MUHAMMAD ARIF Versus THE STATE

MIR HAZAR KHAN KHOSO, C.J. --- This appeal is directed against the judgment, dated 7-2-1993 passed by the learned Sessions Judge, Layyah, whereby the appellant was convicted for the offence under section 302, P.P.C. and sentenced to suffer imprisonment for life, fine of Rs.10,000, in default whereof to suffer R.I. for two years more and to pay compensation of Rs.5,000, in default to suffer R.I. for six months more.

2. It is case of the prosecution that at the late hours of night preceding 18-2-1991 Mst. Saira Bibi aged about 15/16 years while returning to her house disappeared. F.I.R, in this respect of the same was registered by her father Ghulam Qadir at Police Station Fatehpur on 18-2-1991 in the words as under:--

However, after registration of the case the appellant was challaned before the Court to face trial for offence under section 302, P.P.C. and section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). He did not plead guilty to the charge levelled against him for the offence and claimed trial. The prosecution, therefore, examined P.W.1 Ghulam Hussain, A.S.-I., formal witness, P.W.2 Muhammad Bashir, Constable, formal witness, P.W.3 Muhammad Aslam, identified the dead body, P.W.4 Khaliq Dad, Patwari, prepared sketch of the Wardat, P.W.5 Paritam Masih, he saw the dead body of Mst. Saira in watercourse and informed the complainant, P.W.6 Bashir Ahmad, he saw the appellant near the watercourse, P.W.7 Mushtaq Ahmad, he served tea to the appellant and accompanied the complainant to police station, P.W.8 Muhammad Siddique he saw the appellant near the watercourse, P.W.9 Dr. Qazi Muhammad Munir Shahid, he conducted autopsy on the dead body, P.W.10 Hassan Din, he saw the appellant near the watercourse, P.W.11 Muhammad Aslam, brother of the deceased Mst. Saira Bibi at the relevant time he left the deceased near road for going home, P.W.12 Ghulam Qadir, father of the deceased, P.W.13 Muhammad Habib, he identified the locket of the deceased P.W.14 Dost Muhammad, S.-I./Investigating Officer, P.W.15 Mukhtar Hussain, Constable, formal witness, P.W.16 Mst. Hanifan, mother of the deceased and P.W.17 Hashmat Ali, formal witness.

3. In his statement the appellant denied the allegation and canvassed innocence. However, examined Haji Rajab Ali in defence, the learned Sessions Judge, found him guilty for the offence under section 302, P.P.C. and convicted him for the same but acquitted him of the charge under section 10(3) of the Ordinance. The appellant has challenged his conviction and sentence by this appeal before this Court.

4. Mr. Zahid Hussain Khan, Advocate, appeared for the appellant and Mian Abdul Qayyum Anjum, Advocate, appeared for the State.

5. The only evidence that was found sufficient to prove the charge under section 302, P.P.C, was that of P.W.12 Ghulam Qadir, P.W.11, Muhammad Aslam, P.W.16 Mst. Hanifan, P.W.10 Hassan Din, P.W.8 Muhammad Siddique, P.W.7 Mushtaq Ahmad and P.W.6 Bashir Ahmad. It would be indeed beneficial to reproduce the observation of the learned Sessions Judge in that respect. It reads as under:--

