Beerbal son of Waryam, Muhammad Nawaz alias Ballu and Anwar, sons of Shamad, residents of Chak No, 194/G.B. Jahangir, son of Sher, and Ahmad Yar son of Waryam, residents of Chak No, 512/G.B. Were tried under sections 148. 302 and 307 read with section 149, P. P. C. By the learned Additional Sessions Judge, Faisalabad, who, by his judgment, dated 25th July, 1979, acquitted Beerbal, Muhammad Nawaz alias Ballu and Ahmad Yar of all the charges but convicted Jahangir and Muhammad Anwar under sections 302, 307 and 325 read with section 34 of the Pakistan Penal Code. Under section 302/34, P. P. C. Both the convicts were sentenced to imprisonment for life and a fine of Rs, 500 each or in default in the payment thereof to suffer further rigorous imprisonment for three months each. For murderous assault on Haq Nawaz P. W. They were sentenced to rigorous imprisonment for seven years and a fine of Rs, 200 each or in default in the payment thereof to undergo further rigorous imprisonment for three months each. Under section 325/34, P. P. C. For causing injuries to Farid P. W. They were sentenced to rigorous imprisonment for six months and a fine of Rs, 100 each or in default in the payment of fine to undergo further R. I. For one month each.
All the sentences of imprisonment were ordered to run concurrently. The convicts have appealed.
Faiz complainant has filed Criminal Revision No, 799 of 1979 praying that : (i) sentence of convicts be enhanced to death : (ii) acquitted accused "be convicted and sentenced under section 302/307/149,...' ; (iii) all the accused "be convicted and sentenced under section 148, P. P. C." and (iv) heavy compensation may be awarded under section 544-A, Cr. P. C. The appeal and the revision petition shall be disposed of by this judgment.
2. The brief facts of the prosecution case are that on 15th February, 1977 at about 12 noon Faiz complainant, Muhammad Nawaz P. W., Alamsher and Farid (not produced) were preparing Gur in the field of the latter in the area of Chak No, 194/G. B. Haq Nawaz P. W. And Mst. Cullen deceased were peeling sugarcane at some distance from them. All of a sudden, Jahangir and Anwar appellants armed with hatchets, and acquitted co-accused, namely, Beerbal, Ahmad Yar and Ballu, armed with spear, gun and rifle, respectively, came there and attacked Haq Nawaz P. W. And Mst. Ghulan deceased. Ballu accused fired a rifle-shot at Mst. Gullan and Jahangir appellant gave a hatchet blow on the right side of her neck. Anwar appellant also gave a hatchet blow hitting her neck. Ahmad Yar fired a shot at Haq Nawaz hitting his right arm, as a result of which he fell to the ground and then Beerbal gave a spear blow on his right ear. Thereafter, Ahmad Yar and Ballu gave blows to Haq Nawaz with the butts of their gun and rifle and Jahangir gave a hatchet blow on his face. Farid (not produced) and Muhammad Nawaz P. W. Tried to rescue the victims, upon which Ballu accused injured Farid P. W. With the butt of his gun and Anwar appellant gave a hatchet blow to Muhammad Nawaz P. W. After the occurrence, the accused persons fled away and Mst. Gullan succumbed to her injuries at the spot.
Mst. Gullan was sister of Jahangir appellant. Two or three years prior to the occurrence she eloped with Haq Nawaz and contracted marriage with him. Jahangir appellant had been trying to get her back but his efforts failed. It is alleged that he harboured grudge against the deceased and her husband Hag Nawaz on that score.
Leaving Muhammad Nawaz P. W. With the dead body of Mst. Gullan, Faiz complainant started for Police Station Rajana but Abdul Gbaffar Sub-Inspector met him on the way at Adda Phalour and he reported the occurrence to him at 3 p. m. Vide his statement Exh. P. L. On the basis of which formal F. I. R. Exh. P. L./1 was recorded at Police Station Rajana at 3-30 p. m.
