MUHAMMAD ZAFARUILAH, J.--Muhammad Hussain 35 and Sultan alias Sulla 27 have been found guilty by the learned Sessions Judge, Sargodha, of the charge of murder on two counts for causing the murder of Zafar Iqbal and Sardara and of charge of a murderous assault on Mst. Allan P. W..
They have been sentenced to death on each of the two counts of murder under section 302/34, P.
P. C. And have been directed to pay Rs. 2,000 each to the heir: of the deceased as compensation or in default to undergo R.I. For a period of 4 month each. They have been sentenced to 7 years' R.I.
Under section 3(17/34, P. P. C, for the murderous assault on Mst. Allan P. W. And have been directed to pay Rs. 500 each to her as compensation or to default to suffer R.I. For one month's each. They were acquitted of the charge of murdering Hayat elder brother of Zafar lqbal deceased.
2. Twelve persons including the appellants were challaned for various offences. Another person Muhammad Yar was placed in Column No. 2, but was not summoned by the Court. The two appellants were convicted and the rest were acquitted of all the charges.
3. This is an appeal made by Muhammad Hussain and Sultan against their conviction and sentence, Saleh Muhammad P. W. Has moved a revision petition challenging the acquittal of the remaining accused person. This judgment wall dispose of the appeal, and the revision as well as the reference for confirmation of the death sentence.
A. The background leading to the present occurrence is like this. Saleh Muhammad P. W. Abducted Mst. Sattan, sister of Sultan appellant about 21 years before the present occurrence. Saleh Muhammad took her to Hayat at, a friend of his. This Hayat cheated Saleh Muhammad by having him challaned for an offence under the Arms Ordinance and keeping Mst. Sattan for himself where she has been living ever since. The appellants did not interfere with Mir. Sattan or Hayat whom she had married and borne children, but did not forgive Saleh Muhammad for the offence caused to the family honour. The appellants alongwith their co-accused hatched a conspiracy with the help of Muhammad Hussain appellants, who was married to Mir. Khatun, a sister of Saleh Muhammad Mir. Khatun had been estranged from Muhammad Hussain yet he had been visiting Saleh Muhammad's house trying for a patch-up. The appellants and their co-accused launched an attack on Saleh Muhammad during which Saleh Muhammad lost his father and his two sons Hayat and Zafar 1qbal. His mother Mst. Allan was also injured. His daughter Mst. Ghulam Bi P. W. And her aunt Mst. Khatun escaped as they hid themselves behind a wall. Saleh Muhammad himself was not in the house and, therefore, escaped.
5. The F. I. R, was lodged at 10:30 p.m. The same day at Police Station, Saddar, Sargodha by Muhammad Sher (P. W. 14). He is a nephew of Saleh Muhammad P. W. He has stated in the F.I.R.
That on 30th March, 1971 at about 8-CO p.m., he in the Company of Muhammat Hayat deceased and Ahmad son of Haji (not produced) were going towards the cattle behk of Muhammad Hayat deceased located three killas to north of the village. On the way they were joined by Muhammad Hussain alias Mamma appellant who was armed 'with a .12 bore gun. When they reached near the behk. Muhammad Hussain appellant opened fire at Muhammad Hayat deceased which hit him on his neck. As a result of this he fell down. At that time Muhammad Hussain is said to have called out to Muhammad Ali, Shera, Sultan (appellant), Fatta and Muhammad Yar accused who came out of a nearby wheat field. They were carrying fire-arms. They then went towards the village.
Muhammad Sher P. W ., followed them as he was afraid that the assailants wanted to kill his uncle Saleh Muhammad P W. Later at the, house of Saleh Muhammad P. W., Muhammad Sher hid behind a wall and saw Muhammad Ali accused shoot at Zafar lqbal deceased an 8 years old son of Saleh Muhammad P. W. Sardara deceased, the grandfather of Zafar Iqbal got up from the cot and Sultan appellant shot at him which hit Sardara in his chest and he also fell down. Mst. Allan P. W. Got up but she was injured by a shot fired by Muhammad Yar accused. The assailants kept looking for Saleh Muhammad P. W., but not finding him they kept firing and then left the place of occurrence.
Apart from Muhammad Sher the occurrence was also witnessed by Mst. Ghulam Bi P. W., her aunt Mst. Khatun (not produced) and one "Dost Muhammad P. W. Who was a guest. It was also alleged in the F.I.R. That Mehndi, Ahmad and Muhammad sons of Dulla, Ghulam Ali son oh Mehndi and Muhammad son of Bahu have conspired and abetted the commission of this offence.
6. Lady doctor Mumtaz Anwar Bhatti P. W. Examined Mst. Allan P. W. And found the following injuries on her person :--
(1) A lacerated wound 4" x 4" bone deep on the inner part of frontal surface, and inner part of posterior surface.
(2) A lacerated wound 4" x 3 --" bone deep occupying the whole surface of left mama above the nipple.
