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Criminal Appeal No.415 and Murder Reference No.113 of 1984, decided on 26th May, 1987.

---S.302--Recovery of weapon of offence--Chhuri taken into possession from place of occurrence--No evidence to show Chhuri as belonging to accused or offence committed with that Chhuri--Recovery of Chhuri would be of no use to prosecution in circumstances.

---S.302--Ocular testimony, appreciation of--Occurrence admittedly in house of witness on a bed--Deceased not living in that house--Deceased turning down alleged proposal of accused for marriage and exchanging abuses--Deceased already married to someone and accused knew the fact--Accused not related to complainant (mother) yet she and uncle of deceased allowing her to go alone to meet accused in separate room--Third witness having no business in house at that time and reason given by such witness for entering house, not convincing- Statement of said witness as to place of exchanging abuses, contradicted by other witnesses--Accused allegedly throwing Chhuri at spot after causing injury to deceased and passing by witnesses empty-handed- Witnesses standing in door, yet accused not apprehended by them--No urgency for complainant and deceased to go so early for inquiring health of her brother, sick for last one year--No occasion to stay in house of occurrence at that time for gossip or meeting accused- Prosecution not explaining presence of semen on swabs taken from vagina of deceased--Statements of witnesses full of improbabilities and contradictions and not inspiring confidence--Prosecution, held, had failed to prove its case beyond doubt--Accused acquitted n circumstances.

Talib Hussain Rizvi for Appellant.

Ch. Ijaz Ahmad for A.-G. for the State.

Date of hearing: 26th May, 1987.

.--Khizar son of Muhammad Yar, aged 33 years, was tried by Additional Sessions Judge, Jhang, for having murdered Mst. Sajida Karim, at 6-30 a. m. on 13-2-1983, in the house of Muhammad Ramzan (PW.8), in village Lalian, district Jhang, at a distance of four furlongs from Police Station Lalian.

The learned trial Judge held him guilty, convicted him under section 302, PPC and sentenced him to death, plus to pay a fine of Rs.10,000/-, in default whereof to undergo R.I. for four years, vide judgment dated 16-6-1984. He has also been directed to pay Rs.5,000/ as compensation to the heirs of the deceased, in default whereof to suffer R.I. for three years.

2. The convict has filed appeal. Reference made by the trial Judge for confirmation of death sentence is also before us. Both the matters are being disposed of by one judgment.

3. FIR (Ex.PG) was recorded at the police station on the same day at 7-15 a.m. by Abdur Rashid, SI/SHO (PW.10), on the statement of Mst. Bakhi (PW.7), mother of the deceased.

According to the FIR, Mst. Bakhi, after divorce by her husband, took up residence with her parents in Lalian. The deceased, who was married 7/8 years prior to the occurrence to Mushtaq Hussain, was divorced by him in August, 1982. She also returned to her mother in Lalian. During the days of occurrence, the complainant and the deceased were residing in the house of Massoo, cousin (Khalazad) of the complainant. Khizar appellant, who used to visit Ramzan PW, another cousin of the complainant, since 3/4 months before the occurrence, developed acquaintance with the complainant also. A month before the occurrence, Khizar asked for the hand of Mst. Sajida Karim. The complainant told him that she will think about the matter.

On the day of occurrence, the complainant and the deceased started from their house at about 6-30 a.m. for inquiring about the health of Hamid, a brother of the complainant, who was living in the same village in a different house. When they were passing from, in front of the house of Ramzan PW, he called them to meet Khizar, who was sitting in a room of his house. The complainant and the deceased entered the house and went to the kitchen, where Ramzan had lit fire. The deceased after getting permission from her mother, went to the other room, where Khizar was sitting. In the meantime, Sher Muhammad PW also came to the house of Ramzan, on seeing the complainant. Khizar asked the deceased about the proposal of his marriage. On refusal by the deceased, appellant abused her. The deceased returned the abuse. Thereafter, on hearing shrieks the complainant, Ramzan and Shera PWs entered the room and saw the appellant cutting the throat of the deceased with Chhuri, by holding her head and placing knee on her abdomen. Khizar raised a Lalkara that if anybody raised a noise or dared to intervene, he may also be murdered. Thereafter, throwing the Chhuri at the spot, he ran away passing, beside the witnesses. The deceased died on the spot.

