' Muhammad Hanif-, Muhammad Siddique, Mansha, Muhammad Sharif Muhammad Yaqoob, Bashir Ahmed son of Ameer Din, Bashir Ahmad son of Haji Din Muhammad, Muhammad Hayat, Rehmat Ali, Muhammad Rafiq and Abdul Aziz were tried by an Additional Sessions Judge of Lahore under section 302/307/148/149, P.P.C. For the murder of Mat. Sakina Bibi, deceased, attempt on the lives of Muhammad Ilyas F.C. And Muhammad Gul Akhtar, S.I. And for rioting. The learned trial Judge by his judgment, dated 15-6-1983, convicted Muhammad Hanif, Muhammad Siddique, Mansha, Muhammad Sherif, Muhammad Yaqoob, Bashir Ahmad son of Ameer Din and Bashir Ahmad son of Haji Din Muhammad under sections 302/149, 332/149 and 148, P.P.C. And acquitted Muhammad Hayat, Rehmat Ali, Muhammad Rafiq and Abdul Aziz, by giving them the benefit of doubt. He sentenced the seven convicted accused under section 302/149, P.P.C. To imprisonment for life each and to pay a fine of Rupees Two Thousand (Rs, 2,000) each or in default thereof to suffer further rigorous imprisonment for one year's each, under section 332/149, P.P.C. To two years' rigorous imprisonment each and to pay a fine of Rupees Five Hundred (Rs, 500) each or in default thereof to undergo further rigorous imprisonment for six months, each and under section 148, P.P.C.
To two years' rigorous imprisonment each and to pay a fine of Rupees Five Hundred (Rs, 500) each or in default thereof to undergo further rigorous imprisonment for six months each. All the sentences were ordered to run concurrently.
2. The brief facts of the case are that Mst. Sakina Bibi, deceased a young married woman of about 35 years of age, resident of village Rangeelpur, Police Station Manga Mandi was murdered by the above accused persons, who were her own kith and kin, at about 11-30 a.m. On 5-7-1982 at the crossing of Sham Nagar and Dar-ul-Aman Road near Chouburji, Lahore in the jurisdiction of Police Station, Mozang, while she was being escorted back to the Dar-ul-Aman by two Police Officers, namely, Raja Gul Akhtar S.I. P.W.9 and Muhammad Ilyas Constable P.W.2. Amongst the accused are Muhammad Yacioob, husband of the deceased, Rehmat Ali and Muhammad Hanif, two real brothers of the deceased, Bashir son of Din Muhammad, Aziz and Rafiq who are the real paternal cousins of Yaqoob, accused and Sharif and Siddique, who are paternal cousins of Mst. Sakina, deceased. The alleged motive is that a few days prior to the occurrence, Mst. Sakina deceased was abducted by Muhammad Shafi and another, her co-villagers, in respect of which Muhammad Yaqoob, accused, husband of Mst. Sakina deceased, lodged F.I.R. No, 93 at Police Station Manga Mandi on 3-7-1982 for offences under the Hudood Ordinance. The abductee had been lodged in the Dar-ul-Aman in Lahore who was required to be produced before the Ilaqa Magistrate, Riaz-ul- Hassan Khan, in his Court situated in the Town Hall, Lahore. The abductee Mst. Sakina Bibi, deceased, was produced before said Illaqa Magistrate by the aforementioned two police officers of Police Station Manga Mandi on 5-7-1982 and there her statement under section 164 of the Cr.P.C.
