BASHIRUDD1N AHMAD, J.--Haider (42), Sher Muhammad (50), Safdar Ali (32), Faiz (45), Rehmat All (26), Murad (24) and Nazar (25) were tried of offences under sections 148, 302/149 and 201/149, P. P.
C. by the Additional Sessions Judge, Sheikhupura, who acquitted Rehmat Ali, Murad and Nazar of all the offences with the result that the charge against the remaining accused under section 148, P. P.
C. fell through. Haider, Sher Muhammad, Safdar and Faiz were convicted for the murder of Rehmat Ali, in furtherance of their common intention, in the area of village Bure Oath on June 10, 1967.
Haider and Sher Muhammad were sentenced to suffer death. Safdar and Faiz were sentenced to transportation for life. They were fined Rs, 2,000.00 each and in default of payment of fine to undergo rigorous imprisonment for one year each. They were also held guilty under section 201/34, P. P. C. and sentenced to undergo rigorous imprisonment for one year each. The sentence of imprisonment was directed in the case of Haider and Sher to take effect in the event of the death sentence not being confirmed by this Court. The sentences of imprisonment in the case of Safdar and Faiz were ordered to run concurrently. The fine, if realised, was ordered to be paid in its entirety to the heirs of the deceased.
2. The convicted persons appealed and the case is also before us on reference under section 374, Cr. P. C. in so far as Haidar and Sher Muhammad are concerned for confirmation of the death sentences. We propose to dispose of the appeal and the reference by a single judgment.
3. The following pedigree-table will be helpful in under-standing the relationship inter se between the various accused persons :-- {{TABLE}} Boota Sultan Bohar Khan Ali Bakhsh Nabi Bakhsh Safdar (appellant)Sardar ali (the deceased in the previou s case).Faiz (appellant)Sher Muhammad (appellant).
Muhammad Din Mahnga Haider (appellant) Rehmat Ali (acquitted accused).Murad (acquitted accused). {{TABLE}}
4. Nazar accused is nowhere related to his co-accused.
5. Briefly narrated the prosecution story is that on the eventful day, at about 11-00 a.m., the deceased was waylaid and assaulted by the appellants and their co-accused near the tube-well of Ghulam Qadir in the area of village Bura Oath. He was decoyed to that place by Nazar (since acquitted). When the deceased reached near the tube-well he was secured by Nazar who shouted to his co-accused and they came out of the haveli of Ghulam Qadir. Faiz and Murad had hatchets, Reh nat and Safdar had drants. Haider had a bughda and Sher Muhammad a chhura. They assaulted the deceased causing him numerous injuries. The deceased fell to the ground. Haider and Sher Muhammad severed the head of the deceased. They took of his loin cloth and wrapped the severed head in it. Haider removed the wrist watch of the deceased. The chappals of the deceased were also worn by Haider. He left his pair of shoes at the spot. He also took away the transistor of the deceased. Rehmat took away the bag of the deceased. The assailants then went away to x ards the canal at the alarm raised by Fateh Ali, Allah Ditta and Ghulam Qadir who witnessed the occurrence. Fateh Ali went to village Bhago Dayal and informed Muhammad Sharif of what had happened. Muhammad Sharif went to the spot accompanied by Charagh and found his brother lying dead.
6. The motive for the murder was vendetta. Sometime before the present occurrence Sardar Ali was put to death. He was the real brother of Safdar and a cousin of Faiz, Sher, Haider, Rehmat and Murad accused. Siddique and Barkat were awarded death sentence for the murder of Sardar Ali while their co-accused were sentenced to transportation for life.
7. Leaving Charagh to guard the dead body, Muhammad Sharif proceeded to Narang Police Station, at a distance of two miles from the scene of tragedy and reaching there at 12-40 p.m. the same day lodged the report Exh. P. A. After scribing the report, A. S. I. Muhammad Ishaq (P. W. 14) went to the spot, prepared the injury sheet and the inquest report and then despatched the dead body to the mortuary for post-mortem examination. He took into possession blood-stained earth from the spot and sealed it into a parcel. He recovered from the spot a pair of shoes P. 4/1-2 vide memo. Exh. P. C. Murad, Rehmat and Nazar were arrested on 18th June 1967. Faiz and Sher were apprehended on June 20, 1967. Faiz was found carrying a hatchet P. 5 which was taken into possession in the presence of Muhammad Ashraf (P. W. 5) by S. I. Muhammad Nawaz (P. W. 15) who sealed it into a parcel. Haider was arrested on June 27, 1967, from near Shandara Railway Station and a transistor was recovered from him. On June 30, 1967, Haider took the police to the dera of Nabi Bakhsh and produced, blood-stained bughda from under a heap of toori which was taken into possession and sealed into a parcel. On the same day Sher produced bloodstained chhura P.
