FAZAL-E-MIRAN CHAUHAN, J.---Vide judgment, dated 3-6-2003 passed by learned Sessions Judge, Muzaffargarh, on conclusion of trial in case F.I.R. No.38 of 2002 registered at Police Station Jatoi, the accused/appellants were convicted and sentenced as under:--
(i) Amanullah: ' was convicted under sections 302 (b)/149, P.P.C. And sentenced to death on two counts for causing fatal blows to Abdur Rehman and Mst. Sughran deceased.
(ii) Allah Ditta and Allah Bachaya. ' were also convicted under sections 302(b)/149, P.P.C. And sentenced to death for causing repeated injuries upon the persons of Abdur Rehman and Mst. Sughran deceased. Both of them were also sentenced to life imprisonment.
(iii) Allah Bakhsh and Ghulam Hassan. ' were also convicted under sections 302(b)/149, P.P.C. For facilitating the said occurrence and sentenced to life imprisonment.
' All of them were also directed to pay Rs.50,000 each as compensation as envisaged under section 544-A, Cr.P.C. To the legal heirs of both the deceased or in default of payment thereof to further undergo S.I. For six months each. Benefit of section 382(b), Cr.P.C. Was also extended to them. The said five appellants have assailed their conviction and sentence by filing Criminal Appeal No.400 of 2003.
2. Murtaza" and Mujahid appellants were declared juvenile and their trial was conducted separately by the same learned Sessions Judge, Muzafargrah and vide judgment, dated 3-6-2003, they were convicted under sections 302(b)/149, P.P.C. And sentenced to 10 years' R.I. Each for facilitating the murder of Abdur Rehman and Mst. Sughran. They were also burdened to pay Rs.10,000 each as compensation to the legal heirs of both the deceased or to further undergo S.-I.
For three months. Benefit of section 382(b), Cr.P.C. Was however extended to them. They have filed Criminal Appeal No.399 of 2003 against their conviction and sentence.
3. The learned trial Court has sent Murder Reference No.533 of 2003 seeking confirmation of death sentence of Amanullah, Allah Bachaya and Allah Ditta appellants. Since, all the three matters (M.R.
No.533 of 2003, Criminal Appeal No.400 of 2003 and Criminal Appeal No.399 of 2003) arise out of the Criminal Case No.38 of 2003 and same questions of facts and law are involved, we intend to dispose of the same through this single judgment.
4. F.I.R. (Exh. PE) was recorded on 28-1-2002 at 3-00 a.m. (night) on the statement of Abdul Aziz (P.W.8) brother of Abdur Rehman (deceased) by Nazir Ahmad S.-I. (P. W. 11), for an occurrence alleged to have taken place at 1-00 a.m. On 28-1-2002 within the area of Mauza Rempur situated at a distance of 14 K. Ms. From Police Station, Jatoi.
5. Briefly the facts narrated in the statement of the complainant (P.W.8) recorded under section 154, Cr.P.C. Are that on the day of occurrence, Abdur Rehman (deceased) brother of the complainant had been working with Sardar Siknadar Hayat and on 28-1-2002, at about 12-00 p.m. In the night when the complainant along with Waris (P.W.4) and Abdur Rehman were working in the fields of Sikandar Hayat, the deceased went to his quarter to sleep. After one hour, the complainant heard hue and cry of Abdur Rehman from the nearby garden, who was saying that he was innocent and he should not be murdered, which attracted the complainant along with the other eyewitnesses and they saw that accused Murtaza along with Allah Ditta and Ghulam Hassan after grappling Abdur Rehman had put him down on the ground whereas Murtaza and Allah Ditta had caught hold of legs of Abdur Rehman. Ghulam Hassan had taken arms of his brother and was raising Lalkara that the deceased should be taught a lesson for having illicit relations with his niece Mst. Sughran.
The complainant further narrated that within their view, Amanullah accused gave Kassi blow on the left side of neck of the deceased from where blood oozed out. Second Kassi blow was made by Allah Bachaya which hit at the front of neck of the deceased. He tried to rescue his brother when other accused persons raised Lalkara that anybody, if come forward, shall be given the same fate.
During this, Allah Bakhsh son of Ghulam Hassan and Mujahid accused came there while dragging Mst. Sughran daughter of Habib Ahmad in naked condition and within the sight of the complainant-Abdul Aziz (P.W.8) and others, Allah Bachaya, Allah Bakhsh and Mujahid accused put Mst. Sughran on the ground. Ghulam Hassan caught hold of Mst. Sughan from her hands and Amanullah whereafter made Kassi below on the neck of Mst. Sughran, which hit on the left side of *deceased Mst. Sughran. Allah Ditta picked up Kassi of Allah Bachaya and gave different blows of Kassi upon the neck and in presence of the complainant and others. Abdul Rehman and Mst.
