' By his judgment, dated 18-6-1980, the learned Sessions Judge, Kasur convicted Mahboob alias Booba and Muhammad Anwar, appellants, under section 307 of the P.P.C. And sentenced them to imprisonment for life. They were also directed to pay Rs.1,000 each as compensation to the injured P.Ws., or in default of payment of compensation to suffer imprisonment for further period of six months, under section 544-A of the Code of Criminal Procedure. Mahboob alias Booba and Muhammad Anwar have appealed against their conviction and sentences.
' It should be mentioned here that Mukhtar accused was also tried with Mahboob alias Booba and Muhammad Anwar accused but was given the benefit of doubt and was acquitted.
2. In an incident, which occurred at about 10-00 or 11-00 p.m. On 16-7-1979 at the tube-well of one Faiz in the area of Shams Abad, which is at a distance of 12 miles from Police Station Chunian, District Kasur, three persons, namely, Said Muhammad and his two sons Ashiq and Ashraf were injured; Ashiq died of the injuries at the spot. Ashraf and Said Muhammad P.Ws. Were carried to Civil Hospital, Chunian, in injured condition. It was there that the doctor informed Zulfiqar Hussain Shah, S.H.O. (P.W.14) of the incident and he, after reaching the hospital, recorded the statement of Said Muhammad (P.W.13) at 6-50 a.m. On 177-1979. Exh.P.A. Is Said Muhammad's statement before the police and Exh.PA./1 is the formal F.I.R.
3. The prosecution case as laid in the F.I.R. May be shortly stated as follows:-- ' Said Muhammad P.W. Cultivated land at the tube-well of one Faiz. Some 7 or 8 years ago, Muhammad Iqbal accused, a real brother of Mahboob alias Booba appellant, was married to one Mst. Khurshaid. About 8 or 9 months before the incident, Mst. Khurshaid eloped with a paramour.
Later, she returned to her parents. Thereafter, Muhammad Iqbal divorced Mst. Khurshaid Bibi. About a month before the incident, Mst. Khurshaid Bibi again eloped with somebody from her parental house in Bongi Kalyan. Muhammad Iqbal accused suspected that Ashiq deceased had illicit relations with her and that it was he with whom she had eloped.
4. On the night of the incident, Said Muhammad P.W. And Muhammad Ashiq deceased were sleeping on the same cot at the tube-well. Muhammad Ashraf P.W., another son of Said Muhammad, was sleeping on another cot. The tube-well was working and a lantern was burning.
At about 10-00 or 11-00 p.m., Muhammad Ashiq deceased gave a shriek. On being so aroused, Said Muhammad P.W. Saw that Muhammad Iqbal, armed with a sword, Mahboob alias Booba, armed with a hatchet, Mukhtar alias Mukha (another brother of Mahboob alias Booba and Iqbal), armed with a gun, sons of Hakam Ali, Caste Arain, residents of the village and Muhammad Anwar Arain, armed with a hatchet, were standing near their cots. Within the view of Said Muhammad P.W., Iqbal gave a sword blow at the neck of Ashiq. Muhammad Anwar appellant gave a hatchet blow to Muhammad Ashraf hitting him on his chin and lip. Leaving the cost of Ashiq deceased, Said Muhammad P.W. Laid himself on his son Muhammad Ashraf P.W. To save him from the culprits.
Thereupon, Mahboob alias Booba appellant gave a hatchet blow on his back. Said Muhammad raised an alarm which attracted Bashir Ahmad, Sarwar, residents of Shams Abad, to the spot. They also saw the incident taking place. On seeing them, the culprits ran away.
5. Muhammad Ashiq died at the spot. Said Muhammad and Muhammad Ashraf were carried to the hospital, where they were medically examined by the doctor. As stated above, it was on the information of the doctor that the S.H.O. Reached the hospital and recorded the statement Exh.PA.
Of Said Muhammad P.W.
6. Dr. Muhammad Ashraf, Medical Officer, (P.W.8) examined Muhammad Ashraf at 5-00 a.m. On 17- 7-1979 and found the following wounds on his person:--
(1) Cut wound 9 x 2 c.m. On the lower jaw above the chin, mandible and teeth underneath were cut through.
(2) Cut wound 2 x 1/2 c.m. x lip deep on the upper lip, left side.
' In his opinion, injury No.1 was grievous, injury No.2 was simple and both had been caused by sharp weapon within about 12 hours.
7. On the person of Said Muhammad P.W., the doctor found a cut wound 18 x 6 c.m. x 6 c.m. Back of chest left side, upper part. Scapula underneath were cut through. The injury was grievous and was caused by sharp weapon.
