused at the spot at the time of occurrence. It was stated by him that he met Ibrahim and Loons a: Gaggo. They boarded a Tonga and got down from the same at a distance of about three squares from Chak No. 377. They proceeded to the Chak on foot. They heard noise from a distance of one Bigha and rushed to the place of occurrence. There they found Latif murdered. He further stated that Ibrahim then proceeded to lodge the report at the Police Station. It was stated by him that on the same day, the accused was arrested who led to the recovery of saw P.7 from his residential room vide memo. Exh. P.C. attested by him. In cross-examination, he stated that the police never recorded his statement; that the accused was arrested by the police from the spot; that the house of accused was about four squares from the spot; and that P.7 was summoned to the spot through the relation of the accused. A perusal of the statement of this witness would show that he also did not himself see the occurrence. Thus, there is no eye‑witness to support the prosecution case.

The recovery of Kapa P.7 is admitted by the accused in hiss statement under section 342, Cr.P.C. but it is of no avail to the prosecution because of the absence of any eye‑witness of the occurrence. The Investigating Officer Riaz Ahmed was required in a corruption case registered against him. He was an absconder in the said case and therefore, did not appear as witness during the trial. No other witness appeared to identify his handwriting or signatures on various documents relied upon by the prosecution. There being no eye‑witness of the occurrence; the F.I.R. having been disowned by the complainant anal the F.I.R. having not been duly proved by examining its scribe during the trial, it cannot be said that any circumstance appeared in evidence against the accused requiring his explanation. Unless a circumstance appears in evidence against an accused, he cannot be questioned about it and if any such question is put to him and in reply he admits the existence of that circumstance, the statement of accused, even if it amounts to a confession, cannot be acted upon at the trial. Only such material can be used against the accused person as has been obtained in accordance with the relevant provisions of law and nothing, that is not obtained, is relevant. Reliance is placed on Ghulam Farid v. Crown P L D 1950 B J 5 and Jahangir v. The State 1984 P Cr. L J 1015. In the instant case, as held above, there was no eye‑witness and as such the accused could not have been asked any question regarding the allegation of murder of Muhammad Latif and Mst. Haleema. If he admitted in his statement under section 342, Cr.P.C. to have killed the two deceased under grave and sudden provocation, the said statement having been made in answer to a question which could not have been asked from him, cannot be taken in consideration to record conviction against him.

7. As a result of above discussion, this appeal is accepted. The conviction and sentence of Abdul Khaliq appellant under section 304(I), P.P.C. on both counts is set aside. He is acquitted. He shall be released from prison forthwith, if not required in any other case.

M. Y. H.

Appeal accepted.

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