MUHAMMAD RAFIQ TARAR, J.--Naza and Faraza sons of Bakhsha, Kalu and Wazira sons of Naza and Abbasu son of Faraza were tried under sections 148, 302 and 307/149, P.P.C. By the Additional Sessions Judge, Bhakkar who by his judgment dated 21-9-1985 acquitted them of all the charges.
The order of acquittal has been challenged by the State through this appeal.
2. The brief facts of the prosecution case are that Rab Nawaz complainant and his father Ahmad P.W. Are residents of Basti Khokharanwali. Naza and Faraza, paternal uncles of the complainant, who were also residing in the same Basti, had shifted to Chah Awanwala situate at a distance of about one mile. They were not allowing the complainant party to cultivate their land at Chah Awanwala. On 9-11-1983 at about Peshiwela Mst. Jindo Mai, wife of Naza respondent, came to the dera of the complainant party. Rab Nawaz complainant objected to her visit saying that Faraza and her husband Naza were not allowing them to visit Chah Awanwala, upon which he returned to her dera. At about Degarwela Makhna, another paternal uncle of Rab Nawaz complainant, was present in his cotton field. The complainant and his father Ahmad P.W. Were also there when Naza, Faraza and Wazira armed with hatchets and Kalu and Abbasu armed with sticks came there raising Lalkaras. On seeing them Makhna deceased, Ahmad P.W. And Rab Nawaz complainant started running towards their houses. The respondents overtook them and Wazira and Naza gave one blow each on the head of Makhna, as a result of which he fell down. Then Faraza, Naza and Wazira gave hatchet blows to Ahmad P.W. And Abbasu respondent gave him a stick blow.
Thereafter, Abbasu and Kalu gave stick blows to the complainant while Faraza and Naza gave him a hatchet blow each on the left shoulder. On hearing the alarm Mst. Waziran Mai came there and tried to intervene but Wazira gave her hatchet blow and Kala injured her with his stick. In the meantime, Qasim, son of Makhna deceased, and Falak Sher came to the spot and rescued the members of the complainant party. Ahmad and Makhna were removed to their houses in injured condition where the latter expired soon after.
The motive alleged in the F.I.R. Is two-fold. Firstly, the parties had strained relations due to a land dispute and the matter was pending in the Court. Secondly, Rab Nawaz had objected to the visit of Mst. Jindo Mai to Basti Khokharanwali, on which the respondents felt annoyed.
3. After the death of Makhna deceased, Rab Nawaz complainant went to Police Station Sadar Bhakkar and reported the occurrence to Faiz Muhammad, S.H.O. At 8-30 p.m. Vide F.I.R. Exh. P.G. The S.H.O. Sent him to Civil Hospital, Bhakkar, on the same night. He inspected the spot, prepared injury statements of Ahmad and Mst. Wazrran Mai and sent them to the hospital for medical examination. He prepared the injury statement (Exh. P.S.) and inquest report (Exh. P.R.) of the dead body of Makhna deceased and despatched it to the mortuary for post-mortem examination. He secured some blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh.
P.H. The accused persons were arrested on 18-11-1983. Naza, Wazira and Faraza accused led to the recovery of hatchets P. 5, P.6 and P. 7 which were taken into possession vide memos. Exhs. P.J., P.K.
And P.L. Respectively. On the same day Kala and Abbasu w accused led to the recovery of sticks P.
8 and P. 9 vide memos. Exhs. P.M. And P.N., respectively. After the investigation, the accused persons were challaned.
4. On 10-11-1983 at 4 p.m. Dr. Inam-ul-Haq Khan, S.M.O., Civil Hospital, Bhakkar, conducted the autopsy on the dead body of Makhna deceased and found two incised wounds on the head. One was in the middle 5 c.m. x 1/2 c.m. x bone deep. The other was on the right side of the head 3 c.m. x 1 c.m. x bone deep. Fourth rib on back side was fractured. There was bleeding from the mouth, nose and ears. In the opinion of the doctor, death was due to shock and internal haemorrhage resulting from injuries Nos. 1 and 2, which were ante-mortem and sufficient to cause death in the ordinary course of nature.