8. Dr. Muhammad Ashraf also performed the post-mortem examination on the dead body of Muhammad Ashiq deceased at 4-00 p.m. On 17-7-1979. The dead body was found to have the following injuries:--
(1) Cut wound 12 x 4 c.m. In front and left side of neck obliquely directed parallel to the lower border of mandible. Jugular and Carotid vessels on the left side were cut through. Trachea was also cut.
(2) Cut wound 6 x 1 c.m. On the right clavical and upper part of chest, obliquely directed.
' In the opinion of the doctor, death was due to shock and haemorrhage due to injury No.1. The injuries were ante-mortem and were caused by sharp weapon. They were sufficient to cause death in the ordinary course of nature.
9. In cross-examination, the doctor did not agree with the suggestion that an injury caused by a sword is remarkably different from an injury caused by a hatchet. He could not, however, rule out the possibility of the injuries of Muhammad Ashraf P.W. Having been caused with a sword. In the opinion of the doctor, injuries Nos. 1 and 2 of the deceased could not be the result of one stroke. As regards the injuries of Muhammad Ashraf P.W., the doctor was positively of the opinion that they could not be the result of one blow. He also could not rule out the possibility of the injuries of Muhammad Ashraf P.W. Being the result of a hatchet blow.
10. The investigation of this case was carried by Zulfqiar Hussain Shah, S.H.O. (P.W.14). After recording the statement of Said Muhammad P.W. (Exh.PA.), he also recorded the statement of Muhammad Ashraf P.W. In the hospital. He then reached the spot and found the dead body of Ashiq deceased lying at the tube-well. He prepared injury statement Exh.P.L. And inquest report Exh.P.M. In respect of the dead body and sent the dead body for post-mortem examination under the escort of Abdus Salam, Constable (P.W.5). He collected blood-stained earth from one place and made it into a parcel vide Exh.P.D. He also found a lantern (Exh.P.6) hanging with the hook of the chain of the door of the tube-well and took it into possession vide memo. Exh.P.H.
11. Zulfiqar Hussain Shah, S.H.O. Arrested Mahboob alias Booba, Muhammad Anwar, appellants, and Mukhtar alias Mukha on 21-7-1979. Muhammad Iqbal accused could not be arrested and proceedings under sections 87 and 88 of the Code of Criminal Procedure were initiated against him. Zulfiqar Hussain Shah, S.H.O. Also had the site plan Exh.P.B. And Exh.P.B./1 prepared from Muhammad Ali, Patwari (P.W.4) in the scale of 20 Karams to an inch; he also recorded his notes in red ink on the site plans.
12. It is the prosecution case that Muhammad Anwar accused led the police to the recovery of hatchet P.7 from the room of his house on 31-7-1979 and it was taken into possession vide memo.
Exh.PJ. On the same day, Mahboob alias Booba, appellant, led to the recovery of hatchet P.8 from the room of his house vide memo. Exh.P.K.
13. The prosecution examined 14 witnesses in all including Dr. Muhammad Ashraf (P.W.8) and Zulfiqar Hussain Shah, S.H.O. (P.W.14).
14. As mentioned above, Muhammad Iqbal accused was declared absconder. The remaining three accused persons, namely, Mahboob alias Booba, Muhammad Anwar, appellants, and Mukhtar alias Mukha, in their statements under section 342 of the Cr.P.C. Denied that they were, in any way, concerned with the incident resulting in the death of Muhanimad Ashiq and injuries to Said Muhammad and Muhammad Ashraf P.Ws. The appellants also denied the recovery of hatchets from them.
15. The prosecution case mainly rested upon the testimony of Bashir Ahinad (P.W.11), Muhammad Ashraf (P.W.12) and Said Muhammad (P.W.13). As has been noticed above, Said Muhammad and Muhammad Ashraf P.Ws. Are father and son; Bashir Ahmad P.W. Is a brother of Said Muhammad P.W's wife and a maternal-uncle of Muhammad Ashiq deceased and Muhammad Ashraf P.W.
