' HAZIQUL KHAIRI, C.J.--- By this judgment, we propose to dispose of two Criminal Appeals No,311/L of 2003 one of conviction filed by (1) Muhammad Younas, (2) Hamid Hussain, (3) Muhammad Iqbal,
(4) Muhammad Arif and (5) Aflatoon whereby they were convicted under sections 452 and 365, P.P.C. And sentenced to 7 years' R.I. On each count with fine of Rs,10,000 each or in default of payment of fine, they shall undergo S.I. For six months. Arif and Aflatoon were further convicted under section 354, P.P.C. And sentenced to suffer R.I. For two years with fine of Rs,10,000 or in default of payment of fine to further undergo S.I. For seven months. All the sentences of imprisonment awarded to the appellants were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also given to all the aforementioned appellants. The other appeal is Criminal Appeal.No,221/L of 2003 filed by Muhammad Hanif against acquittal of accused/respondents namely (1) Muhammad Younas,. (2) Muhammad Arif, (3) Hamid Hussain, (4) Muhammad Iqbal, (5) Aflatoon alias Gamay Khan under sections 302/ 148/149, P.P.C. And 11 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as the said Ordinance) and (6) Nazar Muhammad and (7)
Badar-e-Alam from all the charges vide impugned judgment dated 3-6-2003 passed by the learned Sessions Judge, Bahawalpur.
2. Brief facts from the impugned judgment are that complainant (P.W.1) Muhammad Hanif recorded F.I.R. Dated 2-4-1997 that about ten months back one Badar Alam abducted his sister Mst.
Zulekhan Bibi and prepared a forged Nikahnama of marriage with her. The father of the complainant Noor Ahmad got registered a case against him and others for her abduction and Zina with her, which was later on cancelled on the statement of Mst. Zulekha Bibi. On 2-4-1997 at about 10.00 a.m. Muhammad Younas, Muhammad Iqbal, Hamid Khan, Nazar Muhammad, Gamay Khan, Sarfraz alias Buggoo (since dead) came to the house of complainant's father Noor Ahmed for taking back Mst. Zulekhan Bibi to her husband's house but the father did not allow whereupon they went back threatening to teach him a lesson. The same day at about 1-30 p.m. Armed with guns and Sotas, they scaled over the boundary wall of the house of the complainant and started dragging his other sister namely Mst. Irshad Bibi. On her hue and cry Sarfraz alias Buggoo and Hamid Khan grappled with the complainant and on hearing the high pitched voices, Muhammad Ismail, Sarfraz and Ali Muhammad who were present nearby came to the house to rescue her and saw the appellant Muhammad Younas and his son Badar Alam firing at complainant's father who fell down there and instantly died. The accused persons were able to successfully abduct Mst.
Irshad Bibi for commission of Zina-bil-Jabr.
3. On the same day, Inspector/S.H.O. Muhammad Saleem Warraich (P.W.10) received the complaint, visited the spot, prepared injury and inquest reports and sent dead-body to Javaid Akhtar (P.W.6) for post-mortem examination and recovered blood-stained clothes etc. Of the deceased, gun and Sotas etc. With recovery memos. He also took blood-stained earth from the place of occurrence, made it into sealed parcel and prepared rough sketch of place of occurrence with recovery memos. He also recovered the same day Mst. Irshad Bibi from the house of Muhammad Younas, appellant, recorded her statement and of eyewitnesses and on 24-4-1997 he arrested appellants 1 to 4 and recorded their statements under section 161, Cr.P.C. On 20-5-1997 he was transferred before completion of investigation.
4. Formal charge against the accused persons was made under sections 148, 452/149, 302/149, P.P.C. And section 11 of "the said Ordinance" to which they pleaded not guilty and claimed trial. On the request of counsel for the parties, separate charge was framed.
5. First we will take up Criminal Appeal No,311/L of 2003 against conviction filed by appellants Muhammad Younas and others, all of whom were acquitted under section 302/149, P.P.C. But convicted for house trespass under section 452, P.P.C., for assault with intent to outrage modesty of a woman under section 354, P.P.C. And for abduction with intent to confinement under section 365, P.P.C.