Was recorded. According to the prosecution, when Mst. Sakina Bibi, deceased, had reached the Court compound of the Magistrate alongwith Gul Akhtar S.I. P.W.9 and Muhammad Ilyas F.C. P.W.2, a number of her relatives from village Rangeelpur, including men and women and almost all the accused, had requested her that she should depose in their favour before the Magistrate. It is alleged that she replied that she would make a statement the way she liked. The statement was recorded at about 9-30 a.m., where after the two police officers sat with the deceased in the Court compound till all her relatives had gone away. Thereafter, they hired the Tonga of Abdul Sattar P.W.7 and proceeded to Dar-ul-Aman. It was about 11-30 a.m. When the Tonga reached near Chouburji and took a turn on the road leading to Dar-ul-Aman, then all of a sudden the eleven accused stopped the Tonga which took Gul Akhtar, S.I. P.W.9 and Muhammad Ilyas P.W.2 by surprise. Three of the accused, namely, Bashir son of Din Muhammad, Muhammad Sharif and Muhammad Siddiq pulled down Mst. Sakina, deceased from the Tonga, who was sitting on the back seat. The deceased tried to escape from the clutches of these assailants, but was felled face downward on a nearby heap of garbage. Thereafter, Bashir son of Din Muhammad and Muhammad Sharif, accused, who were armed with carbines, fired one shot each at her back and then Muhammad Siddique, accused, who was armed with a dagger gave a few dagger blows on her back. As a result of these injuries she died at the spot. The occurrence was witnessed by Gul Akhtar S.I. P.W.9, his companion Muhammad Ilyas F.C. P.W.2, the Tonga driver Abdul Sattar P.W.7, Muhammad Anwar P.W.8 and Muhammad Mansha, Muhammad Ali and Ahmad Din (given up P.W.), who happened to be there. It is also the prosecution case that when Gul Akhtar S.I. P.W.9 tried to intervene to save the deceased, he was attacked and given a Danda blow by Hanif accused, on his left lower leg. Not only that, but Bashir son of Ameer Din, accused, who was armed with carbine, fired in the direction of these police officers the pellets of which hit Muhammad Ilyas F.C. P.W.2 on his hand. It is also the prosecution case that apart from these accused who actively participated in the commission of this crime, there were present, Rafiq Hayat, and Aziz accused who were empty- handed, but raised Lalkaras. Similarly, Yaqoob accused was armed with a dagger and raised Lalkaras, while Mansha accused was also armed with a carbine and he fired in the air raising Lalkara. According to the prosecution, when the woman had been murdered, all the eleven accused left the scene of occurrence raising Lalkaras. Thereafter, Gul Akhtar S.I. P.W.9 wrote the complaint Exh. P.B. And sent it to Police Station Mozang for formal registration of the case through Muhammad Ilyas constable P.W.2. The formal F.I.R. Exh. P.B/1 was registered at Police Station Mozang by Muhammad Aslam, A.S.I. P.W.11 at 12-20 p.m. On the same day i.e, 5-7-1982. He sent a copy of this F.I.R. To the S.H.O. Of Police Station Mozang. Muhammad Iftikhar Hussain Inspector P.W.14, who, on receipt of the formal F.I.R. Proceeded to the scene of occurrence reaching there at 1- 00 p.m.
3. The investigating officer collected blood-stained earth from the spot, vide memo. P.N. And a crime empty P.7, vide memo. P.M.
4. On 5-7-1982 at 9-40 p.m. Dr. Muhammad Anees Sheikh P.W.3 examined Muhammad Ilyas F.C.
P.W.2 and found five abrasions on his left and right hand, which simple blunt weapon injuries were declared to have been inflicted within six to twelve houRs,
5. On 6-7-1982 Nazar Ahmad Baloch, a Zamindar, produced Muhammad Hayat, Muhammad Rafiq, Abdul Aziz, Bashir Ahmad son of Din Muhammad Yaqoob, Muhammad Siddique, Muhammad Shari' and Mansha accused, before Muhammad Iftikhar Hussain Inspector P.W.14, who arrested them.
Muhammad Yaqoob, accused led to the recovery of his minor daughter Rukhsana from the house of his sister, Mst. Sakina Bibi, who was taken into custody by the police, vide memo. P.S.
6. On the same day at 2-00 p.m. Dr. Muhammad Farooq Akmal P.W.4 examined the dead body of Mst. Sakina Bibi, deceased, and found a circular fire-arm wound of entry 3 c.m. x 3 c.m. On the back of chest, six fire-arm wounds of exit 1 c.m. x 5 c.m. In an area of 10 c.m. x 6 c.m. On the right breast, a stab wound 2 c.m. x 5 c.m. On the back of left upper arm, a stab wound 2.5 c.m. x 2 c.m. On the right side of the back of chest, a stab wound 3 c.m. x 1 c.m. On the back of the middle side of the chest and a violate coloured contusion around the right eye. The first two injuries were by fire-arm, the next three by sharp-edged weapon, while the last was by a blunt weapon. The fire-arm injuries and the stab wounds were held to be individually and collectively sufficient to cause death in the ordinary course of nature. Cause of death was shock and hemorrhage probable time between injuries and death was immediate and that between death and post-mortem examination about 36 to 48 houRs,
7. On 7-7-1982 Bashir Ahmad son of Ameer Din, Muhammad Hanif and Rehmat Ali accused, were produced by Nazir Ahmad Baloch, a Zamindar, before the Investigating Officer, who arrested them.
