All the three matters are inter connected and arise out of judgment dated 23.05.1996 passed by the learned Additional Sessions Judge, Sahiwal in case FIR No, 73/94 dated 03.05.1994 Police Station, Shah Kot District Sahiwal under Sections 302/148/149, PPC so are being taken up together.
2. The appellant along with five others faced the trial for commission of "Qatl-i-Amd" of Mst. Sakina Bibi and Zahoor Ahmad. They were charged under Sections 302/148/149, PPC. After conclusion of the trial, the learned trial Court convicted the appellant under Section 302-B, PPC and sentenced him to imprisonment for life for causing 'Qatl-i-Amd' of Mst Sakina Bibi, whereas his co-convict Hakam Ali was convicted under Section 302-B, PPC and sentenced to imprisonment for life for causing Qatl-i-Amd' of Zahoor Ahmad @ Zahoori. Hakam Ali died during the pendency of his appeal and the same was disposed of as having become infructuous. The complainant has filed Crl. Rev. No, 2021998 seeking enhancement of the sentence awarded to the appellant and his co- convict Hakam Ali (since dead). He has also filed Crl. A. No, 18096 against acquittal of Falak Sher, Dosat Muhammad, Bashir Ahmad and Muhammad Yousaf. All these matters are interconnected and interlinked and as such are being disposed of through this single judgment.
3. The facts in brief as set forth in the FIR Ex.PF recorded on the statement of Bahawal Sher son of Noor Muhammad Caste Bhatti ,R/0 Chak No, 28/14-L are that his brother Zahoor Ahmad had enticed Mst. Sakina Bibi daughter of Fazil Caste Kanjan RIO Chak No, 96 Police Station Mamoo Kanjan due to his relations with her and one daughter out of the wedlock was born, who was alive.
His brother due to fear and enmity with the people of the area did not use to sleep in his house. On the night between 2/3.05.1994, he was sleeping on a cot along with Mst. Sakina Bibi and one year old daughter in the Dera of Mutal son of Bakha Caste Baloch resident of the same village. At about 4.00 a.xn, the complainant left his house to ease himself. In the light of electricity, he saw that Alam Sher appellant armed with hatchet along with Hakam Ali (since dead during the pendency of his appeal) armed with "Toka", Falak Sher armed with "sota", Dosat Muhammad armed with hatchet.
Bashir Ahmad armed with hatchet and Muhammad Yousaf armed with Rifle .7-MM residents of the same village were present in the Courtyard and in their sight Hakam Ali gave blow with "Toka" on the neck of Zahoor Ahmad. Alam Sher appellant gave blow with hatch, which hit Mst. Sakina Bibi above her neck near the ear. Mst. Sakina Bibi moved her hands and Dosat Muhammad gave blow with hatchet on her hands. Falak Sher son of Lal has caught Zahoor Ahmad from his arms. On his alarm, his brother Manak son of Noor Muhammad and Haq Nawaz son of Muhammand Caste Bhatti residents of the same village, who were also going to ease themselves towards the fields arrived there, while running and before their sight Bashir Ahmad gave a blow with hatchet on face of Mst. Sakina Bibi. The complainant and Haq Nawaz tried to proceed further but Muhammad Yousaf @ Sehra extended threats and asked them not to come near them so they did not proceed further. The accused persons left the place of occurrence after being sure regarding death of both the deceased persons. The motive was stated to be a dispute over land with Ahmad son of Sher, in which Nazir Ahmad was murdered and the case was registered against the complainant, Zahoor Ahmad and his two brothers but they were acquitted so the appellant and others have caused Qatl-i-Amd' of Zahoor Ahmad and Mst. Sakina Bibi.
