MUHAMMAD NAWAZ Versus STATE

ORDER

ASLAM RIAZ HUSSAIN, J.- -Muhammad Nawaz petitioner was tried, convicted and sentenced to death for the murder of Mst.Sughra Bibi. The sentence was confirmed by the High Court. Hence the petition for leave to Appeal.

2. The prosecution story briefly stated is that on the fateful day (i.e. 8-5-1982) Mst.Sughra Bibi (deceased) was murdered when she was alone in her house and her father-in-law, her husband and other members of the family were away. Her father-in-law, who was sitting at the tubewell of one Muhammad Din, was informed that his daughter-in-lark had been murdered in her house. He thereupon rushed to the house and found her dead. But nobody could tell him as to who had killed her. He then went to the police station and lodged the F.I.R. in which he did not name any one as the culprit but only expressed doubt against one Muhammad Asghar who had earlier asked for the hand of the deceased but was refused. Later, on the same day, the police recorded the statements of two persons namely Rehmat Ali (P.W.9) and Muhammad Ramzan (P.W.11) who stated that they had seen the occurrence and had chased the accused; who managed to escape on a bicycle. These two witnesses subsequently appeared at the trial in support of the prosecution version and stated that they had actually seen the murder from the roof of the adjoining house of Muhammad Ramzan. They said that they were sitting in the said house and had rushed on to the roof on hearing the noise. Even in their statements before the police they did not name the accused but only gave a description of the assailant. Later, however, they identified the accused in an identification parade. The prosecution also produced one Fida Hussain who is stated to be a waj-takker witness, who asserted that he had seen the accused running away from the spot. He too, was made to identify the accused at the identification parade. Ten days later, on the 18th of. May 1982, the accused-petitioner is said to have led to the recovery of various incriminating articles namely the blood-stained shalwar (P.5) his bicycle (P.6), his blood-stained shirt (P.7), blood-stained churri (P.8), and the blood-stained parna (p.9).

3. It may be mentioned that the accused is stated to have made an extra-judicial confession. In this connection the trial Court examined one Muhammad Ishaq Chairman of Union Council Dalowali (C.W.1). He stated that Muhammad Nawaz accused-petitioner was produced before the police by one Hameed an uncle (khaloo) of the accused, in his presence, and that the said Hameed had told the thanedar that the accused had confessed his guilt before him (namely Hameed) and had disclosed that he had murdered Mst.Sughra Bibi (the deceased in this case). But the afore-mentioned Hameed was neither produced as P.W. nor examined by the trial Court as a C.W. at the trial.

It may be mentioned that Muhammad Ishaq (C.W.1) has been described by the learned trial Court as a "condemned lier" and was also disbelieved by the High Court, which, after discussing the testimony of C.W.1, has observed that it: "would not like to rely on the evidence of extra-judicial confession."

4. The accused denied his guilt and pleaded that he was innocent and had been framed by the police at the behest of his enemies.

5. The trial Court, however, convicted him mainly on the testimony of the two eye-witnesses whose names had not been mentioned in the F. I. R.; the 'waj-takker' witness; the above mentioned recoveries made from the accused and medical evidence. It sentenced him to death.

He filed an appeal, but the High Court dismissed the appeal; maintained his conviction and confirmed the death sentence.

Feeling aggrieved the petitioner has filed the present petition for leave to appeal.

6. Learned counsel for the petitioner submitted that the prosecution has put forward a wholly false and concocted story; that the murder had taken place inside the house of the deceased, where it could no have been seen by any one and the police did not wish to confess its inefficiency by saying that it could not discover the culprit.

The counsel stressed that two eye-witnesses had not been named by the complainant in the F.I.R. and even when they subsequently appeared before the police they did not name any one as the assailant and merely gave a description of the person who had escaped on a bicycle.

He submitted further that the accused had been shown to the P.Ws before the identification parade was held. He urged that the real question is as to how, and on what basis, did the police locate the accused petitioner and arrest him as the murderer in this case and sent him up for identification, when no one had either seen or named Muhammad Nawaz as the accused and the description of the accused as given in the statements of the eye-witnesses in their statements under section 161, Cr.P.C. is of a very general in nature. According to the learned counsel, to explain this mystry the police had concocted the story of 'extra-judicial confession' and put up Muhammad Ishaq (C.W.1) to say that the accused had confessed his guilt before one Habib but neither Muhammad Ishaq nor Hamid was produced by the prosecution at the trial. But in view of the fact that the trial Court as well as the High Court have rejected this piece of evidence, there is no link left to connect the petitioner with the offence in question, which could form the basis of his arrest for the said murder.

7. The counsel submitted that this was very convenient way of catching hold of any one the police liked and, thereafter, put up a witness to link the accused with the crime and then base the prosecution's case on the testimony of other witnesses who had never mentioned him as an assailant.

He submitted that the fact that the prosecution withheld two crucial witnesses namely Muhammad Ishaq and Hamid, on whose alleged statements the police had roped in the petitioner as the culprit, is an extremely suspicious circumstances casting grave doubt on the veracity of the prosecution case; that even if the eye-witnesses and the waj-takkar witness may not be hostile towards the accused petitioner, they felt no compunction in deposing against him because the police had led them to believe that they had traced the real culprit i.e. Muhammad Nawaz.

8. As for the recoveries the counsel submitted that these were made 10 days after the occurrence and 5 days after the accused petitioner had been arrested and that the said recoveries were maneuvered. He submitted that these were made from an altogether different village and though a number of persons could have been made 'recovery witnesses' from that village, the police chose to bring one of the relatives of the deceased from her own village to become recovery witness. He submitted that such recovery is hit by the provision of section 103, Cr.P.C.

He submitted that grave miscarriage of justice has taken place in this case and an innocent man is likely to be hanged.

9. Considering the contentions raised by the learned counsel we think it a fit case for grant of leave to consider whether the well established principles of appreciation of evidence in criminal case have been followed by the Courts below. Leave is, therefore, granted) for the said purpose.

S.Q./M-297/S Leave granted.