Mazhar Hussain Minhas, J.--Zulfigar son of Ghulam Hussain, Haji Muhammad Ramzan son of Noor Muhammad and Abdur Rashid son of Imam Bukhsh, were tried by Mr. Nasrullah Ranjha, learned Additional Sessions Judge, Mailsi in case F.I.R. No, 34, dated 12.02.1993, under Sections 302/337- F(iii)/337-F(iv)/34 P.P.C., registered with Police Station Mitru, district Vehari, for committing Qatl-i- Amd of Muhammad Arif deceased and for causing injuries to Muhammad Bashir. Vide judgment dated 30.06.2001 the learned trial Court convicted and sentenced the appellant and his co- accused as under:--
(i) Zulfiqar under Section 302(b) PPC to death with compensation of Rs,2,00,000/- to be paid to the legal heirs of deceased or in default thereof to further undergo five years R.I.
(ii)Abdul Rashid under Section 337-F(iii) PPC to three years R.I. alongwith compensation of Rs, 5000/- to be paid to Bashir Ahmed injured or in default thereof to further undergo three months.
Benefit of section 382-B Cr.P.C. was, however, extended to him. The learned trial Court acquitted Haji Muhammad Ramzan by giving him benefit of doubt.
2. Murder Reference No, 479 of 2001 seeking confirmation or otherwise of death sentence awarded to Zulkar-appellant has also been sent to this Court. The appellant has approached this Court by filing Criminal Appeal No, 474 of 2001 against his conviction and sentence passed by the learned trial Court. Both these matters are being disposed of together through this single judgment.
3. Precisely the facts of this case are that on 11.02.1993 at about 2.00 p.m. Muhammad Bukhsh- complainant alongwith his brother Allah Ditta was present in his house, when they heard some alarm near the house of Muhammad Nawaz Baloch. Thereupon, they came out of their house and found Zulfiqar-appellant armed with hatchet and his co-accused Muhammad Rashid also convicted armed with Churri, Ghulam Mustafa (since dead) and Haji Muhammad Ramzan (since acquitted) both empty-handed, hurling abuses to Muhammad Arif deceased and Muhammad Bashir, sons of the complainant. Within their view, Ghulam Mustafa (since dead) held Muhammad Arif deceased in his clasp and raised lalkara to his co-accused to teach him a lesson for not giving him hand of his sister. The appellant inflicted hatchet blow to Muhammad Arif, which landed on left side of his head. On receiving the hatchet blow, Muhammad Arif deceased fell down on the ground and received an injury on left side of his face. Co-accused Haji Muhammad Ramzan held Muhammad Bashir in his clasp and Muhammad Rashid inflicted injuries with Churri on his right hand and arm. The accused extended threats to the PWs that they would also not be spared due to which they could not intervene. Besides the complainant (P.W.6) and Allah Ditta (P.W.8), occurrence was witnessed by Abdul Shakoor son of Muhammad Ibrahim (P.W.9) also. After the occurrence, the accused decamped from the spot alongwith their weapons hurling abuses. Both the injured were shifted to Civil Hospital, Mailsi where they were admitted and medically examined.
Muhammad Arif was unconscious and his condition further deteriorated due to which at about mid-night, he was referred to Nishtar Hospital, Mikan where he expired at about 4.00 a.m., on the following morning.
Motive for the occurrence was that about 4/5 months before accused Ghulam Mustafa (since dead) abducted complainant's daughter Mst. Bashiran Bibi, who was restored through a punchait.
Ghulam Mustafa accused wanted to marry her, but the complainant and his sons declined to his proposal and married Mst. Bashiran Bibi with Muhammad Ashraf, maternal nephew of the complainant. Despite her marriage, Ghulam Mustafa did not refrain from his immoral activities due to which relations between the parties were strained. On account of that grudge, the accused attacked Muhammad Arif deceased and Muhammad Bashir, who were returning to their house after doing labour. After the death of Muhammad Arif deceased, Muhammad Bukhsh-complainant visited Police Station Mitru, district Vehari and lodged FIR (Exh. PG).
4. After registration of case, necessary investigation was conducted and all the accused were challaned to face trial. Formal charge was framed against the accused under Sections 302/337- F(iii)/337F(iv)/34 PPC to which they pleaded not guilty and claimed their trial.
5. In order to prove its case, the prosecution examined as many as twelve witnesses and tendered in evidence report of Chemical Examiner (Exh. PM) and that of Serologist (Exh. PN) pertaining to weapons of offence i,e, hatchet and Churri.
