' SYED SHABBAR RAZA RIZVI, J.--- This is a criminal appeal from the judgment, dated 20-10-2000 passed by Ch. Abdul Qayyum, Additional Sessions Judge, Pakpattan Sharif, whereby the appellant Khadim Hussain son of Ghulam Farid was convicted under section 302(b), P.P.C. And sentenced with R.I. For imprisonment for life, as Tazir. He was further awarded Rs,1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. In default of payment thereof, he shall further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. Was extended. The above conviction and sentence was recorded in a complaint case under section 302/34, P.P.C. About the said occurrence, an F.I.R. No, 312 of 1996 dated 14-7-1996 was also registered at Police Station Saddar, Pakpattan Sharif.
2. Briefly, a complaint under sections 302, 34, P.P.C. Was filed by the complainant, Mst. Rasheedan Bibi wife of Muhammad Hanif against Khadim Hussain (appellant), Khalid Hussain, both sons of Ghulam Farid, caste Dhodhi, residents of Chak No, 10/KB, District Pakpattan Sharif and Razia Begum daughter of Noor Ahmad, caste Dhodhi, resident of Chak Alam Dhudhi, Tehsil and District Pakpattan Sharif. The said complaint was filed on 20th of August, 1996. According to the complainant, she was resident of Chak Haripur, Police Station Malka Hans. On 14-7-1996, the complainant, Rasheedan Bibi went to meet his brother Ali Sher (deceased) to Chak Dhudhi, Police Station Saddar, Pakpattan Sharif. The complainant, his brother, brother's wife Razia Bibi (one of the co-accused) and his brother's daughter Asia Bibi aged 3 years were sleeping, at about 2-30 a.m. (night time), the complainant woke up and saw that Razia Bibi, wife of Ali Sher (deceased) was not present on her cot. The complainant informed her brother Ali Sher thereafter, both of them came out of the house to trace Razia Bibi. They reached to some distance whereupon they witnessed Khadim Hussain (appellant), Khalid Hussain and another unknown person with Razia Begum. All of them were heading towards a white car parked nearby. The deceased tried to stop them whereupon Razia Begum instigated her companions that Ali Sher had seen them, therefore, he should be murdered, or else, he would cause them damage. Whereupon, Khadim Hussain (appellant) and Khalid Hussain who were armed with daggers launched an attack on Ali Sher (deceased) and caused injuries on front of his abdomen, chest and left arm. The complainant's brother fell on the ground, while he was falling, the unknown person also attacked him twice with hatchet causing injuries on his right and left hands. On raising hue and cry by the complainant, Maqbool Ahmad son of Baqir, Ghulam Muhammad alias Maqsood Ahmad son of Baqir, caste Dhudhi residents of Alam Dhudhi, who were sleeping on their tubewell nearby reached at the spot. The other persons from the village also reached, the accused left the place of occurrence boarding into their car. The deceased, Ali Sher died at the spot. According to the complainant, the motive of the above occurrence was that appellant Khadim Hussain, relative of the complainant, used to visit complainant's brother's house frequently. This provided opportunity to the appellant, Khadim Hussain, to establish illicit relationship with Razia Begum, wife of the deceased. The deceased stopped the appellant, Khadim Hussain from visiting his house which infuriated appellant, Khadim Hussain and Razia Begum. The same grudge became cause of deceased's death and a plan was prepared by the appellant Khadim Hussain, Khalid Hussain and Razia Begum, co-accused in collusion with another unknown person. The complaint further reveals that, on information of one Muhammad Ramzan, F.I.R. No, 312 of 1996, against Maqsood Ahmad son of Ghulam Nabi and appellant was registered at Police Station Saddar, Pakpattan Sharif. The complainant, Rasheedan Bibi alleged that the said F.I.R. Was lodged by Muhammad Ramzan malafidely as Muhammad Ramzan wanted to save Khadim Hussain and Khalid Hussain. As they are cousins amongst themselves. Muhammad Ramzan himself became complainant of F.I.R. No, 312. And named Maqsood Ahmad as main accused, who had not participated in the occurrence at all. In the above circumstances, the complainant was forced to file the instant complaint.
3. As stated above, F.I.R. No, 312 of 1996 was registered on 14-7-1996 at 6-30 a.m., the day of occurrence at the written application of Muhammad Ramzan son of Bahawal, caste Dhudhi, resident of Village Alam Dhudhi, Police Station Pakpattan Sharif under sections 302, 34, P.P.C.
