' Kamal Mustafa Bokhary, J.-- Faiz, aged 35 years and Muhammad Hussain, aged 30 years, sons of Manda, were tried for the double murder of Gulzar and his wife, Niamat Bibi. The learned Additional-Sessions Judge, Sahiwal, on 1-3-1980, convicting both of them under section 302/34, P.P.C. Sentenced Faiz to death on two counts and ordered him to pay a fine of Rs,5,000 on each count or in default of its payment to undergo R.I.' for 6 months on each count. Muhammad Hussain was also convicted thereunder and was sentenced to imprisonment for life on two counts and to pay a fine of Rs,6,000 on each count or in default of its payment to further suffer R. I. For 6 months on each count. Both Faiz and Muhammad Hussain were also convicted under section 458/34, P.P.C.
And were sentenced to undergo R.t. For 7 years each. The sentences awarded to Muhammad Hussain were ordered to run concurrently. If realized, the fine was ordered to be paid to heirs of the deceased as compensation under section 544-A, Cr.P.C. The trial Court has sent reference under section 374, Cr.P.C. For confirmation of death sentence of Faiz, and the convicts have filed separate appeals against thier convictions and sentences. This judgment will dispose of both the murder reference and the two appeals.
2. On the night between 17th and 18th 'june, 1977 the appellants at mid-night time entered the house of the deceased and caused murder of Gulzar and his wife, Mst. Niamat Bibi, with hatchets and by strangulation. The occurrence was witnessed by Yar Muhammad, Sharif alias Shana and Hakim Ali P.Ws. Apart from four other persons who were given up as unnecessary. The appellants committed double murder because about 7/8 days prior to the occurrence their sister, Mst. Rani, wife of Billu, was abuducted by Allah Ditta son of the deceased and the latter when asked by the appellants refused to restore Mst. Rani.
3. Yar Muhammad (P.W. 6), husband of the sister of Gulzar deceased, went to Police Station, Mandl Heera Singh after covering five miles where on his statement formal F.I.R. Was lodged on 18-6-1977 at 5-00 a.m. The Investigating Officer, Ghulam Farid (P.W. 9), on arrival at the spot found the dead bodies lying in the house of the deceased and after preparing their injury statements and inquest reports he despatched the dead bodies to the mortuary. The Investigating Officer secured bloodstained earth from the two places of the two deceased. The appellants appeared before him on 20-6-1977 and produced blood-stained hatchets and blood-stained clothes. The Investigating Officer arrested them. Faiz appellant produced blood-stained hatchet P.4, blood-stained Chaddar P.5 and blood-stained shirt P.6 which were taken into possession vide memo. Exh. P.E. Muhammad Hussain appellant produced his blood-stained hatchet Exh.P.7 and blood-stained Dhoti P.8 and shirt P.9 which were secured, vide memo. Exh.P.F. All these articles were sealed into parcel. After completing investigation Police challaned the appellants in Court.
4. Dr. M.A. Rauf Bhatti (P.W.1), Medical Officer Tehsil Headquarters, Dipalpur conducted autopsy on the dead body of Gulzar, aged 57/58 years, on 19-6-1977 at 7.30 A.M. He found two injuries on his dead body. Injury No,1 was an incised wound 21" x 1" x cutting the jaw, blood vessels, nerves, muscles and partially cutting the third cervical vertebra on the right mandible transverse in direction while injury No,2 was an incised wound 31" x I" x lower part of chin was partially cut under the chin transverse in direction. The stomach contained 5 ounces of digested food material. In the opinion of the doctor both the injuries were grievous in nautre caused by sharp-edged weapon and the death was the result of shock and haemorrhage due to injury No,1 which was individually sufficient to cause death in the ordinary course of nature. The time given between the injuries and death was two minutes.
5. The same doctor on the same day at 8:30 a.m conducted post-mortem examination on the dead body of Mst.Niamat Bibi, aged 50/52 years, wife of Gulzar deceased and found two injuries on her person. Injury No,1 was an incised wound 21" x 1" x muscle deep under the chin while injury No,2 was four bruises varying in size from I" x V' to 3/4" on front right side of neck in an area of 21" x 1k" and on dissection subcutaneous tissue was found lacerated and contained effused blood. The stomach contained four ounces of the digested food material. Injury No,1 was simple in nature caused by sharp-edged weapon while injury No,2 was fatal and grievous caused by blunt weapon.
In the opinion of the doctor death had resulted from asphyixa caused by strangulation. The probable time between injury and death was given as 2 to 5 minutes.
