BASHIRUDDIN AHMAD, J. --- Sher Muhammad(32), Muhammad Ramzan (40) and Mahmood Khan (32), were tried for the murder of Ghulam Mohd. In furtherance of their common intention on the night intervening the 5th and 6th of May 1968, by the Additional Sessions Judge, Muzaffargarh, who convicted each one of them under section 302;VIth the application of section 34, P. P. C. To suffer death.
2. Sher Mohammad and Mohd. Ramzan have preferred a joint appeal challenging their conviction and sentences, while Mahmood Khan filed a separate appeal impugning the correctness of his conviction and sentence. The case is also before us on reference under section 374; Criminal Procedure Code, for confir--mation of the death sentences. -This judgment will dispose of both the appeals and the reference.
3. According to the prosecution; on the night of the occur--rence the deceased was sleeping near a wheat stack, when at about mid-night he was assaulted by the appellants, Mahmood Khan sat on the chest of the deceased who lay on a cot near the stack. Shera gave a kulhari blow to the deceased do the face while Ramzan gave chhura blows to him on the neck. Kalu who was also guarding his crop at a distance of 100 karams from the place of occurrence had raised alarm which attracted Muhammad Usman to the spot. He was sleeping at his house at a distance of about 100 or 150 karams from where the deceased was sleeping. Muhammad Usman flashed, the torch light and witnessed the assault on the deceased. So did Juma, Allah Wasaya and Kalu. They tried to intervene and on seeing them, the assailants escaped in the darkness. Ghulam Mohammad died instantaneously.
4. The motive for the murder was the illicit intimacy between Mst. Phaphal, wife of Kaura and the appellants which they had developed some 18 months before the present occurrence. One day when the husband of Mst. Phaphal was away to Dera Ghazi Khan, the appellants visited Mst.
Phaphal and were sitting with her at her house when the deceased chained them in that situation, bolted the door from outside and went to inform Muhammad a brother of Mst. Phaphal. In the meantime, the appellants managed to pull out the door frame from its hinges and managed to escape.
5. After the occurrence, Usman, father of the deceased went and informed Ahmad Ramzan Chairman in the village about the occurrence Ahmad Ramzan came to the spot and then accom- -panied Usman towards Kot Adu Police Station, but in the way they came across Assistant Sub- Inspector Wasim-ud-Din (P. W. 15) who was attached to Sanawan Police Station at that the, and Usman made to him the statement Exh. P. A. At 10-00 a.m. On the 6th of May 1968. .The statement was recorded at village Hala on the road leading from Muzaffargarh to Kot Adu, where the Assis-- tant Sub-Inspector happened to' be , present in connection with patrol duty. The statement was endorsed to Kot Adu Police Station where a case was registered at 11-00 a.m. The same day by H. C.
Hameed Ali. The Assistant Sub-Inspector proceeded to. The place of occurrence in the area of Parhar Gharbi, prepared the injury-sheet and the inquest report and then despatched the dead body to the mortuary for post-mortem examination. He took into possession blood-stained earth from the spot and sealed it into a parcel. Mohd. Usman complainant produced the torch Exh. P. 1 which was taken into possession by the investigating officer.
The case was, partly investigated by Sub-Inspector Qamar-uz---Zaman (P. W. 16) who arrested Sher Muhammad appellant on. May 7, 1968. He led the police to Hajiwala well and got recovered blood-stained hatchet Exh. P. 3 from under a heap of straw. The hatchet was made into a sealed parcel, Mohd. Ramzan appellant came to be apprehended on May '8, 1968. He took the police to his bhana in the area of Chah Kakar Sahuwala dakhli Parhar Gharbi and got recovered blood-stained chhuri Exh. P. 2 which had teen buried in the ground. It was taken into possession and sealed into a parcel. The recoveries of the incri--minating articles were witnessed by Ghulam Muhammad (P. W.
7) and Ahmad Yar (not produced). It may be stated here that the weapons recovered at the instance of Sher Muhammad and Muhammad Ramzan were found by the Serologist to be stained with human blood. Mahmood Khan was arrested on May 8, 1968.
6. Dr. Muhammad Iqbal (P. W. 1) held autopsy on the dead body of Ghulam Muhammad on May 7, 1968 at 9-00 a.m. And found the following injuries :-
(1) An incised wound 4--" in length transverse on the front and right side of the neck on the lower part. The right half of the wound was 2--" x 1--" and deep to the 5th cervical vertebra which was incised on its right side --" deep and also carotid vessels (artery and vein) on the right side, incised completely along with the muscles on the right side of the neck.
