ASLAM RIAZ HUSSAIN, J.-- This order will dispose of (1) Criminal Petition for Special Leave to Appeal No. 289 of 1982 filed by Zil Muhammad alias Zilla against his conviction and sentence; and (2)
Criminal Petition for Special Leave to Appeal No. 294 of 1982, filed by Sikandar Hayat Khan complainant against the acquittal of Soni and Dost Muhammad respondents.
2. All the three accused were tried for the murder of Sardar Muhammad Hayat an old man of 70 years while he was sleeping in a room of his house on the night between 16/17-12-1978.
3. The motive for the offence is stated to be that about 1 1/2months before the occurrence the deceased had called Mst.Bawi wife of Soni respondent (in Criminal Petition 294 of 1982) to his Dera and had insulted her and enquired about Soni who had left his service. On her disclosure of his whereabouts he had called back Soni and re-employed him as his domestic servant. Soni is stated to have taken the insult heaped upon his wife by the deceased to his heart and, in order to avenge the same, had in concert with Zil Muhammad and Dost Muhammad done away with the deceased.
4. The prosecution case briefly is that on 16-12-1978 Sardar Muhammad Hayat was sleeping in a room at his Dera. His nephew Sikandar Hayat (P.W.5), Mian Ahmad (P.W.6) a servant of Bhai Khan, (P.W.7) (a Jaat) were also sleeping in other rooms of the same Dera. At about 1 a.m. At night Sikandar Hayat (P.W.5) heard the cry of the deceased whereupon he opened the intervening door.
In the meantime the other P.Ws. Also entered from the other room and in the light of the bulb they saw the three accused-petitioners who were the personal servants of the deceased, killing Sardar Muhammad Hayat that Zil Muhammad who was carrying hatchet played the active role by giving two blows on the right side of the neck of the deceased. On seeing the P.Ws the three accused attempted to escape but were over-powered by the P.Ws and taken into custody. They took away the blood-stained hatchet (Exh.P.4) from Zil Muhammad who was carrying the same. A large number of persons turned up on hearing the noise. Sikandar Hayat Khan (P.W.5) lodged the F.I.R.
Within 11 hours during the same night. The police then arrived at the spot; took into its possession the blood-stained articles, arrested the accused who were already in the custody of the P.Ws. And also took into possession the blood-stained hatchet recovered from Zil Muhammad accused. This hatchet subsequently was found to be stained with human blood.
5. At the trial the prosecution relied on the testimony of the 3 eye-witnesses namely (1) Sikandar Hayat Khan P.W.5 (nephew of the deceased); (2) Mian Ahmad P.W.6 (a servant of the deceased) and (3) Bhai Khan, P.W.7 (a friend of the deceased) who was visiting him and was staying in his house on the fateful night. Their testimony was corroborated by the recovery of the blood-stained hatchet recovered from Zil Muhammad, medical evidence and the evidence of motive.
6. The trial Court believed the prosecution version and by its judgment dated 6-1-1980, convicted all the three accused under section 302/34, P.P.C. It sentenced Zil Muhammad to death while it sentenced Soni and Dost Muhammad to imprisonment for life.
On appeal before it the High Court maintained the conviction and sentence of Zil Muhammad but acquitted Soni and Dost Muhammad co-accused.
Feeling aggrieved Sikandar Hayat Khan complainant has filed Criminal Petition for Special Leave to Appeal No. 294 of 1982 against the acquittal of Soni and Dost Muhammad respondents therein, while Zil Muhammad accused-petitioner has filed Criminal Petition for Special Leave to Appeal No. 289 of 1982 against his conviction and sentence.
7. We have heard the learned counsel for the petitioners in both the petitions and gone through the relevant portions of the impugned judgment with their help.
