' MUHAMMAD RAFIQ TARAR, J.-- Jan Muhammad (70) son of Mamma, resident of Mauza Somian Jodh Singh, Anwar (25) son of Muhammad, resident of Chak No,18/1-R, and Yaqub (20) son of Niaz, resident of Mauza Somian Jodh Singh, were tried by the learned Additional Sessions Judge, Sahiwal, under section 302/34, P.P.C. On the allegations that on 22nd March, 1977 at about evening time they committed the murder of Muhammad Hussain deceased in furtherance of their common intention, in the area of Mauza Somian Jodh Singh. By judgment, dated 14th July, 1980, they were convicted under section 302/34, P.P.C. Jan Muhammad was sentenced to death subject to confirmation by this Court and a fine of Rs,5,000 or in default in the payment thereof to undergo R.I.
For one year. Anwar and Yaqub were sentenced to imprisonment for life and a fine of Rs,2,000 each or in default of its payment to undergo further R.I. For six months each. Out of the fine, if recovered, half the amount was ordered to be paid as compensation to the legal heirs of the deceased. The convicts have appealed and the case is also before us under section 374, Cr.P.C. For confirmation of the death sentence awarded to Jan Muhammad convict. Both these matters shall be disposed of by this judgment.
2. The F.I.R. Was lodged by Allawal, father of Muhammad Hussain alias Shamma deceased. The F.I.R.
Version is that during the days of occurrence Allawal complainant was living in village Makhna Thakar Ka while his brother Bahawal P.W. Was residing at the tube-well of one Nazir Ahmad in the area of Somian Jodh Singh. About a month prior to the occurrence the deceased abducted Mst.
Shamim, daughter of Jan Muhammad appellant, from the aforesaid tube-well but later on she was restored to her relatives through a Punchayat. On the 22nd of March, 1977 the deceased went to the said tube-well for some personal work. At about evening time he started back for his house. When he reached a Pagdandi at a distance of one Biga from the house of Jan Muhammad, all the three appellants caught hold of him, gave him beating and brought him to the house of Jan Muhammad appellant. On the alarm of the deceased, Bahawal, Sajwara and Ahmad Yar reached the spot.
Within their view Jan Muhammad gave a hatchet blow on the head of the deceased while Anwar and Yaqub gave him Lathi blows, as a result of which he died at the spot. Aforementioned eye- witnesses tried to rescue the deceased but the appellants threw a challenge that whosoever came near would meet the same fate. After the occurrence, Bahawal P.W. Went to village Makhna Thakar Ka and narrated the occurrence to his brother Allawal (father of the deceased) who started for the police station for lodging the report. On the way Ghulam Farid, S.H.O., Police Station Mandi Hira Singh, met him at village Parmanand and he reported the occurrence to him on 23-3-1977 at 7-30 a.m. Vide his statement Exh.P.D. On the basis of which formal F.I.R. Exh.P.D/1 was recorded at the police station at 8-15 a.m.
3. After recording the F.I.R. The Sub-Inspector reached the spot. He prepared the injury statement Exh.P.M. And inquest report Exh.P.N. Of the dead body and despatched it to the mortuary for post- mortem examination. He secured some blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh.P.E. He arrested the accused persons on 24-3-1977. At the time of arrest, Yaqub accused produced blood-stained Sota (P.5), which was made into a sealed parcel vide memo. Exh.P.F. His blood-stained Chadar (P.10) was got removed from his person and made into a sealed parcel vide memo. Exh.P.K. Anwar accused produced blood--stained Sota (P.9) which was made into a sealed parcel, vide memo. Exh.P.J. The Sub-Inspector removed shirt (P.11) and Chadar (P.12), both blood-stained, from his person and made them into a sealed parcel vide memo. Exh.P.L. Jan Muhammad produced blood-stained hatchet (P.6) which was made into a sealed parcel vide memo. Exh.P.G. The Sub-Inspector removed Kurta (P.7) and Chadar (P.8), both blood-stained, from his person which were made into a sealed parcel vide memo. Exh.P.H. After completing the investigation, he submitted the challan under section 304/34, P.P.C.
4. On 24th March, 1977, Dr. Ihsanul Haq, Medical Officer, Primary Health Centre, Hujra Shah Muqeem, conducted the post-mortem examination on the dead body of Muhammad Hussain alias Shamma deceased and found fifteen injuries on it. Injuries Nos. 1, 6, 7, 8, 14 and 15 (on left lower leg, back of left arm, back of left forearm, back of left ear, right lower leg and right middle finger, respectively) were grievous and sufficient to cause death in the ordinary course of nature. The remaining injuries were simple in nature. Injuries Nos. 1, 3 to 6 and 8 to 11 were caused by sharp- edged weapon and the rest with blunt weapon. Time between injuries and death was within few minutes and that between death and post-mortem about 46 hours.
