RUSTAMS. SIDHWA, J.-Haji Khan Muhammad son of Makhan Kharal (hereinafter to be referred to as "Khan Muhammad Kharal"), Khan son of Allah Ditta, Muslim Mussali thereafter referred to as "Khan Mussali"), Anwar, Amir Ghulam, Nawab, Bashir, Mst. Mehraj Bibi and Mst. Sughran were tried by Ch. Taj Muhammad, Additional Sessions Judge, Sheikhupura under section 302/201/148/149, P. P.
C. For the murder of Afzal Ahmad deceased, destroying his dead body and throwing it in a well with the intention of causing the evidence of the commission of the offence to disappear and for rioting.
The learned trial Judge, by his judgment dated 14th June, 1979, convicted Khan Muhammad Kharal and Khan Mussali under sections 302/34, P. P. C. And sentenced them to death subject to confirmation by this Court and a fine of Its. 5,000 each or in default two years' rigorous imprisonment each and under sections 201/34, P. P. C. To four years' rigorous imprison--ment each and a fine of Rs. 1,000 each or in default to one year's rigorous imprisonment each. It was also ordered that fine, if recovered, would be paid to the legal heirs of the deceased and in case the sentence of death was not confirmed the sentence in lieu of payment of fine would run concurrently with any other sentence that may be awarded by the High Court. The Joint appeal of the convicts and reference are now before us for disposal.
2. The brief facts of the case are that two months priori to the occurrence, Afzal Ahmad dcceased contracted a second marriage with Mst. Sughran Bibi accused, the widow of one Hassan Khan, who was the uncle of Afzal Ahmad deceased. Mst. Sughran Bibi accused later developed illicit relations with Khan Muhammad Kharal accused and a month prior to the occurrence deserted Afzal Ahmad deceased and began living with him. Anwar accused, the brother of Mst. Sughran Bibi accused also began living in the house of Khan Muhammad Kharal accused. Afzal Ahmad deceased approached, Khan Muhammad Kharal accused a number of times for the return of his wife, but without any success. Afzal Ahmad deceased had also leased out 2 squares of agricultural land to Nawab and Ghulam accused who used to pay rent to him but on the instigation of Khan Muhammad Kharal accused they paid the lease money of the one year to the accused instead of the deceased and on demand by the latter, they asked the deceased to recover the same from the accused. Accordingly Afzal Ahmad deceased sent Shah Muhammad Barbar (given up P. W.) to Khan Muhammad Kharal accused to recover the lease money but the accused did not pay the same but sent back a message that the deceased should personally collect the same.
3. One day prior to the occurrence. i. e. On 23rd June, 1977, at 11-00 a.m., Anwar accused, the brother-in-law of Afzal Ahmad deceased, Nawab and Ghulam accused came to the deceased's house and told him that Khan Muhammad Kharal accused had called him to collect the rent. The deceased accompanied them to village Chakairi. He did not return to his house the same night, On the following morning, i. e. 24th June, 1977, the complainant Abdul Rashid P. W. 8, the father of the deceased and Rashid Ahmad P. W. l I went to village Chakairi to enquire about the deceased. They visited the house of Khan Muhammad Kharal accused where they came to learn that Afzal Abroad deceased alongwith all the accused were present at Dhari Bahu. They, then, proceeded to Dhari Bahu where they found Afzal Ahmad deceased and all the accused sitting there. Seeing them, Khan Muhammad Kharal accused fired at Afzal Ahmad deceased and threatened Abdul Rashid complainant P. W. 8 and Rashid Ahmad son of Muhammad Dogar P. W. 11 that in case they tried to come near, they would be killed. After that, all the accused injured the deceased with their respective weapons and dragged the deceased to the field where they cut off his body into pieces.
The witnesses, in order to save their lives, took to their heels. Abdul Rashid complainant P. W. 8 immediately proceeded to Police Station Nankana Sahib where he lodged F. I. R. Exh. P. E. At 9-20 a.m. The said report was scribed by Abdul Mateen S. I. P. W. 17.
4. The Police Officer then proceeded to the spot where he recovered the blood-stained earth from the place where the deceased had been killed, which he took into possession vide memo. Exh. P. F.
He also arrested Mst. Mehraj Bibi accused the same day.
