JAVID IQBAL, J.-(1) Noora son of Bahu, aged 40, armed with hatchet, (2) Shera son of Alam, aged 30, empty-handed, (3) Muhammad Mansha son of Mali, aged 50, armed with hatchet, (4) Ali son of Bahawal, aged 60, empty-handed, and (5) Khan son of Motalli, aged 24, armed with hatchet, have been convicted under section 302,1149, P. P. C. For the murder of Haq Nawaz, aged 26, and vide judgment dated 30th April, 1979 of the Additional Sessions Judge, Gujranwala, Noora was sentenced to death plus fine of Rs. 5,000 or in default to undergo five years' rigorous imprisonment whereas the others were sentenced to life imprisonment each plus fine of Rs. 3,000 each or in default to undergo three years' rigorous imprisonment. If the fine was realized from them, half of the same was directed to be paid as compensation to the heirs of the deceased. They were also convicted under section 148. P. P. C. And each of them was sentenced to one year rigorous imprisonment. They were like--wise convicted under section 458, P. P. C. For trespassing into the house of the deceased and each of them was sentenced to five years' rigorous imprisonment plus fine of Rs. 2,000 or in defult to undergo one year rigorous imprisonment. Sentences of imprisonment were ordered to run concurrently. Khizar Hayat s/o Nawab, their co-accused, was acquitted. The appeal of the convicts as well as Reference for the confirmation of death sentence awarded to Noora appellant are being taken up and disposed of together with Criminal Revision No. 639 of 1979 for enhancement of sentence of life imprisonment to appellants Nos. 2 to 5 to death by this judgment.
Appellants 3 and 5 are paternal-cousins and appellant No. 4 is uncle of appellants Nos. 3 and 5. He is also paternal-cousin of appellant No. 1. Appellant No. 2 is nephew of appellant No. 4. Thus, all the appellants are inter se related. Khizar Hayat, acquitted co-accused, was not named in the F. I. R. But was added subsequently in the course of investigation by the Police. He is not related to the others but was stated to be their friend.
The deceased, in the instant case, was married to Mst. Jannat P. W. 11, who was stated to be betrothed to Noora appellant but whose hand was refused by her parents.
2. The occurrence took place on the night between 5th/6th of September, 1975 within the courtyard of the house of the deceased in village Mendora Kalan, at a distance of six miles from Police Station Jalalpur Bhattian District Gujranwala. F. I. R. Exh. P. H. Was lodged by Mst. Jannat Bibi P. W. 9, sister of the deceased, at 7-00 a. m. On 6 September, 1975 and it was recorded at the Police Station by Mushtaq Ahmad S. I., P. W. 13.
3. The motive for crime, as stated in the F. I. R., is that about six months before the present occurrence the deceased was married to Mst. Jannat P. W. 11, who had been previously betrothed to Noora appellant, but the parents of the girl refused to give her hand to him and thus Noora and his Biradari retained grudge and did not participate in the marriage of the girl with the deceased. 1t was due to this grudge that Noora appellant alongwith others is stated to have com--mitted the murder of the deceased. The motive version is supported by Mst. Jannat P. W. 11, wife of the deceased, besides Mst. Jannat Bibi P. W . 9, sister of the deceased.
4. The prosecution has produced two eye-witnesses of the occurrence. These Are Mst. Jannat Bibi P. W. 9, sister of the deceased and Mst. Mehran Bibi P. W. 1,0, mother of the deceased. Mokha, father of the deceased, was named as an eye-witness in the F. I. R. But was not produced due to his death. Mst. Jannat P. W. 11, wife of the deceased, was not an eye-witness of the occurrence and there is no explanation on the record as to why she was not present on the fateful night in the house of the deceased.
5. Noora and Shera appellants were arrested on 7th September, 1975 whereas Khizar Hayat, acquitted co-accused, was arrested on 15 September, 1975 by Mushtaq Ahmad S. t., P. W. 13.
Muhammad Mansha, Ali and Khan appellants obtained bail before arrest and were not arrested.
The Police found them innocent in the course of investi--gation and in the challan they were placed in column No. 2. However, on 3rd March, 1976 they were summoned by the Magistrate on the complaint instituted as against them by Mst. Jannat P. W. 9 and they were sent up for trial to the Sessions Court alongwith others. Blood-stained axe P. 8 was recovered at the instance of Noora appellant and taken into possession vide memo Exh. P.
