SARDAR MUHAMMAD DOGAR, J.--Abdul Ghafoor, aged 45 years, was tried by learned Sessions Judge, Bahawalpur, under section 302/34 P P C along with his brothers, Abdul Khaliq, aged 40 years, Rahim Bakhsh, aged 48 years and Rasul Bakhsh, aged 60 years, for having murdered Allah Jawaya, at Peshiwela on 13-10-1980, at river bank, in the area of village Shakrani, at a distance of 9 k.m. From Police Station Uch Sharif.
The learned trial Judge vide judgment dated 16-10-1984, convicted him under section 302 P.P.C.
And sentenced him to death, plus to pay a fine of Rs.10,000, in default whereof to undergo R.I. For two years. Whole of the fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased. His co-accused were acquitted vide the same judgment.
2. The trial Judge made reference for confirmation of death sentence. The Reference was numbered as M.R. 29/84 (BWP). The convict filed appeal, which was numbered as 97/84 (BWP). On transfer of both the matters to the principal Seat, Murder Reference has been numbered as 79/86 (Lahore) while appeal has `been numbered as 253/86 (Lahore).
It may be noted here that the appellant and his co-accused were tried by the Sessions Judge on the complaint filed by Qadir Bakhsh, brother of the deceased, as the police had declared the appellant and his other co-accused named in the F I R as innocent and challaned six other persons. The names of the appellant and his co-accused were placed in column No. 2 of the said challan.
3. Qadir Bakhsh not feeling satisfied with the acquittal of Abdul Khaliq, Rahim Bakhsh and Rasul Bakhsh, filed P S L A, which was granted and the notices were issued to the three acquitted accused.
As all the matters arise from the same judgment, they arc being disposed of by single judgment.
4. F.I.R. (Exh. PA.) was recorded at Police Station Uch Sharif on 13-10-1980 at 8 p.m. By Muhammad Abbas, A.S.I. On the statement of Qadir Bakhsh (PW 1). The A.S.I. Was examined at the trial as CW-1.
According to F.I.R., the complainant was living in Basti Gorrian in village Shakrani alongwith his brothers Allah Jawaya deceased, Khan Muhammad, Rahim Bakhsh and Manzur. On the day of occurrence, the complainant had gone to cut Munj from the Serkandas in the bed area of river along with his brother, Allah Jawaya deceased, Manzur Ahmad (PW 2) and Ghulam Nabi (PW 3) at Zoharwela. Allah Jawaya started cutting Munj from the Serkandas. The complainant and the two PWs had yet not started cutting. Abdul Ghafur appellant, his real brothers Abdul Khaliq and Rahim Bakhsh, acquitted accused, came out of the Serkandas armed with Kulharis. They raised a Lalkara to Allah Jawaya saying that they will teach him a lesson for degrading them. Abdul Ghafur gave a Kulhari blow which fell on the right side of neck of deceased. The Kulhari blow given by Abdul Khaliq struck the deceased on the head near the temple, above the left car. Then Rahim Bakhsh gave a Kulhari blow which struck the deceased on the head above the left car. The wounds started bleeding. The deceased fell with face downward. Abdul Ghafur then gave two successive blows to the deceased on the left shoulder. In the meantime Rasul Bakhsh, their fourth brother, also came there and railed a Lalkara that Allah Jawaya should not be spared and done with. The complainant and the two PWs went ahead to save the deceased, Rahim Bakhsh gave a Lalkara that if they came near them, they will meet the same fate. Then all of them went away. Allah Jawaya died a shortwhile later.
Motive for the occurrence was that Abdul Ghafur had developed illicit relations with Mst. Zebo, wife of Nur Muhammad, brother of the deceased and complainant, for which the deceased used to dislike and hate him (appellant). They had many a time quarrelled also over that. The deceased had stopped the appellant from visiting the Basti. He was hazard between appellant and Mst. Zebo.
5. Muhammad Abbas, A S I after recording the F I R visited the spot, wherefrom he collected blood- stained earth, blood-stained string and Munj. He raided the house of the accused on the same night. Abdul Khaliq was not present there. Abdul Ghafur, Rahim Bakhsh and Rasul Bakhsh were sleeping there. They took up the plea of innocence. One Taj Muhammad appeared before the ASI and informed him that Rasul Bakhsh accused was present in Mauza Bakhtiari, at the time of occurrence.
The SHO on coming to the spot took up the investigation. The ASI informed him that he had not arrested the accused as he had found them innocent.
6. The dead body was sent for post-mortem examination, which was performed by Dr. Javid Hassan (PW 5) at 9 a.m. On 14-10-1980. He noted following injuries on the body of the deceased:--
(1) An incised wound, on the right side of neck cutting all muscles, vessels, oesophagus, trachea and injury to cervical spine, measuring 18 cm. x 10 cm. x 10 cm.