(2) Incised wound 3' in length transverse --" above injury No. 1. The right half of the wound was 1 --" x --" x 1" deep-cutting underneath the muscle on the right side of the neck. The left half was only skin deep.
(3) Incised wound transverse 3--" in length on -the right side of the neck, --" above injury No. 2. The right half of the wound was 2--" x --" x 1" deep cutting underneath the neck muscle on the right side. The left half of the wound was only skin deep and was transverse in direction.
(4) Incised wound 2--" x 1" skin deep on the lower part of the chin, just above the neck.
(5) Incised wound 3--" x 1" x --" deep oblique in direction on the right side of the face near the left angle of the mouth.
Death in the opinion of the doctor, occurred due to shock and haemorrhage resulted from the cutting of the carotid vessels' on the right side of the neck:, Injury No. 1 was sufficient to cause death in the ordinary course of nature.
7. The appellants pleaded not guilty to the charge and denied the prosecution allegation's against them. They professed innocence: Sher Muhammad said further in his statement that the complainant and his witnesses used to take water from his tube-well for irrigating their fields. They failed to pay to Sher Muhammad the dues for the use of water and he stopped them from taking the water from his tube-well for irrigation. They started harbouring a grudge against him. Sher Muhammad also submitted that he appeared as a witness against the father-in-law of Kalu P. W. 2 or 3 months before the present occurrence.
8. No evidence was called in defence.
9. At the trial, Muhammad Usman (P. W. 9), Jumma (P. W. 10), Allah Wasaya (P. W. 11) and Kalu (P. W.
12) furnish--ed direct evidence.
Muhammad Usman is the father of the deceased: Jumma P. W. Is married to-a sister of Muhammad Usman. Allah Wasaya P. W. Is the son of Ahmad. The father of Usman was a cousin of Ahmad, father of Allah Wasaya Kalu P. W. Is also related to Usman, father of the deceased. In order to understand the exact relationship, we reproduce the relevant portion from the statement of Kalu P. W. Which runs :- "One Lal is my father-in-law. Gaman is the brother of my father-in-law. Ahmad Bakhsh P. W. Is the cousin of my father. My paternal uncle's wife Mst. Suhagan is Mohana by caste. The said Sohagan is the wife of Ahmad Bakhsh P. W. The mother of Usman and Sohagan are related. But I do not know the precise relationship."
10. After going through the statements of the eye-witnesses, a that they are related utter se and also to the deceased Admittedly, the occurrence took place in the dark part of the night. It is in the statement of Muhammad Usman that the deceased was sleeping at a distance of about 100 or 150 karams from his house near a wheat stack. Usman was sleeping at his house when he heard the outcries raised by Kalu, was present at a distance of 100 karams from the place of occurrence.
Muhammad Usman says that after hearing the dhar dhar from the side of the wheat stack, he had in the first instance gone to the house of Jumma P. W. And had awakened him. It is in evidence that the house of Jumma is at a distance of 100 or 150 karams towards the south of the place where the deceased was sleeping. Muhammad Usman continued that he woke up Jumma and requested him to accompany him to the scene of crime. They were still at a distance of 15 or 16 karams from the wheat stack when they came across Allah Wasaya P. W. And Ahmad Bakhsh (not produced).
We are called upon to believe that Usman along--with Jumma P. W. Rushed towards the spot and Usman flashed the torch light which he had with him and they saw in that light Mahmood sitting on the chest of Ghulam Muhammad deceased, who was lying on a cot near the wheat stack, that within their sight Shera gave a kulhari blow to Ghulam Muhammad on the face, while Ramzan gave a chhuri blow to the deceased on the neck. The father of the deceased had been sleeping at his house. He woke up when he heard the cries raised by Kalu who says that he was sleeping at a distance of 100 karams from the place of the occurrence towards the south. He woke up at mid- night to urinate and again lay himself on the cot. He heard the sound of approach--ing foot steps, and enquired as to who was going that way. Kalu would have us believe that Sher Muhammad appellant replied that he and others wanted to kill Ghulam Muhammad. It was after Kalu had ascertained from Sher Muhammad that he and others were going to kill Ghulam Muhammad that Kalu raised an alarm. The assailants had yet to go a long distance to kill Ghulam Muhammad and if Kalu raised the alarm immediately, the assail--ants could not be so foolish as to proceed to finish the job realising full well that not only Kalu but others would immediately reach the spot. The assailants, whosoever they were, had selected dark portion of the night for perpetrating the crime and we are not prepared to believe that when Kalu on hearing the sound of approaching foot steps questioned them, Sher Muhammad so openly declared that they were out to kill Ghulam Muhammad, Kalu has direct enmity with Sher Muhammad appellant. He admitted that one Muhammad Yar brought an application against his father Lal and Gaman before the Union Council for the recovery of some amount and that Sher Muhammad had appeared as a witness against the father of Kalu four or five months before the occurrence under consideration. Kalu admitted further that Muhammad Yar initiated criminal proceedings against him, Usman P: W. And others in the Court of the Revenue Assistant and Mahmood Khan appellant was a prosecution witness in that case against them.