5. In support of its case the prosecution examined two eye-witnesses, namely, Bahawal and Sajwara, Ahmad Yar, another eye-witness of the occurrence, was, however, given up as unnecessary. The prosecution also relied on the evidence relating to motive and recoveries.
6. It may be of interest to note that Muhammad Aslam S.D.P.O., Okara, appearing as a Court- witness, stated that according to his investigation Sajwara and Ahmad Yar P.Ws. Had no cultivation in village Somian Jodh Singh and were not present at the spot at the time of occurrence. He further stated that in his investigation it was established that the deceased "tres-passed into the house of Jan Muhammad accused during night, where he got Mst. Shamim awakened who raised an alarm-, upon which the accused persons injured the deceased in the Ihata of Jan Muhammad"
7. The appellants pleaded not guilty to the charge. Anwar and Yaqub appellants denied their participation in the occurrence and contended that they had been falsely implicated due to their relationship with Jan Muhammad appellant. Jan Muhammad appellant admitted that his daughter was abducted by the deceased but added that she had returned to his house of her own and the story of her restoration through Panchayat was false. When asked as to the presence of the dead body of Muhammad Hussain deceased in his house, he stated-- "The deceased had committed lurking tres-pass into my house at about mid-night and physically abducted my daughter Mst. Shamim and I injured him in order to rescue my daughter."
' He further stated:- "....On the night of occurrence I was asleep in my house, while my daughter Mst. Shamim was sleeping under the Chhappar inside the house. At about mid-night Muhammad Hussain deceased committed lurking tres-pass into my house and forcibly abducted Mst. Shamim. She raised an alarm whereupon I got up and picked up a hatchet and in order to rescue my daughter, I injured the deceased with its sharp and blunt side. I had no intention to murder. I committed no offence, as I acted in exercise of the right of a self-defence of person and property. Neither my co-accused nor any of the P.Ws were present at the spot at the time of occurrence. All the P.Ws were summoned subsequently from Mauza Makhna Thakar-Ka situated at a distance of about 10 miles from the spot and made false witnesses in this case."
' No evidence was led in defence.
8. The learned trial Judge rejected the plea of Jan Muhammad accused, and relying on the prosecution evidence convicted and sentenced he appellants as mentioned above.
9. The learned counsel for the appellants contended that the presenceof the eye-witnesses at the spot is not established, the recoveries are fake and unexplained delay in lodging the F.I.R. Was indicative of the fact that it was an unwitnessed occurrence and the prosecution had gained time to build up a story. He further argued that the defence version finds support from the facts and the circumstances of the case.
' The learned State counsel supported the judgment of the trial court. He submitted that delay in lodging the F.I.R. Has been explained and that Bahawal and Sajwara being natural witnesses, their evidence has been rightly accepted by the trial Court.
10. There are two versions of the occurrence, one narrated by the prosecution and the other by the defence and the only question arising or decision in this case is as to which version is plausible.
11. At the trial Bahawal and Sajwara P.Ws. Supported the prosecution version. Bahawal P.W. Stated that on the day of occurrence at about sunset time the deceased left his Dhari for his house and he had hardly covered a distance of about 30 Karams when he heard alarm and law the appellants inflicting injuries to him. Then they dragged him to the house of Jan Muhammad where he was given more injuries, as a result of which he died instantaneously. Sajwara P.W. Also made a imilar statement. Bahawal P.W. Is the real paternal-uncle of the deceased nd Sajwara P.W. Is also related to him. The occurrence took place partly outside the house of Jan Muhammad appellant and partly inside it. Bahawal P.W. Stated that besides his house, there were only two houses on the tube-well of Nazir Ahmad and those were of Jan Muhammad appellant and Nazir Ahmad Fauji. He admitted that aforesaid Nazir Ahmad was present in his house and had seen the occurrence. The Investigating Officer stated that only the house of Nazir Ahmad adjoins the house of Jan Muhammad appellant. Nazir Ahmad was a natural, independent and disinterested witness but he was not cited as a witness in this case. It will not be out of place to mention here that house of Bahawal P.W. Is not shown in the site plan Exh.P.C/1. Sajwara P.W. Appeared in Court on 7-7-1980 and gave his address as "tube-well of Nazir Ahmad Fauji Mauza Somian Jodh Singh". In cross- examination he stated that he was residing at the tube-well of Nazir Ahmad about two years prior to the occurrence and that he belonged to Mauza Makhna Thakar-ka where he was "also residing now a days". He admitted that no Khasra Girdawari was entered in his name in Mauza Somian Jodh Singh. In the circumstances, his claim that at the time of occurrence he was residing at the tube- well of Nazir Ahmad and had seen the occurrence, remains unsubstantiated.
