AKBARI BEGUM Versus STATE
1. This appeal is directed against the judgment dated 2s-9-1986 of the Additional Sessions Judge, Kasur whereby he convicted the appellants under section 302/34, P.P.C. sentencing them to life imprisonment with a fine of Rs.5,000 each. In default of payment of fine they were ordered undergo further two years' R.I. Fine in case of its realisation, was ordered to paid to the legal heirs of the deceased Jumma Khan under section 544-A, Cr.P.C. The appellants were also given the benefit of section 382-B, Cr.P.C.
2. 2.Facts briefly are that a report Exh.P.F. was got recorded on 3-7-1984 at 2-30 P.M. at Police Station Mustafabzd by Mst. Akbari appellant wherein she had stated that she found her husband Jumma Khan dead on his Charpai. in mysterious circumstances in the early hours of the morning. On the receipt of the report Muhammad Aslam P.W.12 S.I. embarked upon the proceedings under section 174, Cr.P.C. He prepared the injury statement of the deceased Exh.P.G. and the inquest report Exh.P.H. The dead a body of the deceased Jumma Khan was sent for post-mortem examination through Muhammad Akhtar P.W.10 Constable to the Civil Hospital, Kasur. Dr. Saeed Ahmad P.W.11 Medical Officer, D.H.Q. Hospital, Kasur performed the post-mortem on 4-7-1984 at 12-00 noon. The deceased had the following injuries:--
(1) Contusion left side neck 6 in number in the area 12 x 8 c.m. the size of the contusions were 2 x 1, 2-1/2 x 1-1/2, 2 x 1, 1 x 1, 1-1/2 x 1/2 and -1-1/2 x 3/4 respectively.
(2) Contusion front of neck near the medial and of right clavicle size 2 x 2 c.m.
(3) Contusion right side of neck size 3-1/2 c.m. x 2 c.m.
(4) Contusion left angle of jaw size 3 x 1-1/2 c.m.
(5) Contusion back of neck size 3 x 1 c.m.
3. Notice: On dissection of the neck, there were some extravasation of blood in the underlying soft tissues. Left cornu of the hyoid bone was fractured.
(6) Abrasion forehead centre size 3 x 2 c.m.
(7) Abrasion left side forehead size 1-1/2 x 1 c.m.
(8) Contusion front of left ear size 4 x 5 c.m.
(9) Contusion right shoulder top 7 x 4 c.m.
(10) Contusion left arm outer side size 4 x 1-1/2 c.m
4. On dissecting the body.
5. In the opinion of the doctor the cause of death was asphyxia due to strangulation. The viscera were also sent to the chemical examiner who ruled out the role of poison in the cause of death.
6. While the proceedings under section 174, Cr.P.C. were afoot, F.I.R. NoJ40 was registered on 5-7-1984 at 8-30 a.m. at the instance of Noor Muhammad P.W. It was the case of the complainant that at 7 in the morning of 5-7-1984 while he was present alongwith Din Muhammad and Anwar P.Ws. at his house, appellants Ramzan and Hanif appeared before them one after the other and admitted the commission of murder of Jumma Khan with the help of his wife Mst. Akbari appellant. First Ramzan appellant stated before them that he had illicit liaison with Mst. Akbari appellant and committed the murder with her help so as to contract marriage with her. He further stated that he pressed the throat of the deceased by his hands and also wrapped his neck by his Safa while Mst. Akbari appellant caught hold of the legs of the deceased and Hanif appellant caught him by his arms. Thereafter, Muhammad Hanif appellant made his statement in similar terms towing the line, earlier taken by Ranizan appellant, leading to the commission of this offence. He further stated that they had gone to the house of the deceased Jumma Khan where Mst. Akbari appellant was waiting for them. It is further mentioned in the F.I.R. by the complainant that after a while Mst. Akbari appellant also reached his house and admitted her illicit relations with Ranizan appellant and the manner in which the deceased was done to death, following the line taken by .the two appellants namely, Ramzan and Hanif prior to her appearance. She also admitted that she had falsely reported to the police earlier. They all pleaded for forgiveness whereupon the complainant alongwith Muhammad Anwar and Din Muhammad P.Ws. decided to take them to the police station. When they reached near the bus stand of Mustafabad, Muhammad Hanif appellant, according to the complainant, slipped away on the pretext of urinating while Ramzan and Mst. Akbari appellants were produced before the police and the F.I.R. Exh.P.C. was recorded. Muhammad Ranizan and Mst. Akbari appellants were accordingly arrested on the same day while Muhammad Hanif was arrested on 14-7-1984. Muhammad Ranizan while in custody took off his Safa P.1 which was taken into possession through memo. Exh.P.B. Arif Ali Revenue Patwari P.W., on the pointation of the investigation officer, prepared the site plan Exh.P.A. and PA./1 on 23-7-1984. After usual. investigation the challan was submitted against all the three appellants.
7. The prosecution examined 12 witnesses to establish its case. The extra-judicial confession of the appellants was put forward by Din Muhammad P.W.7 and Noor Muhammad P.W.8. Both of them stated that the appellants on the morning hours of 5-7-1984 came to them in the house of the latter and admitted their guilt, turn by turn. They requested them for help so as to be forgiven. The motive of this case was stated by Jan Muhammad P.W.4 who had stated that 8/9 days prior to the occurrence he saw Muhammad Ramzan appellant committing Zina in Charri field with Mst. Akbari appellant. He narrated this incident to Jumma Khan deceased whereupon the latter (deceased) reprimanded Mst. Akbari. Hasan Khan P.W.9 had appeared and stated that on the day of occurrence at 4 in the morning while he was out for easing himself, he saw Ranizan and Muhammad Hanif appellants coming out of the house of Jumma Khan deceased in a hurried manner. They went towards the passage leading to village Katluee. Moj Khan P.W.5 and Jaber Khan P.W.6 both had supported the recovery of Safa P.1 from Ranizan appellant which was taken into possession through recovery memo. Exh.P.B.
