KHALIL-UR-REHMAN RAMDAY, J.--Six persons, namely, Ahmad Khan, Zafar Hussain, Umar Hayat, Mansab Muhammad Nawaz and Sarang were tried for the murder of one Saddad as also for having committed murderous assault on Mst. Mumtaz Begum (PW-11) and Muhammad (PW 12), after having trespassed into the house of Saddad deceased, at about 2.00 a.m. On 15.5.1984.
2.Through a judgment dated 30.3.1986 of a learned Addl.Sessions Judge of Gujranwala, the charges against Umar Hayat, Mansab, Nawaz and Sarang were held not proved and they were accordingly acquitted of all the charges levelled against them.
3. Ahmad Khan and Zafar Hussain were, however, found guilty and were convicted and sentenced as under:- U/S 302/34 P.P.C..
AHMAD KHAN.
Sentenced to death, plus a fine of Rs.6,000/- or one year R.I. In default of payment thereof, plus compensation of Rs.15,000/- U/S 544-A Cr.P.C, or six months R.I. In default thereof to ZAFAR HUSSAIN Imprisonment for life with a fine of Rs.6,000/- or one year R.I. In default and a compensation of Rs.15,000/- U/S 544-A Cr.P.C, or six months R.I. In default.
The compensation, if recovered, to be paid to the legal heirs of Saddad deceased.
U/S 3Q7/34 P.P.C, on two counts.
On each count, seven years R.I. Each to both, Ahmad Khan and Zafar Hussain with a fine of Rs.5.000/- each on each count or one year R.I. Each in default, plus a compensation of Rs.8,000/- each U/S 544-A Cr.P.C, or to suffer six months R.I.each.
The compensation payable by Ahmad Khan to be paid to Mst. Mumtaz Begum P.W. And compensation payable by Zafar Hussain to be paid to Muhammad P.W.
U/S 449 P.P.C..
Five years R.I. Each with a fine of Rs.2,000/- or six months r.1, in default, to each of the two convicts i.e. Ahmad Khan and Zafar Hussain.
U/S 13 of Arms Ordinance. 1965.
Only Ahmad Khan was found guilty of this charge and sentenced to two years R.I..
All the sentences of imprisonment awarded to each of the convicts were directed to run concurrently.
4. Murder Reference no.102 of 1986 is a reference seeking confirmation of death sentence imposed on Ahmad Khan convict. Crl.Appeal No.314 of 1986 has been filed by Zafar Hussain convict challenging the conviction and sentences recorded against him as ahove-described. Crl Appeal No.375 of 1986 is by Ahmad Khan convict against his convictions and sentences U/S 302/307/34 and U/S 449 P.P.C, as above-mentioned whereas Crl. Appeal no.324 of 1986 calls in question the convicton and sentence passed against Ahmad Khan convict under section 13 of the Arms Ordinance of 1965.
5. All these four matters are being disposed of together through this single judgment.
6. Ahmad Khan convict is the real son of Saddad deceased. Mst. Mumtaz Begum, the injured PW-11 is a daughter of Saddad deceased but a stepsister of Ahmad Khan convict. Zafar Hussain convict is a nephew of Saddad deceased being the son of Ghulam, a real brother of the said deceased. He is thus a first cousin of his co-convict Ahmad Khan as also of Mst. Mumtaz Begum P.W.. Muhammad, the other injured PW-12 is not related to either of the parties but is stated to be a friend of Saddad deceased.
7. It may also be noticed here that Mst.Mumtaz Begum (PW-11) is the wife of one Ashiq Hussain (PW-7) to whom she was engaged to be married prior to the occurrence. The marriage, however, took place sometimes after the occurrence. This engagement is claimed to be the cause of the occurrence in question and shall be discussed in some detail in the later part of this judgment.
8. The F.I.R, of the present case bearing No.69 which was recorded on 15-5-1984 at 8-30 a.m. At Police Station Pindi Bhattian was lodged by one Talib Hussain (PW-8). This Talib Hussain is the son of a sister of Ashiq Hussain, above-mentioned.
9. The occurrence in question allegedly took place in the 'HAYELP of Saddad deceased in the area of Mauza Hinduana which is at a distance of aboutseven miles from P.S.Pindi Bhattian.
10. Complainant Talib Hussain (PW-8) had alleged, through this F.I.R., that about 20/22 days prior to the occurrence, Saddad deceased had engaged his daughter Mst. Mumtaz Begum PW to Ashiq Hussain PW, a maternal uncle of Talib Hussain complainant but Ahmad Khan convict had opposed this engagement and had felt offended with the same. The complainant further alleged that Ahmad Khan convict made efforts to persuade his father, Saddad deceased, to break this engagement but the deceased remained adamant on continuing the same and even fixed 20-5- 1984 as the date for the marriage of Mst. Mumtaz Begum PW with Ashiq Hussain PW..