Bashir Ahmad P.W. Was a resident of the same village viz. Shamas Abad; he however, admitted that he had his house on the other side of the village. His explanation for his staying for the night at the place of Said Muhammad P.W. Was that he had gone to the place of Said Muhammad P.W. To borrow his bullocks and plough; that Said Muhammad P.W. Had told him that as he had put fodder before the oxen, he should stay there for the night and should take away the bullocks and plough the next morning. As regards Said Muhammad and Muhammad Ashraf P.Ws, both were injured during the course of the incident. Besides giving the eye-witness account of the incident and the manner in which they and Ashiq deceased received injuries at the hands of the appellants and Muhammad Iqbal absconding accused, they also testified to the motive. According to Said Muhammad P.W., Muhammad Iqbal accused had married Mst. Khurshaid of village Bongi Kalyan some 7/8 years before the incident. Mst. Khurshaid would not, however, live with him; most of the time, she lived in her parental house. Some 7/8 months before the incident, Mst. Khurshaid disappeared. Her parents were, however, able to trace her out and bring her back. As a result of this disappearance or elopement, Muhammad Iqbal divorced her. Muhammad Iqbal suspected that Muhammad Ashiq deceased was responsible for her disappearance. When Said Muhammad learnt of the suspicion, he attended a Punchayat convened by Muhammad Iqbal with his two grand-daughters, both being the daughters of Muhammad Ashraf P.W. And assured the Punchayat that if they were found to have anything to do with the abduction of Mst. Khurshaid, they would leave both the girls for being married in the family of Muhammad Iqbal accused.
16. As to Muhammad Anwar, appellant, Bashir Ahmad, Muhammad Ashraf and Said Muhammad P.Ws. Stated that he was a friend of Muhammad Iqbal accused. The accused Muhammad Anwar was described as Muhammad Anwar Arain. Cross-examined on the point, Said Muhammad P.W.
Admitted that he had known Ahmad Din Arab, father of Muhammad Anwar, appellant, for 3/4 years before the incident. Asked to explain as to why he had not given a fuller description of the accused Muhammad Anwar. Said Muhammad P.W. Insisted that he had described Muhammad Anwar as a son of Ahmad Din in the F.I.R. He admitted that there were a number of persons living in his village having sons by the name of Muhammad Anwar.
17. Dealing with the motive evidence, the learned Sessions Judge observed that the story given by Said Muhammad P.W. At the trial that he had offered his two granddaughters for marriage in the family of Muhammad Iqbal accused to the Punchayat if he or his sons were in any way, found concerned with the elopement of Mst. Khurshaid to be an afterthought. In the opinion of the learned Sessions Judge merely because Muhammad Iqbal accused had divorced Mst. Khurshaid before the incident did not mean that Muhammad Iqbal and his brothers had no grudge against Muhammad Ashiq deceased. In his view, 'it is always the state of mind of the accused which determines as to how it reacts and when? A husband could not be expected to sever all his relations and sentimental connections with his ex-wife or her relatives after having divorced her and could very naturally feel annoyed and upset over her elopement or abduction'. Though the learned Sessions Judge did not like to 'dilate much on this aspect of the case' because Muhammad Iqbal accused was not before the Court, yet he felt convinced that 'there could be some sort of motive, weak or strong, with the family of the accused for the commission of the offence'.
18. As to the testimony of Said Muhammad, Muhammad Ashraf and Bashir Ahmad P.Ws., there could, so observed the learned Sessions Judge, be no doubt as to the presence of Said Muhammad and Muhammad Ashraf at the scene of occurrence. The learned Sessions Judge, however, did not feel inclined to believe that there was any reason for Bashir Ahmad to be at the spot on the night of occurrence; in any case, he was at the time of the incident sleeping at quite some distance from the cots of the deceased and Said Muhammad and Muhammad Ashraf P.Ws.
And could not have reached well in time to see and recognize the culprits.
19. Though the learned Sessions Judge had no doubt as to the presence of Said Muhammad and Muhammad Ashraf P.Ws. At the time of the incident, yet in view of the fact that both were closely related 'inter se as also with the deceased, their testimony has to be evaluated with greater care and caution'. In this connection, the learned Sessions Judge also referred to the fact that before the Investigating Officers, witnesses were examined in support of the innocence of Muhammad Anwar, Mukhtar and Mahboob alias Booba and proceeded to observe that 'if all these three accused had claimed innocence before the Police Officers, it has to be determined if the prosecution has been able to establish their guilt beyond reasonable doubt'. In the opinion of the learned Sessions Judge, the case against Mukhtar was not free from reasonable doubt, for he was stated to be armed with a gun but he had not used it and the gun was also not recovered from him. Regarding the guilt of Mahboob alias Booba and Muhammad Anwar, appellants, learned Sessions Judge believed the testimony of Said Muhammad and Muhammad Ashraf P.Ws., in his opinion, the medical evidence supported their testimony. The learned Sessions Judge repelled the contention that the case against Muhammad Anwar, appellant, was doubtful, observing that though there were many persons named Muhammad Anwar in the village and their parentage was also known to Said Muhammad P.W. And that the parentage of Muhammad Anwar was also known to him, 'but all this does not suggest that Muhammad Anwar accused was wrongly implicated. There is nothing on the file to show that there was any other Anwar, Arain by caste, living in the village'. Muhammad Anwar, appellant, the learned Sessions Judge, however, observed, had been properly described in the F.I.R. 'and there would be no ambiguity about his identity'. If Muhammad Anwar who is Arain by caste was not present at the scene of occurrence and had not participated in the commission of the offence what after all prompted the complainant to nominate him in the F.I.R.' These P.Ws., the learned Sessions Judge added, could not be mistaken regarding the identity of these two, particularly so when there was a lantern burning nearby which was taken into possession by the Investigating Officer'.
