The appellants Mulazim Hussain (31), Khuda Bakhsh (41), Muhammad Bakhsh (44), Rab Nawaz (31), Lakhna (34), Muhammad Yar (44), Farida (31), Allah Dad alias Dadu (31) and Allah Ditta (51) were tried together with Qadir Bakhsh (71) and Ismail Shah by the learned Sessions Judge Muzaffargarh who vide judgment dated 30th June, 1976 convicted them under sections 307, 452/149 and 148 of the Pakistan Penal Code for committing murderous assault upon Sattar (P. W. 11), Muhammad Ramzan (P. W. 15) and one Fazil house trespass and rioting and sentenced to-two separate terms of rigorous imprisonment for two years for the first two offences and one year R. I for the third.
Mulazim Hussain was also convicted under section 302, P. P. C. For causing the death of Allah Wasaya deceased and sentenced to imprisonment for life and fine of Rs. 2,000 or in default, to receive further rigorous imprisonment for one year. The sentence of imprisonment were to run concurrently. Qadir Bakhsh and Ismail Shah were, however, acquitted of all the charges. Mulazim Hussain has preferred a separate appeal (Criminal Appeal No. 819 of 1976) while the rest have filed a joint appeal (Criminal Appeal No. 802 of 1976) against their convictions and sentences. Both the appeals shall be disposed of by this judgment.
2. The case of the prosecution is that Khuda Bakhsh appellant of Basti Balanda Tehsil Bhakkar; District Mianwali, was married to Mst. Nooran Mai (P. W. i2) daughter of Sattar (P. W. 11) of Chah Khokhrishah-Wali Mauza Nawan Kot within the jurisdiction of Police Station Chaubara, District Muzaffargarh. The spouses lived together for about two years and then differences arose between the two families where--upon Allah Wasaya deceased and Muhammad Ramzan (P. W. 15) brothers of Mst. Nooran Mai brought her to their house where she gave birth to a baby girl Sharifan Mai.
Qadir Bakhsh brought Panchayat several times but they refused to send her back. She also fired a suit for the dissolution of her marriage. About a month and a half before the occurrence. Qadir Bakhsh together with Khuda Bakhsh and one Allah Wasaya Khokhar etc., visited Sattar (P. W. 11) and asked him to send Mst. Nooran back, But he and his son were not willing. The lady too was not agreeable whereupon Qadir Bakhsh and Allah Wasaya threatened her.
On the night between 24th and 25th of October, 1974 Mst. Nooran Mai (P. W. 12) together with her mother Mst. Allah Wassi, father Sattar (P. W. 11) and brothers Ramzan (P. W: 15) and Dildar slept in one kotha wbllo the other brothers Allah Wasaya and Allah Diwaya and their wives Mst. Sarwar Mai and Mst. Amiran Mai slept in another. At about 1-30 or 2 a.m., Sattar got up to urinate and when he opened the door of his kotha he saw Allah Wasaya Khokhar and Khawaja alias Khadim armed with guns besides Muhammad Bakhsh, Khuda Bakhsh, Rab Nawaz, Qadir Bakhsh, Lakhna, Muhammad Yar, Dadu, Allah Ditta and Farida armed with sticks. Another man, a Khokhar, was also present with three camels. Allah Wasaya and Khawaja fired one shot each while Muhammad Bakhsh, Khuda Bakhsh, Rab Nawaz, Qadir Bakhsh and Lakhna entered the room and forcibly lifted Mst. Nooran Mai while Qadir Bakhsh carried the infant. Ramzan (P. W. 15) intervened to. Rescue her when Muhammad Bakhsh and Lakhna, etc., injured him with sotis. On hearing the alarm her uncle Fazil also arrived but he too was assaulted. Allah Wasaya deceased and Allah Diwaya tried in vain to rescue her. In the meantime, Allah Yar (P. W. 14), Khuda Bakhsh, Barkhurdar, Piyara, Yara, etc., also arrived and then all of them chased the assailants and overtook them four killas away. Qadir Bakhsh (acquitted) raised a lalkara and exhorted his companion Allah Wasaya to fire straight at the pursuers whereupon Allah Wasaya and Khawaja fired hitting Sattar (P. W. 11) on the left foot and Allah Wasaya deceased and Ramzan (P. W. 15) both on the right thigh and they fell down. The assailants then ran away with Mst. Nooran Mai and the infant: Allah Wasaya deceased died on the spot. Sattar (P. W. 11) on the following day at 2 p.m. Lodged F. I. R. Exh. P. B. At Police Station Chaubara recorded by S. I./S. H. O. Khurshid Muhammad (P. W. 16).
3. Dr. Saeed Ullah (P. W. 7) on 26th October, 1974 at 12-00 noon performed the post-mortem examination of Allah Wasaya deceased and found eight inlet pellet wounds in an area of 4" x 4--- on the back of medial aspect of lower part of right thigh and five outlet pellet wounds. The femural vessels were found to be cut. The death had occurred due to shock and haemorrhage on account of the injuries which were sufficient in the ordinary course of nature to cause death.
On the same day, he also examined Sattar (P. W. 11) and found four fire-arm injuries on the foot with a fracture of the foot bone. At the same time he also examined Ramzan (P. .W. 15) and found six contused wounds, contusion marks and abrasion in addition to seven inlet pellet wounds in an area of 4" x 2--" on the medial aspect front of right thigh. He also examined Fazil and found two contused wounds and three abrasions.
The same doctor on 30th October, 1974, examined Allah Dad alias Dadu and found multiple fire- arm wounds on both the thighs caused within five to six days. The right femur was found to be fractured.