Muhammad Jamil 171/C2 (P.W.1) took the parcels of blood-stained hatchet and Churri to the office of Chemical Examiner, Lahore and delivered there intact.
Muhammad Ismail, ASI (P.W.2) escorted the dead body of Muhammad Arif deceased from Nishtar Hospital, Multan to Civil Hospital, Mailsi and after autopsy received blood-stained clothes of the deceased from doctor and handed over the same to the investigating officer.
Dr. Muhammad Yousaf _(P.W.3) medically examined Muhammad Bashir and Muhammad Arif vide medico-legal certificates (Exh.PA) and (Exh.PB), respectively. Following injuries were found on the person of Muhammad Bashir injured:--
(i) Incised wound 3 cm x 1/4 cm on the inner and middle part of the right forearm.
(ii) Incised wound 1 cm x 1 cm on the anterior and middle part of the right ring finger.
(iii)Incised wound 3 cm x 1/2 cm bone deep on the anterior and middle part of the right little finger.
All the injuries were declared to have been caused by sharp-edged weapon within the duration of three hours.
Following injuries were found on the person of Muhammad Arif deceased:--
(i) Incised wound 10 cm x 2 cm bone deep on the left of skull, 10 cm above the left car.
(ii) Bruise with abrasion 10 cm x 2 cm on the right chest.
According to the doctor, Injury No, 1 was caused by sharp-edged weapon while Injury No, 2 was caused by blunt weapon within the duration of three hours.
Dr. Abdul Ghafoor Langah (P.W.4) conducted postmortem on the dead body of Muhammad Arif deceased vide postmortem report (Exh.PC). Following injuries were noted on the person of the deceased:--
(i) A stitched wound 10 cm on the left side of skull. 10 cm above the left ear. Under-lying bone was also fractured and miningies and brain matter was damaged. A blood clot was also found.
Doctor opined that the death occurred due to injury to brain, which was ante-mortem and was sufficient to cause death in the ordinary course of nature. Probable duration between injury and death was 12 to 16 hours and between death and postmortem was within 12 hours.
Muhammad Aslam Khan, Draftsman (P.W.5) is also formal witness, who prepared the site-plan (Exh.PF) on the pointation of PWs. Muhammad Bukhsh-complainant (P.W.6), Muhammad Bashir injured (P.W.7), Allah Ditta (P.W.8) and Abdul Shakoor (P.W.9) are eyewitnesses of the occurrence. Allah Ditta (P.W.8) is attesting witness of recoveries of hatchet (P.1) and Churri (P.2) recovered from the appellant and co- accused Muhammad Rashid, respectively. Muhammad Rashid, Inspector/SHO (P.W.10) after necessary investigation submitted challan against the accused. Muhammad Sharif (P.W. 11) identified the dead body of Muhammad Arif deceased at the time of postmortem examination. Muhammad Afzal 736/HC (P.W.12) kept parcels of bloodstained Churri and hatchet in the Malkhana in his safe custody and dispatched the same to the office of Chemical Examiner through Muhammad Jamil No, 171/C.
6. After recording the prosecution evidence, all the accused, except Ghulam Mustafa who died during the trial, were examined under Section 342 Cr.P.C. whereby they denied the manner of occurrence alleged by the prosecution and pleaded their innocence. The appellant admitted abduction of Mst. Bashiran Bibi, daughter of the complainant, by co-accused Ghulam Mustafa (since dead) and her restoration through a punchait. According to him, the complainant party was highly enraged due to the incident of abduction, they fore they intended to take revenge of their insult and humiliation from him as Ghulam Mustafa had gone to Karachi. On the clay of occurrence, Rab Nawaz visited his house in his search but he was not found there. On getting clue that he was away to Dokota, Muhammad Arif deceased, Bashir Ahmed, Abdul Shakoor and Rab Nawaz went to Adda Chak No, 211/WB and waited for his return while sitting in the shop of Zahoor Hussain. When the bus reached there, the complainant party tried to get him down from the roof of bus where he was sitting alongwith Allah Ditta, but they could not succeed due to intervention of Ali Muhammad Gujar and Lal Shah, Adda Incharge. He went away to his house on the same Bus. After reaching his Colony, he 'went to the house of his maternal uncle Muhammad Ramzan accused to inform him about the incident which took place at Adda 211/WB, but latter's house was locked, therefore he proceeded back to his own house. Muhammad Arif deceased armed with an iron cycle lock and pistol, Bashir Ahmed PW armed with Chum and Rab Nawaz armed with stick were chased him and intercepted in front of the house of accused Abdul Rashid. To save his life, he rushed to the house of Abdul Rashid, but the complainant party caught hold of him and tried to abduct to commit his murder. Allah Ditta son of Allah Wasaya, Abdul Rashid accused and some other neighbourers intervened. Bashir tried to inflict him Churri blow, but Abdul Rashid accused caught hold of Churri. Meanwhile, his wife Mst. Tasleem Mai reached there with a hatchet and to save his life caused a blow to Muhammad Arif. Abdul Rashid and Haji Muhammad Ramzan adopted the statement of appellant with regard to the detail of occurrence. The appellant as well as Abdul Rashid denied the recoveries of weapons on their pointation. Statements on Oath under Section 340 (2) Cr.P.C. have not been got recorded by the accused, however defence evidence comprising Lal Shah (D.W.1) and Allah Dewaya (D.W.2) has been adduced. Allah Ditta son of Allah Wasaya and Yar Muhammad son of Muhammad Shaista Khan have also been examined as C.W. 1 and C.W.2.
