' MAZHARUL HAQ, J.-- Abdur Rehman alias Malah (16), his brother Muhammad Nasim (20), their maternal-uncle Abdul Aziz (33) and their maternal-cousin Muhammad Salim (28) were tried for the murder of Ata Hussain. On 4-1-1982 Additional Sessions Judge, Jhang, convicted Abdur Rehman and Abdul Aziz under section 302, P.P.C. Abdul Aziz was sentenced to death, Abdul Rehman to life imprisonment. Both were directed to pay Rs,2,000 each as compensation to the heirs of the deceased in default to undergo six months' R.I. Each. They were also convicted under section 452, P.P.C. And sentenced to four years' R.I. Each. Muhammad Nasim and Muhammad Salim were acquitted. Appeal of the convicts, connected murder reference and Abdul Sattar informant's revision petition against the acquittal and for the enhancement of sentence of Abdul Rehman are before us.
2. Mst. Zubaida, a relation of the accused was abducted by Ata Hussain (deceased) about eight/nine years before the occurrence in this case. He later married her. She was engaged to be married to Abdur Rehman accused. She owned some land and her mother also wanted to gift some land to her. This background was the motive for the crime in this case. According to the prosecution at about 1-00 a.m. On the night between 1st and 2nd June, 1980, Abdul Sattar informant and Amir (given up) were sleeping on the roof of their Kotha. Abdul Setter's nephew Ata Hussain deceased was sleeping in the courtyard of the house. An electric bulb was lit in the courtyard.
Abdul Sattar and Amir woke up on the barking of the dogs and saw Abdul Aziz and Abdur Rehman armed with hatchets, Salim and Nasim armed with knives standing near the Charpai of Ata Hussain. Abdul Aziz gave a hatchet blow on the face of Ata Hussain, Abdur Rehman inflicted the second blow on the back of his head, Salim inflicted a knife blow on his forehead and Nasim inflicted knife blow below the left armpit. Abdul Aziz gave another hatchet blow to Ata Hussain on his left hand. The alarm raised by Abdul Sattar and Amir attracted Muhammad Nawaz who was sleeping in the adjoining courtyard. He also saw the occurrence. On the alarm of the witnesses the accused fled away. Abdul Aziz left behind his hatchet. Ata Hussain died at the spot. P.W.9 Abdul Sattar proceeded towards the Police Station for making the report. At 3-00 a.m. He met with P.W.11 Muhammad Sanaullah S.I. At bus stand Pir Abdur Rehman who was on patrol duty there and made statement Exh.P.E. To him, on the basis of which formal F.I.R. Exh.P.E./1 was registered at Police Station Garh Maharaja at 4-00 a.m. The same day. The place of occurrence was at a distance of ten miles from the police station. The S.I. Went to the place of occurrence, prepared the necessary documents and sent the dead body for its post-mortem examination. Abdul Aziz's hatchet P.6 was lying at the spot which was made into a sealed parcel vide memo. Exh.P.G. Attested by P.W.7 Khuda Bakhsh, P.W.11 Muhammad Sanaullah S.I. And Nusrat (given up).
3. P.W.1 Dr. Muhammad Saleem, Medical Officer, Rural Health Centre, Garh Maharaja, held the autopsy on the dead body of Ata Hussain and found the following injuries on it:-
(1) An incised wound 13 c.m. x 3 c.m. x bone deep on the left side of the forehead, starting from the bridge of the nose, cutting the left eye and going to the middle of the left ear.
(2) An incised wound 12 c.m. x 3l, c.m. x skull deep on the left side of the back of skull, 1 c.m. Behind the left ear, cutting the upper part of the lobula.
(3) An incised wound 4 c.m. x 24 c.m. x chest cavity on the left side of the chest, 10 c.m. Outer to the left nipple.
(4) An incised wound 10 c.m..x 24 c.m. On the back of the left hand at lower part. The left index and middle fingers were cut at the roots and were lying separately on the hand. The left thumb had been completely cut at its middle but was attached with the hand. Left ring finger had been partly cut.
(5) An abrasion 3 c.m. x1/4 c.m. On the back of the right shoulder.
(6) An incised wound 2 c.m. x 1/2 c.m. Skin deep on the left side of the forehead.
' Left frontal bone and left orbit were cut under injury No,
1. Left eye-ball was also cut and damaged.
Left side of the skull and the left internal anditory medaus were cut uncjer injury No,2. Under the same injury membranes and the brain were cut, 4th and 5th ribs were completely cut under injury No,
3. Under the same injury left pleura and the left lung were also cut. There was faecal matter in the small intestine, the stomach was empty. In the large intestines there was unformed stool.