5. On 26th June, 1977, Mst. Sughra Bibi, Khan Mussali, Ghulam land Anwar accused were arrested by Abdul Mateen S. I. P. W. 17.
6. On 30th June, 1977, Khan Mussali accused led to the recovery of the six cut off pieces of the dead body of Afzal Ahmad deceased from a pipe of abandoned tuba well in the area of village Janiwala.
The pipe bad to be cut before the pieces of the dead body were recovered. Shirt P. 12, chaddar P. 13, banyan P. 14 and khes P. 15, all blood-stained and tahroo P. 16 were also recovered which were taken into possession by the police vide memo Exb. P. L. Rashid Ahmed P. W. 11, Abdul Mateen S. I. P.
W. 17 and Shah Jehan (given up P. W.) witnessed the said recoveries. After preparing the necessary papers, the .Dead body was sent to Civil Hospital, Nankana Sahib for post-mortem examination. On 30th June, 1977 at 4-I5 p.m. Dr. Abdul Razzaq conducted the post-mortem examination on the six cut off pieces of the dead body of Afzal Ahmad and found the following inuries on it :-
(1) A firearm entrance wound 1 ----- x 1---, oval in shape situated on the back of the left side of chest.
(2) Abrason 7 ----- x 4" on the front of the left side of the chest.
(3) Abrasion 7 ----- x 5" on the front of the right side of the chest.
(4) Abrasion 4" x ----- on the front of the left thigh, lower part.
(5) Abrasion 8 ----- x 3--- on the back of the left shoulder.
In the opinion of the doctor, death occurred due to shock and haemorrhage as a result of injury No. 1 which was sufficient to cause death in the ordinary course of nature. Injury No. 1 was caused by firearm. This injury was ante-mortem. The abrasions were post-mortem. The dead body was divided into six pieces by sharp cutting weapon. The time between injuries and death was immediate and, between death and post-mortem examination was about seven days.
7. On 5th July, 1977, Amir and Bashir accused were arrested by Abdul Mateen S. I.P. W. 17.
8. On 9th July, 1977, Amir, Ghulam and Anwer accused led to the recovery of blood-stained bugdas P. 8, P. 9 and P. 10 respectively which were taken into possession by the police vide memos. Exhs. P.
H, P. I. And P. J. Respectively. The said recoveries were witnessed by Rashid Ahmad P. W. 11, Abdul Mateen S. I. P. W.
17. And Saadullah (given up P. W.).
9. On 10th July, 1977, Khan Mussali accused led to the recovery of blood-stained kassi P. 11 from underneath the charpai in the room of his house which was taken into possession by the Police vide memo. Exh. P K. The said recovery was witnessed by Rashid Ahmad P. W. 11, Abdul Mateen S. I. P.
W. 17 and Saadullah (given up P. W.).
10. On 13th July, 1977, Nawab accused was arrested by Abdul Mateen P. W. 17.
11. Khan Muhammad Kharal accused who had escaped arrest since the date of occurrence and in the meantime had been declared a proclaimed offender, was arrested on 11 October, 1977, by Ghulam Muhammad S. I.P. W. 16.
12. On 19th October, 1977, Khan Muhammad Kharal accused led to the recovery of a double barrel gun P. 7 from the bharoli in his house with 2 live cartridges which were taken into possession vide memo. Exh. P. G. In the presence of Muhammad Hanif P. W. 9, Muhammad Yaqub P. W. 15 and Qadir Bakhsh (given up P. W.).
13. After completing the investigation in the case, the challan against all the nine accused was sent up. At the trial, the prosecution produced Abdul Rashid P. W. 8 and Rashid Ahmad P. W. I 1 in proof of the motive and ocular account, the same witnesses and Muhammad Hanif P. W.
9. Rashid Abroad P. W. 11, Muhammad Yaqub A. S. I. P. W. 15 and Abdul Mateen S. I. P. W. 17 in support of the recoveries and Sardar Ali Dispenser P. W. 4 to prove the post-mortem examination report Exh. P. B.
