' The propriety and the legality of the judgment, dated 22-24987 pronounced by the learned Additional Sessions Judge II, Bahawalnagar, has been questioned in this appeal, who had convicted Basara, his son Nazir Ahmad and Gahra under section 302/34 of the P.P.C. For killing Nazir Ahmad, in furtherance of their common intention, and were awarded imprisonment for life each.
Each one of them was directed to pay Rs,10,000 by way of fine or to suffer three years' R.I. Each in default thereof. A moiety of the fine, if recovered, was directed to be paid as compensation to the heirs of the deceased as envisaged under section 542A, of the Cr.P.C. The benefit of section 382-B of the Cr.P.C. Was, however, extended to the appellants.
' Gahra, one of the appellants, has died and the appeal against him stands abated.
2. The facts, which gave rise to the incident of murder, in substance, are that Nazir Ahmad son of Ibrahim was suspected of having amatorial ties with Mst. Sharfan, the daughter of Basara appellant. On the night of occurrence, i,e, on 9-7-1986, at about 4-00 a.m., Basara, Gahra and Nazir Ahmad came to the house of Nazir Ahmad son of Ibrahim where his sons Tariq Mahmood, Sabir and guest Muhammad Irshad were asleep. The daughters of Nazir Ahmad and his wife were also sleeping at a short distance. All the appellants took away Nazir Ahmad, and murdered him. The dead body of Nazir Ahmad was dragged and taken in the area behind their houses. The matter was witnessed by Tariq Mahmood and Sabir, the sons of Nazir Ahmad deceased and Muhammad Irshad, a cousin of the deceased, who had arrived as a guest in the house of the deceased.
3. Tariq Mahmood told this incident to the Headman of the village, who reported the matter to the police and the F.I.R. Exh.P.R. Was recorded at 7-40 a.m. On the same day. It was recorded by Muhammad Suleman Inspector Police.
4. The police came to the spot, collected the blood-stained earth and took into possession the broken pieces of wood, the pair of shoes of the deceased and also got removed a Chaddar, which had been wrapped around the neck of the deceased. The dead body was sent to the mortuary for autopsy and Dr. Abdul Aziz Sheikh P.W.1 listed the following injuries on his corpse:--
(1) An incised wound 7 c.m. x 1 c.m. x 1 c.m. On the right side of forehead, oblique in direction.
(2) An incised wound 3 c.m. x 1/2 c.m. x 1 c.m. Just above the medial ends of eyebrows vertical in direction.
(3) An incised wound 7 c.m. x 1.5 c.m. x 1.5 c.m. On the right side of head, 2 c.m. Behind and above the right ear, oblique in direction.
(4) An incised wound 12 c.m. x 1.5 c.m. x 1.5 c.m. On the right side of head, 3 c.m. Above injury No,3.
(5) An incised wound 6 c.m. x 1 c.m, x 1 c.m. In between the posterior ends of injury No,3 and injury No,4.
(6) An incised wound 5 c.m. x 1 c.m. x 1 c.m. On the back of head horizontal in direction.
(7) An incised wound 6 c.m. x 1 c.m. x 1 c.m. On the left side of the back, oblique in direction, 10 c.m.
Behind the left ear.
(8) An incised wound 3 c.m. x 1 c.m. x 1.5 c.m, on the middle of lower lip.
(9) Two contusions, each size about 12 c.m. x 1.5 c.m. x superficial about 5 c.m. Apart, oblique in direction on the upper part of right scapular region.
(10) A contusion size 25 c.m. x 1.5 c.m. x superficial vertically upon right side of back along the lower ends of injury No,9.
(11) A contusion 15 c.m. x 1.5 c.m. x superficial about 5 c.m. Lateral to injury No, 10.
(12) Contused area size 13 c.m. x 11 c.m. x superficial on lower outer part of right side of chest due to super imposed multiple contusions.
(13) Contused area size 24 c.m. x 22 c.m. x superficial on the right outer part of abdomen and right buttocks due to superimposed multiple contusions.
(14) Back of right arm and hand deeply contused due to superimposed multiple contusions.
(15) Back of left arm and hand deeply contused due to superimposed multiple contusions.
(16) Pinna of right ear cut through and through on its upper part.
(17) Legature mark all around the neck at the level of upper part of neck as explained in detail in the specific column.
' He has also added that the dead body was dressed in a white Chaddar stained with blood and semi-digested food weighing about eight ounces was found in his stomach, which was healthy. In his opinion, the death occurred collectively by asphyxia caused by strangulation due to injury No,17 and haemorrhage. He has also clarified that there was no abrasion on the dead body of the deceased and force was applied on the back side of the neck while strangulation.