According to the F.I.R. About 1/2 a.m., during the night, some body informed Ali Sher, deceased, nephew of the complainant that his buffalo had untied and was roaming around and that he should tie buffalo with a tether. On this, Ali Sher, deceased came out of his house and reached in Acre No, 23, Square No, 25, whereupon was attacked by two persons. On hue and cry of Ali Sher, deceased, the complainant (Muhammad Ramzan) reached accompanied by Maqsood Ahmad, Maqbool Ahmad, sons of Baqir Ali at the spot, thereupon, they witnessed that two persons after causing injuries with sharp-edged weapon to the deceased were running away. The complainant suspected them as Maqsood Ahmad and Khadim Hussain. According to the complainant, Maqsood Ahmad and Khadim Hussain in consultation with each injured deceased Ali Sher who died as a result of injuries, at the spot. According to the motive in F.I.R., one month prior to the occurrence, Maqsood Ahmad was cutting crop of the deceased; Ali Sher (deceased) had stopped him whereupon they had fight with each other. The deceased Ali Sher had slapped Maqsood Ahmad accused and for the same grudge Maqsood Ahmad murdered Ali Sher.
4. In the complaint, name of Maqsood Ahmad stands completely omitted, the complainant, in fact, alleged that the complaint was wrongly lodged by Muhammad Ramzan to save appellant Khadim Hussain and the blame was put on Maqsood Ahmad who was innocent. The respondent Razia Begum is also not named in F.I.R. No, 312 of 1996. The learned trial Court found the complaint triable, therefore, summoned the appellant and his co-accused accordingly. Four P.Ws. Were examined in the Court. P.W.1 Mst. Rashidan Bibi supported the story as narrated by her in the complaint. The statements of P.W.2 Ghulam Muhammad and P.W.3 Maqbool Ahmad were also in line with that of the complainant. P.W.4 Dr. Muhammad Siddique conducted the post-mortem examination on the dead body of Ali Sher. Apart from the above four P.Ws. The trial Court examined Muhammad Ejaz A.S.-I. As C.W.1, Shaukat Ali, Constable as C.W.2, Muhammad Ramzan Patwari as C.W.3, Muhammad Ramzan as C.W.4, Muhammad Yousaf, Retd. Constable as C.W.5, Farukh Nisar Lishari as C.W.6 and Shah Nawaz S.-I. As C.W.7.
5. The learned counsel for the appellant contends that it was a dark night occurrence, the occurrence took place in field of lawar' crop. The story given in the F.I.R. Is more probable, the complainant was real uncle of the deceased and also a neighbour of the deceased, whereas, the complainant in the complaint case though is a sister of the deceased but lives in a different village, Haripur, with her family. Her presence at the spot is shown on the basis of a concocted story which is improbable. He further contends that the eye-witnesses are close relatives of the deceased and they also live outside the village where occurrence took place. He further contends that the whole case is based on suspicion. In the F.I.R. Motive is attributed to Maqsood Ahmad not to the appellant.
He also contends that recovery of Chhuri was affected after five months of the occurrence, i,e, on 13-12-1996. The same was not blood-stained. The recovery witnesses are also policemen. No specific injury is attributed to the appellant. According to the complaint both Khadim Hussain, appellant and Khalid Hussain are alleged to have caused injuries on the person of Ali Sher, deceased simultaneously with their daggers on front side of abdomen, chest and left arm. The evidence against the appellant Khadim Hussain and co-accused Khalid Hussain was similar, but only Khalid Hussain has been given benefit of doubt. He further, submits that evidence of P.W.2 Ghulam Muhammad and PW.3 Maqbool Ahmad is also full of confrontations and contradictions.
6. On the other hand, the learned counsel for the State submits that P.W.1 Rashida Bibi has fully supported her version and successfully braved cross-examination in the Court. The medical report/evidence fully supported version of the complainant. The recovery has also been affected from Khadim Hussain, appellant. The opportunity was provided to the appellant to create a dent in his statement under section 342, Cr.P.C. But he failed to do that while answering questions Nos.6 and 7. The statement of P.W.1 Rashida Bibi gets corroboration from C.W.4 Muhammad Ramzan, who has supported version of P.W.1. In view of the above, he submits that the impugned judgment should be upheld.