1. Dated 12th September, 1975. The attesting witnesses are Noor Muhammad P. W. 12, related to the complainant-party, Asadullah (not produced) and Mushtaq Ahmad S. I., P. W.
13. Similarly, blood-stained axe P. 9 was recovered at the instance of Shera appellant (who was stated to be empty-handed) and taken into possession vide memo Exh. P. K. Dated 14th September, 1975. The attesting witnesses are Pir Muhammad and Khushi Muhammad (both not produced) and Mushtaq Ahmad S. I., P. W.
13. No recovery was effected from any of the other appellants. According to the report of the Serologist Exh. P. M. At page 14 of the paper book both the above-mentioned articles were found to be stained with human blood.
6. The appellants, in their statements before the trial Court, totally denied having participated in the occurrence. The recoveries were disowned. They stated that they had been falsely implicated due to party-faction in the village. Noora appellant had also denied the motive version to the effect that he had been previously betrothed to Mst. Jannat P. W. I1 and that on the refusal of her hand he retained grudge. It was also stated that during the investigation of this case the story given in the F.
I. R. Was found to be false. Three of the appellants, namely, Muhammad Munsha, Ali And Khan had stated that they were found innocent in the course of investigation and that the version given in the F. I. R. Was false.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner: On the fateful night Mst. Jannat Bibi P. W. 9, sister of the deceased, alongwith Mst. Mehran Bibi, P. W. 10, mother of the deceased, and the deceased were asleep in the courtyard of their house while theth th lantern was burning. At about 10/11-00 of the night the appellants (excluding the acquitted co- accused), armed as described above, scaled over the wall of the courtyard and entered the courtyard of their house from the street side. Mst. Jannat Bibi P. W. 9, identified them in the light of the lantern although she came to know about their names and addresses afterwards. The inmates of the house woke up on the noise and witnessed that Ali appellant held both the legs of the deceased whereas Shera appellant held both the arms of the deceased, who was lying on his bed.
Then Noora appellant gave a hatchet blow on the chin of the deceased. In the meantime Mst.
Mehran Bibi P. W. And father of Mst. Jannat Bibi P. W. Advanced forward in order to rescue the deceased. But Noora appellant warned them not to come near otherwise they would also be finished. Consequently, they stopped. The second blow was given by Khan appellant with his hatchet which fell on the left eye of the deceased. The third blow was given by Mansha appellant with his hatchet which fell on the left shoulder of the deceased. The fourth blow was again given by Noora appellant with his hatchet which fell on the back side of the right shoulder of the deceased.
The fifth blow was given by Mansha appellant with his hatchet which fell on the left daula of the deceased. As a result, the deceased died on the spot. On the alarm of the eye-witnesses many people of the village were attracted to scene of crime, but in the meantime the appellants escaped by opening the front door from inside.
It may be noted at this stage that the names of the five appellants were mentioned in the F. I. R. But the name of Khizar Hayat son of Nawab, acquitted co-accused, did not figure in the same.
8. Dr. Muhammad Sadiq P. W. 5, conducted post-mortem examina--tion on the dead body of the deceased at 4-00 p.m. On 6th September, 1975 and found on his person incised wound on the left arm, incised wound 6" x 4----- reaching the root of neck and extending to left shoulder, incised wound 5----- x 3" cutting through the upper edge of the thyroid cartilage, incised wound 7" x 1----- cutting the lobule of left ear along with cut on lower eye-lid, incised wound on the root of left thumb, incised wound 3" x 2" on the right scapula on the top of right shoulder and incised wound 3" x ----- cutting through the neck bones on right side of root of neck. The death had resulted due to the second and seventh injuries which had caused shock and extensive haemorrhage. These injuries were sufficient to cause death in the ordinary course of nature collectively and individually.
All the injuries had been caused by sharp-edged weapon and death was instantaneous.
On 8th September, 1975 he performed medico-legal examination of Noora appellant on Police request and found on his person abraded contusion on inner back of right eye-brew and multiple abrasions on left side of nose. The injuries were simple and had been caused with blunt-weapon.