6. The prosecution case as disclosed in the F.I.R. Was that the complainant was resident of Kot Jaimal Ram Dakhli in the area of Mauza Jhang Abdul Shah, district Sahiwal. About 7 or 8 days prior to the occurrence Allah Ditta son of Gulzar deceased had abducted Mst.Rani, wife of Billu Machi, their relation. The appellants, real brothers of Mst. Rani abductee, had visited the deceased a few days earlier for return of their sister, Mst. Rani but Gulzar and his wife, Niamat Bibi deceased, refused to restore Mst. Rani upon which the appellants were annoyed and went away but while leaving the appellants left a threat that they would avenge the abduction of their sister and will cause murder of Gulzar deceased and Niamat .Bibi deceased and their son Allah Ditta. After hearing this, dispute Mst. Khurshid and Mst. Zubaida, daughters of the deceased, 3harif son of Manda damad of the deceased resident of Jhuggian and Sharif alias Shana sun of Jaimal behnoes of Gulzar deceased resident of Gaddar Malkana visited the house of the deceased at Degarwela one day prior to the occurrence. They had been talking among themselves about abduction and at night time the complainant alongwith his wife Mst. Saidan also slept in the house of the deceased, the complainant being married to the sister of Gulzar deceased. Hakim Ali son of Gulzar was also present in the house. A lantern was burning. At about mid-night time the inmates of the house were awakened on a sudden alarm and saw that the appellants entered Haveli of Gulzar deceased armed with a hatchet each. The appellants raised a Lalkara that if anybody moved he would be killed because they had reached there to take revenge of their sister. In the meantime, Faiz appellant attacked Gulzar deceased with his hatchet when Gulzar was lying on Charpai in his courtyard and caused him injury on his jaw. Muhammad Hussain appellant also hit Gulzar deceased with his hatchet on chin of the deceased. The complainant and other persons present in the house raised alarm but the appellants were not satisfied with that murder and thereafter they attacked Mst. Niamat Bibi deceased, wife of Gulzar deceased, who was sleeping on a Charpai nearby. Both the appellants caught over neck of Mst. Niamat Bibi deceased and strangulated her. Faiz appellant then delivered hatchet blow from right side on the chin of Mst.
Niamat Bibi deceased. The complainant and other persons present in the house did not go near the appellants who escaped with their hatchets. Gulzar and Niamat Bibi deceased died at the spot.
Leaving the dead bodies at the spot the complainant went to the Police Station where the F.I.R. Was lodged as aforementioned.
7. At the trial the prosecution examined Yar Muhammad (P.W.6), Sharif alias Shahna (P.W.7), both married to the sisters of Gulzar deceased and Hakim All (P.W.8) son of the deceased. The recoveries of weapons of offence and blood-stained clothes of the appellants were proved by Dawood Khan (P.W.5) and Ghulam Farid (P.W.9). The appellants had appeared before Dawood Khan P.W. With their weapons and blood-stained clothes whereupon Daood Khan (P.W.) produced both the appellants before the Investigating Officer, Ghulam Farid P.W.
8. The appellants pleaded not guilty to the charge. They denied the recoveries of blood-stained weapons and blood-stained clothes. Faiz appellant pleaded that the complainant had insulted his father on the marriage of maternal-uncle of the appellants, named, Khan upon which the appellants belaboured the complainant due to which the complainant and other P.Ws.Had grudge and falsely implicated the appellants. Muhammad Hussain appellant similarly stated that he had been falsely implicated for the same reason. Mst. Rani, wife of Billu (D.W.1), sister of the appellants, was examined in defence who stated that she was never abducted by Allah Ditta, son of the deceased and ever since her marriage she had been living in the house of her husband Billu.
9. The learned trial Judge found that although the eye-witnesses were related to the appellants yet they had no motive to falsely implicate them, that the appellants were previously known to the prosecution witnesses and it was not a case of mistaken identity. Therefore, the learned trial Judge found that the ocular evidence in the case was corroborated by the motive, medical evidence and recoveries which proved the case of prosecution beyond reasonable doubt.
10. We have been taken through the entire evidence in this case which we have read and considered in the light of submissions made by the learned counsel for the parties.
