' This is an appeal by Karim Bakhsh (50) and Ismail (32) against their convictions under section 302/34, P.P.C. By learned Additional Sessions Judge, D.G. Khan, vide judgment, dated 5-7-1982, by which they were sentenced to imprisonment for life and a fine of Rs,2,000 or in default six months'
R.I. They were further directed to pay Rs,2,000 each as compensation to the heirs of Mst. Zohra deceased or in default to suffer six months' R.I. Their co-accused Haji Sultan alias Sultan Mahmood, Haji Bashir, Khuda Bakhsh, Ghulam Haider, Muhammad son of Azeem, Muhammad son of Khuda Bakhsh and Ahmad were, however, acquitted by the same judgment. Another two co-accused of the appellants Mahboob and Rashid were acquitted on 23-2-1982 under section 265-K, Cr.P.C.
2. The occurrence in this case took place at 6-30 a.m. On 12-5-1981 in the courtyard of the house of Hafiz Hassan in village Chak Ghazarwani about six miles from P.S. Kala, District Dera Ghazi Khan. The F.I.R. Was lodged at 11-30 a.m. On the same day by Muhammad Hussain P.W.7 which was recorded by S.I. Haqdad P.W.6.
3. Muhammad Hussain in his F.I.R. Stated that he married Mst. Zohra deceased about 7/8 months before the present occurrence. She was at that time widow of one Hafiz Umar. Mst. Amir Mai, a daughter of Mst. Zohra from Hafiz Umar was the wife of his son. On 12-5-1981, Muhammad Hussain complainant alongwith Hakeem Siddiq had gone to D.G. Khan to attend hearing in a case under section 107/151, Cr.P.C. Leaving his wife Mst. Zohra deceased and Mst. Amir Mai P.W. They were still in Court when Hafiz Nazir and Ghulam Issa came to them and informed them that Karim Bakhsh appellant armed with hatchet, Ismail appellant armed with Kati alongwith Haji Sultan Mahmood armed with sword, Haji Bashir, Khuda Bakhsh, Ghulam Haider and Ahmad armed with hatchets, Muhammad son of Azeem and Muhammad son of Khuda Bakhsh respectively armed with Chhuri and Dang came there. On seeing them, Mst. Zohra deceased in order to save herself rushed to the house of Hafiz Hassan, their neighbour. The accused gave her a chase. Karim Bakhsh allegedly inflicted a hatchet blow on the head of Mst. Zohra. Ismail gave Kati blow in the abdomen of Mst.
Zohra whereafter all the accused caused injuries to her with their respective weapons. The occurrence was witnessed by Ghulam Issa, Hafiz Nazir and Abdul Qadir P.Ws. The motive was stated to be that Mst,Zohra deceased had married Muhammad Hussain complainant against the wishes of the accused who were related to her. On hearing about the occurrence, Muhammad Hussain reached the spot. Leaving Hafiz Nazir and Ghulam Issa P.Ws with the dead body, he went to the Police Station and lodged the F.I.R. He further stated in the F.I.R. That Rashid and Mahboob accused also had a hand in the murder of Mst. Zohra.
4. The police after registration of the case undertook investigation. The dead body of Mst.Zohra aged about 40 years was sent for post-mortem examination which was conducted on the day of occurrence at 5-20 p.m. By Dr. Ghulam Fareed P.W.4. On external examination, the Medical Officer found ten injuries on the dead body of Mst.Zohra. Injury No,1 was an incised wound 34" x 14" bone deep on the back of left side of head above the left ear. The flap of skin had been pealed off from the bone. The pinna of left ear had been cut and completely separated and was in hanging position. Injury No,2 was an incised wound 24" x 2" on the right forearm with underlying bone cut.