Noora appellant had stated in his statement before the trial Court that he had sustained these injuries in the course of his daily routine work. In any case, according to the prosecution version, there is no explanation as to how he received these injuries. Consequently, the injuries on the person of Noora appellant are not relevant so far as the case against him is concerned as they do not connect him with the commission of crime in the instant case.
9. We have heard learned counsel for the parties and carefully perused the record. About the motive, it is stated by Mst. Jannat P. W. I I that she had married the deceased about five months before the present occurrence and that since she was originally engaged to Noora appellant and the engagement was subsequently broken by her parents, Noora appellant nursed a grudge against her husband. She further stated that the accused-party did not participate and attend their wedding. In the cross-examination she stated that Noora appellant had never quarrelled with her parents on this account. In respect of motive it was argued by learned counsel that if Noora appellant had never quarrelled with the parents of Mst. Jannat P. W. On this issue, then how could he, after 5/6 months of her marriage with the deceased, think in terms of murdering the deceased in order to satisfy his grudge. It was submitted that the motive version was too remote to be accepted in the instant case. It was also pointed out that there was no explanation on the record as to why Mst. Jannat P. W. Wife of the deceased, was not present in the house when the deceased was murdered, although she was one of the inmates of the house and that she only appeared as a motive witness. It was next submitted that the prosecution produced only two eye-witnesses of the occurrence, namely Mst. Jannat Bibi and Mst. Mehran Bibi, sister and mother of the deceased. A perusal of their testimony before the trial Court indicated that their statements not only conflicted with one another, but the only inference which could possibly be drawn is that it was an unwitnessed night occurrence. Mat. Jannat Bibi P. W. Stated in the cross-examination that she did not know Khizar Hayat, acquitted co-accused and that she did not know if he was present in Court as an accused-person. He was not known to her. She further stated that since the accused-party had declared that they had come to avenge their annoyance over the marriage of the deceased with Mst. Jannat P. W., she had to arrive at the conclusion that they had committed the murder of her brother for this reason. She also stated that she told the Police that the persons, who had murdered her brother had declared that they had come to avenge the annoyance about the marriage of her brother with Mst. Jannat P. W. She stated that the lantern was burning for the whole of night in their courtyard as it had been so directed by their Peer. On the fateful night all of them went to sleep a little after Isha prayers. She also stated that she had not seen the appellants entering their house. On asking of the Police two of their neighbours had told them that the appellants had entered the house by scaling over the wall. They had guessed that the appellants might have entered the house by scaling over the wall. She further stated that after the escape of the appellants they made a conjecture as to wherefrom they had entered the house and that they had come to the conclusion that they entered the house by no other way except scaling over the wall. She stated that when she woke up, she saw that all the appellants were around the cot of the deceased and that one of the appellants had caught hold of the feet of the deceased while the other was holding him from his arms. She admitted that the appellants, who was holding the deceased from his feet had his back towards her. She stated that the police had interrogated the neighbours and made inquiries from other villagers about the incident and that the Police inquired from them and asked them to assist the Police as it was a night occurrence. She also stated that she did not know if two such persons, namely, Mian Rehmat Khan and Muhammad Rafique had appeared before the Police and asserted that the version given by her in the F. I. R. Was incorrect and that she had falsely implicated the appellants. She also did not know as to whether or not they had given a different, version of the incident. Mst. Mehran Bibi P. W. On the other hand, stated in the cross-examination that she had seen the appellants scaling over the wall and then entering the courtyard of the house. She and Mst. Jannat Bibi P. W. Had got up simultaneously and had identified the appellants when they had entered the courtyard of the house. She had not called out as to who they were but at the very sight of them she had apprehended that they had come to murder her son. She also did not call out her son or warn him about the arrival of the appellants.
Both the women had stated that they had fallen over the deceased when he was being inflicted injuries. However, Mst. Mehran Bibi P. W. Subsequently stated that she and her daughter had 'not fallen on the deceased. They were about to fall on him when they were threatened to keep away.
She stated that the following day the Police had called the whole of the village for making inquiries.