(2) An incised wound, on the left side of skull starting from centre of the left side of skull leading towards forehead cutting upper 1/3rd of left car, cutting the bone and membranes of brain measuring. 14 cm. x 3 cm. x 4 cm.
(3) An incised wound, on the back side of left shoulder-joint 10 cm x 4 cm x 4 cm. The bones and muscles underneath the injury were cut.
(4) An incised wound below injury No. 3, 10 cm. x 2 cm x 2 cm.
(5) An incised wound below injury No. 2, 6 cm. x 1-1/2 cm. x 1-1/2 cm.
(6) Abrasion on the back of left forearm 10 cm. x 6 cm.
Injuries Nos. 1 to 5 were opined to have been caused by a sharp-edged weapon while injury No. 6 was opined to have been caused by a blunt weapon. Death was opined to have occurred due to injuries Nos. 1 and 2.
During cross-examination the doctor stated that if the deceased had suffered injury No. 1 first, he must have fallen on the ground immediately.
7. The case apart from Muhammad Abbas, A S I (CW 1) was also investigated by Qadir Bakhsh, Inspector/S H O (CW 3), A.S.P. Ahmadpur East, one Muhammad Ashraf, D.S.P. And Liaqat A.I bodla, D.S.P. The D.I.G. Bahawalpur Range at a stage had also visited the spot and investigated the case on a direction issued by the High Court on the Writ Petition filed by the complainant showing his dissatisfaction over the conduct of the police officers. All the Investigating Officers were at one, about the innocence of the accused named in the F.I.R. The challans was submitted to Court against six other persons while the names of the appellant and three acquitted accused were placed in column No. 2 of the challan.
The complainant, after submission of the report by the D.I.G. Bahawalpur Range, did not press the writ petition and preferred to file a complaint directly to the Court of Session against the accused named by him in the F I R. As noted earlier, the appellant was convicted as a result of trial in the complaint.
8. At the trial apart from Dr. Javid Hassan, whose evidence has been noted earlier, statements of four more PWs were recorded. Out of them, Qadir Bakhsh complainant (PW 1), Manzur Ahmad (PW 2) and Ghulam Nabi (PW 3) deposed the ocular account.
Qadir Bakhsh while making statement although repeated the motive for the occurrence given by him in the F I R, but did not adhere to the sequence of the occurrence narrated by him in the F I R and the part played by each of the --accused. In that, he stated that all the four accused had come together armed with hatchets, that Abdul Ghafur had inflicted the first blow on the neck of tic deceased after the Lalkara raised by Rasul Bakhsh to murder Allah Jawwa a Abdul Khaliq, according to him, had given a blow thereafter on the head of the deceased, whereafter he had fallen down. He stated that appellant and Rahim Bakhsh then inflicted blow with hatchets on the left shoulder of the deceased. He alleged that when they stepped ahead to rescue the deceased, all the accused threatened them that they would be murdered. He added that Kabir and Khuda Bakhsh (PW 4) had reached there, on their alarm, and the accused had fled away from the spot with their hatchets, after their arrival.
He was duly confronted, during cross-examination, with the improvements/alterations made by him in the version given in the F I R.
He admitted during cross-examination that the case was firstly investigated by Muhammad Abbas, A S I, then by Rehmatullah, S H O, thereafter by A.S.P. Ahmadpur East, then by Muhammad Ashraf, D S P and Liaqat A.I Bodla, D S P. He also admitted that he had filed a writ petition in the High Court wherein a direction was issued to D I G, Bahawalupr Range to investigate the case and that he (D.I.G.) had visited the spot in this connection. He conceded that all the police officers who had investigated the case, had declared the accused named m the F I R to be innocent, that Rehm A.I, Akbar, Hayat, Abdul Khaliq, Khuda Bakhsh and Subhan were challaned and that challan was pending in the Court. He denied that he had formed a track party comprising of Subhan (arrested later by the police in this case) and Abdul Wahab. He denied that the above two persons were challaned for destroying the evidence of foot-prints. He stated that they all had sickles with them but had not used the same. In answer to another question, he stated that Allah Jawaya deceased had restrained Abdul Ghafoor appellant from meeting Mst. Zebo and to visit the Basti one year before the occurrence and thereafter they had not restrained Abdul Ghafoor in that matter. He denied the suggestion that the deceased had illicit relations with Mst. Khurshid wife of Rehm A.I and sister of Afzal, who was working as Welfare Officer in Paris Textile Mills. He also admitted that a case was registered against him, his five brothers, Khuda Bakhsh and Kabir for attacking the police when they had conic to arrest Khuda Bakhsh for the murder of his brother (deceased in this case).