11. Talib Hussain PW claimed that on the night between 14th and 15th of May, 1984, he was sleeping in the 'HAVELI' of Saddad deceased and that the deceased, Mst. Mumtaz Begum PW., Muhammad PW and one Ahmad son of Rehman ( a barbar of the village) were also sleeping there. He work-up on hearing the sound of some foot-steps and saw Ahmad Khan and Zafar Hussain convicts standing bear their cots while armed With. 12-bore guns. Ahmad Khan convict allegedly raised a LALKARA to teach a lesson to the deceased for engaging Mst. Mumtaz Begum PW with Ashiq Hussain PW against his wishes and then fired a shot at Saddad deceased who was lying on his cot.
Mst. Mumtaz begum PW also woke-up after hearing the report of the fire and was shot at by Zafar Hussain convict. Muhammad PW also woke-up and was fired at by Ahmad Khan convict followed by a fire by Zafar Hussain convict which, however, did not hit the said Muhammad PW.. The complainant claims to have raised alram alongwith Ahmad barbar aforesaid which attracted Ahmad son of Raja to the place of occurrence. The two assailants allegedly decamped from the spot and took away, 12 bore licensed gun of Saddad deceased with them. The time was 2- a.m..
12. After recording this F.I.R. Ex. P.M., Ghulam Rasool A.S.I. (PW-18) proceeded to the place of occurrence.
13. The said Ghulam Rasool A.S.I, prepared the injury statement and inquest report with regart to the dead body of Saddad deceased being Exhs.PQ and PR respectively and despatched the same to the mortuary. The two injured victims, namely, Muhammad (PW-12) and Mst. Mumtaz Begum (Pw- ll) were still at the place of occurrence. Ghulam Rasool ASI prepared their injury statements being Exhs.P.s. And PT; recorded their statements under section 161 of the Cr.P.C, and sent them both to the Health Centre at Pindi Bhattian for medical examination.
14. The said A.S.I./I.O. Found four crime empties Ex.P.5/1-4 at the place of occurrence and secured them vide memo Ex.P.E.. He also secured the bloodstained earth from the place of occurrence as also some cots and beddings etc., of the victims of the offence in question.
15. Zakaullah Inspector/S.H.O. (PW-16) also claims to have reached the place of occurrence the same day and to have taken over the investigation which remained with him till 22-6-1984 when he left the Police Station to attend a course and the investigation was then entrusted back to Ghulam Rasool A.S.L, above- mentioned.
16. The only contribution of Zakaullah S.H.O.(PW-16) tQ the investigation was to have introduced Mansab, Umat Hayat, Nawaz and Sarang as persons, who were also involved in the commission of the offence in question after allegedly recording the statements of Fateh Sher (PW-13), Ahmad (PW-14) and Aslam (PW-15).
17. It may be mentioned here that all these three PWs. Denied having made any such statements before this I.O.; they were declared hostile at the trial and still refused to implicate any of these four accused persons, who were consequently acquitted by the learned trial Court.
18. It may also be pointed out here that the involvement of these four accused persons in the commission of the offence in question was either an act of sheer overzealousness on the part of this Inspector/S.H.O. Or a calculated mischief to help the two accused persons specifically named in the F.I.R.. It may be further mentioned here that none of these four accused persons were named in the F.I.R, and, in fact, Mst.Mumtaz Begum PW was surprised at the trial by the involvement of these four as persons accused of the occurrence in question.
19. This involvement of these four accused persons, however, did give a handle to the defence to create dents in the prosecution case by claiming that the occurrence in question was a blind murder where the assailants had gone unidentified.
20. The evidence available on record against the two convicts consists of the motive, the recoveries of crime empties P5/1-4, the recovery of gun P.4 at the instance of Ahmad Khan convict and two of the crime empties having been found to have been fired from this gun and finally of course the eye-witnes account of the occurrence offered by Talib Hussain complainant, Mst.Mumtaz Begum and Muhammad, injured PWs.
21. The four crime empties bearing ExhP5/l-4 were allegedly secured by Ghulam Rasool A.S.I. (PW- 18) during his inspection of the spot immediately on his arrival at the place of occurrence after the recording of the F.I.R..