3. After recording the statement of the complainant, Abdul Ghaffar Sub-Inspector reached the spot. He prepared the injury statement (Exh. P. C.) and inquest-report (Ex. P. B.) of Mst. Gullan deceased and despatched her dead body to the mortuary for post-mortem examination. He secured some blood-stained earth from the place of her murder and made it into a sealed parcel vide memo. Exh. P. O. On 16th February, 1977 Javed Nisar Sub-Inspector took over the investigation from him. He arrested the appellants and Beerbal accused on 17th February, 1977 and Ahmad Yar and Ballu accused on 19th February, 1977. On the same day, i. e., 19th February, 1977, he recovered gun (Exh. P. 9) alongwith two cartridges (Exh. P. 10/1-2) from acquitted accused Ahmad Yar vide memo. Exh. P. T. He also recovered rifle (Exh. P. 11) and three bullets (Exh. 12/ 1-3) from acquitted accused Ballu vide memo. Exh. P. U. On 20th February, 1977 he recovered blood-stained hatchet (Exh. P. 6) from Jabangir appellant and made it into a sealed parcel vide memo. Exh. P. Q. On the same day he recovered blood-stained hatchet (Exh. P. 7) from Anwar appellant and made it into a sealed parcel vide memo. Exh. P. R. On the same day he recovered blood-stained spear (Exh. P. 8) from acquitted accused Beerbal and made it into a sealed parcel vide memo, Exh. P. S. After the investigation, the accused persons were challaned.
4. On 15th February, 1977 at 4 p. m. Dr. Zulfiqar Ali, Medical Officer, Primary Health Centre, Muridwala, examined Hasa Nawaz P. W, and found the following injuries on his person :-
(1) An incised wound 11" x I" x bone deep on chin and mouth lower lip cutting obliquely lower lip and mandible-mandible had been fractured through and the through.
(2) A contusion on right upper eye-lid.
(3) Contused wound lr x r on right side of forehead and above right eye-brow.
(4) Contused wound 2" x x scalp deep on right side of head.
(5) Contused wound 1" x x skin deep on right side of head 2" behind injury No, 4.
(6) Lacerated wound 3" x 2" x joint deep on the back of left elbow joint.
(7) Two punctured wounds 1" apart on the back of left elbow joint. Blood was oozing through the wounds.
(8) Incised wound 1" x x skin deep behind right ear pinna, cut- ting also upper part of external ear pinna.
Injuries Nos. 1, 6 and 7 were grievous and rest were simple. Injuries Nos. 1 and 8 were caused by a sharp-edged weapon, No, 7 by fire-arm and rest with blunt weapon. On the same day the same doctor examined Muhammad Nawaz P. W. And found the following injuries on his person :-
(1) Incised wound 1/2" x 1/4" x skin deep on the outer side of left: ankle joint transverse in direction.
(2) Abrasion 1" x 1r on right shoulder joint.
(3) A bruise 21" x is' on the. Right forearm 14" from right elbow joint.
(4) Two abrasions 1/2" x 1/16", 7/111" x 1/10" on the back of base of left ring and little finger.
All the injuries were simple in nature. Injury No, 1 was caused by sharp-edged weapon and the rest with blunt weapon.
On the same day, the same doctor examined Farid Khan P. W. (not produced) and found the following injuries on his person :-
(1) A contused wound 2" x 1/4" x skin deep on the right side of bead running from back forwards 4" above right ear.
(2) Right thumb was dislocated at the base with apparent deformity.
(3) Complained of pain in right shoulder joint.
All the injuries hdd been caused by blunt weapon. Injury No, 2 was grievous and the rest were simple.
On 16th February, 1977 at 10 a. m. Dr. M. Riaz Ali, Medical Officer, Civil Hospital, Toba Tek Singh, conducted the autopsy on the dead body of Mst. Gullan deceased and found the following injuries on it :-
(1) A large incised wound 6" x 3" x bone deep on back of neck.
(2) A large incised wound 6" x 2" x bone deep on right side of neck.
(3) An incised wound 11" x 1/2" x bone deep on right side of face below the right ear.
(4) An incised wound 31" x 1" x muscle deep on outer side of right upper arm.
(5) An incised wound 5" x 2" x muscle deep on upper part of the back on left side.