11. The murders are alleged to have been committed in the house of the deceased situated in the Abadi of Kot Jaimal Ram Dakhli. Yar Muhammad complainant (P.W.6), Sharif alias Shana (P.W.7) and Hakim Ali (P.W.8) were examined by the prosecution as eye-witnesses of the occurrence. Yar Muhammad complainant P.W. Lived in a separate house in the same Abadi about 50 Karams away from the spot but claims to have stayed for the night in the house of the deceased alongwith his wife. Mst. Saidan, sister of Gulzar deceased. Sharif alias Shana P.W. Who was married to the sister of Gulzar deceased, was resident of Jhughian Jattan about three miles away from Abadi of Kot Jaimal Ram Dakhli where the murders were committed. Both of them were not natural witnesses of the occurrence and their presence at the spot to witness it is doubtful. The time of occurrence given by the prosecution is Adhi Rat of 17/18 June, 1977. The medical evidence supports the time of occurrence because the postmortem examination reports of the two deceased disclosed that their stomach contained digested food. It was a dark night. Although a burning lantern is stated to have supplied light at the time of occurrence yet it was not secured. Hakim Ali (P.W. 8), son of the deceased and Sharif alias Shana (P.W.7), married to the sister of Gulzar deceased, admitted in Court in their cross-examination that the appellants had muffled their faces at the time they committed the double murder. Hakim Ali P.W. Also deposed in cross-examination that they suspected the murders to have been committed by Khan, maternal-uncle of the appellants. The occurrence which took place at mid-night was reported at the Police Station, five miles away from the spot, at 5 a.m. Of the following day i,e, 18-6-1977. The Investigating Officer, Ghulam Farid (P.W. 9) deposed in cross-examination that after registering the F.I.R. At the Police Station he reached the spot at 7 a.m. Yet the dead bodies were sent from the spot at 4-30 p.m. On the same day as deposed in Court by Ghazanfar Ali (P.W. 3). As against this Yar Muhammad complainant P.W.
Deposed in his examination-in-chief that he reached the police station at 8/9 a.m. When the F.I.R.
Was registered on his statement. In cross-examination the same witness deposed that the police reached the spot at about 8/9 a.m. The fact remains that post-mortem examination on the dead bodies of the two deceased was conducted at Civil Hospital, Dipalpur on the following day of 19-6- 1977. Therefore, we are of the view that persons who caused the double murder were not identified by the eye-witnesses and the accused were named in the F.I.R. After deliberation and consultation.
There is no independent eye-witnesses in this case because the only natural witness is also son of the deceased while the other two are chance witnesses. The prosecution case is that the occurrence was witnessed by seven persons, four of whom were given up as unnecessary. The three eye-witnesses examined by the prosecution and all the given up woke up on the Lalkara raised by appellants before they entered the Haveli of deceased. The appellants caused murder of Gulzar deceased by delivering one blow each with their respective hatchets. It was then that the appellants turned towards Mst. Niamat deceased who was sleeping on a Charpai near Gulzar and caused her murder by throttling her. All this is unnatural and improbable. Either she was killed simultaneously when Gulzar was murdered by each of appellants else she could not keep sleeping after the alarm and after attack on Gulzar by her side. It is also not natural that appellants would feel it necessary not to use hatchet and instead throttle her to death. In the circumstances, we find that the ocular account is not worthly of reliance and the appellants are entitled to the benefit of doubt.
12. In the absence of any reliable ocular evidence in the case incriminating recoveries are of no avail. The prosecution case is that two days after the occurrence i,e, on 20-6-1977 the appellants went to Dawood Khan (P.W.5) where they produced blood-stained hatchets and bloodstained clothes and the latter produced it before Ghulam Farid P.W. Investigating Officer. It is not natural that the accused would retain the blood-stained hatchets for producing it before the police alongwith their blood-stained clothes. Dawood Khan P.W. Was a Zamindar of the area where the Investigating Officer had been camping and the deceased was his Moin. The recoveries were not made direct by the police nor were they effected at the instance of the appellants. The appellants had not .3een visiting Dawood Khan P.W. Before the occurrence. Therefore, vas also find that prosecution failed to establish recoveries of incriminating weapons and clothes of the appellants.
13. The motive alleged by the prosecution is far-fetched and remote. Even otherwise it does not stand proved. Mst. Rani was examined by the appellants as D.W.1. She deposed in Court that she was never abducted by Allah Ditta son of the deceased. No immediate motive for the murders was disclosed. We find that motive alleged by the prosecution has not been proved.
14. After considering the evidence in this case, we find that the prosecution has failed to prove its case against the appellants beyond reasonable doubt.
15. For the foregoing reasons, we accept the appeals and set aside the convictions and sentences of the appellants. By a short order we had directed release of the appellants if they were not required in any other case.
16. The death sentence of Faiz appellant is Not confirmed.