6 from under the chaff in a room and it was taken into possession and sealed into a parcel. On the same day Rehmat took the police to the dera of Nabi Bakhsh and produced blood-stained drant from a heap of dung which was taken into possession and sealed into a parcel by the police.
Rehmat (P. W. 6) and Irshad (not produced) witnessed the recoveries. Safdar was arrested on June 30, 1967.
8. Dr. Muhammad Aslam Arshad, Medical Officer, District Headquarters Hospital, Sheikhupura (P. W.
12) conducted post-mortem examination on the dead body of Rehmat Ali on June 11, 1967, at 5-30 p.m. and found the following injuries :- (1)Head of body cut by four attempts of a sharp weapon one on front, on back and one on each side. Girth of neck on the level of cut line was 18".
(2)An incised wound 1" x x 1" deep about 4" below the cut line on front side of neck.
( 3) About half of pulp of right thumb cut and was separate which coincide each other.
(4)Threeincisedwounds21" x 1" x I', 2" x x 1", 11" x 1" x r on upper and outer part of right shoulder.
(5)An incised wound 1" x x 1" on back of right elbow.
(6)Incised wound 11" x x i" on the back of right fore-arm in the middle.
(7)Two incised wounds, Iv x x 4" each, on back of right fore-arm 2" from wrist.
(8)An incised wound 2" x 1" on back of right hand cutting the metacarpal bone of middle finger.
(9)An incised wound 4" x 1" on front of right hand in the upper part, metacarpal bone of little and ring finger cut.
(10) Incised wound a" x 1' on back of little finger cutting the lower of phalanx bone.
(11) Three-fourth pulp of right ring finger cut.
(12) Incised wound 11" xr bone deep on front of right middle finger.
(13) Two incised wounds 1" x i" x 1", li" x x lff on upper and outer part of left shoulder.
(14) An incised wound 1" x x i" on the front of left shoulder.
(15) Incised wound 14" xi" xi" deep on outer side of left shoulder.
(16) Incised wound 2" x f" on the back of left index finger cutting the upper phalanx.
(17) Half of pulp of left thumb was cut.
(18) Middle finger of left hand cut from root attached with only a part of skin.
(19) Two incised wounds 2" x i", 1 x i" on back of left hand cutting metacarpals of middle and index fingers in the lower part.
(20) Three-fourth part of left ring finger cut in middle of upper phalanx.
(21) An incised wound 1" x t" on back of left little finger cutting the middle phalanx.
(22) An incised wound f" x x r on back of right shoulder blade.
Death, in the opinion of the doctor, was due to shock and haemorrhage caused by injury No,
1. All the injuries were inflicted with sharpe weapon. Injury No, 1, according to the doctor, was sufficient to cause death in the ordinary course of nature.
9. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They also denied the recoveries. They ascribed the case to enmity. Safdar Ali made a statement which runs :- "The complainant-party wants to involve me as I was a complainant in my brother Sardar Ali's murder case and the accused party in that case wanted me to win over but I did not agree.
Secondly, I am the sole brother of Sardar Ali deceased. Moreover my brother had no male issue.
Therefore the complainant wants to completely ruin and finish me and my family. On the day of occurrence, I was getting installed a tube-well at Barah Chah in the area of Bhago Dayal village and I was working there at the time of occurrence. I was not at all present at the spot. I have also been found innocent by the Investigating Agency and many gentlemen of the Ilaqa and witnesses were examined by me as defence witnesses in support of my alibi. The prosecution is trying to improve their case and the witnesses are telling lies regarding my participation on this ground as well lest their case may fail against other accused also. I mean as I have been shown in column No, 2 by the police, the complainant-party apprehends that since they had named me in the F. I. R., if they leave me now their case might not suffer. It is a fact that Rehmat deceased had abducted Mst. Sughran one of his relatives prior to the alleged occurrence just 10 or 15 days earlier and the relatives of the lady were annoyed by this act of the deceased. I have enmity with almost all the prosecution witnesses and therefore they have implicated me falsely. The witnesses are also interested in the case as they are related to the complainant."