Manzur Ahmad (PW 2) and Ghulam Nabi (PW 3) corroborated the statement made by Kadir Bakhsh (PW 1) at the trial. During cross-examination they were found to have given the facts and narration of the occurrence in their statements (Exhs. D.A. And D.B.), as got recorded by Qadir Bakhsh in the F I R (Ex. P A). They were duly co t with those statements during cross---examination.
Manzur Ahmad admitted that he was related to Qadir Bakhsh. He, however, claimed to be also related to the accused.
Ghulam Nabi admitted that his son was married to the daughter of the deceased and the deceased's son was married to his daughter.
All the three eye-witnesses denied the suggestion that they had not witnessed the occurrence, Khuda Bakhsh (PW 4) stated about having reached the spot on hearing alarm, of having seen the deceased lying there injured and all the four accused and the witnesses present there. The accused, he stated, fled away after Kabir had also arrived there. During cross-examination, he was not found to have stated any such thing in his statement Exh. D.D. Before the police. He admitted that he had been challaned as accused by the police for the murder of Allah Jawaya (deceased in this case) along with others.
9. Muhammad Abbas, A.S.I. (CW 1), gist of whose evidence has been noted in the earlier part of the judgment, during cross-examination, denied that he had arrested all the four accused on inspection of the spot and had taken then, to the police station but had released them after receiving a sum of Rs.40,000 as illegal gratification, alongwith Rehmatullah, S H O. He stated that he had correctly recorded the F I R and statements (Exs. D A, D B and D D). In answer to another question, he stated that he had found one bundle of Mud cut lying near the dead body but had not found any sickle lying there. He stated that many persons had appeared before the D.I.-G. Also who had gone to investigate the case at the spot and made statement on Holy Qura'an about the innocence of the accused.
Abdul Wahab (CW 2) stated about having been called as a tracker to the spot after the murder. He stated that Subhan, who was his Ustad, was already following the foot prints. During cross- examination, he stated that Khuda Bakhsh had removed the foot prints before arrival of the police.
Qadir Bakhsh Inspector/S H O, who was examined as CW-3, stated about having investigated this case. He had arrested Muhammad Akbar, Subhan, Khan. Abdul Khaliq and Rehm A.I in this case as accused on 15-6-1981 According to him, Rehm A.I, Muhammad Akbar and Abdul Khaliq had led to the recoveries of hatchets on 25-6-1981, which were taken into possession vide different memos. He disclosed that after completion of investigation he had submitted challan against Khuda Bakhsh.
Rehm A.I, Subhan, Abdul Khaliq, Akbar and Hayat Muhammad. He added that Hayat Muhammad was shown as an absconder. He stated that he had placed the names of Abdul Ghafoor, Abdul Khaliq, Rahim Bakhsh and Rasul Bakhsh, accused named in the F I R, in column No. 2, on being found innocent. He denied the suggestion that he had wrongly investigated the case and put up the challan against innocent persons.
10. The appellant and three respondents (acquitted accused) in the appeal filed by the complainant (Cr. A. 254/86) during statements under section 342 Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Copy of the report under section 173 Cr.P.C. Was tendered in defence. The report submitted by the D.I.G., Bahawalpur Range was also produced in defence.
11. Learned counsel for Abdul Ghafoor appellant and for respondents in the appeal fled by the complainant (CIA. 254/86) after taking us through the evidence criticised the impugned judgment and contended that the version of the complainant stood belied as a result of the investigations conducted by five different police officers, that the eye-witnesses, who appeared at the trial were interested and inimical, that they had made unsurpassable improvements over their previous statements, that the evidence regarding motive for the occurrence was not worth believing, that there was no evidence on record to corroborate the testimonies of the eye-witnesses, which was required on account of their being interested witnesses and also on account of the fact that they had made large scale improvements in their previous statements.
12. Learned counsel appearing for the complainant in the appeal filed by him against the acquitted respondents contended that no weight can be given to the opinions expressed by the Investigating Officers as they had acted in a partisan manner, that the eye-witnesses had no previous long- standing enmity to involve the accused and that the learned trial Judge had erroneously acquitted the respondents after having believed the eye-witnesses for conviction of Abdul Ghafoor, their co- accused.
13. Learned counsel for the State while defending the conviction recorded by the trial Judge, concurred with the arguments advanced by the learned counsel for the complainant.
14. We have considered the arguments of the learned counsel for the parties after perusing the judgment and appraisal of the evidence.
15. Out of the three eye-witnesses, PW-1 is real brother of the deceased. PW-3 is closely related to the deceased, in that his daughter was married to the son of the deceased while the son of the deceased was married to his daughter PW-2 also admitted his relationship with the deceased. The contention of the learned counsel for the appellant, therefore, that eye-witnesses in this ease are related stands undisputed. The intrinsic worth of their testimonies has, therefore, to be judged carefully and cautiously.