8. On 9-7-1982, Bashir Ahmad son of Haji Din Muhammad, accused, led to the recovery of a blood- stained dagger P.5 and a carbine P.6, which were taken into possession by the police, vide memos.
Exh. P.O. And P.Q., respectively, in the presence of Agha All Nawaz P.W.10, Muhammad Iftikhar Hussain Inspector P.W.14 and Saif Ullah F.C. (given up P.W.).
9. On 12-7-1982, Muhammad Sharif, accused, led to the recovery of a carbine P.7 with a used empty cartridge P.8 therein. Muhammad Siddique, accused, led to the recovery of a blood-stained dagger P.9 and Mansha, accused, led to the recovery of a carbine P.10, which were taken into possession, vide memos. P.K., P.L. And P.J., in the presence of Muhammad Anwar P.W.8, Muhammad Iftikhar Hussain, S.I. P.W.14 and Ahmad Din (given up P.W.).
10. The carbine P.6 recovered at the instance of Bashir Ahmad son of Din Muhammad, accused, was found to match with the crime empty P.7 recovered by the Police from the spot. The blood- stained daggers recovered at the instance of Bashir Ahmad son of Ameer Din and Muhammad Siddique were found to be stained with human blood. After completing the necessary investigation, the challan against the accused was sent up.
11. At the trial, the prosecution produced Muhammad Ilyas F.C. P.W.2, Muhammad Anwar P.W.8 and Muhammad Gul Akhtar S.I. P.W.9 to prove the motive, the said three witnesses and Abdul Sattar P.W.7 in proof of the ocular account, Muhammad Anwar P.W.8, Agha Ali Nawaz P.W.10 and Muhammad Iftikhar Hussain Inspector P.W.14 in support of the recoveries and Dr. Muhammad Anees Sheikh P.W.3 and Dr. Muhammad Farooq P.W.4 in corroboration of the medical testimony.
12. All the eleven accused in their statements under section 342, Cr.P.C. Admitted their relationship inter se and also the fact that Mst. Sakina Bibi, deceased, was the wife of Muhammad Yaqoob accused but denied all the other accusations that were levelled against them, including the recoveries effected at their instance. They imputed their false involvement to enmity with Mian Khan, Muhammad Shafi, Ahmad Din, Muhammad Anwar and Munshi Khan, residents of village Rangeelpur.
13. The learned trial Judge, relying upon the motive, the ocular account, the medical testimony and the recoveries, convicted and sentenced seven accused, as stated in para. 1 above, and acquitted the rest.
14. I have heard the arguments of the learned counsel for the appellants and the State and have also perused the record. The evidence as regards motive is furnished by Muhammad Ilyas F.C.
P.W.2, Muhammad Anwar P.W.8 and Muhammad Gul Akhtar S.I. P.W.9. According to their testimony, on the fateful day, Mst. Sakina deceased's statement was to be recorded by the Maga Magistrate, in respect of the case of abduction filed by her husband Muhammad Yaqoob, appellant, at Police Station Manga Mandi. All the appellants and certain other persons, who were her relatives, were present in the Court premises and trying to prevail upon her to make a statement to support the F.I.R. Lodged. According to Muhammad Ilyas F.C. P.W.2, she replied to them stating that she would make a statement as she pleased, but according to Muhammad Gul Akhtar S.I. P.W.9, she first refused to reply and then agreed. Whatever be the position, the statement of the deceased was recorded under section, 164, Cr.P.C. Which has not been placed on the record, but both the parties had the chance to see it, as confirmed by Muhammad Gull Akhtar S.I. P.W.9. Thereafter, the accused party assaulted the deceased. The inference is, therefore, clear that the deceased made a statement against the F.I.R. Lodged by her husband Muhammad Yaqoob, appellant. This definitely annoyed the appellants and other persons, who were her kith and kin. The motive, therefore, stands established in the case against the appellants.