22. Muhammad Shahbaz Patwari (PW-2) who prepared the site-plan stated that the place from where these crime empties had been secured was never pointed out to him. Ghulam Rasool ASI (Pw-18) admitted this as correct and further admitted that he had not mentioned the presence of these crime empties, at the place of occurrence, in the inquest report Ex.P.R. And further that he had not recorded any note on the site-plan Ex.P.B. Showing the points from where these empties were secured.
23. These crime empties were taken into possession by Ghulam Rasool ASI on 15-5-1984 but Muhammad Iqbal M.H.C.(PW-5) claims that the parcel, containing these crime empties, was handed over to him for safe custody on 17-5- 1984 i.e. Two days after the alleged seizure of these crime empties from the place of occurrence. Muhammad Rafi M.H.C.(PW-9) stated that he had handed over this parcel to Muhammad Ashraf F.c.(PW-9) for transmission of the same to the Fire Arms Expert/Forensic Science Laboratory on 11-7-1984 almost two months after their seizure from the place of occurrence and about 18 days after the recovery of gun P.4 from Ahmad Khan convict from which gun, two of these crime empties were found to have been fired.
24. This gun P.4 was allegedly recovered by Ghulam Rasool ASI when Ahmad Khan convict allegedly led him to his DERA and got the same recovered. It is admitted by Ghulam Rasool ASI as also by Mulazam Hussain (PW-6) that the door of the room from where this gun was got recovered by Ahmad Khan convict was not locked and also that the door of the HAVELI in which this room is situate was also lying open when they arrived there.
25. In the circumstances, we find that the recovery of gun P.4 at the instance of Ahmad Khan convict is a doubtful affair. The alleged presence of the four crime empties at the place of occurrence is also doubtful for the reasons above-mentioned and the evidence regarding two of these empties having been fired from gun P.4, thus looses its worth and value.
26. This brings us to the examination of the evidence and the circumstances available on record in proof of the motive alleged for the commission of the offences in question.
27. It is on record that Muhammad, the injured PW-12, was living in the house of Saddad deceased.He is admittedly not related to the deceased. He is Undisputedly a resident of Mauza Gunnian of District Gujrat and was living with the deceased since about 6/7 months prior to the occurrence. The defence alleged that Sadd deceased apprehended danger to his life and Muhammad P.W. Was being retained by the deceased as his body-guard. The prosecution has denied this suggestion and has instead claimed that the said Muhammad PW was a friend of Saddad deceased and was living in his house to help the deceased with his work. The fact, however, remains that it is an admitted position that Muhammad PW was staying with the deceased during the days of occurrence.
28. Complainant Talib Hussain PW also claims to have taken-up residence in the house of Saddad deceased since about 20/22 days prior to the occurrence.
29. The explanation for his stay in the house of the deceased is that the deceased had requested Ashiq Hussain PW to send somebody to the deceased for looking after his cattle.
30. We have in evidence that Saddad. Deceased had a servant working for him by the name of Sardar. According to the prosecution, Muhammad PW was also available to Saddad deceased for providing assistance in his work. It is, however, on record that Mst.Mumtaz Begum, a daughter of the deceased stood engaged to Ashiq Hussain FW. In the circumstances a request from Saddad deceased to Ashiq Hussain P.W. For providing assistance to him for looking after his cattle is not plausible. One would not be expected to request, a son-in-law tobe, for such a favour. It is also quite implausible that Ashiq Hussain PW would send his sister's son who is a married man having his family for putting fodder to the cattle in the house of his in-laws.
31. Irrespective of this rather weak explanation of the presence of Talib Hussain complainant in the house of Saddad deceased, it is difficult to exclude his presence from the house of the deceased at the time of occurrence. It is equally difficult to believe that in the presence of two injured witnesses of the occurrence who could have easily become the complainant of the occurrence in question, someone from a village two miles away would be imported to be planted as an eye-witness of the occurrence and also as the complainant of the said occurrence.
32. Likewise though the presence of Muhammad PW at the place of occurrence is beyond doubt and has not been denied even by the defence, yet the explanation offered by the prosecution for his presence in the house of the deceased is not easily digestible.
33. Accordingly, we would deduce that though Talib Hussain and Muhammad PWs. Were present at the place of occurrence at the relevant time, yet their presence was not because of the reasons offered by the prosecution.
34. There is yet another striking feature emanating from the place of occurrence at the relevant time.
35. It is on record that Saddad deceased, his daughter Mst.Mumtaz Begum PW., Muhammad PW., Talib Hussain and .Ahmad barbar were sleeping at the place of occurrence with their cots close to each other.