20. The learned Sessions Judge did not believe the recovery of hatchets P.7 and P.8 from the appellants. The length and diameter of both the hatchets were the same and their handles were also new ones. The learned Sessions Judge, therefore, concluded that the hatchets were 'perhaps planted on the accused, to strength the prosecution case'.
21. Addressing himself to the question whether the appellants and their absconding co-accused Muhammad Iqbal had acted in furtherance of the common intention, the learned Sessions Judge recorded the finding that 'they cannot be said to have shared the intention of their co-accused who was responsible for causing the death of Ashiq deceased. Had it been so, there was nothing to stop both of them i.e. Anwar and Mahboob from inflicting more injuries on their victims and do away with them. The fact remains that they did not inflict or try to inflict any more blow to their victims'. However, the learned Sessions Judge had no doubt in his mind that their act of causing injuries to Said Muhammad and Muhammad Ashraf amounted to murderous assault upon them and, therefore, brought their case under section 307 of the P.P.C.
22. The above finding of the learned Sessions Judge, namely, that the appellants were not vicariously responsible for the murder of Ashiq deceased is in my view open to the remarks that if the fact be that the appellants and their absconding co-accused Muhammad Iqbal had armed themselves and had gone to the spot with the intention to kill Ashiq, then it made little difference that the appellants did not cause any injury to Ashiq deceased. For when two or more persons make preparation, arm themselves with deadly weapons and go to a place at the dead of night with the intention to kill a person and that person is killed by one of them, all of them are liable for the killing for in such cases they also serve who wait and see.
23. It should be also clear from what has been stated above that the learned Sessions Judge misdirected himself in scree very material facts. In his view, Muhammad Anwar, appellant, had been properly described in the F.I.R. In point of fact, the description suffered from a vagueness of the highest character. That it was not only vague but left much to be desired can be demonstrated from a comparison with the description of the other three accused persons in the F.I.R. Whereas Muhammad Anwar was described as 'Muhammad Anwar Arain' only, the remaining three accused persons were described fully with reference to their father's name and the place of their residence; they were stated to be the residents of the same village viz. Shams Abad. The learned Sessions Judge also assumed that Muhammad Anwar, appellant, was also a resident of Shams Abad. The truth of the matter was that he belonged to a different village, namely, Char Kot. There was no doubt about his being a resident of that place. In the chain, his place of residence was stated to be Char Kot and in his statement under section 342 of the Cr.P.C. Also, Muhammad Anwar claimed to be the resident of that village. It is in these circumstances, that the admitted fact that Said Muhammad P.W. Had very well-known the father's name of Muhammad Anwar, appellant, but had not given it in the F.I.R. Assumes importance. Instead of trying to explain his failure to describe Muhammad Anwar accused with reference to his father's name in the F.I.R., Said Muhammad P.W.
Persisted and obviously persisted in error, in asserting that he had described him with reference to his father's name. In the circumstances, the learned Sessions Judge, in my view, was clearly wrong in his observation that the complainant had 'nominated' him in the F.I.R. In these facts, instead of asking himself the question as to why should the complainant have 'nominated' Muhammad Anwar, appellant, as one of the culprits, the proper question to pose was why the description in relation to Muhammad Anwar Arain was left so vague despite the fact that Muhammad Anwar, appellant, was known to Said Muhammad P.W. And that he had no doubt about his place of residence and his father's name. Then it escaped the learned Sessions Judge's notice that according to Dr. Muhammad Ashraf (P.W.8), there were two injuries on the person of Ashraf P.W.
And that they could not have been the result of one blow. In the F.I.R. As regards Ashraf P.W., a plural tense was used in describing his injuries. According to Said Muhammad and Ashraf P.Ws., however, Muhammad Anwar, appellant, had given only one hatchet blow to Ashraf.