7. I have heard the learned counsel for the parties and also seen the record.
8. The complainant, Rashida Bibi P.W.1, conceded in her cross-examination that she ordinarily lives in village Haripur with her children at about 15 miles away from the place of occurrence. Whereas, she has also conceded that Muhammad Ramzan, complainant in F.I.R. Lives in the same village where occurrence took place and he is also an uncle of the deceased. The EI.R. Was lodged within about 4 hours after the occurrence. Whereas, the complaint was instituted on 20-8-1996, after about 36 days. The complainant has also conceded at one point in her cross-examination that the murder was committed in agricultural field of lawar' crop, which was recently removed. During her cross-examination, she stated that on 25-7-1996 she made a statement that she was sleeping in the house of her brother Ali Sher deceased at the time of occurrence, but when confronted with Exh.D.A. It was not so recorded. Similarly, her presence at the place of occurrence in the Exh.D.A. Is not found when confronted in the Court during her cross-examination. P.W.2 stated in his statement before the Court that Rashida Bibi, complainant had also witnessed the occurrence but when he was confronted with Exh.D.C. It was not so recorded. Similarly, contradiction was found regarding electric light at the place of occurrence. Even otherwise how can a field of lawar' be electrified? Likewise, his cross-version supports story given in F.I.R. Instead of complaint. He also deposed in the Court that Mst. Rashidan stated before the police that Khadim Hussain and Khalid Hussain accused gave dagger blows to Ali Sher, deceased, but when confronted with Exh.D.C. It was not so recorded. The P.W.2 also admitted that occurrence had taken place in the agricultural field. He further conceded that the occurrence had taken place in the lawar' crop but same had been cut from there. This P.W. Further conceded that Razia Begum, co-accused attended all the funeral ceremonies of Ali Sher, deceased including `Janaza', 'Qul', and `Saata'. He also conceded that Razia Begum accused and Rashida Bibi, complainant had been living in the same house till the `Chehlum' of Ali Sher, deceased. If this statement is true, it is not believable that a person who is alleged to have played a role in her husband's murder would stay there to attend deceased's burial, Qul, Saata and Chehlum. P.W.3's statement in the Court is also full of contradictions on all material points as mentioned above with reference to statement of P.W.2. The learned trial Court acquitted co-accused Khadim Hussain and Razia Begum.
9. I would like to refer the views/portion of judgment of the trial Court regarding Razia Begum Accused, during cross-examinations, P.W.2 Ghulam Muhammad admitted that Mst. Razia accused attended the entire funeral ceremonies of Ali Sher deceased including Janaza. Qul and `Saata'. He further admitted that Mst. Razia accused and Rashida Bibi complainant had been living in the same house till the `Chehlum' of the deceased. If these assertions of P.W.2 are admitted to be true, then, the testimony of P.Ws. With regard to the role of Mst. Razia Begum in the occurrence has become doubtful. If the complainant and the P.Ws. Had seen her at the time of occurrence raising Lalkara and asking her co-accused to kill the deceased, then how Mst. Rashida complainant had lived with her in the same house till the `Chehlum' of deceased. Moreover, how the complainant (P.W.1) could allow her to attend the funeral ceremony of the deceased including Janaza, Qul and Saata.
10. The learned trial Court further noted, "it is astonishing and surprising that if she (Razia Begum) had escaped from the place of occurrence along with her co-accused, how could she attend the funeral rites of her deceased husband?"
11. The learned trial Court acquitted Khalid Hussain and Razia begum, co-accused, however, he found appellant Khadim Hussain guilty for Qatl-e-Amd of deceased Ali Sher and convicted under section 302(b), P.P.C., sentenced him with imprisonment for life (R.I.) as Ta'zir on ground of above facts and mitigating circumstances. The appellant was further ordered to pay Rs,1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., in default of payment of thereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. Was also extended. The doubts of the learned trial Court regarding acquittal of co-accused Khalid Hussain and Razia Begum, mentioned in the preceding paras., are understandable but he should have applied the same reasoning in the case of the appellant also. Appellant Khadim Hussain and co- accused Khalid Hussain have been attributed exactly a similar role i,e, causing dagger blows on the body of the deceased. They have been attributed causing injuries on the chest, abdomen and left arm of the deceased together; these injuries are not specifically attributed to them separately.
The witnesses are also same. The only distinction is that recovery of a dagger is attributed to appellant Khadim Hussain only. All other considerations like presence of Razia Begum co-accused to attend the funeral rites etc. Of the deceased, occurrence of a dark night and doubt on presence of complainant Mst. Rashida equally apply to all accused, but only co-accused Khalid Hussain has been acquitted by the learned trial Court. In my humble view the benefit of doubt which has been extended to co-accuse Khalid Hussain should be equally given to the appellant.
12. The upshot of the above discussion given in preceding paras.8 to 11 is that appellant Khadim Hussain is given benefit of doubt, his conviction and sentence is set aside. He is honourably acquitted of all charges against him. He shall be released immediately if not required in any other case.