5. Basara appellant was arrested on 9-7-1986 and blood-stained shirt P.5 was got removed from his body and taken into possession vide memo. Exh.P.H. On 15-7-1986 blood-stained Soti P.7 was got recovered at the instance of Basara appellant, which was taken into possession vide memo.
Exh.P.J. He also produced blood-stained Chaddar P.9 by which Nazir Ahmad was strangulated to death and it was taken into possession vide memo. Exh.P.L. Nazir Ahmad appellant was arrested on 16-7-1986 and blood-stained hatchet P.10 was got recovered from him vide memo. Exh.P.M. After the completion of the investigation, the challan of the appellants was submitted and, as a sequel to the impugned trial, they were awarded the aforementioned punishment.
6. Tariq Mahmood P.W.5, who was a student of 5th class and 12 years old on 3-2-1987, has narrated the incident, as stated above. In the F.I.R., the motive for the commission of this offence is stated to be the guilty associations of Nazir Ahmad deceased with Mst. Sharfan, the daughter of Basara appellant. But at the trial, Tariq Mahmood has stated that the appellants had borrowed Rs,27,000 from A his father and they also bore a grudge of acquiring land on lease by the deceased which was under cultivation of the appellants earlier. Both these facts do not find a mention in the F.I.R. Or his earlier statement. In this manner, the motive for the commission of this offence is not credible.
He has stated that Basara had put off his Chaddar for strangulating his father, who died on the spot. He has specifically stated that his sister Mst. Nasim Bibi also went there and both his sisters Mst. Nasim Bibi and Mst. Shamim are married ladies and they had come to pay a visit to their parental home. Mst. Khurshid Bibi happens to be the step-mother of this witness and she also witnessed this occurrence. According to him, he identified the accused from a distance of two Killas in a dark night and they did not make any attempt to save their father from being strangulated and beaten at the hands of the assailants. He has stated that the house of Bashir, Headman, is located at a distance of three or four squares and five or six families reside near the house of the complainant. According to this witness, Bashir came to the spot before sunrise and then left for the police station. He did not state in his statement Exh.DA. That the accused had taken away his father with them, as they wanted to have a talk with him. He has added that Nazir appellant got recovered hatchet P.10 from a Jhuggi of Basara appellant. He denied the suggestion that Basara had seen his daughter Mst. Sharfan and the deceased in a compromising position and out of grave and sudden provocation, he killed Nazir and Mst. Sharfan ran away.
7. Mst. Shamim Akhtar P.W.6, who is the daughter of the deceased, has endorsed the fact that her father was dragged towards the back side of the house of the appellants and strangulated there and they had followed the appellants and saw this occurrence.
' It may be noted that there was no dragging mark on the dead body of Nazir Ahmad, according to the medical evidence, and the story of dragging falls to the ground. Tariq Mahmood P.W.5 has stated that his sister Mst. Nasim Bibi had seen this incident. But strangely enough, when Mst.
Shamim Akhtar was examined as P.W.6, she has refuted his real brother by stating that she is the only daughter of her parents and has no other sister. According to her, nobody had forbidden Nazir from going with the appellants. She did not state in her statement before the police, the copy of which is Exh.D.B., that Nazir and Gahra accused came to take his father from his house.
8. Sabir, the son of the deceased, Muhammad Irshad, a close relative of the deceased, and the wife of the deceased were cited as ocular witnesses, but they had not been examined. Sabir is the elder brother of Tariq Mahmood P.W. And strangely enough, a lad of 12 years has been examined instead of Sabir, who was 15 or 16 years old at that time.
9. The story of recovery from Nazir appellant does not appeal to reason because he had produced a washed Chaddar P.11 and it is queer that he could not wash his blood-stained hatchet when he was arrested a week after this incident i,e, on 16-7-1986. The hatchet was recovered from their joint residence and it is not believable. From Basara, blood-stained shirt P.5 was recovered on 9-7-1986 and two pieces of broken wood were picked up from the spot and again bloodstained Soti P.7 was recovered from Basara appellant on 15-7-1986, which is an overdoing on the part of the police. It has been stated that a Chaddar was found around the neck of the deceased on the spot but again on 15-7-1986 Chaddar P.9 was recovered from Basara appellant from which he is stated to have strangulated Nazir deceased. In this manner, the story of recovery of hatchet from Nazir appellant and Soti and Chaddar from Basara appellant are not believable.
