MIAN BURHANUDDIN KHAN, J.-Faqir Hussain, Nazir Hussain, Muhammad Aslam and Tufail were tried by the learned Additional Sessions Judge, Lyalpur for the murder of Mukhtar A.I, aged 22, son of Rahim Bakhsh resident of Chak No. 104 GB. On 13-12-1972 at 10 a. m. Faqir Hussain, aged 27, Nazir Hussain, aged 22 and Muhammad Aslam aged 2 , and Muhammad Tufail were found guilty. Faqir Hussain and Nazir Hussain were awarded death sentence subject to confirmation by the High Court, under section 302/34, P. P. C. And a fine of Rs. 1,000 each, and in default, to undergo two years' R. I. Muhammad Tufail and Muhammad Aslam appellant were awarded life imprisonment and a fine of Rs. 1,000 each, and in default. To undergo two years' R. I., vide judgment dated 16-5- 1974.
2. All the convicts filed appeal which was heard along-with Reference for confirmation of the death sentence awarded to Faqir Hussain and Nazir Hussain. The learned Judges altered the death sentence of Faqir Hussain and Nazir Hussain to that of imprisonment for life but their sentence of fine was maintained. Muhammad Aslam's appeal was dismissed and his sentence of life imprisonment and fine was maintained, while Muhammad Tufail was given the benefit of doubt and he was acquitted vide judgment dated ,6-5-1975.
3. Faqir Hussain, Nazir Hussain and Muhammad Aslam sought leave to appeal against the judgment and order of the Lahore High Court but leave was granted by this Court to Muhammad Aslam alone vide order dated 2-12-1978, while leave was refused to Faqir Hussain and Nazir Hussain. Leave was granted to Muhammad Aslam appellant on the ground that he, was alleged to have thrown a noose around the neck of the deceased ; andabrasions on the body of the deceased only prove that a rope was used but the abrasions cannot, by the nature of things, throw any light on the identity of the assailant who threw the noose around the neck of the deceased.
Moreso, neither of the eye-witnesses has said in their statements to the police that Muhammad '
Aslam had thrown the rope around the neck of the deceased.
4. According to the prosecution, on the fateful day the deceased Mukhtar A.I, along-with his brother Ghulam Nabi, P. W. And Mst. Allah Rakhi, who Ghulam Nabi, was returning from Chak No. 104/GB to Chak No. 106/GB where they had gone to participate in the Qul ceremony of the daughter of Ghulam Rasul (brother of Muhammad A.I and Ghulam Nabi) who had died on 11-12-1972. When they reached near Chak No. 106/GB, Aslam appellant, holding a rope in his hand, Tufail empty-handed, Nazir Hussain, with a sword in his hand and Faqir Hussain armed with a toka waylaid them, and they at once overpowered Mukhtar A.I deceased, tied him with the rope and took him to Square No. 18 where they tied him with a Shisham tree. The eye-witnesses Ghulam Nabi and Mst. Allah Rakhi raised hue and cry but no one came to rescue the deceased, and when they made an attempt to rescue him, Nazir and his companions threatened them also with death, and in their presence Nazir Hussain dealt sword blows on the head of the deceased while Faqir Hussain gave toka blows on his leg, who, after sustaining the injuries, died on the spot.
5. The motive, stated in the report Exh. P. A. By Ghulam Nabi P. W. Is that Mst. Naziran, sister of accused Faqir Hussain and Nazir Hussain was enticed away by the deceased, who, on this score had murdered the deceased. The report Exh. P. A. Was lodged by Ghulam Nabi, P. W. With the A. S. I.
Khadim Hussain P. W. 11, Police Post, Peoples Colony, Lyallpur, who sent the same to Police Station Jaranwala for registration of a case.
6. On arriving at the spot the A. S. 1. Khadim Hussain, P. W. 11 prepared the injury statement and inquest report of the deceased and sent the dead body to the mortuary for the post-mortem examination. At the time of his visit, he found the deceased tied with a Sheesham tree with a rope Exh. P.
7. With the same rope the bands of the deceased and the neck were also found tied. One leg of the deceased was found by him to have been completely severed and was lying near the body.
He sent all the articles and the leg to the mortuary. He arrested the accused on 15-12-1972. Nazir accused produced sword P. 1 which was blood-stained while Faqir accused produced blood- stained toka P. 2 which he took into possession vide Memo. Exh. P. F. He got prepared site plans Exhs.
P.D. And P.D./1 from Muhammad Ghaus Patwari.
7. Dr. Mumtaz Ahmad, P. W. 10 performed the post-mortem examina--petition on the dead body of Mukhtar A.I deceased. He had found a rope made of San tied around the neck of the deceased above the cricoid cartilage, on opening the knot, he found an abrasion 1/2" wide around the neck and above the cricoid cartilage. The doctor also found the following wounds on the dead body of Mukhtar deceased
(i) An incised wound 7--- x 1" on right parital region. Bone under--neath cut.
(ii) An incised wound 5' x 3/4" x bone deep, behind the right ear extending upward up to top of head;
(iii) An incised wound 4' x 3-8" on occiput 5' behind left ear. Bone underneath cut.