Safdar produced two witnesses, namely, Allah Ditta and Muhammad Bakhsh, in support of his defence of alibi. They deposed that on the day of the alleged occurrence, Safdar supervised installation of a tube-well at Bara Khooh by Allah Ditta P. W. at a distance of seven killas from the abadi, of village Bhago Dayal from sun-rise till degarwela. We shall revert to the defence evidence at its proper stage.
10. At the trial, Fateh Ali (P. W. 2), Allanditta (P. W. 3) and Ghulam Qadir (P. W. 4) furnished direct evidence. Fateh Ali had spent the night preceding the day of the alleged occurrence at Wandala Dial Shah which is about a mile from Shandara. He owns land in village Bhago Dayal, which is at a distance of 20 kos from Wandala Dial Shah. On the day of the alleged occurrence, Fateh Ali took a train for Narang from Shandara Railway Station in the morning. He met Allanditta P. W. in the bazar at Narang. Allanditta had gone there to purchase jawar seed. Both of them started together for their village. When they reached near the tube-well of Ghulam Qadir P. W. in the area of village Bure Oath, they noticed Rehmat deceased and Nazar accused coming from the side of the canal.
Rehmat was ahead of Nazar. The witnesses were still at a distance of 25 or 30 karams when Nazar started grappling with the deceased. Nazar shouted to his co-accused, who emerged from the haveli of Ghulam Qadir and assaulted the deceased with their respective weapons. The deceased fell to the ground. Haider and Sher Muhammad severed the head of the deceased. Nazar removed his loin-cloth and wrapped in it the head of the victim. Haider removed the wrist-watch and also the transistor of the deceased. The chappal of the deceased was also worn by Haider accused. He left his own pair of shoes at the spot. The bag of the deceased was also taken away by Rehmat accused. Fateh Ali, Allanditta and Ghulam Qadar witnessed the occurrence. Fateh Ali went and informed Muhammad Sharif, a brother of the deceased, at village Bhago Dayal about the occurrence. When Sharif came to the spot, he found Allanditta and Ghulam Qadir P. Ws. present near the dead body. It is in the statement of Muhammad Sharif (P. W. 1) that his brother Rehmat deceased was employed in the army and was on leave. On the day of the alleged occurrence, Nazar visited the deceased at his house in the morning and told him that he was going to Lyallpur and offered to accompany the deceased to Wandala Dial Shah. The deceased left his house for Wandala Dial Shah with Nazar accused. Muhammad Sharif learnt of the occurrence at about noon from Fateh Ali P. W. We find from the evidence of Muhammad Sharif that three years ago, his brother Siddiq was assaulted and a case under section 307, P. P. C. was registered against Taj, Nazir and Bashir sons of Muhammad Khan alias Muhammad Din. Muhammad Sharif tried to suppress the truth when he stated that he was not aware if the assailants of his brother were acquitted.
Muhammad Sharif continued that later on Siraj Din was done to death as a measure of retaliation.
Siddiq, Barkat Ali and Muhammad Sharif were tried in that connection. Sardar Ali, a brother of Safdar accused, was a witness against them in that case, Muhammad Sharif expressed ignorance if Muhammad Khan son of Bute Khan was also a witness in that case. Muhammad Sharif, however, admitted that Muhammad Husain son of the said Bute Khan is related to the accused, who are Rajputs. Muhammad Sharif was unable to say whether Safdar accused instituted a case against Labbu son of Allandad of his village. Muhammad Sharif tried to suppress the truth when he stated that he was not aware if proceedings for the breach of the peace were taken against his party and the party of the accused in the year 1964, Muhammad Sharif denied that he was challaned or bound down under section 107/151, Cr. P. Cede. He also denied that Allanditta P. W. is related to him.
The witness admitted that Muhammad Akbar is his uncle. He denied that Muhammad Akbar has a daughter named Mst. Khair Nishan. Muhammad Sharif expressed ignorance about the name of the father of Allanditta P. W. It was suggested to him that Allanditta is son of Naurang but Muhammad Sharif persisted in saying that he was not aware if Naurang is father of Allah-ditta P. W. It is remarkable that the witness admitted that Allanditta is from their brotherhood, but still he was not in a position to say whether Allanditta is a son of Naurang. Muhammad Sharif denied that Naurang is a son-in-law of his uncle Muhammad Akbar. Muhammad Sharif admitted that Fateh Ali P. W. is from his brotherhood, but stated that he did not know the name of the father of Fateh Ali.