7. The learned trial Court after hearing the arguments of parties and going through the evidence on record convicted and sentenced the appellant and Abdul Rashid as above, while accused Haji Muhammad Ramzan was acquitted. Hence, the above Murder Reference and Appeal.
8. We have heard learned counsel for the appellant, learned Deputy Prosecutor General representing the State and learned counsel for the complainant at length and have gone through the record with their assistance.
9. At the very outset, we have noticed that there is a delay of seventeen hours in lodging the FIR for which no plausible explanation has been advanced by the complainant. Occurrence took place at 2.00 p.m. and both the injured, namely, Muhammad Arif deceased and Muhammad Bashir were shifted to Civil Hospital, Mailsi where they were medically examined by Dr. Muhammad Yousaf (P.W.3) at 4.00 p.m. At about mid-night, in view of his precarious condition, Muhammad Arif was shifted to Nishtar Hospital, Multan where he died at about 4.00 a.m. Till the death of Muhammad Arif no effort was made for registration of case by the complainant or any other person of his .family. It has been argued by learned counsel for the complainant that the complainant remained busy in attending Muhammad Arif, who was in dangerous condition, therefore he could not lodge the report. We are not persuaded by the argument of learned counsel for the reason that the complainant's brother Allah Ditta (P.W.8) and Abdul Shakoor (P.W.9), who have been cited as eye- witnesses, could go and lodge the report in the Police Station. Police could be informed even on telephone. The above delay in lodging the FIR, therefore is of great significance and reflects upon the prosecution case.
10.As regards motive for the occurrence, it has been alleged that 4/5 months prior to the occurrence, Mst. Bashiran Bibi, daughter of the complainant, was abducted by co-accused Ghulam Mustafa (since dead). However, she was returned through a punchait. Ghulam Mustafa accused wanted to marry her, but the complainant party did not agree and she was married with Muhammad Ashraf, maternal nephew of the complainant. Even after her marriage, Ghulam Mustafa accused did not desist from his nefarious designs due to which relations of both the parties were strained. On account of above grudge, the accused launched attack upon Muhammad Arif deceased and Muhammad Bashir injured, who were returning to their house from their job. We are unable to believe that the accused who abducted Mst. Bashiran Bibi and humiliated her family, still nourished grudge against her brothers and were after their lives simply for the reason that she was not married with Ghulam Mustafa. Logically speaking, the complainant party should have malice and grudge against the accused, who had disgraced them by abducting their girl. As against the story of motive advanced by the complainant, the appellant's version seems more plausible. In statement under Section 342 Cr.P.C., he has got recorded that due to abduction of Mst. Bashiran Bibi by Ghulam Mustafa (since dead) the complainant and his other family members were highly enraged and were being taunted by their relatives for not taking the revenge. Therefore, they were hostile and inimical towards their family.
