' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeals Nos.1304 of 1999, 131-J of 1999 and 591 of 1999 as well as the Murder Reference (M.R.No,351 of 1999), all arising out of the judgment dated 19-5-1999 passed by the learned Additional sessions Judge, Jhang whereby he had convicted and sentenced the appellants as under:-- Mansha Khan: Under section 302 (b)/34, ' Death on two counts for committing Qatl-i-Amd of Musawwar Abbas and Ghulam Ali Khan, deceased. He was also directed to pay compensation amounting .To Rs,50,000 to the legal heirs of both the deceased and in case of default to pay each compensation, to undergo imprisonment for six months.
Abdul Rehman Khan: Under section 302(b)/34, P.P.C.--Death on two counts for committing Qatil-i-Amd of Musawwar Abbas and Mst. Sat Bherai, deceased. He was also directed to pay compensation amounting to Rs,50,000 to the legal heirs of both the deceased and in case of default to pay each compensation, to undergo imprisonment for six months.
Muhammad Iqbal and Muhammad Ameen: ' Life imprisonment for committing Qatil-i-Amd of Musawwar Abbas, deceased. They were directed to pay compensation amounting to Rs,50,000 each to the legal heirs of the deceased and in case of default to pay compensation to undergo imprisonment for six months.
' Vide the same judgment the learned trial Court had acquitted Mst. Nooran and Mattah Khan, accused of the charge by extending to them the benefit of doubt.
2. Aggrieved of their conviction and sentence awarded by the learned trial Court as aforesaid, Mansha Khan and Abdul Rehman Khan accused have filed two separate Jail Appeals (No,130-J/99 and 131-J of 1999) while Muhammad Iqbal and Muhammad Ameen have filed a joint appeal (Crl.
Appeal No,591 of 1999).
3. The case against the accused is based on F.I.R. No,221/96 registered in Police Station, Barrana District Jhang registered under sections 302, 148 and 149, P.P.C. The F.I.R. Exh.P.T was registered on the statement of Ghualm Hur complainant/ P.W.Ll on 26-10-1996 at 5.45 a.m regarding an occurrence which had taken place on the same night around 12-30 after midnight. According to the F.I.R., the complainant is resident of Sardarev wala and is engaged in agriculture. His brother Ghulam Ali Khan (deceased) was cultivating the land of. Hameed Ullah, P.W. As tenant and by erecting a Dhari in his land was residing therein, along.With his family members, In the evening of 25-10-1996, the complainant had come to the Dhari of his brother Ghulam Ali Khan in order to see him and where Mst. Nooran widow of Khan and Rai Hameed Ullah were also present. The complainant as well as Hameed Ullah and also his nephew Musawwar Abbas slept for the night at the cattle shed (of his brother) while his brother Ghulam Ali Khan and his daughter Mst. Sat Bherai and also Mst. Nooran aforesaid slept in the Dhari. Around 12-30 after midnight, the complainant and Hameed Ullah woke up, after hearing a sound and saw in the moon light that Mansha Khan and Abdul Rehman, both armed with pistols and Mattah armed with a rifle.7 MM were strangulating Musawwar Abbas, by putting a rope around his neck. Iqbal was holding the arms of Musawwar Abbas while Muhammad Ameen was holding his legs. The complainant and Hameed Ullah, P.W raised alarm whereupon the accused left. Musawwar Abbas and ran towards the Dhari. The complainant and Hameed Ullah followed them. Within their view, after reaching the Dhari, Mansha Khan, after reaching near the cot of Ghulam Ali Khan fired two shots at him while he was sleeping (on the cot) and the shot so fired by him hit him in his head. Abdul Rehman went near the cot of Mst. Sat Bherai and fired a pistol shot at her (while she was sleeping) and which hit her in the neck towards the right side. The complainant and Hameed Ullah pursued the accuse^ whereupon the accused aforesaid and also Mst. Nooran widow of Khan fled away while firing. The complainant and his companions attended to the injured. However, Mst. Sat Bherai and Ghulam Ali Khan had succumbed to the injuries. Then they tried to attend to Musawwar Abbas in then he cattle shed, but by the had also expired.
4. In the F.I.R. It was also stated that Ghulam Ali Khan had engaged his daughter Mst. Sat Bherai with Mansha Khan accused but had later refused (to give her hand to him) and on which Mst.
Nooran, Mansha Khan and Abdul Rehman were seriously aggrieved and on account of the said grevence Mst. Nooran in consultation with the other accused had got murdered Ghulam Ali Khan , Mst. Sat Bherai and Musawwar Abbas deceased.