4. The prosecution examined nine witnesses in support of its allegation. The ocular account furnished by Bahawal Sher PW-7 and Haq Nawaz PW-8. PW-7 has almost reiterated the contents of the FIR Ex.PF and stated that it was read over to him and he affixed his thumb impression in token of its correctness. It is added that in 1990 Nazir Ahmad, brother of Bashir Ahmad (since acquitted) was murdered and the case was registered against Zahoor Ahmad deceased, Bahawal Sher complainant and Haq Nawaz PW & others but they were acquitted. Haq Nawaz PW-8 stated that about 14 months back at about 4.00 a.m, he and Manak were following Bahawal Sher PW, who was proceeding to answer the call of nature but when they arrived near the Dera of Mutal Baloch, they heard report of alarm raised by Bahawal. Sher PW-7. The electric light was on. They saw that Zahoor Ahmad, deceased and his wife Mst Sakina Bibi were lying on the cost of the said Dera, whereas Dosat Muhammad and Bashir Ahmad armed with hatchets, Haq Nawaz armed with "Toka" and Falak Sher armed with 'sots.' were present there. Falak Sher caught Zahoor Ahmad from his arms and Haq Nawaz gave "Toka" blow on right side of his neck. Alam Sher accused gave a hatchet blow on neck of Mst. Sakina Bibi. Mst. Sakina Bibi raised alarm and on this Muhammad Ali gave a blow on her hands. Bashir Ahmad gave a blow on her nose. Muhammad Yousaf @ Sehra gave threats of dire consequences so they did not proceed further. They raised alarm and persons of the different "Bahnies" were attracted there. The accused persons fled away towards North along with their weapons. Mst Sakina Bibi and Zahoor Ahmad died at the spot. He also supported the prosecution version regarding motive.
5. The medical evidence was adduced by Dr. Muhammad Saeed Iqbal, who stated that he conducted the post-mortem examination of Zahoor Ahmad and Mst. Sakina Bibi on 03.05.1994. He has proved the post-mortem reports Ex.PD and Ex.PE. He also proved the pictorial diagrams Ex.PE/1 and Ex.PE/2, injury statement Ex.PE/3 and inquest report Ex.PE/4. Muhammad Saeed Akhtar, Draftsman has proved the site-plans with scale Ex.PC and Ex.PC/1. The investigation of the case was conducted by Inspector Muhammad Anwar PW-9, who stated that on 03.05.1994 at about 6.00 am, the complainant appeared before him and on his statement, he recorded formal FIR Ex.PF. He inspected the place of occurrence and secured the dead body. He drafted the injury statement and inquest report Ex.PD/2 and Ex.PD/3 respectively. He also drafted the injury statement and inquest report of Mst. Sakina Bibi Ex.PD/3 and Ex.PD/4 respectively and dispatched the dead bodies to mortuary for post-mortem examination. It is further stated that he collected the blood-stained earth and controverted the same into sealed parcels and secured it vide memos Ex.PG and Ex.PH.
He also secured blood-stained cot P6, blood-stained mattress P-7, blood-stained pillow P-8 and blood-stained bedsheet P.9 vide memo Ex.PJ. It is stated that the red note on Ex.PC and Ex.PC/1 are in his hand. It is added that Alam Sher appellant was arrested on 24.05.1994 and recovery he led to recovery of blood stained hatchet Ex.P6 from the residential Dera in Chak No, 28/14-L, which was made into a sealed parcel and taken into possession vide Ex.PC/2.
6. The appellant and other accused persons denied the correctness of the prosecution allegation and truthfulness of the witnesses produced by it. It was contended that PWs are closely related to deceased Zahoor Ahmad and the complainant and they have deposed falsely due to previous enmity although none of them was present at the time of occurrence. They further added that it was a blind murder, which took place in the darkness of midnight and the complainant party attained knowledge about it early in the morning. They, however opted neither to appear as witnesses under Section 340(2), Cr.P.C. nor to produce defence evidence.
7. After conclusion of the trial, the learned trial Court proceeded on to convict the appellant and, his co-convict Hakam Ali (since dead) as mentioned above, whereas the remaining accused persons, respondents in Crl. A.No, 180-96 were acquitted.