She admitted that a complaint was instituted by her daughter in respect of the incident. This complaint was filed because the police had let off three of the appellants dishonestly and on accepting bribe. She also stated that she did not know that the Police had introduced another person who had not been named by them as an accused-person in this case. She further stated that it was incorrect to suggest that .One of their neighbours had supported their version. In the light of these statements, learned counsel argued that since it was a night occurrence and the inmates of the house were asleep, they were not in a position to identify the assailants nor could definitely tell as to what was their number. It was submitted that there was conflict in the statement of Afsr. Mehran Bibi and Mst. Jannat Bibi P. Ws. As one stated that she had seen the accused-party scaling over the wall whereas the other had stated that she did not see them scaling over the wall.
If the culprits had been witnessed by the inmates of the house for having scaled over the wall they could have raised alarm and warned the deceased, who, in the meantime, could wake up. It was further submitted that a perusal of the testimony of both the women indicated that since it was a night occurrence, the Police bad to interrogate the neighbours and the villagers to find out as to who the assailants were. It was thin argued that Mushtaq Ahmad S. I., P. W. Was the Investigating Officer, in the instant case, who recorded the F. I. R. Exh. P. H. He stated in the cross-examination that on 15th September, 1975 Mian Rehmat Khan and Muhammad Rafiq appeared before hits in the course of the investigation and he recorded their statements under section 161, Cr. P. C. On the basis of their statements he arrested Khizar Hayat, acquitted co-accused. A second version which was different from the F. I. R. Was given by the aforesaid witnesses. He investigated both the versions and as a result of the same be came to the conclusion that the version contained in the F.
I. R. Was not correct. Accordingly, be put Muhammad Mansha, Khan and Ali appellants in column No. 2 of the challan and challaned Khizar Hayat, acquitted co-accused along--with Noora and Shera appellants. In the light of the statement of the Investigating Officer it was pointed out that in the course of investigation Muhammad Mansha, Khan and Ali appellants were found innocent and placed in column No. 2 and an additional person Khizar Hayat, acquitted co-accused, was introduced by the Police. This indicated that the version given in the F. I. R. Was incorrect. It was then submitted that Rehmat Khan P. W. 14 was produced by the prosecution in order to provide the other version. He stated in his examination-in-chief that Khizar Hayat, acquitted co-accused, came to him while he was sitting with Muhammad Rafiq and he told them that the police was likely to arrest him in the instant murder case. He further informed them that he was quite innocent and requested them to accompany him to the Police station so that the police may not torture him. He did not disclose anything about this murder to this witness. This witness at this stage was declared hostile and was cross-examined by the A. P. P. He stated that he did not state before the Police that Khizar Hayat, acquitted co--accused, had confessed before him about his implication in the murder of the deceased. He also stated that he did not inform the Police that Khizar Hayat, acquitted co-accused, told him about the raising of alarm of Choar Choar by the mother of the deceased. He did not know if Muhammad Mansha, Khan and Ali appellants had been arrested by the police in connection with this case. He bad not stated before the Police that Khizar Hayat, acquitted co-accused, had told him about the innocence of Muhammad Mansha, Khan and Ali appellants. In the light of this evidence it was argued that as it was a night occurrence and the assailants could neither be identified nor traced, the appellants were implicated merely on suspicion and conjecture. It was further argued that there were two versions of the incident and, therefore, it was evident that the version given in the F. I. R. Was not correct one. It was next submitted that according to the prosecution version, as given in the F. I. R. Shera appellant had held the deceased by his arms and he was not stated to be armed but was empty-handed.
However, it was at the instance of Shera appellant that human blood-stained axe P. 9 was recovered and taken into possession. No attesting witness was produced for this recovery except Mushtaq Ahmad S. I., P. W. So far as the recovery of human blood-stained axe P. 8 at the instance of Noora appellant was concerned, it was pointed out that the only public attesting witness, which was produced, was Noor Muhammad P. W. Who had stated in the cross--examination that his mother and the mother of Mat. Mehran Bibi P. W. Were real sisters and, therefore, he was closely related to the complainant-- side. It was submitted that no recovery could be effected from any of the other appellants. It was also argued that in the peculiar circumstances recovery evidence was take and must not be relied upon. It was argued that the ocular version was further unreliable because if the deceased was to be murdered by the assailants while he was asleep on a cot, then there was no need for two of the assailants to hold his arms and legs while the others inflicted hatchet injuries on the head and neck parts of his body. According to the learned counsel, the deceased had been murdered by some unknown assailants in the course of sleep while the inmates of the house were also asleep. Thus, it was an unwitnessed occurrence and the culprits managed to escape in the darkness of the night before the inmates of the house could wake up.