15. The ocular account in this case was furnished by Muhammad Ilyas F.C. P.W.2, Abdul Sattar P.W.7, the Tonga driver, Muhammad Anwar P.W.8 and Muhammad Gul Akhtar S.I. P.W.9. Apart from Muhammad Anwar P.W.8, who is the real brother of Muhammad Shafi, the person alleged to have abducted Mst. Sakina Bibi, deceased, the remaining three witnesses are totally disinterested witnesses. Abdul Sattar P.W.7, the Tonga driver, admitted that he had taken alongwith him a Sub- Inspector and a constable of police and a woman with a young child from the Town Hall at about 11-00 a.m. In his Tonga towards Dar-ul-Aman and that when his Tonga reached near Chouburji, three persons stepped in front of the Tonga and stopped it and they 'dragged' the woman down, who was sitting in his Tonga. He also submitted that the Sub-Inspector and the constable got down from the Tonga and that he drove his Tonga away to the main road and did not see the occurrence. He was declared hostile, because he refused to support his earlier statement, wherein he had described the details of the occurrence. However, he admits the presence of Muhammad Ilyas, F.C. P.W.2, Muhammad Gul Akhtar S.I. P.W.9 and Mst. Sakina Bibi, deceased, with her minor child, as being present in his Tonga, when the occurrence took' place. Muhammad Anwar P.W.8 turned hostile primarily because the case against his brother under the Hadood Ordinance was compromised in consideration of his agreeing to turn hostile in the present case. The presence of Muhammad Ilyas F.C. P.W.2 is even admitted by the accused party, from the nature of the cross- examination directed to him, which tends to suggest that he was alone in the Tonga when the occurrence took place. Irrespective of the fact whether the blunt weapon injuries on his palm have been caused by any fire-arm, as stated by him, or in any other manner, his presence stands admitted even by the accused party. The presence of Muhammad Gul Akhtar, S.I. P.W.9, therefore, were present at the spot and did see the occurrence and they are, therefore, natural and disinterested witnesses. In the F.I.R. Exh. P.B. Lodged by Muhammad Gul Akhtar, S.I. P.W.9, specific parts have been given to Bashir Ahmad son of Din Muhammad, Bashir Ahmad son of Ameer Din, Muhammad Shard, Muhammad Siddique and Muhammad Hanif in respect of injuries caused to Mst. Sakina, deceased, and the two police officers, Mansha, appellant, is attributed to have fired in the air, whereas Muhammad Yaqoob and Rehmat Ali, appellants, are alleged to have raised Lalkaras exhorting the witnesses not to intervene. The only question that remains is whether all the appellants were present and did participate, united in the common object of them all to commit the murder of Mst. Sakina Bibi, deceased. The fact that Mst. Sakina Bibi, deceased, a lady in the custody of the police had been murdered may have prompted Muhammad Gul Akhta S.I. P.W.9 to rope in a number of persons not directly connected with the common object or intention of some of them who committed the crime. Such an inference cannot be entirely excluded. But one thing is certain, it is not possible to believe that all the appellants were united in the common object of murdering Mst. Sakina Bibi, deceased, or for that matter selecting a place near the crossing of Sham Nagar and Chouburji, as one appropriate to this heinous mission. Very likely the appellants and others, being the kith and kin of the deceased, were proceeding to Dar-ul-Aman in order to chastise the deceased or perhaps to prevail upon her to change her position, and that coming across the Tonga of Abdul Sattar P.W.7 in which the said woman was sitting with her infant child, some unpleasant, conversation took place, which prompted one or more of the said party to injure her as they did. Abdul Sattar P.W.7 mentions that there were only three persons who pulled down the deceased from the Tonga. The two police officers mention these persons as Bashir Ahmad son of Haji Din Muhammad, Muhammad Sharif and Muhammad Sadiq appellants Bashir Ahmad son of Haji Din Muhammad and Muhammad Sharif, appellants are alleged to have fired one shot each on the back of the deceased. The two appellants have been named with regard to one fire-arm injury' on the deceased. The possibility that the shot of only one of the two actually hit the deceased, appear to be probable. Since the police officers found two fire-arm wounds the inference that they thought both of them were of entry, cannot b excluded. Muhammad Siddique, appellant, is alleged to have inflicted an injury on the head of the deceased with his dagger. According t. The medical testimony, there is no sharp-edged injury on the head o the deceased, but there are three on the other parts of her body. However, this does not displace the testimony of the two police officer D as unreliable, for, in the confusion of recollection, they may hay made a genuine mistake as regards the seat of this injury. The occurrence took place suddenly and Muhammad Gul Akhtar, S.I. P.W.9, when h sent his statement Exh. P.B. To