24. The night of the incident was a dark night; it was the 20th of the moon. It was said that the lantern P.6 was burning at the time of the incident at a distance of about 5 feet from where the deceased and the two P.Ws., Ashraf and Said Muhammad were injured. It is not known how much light emitted from the lantern and if it was sufficient to enable the P.Ws. To recognize the culprits individually. Said Muhammad and Ashraf P.Ws. Claimed that Muhammad Iqbal accused caused one sword blow to Ashiq deceased, Muhammad Anwar, appellant, caused one hatchet blow to Ashraf P.W. And Mahboob alias Booba, appellant, caused one hatchet blow to Said Muhammad P.W. Thus, in all, three blows were suffered by Ashiq deceased, Ashraf and Said Muhammad P.Ws.
For them, four persons, three of them real brothers, namely, Muhammad Iqbal, Mahboob alias Booba, Mukhtar and Muhammad Anwar were named as culprits. What moved the appellants and their co-accused to join together was that Ashiq deceased was suspected to have enticed away Muhammad Iqbal's wife some 8/9 months before the incident and this had led Muhammad Iqbal accused to divorce her. Muhammad Iqbal accused's wife, it is stated, had eloped again a month before the incident. Said Muhammad P.W. As also Ashraf P.W. Denied that Ashiq deceased had had anything to do with the elopement. Said Muhammad went to the length of saying that a Punchayat had been held and that to assure the Punchayat that his son Ashiq was innocent of the charge of abduction or elopement, he had offered his two granddaughters (daughters of Ashraf P.W.) as a ransom. Learned counsel for the appellants, therefore, argued that the alleged motive was no motive at all, particularly when Muhammad Iqbal accused had before the incident divorced his errant wife. The learned Sessions Judge appeared to think that there could be some sort of motive on account of the suspicion entertained by Muhammad Iqbal accused and I am inclined to agree, for Muhammad Iqbal accused might have thought, rightly or wrongly, that Ashiq deceased was responsible for wrecking his family life. It appears, however, doubtful that on a mere suspicion entertained by Muhammad Iqbal accused, his two real brothers and a complete stranger, namely, Muhammad Anwar, would join with him in taking the life of Ashiq deceased, particularly after what Said Muhammad P.W. Had done at the Punchayat to assure Muhammad lqbal accused and his family of their innocence in the matter.
25. That in the circumstances of the case, the question of identity clearly arose and that there is a reasonable doubt about the participation of the appellants in the commission of the crime, also appears from the following facts. As observed above, the description of the 4th culprit was deliberately left vague in the F.I.R.; the inference being that Said Muhammad P.W. Was not sure as to who that culprit was. As regards Mahboob alias Booba and his brother Mukhtar not much ingenuity was needed to name them as culprits; they were the real brothers of Muhammad Iqbal accused and whether they were or were not present at the spot and whether they were or were not recognized, Said Muhammad P.W. Must have found it convenient to name them. I have already mentioned the fact that in the opinion of the doctor, the injuries suffered by Ashraf P.W. Could not be the result of one blow; Said Muhammad and Ashraf P.Ws., however, insisted that Muhammad Anwar, appellant, had caused only one hatchet blow to Ashraf P.W. Said Muhammad P.W. Suffered only one injury on his back and that was caused when he had laid himself with his face downward on his son Ashraf P.W. It is doubtful that lying in that posture, Said Muhammad could have seen the man hitting him. Ashraf P.W. Had already been injured and as his father lay upon him, it is open to question that he too could have seen his assailant. The learned Sessions Judge disbelieved the presence of Bashir P.W. And in my view for good reasons. He had no reason to be at the tube-well of Said Muhammad on the night of the incident and his introduction as an eye-witness also raised doubts. There is then the significant fact that the injuries of Ashraf and Said Muhammad P.Ws.
Could well be the result of sword blows. Said Muhammad P.W's injury was 18 c.m. In length and the probability of its being the result of a sword blow was greater than its being the result of a hatchet blow. The doctor's opinion that this injury could also be the result of a hatchet blow was based upon the length of the blades of the hatchets P.7 and P.8, allegedly recovered from the appellants.
But the learned Sessions Judge rightly disbelieved the recovery of those hatchets; he went so far as to hold that those hatchets had been planted upon the appellants. There was, therefore, no basis for the supposition that hatchets P.7 and P.8 were the very hatchets which had been used in the commission of the offences.
26. For these reasons, I would accept the appeal, set aside the conviction and sentence of the appellants and acquit them. They are on bail and shall stand I discharged of their bail bonds.