Injury No,3 was an incised wound muscle deep on the left upper arm. Injuries Nos. 4 and 5 were incised wounds on the left elbow and left forearm. Injury No,6 was an incised stab wound 14" x 2" viscerae deep on the front of abdomen about. 1" above and to the left of umblicus. The intestines and mesentery were found coming out of the wound. Injury No,7 was an incised wound visceral deep on the epigastrium. Injury No,8 was a bruise on the front of left leg. Injury No,9 was described as multiple contusions on both knees whereas injury No,10 was a lacerated wound on the right ring finger which indicated that the bone was coming out of the wound at the level of proximal joint. In internal examination, Peritoneum wall was found injured. The liver had been injured on account of stab wound through and through. The uterus was gravy having 28-32 weeks' pregnancy and was injured. In the opinion of the Medical Officer, injuries Nos. 8 to 10 had been caused by blunt weapon and the remaining injuries were by sharp-edged weapon. Injuries Nos. 1, 2 and 10 were grievous.
Injuries Nos. 6 and 7 were fatal to life and rest of the injuries were simple in nature The death was due to shock and haemorrhage as a result of injuries Nos. 6 and 7 which were sufficient in the ordinary course of nature to cause death. The probable time between the injuries and death was immediate and post-mortem was conducted within 9 to 12 hours of the death; The Investigating Officer arrested Karim Bakhsh and Ismail appellants on 26-5-1981. On that date, Karim Bakhsh accused led to the recovery of blood-stained hatchet P.4 from the Eastern corner of his house which was taken in possession by S.I. Haqdad P.W.6 in the presence of Allah Ditta P.W.5 and Jan Muhammad given up P.W. Ismail accused on the same day led to the recovery of Kati P.5 from his house which was taken in possession vide memo. Exh.P.F. By S.I. Haqdad P.W.6 in presence of same witnesses. These were found stained with human blood vide report of Chemical Examiner Exh.P.K.
And that of Serologist Exh.P.L. The police found Karim Bakhsh and Ismail accused (appellants) prima facie guilty and challaned them. Their co-accused Haji Sultan and others were found innocent and therefore, placed in column No,2 of the challan.
5. The prosecution during the trial examined nine witnesses in all. Mst. Amir Mai P.W.8 and Ghulam Issa P.W.9 were examined as eye-witnesses. Hafiz Nazir and Abdul Qadir P.Ws though named in the F.I.R. Were given up as unnecessary. The medical evidence was furnished by Dr. Ghulam Fareed P.W.4 as given in detail above. Allah Ditta P.W.5 supported the recoveries at the instance of accused and also the blood-stained earth from the place of occurrence. S.I. Haqdad P.W.6 investigated the case. The evidence of other witnesses was of formal nature.
' The accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence. The two appellants denied the recoveries of crime weapons at their instance. The accused, however, did not produce any evidence in defence.
' The learned trial Judge did not accept the evidence on recoveries of blood-stained crime weapons. He came to the conclusion that the accused must have washed the blood from the crime weapons. He, therefore, did not consider these recoveries as corroborating evidence in this case. The learned trial Judge, however, placed reliance on the evidence of motive and the two eye- witnesses and convicted the accused-appellants as stated above.
' The co-accused of the present appellants were acquitted as they had been found innocent by the Rolice.
6. I have gone through the evidence on record of this case and have also heard the learned counsel for the appellants at great length.
The evidence on recoveries of crime weapons hatchet P.4 and Kati P.5 was furnished by Allah Ditta P.W.5 who is related to Muahammad Hussain complainant and also was on inimical terms with the accused. He admitted in cross-examination that Karim Bakhsh accused had lodged a complaint, about one month before the present occurrence, against him. Muhammad Hussain complainant and Hakeem Siddiq P.W. At P.S. Kala alleging therein that they had abducted Mst. Zohra (deceased). He further admitted that two weeks before the present occurrence, Karim Bakhsh accused had lodged an F.I.R. Against him, Muhammad Hussain complainant, his son Sultan and Hakeem Siddiq under section 324, P.P.C., on the allegation that they had injured one Ghulam Siddiq (brother of Karim Bakhsh accused). Another F.I.R. Was lodged by Muhammad Hussain complainant two weeks before the occurrence against Ismail appellant and others alleging that they had injured him and his son Sultan. The parties were bound down on the day of occurrence in security proceedings. All this would show that Allah Ditta P.W. Is an interested witness to give evidence in support of the prosecution case. I, therefore, find that the prosecution has failed to prove recoveries of hatchet P.4 and Kati P.5 from the two appellants.