the Police Station, may have been under tremendous emotional stress. The facts when he appeared before the doctor for his own medical examination the day after the incident, he was found to have Palpitation, gives some indication of the emotional disturbance he was in on the date of the incident. He could, therefore, have made a genuine mistake when recording the facts. Bashir Ahmad son of Ameer Din, appellant, is alleged to have fired his carbine, some pellets of which are stated to have injured the pad of the hand of Muhammad Ilyas F.C. P.W.2. According to the medical testimony, there are no pellet injuries on the hand of this witness Muhammad Gul Akhtar, S.I. P.W.9, in giving this detail in the F.I.R. Appears to have made serious mistake in this respect. The use of a fire-arm by Bashir Ahmad son of Ameer Din, appellant, is not totally free from doubt. Muhammad Hanif, appellant, is alleged to have hit the Sub-Inspector with his Sota. This stands corroborated by the medical testimony. Mansha, Muhammad Yaqoob and Rehmat Ali, appellants, are attributed Lalkaras and/or ineffective firing, facts which cannot be unreservedly accepted, without some verification. However, what stands out a mile is that Muhammad Siddique, Bashir Ahmad son of Din Muhammad, Muhammad Sharif and Muhammad Hanif, appellants, were present and are attributed specific acts, for which there is some verification, which otherwise cannot be disregarded. From the earlier case set up by the prosecution in the statement Exh. P.8. I have no hesitation in holding that Bashi Ahmad son of Haji Din Muhammad, Muhammad Sharif, Muhammad Siddiqu and Hanif, appellants, can be safely saddled with participation and with the common intention of murdering Mst. Sakina Bibi deceased, which common intention they formed at the spur of the moment by their respective behavior and action, whereas the remaining appellants, who are not ascribed any serious overt acts, or who are ascribed overt acts which appear to be of doubtful import or for which there is no reasonable verification, can fairly be left out of the vortex of the common intention, on grounds of caution and safe dispensation of justice.
16. The evidence as regards the recovery of the carbines at th instance of Bashir Ahmad son of Haji Din Muhammad and Muhammad Sharif, appellants, and the recovery of the blood-stained dagger at the instance of Muhammad Siddique, appellant, is furnished by Muhammad Anwar P.W.8, Agha All Nawaz P.W.10 and Muhammad Iftikhar Hussain, S.I. P.W.14. It is true that Muhammad Anwar P.W.8 turned hostile, but this is because the accused party bogged down in the Hadood case against his brother Muhammad Shafi. The evidence of Muhammad Iftikhar Hussain S.I. P.W.14, in respect of weapons recovered at the instance of Muhammad Sharif and Muhammad Siddique, appellants, is sufficient to prove the recoveries. The evidence of Agha Ali Nawaz P.W.10 and Muhammad Iftikhar Hussain S.I. P.W.14 also proves the recovery of the carbine at the instance of Bashir Ahmad son of Din Muhammad, appellant. The recoveries effected at the instance of these three appellants, corroborate the ocular account.
17. The medical testimony furnished by Dr. Muhammad Anees Sheikh P.W.3 and Dr. Muhammad Farooq Akmal P.W.4 conclusively show that Mst. Sakina Bibi, deceased, died of a fire-arm injury and stab wounds and that Muhammad Gul Akhtar S.I. P.W.9 did sustain a blunt weapon injury on his left leg, which lends corroboration to the ocular account.
18. The upshot of the above discussion is that the motive, th ocular account, the recoveries and the medical testimony, conclusively prove the prosecution case to the hilt against Bashir Ahmad son o Haji Din Muhammad, Muhammad Sharif, Muhammad Siddique and Muhammad Hanif, appellants.
They appear to have been properly convicted. Their conviction under sections 302/149 and 332/149, P.P.C. Are altered to that under sections 302/34 and 332/34, P.P.C. Their sentences as awarded by the trial Judge, shall remain. Their conviction and sentences, however, under section 148, P.P.C. Are set aside. On grounds caution and for the safe dispensation of justice, Bashir Ahmad son Ameer Din, Mansha and Muhammad Yaqoob, appellants, are given the benefit of doubt, as there is the remote possibility that they did not share the common intention of their companions, which suddenly fructified at the spur of the moment. Their conviction and sentences under sections 302/149, 332/149 and 148, P.P.C. Set aside.
19. For the foregoing reasons, appeal of Bashir Ahmad son of Ameer Din, Mansha and Muhammad Yaqoob, appellants, is accepted. Their conviction and sentences are set aside. Bashir Ahmad son of Ameer Din and Muhammad Yaqoob, appellants, shall be released forthwith, if not required in any other case. Mansha, appellant, is on bail. His bail bond shall stand discharged. Fines, if any recovered from them, shall be refunded to them.
20. The appeal of Bashir Ahmad son of Haji Din Muhammad, Muhammad Sharif, Muhammad Siddique and Muhammad Hanif, appellants, is dismissed.