' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellants Muhammad Inayat and his two sons namely Muhammad Aslam and Muhammad Akram along with ten other accused were tried by Additional Sessions Judge, Jhang for the murder of one Khizar Hayat in case F.I.R. No,519 dated 27-10-1998 registered under sections 148/302/149 read with section 109, P.P.C., at Police Section City Shorkot.
The trial Court vide judgment dated 21-6-2000 while acquitting co-accused convicted the appellants under section 302(b)/34, P.P.C. And sentenced each of them to death. Appellants were also directed to pay Rupees one lac each as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default whereof to further undergo six months' R.I. Each.
2. Calling in question the impugned judgment Criminal Appeal No,906 of 2000 against their conviction and sentence was filed by the appellants whereas Criminal Appeal No,1143 of 2000 was filed by the complainant against the acquittal of respondents. Trial Court also made a reference (M.R. 392 of 2000) seeking confirmation of death sentence awarded to the appellants. All these matters are being disposed of together by this judgment.
3. Deceased Khizar Hayat was done to death within the area of Chak No,492/JB situated about 24 K.Ms. From the Police Station City Shorkot and the matter was reported to the police by Mst. Sahib Khatoon alias Sahibah P. W.10 (mother of the deceased).
4. Case of the prosecution as penned in the F.I.R. Is that on 27-10-1998 Mst. Sahib Khatoon alias Sahibah along with her son Khizar Hayat deceased was present in her house situated in Chak No,492/JB Colony No,2. At about mid-night time Abdul Sattar son of Nadir, Inayat, Masood, Ejaz, Umar Hayat, Munir sons of Allah Bakhsh and Allah Bakhsh son of Nadir came there and took her son Khizar Hayat with them to the house of Inayat appellant on the pretext of effecting compromise with him. The complainant smacking some foul play also followed her son. Statedly Khizar Hayat was taken inside the house of Inayat appellant where Muhammad Mazoor, Hazoor, Farooq accused armed with hatchets, Muhammad Akram, Muhammad Aslam sons of Inayat armed with Dangs and Falak Sher accused armed with Toka were also present and within the view of complainant all the accused started beating Khizar Hayat and committed his murder. Complainant raised hue and cries which attracted Muhammad Siddique, Noor Zaman, Muhammad Afzal and Muhammad Bashir to the spot. Allegedly the said accused had committed the offence at the behest of Col. (Retd.) Ghulam Muhammad and Allah Bakhsh (Retd.) Tehsildar.
' The motive for the occurrence as narrated in the F.I.R. Was that Khizar Hayat had not agreed for the marriage of daughter of Inayat (appellant), his father-in-law, with the son of Abdul Sattar accused.
5. After formal investigation and complying with the legal formalities, Investigation Agency submitted challan before the Court where prosecution produced eleven witnesses including Noor Zaman P.W.9 and Mst. Sahib Khatoon P.W.10, the eye-witnesses of the occurrence to prove the charge against the appellants and their co-accused.
6. Trial Court also examined the appellants and their co-accused under section 342, Cr.P.C. While answering to the question why this case against you and why the P.Ws. Have deposed against, Inayat appellant replied as under:-- "All the P.Ws. Are related inter se. They are my stanch enemy due to longstanding enmity. They deposed against me falsely. On the eventful night Khizar Hayat deceased who was a head strong young man had turned out his wife from his house. He wanted to divorce his wife and had an evil eye on my daughter Mst. Farzana who was married earlier. On the eventful night Mst. Farzana had come to my house according to custom in our society of Muklawa (recently married girl come to the house of her parent one or two night after the marriage to stay there for a night). At about mid- night Khizar Hayat deceased trespassed into my house. He dragged Mst. Farzana but on her hue and cry Muhammad Aslam my son and co-accused was attracted to the scene and he inflicted many injuries to the deceased with a wooden peg which was lying in the house in grave and sudden provocation and to save the honour of his sister. Mst. Rukhsana my daughter and wife of deceased Khizar Hayat, Mst. Shehnaz sister of the deceased and wife of my son Muhammad Aslam were attracted to the spot, on their hue and cry Aslam fled away. Both of them put the deceased in a bed who was still alive. I and all my other co-accused were not present at the spot. Mst. Saban mother of deceased was in the house of her parents in village Kot Dewan. Noor Zaman and other P.Ws. Did not come at the spot. On the following morning Mst. Rukhsana wanted to report the matter to the police but Noor Zaman who is our stanch enemy and famous litigant brought Mst.