7. Dr. Muhammad Azim Majoka P. W, conducted the post-mortem examination on the dead body of Hayat and gave the following report :- "A gunshot wound of entry directed from left to right 1" X --" on left side of neck near the angle of mandible, causing fracture of the angle of the mandible and fracture of 2nd and 3rd survicle vertebrae; spinal cord and main blood vessels of neck on both sides were damaged and the wound was continuous with the wound of exit 3 --" x 2" on right side of the neck lower half. Three pellets of large size, one of which was deformed, were taken out and sealed in a vial which was handed over to the Police. The borders of the wound of entry were tatooed and margins inverted and an abrasion 1--- x --" was also present on right side front. On dissection 2nd and 3rd survicle vertebrae were found fractured and the spinal cord was found injured and torn at the level of 2nd and 3rd survicle vertebrae. The heart was healthy and empty. Blood vessels in the neck were found injured on both sides. Both arteries and the veins were also injured. The oesophagus was found ruptured under the wound. Stomach was full of semi solid food. Small and large intestines contained faecal matter. All the rest of the organs in the body were found in healthy state.
8. Following injuries were found on the dead body of Sardara :- "A gunshot wound 2 --" x 2 --" on right side of front of chest causing fracture of 3rd and 4th ribs and the sides of 4th and 5th dorsal vertebrae and rupture of right lung giving three small punctures on right side of back. Four large pellets were taken out of chest cavity on right side and sealed in a voil and handed over to the Police. On dissection 4th and 5th dorsal vertebrae were found fractured.
On the chest a gunshot wound with inverted margins acorched and tatooed 2j" x 21" on right side of front causing fracture of 3rd and 4th ribs 2" from the medial line. Pleaurae was ruptured on right side of chest and the cavity was full of blood. The right lung had collapsed and a big hole on upper lob and middle lob was present. Heart was healthy and empty. Stomach was full of semi solid food.
Small and large intestines were containing faecal matter. Urinary bladder was full. Rest of the organs in the body were found in healthy state."
9. Following injuries were found on the dead body of Zafar Iqba1 :-- "A gunshot wound 1'' x --" on bone deep causing fracture of right side of mandible. The borders of the wound were tatooed and scorched. (ii) A gunshot wound 1 --" x 1" on left side of upper part oc chest, causing fracture of medial end of left clavical, directed from front to backwards and medially with borders scorched. (iii) a gunshot wound 3k" x 1 i" on right side of chest, causing fracture of right clavical and three upper ribs, directed towards back, causing rupture of right side of heart and right lung."
10. During investigation on 31st March, 1971. The Police took into possession three empty .12 bore cartridges from the place where Hayat was killed. The same day seven empty .12 bore cartridges were taken into possession from the house of Saleh Muhammad P. W. Where Zafar lqbal and Sardara were killed. All these empties were sent to the expert. The two appellants were arrested on 7th Aril, 1971. Muhammad Hussain and Sultan appellants led to the recovery of gun P-l9 and gun P- 20 respectively on 10th April, 1971. These guns were also sent to the Fire-arms Expert. His report Exh.
P. L. L. Reveals that 8 of the empties had been fired from gun P-20, stated to have been recovered from Sultan appellant.
11. The appellants took up the position at their trial that they had been falsely implicated. They denied the suggestion that Mst. Sattan, sister of Sultan appellant had eloped with Saleh Muhammad, P. W. It was stated that her marriage had been arranged by the appellants' family themselves.
12. The learned Sessions Judge, S3rgodha, did not believe the prosecution story, as regards conspiracy or motive. He also rejected the evidence of Muhammad Sher and Dist Muhammad eye- witnesses as he did not believe that they were present. He, however, believed that Mst. Allan an3 Mst. Ghalam Bi were natural witnesses and has based his conviction on the basis of their evidence to the extent that it was corroborated.
13. Muhammad Sher. Dost Muhammad, Mst. Allan and Mst. Ghulam Bi have appeared as eye- witnesses of the occurrence. Muhammad Slier P. W. Gave the first information report to the Police.
The report is not delayed having been made at the police station within 21 hours of the occurrence at 10-30 p. m. When the police station is at a distance of four miles. Muhammad Sher however, makes considerable changes in his story at the trial. In the F.I.R. He names Muhammad Hussain, Sultan, Muhammad Ali, Fatta. Shera and Muhommad Yar but at the trial he substitutes the last four names with those of Ahmad, son of Bahu and Ghulam Hussain. He admits this mistake, but puts the blame on his lack of experience, as if the experience would make him wiser as well as more truthful.
It is important to note that Muhammad Sher lives in another part of the village. He has given no reason of his presence in the house of his uncle Saleh Muhammad P. W. And thereafter accompanying Hayat deceased to his cattle behak. All these facts indicate that either he was not present or is not telling the truth.
