' RUSTAM Ali MALIK, J.--- This judgment will dispose of Criminal Appeal Isto.1450 of 2000, Criminal Appeal No,256-J of 2000 and Criminal Revision No,851 of 2000, all arising out of the judgment dated 20-9-2000 passed by the learned Additional Sessions Judge, Sargodha, whereby he had convicted both the appellants namely Ijaz Ahmad and Nazir Ahmad under section 302(b), P.P.C. And had sentenced them both to imprisonment for life as Ta'zir and had also directed them to pay Rs,20,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased.
2. The case against the accused/appellants is based on F.I.R. No,89 registered on 15-6-1999 in Police Station Tirkhan Wala District Sargodha under section 302/34, P.P.C. The F.I.R. Was lodged by one Muhammad Asad Ullah, complainant. The formal F.I.R. Exh.P.C./1 was registered on the basis of statement of the complainant wherein he had stated that he was working in Shadiwala as a labourer. However, a day before, he had come to his brother Muhammad Ramzan in village Farooka. Around 10-00 p.m. The complainant, his brother Ramzan and Saleem Ullah were sitting in the house and talking with each other when Ijaz Ahmad accused called out his brother Muhammad Ramzan. The complainant as well as his brother Muhammad Ramzan and Saleem Ullah P. Ws. Came out and saw Ijaz Ahmad accused present there along with two unknown persons. Ijaz Ahmad accused told Muhammad Ramzan that he had some urgent piece of work and asked him to accompany them to the bank of Saim Nala. The complainant and Saleem Ullah P.W. Came back into the house and went to sleep. On the next morning they received an information that Muhammad Ramzan was lying murdered at the Dera of Wali Muhammad Khokhar. They went there and saw Muhammad Ramzan tied on a cot with a rope (Rassa) and had injuries on his forehead and head. The complainant alleged that Ijaz Ahmad accused had killed him along with his two unknown companions.
3. In the F.I.R. It was also stated that Ijaz Ahmad was having illicit relations with the wife of Muhammad Ramzan deceased namely Mst. Nusrat Bibi and Muhammad Ramzan was aggrieved of the same. Hence Ijaz Ahmad accused, etc. In consultation with each other had killed Muhammad Ramzan, in order to remove him from his way.
4. After the investigation, the challan was submitted against the accused persons. Both of them i,e, Ijaz Ahmad and Nazir Ahmad accused were formally charged by the learned Additional Sessions Judge, Sargodha on 29-6-2000 under sections 364, 302 and 34, P.P.C. Both of them pleaded not guilty and the prosecution was thus, asked to produce its evidence.
5. In this case the prosecution has examined as many as 11 P.Ws. Of them P.W.11 is. Akbar Ali, S.-I.
Who on 15-6-1999 was posted at Police Post Farooka of Police Station Tirkhan Wali. On the said date Muhammad Asad Ullah, complainant came to him at the police post and he recorded his statement Exh.P.C. And he sent the same to the police station for registration of the formal F.I.R.
Thereafter he i,e, Akbar Ali, S.-I./Investigating Officer went to the Dera of Wali Muhammad Khokhar in the area of Village Sajoka, where he found the dead body of Muhammad Ramzan, deceased lying on a cot with which it was tied with a rope and was lying in an open place in the said Dera. He prepared the injury statement and inquest report and sent the dead body to the mortuary under the escort of a constable. He inspected the spot and collected the blood-stained earth from there and made it into a sealed parcel vide memo. Exh.P.I. He also took into possession the bloodstained Charpai Exh.P.6 and Rope Exh.P.7. He prepared rough site plan of the place of occurrence Exh.P.K.
And recorded the statements of the P.Ws. Under section 161, Cr.P.C. He took into possession last- worn clothes of the deceased, which were produced before him by the constable after the post- mortem examination. On 27-6-1999, he arrested. Ijaz Ahmad and Nazir Ahmad accused and obtained their physical remand. On 29-6-1'999 Ijaz Ahmad accused led to the recovery of hatchet (P.3) from behind the stack of gunny bags of wheat lying in his Baithak in Farooka and took the same into possession. On 30-6-1999 Nazir Ahmad accused led to the recovery of hatchet Exh.P.4 and Identity Card of the accused from an earthen mound near the Saim Nala in the area of Farooka from the land of Rehmat Ullah Farooka. He took into possession the hatchet Exh.P.4 and the Identity Card Exh.P.5. Of the deceased.