10. Bashir Ahmad P.W.9 is a complainant in this case, to whom the incident was told by Tariq Mahmood P.W. Again his statement Exh.P.P. Before the learned Magistrate was recorded so that he may not resile from his earlier statement i,e, the F.I.R. He has explained that his house is located at a distance of five or six Killas from the place of occurrence and about 20 or 25 houses are located at a distance of one Begah from his residence. He did not apprehend any of the appellants, although Basara is stated to have made an extra-judicial confession of his guilt before him that he had killed Nazir Ahmad, as he was found in an objectionable position with Mst. Sharfan, the daughter of Basara appellant. The story of extra-judicial confession has been demolished by Bashir Ahmad himself when he has stated that he satisfied Basara that he should not worry and that he would help him. According to section 41 of the Qanun-eShahadat, extra-judicial confession was actuated by a promise on the part of Bashir Ahmad, Headman, and it is not admissible in evidence.
11. Muhammad Suleman P.W.11 had conducted the investigation of this case. He has stated that, during the investigation, at the time of arrest of Basara, the latter had stated that he had murdered Nazir Ahmad, as he had found the deceased sitting with his daughter. It shows that Basara had taken the plea of grave and sudden' provocation from the very start and it was not figment, of his imagination which he exhibited at the trial. In response to question No,12 of hisl statement made under section 342 of the Cr.P.C., he has explained as under:-- "The story given by the prosecution was fabricated later on. As a matter of fact, I was the person, who informed the police regarding this occurrence. On the fateful night, I was sleeping in my house alongwith my children. At about midnight, I woke up. I checked my cattle and found Mst. Sharfan my daughter not present on her bed. I went in search of her by taking hatchet lying nearby in my house. I went to my fields and to my great surprise, I had stunning look at the compromising position in which the deceased and my daughter Mst. Sharfan was. I lost my self-control and under the impulse of grave and sudden provocation, attacked the deceased with hatchet, who tried to run away from the place of occurrence. But I chased him and gave him hatchet injuries. During the infliction of hatchet injuries, the blade of hatchet went off the handle of hatchet. But I continued beatings with the handle of the hatchet. I then dragged him by wrapping a Chaddar in his neck and brought him to the place of occurrence. I then reported the matter at the police station. Ghara was an old man and was sick. He had not participated in the occurrence. Nazir accused was not present at the spot and was away with his uncle at Mehta Jhaido. When I reached back at the place of occurrence, I have not found Mst. Sharfan there, otherwise I would have done her to death.
She was also not found by me in the Bheni till I proceeded to report the matter. None of the eye- witnesses were present nor any Lambardar was brought at the spot at the time of occurrence. It was the police who concocted this version and made the Lambardar, the informant, as none of the relatives of the deceased was present. I am innocent. No recovery whatsoever was effected from me."
12. The ocular witnesses have stated that the appellants came to the house of Nazir at 4-00 a.m.
And took him away, as they wanted to have a talk with him. According to them, there was a dispute regarding the recovery of Rs,27,000 and they also bore a grudge against the deceased, as the deceased had acquired the land on lease which was in possession of the appellants earlier. The appellants, according to them, had come armed and in that event, Nazir Ahmad deceased was not expected to accompany his enemies at an odd hour of 4-00 a.m. Secondly, semi-digested food was found in his stomach, which is indicative of the fact that he was murdered during the earlier part of the night and not at 4-00 a.m. It also does not appeal to reason that two sons, wife of the deceased and one Muhammad Irshad, an adult guest of the deceased, watched the incident like disinterested spectators and did not even raise hue and cry so as to attract the people from the neighbouring Basti of Bashir. Thirdly, it is also not credible that the incident took place at 4-00 a.m.
And Tariq Mahmood went to inform this incident to Bashir Ahmad, Headman, after two hours when the house of Bashir Ahmad is located at a short distance of 5 or 6 Killas from the spot. Mst. Shamim has been produced instead of Mst. Nasim and her statement is also not acceptable. Three important witnesses like the wife of the deceased, his son and Muhammad Irshad have not been examined and the presumption is that they were not ready to support the prosecution case.
13. The number of the injuries sustained by the deceased shows that he was killed at convenience uninterrupted by the by-standers. It also shows the degree of provocation of the assailants. The motive for the commission of this crime and G the story regarding the recovery of the hatchet, Chaddar and the blood-stained Soti has not been believed. In the circumstances, the prosecution could not substantiate its case.
14. When the prosecution has failed to establish its case, then the defence taken by Basara appellant is to be accepted in toto. In the circumstances, I accept the appeal of Nazir Ahmad appellant and set aside the conviction and sentence ordered against him. He should be set at liberty forthwith if not required to be detained in any other case. The case against Gahra stands abated on account of his death.
15. According to the statement of Basara appellant, he is guilty under section 304, Part I of the P.P.C.
As he had lost the power of self-control under the stress of grave and sudden provocation and firstly he axed Nazir Ahmad to death and when the blade of hatchet went off then he used its handle in injuring the deceased. He is, therefore, convicted under section 304, Part I of the P.P.C. And is awarded five years' R.I. The amount of fine and compensation remains unaltered. The appeal is decided accordingly.