CH. MUSHTAO AHMAD, J. Appellants Ghulam Farid, Rab Nawaz, Muhammad Ramzan and Muhammad Nawaz have challenged their conviction and sentence through this Criminal Appeal.
They were tried by learned Additional Sessions Judge, Muzaffargarh in case FIR No.53 dated 08.04.1996 registered under sections 302, 34 PPC at Police Station Shah Jamaal, District Muzaffargarh alongwith co-accused Haji Muhammad and Abdul Majeed.
2. On conclusion of trial, learned trial court vide its judgment dated 12.10.2000 convicted the appellants and they were sentenced as under:- Convicted U/S 302(b)/34 PPC and sentenced to imprisonment for life (Each). They were held liable to pay Rs.20,000/- (each) as compensation in terms of section 544-A Cr.P.C. to the legal heirs of deceased Ghulam Qadir and in case of default in payment thereof, to further undergo imprisonment for six months (R.I.) each. The compensation awarded under section 544-A Cr.P.C. shall be recoverable as arrears of land revenue.
Benefit of section 382-B Cr.P.C. was also extended to the appellants.
Co-accused Haji Muhammad and Abdul Majeed were acquitted of the charge.
3. FIR was got registered by Ghulam Sarwar son of Elahi Bakhsh. Facts of the case as per FIR are that on the night intervening between 07/08th of April, 1996, complainant, his brother Ghulam Qadir alongwith Fayyaz Hussain and Muhammad Bakhsh were coming back from their agricultural land situated at Mauza Mandoo. At about 02:30 A.M., when they reached Chah Bakaain wala, they heard barking of dogs. Suddenly, Ghulam Fareed armed with hatchet, Muhammad Ramzan armed with sota, Rab Nawaz armed with Churee, Muhammad Nawaz armed with Sota (appellants herein) came from backside. Muhammad Nawaz (appellant) caught hold Ghulam Qadir with his rifle in "Japha". They (appellants) lifted Ghulam Qadir and took him near their houses. Appellants shouted that they had restrained Ghulam Qadir from passing that way as they had suspicion on Ghulam Qadir of having illicit relations with Mst. Irshad Mai wife of Ghulam Sarwar. Ghulam Fareed gave a blow with hatchet at chin of Ghulam Qadir, who fell down. Complainant alongwith others went forward to rescue his brother, on which accused persons threatened them of same treatment. Rab Nawaz gave several blows with Churee at neck of Ghulam Qadir. Muhammad Nawaz and Muhammad Ramzan gave sota blows at different parts of body of Ghulam Qadir. Thereafter, Ghulam Fareed accused brought Mst. Irshad Mai from his house and gave blows with hatchet hitting at her neck, chin and left shoulder. Rab Nawaz also gave blows with Churee at her fingers.
Mst. Irshad Mai fell down and then Muhammad Ramzan gave her blows with sota which hit at different parts of her body. After that, all the four accused persons fled away alongwith their respective weapons. Ghulam Qadir and Mst. Irshad Mai succumbed to the injuries on the spot.
4. Motive as alleged in the FIR is that accused persons (appellants) had suspicion on Ghulam Qadir of having illicit relations with Mst. Irshad Mai.
5. Investigation was conducted by Mr. Mahmood Shahid Inspector PW-11. Report under section 173 Cr.P.C. was submitted before trial court, where appellants alongwith two co-accused aforementioned were charge sheeted. They pleaded not guilty and claimed trial. Prosecution in order to prove its case, got examined eleven witnesses. Ocular account was furnished by PW-6 Ghulam Qadir (complainant) and PW-9 Muhammad Bakhsh. Prosecution got examined Abdul Majeed as PW-5 who implicated co-accused Haji Muhammad and Abdul Majeed with charge of abetment. Medical evidence was furnished by PW-3 Dr. Muhammad Tanveer Qureshi, who conducted postmortem examination on the dead body of Ghulam Qadir and found following injuries:-
1. Cut wound 8 x 8 CM just beneath chin extending on both sides, muscle cut, boney pieces shriveled, and vessels were also cut.