Bladder contained six ounces of urine. In doctor's opinion death was due to shock and haemorrhage caused by the first three injuries which were sufficient to cause death in the ordinary course of nature. Injury No, 4 may have also contributed to the cause of death. The remaining two injuries were simple.
4. P.W.11 Muhammad Sanaullah arrested Abdul Aziz and Muhammad Salim on 9-6-1980.
Muhammad Nasim and Abdur Rehman were arrested on 10-6-1980. On 21-6-1980 Abdul Rehman led to the recovery of bloodstained hatchet P.8 from a dried up well near Chah Abbaswala. It was made into sealed parcel vide memo. Exh.P.J. Attested by P.W. 8 Ehsanul Haq, Investigating Officer and Muhammad Nawaz (given up). After completing the investigation the accused were sent up for trial.
5. Admitting their inter se relationship all accused denied guilt, and said that the case was foisted against them due to enmity. Explaining the case against him, Abdul Aziz accused made the following statement:- "Muhammad Nawaz, brother-in-law of Abdus Sattar P.W. Enticed away my relative Mst. Hayat Bibi.
She was restored to her father on the intervention of the Martial Law Authorities. Muhammad Nawaz, aforementioned, wanted to entice her again. We forcibly removed Mst. Hayat Bibi from the house of her father. Abdus Sattar P.W. Lodged a false case against my brother Ghulam Muhammad under section 307 of the P.P.C. That case was ultimately found false and Abdus Sattar P.W. Was prosecuted and convicted under section 182 of the P.P.C. Thereafter Muhammad Nawaz, aforementioned was murdered. A false case was got registered against us. Abdus Sattar complainant and Khuda Bakhsh, brother of Muhammad Nawaz P.W. Of the present case, appeared as witnesses against us in that case. Abdus Sattar is inimical towards me since then.
' Mst. Zubaida was a woman of loose character during the days of occurrence and, therefore, Ata Hussain deceased had turned her out of his house on the suspicion that she had developed illicit intimacy with one Mamman. It was for this reason that she was not present in the house on the night of occurrence. Abdus Sattar P.W. Has a house at considerable distance from the house of Ata Hussain deceased. Abdus Sattar P.W. Brought this false case against me in the above background; and has appeared as a false- witness. Muhammad Nawaz P.W. Is closely related to him. He does not live in the Ahata adjacent to the house of the deceased. He alongwith his son lives in his house which is at a distance of about two Killas from the place of occurrence. He has also appeared as a false witness.
' We joined the investigation of this case continuously from 2-6-1980 onwards. It was a blind murder and when Abdus Sattar P.W. Prevailed upon the police to falsely challan us, my brother Ghulam Muhammad made an application to the S.P. Jhang on 12-6-1980 which is Exh.D.B. His affidavit annexure to the said application is Exh.D.B. /1. Abdus Sattar P.W. Is an influential person..
The police without caring for our application proceeded to challan us."
' In his defence Abdul Aziz accused produced D.W.1 Muhammad Saeed Head Constable No,.303, Naib-Moharrir, Police Station, Garh Maharaja who brought the original register of F.I.Rs, relating to the year 1967. According to him F.I.R No, 57 was registered on 23-7-1967 under section 302/34, P.P.C.
On the complaint of one Zafar Mehdi of village Pir Abdur Rehman and the same was sent to the police station by Fazal .Azeem, A.S.I. Which related to the murder of one Muhammad Nawaz for which Muhammad Bakhsh, Abdul Aziz, Ghulam Muhammad and Khadim Hussain residents of Basti Khalefa Dakhli were accused. In the calendar of witnesses of this case Khuda Bakhsh son of Ghulam Muhammad Shah caste Qureshi resident of village Pir Abdur Rehman was one of the witnesses cited for the prosecution.
6. Relying on the evidence of P.W.9 Abdul Sattar and P.W.10 Muhammad Nawaz the two eye- wtinesses, the evidence of the recoveries of the hatchets and the motive story, trial Court came to the conclusion that the prosecution case was satisfactorily proved against Abdul Aziz and Abdur Rehman. Since the medical evidence was inconsistent with the ocular testimony relating to the participation of Muhammad Nasim and Muhammad Salim, it, therefore, gave the benefit of doubt to them and acquitted them.
7. Learned counsel appearing on behalf of the complainant brought to our notice that Abdul Aziz convict had escaped from jail and was a fugitive from law as such he had no right of audience. In view of the principle laid down in Gul Hassan and another v. The State PLD 1969 SC 89, Hayat Bakhsh etc. v. The State PLD 1981 SC 265 and Muhammad Asif v. The State PLD 1985 Lah. 33, Abdul Aziz is a fugitive from law and has no right of audience. His counsel, therefore, cannot as of right address this Court in the appeal of Abdul Aziz. Since the murder reference has to be answered, therefore, evidence of the case shall have to be gone into to decide the reference and the appeal of Abdul Rehman.