14. All the accused denied all the accusations at the trial and pleaded innocence. When examined under section 342, Cr. P. C. Khan Muhammad Kharal accused stated that he had been falsely implicated in the case because the complainant wanted to put pressure on him to get back 5 square of land which he had purchased from Hassan Khan the deceased's uncle. When asked to explain his abscondence, he submitted that the complainant, in connivance with the Police, wanted to get him shot dead, therefore, he did not appear before the Police but continued sending applications to the higher authorities about his innocence and his desire to appear in Court if his personal safety was secured and investigation was transferred to an impartial officer. He denied the recovery of the gun at his instance and stated that it was falsely planted. All the remain--ing accused also stated that they had been falsely implicated due to enmity.
15. The learned trial Judge held the motive to be proved. As regards the ocular account, the learned trial Judge accepted the same, subject to corroboration, and finding abscondence of Khan Muhammad Kharal and the recovery of blood-stained kassi P. 11 at the instance of Khan Mussali as duly proved, accepted the same as corroboration and convicted and sentenced Khan Muhammad Kharal and Khan Mussali accused, as stated in para I above, and acquitted the retraining seven accused of all the charges.
16. We have heard the arguments of the learned counsel for the appellants and the State and have also perused the record. Ch. Nazir Ahmad Qureshi, Advocate, who appears for the complainant has also been heard, though there is no revision petition filed on behalf of his client.
17. Before taking up the motive we would like to take up the ocular account first which is furnished by Abdul Rashid P. W. 8 and Rashid Ahmad P. W.
11. Abdul Rashid P. W.
8. Is the father of the deceased, whereas Rashid P. W. 11, is the uncle of Mst. Rashida Bibi, the first wife of the deceased.
Their testimony, which is somewhat consistent, already stands narrated in para 3 above and need not be repeated. Before us and before the learned trial Judpz, three objections were raised as toth the ocular account. First, that the witnesses were interested and partial, as they were related to the deceased and Abdul Rashid P. W. 8 was inimical with Khan Muhammad Kharal appellant over the abduction by him of his deceased son's wife, Mst. Sughran Bibi acquitted accused. Second that the ocular account is highly untrustworthy unreliable and unnatural, in that the appellants and their co-accused would not murder Afzal Ahmad deceased in the presence of the eye-witnesses and thereafter spare them to give evidence against them. Third and last, that there are serious and material contradictions in the statements of the eye-witnesses. The learned trial Judge, in para 29 of his judgment, accepted the first objection and held the witnesses to be interested. He observed that the second objection had great force but rejected the third objection. Relying on certain points of support from the ocular testimony, the learned Judge held that the ocular account could be accepted subject to corroboration. From the narration given by Abdul Rashid P. W. 8 and Rashid Ahmad P. W. 11 it seems most unlikely that early in the morning at 5-00 a. m. On 24th June, 1977 the said two witnesses came across the two appellants and seven acquitted accused with Afzal Ahmad deceased, all sitting together at Dhari Bahu, that Khan Muhammad Kharal appellant on seeing the eye-witnesses fired at Afzal Ahmad deceased and threatened the eye-witnesses that he would also kill them in case they intervened and thereafter all the appellants and the acquitted accused caused injuries to the deceased with their respective weapons and dragged him to the field and cut him up into pieces. The whole story seems unnatural as it gives the impression as if the appellant and their companions were waiting for the eye-witnesses to appear in order to stage this murderous drama before them. We have no hesitation I rejecting the ocular account as being implausible and unnatural and nng inspiring any confidence.
18. In view of the above finding, we need not discuss the evidence relating to motive or the recovery of the blood-stained kassi at the instance of Khan Mussali appellant or the abscondence of Khan Muhammad Kharal appellant, in order to bring home the charge of guilt against both these appellants under section 302/34, P. P. C. However, the matter with regard to the concealment of the dead body of Afzal Ahmad deceased with the object of causing the evidence of the commission of an offence to disappear requires examination, as there is evidence to prove the same.
19. The recovery of the cut-up dead body of Afzal Ahmad deceased) at the instance of Khan Mussali appellant from an abandoned tube-well in the area of village Janiwala is furnished by Rashid Ahmad P. W. 11, n Shah Jehan P. W. 12 and Abdul Mateen P. W.