11.Now we advert to the ocular evidence furnished by Muhammad Bukhsh-complainant (P.W.6), Muhammad Bashir injured (P.W.7), Allah Ditta (P.W.8) and Abdul Shakoor (P.W.9). According to Muhammad Bukhsh-complainant (P.W.6) and Allah Ditta (P.W.8), they were present in their house when they heard some commotion in front of the house of Muhammad Nawaz Baloch upon which they came out of their house and found appellant armed with hatchet and co-accused Muhammad Rashid armed with Churri, Ghulam Mustafa and Haji Muhammad Ramzan empty- handed hurling abuses to Muhammad Arif and Muhammad Bashir. Within their view, the appellant gave hatchet blow to Muhammad Arif which landed on his head. Co-accused Muhammad Ramzan held Muhammad Bashir in Japha and Muhammad Rashid inflicted him Churri blow hitting on his right arm and left hand. Muhammad Bashir (P.W.7) and Abdul Shakoor (P.W.9) also gave similar narration of the occurrence. It may be mentioned that Muhammad Bashir (P.W.7) is son and Allah Ditta (P.W.8) is real brother of Muhammad Bukhsh-complainant (P.W.6) while Abdul Shakoor (P.W.9) is teacher of Muhammad Arif deceased in profession. As such, they all are interested witnesses. We are cognizant of the legal position that evidence of a witness cannot be discarded merely on the basis of his relationship with the deceased unless it is proved that he is inimically disposed against the accused and has motive to falsely depose against him. As mentioned above, Muhammad Bukhsh (P.W.6) and Allah Ditta (P.W.8) are having enmity with the accused on account of abduction of their girl. In this background, their evidence cannot be accepted without any strong corroboration on the file, which is lacking in this case.
The appellant has taken the defence plea that on the day of occurrence, he was returning to his house from Dokota and was sitting on the roof of a bus alongwith Allah Ditta Kumhar. In his absence, Rab Nawaz, brother of the deceased, checked him up from his house.On coming to know that he was away to Dokota, he alongwith PWs Bashir Ahmed, Abdul Shakoor and Muhammad Arif deceased waited for his -return at the shop of Zahoor Hussain at Adda Chak No, 211/WB. When bus reached there, they tried to get him down from it, but he was rescued by All Muhammad Gujar and Lal Shah Adda Incharge. According to the appellant, he proceeded to his house in Colony Adda 211/WB and went to the house of his maternal uncle Muhammad Ramzan accused to apprise him about the incident. The house of said accused was locked upon which he proceeded to his own house, but was intercepted by Muhammad Arif deceased, Muhammad Bashir (P.W.7) and Rab Nawaz armed with deadly weapons. He rushed towards the house of Abdul Rashid accused, but was caught hold of by them with intent to abduct him for committing his murder. However, they could not succeed in their object due to intervention of Allah Ditta son of Allah Wasaya, Abdul Rashid accused and other persons of the locality. Muhammad Bashir (P.W.7) tried to cause him a Churri blow but accused Muhammad Rashid tried to snatch Churn from him. In the meantime, his wife Mst. Tasleem Mai reached there with hatchet and inflicted hatchet blow on the head of Muhammad Arif deceased. In support of his version, the appellant has examined Lal Shah (D.W.1), resident of Adda Chak No, 211/WB, who rescued him from the complainant party. Said DW is quite independent, natural and disinterested witness and has fully supported the above defence version of the appellant. The version of the appellant has been verified during investigation also. Yar.
Muhammad, Inspector (C.W.1) has, deposed that during investigation conducted by him it was found that the complainant party was aggressor. He has endorsed the appellant's stance regarding earlier incident of his attempted abduction at Adda Chak No, 211/WB.
Another fact which supports the appellant's defence plea is that his wife Mst. Tasleem Mai was also challaned by the police and was subsequently acquitted during the trial under Section 265-K Cr.P.C. Yar Muhammad, Investigating Officer (C.W.2) has also admitted in cross-examination that the appellant was empty-handed and he snatched hatchet from his wife and inflicted a blow to Muhammad Arif deceased on his head. While putting the appellant's version in juxtaposition with the prosecution story, we are convinced that the occurrence took place in the manner as F narrated by the appellant in his statement under Section 342 Cr.P.C., except that he himself indicted injury to the deceased getting hatchet from his wife. The prosecution version does not ring true from another angle also. If the appellant and his co-accused Abdul Rashid were armed with deadly weapons and were thirsty of blood of complainant's sons, there was nothing to stop them from causing repeated blows to Muhammad Arif deceased and Muhammad Bashir. As per medical evidence, Muhammad Arif deceased suffered only one injury while Muhammad Bashir (P.W.7) suffered three injuries of minor nature on his right hand and arm. It appears that apprehending danger to his life, the appellant took hatchet from his wife and inflicted a blow to Muhammad Arif deceased in his self-defence. Similarly Muhammad Bashir (P.W.7) sustained- injuries on his hand and arm during the process of grappling with co-convict Abdul Rashid, who intervened to save the life of appellant.
12. In view of the above, we hold that the prosecution has failed to prove its case and bring home the guilt to the accused beyond shadow of doubt. Therefore, we allow the appeal, set aside the appellant's conviction and acquit him from the charge. He is ordered to be released forthwith if not legally required in any other case.
13.Death sentence awarded to the appellant by the learned trial Court is NOT confirmed and Murder Reference is answered in the negative.