8. Criticizing the finding, it was contended that the accused had no motive against the deceased and the motive story was put by the solitary statement of P.W.9 Abdul Sattar, informant, a real uncle of the deceased who was also inimical towards the accused. It was further argued that Mst.
Zubaida was not at all related to the accused and that both the mother and daughter owned no land. Under cross-examination Abdul Sattar informant, deposed that Sultan was Mst. Zubaida's father who was a collateral of the accused but he could not give as to what degree collateral they were. He also could not give the name of their common ancestor. It may also be added here that the prosecution case is that about 8/9 years before the occurrence Mst. Zubaida eloped with the deceased and Abdur Rehman accused was about 6/7 years of age then. This fact is admitted under cross-examination by Abdul Satter. Mst. Zubaida was much older to Abdur Rehman. Thus it appears to be a made up story. This is further supported by the fact that the informant did not mention in the F.I.R. That Mst. Zubaida was engaged to be married to Abdur Rehman accused.
Neither relationship with Mst. Zubaida nor the engagement of Abdur Rehman with her has been proved by the prosecution. On the contrary it has been demonstrated in the cross-examination of Abdul Sattar that the motive sotry was made up affair and it only appeared in the statement of the informant who was not only closely related to the deceased but was also inimical towards them.
We, are, therefore, not satisfied with the motive story. There is force in the submission that when motive is alleged by the prosecution and is found to be false, evidence of such witnesses has to be thoroughly scrutinised.
9. Coming to the ocular testimony, admittedly the two eye-witnesses are related to the deceased.
In so far as P.W.9 Abdul Sattar was concerned, he admitted that his wife's brother Muhammad Nawaz abducted Mst. Hayat Bibi who was the wife of one Muhammad Bakhsh. The witness denied the knowledge whether Mst. Hayat was the maternal-cousin of Abdul Aziz accused, but he admitted that said Hayat Bibi was returned by the Martial Law Authorities in 1959 to her father on his application and that the complainant party obtained a warrant under section 100, Cr.P.C. For her recovery from the custody of her father. When the accused learnt this fact Ghulam Muhammad father of Salim accused, Manzoor Hussain brother of Abdul Aziz accused and Abdul Haq father of Abdul Aziz accused forcibly removed Mst. Hayat Bibi from the house of her father. On this count Allah Ditta, Hayat Bibi's father got a case registered against Ghulam Muhammad and others. P.W.
Abdul Sattar denied whether he and P.W. Muhammad Nawaz were witnesses in that case. Abdul Sattar admitted that he got a case registered under section 307, P.P. C. Against Ghulam Muhammad (Salim accused's father) in those days but denied whether Muhammad Nawaz and Nusrat were witnesses in that case. He admitted that the said case was cancelled and he was proceeded under section 182, P.P.C. He explained that since the Investigating Officer of that case was inimical towards him, therefore, he was prosecuted under section 182, P.P.C. And was convicted to six months' R.I. But was acquitted in appeal. He further admitted that Ghulam Muhammad aforesaid, Abdul Aziz accused and Muhammad Bakhsh husband of Mst. Hayat Bibi alongwith Khadim Hussain had murdered Muhammad Nawaz his brother-in-law and that he was a witness in that case. Muhammad Nawaz's sister's , son Zafar Mehdi was the complainant in that case who was present outside Court on the day of informant's deposition in this case. He further admitted that the accused in the murder case were convicted and were released after they had served the sentence. Although Abdul Sattar denied whether P.W.7 Khuda Bakhsh a witness of recovery, was a witness in the murder case but the fact is borne out by the evidence of D.W. 1 Muhammad Saeed Head Constable. It may be mentioned at this stage that P.W.10 Muhammad Nawaz, the other eye- witness admitted under cross-examination that P.W. 7 Khuda Bakhsh was his brother. He however, showed ignorance whether Khuda Bakhsh was witness in the aforementioned murder case. This is no credit to his testimony. There is no doubt that the ocular testimony in this case was given by interested witnesses which fact has also been accepted by the trial Court as it observed that there was previous litigation between the parties in this case. It, however, failed to consider the fact that under such circumstances unless there was corroboration from independent reliable source, it was unsafe to rely on the evidence of the interested eye-witnesses. Trial Court observed that the F.I.R.
Was promptly made and the two witnesses namely, Abdul Satter and Muhammad Nawaz were natural witnesses of the occurrence. In this regard it may be mentioned that it was a doubtful matter whether P.W. Abdul Sattar lived with the deceased and that whether P.W. 10 Muhammad Nawaz lived in the adjacent Chhapper. It was argued that the house where the occurrence took place was in the exclusive possession of the deceased and Abdul Sattar P.W. Had his house at a distance from there. In support of this submission reference was made to the site plan Exh.P. C.