All the injuries had been caused by a sharp-edged weapon. The vertibra was detached and cut under injuries Nos. 1 and 2 and spinal cord was cut under injury No,
1. Injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. Injury No, 3 was grievous. In the opinion of the doctor, death was due to shock, haemorrhage and injury to vital organs.
5. In support of its case the prosecution examined three eye-witnesses, namely, Faiz complainant, Hag Nawaz and Muhammad Nawaz. It also relied on the evidence relating to motive and recovery of weapons at the instance of the accused persons.
6. The accused pleaded not guilty to the charge. They admitted that they were related inter se.
They further admitted that Mst. Gullan was abducted by Hag Nawaz and they tried to get her back but failed, and, therefore, harboured grudge against Hag Nawaz. They maintained that they had been falsely implicated due to enmity. Jahangir appellant admitted having caused injuries to Hag Nawaz P. W. But gave a different version of the occurrence as under :- " I am innocent. Mst. Gullan was tired of hard labour and humiliating life in the house of Hag Nawaz, therefore, she wanted to come to her parents. On her message, I went to bring her to my house on the day of occurrence, I reached near the sugarcane field, and Mst. Gullan on seeing me started towards me. Hag Nawaz tried to prevent her, on her refusal started giving toka blows to her. I snatched toka from him by inflicting two blows with my spiked stick to him. I caused injuries to Hag Nawaz with right and wrong side of toka and then I went to the P. S. I did not cause any injury to Muhammad Nawaz. I twisted the hand of Farid and threw him to the ground. The other accused were not there."
No evidence was led in defence.
7. After examining the evidence on the record, the learned trial Judge came to the conclusion that the F. I. R. Was recorded at the spot after the preliminary Investigation; the recoveries of spear and hatchets from BeerbaI, Jahangir and Anwar appellants were not believable and those of gun and rifle from Ahmad Yar and Ballu were of no consequence as no crime empty was recovered from the spot. He further observed that the eye-witnesses were interested and presence of Faiz complainant and Muhammad Nawaz P. W. At the spot was doubtful. He did not rely on the prosecution evidence against Beerbal, Ahmad Yar and Ballu and acquitted them of all the charges.
He accepted the evidence of Haq Nawaz P. W. Against the appellants and found its corroboration on motive and the medical evidence and consequently convicted and sentenced them as mentioned above.
8. The learned counsel for the appellants vehemently contended that the statement of Haq Nawaz P. W. Having not been believed against the acquitted accused could not form basis for the conviction of the appellants. He further submitted that there was no evidence on the record that Anwar appellant harboured grudge against Haq Nawaz over the abduction of Mst. Gullan, therefore, he could not be questioned about it and the learned trial Judge was not justified in acting upon his admission made in reply to such a question. Ghulam Farid's case was referred to in support of the above contention.
9. I have gone through the entire evidence with the help of the learned counsel for the appellants.
At the trial Faiz complainant alone furnished evidence regarding the motive. The relevant portion of his statement is as under :- "Mst. Gullan was sister of Jahangir accused. She married Haq Nawaz against the will of Jahangir with the connivance of her mother. Jahangir had been trying to get back Mst. Gillian but he failed to achieve his object, and thus he had a grudge against Gullan and Haq Nawaz. The accused are related to each other."
The question put to Anwar appellant was- "Is it correct that you alongwith other accused tried to get back Mst. Gullan but failed and thus you had a grudge against Haq Nawaz ?"
There was no evidence to that effect against the accused other than Jahangir and no such question could be put to them. In Ghulam Far id's case it was observed :- "Various High Courts in India have laid down in clear terms that unless a circumstance appears in evidence against accused person he cannot be questioned about it and that if any such question is put to him and in reply he admits the existence of that circumstance, the statement even if it amounts to a confession cannot be acted upon at the trial."
In the circumstances, the admission of Anwar appellant in reply to the question referred to above is excluded from consideration.