On the same day, the same doctor examined Rab Nawaz, Ahmad and Mst. Waziran P.Ws. Rab Nawaz had eight injuries, out of which two were caused by sharp-edged weapon and the rest with blunt weapon. Injury No. 1 was a lacerated wound on left side of forehead. Initially it was kept under observation and on receipt of X-ray report it was declared grievous. The other injuries were simple in nature. Ahmad P.W. Had four incised wounds and an abrasion. Injuries Nos. 1 and 3 on the left arm and right wrist, respectively, were kept under observation. The rest were simple. On receipt of X-ray report, injury No. 3 was declared grievous. Mst. Waziran had an incised wound on the left hand and an abrasion on left forearm, both simple in nature.
5. 1n support of its case the prosecution examined nine witnesses in all. Rab Nawaz, Ahmad, Mst.
Waziran and Qasim furnished the ocular account of the occurrence.
6. The respondents pleaded not guilty to the charge and denied the prosecution allegations against them. They maintained that the occurrence took place during the dark hours of night; the sons of Saddo Mai from her previous husband were suspected for this murder because the deceased had murdered their father Sultan and had married his widow Mst. Saddo Mai; they were also accused for having attempted on the life of Makhna deceased. Saddo Mai then arranged a compromise and falsely involved them due to enmity over the land dispute. No evidence was led in defence.
7. After examining the evidence on the record, the trial Judge came to the conclusion that the eye- witnesses were closely related and inimical towards the accused; their evidence was full of material discrepancies; the time and place of occurrence was not proved; the recoveries were fake and the motive alleged by the prosecution was very weak. He further observed that the "deceased had murdered Sultan previous husband of his present widow and married her against the wishes of her sons Bahawal and Muhammad Bahksh. They had attacked the deceased and a case was pending against them under section 307, P.P.C. That case was immediately got compromised after present occurrence. The accused had occupied land of deceased and P.Ws. It was a night occurrence and probably the P.Ws. Had not identified the assailants". In view of the above findings, he acquitted all the accused by giving them the benefit of doubt.
8. Learned counsel for the State contends that the reasons given by the trial Court for supporting the above findings are wholly artificial and he has stretched the evidence to the breaking point in order to invent the aforesaid wholly untenable reasons. The learned counsel for the respondents has relied on the reasons of the trial Judge to contend that the order of acquittal is not open to exception.
9. The prosecution version is supported by as many as four eye-witnesses, namely, Rab Nawaz complainant P.W. 5, Ahmad P.W. 6, Mst. Waziran P.W. 7 and Qasim P.W.
8. The first mentioned three eye-witnesses suffered injuries during the occurrence. Rab Nawaz had eight injuries, out of which two were caused by sharp-edged weapon and the rest with blunt weapon. Injury No. 1 was a lacerated wound on the left side of the forehead which was declared grievous. Ahmad P.W.
Suffered five injuries, out of which four were by sharp-edged weapon and one with a blunt weapon.
Injury No. 3, which was an incised wound on the right wrist-joint, was declared grievous. Mst.
Waziran had two simple injuries, one caused by a sharp-edged weapon and the other with blunt weapon. Because of the stamp of injuries on their persons, their presence at the spot is not open to the slightest doubt and was not controverted during the arguments. However, so far as Oasim P.W.