6. P, W,1 is Dr. Aman Ullah, Medical Officer, who on 15-6-1999 had conducted the post-mortem examination on the dead body of Muhammad Ramzan, deceased, and had found as many as four incised wounds on the dead body. In his opinion the death in this case was caused due to haemorrhage which was accumulative effect of injuries Nos.1 to 4 which had destroyed the brain matter, causing intra cranial haemorrhage, shock and cardio pulmonary arrest. According to him the injuries were sufficient to cause death in the ordinary course of nature and all the injuries were ante-mortem and were caused by a sharp-edged weapon. According to him the probable time which elapsed between the injuries and death was about 1/2 hour while between death and postmortem examination was about nine hours. Exh.P.A. Is the copy of postmortem report of the deceased whereas Exh.P.A./1 is the diagram showing the seat of injuries.
7. Admittedly in this case, there is no direct evidence regarding Qatl-i-Amd of the deceased by the accused, but the evidence which is available on record is that of last-seen, Wajtakar, extra-judicial confession, recovery and medical evidence. Regarding the last-seen evidence in this case, the prosecution has examined P.W.6 Muhammad Asad Ullah, who narrated the same story as was mentioned by him in the F.I.R. He also deposed about the motive and about the recovery of hatchets (Exh.P.3 and Exh.P.4) by Ijaz Ahmad and Nazir Ahmad accused respectively. The evidence of Wajtakar is furnished by P.W.9 Muhammad Ramzan son of Haji Ahmad while the evidence regarding extra-judicial confession is furnished by P.W.10 Ramzan son of Fateh Din.
8. On 29-8-2000 the learned Prosecutor tendered in evidence report of Chemical Examiner Exh.P.L.
And on 11-9-2000 he produced report of Serologist as Exh.P.M. And closed the case for the prosecution.
9. On the conclusion of the prosecution evidence the statements of the accused under section 342, Cr.P.C. Were recorded and wherein they denied all the incriminating circumstances. In answer to the question as to why this case against him and why the P.Ws. Had deposed against him, Ijaz Ahmad accused/appellant replied that his brother Hafiz Ghulam Mujtaba made speeches against Kalyar Group and he had also opposed the said group and hence Kalyar Group misled the relatives of the deceased and falsely implicated him in this case. Nazir Ahmad accused/appellant in answer to the same question replied that he had refused to work with Matta P.W. As a servant at his Hammam as he was not paying his dues. Hence the P.Ws. Had made false statements against him. None of the accused/appellant made statement on oath under section 340(2), Cr.P.C. Nor any of them produced any evidence in defence.
10. On the conclusion of trial, the learned trial Court convicted and sentenced the appellants/accused as aforesaid. Aggrieved of the said judgment Ijaz Ahmad accused has filed Criminal Appeal No,1450 of 2000 while Nazir Ahmad accused has filed a separate Appeal (Criminal Appeal No,256-J of 2000) through the Superintendent, District Jail, Sargodha. The complainant filed a Revision Petition (No,851 of 2000) for enhancement of the sentence awarded to the accused persons by the learned trial Court.
11. The learned counsel for the appellant Ijaz Ahmad and Nazir Ahmad accused have argued that it is a case of no evidence as admittedly in this case there is no eye-witness account of the occurrence of Qatl-iAmd of the deceased by the accused; that the learned trial Court had acquitted the appellants of the charge under section 364, P.P.C. On the basis of the same evidence; that the evidence of last-seen furnished by P.W.6 Muhammad Asad Uliah, evidence of Wajtakar furnished by P.W.9 and the evidence of extra-judicial confession furnished by P.W.10 is not sufficient to warrant conviction on the charge under section 302, P.P.C.; that the recovery of hatchets Exh.P.3 and Exh.P.4 on the pointation of ljaz Ahmad and Nazir Ahmad is inconsequential as the weapons of offence were never sent to the Chemical Examiner and the learned trial Court had itself held the recoveries of weapons of offence as inconsequential; that there is no direct evidence regarding the existence of motive in this case; that the medical evidence in this case cannot be taken as a corroborative piece of evidence because in this case there is no ocular account at all and hence there is no question of any corroboration; that the evidence regarding the extra-judicial confession as furnished by P.W.10 is a weak type of evidence and as both the accused had allegedly gone together to P.W.10 to make extra-judicial confession, it could be considered as a joint extra-judicial confession and which is not legally admissible; that the prosecution had miserably failed to prove the charge against any of the accused persons under section 302(b), P.P.C. And as they have been wrongly convicted by the learned trial Court, their conviction be set aside and they be acquitted in this case.