Sughran breathed their last due to the said injuries. All the accused after being sure of the death of the deceased persons went to their houses.
' The motive behind the occurrence was that the accused persons were having suspicion of existence of illicit relations of Abdur Rehman (deceased) with Mst. Sughran (deceased), hence, murder of both the deceased persons was caused.
6. During the investigation, Nazir Ahmad, S.-I/I.O. (P. W.11) visited the spot and sent the dead bodies of Abdur Rehman and Mst. Sughran to the mortuary for medical examination through Abdur Rehman, Constable (P.W.1). He collected the blood-stained earth of the deceased persons and arrested Allah Bachaya who led to the recovery of Kassi and after the close of the investigation submitted report under section 173, Cr.P.C.
7. The post-mortem examination was conducted by Dr. Fazal Hussain (P.W.5), who found the following injuries on the person of Abdur Rehman (deceased):--
(1) An incised wound 17 x 05 c.m. On the left side on neck. All the tissues under the wound were cut.
Even cervical vertebrae were cut. The ruptured tissues included veins, nerve, muscles and bones.
(2) An incised wound 10 c.m. x 3 c.m. x bone cut (ruptured on left side of neck). Supro-anterior to Injury No.l. The fractured wound was left mandibular angle.
(3) An incised wound 8 1/2 c.m. x 3 c.m. x muscle cut on the anterior surface of neck just under the chin.
(4) Multiple small abrasions plus mud were present on the anterior surface of both knee joint. All these injuries were ante-mortem in nature and Injuries Nos.1 to 3 were caused sharp-edged weapon and No.4 was caused with blunt weapon.
' On the same day, the post-mortem examination was conducted by lady Dr. Humera Aslam, who found the following injuries on the person of Mst. Sughran (deceased):--
(1) A cut through injury from below mid chin to left outer neck measuring 17 c.m. x 3 c.m. Severing the underneath structures.
(2) Multiple sharp forced injuries as many as four in numbers below ' Injury No.1 on front and side of neck measuring 7 c.m. x 3 c.m.
10.5 c.m. x 2 cm within the area of 15 c.m. x 9 c.m. Cutting the underneath structures.
(3) Two contusions on left outer shoulder 4 c.m. x 2 c.m. Each.
(4) A sharp forced injury on the back of left shoulder 7 c.m. x 2 c.m. Cutting the muscle underneath.
(5) Multiple bruises on back mid-lower chest from 5 c.m. x 2 c.m. To 4 c.m. x 2 c.m. Within the area of 13 c.m. x 11 c.m.
(6) An abrasion 3 c.m. x 1 c.m. On left elbow.
(7) A sharp forced injury on inner side of left wrist cutting the muscle underneath measuring 4 c.m. x 2 c.m.
8. After supplying copies of documents as contemplated under section 265-C of the Cr.P.C., charge was framed against the appellants to which they pleaded not guilty and prosecution in order to prove their guilt, produced 11 witnesses.
9. The ocular account consisted of the statements of Abdul Aziz (P.W.8) and Waris (P.W. 9) as he was witness of the recovery of Kassi P.22 and Nazir Ahmad, S.-I/I.O. (P.W.11) had investigated the case. However, P.W.5 and P.W.10 had furnished medical account while the remaining witnesses are of formal nature.
10. The appellant-Aman Ullah in his statement under section 342, Cr.P.C. Denied the allegation and on a question that why this case is against you and why the P.Ws. Have deposed against you?, he replied as under:-- "During the night of occurrence, I got up late at night and found my younger unmarried sister Mst.
Sughran absent from her bed. I and my mother searched her in the house but she was not available. I became worried and went out in her search. Due to odd hours I was carrying a Kassi with me. When I reached near the orchard of Sikandar Hayat Khan, saw suspicious movement and I approached two persons got up from under mango tree and ran towards eastern side but they were caught up in their own clothing and fell down on the ground. I saw that they were my younger sister Mst. Sughran and Abdur Rehman who were both naked. I could not restrain myself and due to Ghairat and extreme and sudden provocation I started giving blows with the sharp as well as blunt side of my Kassi. In a state of furious, I gave a large number of blows. This incident happened due to sudden and grave provocation and I had no intention of murdering any person. I was alone at the time of occurrence and my co-accused have been falsely involved in this case."
' He also produced copy of Khasra Gardawari Exh.D.B. And certified copy of Part Warabandi Exh.D.C.
(subject to objection about its direct admissibility in evidence).
11. Learned counsel for the appellants contends that Abdur Rehman (deceased) and Mst. Sughran (deceased) were found in compromising position by the appellant during the odd hours of night and due to grave and sudden provocation, the convict (Aman Ullah) alone murdered both of them.