7. The prosecution case is supported by Mst. Amir Mai and Ghulam Issa P.Ws. These two witnesses are closely related to the deceased as well as Muhammad Hussain complainant. Mst. Amir Mai is a daughter of Mst. Zohra deceased from her first husband Hafiz Umar.She was married to Sultan, a son of Muhammad Hussain complainant. Ghulam Issa P.W.9 is a cousin of Muhammad Hussain complainant. Haji Sultan Mahmood acquitted accused was a real brother of Mst. Zohra. Khuda Bakhsh acquitted accused was a son of Mst. Zohra from Hafiz Umar. The remaining acquitted accused and Ismail appellant were admittedly related to Haji Sultan Mahmood. The prosecution case is that Mst. Zohra was abducted by Muhammad Hussain complainant for which, according to Allah Ditta P.W.5, a case was registered about one month before the present occurrence. That case was still pending when the present occurrence took place. Mst. Amir Mai P.W.8 married Sultan, a son o Muhammad Hussain and therefore, was residing in the house of Muhammad Hussain complainant. I, therefore, find that the parties were pitched against each other in various criminal cases and were deeply hostile to each other. Mst. Amiran being daughter of Mst. Zohra deceased and also being wife of Sultan, a son of Muhammad Hussain complainant was interested to support the prosecution against her own near relatives including her real brother Khuda Bakhsh on account of the enmity admitted by Allah Ditta P.W.5. Ghulam Issa P.W.9 was also related t Muhammad Hussain complainant and as such, was interested to support the prosecution case. In my view, Mst.
Amir Mai is supporting a false prosecution story at the instance of her husband Sultan and her father-in-law. It is stated by Ghulam Issa P.W.9 that after the occurrence he went to District Courts, D.G. Khan and informed of the occurrence C to Muhammad Hussain complainant. They both came back to the place of occurrence instead of going to P.S. Kala to lodge the report. This conduct of Ghulam Issa and Muhammad Hussain indicated that Ghulam Issa had not seen the occurrence and was with Muhammad Hussain in District Courts at the time of occurrence. If he had seen the occurrence, there was no need for them to first go back to the place of occurrence and then to proceed to the Police Station for lodging of the F.I.R. Ghulam Issa was an eye-witness. He could have gone to the Police Station after informing Muhammad Hussain P.W. In the District Courts. I am, therefore, of the view that he did not witness the occurrence. Mst. Zohra deceased on 3-7-1980, had filed a suit for declaration against her brother Sultan Mahmood (acquitted accused). She had named Ghulam Issa as one of her witnesses in the schedule of witnesses Exh.D.G. Submitted by her alongwith the said suit. Seven co-accused of the present appellants were found innocent by the police. No crime weapon was recovered at their instance during investigation. A perusal of the bail bond Exh.D.E. Indicates that Bashir Ahmad accused stood surety for Khuda Bakhsh accused in security proceedings under section 107/151, Cr.P.C. On 12-5-1981 i,e, on the date when the present occurrence took place. These two accused were named by the two eye-witnesses as the assailants of Mst.Zohra deceased alongwith other accused and were attributed injuries in a general form to the deceased. A perusal of the document Exh.D.E. Clearly proves that they were present at D.C. Khan and appeared before the Court on the day of occurrence. The acquitted accused were also attributed injuries to Mst. Zohra deceased. On a perusal of the evidence on record I find that the evidence of the eye-witnesses was not divisible and as such, if these were disbelieved regarding the acquitted accused, no reliance could be placed on their testimony as against the two appellants. Reliance is placed on Muhammad Khan and another v. The State PLD 1984 Lah. 522 and Muhammad Nawaz v. The State 1984 SCMR 190. The evidence of the two eye- witnesses who were closely related to the deceased, as well as Muhammad Hussain complainant and were deeply inimical towards the accused could not be accepted without an independent corroborating evidence which is not forthcoming in the present case.
8. In view of the above, I am of the view that the prosecution has failed to prove its case against the two appellants.They are given the benefit of doubt and acquitted of the charge. This appeal is accepted. The convictions and sentences of Karim Bakhsh and Ismail accused are set aside. They shall be released forthwith, if not required in any other case.