MUMMU ALIAS MUHAMMAD Versus THE STATE

MUHAMMAD MUNIR KHAN, J.‑ ‑This Criminal Appeal No. 115/83 and the connected Murder Reference No. 43/83 arise from the judgment of the learned Addl. Sessions Judge, Faisalabad, whereby he on 15‑2‑1983 while acquitting Bukhsha and 12 other co‑accused, convicted Mummu alias Muhammad appellant under section 302, P.P.C. for the double murder of Mst. Roshnai and Mst. Maqsoodan and under section 201, P.P.C. for causing the evidence of the commission of that offence to disappear with the intention of screening the offenders from legal punishment and sentenced him as under:‑

(i) Under section 302 , P.P.C. to death and a fine of Rs. 5,000 or in default thereof two years' R.I. on two counts; the appellant was also directed to pay Rs.5,000 as compensation to the legal heirs of the deceased or in default thereof six months R.I. on two counts;

(ii) under section 201, P.P.C. five years R.I. and a fine of Rs.2,000 in default thereof six months' R.I.

2. The occurrence took place at 12‑00 midnight between 5/6‑6‑1979 in the courtyard of the house of the deceased situated in Chak No. 610/G.B. at a distance of 11 miles from Police Station, Tandlianwala.

3. F.I.R. Ex.P.C was lodged by Buksha P.W.5 brother of Mst. Roshani and maternal‑uncle of Mst. Maqsoodan deceased on 7‑6‑1979 at 3 p.m. which was recorded by Nawaz Khan Moharrir head‑constable P.W.8.

4. Since the dead bodies of the two deceased could not be recovered, therefore, no post‑mortem was conducted.

5. The background of the murders as stated by the prosecution was that a year before the occurrence Mst. Maqsoodan deceased was engaged with Muhammad Aslam P.W. Mummu appellant who is nephew of the father of Mst. Maqsoodan felt annoyed over this engagement. Furthermore, Mst. Maqsoodan being the only daughter of Mughlan who was owner of one square of land, the appellant wanted Mst. Mughlan to marry with some of his relation but Mst. Roshnai was not agreeable to that proposal, hence this occurrence.

6. The prosecution case is that on the fateful day, Bukhsha complainant P.W.5 alongwith Mummu son of Hassu, Nijabat son of Muhammad and Akbar son of Nijabat went to the house of his sister Mst. Roshnai for setting about the marriage of Mst. Maqsoodan. They stayed there for the night. They were sleeping in the courtyard alongwith Mst. Roshnai and Maqsoodan. It was at about midnight that Mst. Roshnai and Mst. Maqsoodan raised alarm whereupon they got up and saw in the moon‑light that Bukhsha s/o Hasso, Noor Muhammad s/o Hassoo, Mumma alias Noor Muhammad, the three co‑accused and Mummu alias Muhammad, the appellant duly armed with dangs were dragging the two deceased. The complainant and others tried to save the two ladies but were threatened with dire consequences. The appellant and his three companions forcibly took away the two ladies with intention to murder them. Thereafter, the two ladies were actually done to death. The dead bodies were cut into pieces, taken towards Ravi and thrown in it.

7. Mummu appellant was arrested on 10‑6‑1979 by Muhammad Afzal ASI P.W.

20. On 16‑6‑1979, he got recovered a human arm from River Ravi which was taken into possession vide memo PX. On the same day, he got recovered a piece of skin of foot and a human bone from River Ravi which were taken into possession vide Memo. PY. Muhammad Afzal Khan A.S.I. forwarded the human arm, skin of foot and pieces of bone to the Medical Officer, D . H . Q. Hospital, Faisalabad for examination.

On 24‑8‑1979 Mummu appellant got recovered dang P.1 (not blood‑stained), a plastic case Ex. P.2 and ornaments P.3 to P.7 of the deceased which were taken into possession vide Memo PH.

8. On 17‑6‑1979 Dr. Imtiaz Ahmad Gill P.W.2 examined the bones and skin of the foot and forwarded them to Professor of Anatomy, King Edward Medical College, Lahore, for seeking expert opinion with regard to the sex, and the duration between death and the examination.

On 20‑6‑1979 Dr. Capt. Abdul Hameed Sabir P.W.1 X‑rayed the bones. On X‑ray examination he was of the opinion that the arm was of a female aged 18 to 19 years. Dr. Ghulam Nabi Bajwa P.W. 6 was asked to give opinion on various questions. He replied that the bones were of human female of about 18/19 years in age and that there was a cut with a sharp weapon on the head of humerus. The doctor stated that no definite opinion could be given as to whether the cut was 4nte‑mortem or post‑mortem in nature.