8. When the appellants were examined under section.342, Cr.P.C. Muhammad Hanif and Mst. Akbari totally denied their implication. They also produced four witnesses in defence to establish the fact that Noor Muhammad complainant through his affidavit Exh.D.C. exonerated Mst. Akbari in the commission of this offence. Muf ammad Ranizan when examined under section 342, Cr.P.C. stated as under:--
9. I have been falsely implicated in this case. In the year 1979 one Abdul Hameed, the nephew of Muhammad Anwar P.W. was murdered wherein myself, Ali Ahmad and Sodan were challaned. Muhammad Anwar, Noor Muhammad, Din Muhammad, Jaber Khan and Bashir Akhtar P.Ws. of the present case appeared as P.Ws. in the said case against me. In the said case of Abdul Hameed, myself and Ali Muhammad were convicted and sentenced to life imprisonment, whereas Sodan was acquitted by the Court of Sessions at Kasur in 1980. Subsequently in the year 1982, I was also acquitted by the Honourable High Court in the said case of Abdul Hameed. My acquittal of the said case caused the annoyance to Muhammad Anwar, Noor Muhammad, Din Muhammad, Jaber Khan, Bashir Khan and Hasan Khan P.Ws. of the instant case and they became inimical towards me. Under the circumstances mentioned above, it was not proper that I should go to Noor Muhammad, Muhammad Anwar and Din Muhammad P.Ws. and make extra-judicial confession before them. I got no relationship with my co accused Mst. Akbari and the false story has been concocted to create the motive against me.
10. Learned counsel for the appellants has stated that it was a blind murder and the appellants have been implicated because of enmity which is reflected from the prosecution evidence.
11. I have considered the contentions and have gone through the entire evidence with the assistance of the learned counsel for the parties. I have noticed that in this case the Additional Sessions Judge, Kasur had convicted the appellants on the basis of their alleged extra-judicial confession as well as the testimony of Wajtakar witness Hassan Khan, P.W.9. The motive advanced, by Jan Muhammad P.W.4 and the recovery of Safa P.1 were also taken into consideration while convicting the appellants.
12. First of all I would take up the motive part which had only been advanced by the prosecution without its logical substantiation. Jan Muhammad P.W.4 had stated that he saw Mst. Akbari appellant alongwith Ramzan appellant committing Zina in a Charri field which was hardly knee height. They, according to him, were visible by the passers-by. It is in evidence that this witness did not tell to the police or to any other respectables of the area respecting the alleged nefarious act in spite of the fact that he was present at the spot when the police visited the place of occurrence on 3-7-1984 to conduct an inquiry into the cause of death of Jumma Khan deceased. Even in his statement Exh.D. before the police he did not mention the commission of Zina. In this view of the matter no reliance whatsoever can be placed upon the motive part which has simply been put forward by the prosecution and has not been established beyond doubt. Similarly, the testimony of Hasan Khan P.W.9 that he saw the appellants Muhammad Hanif and Ranizan coming out of the house in the earlier hours of the morning on the day of occurrence does not inspire confidence. This circumstantial piece of evidence does not get support from the prosecution. Hasan Khan P.W.9 in spite of his being present when the police visited the place of occurrence on 3-7-1984 did not mention this aspect. The extra-judicial confession narrated by Din Muhammad P.W.7 and Noor Muhammad P.W.8 has not been proved beyond doubt. It is in evidence that Din Muhammad P.W.7 was a witness in a murder case of Abdul Hameed wherein Muhammad Ramzan was implicated. The stance of the prosecution that the appellant came to the place of the complainant Noor Muhammad just to admit their guilt does not appeal to reason. Those witnesses are neither Lumbardars of the village nor commanding any stature therein. There was no reason for the appellants to come before them in the manner stated in the evidence to seek their help. Even otherwise Din Muhammad P.W. who was an employee of L.DA. during those days could not give plausible explanation for his being present in the house of Noor Muhammad complainant at 7 a.m. on the morning on 5-7-1984. He had simply stated that he had gone to get back his loan of Rs.1,000 earlier advanced by him six months back to Noor Muhammad complainant. It is in evidence that the P.Ws. are inimical towards the appellant Muhammad Ramzan who was involved in the murder case of Abdul Hameed the nephew of Muhammad Anwar P.W. who has not been produced. Extra judicial confession is a weak type of evidence. It has to be considered with utmost care. In the case in hand it has been brought on record that there were six Lumbardars and a Councillor in the village. No sound reason has been brought on record by the prosecution that why the appellants admitted their guilts before these witnesses who did not enjoy position in the village so as to be able to help them out in this matter. Even otherwise the manner in which according to the prosecution the appellants admitted their guilt turn by turn also does not appeal to reason. The testimony of these witnesses is contradictory in nature and does not advance the case of the prosecution in any manner.
13. The recovery of alleged Safa P.1 is also of no consequence. Dr. Saeed Ahmad P.W.11 had stated in categorical terms that the injuries on the C neck of the deceased could not have been caused by soft ligature like Safa. He has totally ruled out the use of Safa in the alleged strangulation of the deceased.
14. For what has been stated above, it is from the record that it was a blind murder and the evidence brought on the record implicating the appellants in the commission of this offence has not been established beyond doubt.
15. Resultantly, the appeal is accepted and the appellants are acquitted from all the charges filed against them. They are ordered to be released forthwith if not required in any other case.
16. These are my reasons for order of even date ordering the release of the appellants.
17. N.H.Q./A-551/L Appeal accepted