36. Even if it be presumed that Muhammad, Ahmad barbar and Talib Hussain PWs. Were present in the house of the deceased for reasons offered by them, yet the fact remains that these three were not close relatives of the deceased and thus one would not expect them to be sleeping with the deceased at the same place where a young unmarried daughter of the deceased was also sleeping unless there were some very sound reasons for this conduct on the part of the deceased.
Otherwise, the cots of Muhammad, Talib Hossain and Ahmad barbar PWs. Would not have been so close to the cot of Mst. Mumtaz Begum PW, the daughter of the deceased.
37. From these facts and circumstances appeaing on record, we would infer that Saddad deceased did apprehend danger to himself a&also to his daughter and it was for this reason that Talib and Muhammad P.Ws, were staying with the deceased for their security and this is the only premises on which the above-noticed facts and circumstances can be explained and we are not inclined to accept the assertions of the prosecution to the contrary.
38. A question then arises as to who is the person who had posed security threats to Saddad deceased and his daughter Mst.Mumtaz Begum P.W.
39. The defence hinted, though not firmly asserted, that the threats were from one Zulfiqar who was a KHALAZAD of Mst.Mumtaz Begum P.W. With whom the said Mst.Mumtaz Begum had eloped sometimes back but had been retrieved by her father Saddad deceased and against whom Mst.Mumtaz Begum had then filed a suit for jactiation of marriage which had since been decreed.
40. It is in evidence that Saddad deceased had a brother by the name of Ghulam whose son is Zafar Hussain convict. It is on record that the DERA of this Ghulam is quite close to the 'HAVELI' of Saddad deceased. So is on record the fact that Saddad deceased has another brother by the name of Maulvi Shahbaz, who also lives close-by in the village ABADI of Mauza Hinduana. Saddad deceased obviously had a son, who is Ahmad Khan convict.
41. If Saddad deceased apprehended danger at the hands of Zulfiqar aforesaid then the obvious persons to seek support and help from, would be his own son, his brothers and their families but the undisputed fact is that none out of these persons were there to offer help and protection to Saddad deceased and that he had in fact sought support from a stranger i.e. The alleged friend, namely, Muhammad P.W.And from his son-in-law to be.
42. From these facts and circumstance, it would not be unsafe to conclude that the danger apprehaended by Saddad deceased was not from the said Zulfiqar or any-one-else for that matter but from his own son and brothers.
43. These inferences find support from the assertionf of the prosecution that Ahmad Khan convict wanted Mst.Mumtaz Begum to be married to Zafar Hussain convict and that this proposal was not acceptable to Saddad deceased, who was admant on marrying Mst.Mumtaz Begum to Ashiq Hussain PW.
44. The defence did allege through its suggestion made in the cross- examination as also through the statement of Zafar Hussain convict that Zafar Hussain convict had been falsely involved because he had refused to marry Mst.Mumtaz Begum on account of her elopement with Zulfiqar, above- mentioned.
45. If this was so, then Ahmad Khan convict who is a brother of Mst.Mumtaz Begum and a son of Saddad deceased would not be offended with his deceased father and his sister but would feel annoyed with Zafar Hussain convict and his family and would be on the side of his father and the sister.
46. It is further on record that Ahmad Khan convict was not on speaking terms with his father and was not even living with him.
47. It is thus clear that the claim of the defence and especially Zafar Hussain convict that he had refused to marry Mst.Mumtaz Begum PW is false.
48. From the above discussion, the obvious conclusion is that the family of Saddad deceased i.e. His brothers, his own son and nephew were all against him and the only plausible reason for this is Mst.Mumtaz Begum's betrothal with Ashiq Hussain P.W.
49. We would thus hold, in the circumstances, that the motive for the occurrence, as alleged, does stand proved on record.
50. This brings us to the examination of the eye-witness account of the occurrence as offered by Mst.Mumtaz Begum (PW-11), Muhammad (PW-12)and complainant Talib Hussain (PW-8).
51. Mst.Mumtaz Begum (PW-11) and Muhammad (PW-12) are injured witnesses. The receipt of injuries by them during the course of the occurrence in question, has not been disputed by the defence and is proved on record. Thus their presence at the place of occurrence at the relevant time stands established.
52. The only question which requires resolution is whether they could have seen and identified the assailants.
53. The night of occurrence was a moon lit night. The place of occurrence was an open court-yard of the HAYAT J of the deceased. The blackening and the tatooing found around the injuries recieved by the three victims of the occurrence as also the presence of wad in the chest of the deceased indicates that the shots in question had been fired from a very close range. The alleged assailants were no strangers to Mst.Mumtaz Begum and Muhammad P.Ws.. The injuries recieived by all the three victims were not the result of single fire or through shot fired simultaneously at the three of them.
