GHULAM MUIADDID MIRZA, J.---Mauloo, his brother Nawaz, their sister's husband Karam and Mauloo s son Nazir were tried for the double murder of Mst. Daulan and her relative Zil Muhammad, by the Additional Sessions Judge, Sargodha, who vide judgment dated 22-10-1979 acquitted Nazir and convicted the remaining three under section 302/34, P. P. C. On each count. Mauloo was sentenced to death while Nawaz and Karam were sentenced to life imprisonment for the murder of Mst. Daulan and a fine of Rs. 5,000 each or in default to undergo further R. I. Of 2 years. For the murder of Zil Muhammad, Nawaz was sentenced to death while Mauloo and Karam were awarded life imprisonment and a fine of Rs. 5,000 each or two years' R. I. In default of payment of fine.
The convicts have appealed against their conviction and sentences.
Reference under section 374, Cr. P. C. For the confirmation of death sentence of Mauloo and Nawaz is also before us. Atta Muhammad has filed Criminal Revision (Cr. R. No. 35 of 1929) which has been ordered to be heard alongwith the murder reference and the appeal. All these matters shall be disposed of by this judgment.
2. The incident was alleged to have taken place on 12-4-1977 at 11-00 a.m. In Chak No. 15/N.B. Six miles from Police Station, Bhalwal.
F. I. R. (Exh. P. Q.) was lodged by Riaz Hussain (P. W. 9) on the same day at the above-mentioned Police Station. It was recorded by Muhammad Tauqir Hayat, Sub-Inspector (P. W. 11).
According to Riaz Hussain complainant, his sister Msi. Daulan lost her husband Batee 15/16 years prior to the occurrence. After the death of her husband Mst. Daulan continued to reside in the house of her deceased husband. She inherited some agricultural land as well. Mauloo and Nawaz, nephews of Batee wanted to eject Daulan from the house and to take possession of the entire property of tile deceased.
A fortnight before the occurrence, Mst. Daulan had gone to see her daughter in Chak No. 15/N.B.
During her absence, Mauloo, Nawaz and Nazir forcibly occupied the house of Vst. Daulan, She tried to get the possession back through Punchayat but failed.
Two days before the occurrence at early morning Mauloo, Nawaz and Nazir had gone to the Dera when Zil Muhammad, Ata Muhammad, Ijaz, Mst. Daulan and Riaz Hussain re-occupied the house of Mst. Daulan.
3. On the day of occurrence at about 11-00 a.m. Riaz Hussain, Mst. Daulan, Zil Muhammad a relative of Mst. Daulan and Ata Muhammad Ijaz were sitting in the courtyard in front of the house of Mst.
Daulan, Mauloo, Nawaz and Karam armed with shot guns and Nazir co-accused (since acquitted) armed with Lathi came there. Nazir shouted that Zil Muhammad and others should be taught a lesson for taking possession of the house. Mauloo appellant fired a shot hitting Mst. Daulan on her right temple. Thereafter Mauloo, Nazir and Karam took shelter behind the wall of the house of Mauloo and fired at the complainant party. Zil Muhammad tried to take shelter behind the Baithak of Mst. Daulan but he was hit by Karam's shot. He tried to run away when Nawaz and Mauloo fired with their respective weapons. The shots bit him on different parts of his body. He fell down. Ata Muhammad rjaz and Riaz Hussain went inside a Kotha and saw the entire incident. Chan Pir Shah (P. W. 10) came to the spot with his licensed gun. He fired some shots in the air to save the complainant party. The accused ran away. The two injured died at the spot.
4. Investigation was conducted by Muhammad Tauqir Hayat, Sub. Inspector (P. W. 11). The officer after recording the statement (Exh. P. Q.) left for the spot. He prepared injury statement. Exh. P. S. And inquest report, Exh. P. T. Of Mst. Daulan. He also prepared injury statement, Exh. P. U. And inquest report, Exh. P. V. Of the dead body of Zil Muhammad deceased. . He collected blood-stained earth from the places where Mst. Daulan and Zil Muhammad had been shot dead and sealed the same into parcels vide memo. Exh. P. E. And P. F. Respectively.
Empty P. 10 was taken into possession by the Sub-Inspector, from the place of murder of Mst.
Daulan, vide memo. Exh. P. G. Two other empties P. 11 and P. 12 were taken into possession by the police officer from near the kitchen of Mauloo appellant, vide memo. Exh. P. H. Three more empties P. 13, P. 14 and P. 15 were also taken into possession from near the Kotha of Mauloo, vide memo. Exh.
P. J. He also took into possession four empties P. 16 to 19 vide memo. Exh. P. K. All the empties were made into sealed parcels.
Mauloo appellant was arrested on 15-4-1977. On 17-4-1977, on his pointing out his licensed gun P. 20 alongwith licence P. 21 were taken into possession from his Kotha, vide memo. Exh. P. L. The Police Officer arrested the remaining three accused, namely, Nazir, Karam and Nawaz from Sardarpur Road near Chowk Purana, Bhalwal, on 18-4-1977.
