This is an appeal by Ghulam Nabi (50), Wali Muhammad alias Walia (60), Ghulam Qadir (32), Abdus Sattar (34), Ghulam Haider (35) and Muhammad Ismail (30) against their conviction under section 302/149, P.P.C. By Mr. Muhammad Aslam Sumro, Additional Sessions Judge, Rajanpur, who vide judgment, dated 26-2-1983, sentenced all of them to imprisonment for life and .a fine of Rs.1,000 or one month S.I. It was ordered that the amount of fine, if recovered, be paid as compensation to the heirs of Ghulam Akbar deceased. All the six accused were, however, acquitted from the charge under section 148, P.P.C.
2. The occurrence took; place at Dopeharwela on 23-5-1981, in the sugarcane field of Wali Muhammad alias Wadia accused in village Soonwah, 41 Kilometres from Police station Dajal, District Rajanpur. The F.I.R. Exh. P.B. Was recorded, 6.30 p.m. On the same day by A.S.I. Muhammad lqbal P.W.', 10 0h the statement of Murid Hussain P.W.4.
It was stated by Murid Hussain in the F.I.R. That his younger brother Ghulam Akbar deceased used to graze goats and sheep. They i.e. The complainant and the deceased had purchased the branches of Keekar trees from Wali Muhammad accused. On 23-5-1981, at Dopeharwela, he was taking meals for Ghulam Akbar deceased. When he reached near the house of Walia accused, he suddenly saw Ghulam Qadir and Abdus Sattar accused armed with hatchets, Ghulam Nabi and Ghulam Haider coming out of the nearby sugarcane field. The latter two accused caught Ghulam Akbar whereafter Ghulam Qadir and Abbas Sattar gave hatchet blows on the neck of Ghulam Akbar. The alarm of Ghulam Akbar attracted Abdul Majid and Irshad Ahmad P.Ws. They all tried to rescue Ghulam Akbar deceased but in the meantime Wali Muhammad accused and his son Ismail accused who had hatchet in his hand, came to the spot dragging Mst. Rasti Mai. They brought her near the dead body of Ghulam Akbar. Thereafter, Muhammad Ismail accused gave hatchet blow on the neck of Mst. Rasti Mai who also died at the spot. It was further stated in the F.I.R. That the accused suspected Ghulam Akbar having illicit relations with Mst. Rasti Mai.
3. The police after registration of the case, undertook investigation. The dead body of Ghulam Akbar was sent for post-mortem examination which was conducted by Dr. Hasnain Pitafi P.W. 9 on 24-5-1981, at 10.00 a.m. On external examination, he found multiple incised wounds on the hole of neck which was attacked with the trunk by a tag of skin only; an incised wound skin deep on the lower part of chest, a superficial cut on the back of right wrist and multiple abrasions on chin, left foot and back of upper part of both hips. On internal examination, blood vessels, oesophagus, spinal column and cord were found cut. Stomach contained semi-digested food. In the opinion of the Medical Officer, three injuries had been caused by sharp-edged weapon while the multiple abrasions were by blunt weapon. The death was due to shock and haemorrhage as a result of injury No. 1 which was sufficient in the ordinary course of nature to cause death. The time between death and injuries was instantaneous and post-mortem was conducted after about 24 hours of death. The post-mortem on the dead body of Mst. Rasti was conducted at 11.00 a.m. On the same day. On external examination, the Medical Officer found a multiple incised wound cutting whole of the neck which was attached with a tag of skin only. He also found two incised wounds, both skin deep on the right and left shoulder each a muscle deep cut on the upper part of the middle of neck and multiple abrasions on both forearms and both feet. Injuries Nos. 1 to 4 had been caused by sharp-edged weapon and injuries Nos. 5 and 6 had been caused by blunt weapon. The death was due to shock and haemorrhage as a result of injury No. 1 which was sufficient in the ordinary course of nature to cause death, which was instantaneous after receipt of injury. The post-mortem was conducted after about 24 hours of the death.