(iv) An incised wound around the right leg, below knee joint, lower portion of leg lying separately.
(v) A contusion mark 1 /3' on around both forearm just above the wrist joints.
8. Mst. Allah Rakhi, P. W. 9 and Ghulam Nabi, P. W. 10 furnished ocular testimony in the case, Ghulam Nabi is also maker of report Exh. P. A. And he is husband of Mst. Allah Rakhi, P. W. 9 and Mst. Allah Rakhi is the step-sister of Faqir Hussain and Nazir Hussain accused. He maintained that Mst.
Naziran, the real sister of Faqir and Nazir accused was betrothed to Mukhtar A.I deceased but on the death of her father Sharif, Faqir and Nazir accused refused to give her in marriage to the deceased. About 4.1/2 months prior to the occurrence Mst.Naziran eloped with the deceased and both of them got married by performing Nikah at Lyallpur. Daughter of his brother Ghulam Rasul, P.
W. Had died two days before the occurrence, and he and his wife Mst. Allah Rakhi had gone to Chak 106/GB to participate in the Gul ceremony of Ghulam Rasul's daughter on 13-11-1972. While returning from there, the accused waylaid them. Muhammad Aslam (who is married to Mst. Bashiran another sister of Faqir Hussain and Nazir Hussain accused) put a rope noose around the neck of the deceased and the other accused dragged him and tied him to a Sheesham tree. Thereafter Nazir and Faqir, who were armed with sword and toka, started giving blows to the deceased. He and his wife Mst. Allah Rakhi raised alarm but no one came to their help. After giving blows to the deceased, the accused decamped. He then proceeded to the police station and lodged a report.
9. Mst. Allah Rakhi, P. W. Gave similar statement and added that her late father Muhammad Sharif owned 6 Killas of land and that she had two more sisters Mst. Khurshid and Mst. Naziran. After the death of their father Mst. Khurshid and Mst. Naziran inherited some land and they alienated the same in the name of Faqir Hussain and Nazir Hussain accused and their third brother A.I Ahmad; that she also inherited some land from her father. According to her, Mst. Naziran was engaged to the deceased and that she had eloped with the deceased and had taken up residence at Lyallpur town.
10. The accused Muhammad Aslam, when examined, denied the charge but admitted that his wife is the sister of Faqir Hussain and Nazir Hussain accused and that Muhammad Tufail the acquitted accused was their friend. Regarding the elopement of Mst. Naziran, he stated that she bad disappeared from her brothers' house and was not traceable but they were not sure whethershe had married the deceased or not.
11. Learned counsel appearing for the appellant has drawn our attention tothe F. I. R. Wherein Ghulam Nabi, P. W. 10 had mentioned the roleplayed by Muhammad Aslam in the following words "The accused surprised us and overpowered Mukhtar A.I, tied him with a rope and took him to Square No. 18."
This rope was, in the same report, shown to have been in the hand of Muhammad Aslam, appellant.
12. He further referred to the statement of the two eye-witnesses which do not tally with their police statements wherein they had not mentioned that Muhammad Aslam accused/appellant had put a noose around the neck of the deceased. The learned counsel also referred to the cross- examination of Mst. Allah Rakbi during the course of which a question was put to her in reply to which she had stated that Muhammad Aslam threw a noose with a rope around the neck of the deceased while in her police statement Exh. P. A. It was found not to have been so recorded.
Similarly Ghulam Nabi was also asked the same question as to whether he had stated before the police that Muhammad Aslam accused/appellant had put a noose around the neck of Muhktar deceased after the other accused overpowered him and dragged him to Square No. 18. It was found that he bad not stated so in his police statement - nor in the F.
1. R. Exh. P. A. Nor he had stated that Tufail and Aslam accused bad caught hold of the rope-ends on both the sides and bad tightened the deceased thus.
13. The learned counsel further contended that both the eye-witnesses have improved upon their earlier statements and are not, therefore, worthy of credence. We have considered the contentions raised by the learned counsel in the light of evidence available on the record and find that Muhammad Aslam had been shown to havebeen in possession of the rope 1 at the inception of the attack; that this rope was recovered by the Investigating Officer who stated that at the time of his visit to the spot and examining the dead body, he had found the deceased tied to a, Sheesham tree with a rope P. 7 and with the same rope the bands and neck of the deceased were also found tied. Medical evidence also shows that there was a rope made of San tied around the neck of the deceased above the cricoid cartilage. There is, therefore, left no doubt in our mind that Muhammad Aslam accused appellant, who is also a brother-in-law of Faqir Hussain and Nazir Hussain accused had played a role assigned to him by the eye-witnesses co-accused although in the F. I. R. No detail of his participating in the crime, is given, but still it would not completely exonerate Aslam accused/appellant of the responsibility of sharing a common intention with the other accused.
Thus in view of the foregoing we maintain the conviction and sentence of Muhammad Aslam accused-appellant but in the circumstances of this case we extend to him the benefit of section 382-B, Cr. P. C. With this modification the appeal is dismissed.
M. Z. M.