5. The prosecution produced Riaz Hussain (P. W. 9) and Chanpir Shah, (P. W. 10) as the eye- witnesses. Reliance was also placed on the recoveries referred to above and the medical evidence.
6. The appellants denied the allegations and pleaded not guilty. Mauloo gave his own detailed version as to how the incident took place. We think it necessary to reproduce the same which is to be following effect :- ---Mst. Daulan went to live with her daughter Mst: Sughran in the house of her husband Atta Muhammad, P. W. About 6/7 years after the death of Batee. About two years before the present occurrence she wanted to sell her two Kothas situated in the common courtyard of our Haveli to Shakoor and Ghafoor refugees. I asked her not to sell the Kothas to strangers and instead sell these to me. On her refusal I took the possession of those two Kothas as Mst. Daulan was not living there.
Some time before the occurrence Mst. Daulan gave an application to S. H. O. Bhalwal for restoration of the possession of the Kothas to her. The S. I. On inquiry found that I was in possession of the Kothas since long before and, therefore, expressed his inability to help her. On the day of occurrence. Mst. Daulan called Zil Muhammad deceased from Chak No. 17/N. B. Where he was living to take back forcible possession of the Kothas mentioned above. Zil Muhammad brought a large number of persons from outside in order to have forcible possession of the Kothas Zil Muhammad and Mst. Daulan entered the Haveli from the main gate while some of the assailants were posted on the Kothas towards the back of my Kothas adjacent to it. Those Kothas belong to Hayat brother of Zil Muhammad and Khuda Bakhsh his uncle. Mst. Daulan and Zil Muhammad deceased tried to break open the locks of those Kothas while some of the assailants climbed my roof and started digging it They wanted to pour some kerosene oil and burn my Kothas. Simultaneously shots were fired from all the four directions and I took shelter behind a shutter of the door of my Kothas. I picked up my, licensed gun and fired at random to save myself. The other three accused namely, Nawaz, Nazir and Karam were not present there. The marks of the bullets and pellets are still present on the doors of the room of the Kotha and the walls adjacent to it. I have been trying to bring it to the notice of Investigating Officers but they did not listen to me. As Ch. Mukhtar Ahmad D.
I. G/C.
1. D. Lahore, a relative of the complainant, had influenced the local police and was constantly in touch with them on telephone and was controlling the course of investigation.
7. Mr. Wasim. Sajjad, first/of all, dealt with the ocular evidence He submitted that the first informant was a close relative of the deceased Mst. Daulan. The relations between the parties were strained, hence the testimony of the first informant is to be very thoroughly scrutinized in order's to exclude the possibility of implication of innocent persons. In support of this, learned counsel cited the cases of Mahanda and others v. The State (1981 SCMR 23) and Talib Hussain v. Fazal Hussain and another (PLD 1976 SC 518).
While dealing with the evidence of Chan Pir an ex-Army man, learned counsel submitted that it hardly needs any consideration. His evidence is so unnatural that it straightway deserves to be discarded. Our attention was drawn to that portion of his evidence where he admitted that while firing in the air, he was putting the empties in the bag. Learned counsel submitted that demeanour of the witness was so abnormal as to exclude the possibility of relying on his evidence. Learned counsel further submitted that he did not give any reasonable explanation of his presence at the very precise moment when the murders took place. His testimony did not inspire confidence and learned counsel, therefore, wanted us to reject his evidence.
Before proceeding further, we would like to deal with this contention and after careful perusal of the evidence of Chan Pir, we are inclined to agree with Mr. Wasim Sajjad that his evidence is not worth relying. It is, therefore, rejected.
8. Reverting to the submissions of the learned counsel, it was argued that if once the testimony of Chan Pir is discarded, then the prosecution is, left with no other evidence from which the case could be proved against the appellants beyond reasonable doubt. The appellants were involved because of strained relations with the complainant party. In support of this, he cited the case of Yusuf and 3 others v. The State (1971 P Cr. L J 257).
Learned counsel further submitted that the investigation in this case had not been conducted in an honest way. This fact he tried to establish from the way the recoveries had been effected. It was contended that Mauloo appellant was arrested on 15-4.1977. Gun P. 20 was recovered on 17-4-1977 from his house. . Learned counsel submitted that how could it be possible for an accused who had committed a capital offence to come back to hi house which was so near to that of the complainant party and conceal the B weapon of offence there. It was contended that if at all, Mauloo bad committed the murder then it would be more natural for him to dispose of the weapon elsewhere rather than to bring to his own place which the Police was likely to search in the earliest available opportunity to them.
With regard to the other recoveries, it was argued that those were effected six days after the arrest of the accused. Learned counsel submitted that such recoveries were of no importance and as such the prosecution could not utilize them to strengthen its case. Reliance was placed on SaeeD v.