6. The prosecution had produced as many as 10 witnesses. P.W.1 complainant Muhammad Hanif reiterated his version as per F.I.R. P.W.2 Mst. Irshad Bibi deposed that all the five appellants along with Nazar Muhammad and Sarfraz had dragged her by hair and took her away in exchange of Mst. Zulekhan Bibi. That was resisted by her father who was fired at by appellant Younas and Badar Alam. After one hour of the occurrence, she was retrieved by the police. P.W.4 Muhammad Aslam, A.S.-I. Stated that he recorded the F.I.R. On receiving the complaint. The deposition of other witnesses is not relevant for the purpose of deciding the above-named Appeal No,311/L of 2003.
7. Appellant Muhammad Younas in his statement under section 342, Cr.P.C. Stated that the P.Ws.
Are closely related and that on the day of occurrence his son Muhammad Iqbal got registered F.I.R.
For offences under sections 364, 452, 148, 149, 395, 412, 337, P.P.C. Against the complainant party at Police Station. In fact:-- "In May, 1996 my son Badar Alam, co-accused entered into a marriage with Mst. Zulekhan. Noor Muhammad deceased at about 10.00 a.m. Duly armed with fire arms and some other lethal weapons they launched an attack on our house in our absence and abducted forcibly Mst.
Zulekhan Bibi who also took away with them licensed fire arms lying in our house and in doing so they also molested and maltreated Mst. Tahira Bibi, adopted daughter of Munir Ahmed who was present at that time in our house On that. Day 'I was present in the Court of Magistrate (section 30), Minchinabad as an accused in case F.I.R. No,170 of 1996 under section 430/379, P.P.C. Whereas my sons and other male family members were also not present in our house at that time. After coming to know about this occurrence, my son Muhammad Iqbal immediately went to the Police Station, Minchinabad and got registered the case F.I.R. No,69 of 1997 at about 10-30 a.m. Under section 364/452/412/ 148/149/337, P.P.C."
8. He also stated that having come to know by Munir Ahmed that his adopted daughter Mst. Tahira was molested by the sons of the deceased, he took his .12 bore gun, went to the house of the deceased, had quarrel with him and then shot him. He further added:- "Since an MPA was supporting the complainant party, this case was registered on the statement of Muhammad Hanif complainant by' concocting a false story. During investigation by all the Investigating Officers the neighbourers of the place of occurrence namely Muhammad Hanif son of Shahra Muhammad Qasim Ali, Mansab. Ali, Muhammad Aslam etc. Approached before the Investigating Officer and supported the defence version mentioned above. Finally a discharge report was prepared on 6-11-1998 whereby all the accused mentioned in the F.I.R. Including me were discharged from the above titled case and at the same time a challan was submitted on 6- 11-1998 under section 173, Cr.P.C. Against Muhammad Munir Ahmad son. Of Abdul Haq under sections 302/452, P.P.C. Who is facing the trial in this Honourable Court."
9. However, When all the accused -persons were examined under section 342, Cr.P.C., they elected not to disprove the allegations levelled by the prosecution against them by adducing their own defence.
10. According to learned trial Court, the case contains two versions; one produced by the prosecution and the other advanced by the accused persons and keeping both versions in juxtaposition, the version which was plausible, more probable and appealed to mind was to be accepted and when both the parties were telling lies, it is the duty of the. Court to sift the grain from the chaff. Such being the position, the learned trial Judge convicted and sentenced the appellants as aforesaid but acquitted them of murder of Noor Muhammad.
11. We have gone through the deposition of prosecution witnesses and found nothing which would create an iota of doubt to house trespassing by the appellants, of kidnapping Mst. Irshad Bibi, and outraging her modesty coupled with criminal force by them. Not only A her deposition but of other prosecution witnesses have fully corroborated her statement. The first Investigating Officer P.W.10 Muhammad Salem Waraich as well in his investigation had found the appellants guilty of kidnapping and outraging the moaesty of Mst. Irshad Bibi. She was also recovered by him and recorded her statement under section 161, Cr.P.C. Before him. We had asked Mian Muhammad Afzal Watto, learned counsel for the appellants to point out to any material contradiction or discrepancy in the lengthy cross-examination conducted on behalf of appellants but what he urged before us was that Sarfraz an important eye-witness referred to by the abductee Mst. Irshad Bibi was not produced by the prosecution nor any resident of the Mohallah. Despite that there is overwhelming irrebutable and credible evidence which pave way to the truthfulness of prosecution version.