4. Abdur Rashid, SI, on reaching the spot, after recording the statement of the complainant, prepared inquest report (Ex.PH) and injury statement (Ex. PJ) and despatched the dead body for post-mortem examination. He also collected blood-stained earth from the place of occurrence, vide memo. Ex.PD. He picked up the blood-stained Chhuri from the spot and took the same into possession vide memo. Ex.PE. The cot and blood-stained bedding on the cot were also taken into possession by the SI, vide memo. Ex.PF.

The appellant was arrested on 25-2-1983.

5.Ten witnesses were examined by the prosecution at the trial. Positive reports about stains of human blood on the Chhuri and earth, from the offices of the Chemical Examiner and the Serologist were tendered in evidence. Positive report (Ex.PL) about the vaginal swabs having been found stained with semen, by the Chemical Examiner, was also tendered in evidence.

6. The ocular account was furnished by Mst. Bakhi (PW.7), Muhammad Ramzan (PW.8) and Sher Muhammad (PW.9).

Mst. Bakhi renarrated the facts given by her in the FIR. In cross-examination, she stated that her brother Hamid was ill since a year before the occurrence and she usually visited him. In answer to another question, she stated that her daughter was a pious lady. She also stated that Nikah of the deceased had been performed with Umar son of Massoo before the occurrence and he used to visit them in their house.

Muhammad Ramzan (PW.8) corroborated the testimony of PW-7. In cross-examination, he explained that oral Nikah of the deceased was performed with Umar 15/16 days before the occurrence, but Rukhsati had not taken place. He also stated that the Nikah had not been registered. In answer to another question, he stated that Khizar appellant used to visit him and that when Khizar had asked him to arrange his marriage with the deceased, he had told him that her Nikah had already been performed with Umar. He denied the suggestion that his relations with his wife were strained and that she was not living with him. He asserted that his wife and children were present in the house at the time of occurrence. In answer to another question, he stated that they had not chased the accused, but many residents of the Mohallah had chased him.

Sher Muhammad (PW.9) while corroborating the statements made by the two witnesses, explained that he had heard Mst. Sajida Karim deceased and Khizar appellant talking about Nikah, standing in the veranda and had heard them exchanging abuses. He stated that he had come to the house of Ramzan when he was going out for easing himself.

All the three witnesses denied that the deceased was a girl of bad character and had illicit relations with many persons. PWs.7 and 8 denied the suggestion pertinently put to them that some one of the paramours of the deceased had murdered her.

7. Amir (PW.6) stated about Chhuri having been taken into possession from the spot. Abdur Rashid, S1 gave the account of the investigation and also deposed about having taken into possession Chhuri from the spot.

Answering a question during cross-examination, he stated that he had not investigated the case on the point of swabs.

8. Dr. Muhammad Abdullah Shah, who had performed autopsy on the body of the deceased appeared as PW-1. He noted the following injury on the body of Sajida Karim deceased: -

An incised wound 3 " x 1/8" x cutting the hyoid bone and carotid --arteries on both sides of the neck. Bleeding from the nose and wound.

According to his opinion, the deceased had died due to shock and haemorrhage, resulting from the injury. He also deposed about having sent vaginal swabs for chemical examination. Although he did not clearly stated at the trial, but he had made a note in the post-mortem report that vaginal swabs were taken from the vagina.

9. The appellant during his statement under section 342, Cr.P.C denied the prosecution case as a whole. In answer to the question, why this case against you", he stated as follows: -

Mst. Bakhi was married to Muhammad Fazal Karim my relative who later on divorced her because of her immorality. A long chain of litigation started between them and I being the relative of Muhammad Fazal Karim conducted the Pervi of those cases. Mst. Bakhi was thus annoyed by me. Ramzan PW was also on inimical terms with me because of a dispute over some gold. Mst. Sajida Karim was a woman of immoral character. She was having illicit intimacy with so many persons of the locality and she used to meet her paramours in the house of Ramzan PW. Somebody murdered her because of rivalry and Mst.Bakhi and Ramzan P.Ws. got me involved in this case falsely because of their enmity."