Anwar appellant had no direct motive against the deceased or the injured P. Ws. Faiz complainant admitted that Mst. Aisha (mother of Gullan deceased) lodged a case against him, Muhammad Nawaz, Haq Nawaz and others under section 366/376, P. P. C. On the abduction of Mst. Gullan. Haq Nawaz P. W. Admitted that Beerbal and Rajab were cited as P. Ws. In the said abduction case.
Anwar appellant is a brother of Beerbal and Rajab. Faiz complainant, Muhammad Nawat and Haq Nawaz P. Ws. Therefore, and a motive against Anwar appellant because his two real brothers figured as prosecution witnesses against them in the aforesaid abduction case. In the view of the matter, the ocular evidence against him would require corroboration from an unimpeachable source, but the same is not forthcoming. The case of the prosecution was that Mst. Gullan was given hatchet blows by Jahangir and Anwar appellants and the latter also gave a hatchet blow to Muhammad Nawaz. Mst. Gullan had five incised wounds while Muhammad Nawaz had four injuries out of which one was an incised wound. All these six injuries could also be caused by a single person. In the circumstances, the prosecution evidence against Anwar appellant is not sufficient to1 warrant his conviction and he is entitled to the benefit of doubt. Consequently, his appeal is allowed and he is acquitted of the charges against him. He shall be set at liberty forthwith if not required to be detained in any other case.
10. The case of Jahangir appellant, however, stands on different footing. He had a direct motive against Mst. Gullan and Hal Nawaz. He admitted in so many words that his efforts for the restoration of Mst. Gullan failed and he harboured grudge against Hag Nawaz on that score. His version was that Mst. Gullan having been tired of hard labour and humiliating life in the house of Hag Nawaz, sent a message to him ; he thereupon all alone went to bring her back and when he reached near the sugarcane field, she started towards him but Haq Nawaz tried to prevent her and on her refusal started giving blows to her ; he (Jahangir appellant) snatched toka from Haq Nawaz by giving two blows to him with his spiked stick and then caused him injuries with the right and wrong side of the toka. After examining this plea, I feel that it is highly unnatural and improbable.
According to the F. I. R., Mst. Gullan had eloped with Haq Nawaz P. W. It is in evidence that her mother Mst. Aisha lodged a case under section 366/376, P. P. C. Against Haq Nawaz, Faiz complainant, Muhammad Nawaz and others. It is also evident that till the day of occurrence Mst.
Gullan was living with Haq Nawaz as his wife to the grant annoyance of her parent family. In the circumstances, it is unbelievable that Jahangir appellant all alone would pick up the courage to go to the house of Hag Nawaz carrying only a spiked stick to bring back Mst. Gullan to his own house.
Spiked stick would normally cause a punctured wound. Haq Nawaz P. W. Had two punctured wounds (injury No, 7) but, according to the doctor, this injury was caused by a fire-arm. Having juxta-posed both the versions, I am of the view that there is no reasonable possibility of Jahangir appellant's version being true. This appellant had a very strong motive to do away with the deceased and Haq Nawaz P. W. It is admitted by him that all his efforts to bring back Mst. Gullan failed and he harboured grudge against Haq Nawaz on that score. The evidence of Haq Nawaz P.
W. Against Jahangir appellant thus finds substantial corroboration from the motive. In the circumstances, the prosecution case against him stands proved beyond all shadow of doubt.
However, with the acquittal of Muhammad Anwar appellant section 34, P. P. C. Is no longer applicable. The conviction of Jahangir appellant is, therefore, altered to sections 302, 307 and 325, P. P. C.
It is the prosecution's own case that Mst. Gullan had eloped with Haq Nawaz P. W. Jahangir appellant is her real brother. The murder was committed to vindicate the family honour, therefore, capital punishment was rightly withheld. The sentence awarded to Jahangir appellant on all counts is, therefore, maintained. His appeal stands disposed of accordingly. The State has not filed any appeal against the acquittal of Beerbal, Ahmed Yar and Ballu and nobody appeared on behalf of the petitioner/ complainant in Criminal Revision No, 799 of 1979. Having gone through the file I find that the order of their acquittal has the support of evidence and the view taken by the learned trial Judge was possible. The Criminal Revision No, 799 of 1979, therefore, fails and is dismissed. PLD 1950 B J 5