8. The learned counsel for the appellant has contended that he was convicted for murder of Mst.
Sakina Bibi only, whose heirs namely Rab Nawaz real brother and Mst. Sukhan Bibi real mother had submitted applications that he has wrongly been implicated and they have given up 'their rights of Qisas and Diyat so the conviction and sentence are not sustainable; that PWs are inimical towards the appellant and his co-accused persons and are also closely related to the deceased so they are interested witnesses and as such their evidence cannot be relied upon; that admittedly moon was not visible and there was no source of light so in the darkness of the night at about 4.00 a.m, the PWs could have not identified the actual culprits, even if they were present at the time of occurrence; that PWs are living at a far flung place from the place of occurrence and their presence at the place of occurrence at 4.00 a.m cannot be believed; that admittedly PW-7 and PW-8 had enmity of same degree with the accused persons so had they been present at the place of occurrence, there was no reason for the accused to leave them alive and as such their presence at the time of occurrence is highly doubtful.
9. The learned DPG has vehemently opposed the appeal. It is contended that it is a promptly lodged FIR, in which the appellant and his co-accused persons including Hakam Ali (since dead) were nominated with specific roles; that the prosecution evidence is confidence inspiring as PWs have given plausible explanation of their presence at the time and place of occurrence; that the learned trial Court was very lenient in awarding imprisonment of life only although the appellant deserves capital punishment as he brutally murdered Mst. Sakina Bibi and shared common intention with Hakam Ali in commission of "Qatl-i-Amd" of Zahoor Ahmad @ Zahoori.
10. The occurrence took place at about 4.00 a.m. The place of occurrence is admittedly at the distance of 05 squares from the Abadi of Chak No, 28/14-L. Both PW-7 and PW-8 live in Chak No, 28/14-L. It is true that usually in our villages, the inhabitants go .to the fields to ease themselves in the early hours of the day but there is no reason given as to why they had traveled the distance of 05-squares (9/10 squares according to defence version) for this purpose. Usually the inhabitants ease themselves in the fields adjacent to the `Abadi Deh' so the presence of PWs at the place of occurrence bears a big question mark as admittedly neither the complainant nor Haq Nawaz was attacked by the accused persons, who were fully armed and who had the same degree of enmity with these persons also. Had they been present there with empty hands as contended by them, the appellant and other accused persons would have not left them alive to enable them to appear as witnesses. It is true that evidence of inimical persons or relatives of the deceased cannot be ignored for the above mentioned reason alone but at the same time the statements of such witnesses must be scrutinized with great care and caution. The deceased and both these PWs had faced the trial for murder of Nazir Ahmad and causing injury to father of the appellant. Had the above mentioned reasons been the motive for the occurrence, the appellant and his co-accused persons had not left these two witnesses escort free. Statedly, 70 persons from the surrounding 'Bahnies' had arrived there but none of them has come forward to support the prosecution version.
The mother and real brother of deceased Mst. Sakina Bibi had submitted the applications along with affidavits that the appellant is not responsible of her Qatl-i-Amd'. Had he been involved in this case, they would have not submitted the affidavits. It is true that these applications were not processed by the learned trial Court in accordance with law but at the same time these cast doubt regarding involvement of the appellant in commission of murder of the deceased. The deceased Zahoor Ahmad had chequered criminal history. He was involved in 14 cases of theft, dacoity and murder etc. According to the FIR, he had enticed Mst. Sakina Bibi. Though the complainant tried to make the improvement that she was wife of Zahoor Ahmad but on confrontation with FIR Ex.PF, this contention stood falsified. The deceased had enmity in the area also. He had abducted Mst. Sakina Bibi and was involved in chain of cases. He was sleeping at a deserted place at a far flung distance from the village. The occurrence took place at about 4.00 a.m. The presence of the PWs is not established. Many persons had reasons to take benefit of his loneliness at the place of occurrence.
In these circumstances, the involvement of the appellant and respondents of Crl. A. No, 180-96 in the commission of the offence as alleged by the prosecution appears to be doubtful. The prosecution has failed to prove its case beyond reasonable doubt. The learned trial Court did not appreciate the evidence in its true perspective. For the, reasons supra, the Crl. A. No, 173-96 is accepted. Consequently the conviction recorded against and sentence awarded to the appellant are set aside. Crl. A. No, 180-96 and Crl. Rev. No, 202-98 are without merits and the same are accordingly dismissed.