2. A lacerated wound 2 x 1 CM through and through on right upper lip.
3. A cut wound 4 x 1 CM, cutting tip of nose going deep just above right moustaches, cutting muscle and bone.
4. Contusion 2 x 2 CM with redness and swelling on bridge of nose, nasal bone cut into pieces.
5. A lacerated wound 2 x 1 CM, 2 CM above right eyebrow with marked contusion and redness around, bone deep and exposed.
6. Contusion 5 x 1 CM with marked depression around, creitus felt beneath on left top of forehead.
7. Multiple contusions 2 x 4 CM with mark redness and swelling on left upper eye.
8. A lacerated wound 1 x 1 CM muscle deep 1 x half CM outer to left eye wall with multiple contusion 5 x 3 CM on circling lacerated wound with redness and swelling.
9. A huge cut wound 6 CM x 2 CM on basal front of neck cutting muscle and left neuron vascular bundle.
10. A cut wound 3 x 2 CM below an inward injury No.9 cutting vessels nerves and esophagus.
11. Contusion 14 x 1/2 CM just below injury No.10 on front lower bere of neck both on left side.
12. Superficial cut wound 5 x 1/3 CM on front mid of neck muscle deep.
13. Superficial cut wound 5 CM x .2 CM below injury No.12 skin deep.
14. Huge cut wound 12 x 2 CM on front upper neck extending on both sides cutting all the muscles, nerves, vessels, esophagus, trachea and extending upto cervical area.
15. A cut wound 6 x 2 CM in the mid line extending on both the sides, upto 1/3 CM cutting muscle, nerves and vessels below injury No.14.
16. A lacerated wound 2 x 1 CM bone deep and exposed on left mastoid process.
17. Multiple contusion 12 x 9 CM on back of left shoulder with swelling and redness.
18. Contusion 19 x 4 CM on back of left of upper chest extending upto auxiliary area.
19. Superficial cut wound 9 x 1/4 CM on back of right shoulder just above scapula.
20. Multiple contusion in area 20 x 15 CM on left lumber region extending upto iliac crist.
21. Multiple contusions, in area 19 x 6 CM on whole of left flank.
22. Multiple contusions in area 13 x 12 CM on left lumber sacral area.
23. Contusion 30 x 2 CM on front left axilla extending upto lower outer chest.
24. Multiple contusions in area 18 x 12 CM with variable length and width on left lower back of chest.
25. Contusion 12 x 4 CM on outer mid left thigh.
26. Contusion 8 x 4 CM below injury No.25.
27. Multiple contusion in area 13 x 6 CM below injury No.26.
28. Multiple contusion in area 5 x 6 CM on front right upper and outer thigh.
29. Multiple contusions covering whole of left upper arm.
30. Multiple contusions covering whole of left forearm posterior part.
31. Contusion 9 x 4 CM on right outer elbow joint.
In deep dissection of brain and skull vault.
1. There were marked multiple hematoma beneath frontal scalp.
2. There were marked multiple hematoma beneath left mastoid process.
3. Multiple lineal fracture of left frontal bone with mark hematoma beneath. According to opinion of PW-3, cause of death was severe and profuse haemorrhage and shock (vasovagal, hypovolumic, spinal) which was sufficient to cause death due to injuries No.1, 6, 9, 10, 14, and 15 specially and due to all injuries collectively. Injuries No.1, 3, 9, 10, 12, 13, 14, 15 and 19 were inflicted by sharp edged weapon while all rest by blunt weapon. Injuries No.1, 6, 9, 10, 14, 15 were dangerous to life. Injury No.3 was grievous while all the rest were simple in nature. All these injuries were ante-mortem in nature.
6. Postmortem examination on the dead body of Mst. Irshad Mai was also conducted by PW-3 who found following injuries on the dead body:-
1. A huge cut wound (combination of multiple cut wounds) 11 x 5 CM cutting all vessels, nerves, muscle, trachea and cervical vertebra on left front upper neck extending outward.