12. On the other hand, the learned counsel for the State and the learned counsel for the complainant have resisted both the appeals on the ground that there is sufficient incriminating evidence on record in this case in the form of the evidence relating to the last-seen and Wajtakar; that the evidence of extra-judicial confession and recoveries coupled with the medical evidence and also the investigation in the course of which the accused/appellants were found to be the actual culprits, fully established the prosecution story. The learned counsel for the complainant has asserted that the sentence awarded to the accused/appellants in this case - by the learned trial Court is not sufficient under the circumstances of the case and hence the same is liable to be enhanced to the major penalty of death under section 302(b), P.P.C. And in this respect the revision petition has been filed by the complainant.
13. I have carefully considered the arguments advanced from both sides. Admittedly there is no eye-witness account of the occurrence in this case. However, P.W.6 Muhammad Asad Ullah, complainant, who is brother of the deceased had himself seen ljaz Ahmad accused while he had called out the deceased from his house and had taken him along. But it is correct that P.W.6 does not name Nazir Ahmad accused/appellant specifically although he made mention of two unknown culprits. Hence to the extent of Ijaz Ahmad accused, there is no reason to brush aside the statement of P.W.6, who is real brother of the deceased and who had no reason to falsely implicate Ijaz Ahmad accused in a case of this nature. P.W.9 Ramzan claimed to have seen both the accused carrying hatchets while they were coming from the Dera of Wali Muhammad and had seen that both of them were upset at that time. P.W.10 Ramzan son of Fateh Din claimed that both the accused had come to him and had made separate extra-judicial confessions before him regarding the Qatl-i-Amd of the deceased and had requested him to arrange compromise with the relatives of Ramzan deceased on payment of handsome amount. Even if it can be said that there is no direct evidence in this case regarding the existence of motive and even if the evidence regarding the recoveries of weapons of offence (Exh.P.3 and Exh.P.4.) is treated as inconsequential, there is no reason to disbelieve the statement of P.W.6 who is the real brother of the deceased and who had seen Ijaz Ahmad accused taking along the deceased. It may be mentioned here that in this case the motive is also attributed to Ijaz Ahmad accused/appellant and who was allegedly having illicit relations with the wife of the deceased and as the deceased was not happy over the same, Ijaz Ahmad accused had obviously the motive to do away with him i,e, the deceased, in order to remove him from his way. Hence in the light of the evidence concerning the last-seen, the evidence of extra-judicial confession coupled with the medical evidence furnished by P.W.1, the charge under section 302(b), P.P.C. Is clearly proved against Ijaz Ahmad accused. Under the peculiar circumstances of the case the learned trial Court had rightly awarded him life imprisonment.
14. So far as Nazir Ahmad, accused/appellant is concerned, admittedly in this .Case the motive is not attributed to him. Besides that, P.W.6 i,e, Asad Ullah complainant does not mention his name specifically as the person who had taken along the deceased. In that context he mentioned the name of Ijaz Ahmad accused and two other unknown culprits. Hence, so far as Nazir Ahmad, accused/appellant is concerned, he is clearly entitled. To the benefit of doubt. Therefore, his conviction by the learned trial Court on the charge under section 302(b), P.P.C. And the sentence awarded to him in this case is liable to be set aside.
15. In view of what has been stated above, conviction of Ijaz Ahmad accused/appellant and sentence awarded to him by the learned trial Court is upheld and the appeal filed by him (Criminal Appeal No,1450 of 2000) is dismissed. He shall however, be given the benefit of section 382-B, Cr.P.C. In case of default in payment of compensation of Rs,20,000 to the legal heirs of the deceased, he will undergo S.I for six months.
16. The appeal filed by Nazir Ahmad, accused/appellant (Criminal Appeal No,256-J of 2000) is however, accepted and his conviction and the sentence awarded to him by the learned trial Court under section 302(b), P.P.C. Is set aside. If not required in connection with an other criminal case, he be set at liberty forthwith.
17. In view of a what has been stated above, Criminal Revision No,851 of 2000 filed by Asad Ullah, complainant, for enhancement of the sentence of the accused has no merit and the same is accordingly dismissed in limine.