4. S. I. Khurshid Muhammad (P. W. 16) investigated the case. On 25th October, 1974 he recovered from the spot three .12 bore cartridge cases P. 11 to P. 19 vide memo. Exh. P. A. A. And a butt plate P. 10 vide memo. Exh. P. C. C. He also recovered two -12 bore cartridge cases P. 20 and P. 21 from the courtyard of the house vide memo. Exh. P. Z. These memoranda were also witnessed by Allah Yar (P.
W. 14) and one Barkhurdar. On the following day, i.e. 26th October, 1974, he recovered one '12 bore cartridge case P. 22 from Chah Utmeywala vide memo. Exh. P. S. Also witnessed by Alya (P. W. 8) and Allah Yar (P. W. I4). It appears that Mulazim Hussain appellant and one Muhammad Azam (absconder) were substituted for Allah Wasaya Khokhar and Khawaja Khokhar named in the F. I. R.
As culprits. He arrested Mulazim Hussain on 13th Novebmer, 1974 who on 17th November, 1974 led to the recovery of gun P. 8 together with its licence P. 16 in the name of Shera lambardar vide Exh. P. U., also witnessed by Alya (P. W. 8), Allah Yar (P. W. 14) and Malik Muhammad Hussain and Muhammad Nazir (not produced).
According to the Fire-arms Expert Malik Gul Sher Muhammad (P. W. 13), cartridge cases P. 17 and P.
20 matched with gun P. 8 vide his report Exh. P. W. 13/13.
5. The appellants pleaded not guilty to the charges and denied the allegations against them. While Qadir Bakhsh, Muhammad Bakhsh, Rab Nawaz, Lakhna, Muhammad Yar, Farida, Allah Dad alias Dadu, Allah Ditta, Mulazim Hussain and Ismail Shah denied their presence at the time of occurrence and attributed false implication due to enmity and party faction, Khuda Bakhsh stated that his wife Mst. Nooran Mai who was on a usual visit to her parents was not being Allowed by her father and brothers to return home. She had sent a message to take her back. On the night of occurrence, he alongwith Allah Wasaya, Khawaja and one Qadir Bakhsh, all Khokhars, had gone to the house of his father-in-law when Mst. Nooran accompanied them but her relations intercepted them. However, he managed to run away with his wife and daughter on a camel and did not know what happened later on. He examined Qutab Sher, Malik Ameer Muhammad and Allah. Wasaya D. Ws. In his defence while the rest led no evidence.
6. It will be noticed at the outset that besides some glaring inconsistencies, there is another important aspect which the prosecution has failed to explain. The names of Mulazim Hussain appellant and Muhammad Azam absconder do not find mention in the F. I. R. How--ever, later on, the prosecution substituted them for Allah Wasaya Khokhar and Khawaja alias Khadim Khokhar who are named in the F. I. R. As the assailants. Now, the name of Allah Wasaya Khokhar appears six times and that of Khawaja Khokhar three times in the F. I. R. They are also attributed specific and leading role. Admittedly, the persons mentioned in the F. I. R. As culprits were previously known to the first informant Sattar P. W.
11. Allah Wasaya Khokhar bad also visited him before as a member of the Panchayat. In these circumstances, any question about mistaken identity simply does not arise. Sattar P. W. Has himself denied having stated before the committing Magistrate that since he was injured and his son murdered, he was not in his full senses and due to mistake he had mentioned the names of Allah Wasaya and Khawaja for that of Mulazim and Azam in the F. I. R.
Even otherwise, his statement is full of material contradictions and inconsistencies. As an illustration, a part of his statement is reproduced below :- "My above statement that I did not know father's name of Mulazim Hussain accused is not correct. I do not know whether Mutazim Hussain is known by any other name or not. I did not state in my statement before the Police Exh. Ll. H, that Mulazim Hussain was known as Malaza (confronted, so recpyded). Kalu is the father's name of Mulazim Hussain. I might have mentioned the names of three persons wrongly in the F. I. R. Exh. P. B. Namely Allah Wasaya Khokhar, a person of Khokhar caste holding camels and a person known as Khawaja. Mulaaim Hussain accused had trot muffled his face. I did not state so in my statement before the C. M. That Mulazim and Azam absconder had muffled their faces (confronted, so recorded). I identified Ismail accused on the night of occurrence. I did not state in my statement before the C. M. That I had only heard the name of Ismail Shah and had dot identified him (confronted, so recorded). The night of occurrence was dark night. Ismail and his father were previously known to me. I might have stated in my statement before the C. M. That I did not know Ismail Shah accused and Azam absconder previously (confronted, so recorded). Azam absconder would be 30 years old. I cannot say whether he has moustaches or beard.
In view of the above, I have the least hesitation to find him a liar. He has gone to the extent of deliberately substituting Mulazim Hussain and Muhammad Azam for the real culprits. Thus, no credit whatsoever can be placed upon him and his testimony merits outright rejection. The testimony of the other eye-witnesses suffers from like defects.
7. It will also be noted that two of the co-accused, namely, Qadir Bakhsh and Ismail Shah, who were not only named in the F. I. R. As culprits but also ascribed specific role, were acquitted by the trial Court. Their acquittal has not been challenged in appeal or revision. Now, Qadir Bakhsh was an old man of more than 71 years and could not be expected to accompany the assailants on such an expedition. These false additions, too cast a serious doubt on the entire prosecution case.
8. For the reasons stated above, I accept the appeal, set aside the convictions and sentences of the appellants and acquit them.