Muhammad Sharif was unable to deny if the father's sister of Fateh Ali P. W. is married to his uncle.
Fateh Ali P. W. admitted that Mst. Reshman, wife of Muhammad Akbar, uncle of the deceased, is a sister of his grandfather. Muhammad Sharif lied when he stated that he was not aware if Fateh Ali is the son of Abdul Ghani and a grandson of Bagga. Fateh Ali P. W. admitted that his grandfather was Bagga, Muhammad Sharif also lied when he stated that he was not aware whether Mst.
Reshman, wife of his uncle Muhammad Akbar, is the sister of grand-father of Fateh Ali. It has been demonstrated in this case that Muhammad Sharif is a liar. Sometime before the occurrence under consideration, Sardar Ali son of Ali Bakhsh was put to death. Barkat Ali and Siddiq brothers of Muhammad Sharif P. W., were tried in that connection and were sentenced to death. We, therefore, hold that Muhammad Sharif is not only a thoroughly unreliable witness, but is also inimical.
Fateh Ali, who claimed to have seen the assault on the deceased tells us that he spent the night preceding the day of the alleged occurrence at Wandala Dial Shah near Shandara as his wife belongs to that village. The wife of Muhammad Ali, a brother of the deceased, also belongs to that village, Fateh Ali expressed ignorance if his wife is related to the wife of Muhammad Ali. The morning train from Shandara reached Narang Railway Station at 9-56 a.m. The tube-well of Ghulam Qadar, where the occurrence is alleged to have taken place is two miles from Narang.
Village Bhago Dayal is more than two miles from the tube-well of Ghulam Qadar. The way from village Bhago Dayal to Narang is not a regular path, but one has to pass over the bannas of the fields. On way from Narang to village Bhago Dayal, if one was to go straight, he had to wade through the canal and it is in evidence that water in the canal was flowing at the relevant time. The witness while going to village Bhago Dayal from Narang had, in the circumstances, to pass over Ladheke canal bridge.
Fateh Ali and Allanditta give the time of occurrence as between 10 and 11-00 a.m. Ghulam Qadar stated that the occurrence took place at 8-00 o'clock in the morning. If Fateh Ali got down at Narang at 9-56 a.m., it is not believable that he and Allanditta waded through canal water or took the diversion, crossed the canal over the bridge at Ladheke and still were in time to see the assault on the deceased near the tube-well of Ghulam Qadar. Khunda Ladheke Railway Station is a bit nearer to the village of Fateh Ali P. W. than Narang Railway Station. The exact distance is about three miles. It is not understood why Fateh Ali, who had no business at Narang decided to get down there instead of Khunda Ladheke. The way from Khunda Ladheke Railway Station to village Bhago Dayal passes across Ladheke canal bridge. The tube-well of Ghulam Qadar does not fall in the way from Khunda Ladheke to village Bhago Dayal. Fateh Ali admitted that he knew Dilawar alias Kaku and Sharif sons of Ladha, who was brother of his grandfather Bagga. The witness admitted further that Dilawar and Sharif were challaned under section 325, P. P. C. for causing hurt to Abdul Aziz and Muhammad Sharif. Mst. Begum Bibi is the father's sister of said Abdul Aziz. She is married to Suba Khan, who is the maternal uncle of Safdar Ali accused. Fateh Ali candidly admitted that there have been several murders on his side and the side of the accused. It is thus clear that there has been blood-feud between the parties. Rehmat Ali, the deceased person in the present case, was put to death before evidence was recorded, at the trial, relating to the death of Sardar Ali, brother of Safdar accused. Fateh Ali P. W. actually resided at Wandala Dial Shah at the relevant time and though he has land in village Bhago Dayal, we have every reason to doubt his presence on the spot at the time of the alleged occurrence. It was by sheer coincidence that the two eyewitnesses reached the spot just in time to see the assault on the deceased. Fateh Ali admitted that he was not at the spot when the police first reached there. He stated that he came to the spot in the evening. He is contradicted by Allanditta P. W. who deposed that Fateh All returned to the spot on the following day. He did not talk to anybody in the way from the tube-well to village Bhago Dayal.