10. We have considered the contentions raised by the learned counsel for the parties, after having gone through the evidence with the assistance of the learned counsel for the appellant.

11. The recovery of weapon of offence in this case is of no use, as the Chhuri said to have been used for commission of offence was taken into possession from the place of occurrence and none of the witnesses stated at the trial that the Chhuri belonged to the appellant or that he had murdered the deceased with that Chhuri. The case, therefore, mainly rests on the ocular account given by P.Ws.7, 8 and 9. These medical evidence, of course, is also there.

12. The deceased admittedly was found murdered in a room of the house of Ramzan (PW.8). on a bed. She was not residing in than house. It will, therefore, have to be seen, whether the statement made by Mst. Bakhi that she had entered the house alongwith the deceased on being asked by Ramzan PW to meet Khizar appellant was correct and whether the statement made by Sher Muhammad PW that he had entered the house of Ramzan PW on having seen Mst. Bakhi there, was worth reliance. Learned counsel for the appellant candidly argued that the statements made by these witnesses were unbelievable and highly improbable.

13. According to three PWs, the deceased and the appellant had exchanged abuses on the former having turned down the proposal of the latter for marriage. This by itself is incongruous with the statements of P.Ws.7 and 8, according, to whom the Nikah of the deceased had already been performed with Umar. If the Nikah of thel deceased had already been performed with Umar and Khizar had been told this fact by Ramzan PW 8, as he stated during cross-examination, there could have been no occasion for him to have proposed the deceased for marriage.

Yet the other aspect is, as to why the complainant and Ramzan, who is a cousin of the complainant and uncle of the deceased, had allowed the deceased to go alone to meet Khizar in a separate room when he was not related to them in any manner. In fact, he belonged to a different caste. In the normal course, the very idea of happening of such a thing cannot be believed, particularly so, when the girl already stood married.

The presence of Sher Muhammad PW 9 at the spot is also improbable. He was going out to the fields for easing himself. He had no business in the house of Ramzan PW. The reason given by him for entering the house of Ramzan PW, does not inspire confidence. The statement made by him that he had heard the deceased and the appellant talking about the marriage and exchange of abuses in the verandah, is contradictory to the statement made by PWs.7 and 8, who stated that the deceased had met the appellant in the room an exchanged abuses there.

The presence of these witness at the spot looks improbable from another angle also. It is the case of the prosecution that the appellant after having caused the injury to the deceased had throw the Chhuri there and ran away passing beside the witnesses empty handed. If the witneses were there, they could have easily caught him because they were standing in the door and the appellant was empty-handed when he had passed by them. Being unarmed, he could not have done any harm to them.

Although presence of Ramzan PW in his house would be natural, but improbabilities occurring in his statement and the display of conduct by him, do not leave any iota of reliability in him.

14. The contention of the learned counsel for the appellant the there was no urgency for the complainant and the deceased to hav started so early in the morning for inquiring about the health o Hamid, a brother of the complainant, also possesses weight. Hamic was ailing since a year before the occurrence. It is not the case Rio the complainant that his condition had deteriorated particularly on the day of occurrence and if that was so then there was no occasion for the complainant and the deceased to have stayed on way in th house of Ramzan, just for gossips or to meet Khizar with whom they had no relationship or connections. In this regard, reference can b made to the statement of the complainant in cross-examination, where she stated that Khizar although had met her, but was not on visiting terms with them.

Last, but not the least, the prosecution has not come up with any explanation about the swabs taken from the vagina of the deceased and found stained with semen and that too when she was found murdered in the house, where she was not residing.

The statements of all the three eye-witnesses, which are full of improbabilities and contradictions, do not inspire confidence. In our view, the prosecution has not been able to prove the case against the appellant beyond reasonable shadows of doubt. This appeal is, therefore, accepted and the appellant is acquitted by way of grant of benefit of doubt.

S.A./K-21/L Appeal accepted.

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