9. To prove its case, the prosecution examined 22 witnesses. Bukhsha P.W.5, is the brother of Mst. Roshnai deceased whereas Mughla P.W.18 in the husband of Mst. Roshnai and father of Mst. Maqsoodan deceased.' Both the witnesses have not supported the prosecution case. They stated that they had not seen the appellants and others dragging or taking away the two deceased from their house. According to them, when they got up in the morning, they found the two deceased missing from the house. They were declared hostile and cross‑examined by the prosecutor. Najabat P.W. 16, however, stated that he had seen Mummu appellant and six others forcibly taking away the two deceased from the house. It may be noted here that no charge under section 364, P.P.C. was framed against the appellant and his co‑accused. Ahmad PW.9 stated that Mummu appellant had pointed out the places where the dead bodies were first buried and subsequently, thrown in River Ravi. Manak PW.10 attested recovery. Memo. Ex. PH of dang P.1, Rusi P.2 and ornaments P.3 to P.7. Alam PW.11 stated that ornaments P.3 to P.7 were of the deceased. In cross‑examination, he stated that the ornaments were of common pattern and that he was neither related to the two deceased nor was on visiting terms with them. Najabat PW.12 stated that the co‑accused Pir Ali, Akbar, Anwar, Nausher, Ghulam and Noor Samand had pointed out the places where the bodies of the two deceased were buried. He further stated that the police had taken into possession some hair from the wall of the Kotha of the deceased vide Memo. PU. The witness further stated that the aforesaid accused had also pointed out a place at the bank of River Ravi wherefrom hair, tale, shirt and Khase were recovered by Nawaz and Noora P.Ws. Ahmad Yar PW. 13 stated that three years before the occurrence, he had seen 8/10 persons including Pir Ali, Nausher, Anwar, Akbar, Madad and Mummu appellant riding on the mares and going towards River Ravi. They also saw bundles loaded on the mares. Noor PW.17 stated that Mummu appellant, Bukhsha, Noor Ahmad and Mumma co‑accused pointed out the places to the police where bodies of the two deceased were first buried. It may be noted that nothing was recovered from there. Muhammad Aslam PW.19 stated that Nikah of Maqsoodan was performed with him 1? years before the occurrence and that Mummu appellant, Bukhsha and Noor Ahmad co‑accused pointed out the place where he threw the dead bodies wherefrom one arm of human body, upper half of which was having no skin, one piece of human bone and piece of skin of foot were recovered. Bashir Ahmad Farooqi Magistrate PW.1 had supervised the parade for the identification of Bakhtawar, Saifal and Nausher acquitted accused by Mumma, Najabat and Bukhsha PWs. The rest of the evidence is of formal nature.

10. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. He raised plea of false implication due to enmity. In defence no witness was produced.

11. The learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt in that there is no direct evidence of the murder to the deceased and the circumstantial evidence brought on record does not exclude the hypothesis of his innocence. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

12. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements of the appellants and co‑accused recorded under section 342, Cr.P.C. and the circumstances appearing in the case, carefully. We find that there is inordinate delay in lodging the F.I.R. The occurrence took place at midnight between 5/6‑6‑1979 but the report was lodged at 3 p.m. on 7‑6‑1979 although the Police Station was at the distance of 11 miles from the place of occurrence. No reasonable explanation for this delay has been given by the complainant. There is no eye‑witnesses of the murder of the deceased. There is no evidence of extra‑judicial confession against the appellant. No incriminating recovery had been effected from him. There is no judicial certainty that the human arm, skin of foot and the piece of bone allegedly recovered at the pointation of the appellant from River Ravi, were of the deceased and none else. No doubt, Ahmad Yar P.W.13 has stated that he had seen the appellant and his co‑accused going towards River Ravi with bundles. loaded on mares but what the bundles contained is not known, so it would be too much for us to presume that the bundles contained the dead bodies of the deceased. The prosecution produced Bukhsha P.W.5, Najabat PW. 16 and Mughla PW.18 as eye‑witnesses of the abduction of the two deceased by the appellant and his companions. Bukhsha and Mughla P.Ws. who are brother and husband respectively of Mst: Roshnai deceased have not supported the prosecution case. They stated that they found in the morning the two ladies missing from the house. No doubt Najabat P.W.16 stated that the appellant and 5 others co‑accused had forcibly taken away the two ladies from their house but unfortunately no charge under section 364, P.P.C. was framed against the appellant and his co‑accused. The dead bodies of Mst. Roshnai and Mst. Maqsoodan have not been recovered. The mere pointation of the places where the two dead bodies were first buried and were subsequently thrown in the river is useless because in consequence of the pointing at by the appellant, no dead body was recovered from those places. The evidence of the recovery of the ornaments of the deceased from the appellant is not helpful to the prosecution because the ornaments are of common pattern. It has not been stated in the F.I.R. that the two ladies at the time of their abduction were wearing any ornament and that Muhammad Alam, the witness of the identification of the ornaments has clearly stated that he was not even on visiting terms with the two ladies. No relation of the two deceased were produced to identify the ornaments. It is well‑settled that the circumstantial evidence cannot form the basis of conviction unless it is incompatible with other reasonable hypothesis than the guilt of the accused and leads inevitably to conclusion that the accused and accused only was perpetrator of the offence. After having appreciated the evidence in accordance with known principles of appreciating circumstantial evidence, we have come to the conclusion, that the circumstances relied on by the prosecution and acted upon by the trial Court can be reconciled with reasonable hypothesis compatible with the innocence of the appellant. For all these reasons, we are of the view that the prosecution has not been able to proves its case beyond reasonable doubt.

The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellant, he is given benefit of doubt and acquitted of the charges. He shall be released forthwith, if not required to be detained in any other case.

H.B.T./M‑564/L ????????????????????????????????????????????????????????????????????????????????? Appeal accepted.