"The case of the prosecution is that on 17-2-1991 at about 7-30 p.m. when Mst. Saira Bibi had gone to milk the buffalo and while going back to her house was subjected to rape and then was murdered by way of strangulation and during the course of investigation Arif accused was held to be involved in the commission of offence and the prosecution in order to prove its case has mainly relied upon the statement of Ghulam Qadir the complainant of this case who had appeared as P.W.12 and has got corroborated his statement by the statement of P.W.11 Muhammad Aslam his real son (brother of the deceased), Mst. Hanifan Bibi, who appeared as P.W.16 (the real mother of the deceased) and that of the statements of Hassan Din P.W.10 and that of Muhammad Siddiq P. W.8 who had last seen Arif accused coming from the side of the watercourse where Saira Bibi allegedly had been raped and murdered. The prosecution has also relied upon the statement of P.W.7 Mushtaq Ahmad who had served Arif accused with a cup of tea on the same evening at his house. The statement of Muhammad Siddiq and that of Hassan Din finds further corroboration from the statement of Bashir Ahmad. Rest of the evidence except that of doctor and of the Investigating Officer is formal in nature. When we are analysing the evidence of the prosecution keeping in view the trend of cross examination by the learned counsel for the defence and the plea of the accused that he has been involved falsely as there was a dispute over a common wall in-between his parents and that of the parents of Saira Bibi we come to the conclusion that had the prosecution any ill motive for Arif accused he would have been named him specifically in the F.I.R. Though the prosecution tried to make improve merits in its case by asserting motive during the course of recording of evidence before this Court for the first time even then, I am of the convinced view that had the prosecution ordinarily any enmity, any false motive to implicate Arif accused, any motive to substitute Arif in place of real culprit he would have named in the F.I.R. There was no logic, no reason, no hindrance with the prosecution not to name him as an accused. There is no motive for the complainant and the P.Ws. to involve Arif accused on account of any enmity. There is no motive with Bashir Ahmad, Muhammad Siddiq and Hassan Din to involve the accused falsely in this case. As such I am of the convinced view that the prosecution has fully proved the case of murder of Saira Bibi coupled with the evidence of recovery and that of evidence of Investigating Officer and that of Medical Officer. As no direct evidence of rape is available, as no evidence whether the accused was competent to perform sexual intercourse is available, the prosecution has failed to prove the charge under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and the accused under this charge stands acquitted. Iii view of the above the accused is convicted under section 302, P.P.C. but as the prosecution case entirely hinges on circumstantial evidence and as such a lenient view is taken and the accused is sentenced to life imprisonment and fine of Rs.10,000 and in default of payment of fine he shall suffer R.I.- for two years. He is also directed to pay compensation under section 544-A, Cr.P.C. to the legal heirs of Saira Bibi amounting to Rs.5,000 and in default of payment of compensation he shall suffer R.I. for six months. He is also entitled to the benefit of section 382-B, Cr.P.C. The case property be given to the legal heirs of Saira Bibi."

6. To appreciate the observations of the learned Sessions Judge it would be useful to reproduce the examination-in-chief of the abovesaid witnesses:--

P.W.6 Bashir Ahmad:

"I know the accused who is from my Chak. About one year and three months ago it was about 7-00 or 7-45 p.m. when myself and Muhammad Siddiq P.W. were present at the Pulli of the watercourse near soling road. We saw that from western side the accused present in Court was coming running in the watercourse and near the Pulli he came out of the watercourse. He fell down and we inquired as to who he was on which he ran away. We also inquired as to why the accused was running but he gave no answer. He fled away towards east. There was a little water about 2 to 4 inches deep in the Khala. I knew the accused since before that day. In the next morning it was revealed that daughter of Ghulam Qadir who was missing from sometime was found in the watercourse dead, at a distance of 35/40 Karams from the place where we had come across the accused. The watercourse was 6 to 7 feet in depth."

P.W.7 Mushtaq Ahmad:

"I am Councillor of my area. About one year and three months ago, some Pir of Ghulam Rasool father of the accused had come to him. We were invited there. We went to him after Maghrab Prayer. We remained there till 8-00 p.m. and had our meals. Thereafter, when we were about to come, Arif accused came from outside and served us with a cup of tea. I do not know from where the accused had come. On the next -day we came to know that a dead body was found in the watercourse. Myself and Ghulam Qadir complainant went there. The dead body was lying upside down. We laid him straight and saw that it was the dead body of a daughter of Ghulam Qadir complainant. I went to the Police Station with Ghulam Qadir to lodge the report. I do not know anything about asking the hand of the deceased by anybody."