11. Allah Wasaya P. W . Also admitted that he was involved in a criminal case alongwith Jumma and Usman P. Ws. About 2 or 3 years ago. The case was regarding dispute over the land and Mahmood Khan appellant happened to be Patwari Halqa where the land was situated. It is in the statement of the complainant that Sher appellant is the owner of a tube-well and Usman received water for purposes of irrigation from the tube-well of Shera. The complainant admitted further that they utilized tube-well water for irrigation for one year, but repudiated the suggestion that Sher appellant discontinued the supply of water because they failed to pay him the water charges. The denial by Usman that the supply of water was discontinued because they did not pay water charges to Sher appears to be false because in reply to the next question in cross-examination Usman was constrained to admit that for one year, their lands had remained uncultivated for the reason that water was not available, It is thus clear that Usman had a motive to depose against Sher appellant. Allah Wasaya to cannot be held to be disinterested. He is definitely inimical to Mahmood Khan appellant. Kalu P. W. Also admitted with Mahmood Khan, who appeared as a witness against him and others in a criminal case.
12. The story narrated by the eye-witnesses as to how they saw the assault on the deceased in a dark night suffers from a number of infirmities making it impossible to believe. Kalu is a star witness. It was on the alarm raised by him that the com--plainant, who was sleeping in his house at a distance of more than 100 karams, woke up. He went to the house of Jumma P. W. And woke him up. Allah Wasaya P. W. Was present at Mohane--wala well guarding his cattle. We find that ,Kalu said in his statement that he was present at Chah Girewala guarding his crop and woke up at mid,-night to urinate. He again lay down on the cot and was awake when he heard the sound of approaching foot--steps and enquired as to who was there, and Sher Muhammad told him to keep quiet as they were going to kill Ghulam Muhammad. It was from a distance of 50 or 60 karams that Shera had told Kalu to keep quiet and also said that he and others were going to kill Ghulam Muhammad deceased. Kalu stated to the police that Shera and his co-accused had come near him to tell him to keep quiet. Kalu did not state before the Com--mitting Magistrate that Sher had told him that they were going to kill Ghulam Muhammad. Kalu continued that Shera and others were at a distance of 100 karams from the place of occurrence when Shera told him to keep quiet. Kalu goes on to say that he raised alarm immediately. It is not believable that in the circum--stances the assailants were not deterred from going to the spot and killing Ghulam Muhammad. The police had shown, in the plan that Kalu was present at a distance of 15 karams from the spot. Kalu himself gave the distance as 100 karams. The discrepancy is material, Kalu claimed that Usman flashed the torch light immediately while he was still near his house which is 100 karanis away from the wheat stack where the deceased was sleeping. We doubt if the eye- witnesses saw the assault on the deceased. Kalu says that there were 40 or 50 wheat and bhoosa stacks all round the place of occurrence and the height of the stacks varied from five to 8 feet. The deceased was sleeping on a cot, which was surrounded by these stacks. Even if it be believed that Usman had a torch, still he or Jumma could not have possibly seen the occurrence from a distance as wheat and bhoosa stacks were there to interrupt the view. Usman did not mention in his statement either to the police or the Committing Magistrate that the assail--ants had taken away the weapons with them at the the of their escape. He omitted to mention either to the police or in his state--ment before the Committing :Magistrate that they pursued the culprits, but they escaped in the darkness. These omissions also lend support to the view that they did not see the ass4L't on the deceased. Usman stated that he went to the house of Jumma was woke him up. To the contrary, Jumma stated that he woke up on hearing dhar dhar. Jumma said further in his statement that Usman flashed the torch when they reached the wheat stacks and not earlier. The statement of Kalu is to the contrary. He deposed that Usman flashed the torch light from a distance of 100 or 150 karams. Jumma continued that there were wheat stacks between the place from where Usman flashed the torch light and the spot and that they were still at a distance of 10 or 12 karams when the assailants escaped and that they did riot pursue the culprits. Allah Wasaya did not state to the Committing Magistrate that on the night of the occurrence, he was lying awake guarding cattle. To the contrary, he stated to the police that he was asleep at the the of the occurrence. The witness continued that they did not raise any alarm while running towards the spot. This conduct on the part of the witnesses was certainly something unnatural. We entertain serious doubts as regards the claim o the eye-witnesses that they had seen the assault on the deceased.