8. The salient feature of this case, in our view, is that Sardar Muhammad Hayat (deceased) (aged 70 years) was murdered in his own house while asleep by his own servants. The three assailants were apprehended alongwith the weapon of crime (hatchet) stained with human blood, by the P.Ws. At the spot and that the P.Ws. Had no hostility whatsoever with the accused. Nor was any suggestion made to the P.Ws. During their cross-examination as to the possible motive for their having been falsely implicated. In this connection it would be useful to reproduce here the observations of the High Court in paragraph 9 of its judgment, which reads as follows:- "Admittedly the appellants were the domestic servants of the deceased and as they claim had been serving him through generations. There is nothing on the record nor any suggestion put to any of the prosecution witnesses during cross-examination to indicate the reason of motive for false implication of the appellants. In such a situation the complainant party would not have gone to the extent of involving the appellants as culprits if they had not seen associated with the commission of murder of the deceased. Mian Ahmad P.W.6 who is a colleague of the appellants and who is not shown to bear any hostility towards them would not have normally given such evidence against them as of their dispatching the deceased to death if he had not seen the occurrence. Mian Ahmad and the appellants being domestic servants of the deceased naturally lived at the Dera of the deceased. The presence of Sikandar Hayat Khan, P.W.5, nephew of the deceased, whose residence was at a distance of about 100 to 150 yards from the Dera of the deceased, and of Bhai Khan, P.W. 7, a Zamindar whose residential house was three miles away, at the Dera of the deceased on the night of occurrence had been satisfactorily explained Sikandar Hayat Khan, Mian Ahmad and Bhai Khan had no acrimonious relations with the appellants. They bore out that hearing the sound of the deceased they went to his room and saw Zil Muhammad appellant administering two hatchet blows on the neck of the deceased in their presence. They witnessed Soni appellant pressing the body of the deceased by the flank and Dost Muhammad appellant securing the legs of the deceased. Sikandar Hayat Khan and Bhai Khan snatched the hatchet, Exh.P.4, from Zil Muhammad. Mian Ahmad caught hold of Soni while Dost Muhammad was apprehended by Ghulam Hussain. The alarm raised by these prosecution witnesses brought the other persons to the spot. As already remarked the hatchet, Exh.P.4, was found to be stained with human blood which fact provides corroboration, if it is needed, to the ocular testimony. There is no reason to disbelieve ocular evidence of the above-mentioned prosecution witnesses in so far as it establishes the causing of fatal injuries by Zil Muhammad appellant to the deceased with the hatchet. It needs hardly be mentioned that having passed his life with the deceased it was not difficult for Zil Muhammad to gain access to the bedroom of the deceased. His guilt for murdering the deceased is proved beyond doubt."
9. The counsel for the petitioners in Criminal Petition No. 294 of 1982 submitted that after these observations it is very hard to see why Soni and Dost Muhammad were acquitted by the High Court. The only ground mentioned by them in paragraph 10 of its judgment for acquitting them is that the deceased was an old person and it was not necessary for Soni and Dost Muhammad co- accused to help Zil Muhammad for putting the deceased to death.
10. Learned counsel for the complainant argued that they were present there because of the motive and also to provide encouragement to Zil Muhammad and that from the evidence on the record, which has been believed by the High Court (as shown by its observations in paragraph 9 of its judgment reproduced above) it is proved that all the three accused were seen by the witnesses and apprehended along with the weapon of crime by the P.Ws, at the spot and further that the P.Ws. Had no reason whatsoever to have involved them falsely if they were' not the real culprits and were in fact innocent.
11. There appears to be considerable force in the above-noted contentions of the complainant's counsel. We, therefore, grant leave in Criminal Petition No. 294 of 1982 to consider whether the High Court had followed the well-established principles for appreciation of evidence in criminal cases.
Let non-bailable warrants be issued against Soni and Dost Muhammad accused-respondents.
12.We now take up Criminal Petition No. 289 of 1982 filed by Zil Muhammad accused-petitioner.
As already mentioned he was caught at the spot along with the other two co-accused. But since the entire evidence on record will by considered by the Bench hearing the appeal arising out of Criminal Petition No. 294 of 1982, leave may also be granted in this petition (Criminal Petition No. 289 of 1982) . Ordered accordingly.