16. The F.I.R. Was lodged at the Police Station, which was at a distance of 9 km., after about six hours.
It appears from the confronted portions of the statements (Exs. DA and DB) made by Manzur Ahmad (PW 2) and Ghulam Nabi (PW 3) respectively to the police under section 161 Cr. P.C. That they had given the narration of the occurrence in the same sequence as given by PW-1 in the F I R (Ex. PA). The complainant as well as the witnesses made changes, in the sequence of the arrival of the accused at the spot, in regard to the individual part played by them in the occurrence and about the persons who saw the accused at the spot. In that, in the F I R, it was stated that Rasul Bakhsh had reached the spot after the other accused had finished infliction of injuries. No allegation was made against any other accused of having inflicted any injury on his Lalkara.
Similar statements were found to have been made in this regard by Manzur Ahmad and Ghulam Nabi PWs. It is specifically stated in the F I R that Abdul Ghafoor had given two successive blows on the left shoulder of the deceased after he had fallen on the ground. At the trial one out of the said two injuries, was assigned to Rahim Bakhsh. PWs. 2 and 3 were also found to have made this improvement on confrontation with their previous statements. Neither the complainant had mentioned the arrival of Khuda Bakhsh and Kabir at the spot when the deceased still was alive and the accused were also present there, nor PWs. 2 and 3 were found to have stated so in their statements (Exs. DA and DB respectively). But at the trial all three of them stated about their having reached the spot and seen the accused standing there armed with hatchets. In the F I R, Rahim Bakhsh was alleged to have threatened Manzur Ahmad and Ghulam Nabi PWs that they will meet the same fate when they had tried to intervene, but at the trial all the four accused were alleged to have given that threat. Thus it appears that all the three eye-witnesses have made widespread improvements not only with regard to the sequence of the occurrence, and part played by each of the accused, but also to the effect of the persons who had seen the accused at the spot.
None of these witnesses stated about deceased having suffered any injury with Aunt weapon. The doctor, however, had noted an abrasion, 10 cm. x 6 cm. On the fore-arm. The size and dimension of this injury is larger than injuries Nos.4 and 5, which have been specifically mentioned by the witnesses. It is not the case of the prosecution that this injury had resulted due to fall. If the witnesses had seen the occurrence, they would not have failed to observe the infliction of that injury.
Apart from that, the presence of these witnesses at the spot appears to be doubtful from another angle. In that, the A S I, who had first visited the spot had only found one bundle of Munj lying there and a rope. If these witnesses had gone along with the deceased, they would have also cut some Munj. Their statements that they had not yet started and it was the deceased only who had cut the Munj when the occurrence took place, is not believable, because if they had gone together for cutting Munj, there appears to be no justification to consider that they would not have started cutting Munj and the deceased alone would have started doing that.
17. The motive for the occurrence that the deceased had objected to the cultivation of illicit relations of Abdul Ghafoor with Mst. Zebo, wife of his brother Nur Ahmad and had stopped him from visiting the Basti also seems to be doubtful. In that Nur Ahmad, husband of Mst. Zebo, was neither produced during investigation nor examined at the trial to corroborate the statement made by the complainant in this regard. PW-1 admitted during cross-examination that the last time when the deceased had restrained Abdul Ghafoor from meeting Mst. Zebo and visiting the Basti was a year before the occurrence and that none of them (brothers) had restrained him in this regard thereafter. Obviously that would mean that either Abdul Ghafoor had accepted the warning and had stopped meeting Mst. Zebo, if at all he was doing earlier, or that the deceased and the complainant and all other brothers had accepted that fait accompli. In both the situations, Abdul Ghafoor could have no reason to commit the murder. Above all, it seems incompatible with our social set up that three real brothers of Abdul Ghafoor would have joined him in committing the murder of a person whose only fault was that he had stopped Abdul Ghafoor from carrying on with his brother's wife. We do not think that three real brothers would have joined hands with their fourth brother to commit the murder for immoral intimacy with a married woman. To us, the motive set up for the occurrence seems to be unbelievable. The learned trial Judge also expressed doubts about the truthfulness of the motive set up for the occurrence.
18. The position that thus emerges is that the eye-witnesses, who are found to have made a large scale improvements and whose testimonies are not corroborated either by the evidence of recovery of weapons of offence or even by the evidence of motive and to an extent contradictory to the medical evidence also, cannot be relied upon, in view also of the fact that the version put forth by them was found to be incorrect during investigations conducted by A S I, Inspector, A S P, two D S Ps and a D.I.G.
19. For all that has been discussed above, we have come to the conclusion that the story of the prosecution is highly doubtful and not believable. The appeal filed by Abdul Ghafoor, therefore, is allowed and he is acquitted. The appeal filed by the complainant against the acquittal of the accused is dismissed being without merit.
Death sentence is not confirmed.
S.A./A-665/L