The State (1973 P Cr. L J 675).
We are of the view that the submission of the learned counsel is no devoid of force hence we are not prepared to rely on the recoveries.
Mr. Wasim Sajjad tried to argue that in this case some D. I. G. Was interested from the side of the complainant and the case against the appellants was registered due to this fact.
We have looked into this aspect, but there is no material on the record to support the submission of the learned counsel. His contention is accordingly repelled.
9. We have heard the learned counsel appearing on behalf of the State and the complainant.
Learned counsel for the State supported the judgment of the trial Court. He submitted that Chan Pir Shah (P. W. 10) had no animus to falsely implicate the appellants. Therefore, even if the recoveries are to be excluded, the evidence of the two eye-witnesses supported by the medical evidence leaves no room to doubt the participation of the appellants in the capital offence.
10. The prosecution case is to be examined from two angles-first, if the entire prosecution evidence is to be rejected, then there is nothing left for the prosecution to press into service, with the result that the appellants are entitled to acquittal. Secondly, if reliance is to be placed on some evidence, then that shall have to be examined in juxtaposition with the statement of Mauloo.
We have already rejected the evidence of Chan Pir Shah as well as that of recoveries. The only other evidence left is the statement of the com--plainant and the medical evidence. Before comparing this evidence with the statement of the appellants, it is necessary to discuss whether these two pieces of evidence are sufficient in law, to maintain the conviction of either of the appellants, because if Mr. Wasim Sajjad's submission that the complai--nant's statement is not to be relied upon without corroborative evidence and the medical evidence does not provide such corroboration, is to be accepted, even then the result would be the same, i.e. To say acquittal for all and there shall be no need to apply the doctrine of juxtaposition. We, therefore, proceed to examine evidentiary value of complainant's testimony and the medical evidence.
11. The complainant, as already observed, is a brother of Mst. Daulan. That itself is no ground to reject his evidence but we have to go further to make sure whether he was present at the spot and did he tell the truth.
After taking all the relevant facts into consideration we are of the view that the presence of the complainant at the time of occurrence was quite natural. The fact that Mst. Daulan was hit by a fire-arm is also proved beyond doubt from the post-mortem report (Exh. P.X.).
We don't agree withthe submission of the learned counsel that the medical evidence does not provide corroboration. On the other hand, we are of the view that it does. The reason for that is that according to Riaz Hussain, the first informant, Mauloo was armed with a shot gun. He also attributed the fatal shot to Mauloo. The fact that Mst. Daulan was hit by a fire-arm is proved by the post-mortem report, hence how can we ignore such an important piece of evidence.
We are, therefore, of the view that the statement of complainant duly supported by the medical testimony is sufficient, in law, to determine as to which of the appellants was guilty.
Now this evidence is to be examined in juxtaposition with the defence version. Learned counsel for the appellants has taken us through the state--ment of Mauloo and submitted that defence story was the correct narration of the incident. It was submitted that what Mauloo said was more probable whereas what Riaz Hussain deposed was doubtful.
We have considered this aspect of the case but we are not impressed with Mauloo's statement, the reasons for that are that Mauloo admitted in his statement that he trespassed into the house of Mst. Daulan whom he illegally dispossessed. Mauloo as such was an intruder. A trespasser has not right in law to use force to the extent of killing a lawful occupant and then claim the benefit of plea either of private defence or of property.
Mst. Daulan, a middle-aged woman, was empty handed. She was sitting in front of her house when she was shot dead. In such circumstances, how could an intruder be given the benefit of an exception to section 300 of the Pakistan Penal Code.
We, therefore, reject the statement of Mauloo and hold that he was rightly convicted and sentenced for the Murder of Mst. Daulan.
This leaves .Us to examine the case of the remaining two appellants. According to the first informant, after Mst. Daulan had been hit, Mauloo, Nawaz, Karam and Nazir took shelter behind the wall in front of the house of Mauloo and started firing. Zil Muhammad tried to take shelter when Karam fired his gun. Zil Muhammad tried to save himself when Nawaz and Mauloo fired at Zil, Muhammad with their respective guns. He was hit in the right shoulder, near the ear and also received injuries on the right side of the neck, chin and right upper arm.
Mauloo was the villain of the whole drama. Although Zil Muhammad had 9 injuries, out of those two were abrasions and according to the doctor's opinion, it were injury Nos. 2 and 4 which were found fatal. He also opined that injury Nos., 1, 2, F, 3 and 4 could be the result of one and the same snot.
Therefore, these injuries are more likely to be caused by one man's firing rather than three, firing simultaneously. So, to be on safe side, we give the other two appellants, namely Nawaz and Karam, the benefit of doubt and acquit them.
The appeal of Mauloo is dismissed. His conviction is maintained on both counts. His death sentence is confirmed.
There is no merit in the private revision which is hereby dismissed, in limine.