5. After investigation the challan was submitted against the accused namely (1) Muhammad Iqbal,
(2) Mansha Khan, (3) Abdul Rehman Khan, (4) Muhammad Ameen, (5) Mst. Nooran and (6) Mattah Khan accused and the case was sent up to the Court of Sessions for trial. The accused were formally charged by the learned Additional Sessions Judge, Jhang on 24-9-1998 and to which they pleaded not guilty and the prosecution was thus asked to produce its evidence,
6. In this case the prosecution has examined as many as 18 P.Ws. Of them, P.W. 18 is Sajjad Ali, S.-I who had recorded the F.I.R. Exh.P.T on the statement of Ghulam Hur, complainant. Thereafter he had proceeded to the place of occurrence and had .Prepared the injury statements and the inquest reports in respect of all the three deceased. He had dispatched the dead bodies to the mortuary under the escort of two Constables and had secured crime empties and blood stained earth from the spot. He had also taken other formal steps in connection with the investigation of the case.
7. P.W.15 Nasrullah Khan, Inspector had also partly investigated the case. However, the investigation was later completed by P.W. 14 Zia Aslam, S.-I./ S.H.O. After the arrest of Mst. Nooran and thereafter he had prepared the report under section 173, Cr.P.C.
8. P.W.4 Dr. Liaquat Ali had conducted the post-mortem examination on the dead body of Musawwar Abbas and Ghulam Ali, deceased on 27-10-1996. The post- mortem reports prepared by him are Exh.P.H and Exh.P.L while Exh. P.H/1 and Exh.P.L/1 are sketches .Of injuries.
9. P.W. '10 is Fida Hussain, Dispenser of T.H.Q Hospital Chiniot. He proved the post-mortem report Exh.
P.S and also the sketch of injures Exh. P.S/1 which had been prepared by Lady Doctor Omat-ul- Raqeeb after post-mortem examination of Mst. Sat Bherai, deceased on 27-10-1996.
10. In this case the prosecution has examined P.W. 11 Ghulam Hur, complainant and P.W. 12 Hameed Ullah to prove the ocular account of the occurrence and who deposed on the same lines as indicated in the F.I.R. Both of them also deposed about the motive for the occurrence. The reports of the Chemical Examiner were produced in the prosecution evidence as Exh.P.W and Exh.P.X while the reports of Serologist were produced as Exh P.Y and Exh.P.Z.
11. On the conclusion of the prosecution evidence, the statements of the accused were recorded under section 342 Cr.P.C and wherein they denied all the incriminating circumstances. None of the accused made statement on oath under section 340(2), Cr.P.C nor any of them except Muhamipad Iqbal produced any evidence in defence. Muhammad Iqbal accused tendered in his defence evidence certified copy of F.I.R. No,53/92 as Exh.D.F, certified copy of F.I.R. No,32/92 as Exh.D.G, certified copy of the statement of Rehman son of Mamma as. Exh. D.H, certified copy of the report under section 173, Cr.P.C as Exh.D.I and closed his defence evidence.
12. On the conclusion of the trial, the learned Trial Court convicted and sentenced the appellants as aforesaid whereas their two co-accused namely Mst. Nooran and Mattah Khan were acquitted.
Aggrieved of their conviction and sentence, the appellants have filed the above-mentioned three appeals. The learned trial Court has also sent a reference for the confirmation of sentence of death awarded to Mansha Khan and Abdul Rehman Khan, accused/ appellants.
13. The learned counsel for the appellants in support of this appeal submits that the occurrence took place in the dark hours of the night; that non source of light had been mentioned in the F.I.R.; that both the eye-witnesses are closely related to the deceased; that Ghulam Hur, complainant (P.
W. 11) is the real brother of Ghulam Ali Khan , deceased while Hameed Ullah, P.W. 12 was owner of the land which was being cultivated by Ghulam Ali Khan, aforesaid; that both the aforesaid witnesses are chance witnesses and are not residents of the place of occurrence; that before the learned trial Court both the eye-witnesses did not give any reason for their presence at the spot on the day of occurrence; that Mst. Shamim, who is wife of Ghulam Ali Khan deceased and mother of Musawwar Abbas and Mst. Sat Bherai, deceased, was neither cited nor produced by the prosecution as a P.W, though it was admitted by Ghulam Hur that she was present at the time of occurrence. The learned counsel submits that the murder of Ghulam Ali Khan and Mst. Sat Bherai took place in a room while according to the site plan the eye-witnesses were present outside the said room from were they could not have witnessed t}ie occurrence; that no place has been shown in the site plan from where the appellants tired at the deceased; that both Ghulam Ali Khan and Mst. Sat Bherai were murdered in different rooms. The learned counsel submits that Ghulam Ali Khan, deceased received two injuries and unlike injury No,l injury No,2 did not have blackening. So the ocular account does not find support from the medical evidence; that it is a case wherein post-mortem had been got conducted with inordinate delay; that occurrence took place on 26-10- 1996 at 12-30 a.m, whereas the matter was reported to the Police on 26-10-1996 "at 5-45 a.m, while the post-mortem examination had been conducted on 27-10-1996; that it was an unseen occurrence and the F.I.R. Was recorded after due deliberation had consultation, after the post- mortem examination had been conducted; that Mansha Khan and Abdul Rehman Khan, appellants are real brothers inter se and Mst. Nooran, the acquitted accused, is their mother while Muhammad Iqbal Muhammad Ameen and Mattah Khan had got no relationship with the aforesaid three accused and they had no common motive to join hands with them; that Mansha Khan, Abdul Rehman Khan And Mst. Nooran , mentioned above, were residents of a place about 30 to 40 miles away from the place of occurrence; that the crime empties recovered from the spot were not sent for comparison to Fire Arms Expert, although recovery of fire aims was allegedly effected from Mansha Khan and Abdul Rehman Khan; and that the prosecution had failed to prove its case against the appellants and they are thus entitled to be acquitted.