He would have us believe that after informing Sharif P. W. about the occurrence, he went to his well and worked there till the evening. This is unbelievable. We are told that Allanditta had gone to Mandi Narang and had purchased jawar seed and met Fateh Ali P. W. in the bazar. Fateh All did not state to the police or before the Committing Magistrate that Allanditta P. W. met him in the bazar of Mandi Narang. It is in the statement of Allanditta that his mother is the daughter of Aziz Din. Fazal lambardar is son of Aziz Din. He is the maternal uncle of Allanditta P. W. This Fazal is son-in-law of Muhammad Akbar, who is the uncle of the deceased. Allanditta admitted that they had civil litigation with Safdar accused in respect of a garden at Chah Sheikhanwala, which is still with Safdar. It is also in the statement of this witness that 15 or 16 members on the side of the complainant party and a similar number on the side of the accused had been bound down to keep the peace. Bagga, a brother of Allanditta P. W. was also involved in the security proceedings.
Rehmat alias Lunda son of Chiragh, who is nearer to the accused in relationship, was involved in a false case. He was accused of raping Mst. Hajiran, the mother of Irshad, a nephew of Allanditta.
11.We have it in the statement of Ghulam Qadar that his tube-well does not fall on the way which runs from Narang to canal bridge Ladheke or to village Bhago Dayal. There is one way from Narang to Bhago Dayal which passes across Ladheke canal bridge. When there is water in the canal, one has to swim through. There is evidence that the water was flowing in the canal minor on the day of the occurrence. Fateh Ali and Allanditta P. Ws. therefore, had to take the straight route to their village. They had no business to pass near the tube-well of Ghulam Qadar. On accepted principles of appreciation of evidence, the statements of Fateh Ali and Allanditta P. Ws. should not have been accepted by the trial Judge, particularly when enmity and blood-feud is admitted by them.
12.The evidence of Ghulam Qadar in no way advanced the prosecution case. He did not know any of the accused before the occurrence. He stated to the Committing Court that he did not identify the accused. He stated, at the trial, that he was not in a position to pick out correctly the accused if they were mixed with others. Ghulam Qadir lived six miles away from village Bhago Dayal. Since the occurrence took place near the tube-well of Ghulam Qadir, the only course open to him in order to save himself from being involved was to support the prosecution case because the assailants had emerged out of his harei and he supported it only to this extent that he stated the number of the assailants as seven and admitted the presnce of Fateh Ali and Allanditta P. Ws. on the spot at the time of the alleged occurrence. Ghulam Qadar was declared hostile and was cross-examined during commitment proceedings. On going through his statement, we do not consider it safe to hold that he corroborated the evidence of Fateh Ali and Allanditta, who are proved to be inimical towards the appellants. The evidence of Rehm at (P. W. 16) that SafdarB showed him the severed head of the deceased and then passed it on to Nazar Christian is an ugly attempt at padding. The witness is a close relation of the deceased and he was rightly disbelieved by the trial Court. We have no hesitation in discarding his statement. We doubt, if Fateh Ali, Allanditta and Ghulam Qadir witnessed the occurrence. Taking into C consideration the reasons stated earlier in this judgment and the fact that they were disbelieved by the trial Judge with regard to three others, we are not prepared to place reliance on their testimony.
13.We are thus left with the evidence of the recoveries. Muhammad Ashraf (P. W. 5) besides the investigating officer witnessed the recovery of hatchet Exh. P. 5 from Faiz accused 10 days after the occurrence. There was no sense in his going about armed with the weapon of offence when he had been involved in the murder of Rehmat Ali. We are called upon to believe that Muhammad Ashraf and the investigating officer were going from Mata Suja to Railway Station, when Faiz accused came from the direction of the Railway Station, was apprehended and the recovery of blood- stained hatchet was effected from him. The recoveries of weapons of offence at the instance of Haider, Sher Muhammad and Rehmat are of no importance, as they were effected from the dera of Nabi Bakhsh in the presence of Rehmat (P. W. 6), who could by no means held to be completely disinterested. The recoveries of blood-stained weapons even if believed are insufficient, by themselves, to prove the case for the prosecution. The recoveries do not go to prove that the appellants are guilty of the murder of Rehmat. Safdar appellant, was found not have participated in the commission of crime as a result of investigation by the police, as is clear from the statement of Inspector, Crimes Branch, Lahore who was examined as a Court-witness.
14. For all these reasons, we do not consider it safe to maintain the conviction of the appellants. The case against the appellants is not free from reasonable doubt. We, there-fore, allow the appeal, set aside the conviction and sentences passed upon the appellants and order them to be acquitted.
Death sentences passed on Haider and Sher Muhammad are not confirmed.