Saban from Kot Dewan and got the present false case registered against me and my co-accused.
None of the P.Ws. Had seen the occurrence. A shortwhile after the incident Muhammad Akram, myself and my other family members who were sleeping in the other rooms also came to the spot.
The deceased could not be taken to any doctor as we had no means to transport him at that odd hour of the night. The entire prosecution story is false and fabricated and is the result of conspiracy and machination of Noor Zaman and Mst. Saban."
' For the same question Muhammad Aslam appellant replied as under:-- "I endorse the reply given by co-accused Inayat given in my presence and hearing. I further add that I am married with real sister of Khizar Hayat deceased and we have four children. Even otherwise the deceased was so closely related to me. Being husband of my sister, we could not imagine of murdering him, but under the compulsion of saving the life and honour of my sister and under grave and sudden provocation and out of Ghairat, I had to beat Khizar Hayat deceased who had trespassed into our house, entered the room where my sister was sleeping and on the hue and cry of my sister Mst. Farzana who was being dragged by Khizar Hayat deceased and on the cries of my other sister I acted under the sudden impulse and only to save my sister Mst. Farzana from the clutches of the deceased. His mother used to reside with her parents in Mauza Kot Dewan. The other P.Ws. Are also residents of at a distance of more than one mile and none of them had witnessed the occurrence. Mst. Rukhsana widow of deceased, Mst. Shehnaz my wife and sister of deceased came to the spot put the deceased on the bed. I ran away from the spot. My father and brother Muhammad Akram were not present and were sleeping in other room and came at the spot later on. Allah Bakhsh and his sons, brothers and nephews have been falsely implicated due to longstanding enmity."
' Appellant Muhammad Akram while answering to the said question relied upon the defence plea taken up by his co-accused.
' None of the appellants and their co-accused made any statement under section 340(2), Cr.P.C.
However, Mst. Rukhsana widow of Khizar Hayat and daughter of Inayat appellant was produced in defence by the appellants as D.W.1.
7. Trial Court after appraisal of evidence available on record, vide judgment dated 21-6-2000 convicted and sentenced the appellants as narrated earlier.
8. After going through the record as well as hearing the arguments of the learned counsel for the parties at some length, we have observed that it is a case of two versions. Time, place of occurrence, relationship between the parties i.e, accused and complainant, the weapon of offence i.e, blunt weapon used in the occurrence are the admitted facts. The only point to be resolved is whether the story of prosecution is to be relied upon or the defence plea is to be accepted in totality.
' Khizar Hayat deceased was son-in-law of Inayat appellant. Mst. Rukhsana (daughter of Inayat appellant) was married with the deceased and out of the wedlock four children were born. In return sister of the deceased namely Mst. Shehnaz was given in the Nikah of Muhammad Aslam appellant, thus admittedly, both the parties are tied up in Watta Satta relationship.
' The defence plea that Khizar Hayat deceased was done to death under Ghairat by Muhammad Aslam as he (deceased) wanted to outrage the modesty of Mst. Farzana sister of the appellant, in our view is nothing but an afterthought and the same plea seems to have been concocted/ fabricated under some legal advice. Admittedly there is nothing on the record to show that appellants had taken the same plea immediately after their arrest. Statement of Mst. Rukhsana D.W.1 recorded by the police during the investigation which is available on record as D.W.1/A completely belies the defence plea taken up by the appellant during the trial. This statement shows that Khizar Hayat was done to death by the appellants when the (deceased) was sleeping with her (Mst. Rukhsana) in a room of her parents' house as statedly she had gone to the house of her parents because of her strained relations with her husband and on the night of occurrence her husband had joined her in her parental house. Similarly the postmortem report reveals that deceased had more than thirty blunt weapon injuries on his person. In other way he was beaten to pulp by the appellants party. These large number of injuries could not be caused by a single person as stated in the defence plea nor the same could be the result of a single weapon.