Is concerned, it is in evidence that he was residing in village Notak and was a frequent visitor to Basti Khokharanwali where the occurrence took place. Since he was not a resident of village Khokharanwali, we are, by way of abundant caution, keeping his evidence out of consideration. Rab Nawaz complainant is the nephew of the deceased. Ahmad P.W. Is his brother and Mst. Waziran is his daughter. However, their evidence cannot be thrown away merely for the reason that they are related to the deceased. The accused are also their kith and kin. However, it is on record that the accused persons had illegally occupied the land of the complainant party and civil litigation was pending between them, therefore, it can safely be inferred that they had strained relations with each other. However, enmity cuts both ways. It may be the reason for the attack and at the same time it may induce the complainant party to falsely implicate as many of their enemies as possible. The aforesaid eye-witnesses were cross-examined at length but nothing useful to the defence could be elicited from their statements. Their evidence is consistent and they have corroborated each other even in minor details. They have given consistent account of the place where Rab Nawaz and Ahmad P.Ws. Were present with the deceased before the occurrence, the direction from which the accused came, the distance from which they noticed the accused and the manner in which the occurrence took place. The medical evidence lends substantial corroboration to their statements; they are unanimous that Naza and Wazira respondents gave hatchet blows to Makhna deceased on the head; Fraza, Naza and Wazira gave hatchet blows to Ahmad, and Abbasu respondent caused him injuries with his stick; Abbasu and Kala gave Soti blows to Rab Nawaz while Wazira and Kala gave hatchet and stick blows respectively, to Mst.
Waziran Bibi. Two incised wounds on the head of the deceased and blunt and sharp weapon injuries on P.Ws. Ahmad, Rab Nawaz and Waziran Bibi lend support to their version.
The respondents have admitted that there was a land dispute between them and Makhna deceased. There is abundance of evidence that the accused had occupied the land of the complainant party and were not permitting them to cultivate it. Civil litigation in respect of the said land was going on. Faza and Naza respondents are real brothers (also real brothers of Makhna deceased and Ahmad P.W.). Wazira and Kala .Respondents are sons of Naza respondent and Abbasu respondent is son of Fraza respondent. In this occurrence one person was killed and three suffered injuries. In all they suffered seventeen injuries. The accused in the present case are so connected with each other that they were expected to join hands in the commission of crime and their number is such as was required for an attack of the present type and this circumstance too lends substantial support to the ocular evidence.
10. After examining the evidence, we are in agreement with the learned counsel for the State that the findings of the trial Court regarding time and place of occurrence. Motive and identification of the assailants are wholly artificial. The reasons which weighed with the trial Judge for holding that the occurrence had taken place during the dark hours, were that on the fateful day sun had set at 5-09 p.m. According to Ahmad P.W. 6, the deceased expired during day time. The sun had set one or one and a half hours after his death, meaning thereby that the deceased might have expired at 4-09 or 3-39 p.m. Which version is belied by P.W. 9 (Investigating Officer) who stated that time of death as reported to him was 7--30 p.m. The trial Judge observed that there was "certainly darkness at 7-30 p.m. In our villages people take meals before sunset and they go to sleep earlier than people living in cities. Had it been a day time occurrence the accused must have aimed at causing fatal blows to Rab Nawaz P.W. Who had allegedly insulted Mst. Jindo". The above conclusion is devoid of all reason. The eye-witnesses are consistent that the deceased died during the day time. The Investigating Officer, however, stated that the time of death as given to him by Rab Nawaz and other witnesses was 7-30 p.m. If any witness had informed him 'like that, the statement being before a police officer during the course of investigation would be inadmissible and in any case the time of death, whether it was before or after sunset, is not of much help for determining the time of occurrence. If there was "certainly darkness at 7-30 p.m." when the deceased breathed his last as held by the trial Court, how could it show that the occurrence had also taken place during dark hours. The trial Judge has observed that the medical witness had stated "that death had taken place within twenty-four hours from the time of post-mortem examination. The said examination had been conducted at 4 p.m. He does say that this time cannot be exlaed (relaxed). This shows that death had taken after 4 p.m. At every cost". We are pained to say that the trial Judge had misread the evidence on this aspect. The doctor had rather stated that "time between death and P.M. Of Makhna deceased cannot be relaxed." The eye- witnesses are consistent that the occurrence took place at Degarwela and there is nothing on the record to show that it had taken place during the dark hours. The F.I.R. Was recorded at the police station at 8-30 p.m. Wherein it was stated that Makhna deceased succumbed to his injuries soon after and his dead body was lying at his house. If, for the sake of argument, it be assumed that the occurrence had taken place after sunset and before the lodging of the F.I.R., even then there is absolutely no reason to believe that the eye-witnesses had not identified the assailants correctly.