17. According to their consistent testimony, both P. Ws. 11 and 12 had gone to Police Station Nankana Sahib on 30th June, 1977 to enquire about the case, when during interrogation, Khan Mussali appellant agreed to lead to the recovery of the deadbody of Afzal Ahmad deceased. Accordingly, they also collected Abdul Raheem P. W. 10 and Ali Bakhsh (not produced) Mistris from the Bazar. Khan Mussah appellant led them to the tube-well situa--ted in the area of village Janiwala, where the Mistris cut up the pipe and the pieces of the dead body of Afzal Ahmad deceased alongwith clothes were recovered. In cross-examination, Shah Jehan P. W. 12 admitted that 20/25 persons were already present at the place and that at the time of the recovery there were about 40 persons. Abdul Rahim P. W. 10, a Mistri, confirmed that he cut the pipe of the tube-well and afterwards, immediately left the place and went to his shop. In cross--examination, he admitted that he had not seen any of the accused there or Khan Mussali appellant. He denied that 6 pieces of the dead body were recovered in his presence. Muhammad Shafi Saleem D. S. P., P. W.
7. In cross-examination, admitted that on 26th June, 1977 he had investigated the case. He also confirmed that some informer had given secret informa--tion that the dead body of the deceased was thrown in some tube-well and that he instructed that it should be kept secret till the arrest of the accused. He was however not cross- examined further to state if he knew the particulars of the tube-well where the body was secreted.
Abdul Mateen S. I., Pa W. 17, the Investigating Officer, submitted in cross--examination that on 26th June, 1977 Khan Mussali appellant had expressed his willingness to lead to an abandoned tube- well and get the dead body recovered, but that he had postponed the recovery because he wanted to further interrogate him, thinking that he was telling a lie out of fear. He denied the suggestion that he delayed the recovery in order to falsely plant it on Khan Muhammad Kharal appellant. He also confirmed that he did not mention in Exh. P. N that the dead body was got recovered at the instance of Khan Mussalli appellant. After a review of the whole evidence of these recovery witnesses, we are convinced that the recovery of the cut-up pieces of the dead body of Afzal Ahmad deceased was effected at the instance of Khan Mussali appellant and that though the said appellant had signified his consent to lead to the said recovery on 26th June, 1977 the Police Officer, validly believing that rte was telling a lie out of fear, did not take him seriously, Lit un 30th June, 1977 he agreed to lead to the recovery and, did so and the cut-up pieces of the dead body were found. We do not consider that the delay in the recovery is fatal to the case as on 26th June, 1977 Khan Mussali appellant, though he agreed to lead to the recovery, did trot disclose the place where the cut up pieces of the body lay hid. If the Investigating Officer was mentally confused as regards this appellant's genuine desire to lead to the recovery, it does not destroy the recovery. At best this conduct adversely reflects on the Police Officer's sense of balance. Other than Khan Mussali appellant, nobody would have been able to have got recovered the pieces of the dead body, which were not lying concealed in some open field, but in an abandoned tube-well far away from the scene of crime. The evidence of the recovery witnesses inspires confidence and the conviction of Khan Mussali appellant under section 201, P. P. C. Appears to be correct and based on proper evidence.
20. The upshot of the above discussion is that the case against Khan Muhammad Kharal and Khan Mussali appellants for the murder of Afzal Ahmad deceased under section 302/34, P. P. C. Does not stand proved. Their convictions and sentences under section 302/34, P. P. C. Are set aside. The conviction and sentence of Khan Mussali appellant under sec--tion 201, P. P. C. Appear to be correct and proper and are, therefore, main--tained, whereas that of Khan Muhammad Kharal appellant under section 201/34, P. P. C. Is not founded on evidence and are, therefore, set aside.
21. For the foregoing reasons, the convictions and sentences of Khan Muhammad Kharal and Khan Mussali appellants under section 302/34, P. P. C. And that of Khan Muhammad Kharal appellant under sec--tion 201/34, P. P. C. Are hereby set aside and the fines, if any recovered from them shall be refunded to them. However, the conviction of Khan Mussali appellant under section 201, P.P.C.
And the sentence of imprison--ment and fine imposed on him by the trial Judge, are maintained.
This appeal, therefore, stands partly accepted in terms of the setting aside of the convictions and sentences, as stated above.
Death sentences not confirmed.