54. It is thus believeable that Mst.Mumtaz Begum and Muhammad P.Ws, would have woken up and seen the assailants.
55. Consequently, the defence plea that the offences in question were the result of a blind occurrence where the assailants had gone unidentified is not plausible and convincing.
56. This plea became available to the defence through the kindness of Zakaullah Inspector/S.H.O.
Who had introduced Mansab, Umar Hayat, Nawaz and Sarang into the occurrence during the course of investigation by him.
57. These four persons were never named in the F.I.R, and in fact their involvement had come as a surprise to Mst.Mumtaz Begum P.W.. It was the prosecution case from the very outset that the assailants were two in number and no more and the P.Ws, stuck to this assertion throughout the proceedings. The three witnesses i.e. Fateh Sher (PW-13), Ahmad (PW-14) and Aslam (PW-15) who were alleged to have informed Zakaullah Insjpector/S.H.O./I.O. About the involvement of these four persons turned out to be a false story and all these three witnesses refused to support this assertion of Zakaullah Inspector/I.O. At the trial.
58. Thus we hold that even this factor which crept into the case indicating some possibility of the assailants having gone unidentified, was a false pretext and is not worthy of any weight at all.
59. We have held in the earlier part of the judgment that Talib Hussain P.W. Was also present at the place of occurrence and had witnessed the same. Nevertheless, even if his testimony was to be ignored (for the sake of arguments), the prosecution was still armed with the evidence offered by Mst.Mumtaz Begum and Muhammad P.Ws.Which is, believeable and credible.
60. The eye-witnessesbsupport and corroborate each other on all material aspects of the case and are also being supported nd corroborated by the evidence of motive as above-discussed.
61. In this view of our assessm ent of the evidence on record, we are led to hold that the prosecution case against the two convicts is sound, yet, as a matter of precaution, we would like to further scrutinize the involvement of Zafar Hussain convict in the occurrence in question.
62. Zakaullah I.O. Admitted that Zafar Hussain convict had appeared before him on 22.5.1984 i.e. Whthin seven days of the occurrence and that after considering his plea, the said P.W. Had elected not to arrest him. This P.W. Further claims that Zafar Hussain convict had made an offer to the complainant that either the complainant should make a statement on Oath with regard to Zafar Hussain's guilt or that he would make a statement on Oath regarding his innocence but this offer had not been accepted by the complainant.
63. Apart from this, complainant Talib Hussain P.W. Had even sworn an affidavit regarding the innocence of Zafar convict.
64. Abdul Jabbar Inspector (PW-17) also found Zafar convict innocent as a result of his investigation and placed him in Column No.2 of the challan submitted by him.
65. P.Ws.13,14 and 15 who were the alleged witnesses of the occurrence regarding the involvement of Mansab, Umar Hayat, Nawaz and Sarang had turned hostile and were cross-examined by the Prosecutor .The suggestions put to all these three witnesses by the Prosecutor regarding the persons who had taken part in the occurrence, does contain the name of Ahmad convict but makes no mention of the name of Zafar convict.
66. In view of these facts, we would prefer to adopt a safer course and would extend the benefit of doubt to Zafar Hussain convict.
67. Consequently, Crl. Appeal No.314 of 1986 challenging the convictions and punishments recorded against Zafar Hussain convict is accepted. The convictions and punishments recorded against him are set-aside and he is acquitted of all the charges levelled against him. He is already on bail. He is set at liberty after being discharged from his bail/surety bonds.
68. As has been held above, the recovery of gun P-4 at the instance of Ahmad Khan convict is doubtful.
69. Consequently, Crl. Appeal No.324 of 1986 filed by Ahmad Kh art convict is accepted, the conviction and punishments recorded against him under section 13 of the Arms Ordinance of 1965 are set-aside and he is acquitted of the said charge.
70. However, we find that the charges levelled against Ahmad Khan convict under sections 302, 307 and 449 P.P.C, do stand proved on record. His conviction on these charges is maintained.
71. He is guilty of having killed his real father. In the circumstances, he deserves no sympathy and leniency.
72. Resultantly the sentence of death awarded to him under section 302 P.P.C, as also the punishments awarded to him under sections 307 and 449 P.P.C, are also maintained. His appeal bearing CrLAppeal No.375 of 1986 challenging his convictions and punishments on these charges is dismissed.
73. Death sentence awarded to Ahmad Khan convict is thus CONFIRMED and Murder Reference No.102 of 1986 is answered accordingly.