P.W.8 Muhammad Siddiq:

"Arif accused lives in our Chak and I know him since long. About one year and three months ago, it was about 7-30 p.m. when myself and Muhammad Bashir P. W. were present at the Pulli of Khala near the soling of the road. We saw that the accused came running in the watercourse from the western side and at some distance from us came out of the watercourse and ran away towards east. We called him but he did not reply and went away. On the next day we came to know that the dead body of the complainant's daughter was found in the watercourse.

P.W.10 Hassan Din.

"About 1-1/2 years back I was going to my house from my land after Maghrab Prayer while taking grass. I had seen Muhammad Arif accused present in Court while roaming near the Nakka of watercourse. On the following day I came to know that a dead body of girl was lying in the watercourse near the place where I had seen the accused present in Court was roaming last night."

P.W.11 Muhammad Aslam:

"Mst. Saira Bibi deceased was my sister. About 1-1/2 years ago she came from the house to the land where we had kept our cattle for milking the buffalo in the evening. The buffalo did not give the milk. After Maghrab Prayer I accompanied my deceased sister to the brick road. She also took the parts of meal. On that night my father came and told me that Mst. Saira did not reach the house so we searched her but in vain. In the morning she was found dead lying in the watercourse. My father went to police station and I kept guard on the dead body. "

P.W.12 Ghulam Qadir:

"Mst. Saira Bibi deceased, aged about 15/16 years was my daughter and she was still unmarried. I had my residence in the Abadi of Chak while my cattles were teathered in my land, which is at a distance of 8/9 acres from my house. About 1-1/2 years ago, Mst. Saira Bibi deceased went to my land for fetching the milk in the evening. My son Muhammad Aslam was present in the land. As she did not return for a considerable time I went to my land to inquire about her, where Muhammad Aslam my son told me that the buffalo did not give milk and after Maghrab Prayer he had accompanied his sister to the brick road from where he had come back to the land. In the 'night I and my son made search but did not found any clue. In the morning Preetam Masih P.W. told me that a dead body of a woman was lying in the watercourse."

P.W.16 Mst. Hanifan:

"Mst. Saira Bibi deceased was my daughter. About 1-1/2 years ago she went to our fields to fetch milk of buffalo. Till Ishawela she had not returned. Then my husband Ghulam Qadir went out for her search. My son Muhammad Aslam told him that Mst. Saira had returned to the house because buffalo did not give milk. Then my husband and other children searched her for the night but in vain. On the following morning Paritem Masih P.W. told us that he had seen a dead body of a girl in the watercourse. On that information we rushed to the spot where we identified the dead body of Mst. Saira. My husband Ghulam Qadir visited the police station for lodging report.

Muhammad Arif accused present in Court had murdered my daughter Mst. Saira because he was willing to marry with her and her parents had demanded her hand for Arif but we had refused to do so. The accused present in Court having grudge had committed the murder of Mst. Saira.

When my daughter Mst. Saira went to fetch milk, she was wearing silver locket P.1 in her neck and when we identified the dead body locket P.1 was not available in her neck. The said locket was got prepared from Habib P.W. After the death of Mst. Saira police had recovered locket P.1 which I identified before the police."

7. We took the learned counsel for the State through the above evidence which was found sufficient to prove the charge against the appellant and asked him whether it was so'? He candidly conceded that on such evidence charge under section 302, P.P.C. could not be proved. In the circumstances discussed hereinabove we are, indeed, inclined to observe that the conviction and sentences of the appellant cannot be maintained. Resultantly the appeal is accepted. The conviction and sentence of appellant Muhammad Arif recorded on 7-2-1993 by the learned Sessions Judge, Layyah, are set aside. He stands acquitted of the charge. He be set at liberty forthwith if not required in any other case. As the appeal has been accepted the suo motu notice has become, infructuous which is withdrawn accordingly.

N.H.Q./1014/FSC Appeal accepted.