2. A cut wound 9 CM x 2 CM cutting all vessels, nerves and vessels just below injury No.1.
3. A cut wound 3 x 1 CM muscle deep adjoining injury No.1 on inner side.
4. A cut wound 12 x 4 CM just below chin cutting muscle, nerves and vessels, 3.5 CM above injury No.1 also cutting wound.
5. An incised wound 7 x .5 CM on front mid of neck muscle deep.
6. An incised wound 6 x .1 CM on left front upper chest muscle deep.
7. An incised wound 3 x 1/2 CM on right front base of neck.
8. Incised wound 10 x 1 CM skin deep but from inner side muscle deep on left front upper chest.
9. Incised wound 6 x 1/2 CM, 2 CM below injury No.8.
10. Multiple incised wound in area 6 x 6 CM all skin deep on top of left shoulder.
11. A cut wound 8 x 2 CM bone deep and exposed on top and back of left shoulder.
12. A cut wound 6 x 3 CM muscle deep on outer part of left arm.
13. A lacerated wound 2 x 1/2 CM on mid outer right Pinna.
14. Two incised wounds in area 5 x 1 CM on right front upper chest all skin deep.
15. Contusion 2 x 1.5 CM on right chest on front.
16. Contusion 4 x 1.5 CM on right lower inner cheek.
17. Contusion 3 x 1 CM just below left eye.
18. Two cut wounds in area 8 x 4 CM on palmer base of right ring big and index finger cutting all vessels, nerves, muscle and bone.
19. Contusion 3 x 1 CM on back of right elbow joint.
20. A cut wound 8 x 4 CM on back of right leg inner posterior part muscle deep.
21. Contusion 16 x 4 CM on left outer buttock.
22. Multiple abrasions in area 10 x 4 CM on back of right lower chest.
23. A cut wound 7 x 4 CM on root of neck mid back cutting muscles, nerves and vertebra.
24. A cut wound 10 x 1/2 CM muscle deep 1.5 CM above injury No.23.
7. On conclusion of prosecution evidence, statements of appellants were recorded under section 342 Cr.P.C, wherein they again pleaded innocence. In answer to the question why this case against him and why the PWs had deposed against him, appellant Ghulam Fareed stated as under:- "On the night of occurrence, I alongwith my brother Ghulam Sarwar was sleeping in our house. On the barking of dogs, I and my brother woke up. I picked up hatched with me as it was a night time as a precautionary measure to meet unforeseen episode. I followed the dogs in which direction they were going. Ghulam Sarwar was also with me empty handed. When we reached near the small brick kiln (Bhatti Khisht), I saw Ghulam Qadir deceased committing Zina with Mst. Irshad Mai deceased wife of my brother Ghulam Sarwar. They were in naked position. On seeing such a situation abruptly, I lost my self control on grave and sudden provocation. I started inflicting injuries to both of them as a result of which both of them expired at the spot. Since I had lost my self control, therefore, I cannot say as to how many injuries were caused by me to them".
Appellant Muhammad Nawaz in reply to the same question, stated as under:- "The case against me is false. The complainant had roped as many as respectable family members of our tribe in order to prevent us from the Pairvi of the case. The PWs are inter se related to each other. They were not present at the spot".
Appellants Muhammad Ramzan and Rab Nawaz also deposed in similar lines. In their defence, appellants got examined Allah Baksh, Mst. Sakina Mai and Ghulam Sarwar as DW-1 to DW-3.
8. On conclusion of trial, appellants were convicted and sentenced for murder of Ghulam Qadir as mentioned above. However, to the extent of murder of Mst. Irshad Mai, they were acquitted of the charge on the basis of compromise with her legal heirs.