8-A. As far the ocular account is concerned, prosecution has relied upon the statement of two eye- witnesses namely Noor Zaman P.W.9 and Mst. Sahib Khatoon P.W.10. Both these witnesses were the residents of the area where this occurrence took place. According to the prosecution case at the relevant time Noor Zaman P.W.9 was passing by and on hearing the shrieks he entered the house of appellant and saw the occurrence. Similarly Mst. Sahib Khatoon P.W.10 as established from the record is closely related to the appellant party and her presence in the house of appellant at the relevant time in the circumstances of this case seems to be natural and plausible. The presence of both the eye-witnesses at the relevant time stands established from the record. During the cross- examination defence had attempted to establish that Noor Zaman P.W.9 had enmity with the appellant but we have observed that there is no direct evidence to show that Noor Zaman P.W.9 had any malice or grouse against the appellants to involve them falsely in this case. No doubt the said eye-witnesses have been disbelieved by the trial Court while acquitting co-accused of the appellants, we have observed that the trial Court in the circumstances of this case while following the principle of "thrashing the grain out of the chaff", has rightly extended the benefit of doubt in favour of the co-accused but as far the appellants are concerned the learned counsel has failed to show any circumstance to doubt the credibility of these witnesses qua the appellants. The ocular account also finds support from the medical evidence. The nature, location and duration of injuries as narrated by the eye-witnesses stands established from the Medico-legal Report. During the investigation crime weapons were also recovered from Muhammad Akram and Aslam appellants.
This occurrence took place about 24 kilometers from the police station on the night falling between 26/27 October, 1998 but in spite of said long distance the complainant who is a woman had lodged the report with the police at 8-30 a.m. The promptness in lodging the F.I.R. In the circumstances is yet another factor which has persuaded us to rely upon the prosecution evidence.
9. Motive for this occurrence as narrated in the F.I.R. Was that deceased had not agreed with the marriage of daughter of Inayat appellant with the son of Abdul Sattar accused but we have observed that neither during the investigation nor before the trial Court prosecution had produced sufficient evidence to prove this limb of the case. Admittedly due to the cross-marriages the parties are closely related to each other. Khizar Hayat deceased was the son-in-law of Inayat appellant and the siter of the deceased (Mst. Shahnaz) is the wife of Muhammad Aslam D appellant. The brutal and cold-blooded murder of Khizar Hayat at the hands of appellants by giving him numerous injuries only for creating hurdles in the marriage of the daughter of Inayat appellant is not believable. On the other hand Mst. Rukhsana D.W.1 while making statement before the police Exh.D.W.1/A had deposed that because of her strained relations with her husband Khizar Hayat (deceased) she had gone to her parental house where her husband also joined her and on the day of occurrence at about Azaan Wela deceased was done to death by her father and brothers (appellants). Causing such a large number of injuries to wreck the vengeance by the appellant against the deceased for having strained relations with Mst. Rukhsana their daughter/sister, is also not believable. The circumstance of this case reveals that something else had happened before the deceased was done to death by the appellant, the true facts seem to have been concealed by the parties who have not come before the trial Court with clean hands.
Since the genesis of the occurrence is shrouded in mystery and the prosecution E has failed to prove the motive part of its case we are persuaded to take a lenient view qua quantum of sentence of appellants. Accordingly, while dismissing Criminal Appeal No,906 of 2000 and maintaining the conviction of the appellants, their sentence is reduced to imprisonment for life with the benefit, of section 382-B, Cr.P.C. Appellants shall also pay compensation to the legal heirs of the deceased on the same terms and conditions as fixed by the trial Court.
'After perusing the impugned judgment and record of this case we are of the view that trial Court has rightly extended the benefit of doubt in favour of respondents in Criminal Appeal No,1143 of 2000. Their participation in the occurrence, in the circumstances of the case is doubtful and the trial Court has rightly extended the benefit of the same doubt in favour of respondents. Finding no force in Criminal Appeal No,1143 of 2000 the same stands dismissed.
' Death sentence of appellants is not confirmed and the murder reference is answered in the negative.
Sentence reduced.