Allah Bakhsh and Ghulam Hussain were not attributed any injury. The role attributed to them by the P.Ws. Is not believable. He further argues that time and place of occurrence and motive for the offence has been set up by the prosecution. It was a case of grave and sudden provocation for which a specific plea was raised, even if the prosecution evidence is belied on its face value the case cannot travel beyond the scope of section 302-C, P.P.C. He further argues that Mst. Sughran is real sister of the appellant Aman Ullah, who has admitted the occurrence and has taken a specific plea while making his statement under section 342, Cr.P.C. And the main role of cutting the neck of both the deceased persons was attributed to him, while allegation against Allah Bachaya was that he inflicted Kassi blow after Aman Ullah and had cut the neck/throat of Abdur Rehman deceased.
Allah Ditta appellant was empty-handed and the allegation that the he took the Kassi of Allah Bachaya and caused blow on Abdur Rehman deceased after Aman Ullah had cut the neck of Mst.
Sughran deceased. He further argues that surrounding and the attending circumstances speaks for the truth of version put forth by Aman Ullah. Chadar of Abdur Rehman deceased was not bloodstained. Mst. Sughran was killed when she was naked, which leads to the conclusion that both the deceased were in compromising position when Aman Ullah reached the orchard of Sikandar Hayat Khan. According to the post-mortem report of Mst. Sughran, there were fresh multiple tear and the swa b were taken which were stained with blood. A Gadda and blanket were also taken into possession from the place of occurrence. Learned counsel for the appellants while concluding his arguments contends that from all the facts and circumstances of the case, it was not an intentional cold blooded murder but was committed by Aman Ullah appellant under the impulsion of grave and sudden provocation and prays for lesser punishment in the case of Aman Ullah appellant treating the same a case under section 302(c), P.P.C. And prayed for acquittal of other co-accused.
12. Learned counsel for the complainant, on the other hand, contends that the motive behind the occurrence was that the accused persons were having suspicion about the existence of illicit relations of Abdul Rehman with Mst. Sughran and they caused the murder of both the deceased persons. P.W.8 and P.W.9 are true witnesses who saw appellant Aman Ullah along with other co- accused committed murder of Abdur Rehman and Mst. Sughran deceased persons in furtherance of their common intention suspecting the illicit relations. Since they were watering their fields on the night of occurrence, their presence at the spot is not doubtful and both the P.Ws. Remains confident on material points. The murder was committed by the accused person suspecting the illicit relations of Abdur Rehman with Mst. Sughran. The medical evidence was also in conformity with the ocular account and the nature of the injuries shows that they were caused with sharp- edged and blunt weapon. The occurrence took place at 12-00 p.m. On the night of 28-1-2002 and the F.I.R. Was lodged at 3-00 p.m. On the same night after three hours of the occurrence at the Police Station at a distance of 14 K.Ms from the place of occurrence.
13. Learned State counsel has also opposed the appeal and supported the arguments of learned counsel for the complainant.
14. We have heard learned counsel for the parties and also perused the record with due care and caution. Admittedly, P.W.8 Abdul Aziz is real brother of Abdur Rehman deceased, P.W.9 Waris Ali is relative of deceased and the complainant. The occurrence took place in the orchard of Sikandar Hayat Khan at 1-00 a.m. (night). The pivotal question in this case is whether the P.Ws. Were present at the place of occurrence and could have seen the occurrence.
15. Both the P.Ws. Were not resident of the place of occurrence. According to P.W.8, his residence was three squares away from the place of occurrence while P.W.9 stated that his residence was at a distance of 1-1/2 squares. To prove their presence at the spot both the P.Ws. Claimed that they along with Abdur Rehman deceased were watering their fields on the night of occurrence.
According to the P.Ws., Abdur Rehman had left that place at about one hour earlier and went to his room. P.W.8 claimed that they were doing the job since from evening. No Warabandi was produced to prove their presence at that time and how they claim to reach the place of occurrence and saw the accused party committing the murder of Abdur Rehman deceased. According to the P.Ws, it was pre-planned occurrence, but it is strange that the accused were not armed with fire-arm weapons. P.W.8 and P.W.9 were brother and close relative of Abdur Rehman deceased, but they did not try to save the deceased. It is also unbelievable that while rushing towards the place of occurrence after hearing the hue and cry of Abdur Rehman, they left the Kassi, the only weapon with them behind and reached the place of occurrence empty-handed and stood there only as spectator.