The accused were arrested on 30-5-1981. On that date, Muhammad Ismail got recovered blood- stained hatchet P.9 vide Exh. P.F. Abdus Sattar accused got recovered blood-stained hatchet P.10 vide memo. Exh. P.G. And Ghulam Qadir accused got recovered blood-stained hatchet P.11 vide memo. Exh. P.H. All these memos. Were prepared by A.S.I. Muhammad Iqbal P.W. 10 and attested by Irshad Ahmad P.W. 5 and Abdul Majid P.W.
6. The accused were challaned after completion of investigation.
4. The prosecution during the trial examined ten witnesses in all. Murid Hussain P.W. 4 Irshad Ahmad P.W. 5 and Abdul Majid P.W. 6 were examined as eye-witnesses. The latter two witnesses also supported the recoveries of hatchets at the instance of the accused, Dr. Hasnain Pitafi P. W. 9 furnished medical evidence as given in detail above. A.S.I. Muhammad Iqbal P.W. 10 investigated the case. The evidence of rest of the witnesses was of formal nature.
The accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence.
Ismail accused in answer to question as to why this case against him, made the following statement:- "On the day of occurrence I have been to pass near the Khata which runs in our land. Under the Keekar trees I found Ghulam Akbar and Mst. Rasti in an objectionable position. On seeing them I lost my power of self-control and under the pulse of grave and sudden provocation I injured both of them with hatchet which I was carrying with me as usual. No other accused was present there.
The P.Ws. Also did not witness the occurrence. I reported the matter myself to the police."
The other accused denied their presence at the spot. They did not produce any evidence in defence.
The learned trial Judge placed reliance on the evidence of motive, recoveries of hatchets and the eye-witness and convicted the six accused as stated above.
5. I have gone through the record of this case with the assistance of the learned counsel for the appellants as well as the learned Assistant Advocate-General.
It is contended by the learned counsel for the appellants that the three eye-witnesses were not present at the spot, that there is no evidence that the three hatchets P.9, F.10 and P.11 were stained with human blood because the reports of the Chemical Examiner and the Serologist were not tendered in evidence; and that only Muhammad Ismail accused killed the two deceased under grave and sudden provocation as stated by him during the trial. The learned Assistant Advocate- General controverted the contentions on behalf of the appellants.
6. The eye-witness account has been furnished by the three witnesses, Murid Hussain P.W. 4 is a real brother of Ghulam Akbar deceased. The were of Murid Hussain complainant is a real sister of Mst. Rasti deceased. Mst. Chanan was the grandmother of Irshad P.W. She was a sister of the father of Khan Muhammad P.W., cousin of Ghulam Akbar deceased. Abdul Majid P.W. Was not related to the parties. He was friend of Murid Hussain. It was admitted by him that the cow of Allah Dad, maternal-uncle of Abdus Sattar accused was stolen for which it was suspected that his father had stolen the same.
Ghulam Nabi and Wali Muhammad accused are brothers inter se Ghulam Qadir accused is a son of Ghulam Nabi accused. Ghulam Haider and Ismail accused are sons of Wali Muhammad accused while Abdus Sattar accused is his nephew. Mst. Rasti deceased was married to Siddiq, a son of Wali Muhammad accused. The prosecution case is that Ghulam Akbar deceased was grazing his sheep and goats near the house of Wali Muhammad accused around the sugarcane field. There is no evidence to show that the complainant or his brother Ghulam Akbar deceased had purchased the branches of Keekar trees from Wali Muhammad accused. It even otherwise seems improbable because it is prosecution's own case that the accused suspected Ghulam Akbar deceased having illicit relations with Mst. Rasti deceased. In such a situation, Wali Muhammad would never have sold branches of Keekar trees to the complainant or his brother giving them a pretext to move around his house. I am, therefore, of the view that this part of the prosecution case cannot be believed. It is claimed by the complainant Murid Hussan, that he was taking meals for his brother Ghulam Akbar deceased where he saw the present occurrence. The medical evidence indicates that the stomach of Ghulam Akbar deceased contained semi- digested food. This indicates that he had already taken his meals and as such, there was no occasion for Murid Hussain P.W. To carry meals to the deceased or be present on that pretext at the time of occurrence. He was resident of a place one square away from the place of occurrence.