The reason is that the accused persons who were previously known to the eye-witnesses, were armed with hatchets and Sotis which can be effectively wielded only when the victim is in close proximity. The finding of the trial Judge that the eye-witnesses had not identified their assailants is absurd and emits obnoxious smell.
11. The eye-witnesses admitted that Mst. Saddo Mai, widow of the deceased, was previously married to one Sultan. Aforesaid Sultan was murdered for which Makhna deceased was prosecuted but was acquitted. One year prior to the occurrence, aforesaid Bahawal, Muhammad Bakhsh and their maternal uncle Khuda Bakhsh attacked the deceased and a case under section 307, P.P.C. Was registered against them which was compromised after the present occurrence. On the basis of these admissions an attempt was made to build an argument that sons of Sultan had committed the murder of Makhna deceased. A suggestion was put to Ahmad (P.W. 6) that they suspected Bahawal etc. For the murder but on the intervention of Mst. Saddo Mai they substituted the present accused on account of land dispute. If sons of aforesaid Sultan had been the assailants of the deceased and the injured P.Ws., there was no earthly reason for the P.Ws. To spare them when a case under section 307, P.P.C. For making murderous assault on Makhna was already pending.
The occurrence took place at Degarwela. From the place of occurrence Ahmad P.W. And Makhna deceased were brought to their house in injured condition. The complainant had stated that after the death of Makhna he left on foot to lodge the F.I.R. Within half an hour; on reaching Notak he had to wait for the bus for half an hour and on reaching Bhakkar Police Station he found that the Thanedar was not there. The Muharrir did not record his statement in the absence of the Thanedar who came back to the police station at about 8 p.m. And recorded the F.I.R. In the circumstances, the F.I.R. Was lodged without any delay on the part of the complainant. It is preposterous to presume that the complainant had time to concoct a story substituting the present accused for the real culprits. It is really painful that the trial Judge had time and again indulged in misreading of evidence to draw conclusions adverse to the prosecution. Towards the end of para. 14 of the impugned judgment, he states that the statement of Rab Nawaz complainant (P.W. 5) "is quite unbelievable when he says that he had gone on foot upto Notak within 4/5 minutes. Notak is about 4/5 miles away from the place of occurrence. No person on earth can have a speed of 60 miles per hour on foot:" The complainant had nowhere stated that he reached Notak within 4/5 minutes.
What he stated about reaching Notak was that he "might have taken pause 4/5 times" in the journey from his house to Notak. It appears that the trial Judge was handling this case with preconceived notions. He has tried to condemn the eye-witnesses for the so-called reasons which do not exist at all.
12. The trial Judge was convinced of the argument of the defence that the occurrence had taken place somewhere else, and not at the place alleged by the prosecution. He, inter alia, observed that according to P.W. 1 (Ata Hussain Foot Constable) the place of occurrence was towards the south of Basti Khokharanwali while Mst. Waziran (P.W. 7) had stated that it was towards the east of their house. The above statement of a formal witness being of no consequence does not deserve any credit. The trial Judge also relied on the statement of Qasim P.W. To hold that the blood- stained earth was taken from the house from underneath the cot of the deceased. We have already ignored the evidence' of Qasim P.W. Regarding the occurrence. He is not a reliable witness.
In examination-in-chief he had stated that the police had recovered blood-stained earth from the place of occurrence in his presence. Actually it was nobody's case that the occurrence had taken place in the house. The suggestion put by the defence to the complainant regarding the place of occurrence was that it was a cotton field belonging to the accused. Another suggestion hurled on Ahmad P.W. Was that dead body was found outside the village towards the south. We do not find any infirmity in the prosecution evidence regarding the place of occurrence.