14. The learned counsel for the State submits that it is a case of triple murder; that the prosecution proved the motive against the appellants through P.W. 11 and P.W. 12; that the ocular - account is corroborated by the medical evidence; and that the recovery of fire arms and crime empties had been effected; that the learned trial Court has delivered a well-reasoned judgment and therefore there is no justification for interference.
15. We have heard the learned counsel for the appellants. The occurrence, according to the prosecution case, had taken place in the village Sardarey wala on 26-10-1996 at 12-30 midnight (a.m). The distance of the police station from the place of occurrence was 12 k.m. The matter was reported at the police station, according to the prosecution story, on 26-10-1996 at 5-45 a.m. Two eye-witnesses were produced by the prosecution namely Ghulam Hur, the real brother of the deceased, and Hameed Ullah, the owner of the land where the occurrence had taken place, while Ghulam Ali Khan, deceased was his tenant. Ghulam Hur complainant was resident of village Keran, which is at a distance of 30 miles from the place of occurrence. Hameed Ullah P.W. Was residing at a distance of 2/3 miles from the place of occurrence. Ghulam Hur and Hameed Ullah, were both not residents of the place of occurrence. It is important to note here that the post-mortem examination was conducted by Dr.Liaquat Ali, P.W.4 on the dead body of Ghulam Ali Khan and Musawwar Abbas on 27-10-1996. The probable duration as given by the Doctor between death and post-mortem examination was 24 hours to 48 hours which does not fit in with the time of occurrence because if that is kept in view, the occurrence could have taken place in between the morning hours of 26-10-1996 i.e, 10-30 a.m. To 27-10-1996. In fact it does not fit in with the actual time of the occurrence. Had the F.I.R. Been registered at the police station, the number of the F.I.R.
Must have been mentioned by the I.O. In the inquest report. In column No,3 of the inquest report, no time of occurrence had been mentioned. Dr. Liaquat Ali deposed that he had conducted the postmortem examination as soon as he had received the dead bodies.
16. We are of the opinion that the F.I.R. Was recorded after due deliberation and consultation by calling the complainant Ghulam Hur from his village Keran. No source of light had been mentioned in the First Information Report. The occurrence had taken place in the dark hours of the night, so the identity of the assailants is also in doubt. According to the police investigation, three crime empties were taken into possession through different recovery memos; two were collected from near the dead body of Ghulam Ali Khan, deceased and one from near the dead body of Mst. Sat Bherai. It is also a case of the prosecution that from both Mansha Khan and Abdul Rehman Khan, accused, pistols were got recovered. If this was the postion, then what was the hindrance in the way of the 1.0 to have sent both the pistols and crime empties to the Fire Arms Expert for comparison. This fact also creates doubt in the prosecution story. Mattah Khan, the acquitted accused, Muhammad Iqbal, Muhammad Ameen had no relationship with Mansha Khan and Abdul Rehman Khan accused/appellants. They had no common motive to join hands with Mansha Khan. The only allegation against Muhammad Iqbal and Muhammad Ameen was that they . Had caught hold of Musawwar Abbas from his hands and legs. According to the injuries of Ghulam Ali Khan, injury No, l had slight blackening while injury No,2 had no blackening. The story of first informant was that the shot was fired by Mansha Khan from near the cot of Ghulam Ali Khan, deceased. There is variation in the ocular account and the medical evidence. According to the prosecution story, Musawwar Abbas was killed by putting a rope around his neck, but there also exists injury No,2 on the dead body of Musawwar Abbas deceased, as recorded by the Doctor. Injury No,2 has not been explained by the eye-witnesses during the trial.
17. After having heard the learned counsel for the parties, we are of the opinion that the case of the prosecution is of too much doubt in nature. So while' granting benefit of doubt to the accused, all the three appeals are accepted, conviction recorded and sentences awarded to the appellants by the learned trial Court are set aside. The appellants are behind the bars. They shall be released forthwith, if not required to be detained in any other criminal case.
18. The death sentences of Mansha Khan and Abdul Rehman Khan accused/appellants are not confirmed. Murder reference is replied in the negative.