Which described the place of occurrence as the house of the deceased. At point No, 5 in Exh.P.C.
The Kotha where Abdul Sattar P.W. And Amir claimed to be sleeping was described as the room belonging to Ajmal Shah, a maternal-uncle of the deceased. The statement of the informant under cross-examination created an impression that he did not live in the house of the deceased.
According to him they were four brothers and they all lived in one house. Two of his brothers had died. His brother Murid Hussain was alive who was unmarried. Mumtaz Hussain brother of Ata Hussain deceased had one room in the house and the witness also claimed to be living in one room there. He added that the house was jointly owned by them and the room which he had occupied had a door towards the west; but a perusal of the site plan would show that the room shown at point No,
5. Where he was sleeping, had no opening towards the west. The witness admitted that he did not show the draftsman the room which was in his exclusive possession. He did not remember whether he told the draftsman that both the rooms in the west were in the possession of Ata Hussain. Again a perusal of the site plan would show that these two rooms have been mentioned as that of the deceased. Further according to Abdul Sattar he did not remember whether he told the draftsman that the entire house shown in Exhs.P.C. And P.C./1 belonged to Ata Hussain deceased and was in his occupation. He further admitted that Amir Hussain P.W. (the given up eye-witness) had his house at a distance of two/three Killas from the place of occurrence and that he was married man, had children but according to the witness Amir sometimes would sleep in their house but normally he would go to sleep with his family. This admission about Amir, the given up witness, clearly showed that the informant was making up a story at every step to explain away the presence of P.W. Amir. True a site plan is not a substantive piece of evidence and cannot be used to contradict or discredit unchallenged evidence of the witness as laid down by the Supreme Court in the case of Taj Muhammad v. Muhammad Yusuf etc. PLD 1976 SC 234.
Under the circusmtances of this case, however, the informant's own admission that he did not show the draftsman any room which was in his exclusive possession clinches the matter. This in all probability was the truth stated by him because the site plan Exh.P.C. Too did not indicate whether Abdul Sattar informant owned any portion of the house where the deceased was murdered. In view of his anxiety to introduce Amir as an eye-witness and his aforementioned admission, it would be doubtful whether he lived in the house of the deceased.
11. In so far as P.W. 10 Muhammad Nawaz was concerned, he claimed to be sleeping in the adjacent house situated towards the south of the house of the deceased. On its west there is a Chhapper which had no shutters in which he claimed to be living. Admittedly this witness has a house in this village; but according to him his son Mazhar Abbas was living there and he shifted to the Chhapper about 4/5 years before his deposition. He admitted that there were two Pakka rooms in the occupation of his son. Strangely the son lived in two rooms but the father was living in a Chhapper with no shutters. Undoubtedly the place where the P.W. Muhammad Nawaz claimed to be living was unhabitable as such his presence there on the night of occurrence was highly doubtful matter.
12. Last but not the least, the witnesses claimed to have seen the occurrence in the light of 200 Watts electric bulb which was lit in the courtyard of the deceased. It would be highly improbable that in a village in the courtyard a bulb of 200 Watts was lit at night. It is obvious that the prosecution is trying to throw as much light that is possible to make believe that the eye-witnesses could easily identify the assailants but it has failed to satisfactorily prove their presence at the place of occurrence.
13. In so far as recovery of hatchets is concerned, suffice it to say that the hatchet P.6 ascribed to Abdul Aziz was not recovered from his possession which, according to the prosecution, was collected from the place of occurrence. This recovery, as such, did not advance the case of the prosecution. Moreover, the evidence that it was left behind by Abdul Aziz accused is given by interested witnesses. In so far as the recovery of hatchet P.8 from Abdul Rehman was concerned, it was recovered from an open place described as an abandoned well. P.W.8 Ehsanul Haq who is the witness of recovery of Abdur Rehman's hatchet claimed to have gone to Ahmadpur Sial to meet Mr. Ghazanfar Ali, Advocate, about some property dispute with his brother. Since the said Advocate had gone to Police Post Ahmad Pur Sial, therefore, he went there and found that Abdur Rehman accused was being interrogated, he thus joined the investigation. Admittedly he belonged to the tribe of the deceased and had come from another village. On the other hand we find that the hatchet was sent to the Chemical Examiner on 12-7-1980 C whereas it was said to have been recovered on 21-6-1980. There was no explanation as to why it was sent late. As such the recovery evidence did not inspire confidence.
For the foregoing analyses of the evidence and our reasons we are of the view that the prosecution has not been satisfactorily able to prove its case against the accused. Giving the benefit of doubt to them we acquit them. The death sentence is not confirmed.