14. Dost Muhammad P. W. Was a guest at the house and was spared only because he was a guest.
His conduct, however, is unusual. He was so scared that he hid himself in the house of the kumhars and never cared to look after his hosts even after every one had gone away. He thought it wise to come out of the hiding only after the Police had arrived in the morning. Dost Muhammad did identify Ahmad, son of Bahu (acquitted), but that is of no consequence as he admits that the said Ahmad was shown to him by the Police before the parade.
15. Mst. Allan P. W. Was injured during the occurrence. She is the mother of Saleh Muhammad P. W.
She has stated that it was Soteywela when Muhammad Hussain, Sultan, Ahmad son of Bahu armed with guns and Ghulam Hussain armed with carbine entered her house. A gas lamp was burning and there was sufficient light. She saw Ahmad, son of Bahu accused firing at Zafar Iqbal deceased and then Sultan appellant firing at her husband Sardara deceased When she went forward she was hit by .a shot by the carbine of Chulam Hussain accused Mst. Allan is an old woman of 80 years. She admits that her eye-sight is weak but has stated that her sight was all right at the time of occurrence. During cross-examination she has stated that Muhammad Hussain appellant did not fire any shot at anyone of then.
16. Mst. Ghulam Bi P. W. Is the unmarried daughter of Saleh Muhammad P. W. She was living in the house of her father when the occurrence took place. She is not injured but being an inhabitant of the house was a natural witness. She has repeated the story narrated by her grand-mother Mst.
Allan P. W. And has also stated that she and Mst. Khatun her aunt, escaped injury as they had taken shelter behind a wall.
17. While no reliance can be placed on Muhammad Sher or Dost Muhammad P. Ws., the presence of Mst. Allan and Mst. Ghulam Bi P. Ws., cannot be doubted. They live in the same house where occurrence took place and are, therefore, natural witnesses. These two women have named Muhammad Hussain and Sultan (appellants) and Ghulam Hussain and Ahmad, son of Bahu as the assailants. Ahmad could not be identified at the identification parade while no parade was held in respect of Ghulam Hussain at all, even though he was an equal stranger to the witnesses particularly Mst. Allan. The statement of Mst. Ghulam Bi that she had known Ghulam Hussain is not believable as her knowledge of past residents of the village could not be better than her 89 years old grandmother. Ahmad and Ghulam Hussain were, therefore rightly acquitted.
18. Before coming to the case of the appellants it is necessary to discuss the question of death of Hayat and the question of conspiracy. The only person who has deposed to have seen the murder of Hayat is Muhammad Sher P. W. He has already been found to be not worthy of reliance. There was, therefore, no evidence to connect the accused with the incident. As regards the conspiracy, the learned Sessions Judge has not relied on the evidence of Allah Ditta the solitary witness of conspiracy and there is no reason to disagree with him. His narration of events indicates that the conspirators were discussing something else when he joined them, but started talking of the conspiracy only after his arrival. Again even though he was not one of the conspirators they never objected to his presence. This is surely odd and cannot be believed. Considering these aspects of the case, there is hardly any room for the revision.
19. Coming to the case of the appellants, it may be seen that the case of Muhammad Hussain appellant is no worse than those acquitted. Actually while some of those acquitted like Ahmad and Ghulam Hussain had been ascribed overt act of causing injuries, Muhammad Hussain is said to have fired at none. The gun recovered from Muhammad Hussain' has also not matched with any of the empties Muhammad Hussain appellant would, therefore, deserve the same treatment as those who were acquitted.
20. Sultan's case, however, stands on a different footing. While sifting the evidence of Mst. Allan and Mst. Ghulam Bi eye-witnesses the participation of Ahmad and Ghulam Hussain was found doubtful.
As discussed in the previous paragraph Muhammad Hussain's case was not different. But the prosecution story in respect of Sultan appellant finds strong support from the report of the Fire- arms Expert. The crime empties have been fired from the gun recovered from Sultan.
21. Muhabati (P. W. 13) and Nazir (P. W. 20) have attested the recovery of the gun at the instance of Sultan appellant. Nazir lived in Sargodha, five miles away and Muhabati had come to the police station by chance and as such were not the best persons to have joined the investi--gation, but their evidence cannot be rejected merely on this ground, particularly when they have no motive to make a false statement. Moreover, the circumstances of recovery of the empties and the gun and their despatch for examination to the expert are such that there is no possibility of any fabrication of evidence. The crime empties were des--patched more than two weeks before the gun was recovered. The prosecution evidence against Sultan, therefore, finds corroboration from the Firearms Expert and Sultan's participation in the occurrence cannot be doubted.
22. The result of the above discussion is that the appeal made by Muhammad Hussain appellant is allowed. The conviction and sentence of Muhammad Hussain is set aside. He shall be set at liberty if not wanted in any other case. Sultan's appeal is dismissed and the sentence of death passed upon Sultan is confirmed. The revision petition is dismissed.