9. I have heard arguments advanced by learned counsel for parties and gone through the record with due care.
10. This case was registered on the complaint made by Ghulam Sarwar, brother of Ghulam Qadir deceased. Complainant appeared in the witness box as PW-6 and reiterated the story narrated in the FIR. His statement was corroborated by Muhammad Bakhsh (PW-9). According to version of prosecution, complainant (PW-6), his brother Ghulam Qadir (deceased) alongwith Fayyaz Hussain (given up PW) and Muhammad Bakhsh (PW-9) were coming from village Mando to their house. It was 02:30 A.M., when they reached Chah Bakaain wala, they heard barking of dogs and suddenly, Ghulam Fareed armed with hatchet, Muhammad Ramzan armed with sota, Rab Nawaz armed with Churee, Muhammad Nawaz armed with Sota (appellants herein) came from backside.
Muhammad Nawaz (appellant) caught hold Ghulam Qadir in "Japha" and licenced rifle of Ghulam Qadir also went in his "Japha". They (appellants) lifted Ghulam Qadir and took him near their houses. Appellants shouted that they had restrained Ghulam Qadir from passing that way as they had suspicion on Ghulam Qadir of having illicit relations with Mst. Irshad Mai wife of Ghulam Sarwar. Then appellants gave blows to Ghulam Qadir with their respective weapons. Complainant alongwith others went forward to rescue his brother, on which accused persons threatened them.
PW-6 during cross examination stated that both the dead bodies were lying jointly. He further stated that the place from where blood stained earth was taken was a field of Barseem. PW-9 who also claims to be an eye witness of the occurrence, during cross examination stated that no other person came to place of occurrence except them despite the fact that they remained shouting. He further stated that deceased remained making hue and cry. According to PWs, accused persons dragged Ghulam Qadir to their houses. According to prosecution accused were four in number who murdered two persons in view of complainant party consisting of three persons. It is strange to note that none of the accused was armed with firearm weapon, despite that no attempt was made by complainant party to intervene to rescue the deceased. The fact that nobody else attracted to the spot despite raising hue and cry by deceased as well as PWs, also casts doubt on presence of PWs at the spot. It was a night occurrence which was reported to police at 07:45 A.M on 08.04.1996. Postmortem examination on the dead body was conducted on next date i.e 09.04.1996 at 10:15 A.M. PWs are close relatives of complainant. Complainant while appearing as PW-6 also made many improvements in his version. Inference drawn from above discussion is that none of the PWs was present on the spot at relevant time, as such ocular account in this case is not believable.
11. After discarding the prosecution version, what remains on the record is statements of appellants recorded under section 342 Cr.P.C. All the appellants except Ghulam Fareed in their statements recorded under section 342 Cr.P.C. denied the allegation. Therefore, Charge against them is not established on record. Resultantly, this criminal appeal to the extent of appellants Rab Nawaz, Muhammad Ramzan and Muhammad Nawaz is hereby allowed and conviction and sentence recorded by the trial court against them through impugned judgment is set aside and appellants Rab Nawaz, Muhammad Ramzan and Muhammad Nawaz are acquitted of the charge. They are presently on bail. Their sureties stand discharged of the liability of bail bonds.
12. As regards case of Ghulam Fareed appellant, it was his version that he saw Ghulam Qadir (deceased) and Mst. Irshad Mai (deceased), who was his sister-in-law, in compromising position.
He lost self control and on grave and sudden provocation inflicted injuries to both of them which resulted in their death. In the given facts and circumstances of the case when prosecution evidence has been disbelieved, statement of appellant has to be accepted in its entirety. Therefore, case of Ghulam Fareed appellant was covered under section 302(c) PPC. His conviction is altered from section 302(b) PPC to section 302 (c) PPC. Record shows that he remained in jail as under- trial prisoner and then as convict after decision of the case. The sentence, therefore, already undergone by him would be sufficient to meet the ends of justice. Resultantly, while maintaining conviction of Ghulam Fareed appellant under section 302(c) PPC, this appeal is dismissed to his extent. However, quantum of sentence is reduced to the period already served out by him.
Presently appellant Ghulam Fareed is on bail. His surety stands discharged of the liability of bail bonds.