16. It was a night occurrence, but the prosecution had not shown any source of light in which P.W.8 and P.W.9 had seen the occurrence with such minute descript given in the F.I.R., and then by the P.Ws. In witness-box. The details and sequence mentioned are not possible to be witnessed in the darkness of night particularly in an orchard surrounded by huge mango trees. As per Exh.P.C/2 (Naksha Jai Wagooa), the dead body of Abdur Rehman with cut neck and half naked was found at the place of occurrence. Shalwar of Abdur Rehamn was taken into possession vide Exh.P.2 which was not blood-stained. Similarly, vide Exh.P.K. Shalwar of Mst. Sughran deceased was also taken into possession (not blood stained) meaning thereby that both the deceased were naked at the time of occurrence. P.W.5 Dr. Fazal Hussain also received dead body of deceased Abdur Rehman wearing Bunyan Qameez and Chadhar out of which Chadhar was not stained with blood, which means that Abdur Rehman deceased was not wearing Chadhar at the time of occurrence. On the other hand, P.W.8 and P.W.9 stated that when they reached the place of occurrence Abdur Rehman deceased was wearing Shalwar and was not naked which statement is negated by documentary evidence on record. Thus, we have reached the conclusion that P.W.8 and P.W.9 are not truthful witnesses. By their own, they acted against the natural impulsive by not interfering in the quarrel to save the life of Abdur Rehman deceased when only one Aman Ullah was armed with Kassi and the other were empty-handed.
17. After perusal of the statements of P.W.8 and P.W.9, their evidence does not appear to be confidence-inspiring. They have failed to give any plausible explanation for their presence at the spot. Their inaction at the place of occurrence to save the life of their close relative at the hands of the accused, who were only armed with a Kassi, also leads to an irresistible inference that they were not present at the time of occurrence. The P.Ws. Are closely related inter se and with the deceased. According to prosecution own version, Mst. Sughran deceased was naked when was brought to the place of occurrence for her murder, which is not plausible story as she was real sister of Amanullah-appellant. The facts and circumstances of the case show that the P.Ws. Were not present at the place of occurrence and they were imported as witnesses, later on, who attributed roles to each of the appellant by widening the net. Admittedly, there was no previous enmity between the parties except suspicion of illicit liaison of both the deceased. The murder of both the deceased at the same place and the kind of weapon of offence lend support to the defence version that the occurrence had taken place at the spur of moment. The prosecution version does not appeal to mind that after the murder of Abdur Rehman deceased, the appellants had brought their own girl at the spot and also murdered her, but the P.Ws. Could not do anything to save their lives.
18. It is well-settled principle of law that if the prosecution version is disbelieved and the conviction is based on defence version, the same has to be believed or rejected in toto and it cannot be accepted in piecemeal to suit the prosecution version. According to defence version, Amanullah appellant alone had committed murder of both the deceased while finding them together in compromising position during odd hours of night. When put in juxtaposition, the defence version appears to be more plausible than the prosecution version as the P.Ws. Have failed to give any plausible reason for murder of their own girl at the hands of the appellants. It is general tendency in the society that close relatives and friends of the main accused are also named in the occurrence by attributing different roles to them by widening the net so that none should be left behind to prosecute version and according to the defence the appellants namely Allah Ditta, Allah Bachaya, Allah Bakhsh, Ghulam Hassan, Murtaza and Mujahid were not present at the time of occurrence. To their extent, it has become a case of no evidence and they deserve to be acquitted. As such Criminal Appeal No.399 of 2003 in full and Criminal Appeal No.400 of 2003 is partly accepted. The impugned judgment of conviction and sentence are set aside to their extent and all the six appellants namely, Allah Ditta, Allah Bachaya, Allah Bakhsh, Ghulam Hassan and Mujahid are acquitted of the charges by extending them the benefit of doubt. Allah Ditta and Allah Bachaya appellants are in death cell, who shall be released from Jail forthwith, if are not required in any other case while the remaining appellants are discharged of the liability of surety bonds as they are presently on bail after suspension of their sentence.
19. So far as case of Amanullah appellant is concerned, according to the defence version, he is guilty of offence under section 302(c), P.P.C. Hence, his conviction and sentence under section 302(b) P.P.C. Is set aside and he is convicted under section 302(c) P.P.C. And sentenced to 10 years'
R.I. On two counts which shall run concurrently and benefit of section 382(b), Cr.P.C. Was also awarded to him. As both the deceased were not Masoom-ud-dam, who were murdered during odd hours of night while finding them in compromising position, we are not inclined to award compensation to the legal heirs of the deceased as contemplated under section 544-A, Cr.P.C.
With this modification in the nature of conviction and quantum of sentence, Criminal Appeal No.400 of 2003 to the extent of Amanullah appellant stands disposed of.
20. In view of above, Murder Reference No.533 of 2003 is replied in negative.