13. The probabilities favour the view that nobody saw the occurrence and the murder came to light in the morning. None from the surrounding bastis except the so-called witnesses came to the spot.
The house of Ahmad Ramzan, Chairman is at a distance of one mile from the spot and yet no one was sent by Usman to inform him about the occurrence during the night. It is in evidence of the complainant that there are wells on all sides of the place of occurrence and that there are a number of houses at the wells not very far away and still none came to the spot on hearing the alarm. It is in the statement of Jumma P. W. That none else had come to the spot till sun-rise.
Ahmad Ramzan, Chairman came to the spot at sun-rise and it was under his advice that Usman left in order to make .a report to the police. These are clear indications that the murder of Ghulam Muhammad came to light at sun-rise and not earlier.
14. The manner in which the killing was made, as stated by the so-called eye-witnesses, does not appeal to reason. We are told that Mahmood Khan was sitting on the chest of the deceased holding his arms. It could have only resulted in injuries being caused to him, if Shera gave a kuthari blow to the deceased on the face while standing towards the head-side of the deceased and Ramzan caused him injuries on his neck. We are not prepared to accept the account of the so- called eye-witnesses.
15. The story of the motive is also not convincing. Mst. Phaphal (P. W. 13) stated that she was carrying on with all the three appellants for 11 years before the occurrence and on one occasion when her husband was away to Dera Ghazi Khan, the appellants visited her and Ghulam Muhammad deceased on seeing them in her house had bolted the door of the kotha from outside, but the appellants removed the door planks from the hinges and managed to escape. Mst.
Phaphal said further in her statement that the appellants had visited her in the morning.
Muhammad, a brother of Mst. Phaphal, stated that Ghulam Muhammad deceased informed him about the presence of the three appellants at the house of Mst. Phaphal one pehr after night-fall.
Had the story of motive been true, there could not have possibly been such a great discrepancy regarding the the. It makes the incident doubtful. Curiously enough, Muhammadu did not raise any alarm. He did not go and protest against the conduct of the appellants, nor did he make a report to the police. He did not make a report about the matter to the officers of Mahmood Khan. Who was Patwari Halqa at the material the. Muhammadu says that even Usman did not go and lodge a report. Usman did not care to go to the house of Mst. Phaphal, his niece, on hearing of the incident.
Mahmood Khan 'and Sher Muhammad appellants are married and we doubt if they openly carried on with Mst. Phaphal. We do not believe the complainant when he says that even the husband of Mst. Phaphal did not take any serious notice about the illicit intimacy between his wife and the appellants and he continued utilising the facility of water from the tube-well of Sher Muhammad appellant for irrigating his land. We do not believe the motive story. Even if it be believed that the appellants had a motive, still the existence of motive alone is not sufficient to hold that they were the murderers. The report to the police was sufficiently belated and in order to cover up the delay, it was so contrived that while going to Kot Adu Police Station, the com--plainant conveniently came across A. S. I. Wasim-ud-Din at village Ha1a and he decided to take down the statement of Usman com--plainant notwithstanding the fact that the occurrence had taken place within the jurisdiction of Kot Adu Police Station. The Assistant Sub-Inspector was attached to Sanawan Police Station. The statement was made to him at 10-00 a.m. Wasim-ud-Din was not sure as to when did he actually leave for patrol duty and we feel that the reason given by him for his presence at Hala was just an excuse.
16. The recoveries of weapons of offence at the instance of Sher and Ramzan were supported, at the trial, by Ghulam Muhammad (P. W. 7) besides the investigating officer. Ghulam Muhammad lived at a distance of half a mile from the place of occurrence. The prosecution did not examine Ahmad Yar, the attesting witness to the recoveries, for reasons best known to them. -Since we have decided not to rely on the ocular account, the recoveries of blood-stained weapons, even if believed, in no way proved that the appellants were concerned in the commission of the crime.
17. For all these reasons, we hold that the case against the appellants is not free from reasonable doubt. The benefit of doubt, however slight, must go to them. In the result, we allow the appeal, set aside the conviction and sentences passed on the appellants and giving them the benefit of doubt order them to be acquitted. The death sentences are not confirmed.