According to him, he went to the Police Station after the occurrence on a motorcycle with Shah Nawaz but Shah Nawaz has not been mentioned in the Karwai Police as the one accompanying the complainant. According to Murid Hussain, he returned to the place of occurrence with the police in wagon but according to A.S.I. Muhammad Iqbal, he had come with the complainant to the spot on a motorcycle. According to Murid Hussain, Mst. Rasti Mai was preparing Atta for baking and her hands were covered with Atta when she was dragged by the accused to the place of occurrence.
At the time of preparing the inquest report and also at the time of the post-mortem examination no Atta was found sticking lo the hands of Mst. Rasti deceased. As such, the prosecution case the she was dragged while preparing Atta to the place of occurrence does not appear to be correct.
The prosecution case is that Ghulam Akbar deceased had a hatchet for cutting branches of Keekar trees at the time of occurrence. The said hatchet was no taken in possession by the police from the spot which belies the prosecution case firstly, that the tree branches had been purchased by the complainant and secondly, that the deceased was cutting tree branches before the present occurrence. In view of this, I am of the opinion that Murid Hussain P.W. Was not present at the time of occurrence at the spot. So far as Irshad P.W. Is concerned, it was stated by him that he was present at the Pirr of Abdul Majid P.W. When he was attracted to the spot on hearing alarm. It was admitted by him that his own Pirr was 4/5 Acres A (about 200 Karams) away to the South of place of occurrence. However, in his statement before the police Exh. D.A., he did not mention that he was present at the Pirr of Abdul Majid P.W. On the other hand, he stated in his statement under section 161, Cr.P.C. Which was confronted, that he was irrigating his field near the Basti. This witness is related to the complainant-party and has, therefore, come forward to make statement in support of the prosecution case. In my view, this witness was also not present at the spot. Abdul Majid P.W. 6 is a friend of Murid Hussain complainant. He admitted his enmity with Abdus Sattar accused. In his cross-examination, it was stated by him that his statement was recorded by the Police Station on the next morning. This fact makes him a doubtful witness. The recoveries of crime weapons were not proved to be stained with human blood and cannot serve as corroborating evidence to the eye-witnesses. The eye-witnesses having been disbelieved, we are left with the statement of Muhammad Ismail accused who admitted having killed the two deceased under grave and sudden provocation. This statement has to be accepted as a whole. I, therefore, hold that only Muhammad Ismail accused was present at the spot and he killed the two deceased, having seen them in objectionable position at the spot at the time of occurrence. The parties are closely related to each other. The accused acted under grave and sudden provocation and killed the were of his brother, Siddiq alongwith her paramour Ghulam Akbar seeing them present together in the sugarcane field. As such, he can be said to have committed an offence under section 304 (I), P.P.C.
I, therefore, convict Muhammad Ismail under section 304 (I), P.P.C. And sentence him to 5 years' R.I.
He is acquitted of the charges under sections 302/149, P.P.C. I do not propose to' impose a sentence of fine because of the immorality of the two decease. The appellant Muhammad Ismail was allowed bail by suspension of sentence by this Court on 12-11-1984. He will surrender to the authorities C concerned to serve the un expired sentence in prison. He will also be given benefit of section 382-B, Cr.P.C. Ghulam Nabi, Wali Muhammad, Ghulam Qadir, Abdus Sattar and Ghulam Haider accused are acquitted. Their appeal is accepted. Their conviction and sentence under section 302/149, P.P.C. Is set aside. The accused-appellants who are in prison will be released forthwith, if not required in any other case.