12. In the other appeal i.e. Criminal appeal No,221/L of 2003, the complainant/appellant Muhammad Hanif has prayed for enhancement of sentence of Muhammad Younas and others. Learned counsel for the appellant/complainant Mr. Rehan Zafar submitted before us that the murder of Noor Muhammad is basically linked up with the enmity between the two families which is also an admitted position. There was eye-witnesses account of murder taking place coupled with motive behind it which was overlooked by the learned trial Court. Recovery of dead-body and recovery memos. Of Blood-stained clothes of the deceased; blood-stained earth, gun, Sotas from the premises of the deceased, point out clearly to the involvement of these accused persons (respondents) in the heinous crime. Even though the learned trial Court had held that it was not ascertainable as to which of the said two accused had committed the murder, it was incumbent on it to convict them rather than acquit them and let them go freely. In a case of this nature where murder is proved at the most instead of death penalty transportation for life should have been awarded to them but they could not be acquitted of murder. In support of his contention, Mr. Rehan Zafar, learned counsel placed reliance on Saee and others v. The State 1984 SCM R 1069 in which individual fatal shot could not be ascertained due to large crowed forming unlawful assembly. The other case referred to by him was Allah Dad v. The State 1995 SCM R 142 in which the record did not show with certainty that the shot of the accused had killed the deceased. In both the cases sentence of death was substituted by life imprisonment.
13. Both these cases referred to by the learned counsel are distinguishable from the present case.
In the cited cases murder was established firstly but due to mitigating circumstances the Supreme Court substituted life imprisonment for death penalty. It is not so in this case as the learned trial Court had given benefit of doubt to both Muhammad Younas and Badar-e-Alarn of murder and acquitted them. It would be advantageous to reproduce an extract from the deposition of complainant and appellant Muhammad Hanif as under:- "Muhammad Munir losing temper and being provoked by the act of accused person named in F.I.R.
No,69 of 1997 took his licensed .12 bore gun and went to the house of Noor Ahmad deceased i.e. Our, house. It is also incorrect that the door of our house was bolted from inside. He jumped over the wall and entered our house where my father Noor Ahmad deceased and our ladies were present.
Munir Ahmad caught hold my sister Mst. Irshad Bibi from her hair and tried to take her with him, when my father intervened he fired at him as a result of which he died."
"When the accused persons came to our house they had not entered into our house and my this statement is correct whereas my statement in my examination-in-chief that they entered into our house is not correct."
14. What transpires from the deposition of appellant Muhammad Hanif is that the double barrel gun recovered bblonged to Munir and not to any other said accused and he was the person who had killed his father. It is also a matter of record that Muhammad Iqbal, respondent No,4 had earlier lodged complaint against the appellants on 2-4-1997 at 10/10-30 a.m. At the Police Station for abduction of Mst. Zulekhan Bibi and for outraging the modestly of Mst. Tahira adopted daughter of Munir. The report of Investigating Officer as well as statement of Mohallah people exonerated both of them .Of the charge of murder. Neither Mst. Zulekhan nor three independent eye-witnesses Muhammad Ismail,. Sarfraz and Ali Muhammad named in the F.I.R. Were produced by the prosecution which creates great doubt to the prosecution story. Similarly the medical evidence cannot identify the perpetrator of the offence nor the Forensic Science Laboratory. Lastly the appellant has not made the said Muhammad Munir a party to this appeal. Hence we will not disturb the finding of the learned Sessions Judge, Bahawalnagar, resultantly this appeal also stands dismissed.
15. The upshot of the above discussion is that we uphold the impugned judgment, dated 3-6-2003, passed by the learned Sessions Judge, Bahawalpur and dismiss both the appeals with the modification that the sentence awarded to appellants namely Muhammad Younas son of Noor Samand, Hamid Hussain son of Muhammad Younas, Muhammad Iqbal son of Muhammad Younas, Muhammad Arif son of Muhammad Amin and Aflatoon alias Gamay in Criminal Appeal No,311/L of 2003 is reduced from seven years' R.I. On each count with fine .Of Rs,10,000 each or in default of payment thereof to suffer S.I. For seven months to five years' R.I. On each count with fine of Rs,2,000 each or in default of payment thereof to suffer S.I. For two 'months. The sentences shall run concurrently with benefit of section 382-B, Cr.P.C. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.