12. Admittedly, the deceased was residing in village Makhna Thakarka during the days of occurrence. The statements of the P.Ws. Regarding the time of his arrival at the tube-well of Nazir Ahmad, the purpose of his visit and on other material aspects, are discrepant. Allawal complainant, father of the deceased, stated that the deceased "had come to Somian Jodh Singh one month prior to the occurrence". He denied having stated in the F.I.R. That he had come to his uncle Bahawal in village Somian Jodh Singh on the morning of the day of occurrence. He was confronted with the F.I.R. Where it was so recorded. Bahawal P.W. Stated that the deceased had come to him on the day of occurrence at about Peshiwela. According to him, he had come to him to borrow Rs,400 for paying the land revenue. Sajwara P.W. On the other hand, stated that the deceased had come to get back Rs,400 from Bahawal which had been advanced to him by Allawal P.W. Two months prior to the occurrence. Bahawal P.W. Stated that Nazir Ahmad Fauji was present at the spot and had seen the occurrence but Sajwara P.W. Stated that aforesaid Nazir Ahmad was not present at the spot. Bahawal P.W. Stated that he had not asked the deceased to stay for the night with him but Sajwara P.W. Gave out that they had asked the deceased to stay for the night but he did not agree. Bahawal P.W. Stated that no blood had fallen on the ground in the fields but Sajwara came out with the version that he had seen blood oozing out of the injuries of the deceased while he was being dragged to the house of Jan Muhammad accused. These material discrepancies create doubt about the veracity of the alleged eye-witnesses.
13. The occurrence took place on 22-3-1977 at evening time but it was reported to the Sub- Inspector on the following morning at 7.30 a.m. .In the F.I.R. No explanation for this delay has been offered. At the trial Allawal P.W. Tried to explain the delay saying that after having been informed by Bahawal P.W. About the murder of his son, he went to the spot and after seeing the dead body proceeded for lodging the report and met the Sub-Inspector in village Parmanand one and a half hours after the sunrise. This explanation is unsatisfactory. According to the prosecution, the murder was committed within the view of two close relatives of the deceased. Had it been so, they, or at least one of them, would have immediately rushed to the police station for reporting the occurrence. The story of Bahawal P.W. Going to Allawal P.W. In village Makhna Thakar-ka to inform him about the occurrence seems to have been introduced to cover the delay. Allawal P.W. Made inconsistent statement about the time when he received information about the murder of his son.
In examination-in-chief he stated that at about sunset his brother came to him and informed him that his son had been murdered. In cross-examination he stated that his brother came to him at 11/12 mid-night. Admittedly, the F.I.R. Was not recorded at the police station, therefore, the ordinary presumption is that it was recorded at the spot after the preliminary investigation. In the circumstances, we are not inclined to place reliance on the ocular evidence.
14. After rejecting the prosecution version, we are left with the plea of Jan Muhammad appellant. He stated that the deceased committed lurking tres-pass into his house at mid-night and forcibly abducted his daughter Mst. Shamim who raised alarm, upon which he picked up a hatchet and injured the deceased with its sharp and blunt sides. This version finds support from the admitted facts and circumstances of the case. Allawal complainant admitted that the deceased had no cultivation or business in village Somian Jodh Singh. The eye-witnesses made contradictory statements about the purpose to his visit to the tube-well of Nazir in village Somian Jodh Singh. It is prosecution's own case that the deceased had earlier abducted Mst. Shamim from the said tube- well and it was only a week prior to the occurrence that she was restored to Jan Muhammad appellant through the intervention of the Panchayat. In the circumstances, the possibility of the deceased having tres-passed into the house of Jan Muhammad appellant at mid-night in order to again abduct his daughter, cannot be ruled out. After examining the entire evidence we are of the view that it is reasonably possible that the defence put forward by Jan Muhammad appellant might be true. His case is completely covered by clause fifthly of section 100 of the Pakistan Penal Code.
15. For the foregoing reasons, we allow this appeal, set aside the conviction and sentence of the appellants and acquit them of the charges. They shall be set at liberty forthwith if not required to