13. While dealing with the motive, the trial Judge held that the .Immediate motive alleged by the prosecution was very weak. In the circumstances of the present case, the immediate motive, narrated by the P.Ws. At the trial, was quite adequate. The parties already stood inimically disposed of towards each other due to land dispute. When Rab Nawaz turned out Mst. Jindo Mai wife of Naza respondent, an elderly lady, the blood of the accused persons must have enormously boiled. The trial Judge himself observed that if the complainant had insulted Mst. Jindo Mai "then there could have been reasonable grounds for the attack on the part of the accused on that very day." In the circumstances of the present case, turning out of Mst. Jindo Mai was not a petty affair. It was rather highly insulting and humiliating.
14. At this stage, it need be mentioned that in the impugned judgment age of Naza respondent has been mentioned as 80 years and that of-Fraza as 75 years, and an argument could be raised that due to extreme old age they were not in a position to attack the deceased and the injured P.Ws.
After chasing them. Except the statements of the aforesaid respondents, recorded without oath, there is nothing on the record to show that they were of 80 and 75 years of age, respectively. In the police papers (certificate `Shanakht') age of Naza has been shown as 55/56 years and that of Fraza 50/52 years. After examining the entire evidence, we are fully convinced that the occurrence had taken place in the manner alleged by the prosecution and the reasons advanced by the trial Court to support the finding of acquittal are wholly artificial.
15. The question that now remains to be determined is as to what offences were committed by the respondents. Mst. Waziran (P.W. 7), in cross--examination, stated that Kalu and Abbasu accused arrived at the place of occurrence after her father had been seriously injured by the other three co- --accused. Makhna deceased had suffered injuries even prior to the assault on Ahmad P.W. Father of Mst. Waziran. These two accused, therefore, cannot be held vicariously liable for the acts of their co-accused. Both of them were armed with sticks. They caused injuries to Rab Nawaz. Kalu also caused injuries to Mst. Waziran. The Soti blow delivered by Kalu to Rab Nawaz landed on his head and this injury was declared grievous. Abbasu respondent gave a Soti blow on the back of Rab Nawaz. The blunt weapon injury on the person of Mst. Waziran was simple in nature. Kalu and Abbasu respondents are, therefore, convicted under section 325/34, P.P.C. For causing grievous hurt to Rab Nawaz P.W. They have faced the agony of a prolonged trial and remained in jail as under-trial prisoners throughout for a period of over one year and ten months. In the circumstances, they are sentenced to a fine of Rs.1,000 each or in default in the payment thereof to undergo rigorous imprisonment for three months each. The fine, if recovered, shall be paid to Rab Nawaz P.W. As compensation. They are also convicted under section 323/34, P.P.C. For causing simple hurt to Mst. Waziran P.W. And sentenced to a fine of Rs.500 each, which, if recovered, shall be paid, as compensation to Mst. Waziran. In default of payment of fine they will undergo rigorous imprisonment for one month each.
Naza, Wazira and Fraza respondents are convicted under sections 302 326 and 324/34, P.P.C. For the murder of Makhna deceased and for causing grievous hurt to Ahmad P.W. And simple injuries to Rab Nawaz and Mst. Waziran P.Ws. According to the doctor, death was due to shock and haemorrhage resulting from injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. It appears that death was due to cumulative effect of both the injuries. In the circumstances, Naza, Wazira and Fraza respondents are sentenced to imprisonment for life and a fine of Rs.5,000 each under section 302/34, P.P.C. In default of payment of fine they will undergo further rigorous imprisonment for two years each. Out of the fine, if recovered, a sum of Rs.10,000 shall be paid to the legal heirs of the deceased as compensation. They are also sentenced to rigorous imprisonment for six months and a fine of Rs.1,000 each under section 326/34, P.P.C. For causing grievous hurt to Ahmad P.W. In default of payment of fine they will undergo further R.I. For three months each. The fine, if recovered, shall be paid to Ahmad P.W. As compensation. For causing simple injuries to Rab Nawaz and Mst. Waziran P.Ws. They are sentenced to a fine of Rs.500 each on each count under section 324/34, P.P.C. In default of payment of fine, they will undergo rigorous imprisonment for one month each on each count. The fine, if recovered, shall be paid to the aforesaid injured P.Ws. In equal shares. All the sentences shall run concurrently.
SA./S-478/S Acquittal set aside.