But since someone was to be held responsible for the commission of crime, all the appellants were falsely implicated on suspicion and conjecture due to the concocted motive that the hand of Mst.
Jannat P. W. Was refused to Noora appellant and, therefore, Noora appellant had borne a grudge and that he murdered the deceased alongwith his other relatives.
We have carefully considered the arguments of learned counsel and they are not without force.
First of all, if Noora appellant had borne any grudge for the refusal of the hand of Mst. Jannat P. W.
To him, then how could he have no quarrel with the parents of the girl on this account and furthermore why should he think in terms of murdering the deceased 5/6 months after her marriage. Thus, evidently the motive set up, in the instant case, is rather remote and unacceptable.
Next, the ocular testi--mony, in the instant case, does not appear to be reliable. It is mutually conflicting, for, had the two women seen the culprits scaling over the wall, they could have immediately raised alarm in order to warn the deceased that someone had entered the house. In our considered opinion, therefore, when the culprits entered the house, the inmates including the deceased were asleep. Apparently, it was a dark night and the occurrence took place at the later part of the night while the deceased was asleep. In such circumstances, if the culprits or assailants had come with the intention to murder the deceased, it was unnatural on their part that two of them should hold the arms and legs of the deceased while the others inflicted hatchet injuries on the upper part of his body. It is reasonably probable that the deceased was incapacitated to raise alarm with the first blow and then the subsequent blows were given. While the deceased was done to death without having any opportunity of raising alarm, the assailants managed to escape unidentified and unwitnessed. The nature of the injuries on the person of the deceased discloses that they could have been administered by one or two persons. It is, therefore, obvious that it could not be ascertained as to what was the number of the assailants. The story of the lantern being lit for the whole night because the Peer had stated so is also not convincing. Furthermore, when the F.
I. R. Had been lodged and the Police had come to investigate the crime, since it was a night occurrence, they interrogated the neighbours as well as the other villagers. In the course of the interrogation as disclosed by Mushtaq Ahmad S. I , P. W. Another version was given by the neighbours which was different from the one contained in the F. I. R. In the light of this version Muhammad Mansha, Khan and Ali appellants, were placed in column No. Z as they were found innocent and instead Khizar Hayat, acquitted go-accused, was added. All this leads to total confusion. We note that the Police sent up the challan as against Noora and Shera appellants as well as Khizar Hayat, acquitted co-accused. But since the Police had placed Muhammad Mansha, Khan and Ali appellants in column No. Z, a private complaint was instituted as against them which was sent up by the Magistrate to the Sessions Court for trial. The Sessions Judge consoli--dated the two cases. i.e. The challan case and the complaint case and proceeded, after recording the evidence in the consolidated cases, to pronounce one judgment. It has been argued before us by learner: counsel that he should have not followed this course. We agree with learned counsel that in such circumstances he should have tried two case separately, should have recorded the evidence separately and should have passed two separate judgments. But this was not done irrespective of the illegality committed in the course of the trial, in the peculiar circumstance of this case, we are of the considered view that any direction of retrial or the two cases separately would not serve any purpose because even o merits the case made up by the prosecution against the appellants is of a doubtful nature. Apart from the unreliability of the motive version and the ocular testimony, the recovery evidence, in the instant case, does not appear to have any corroborative value. It is unreliable on its own.
In the light of the above discussion, we are convinced in our mind that the prosecution has not succeeded in establishing its case as against the appellants beyond any shadow of doubt and the benefit of doubt should have been given to them which we hereby give to the appellants. The result is that their conviction as well as sentences awarded to them are hereby set aside and they are acquitted. The appeal is accepted. Shera and Ali appellants are already on bail. Their bail bonds shall stand discharged. Noora, Muhammad Mansha and Khan appellants shall released from jail forthwith if they are not wanted in any other case.
The death sentence awarded to Noora appellant is not confirmed.
In the light of the above discussion Criminal Revision No. 639 of 1979 is without any substance and it is accordingly dismissed in limine.
Death sentence not confirmed.