SH. KHIZAR HAYAT, J.--- Ghulam Rasool alias Hassan aged 20 years, caste Joya, resident of Chak No.62/D.B. Mst. Bashiran were of Nazir Ahmad (deceased) aged 25 years, caste Purhar, resident of Chak No.128/DNB and Muhammad Aslam aged 24 years, caste Jat, resident of Chak No.66/DB, were tried by Additional Sessions Judge, Bahawalpur, for the murder of Nazir Ahmad, aged 38 years (husband of Mst. Bashiran). The learned trial Court vide hiss judgment, dated 19-7-19&S. Acquitted Muhammad Aslam giving him benefit of doubt but convicted Ghulam Rasool alias Hassan and Mst.
Bashiran under section 302/34, P.P.C. And sentenced the former to death and the latter to imprisonment for life, and a fine of Rs.2,000 and in default of payment of fine to undergo further R.I.
For one year. The convicts have filed joint appeal (vide Criminal Appeal No.58 of 1988/BWP) against their conviction and sentence whereas the State has filed an appeal (vide Criminal Appeal No.7 of 1989/BWP) Against the acquittal of Muhammad Aslam. A reference made by the learned trial Court, under section 374, Cr.P.C. For confirming the death sentence of Ghulam Rasool alias Hassan, is also before us. We propose to dispose of all these matters by this single judgment.
2. The occurrence had taken place on the night between 24/25th of October, 1987 in the house of Nazir Ahmad (deceased) situate within the revenue limits of Chak No.66/DB, District Bahawalpur. It was reported by Mukhtar Ahmad (P.W.12), brother of Nazir Ahmad deceased at Police Station Dera Nawab which is at a distance of 13 Kilometres, vide F.I.R. Exh. P.J. Recorded by Mukhtar Ahmad, S.1./S.H.O. (P.W.15), on following morning at 9-15 a.m.
3. The motive for the offence was stated to be that Ghulam Rasool alias Hassan had illicit connection with Mst. Bashiran (were of Nazir Ahmad deceased). The deceased had admonished Mst. Bashiran on different occasions for her illicit connection with Ghulam Rasool (appellant) but the former did not mend her ways, and maintained her affair with the latter.
4. Mukhtar Ahmad, complainant (P.W.12), brother of Nazir Ahmad (deceased) lived in separate home situate at 3 acres distance. On the fateful night the complainant went to deceased's house and slept outside its compound wall which is 2-1/2 feet high for keeping watch on his cattle tethered there, while Nazir Ahmad (deceased) and his were Mst. Bashiran (appellant) slept inside the compound wall. At about mid-night the complainant were up hearing cry of his brother. In the light of lantern hanging with the nearby tree he saw Mst. Bashiran holding the deceased by his legs, Muhammad Aslam (the acquitted accused) by his hands and Ghulam Rasool alias Hassan (described as Hassan Arain of Chak No.66/DB in the F.I.R.) cutting throat of the deceased with a Chhuri. He raised alarm whereupon Inayat Ali (P.W.13) and Khurshid Ali (P.W.14), his uncles reached there and saw the occurrence. They tried to catch hold of the accused but Ghulam Rasool and Muhammad Aslam decamped, however, Mst. Bashiran was apprehended. The deceased died immediately as a result of the injury. Two days before the occurrence the complainant and Liaqat Ali (P.W.11) had seen all the three accused sitting together near the Dera of the deceased whispering to each other and seeing the P.Ws. They dispersed. Leaving Mst. Bashiran (appellant) and dead body of the deceased in the care of the witnesses Mukhtar Ahmad went to Police Station Dera Nawab and lodged F.I.R. (Exh. P.J.)
5. Mukhtar Ahmad, S.I. (P.W.15) having recorded the F.I.R., Exh. P.J. Visited the spot. He removed the blood-stained earth from the spot vide memo. Exh. P.G. And also seized blood-stained cot (P.4), Gadda (P.5), quilt (P.6) and lantern (P.7) from there vide memo. Exh. P.H. In the presence of Ziaullah and Liaqat Ali P.Ws. He prepared the inquest report Exh. P.C. And despatched the dead body to the mortuary for post-mortem examination under police escort. He arrested Muhammad Aslam (since acquitted) and Mst. Bashiran (appellant) on 25-10-1987 and Ghulam Rasool alias Hassan (appellant) on 28-10-1987. Both Muhammad Aslam and Ghulam Rasool alias Hassan while under custody pointed out a stack of chaff on 29-10-1987 and the latter picked up from there and produced blood-stained Chhuri (P.1) before the police which was seized under memo. Exh. P.D., in the presence of Zahoor Ahmad (P.W.3) and Muhammad Khan (P.W.4). According to the report of Chemical Examiner (Exh. P.L.) and that of Serologist (Exh. P.M.) blood-stained earth as well as Chhuri recovered during investigation were found to be stained with human blood.
6. Dr. Amir Hussain Leghari (P.W.2) conducted the post-mortem examination on the dead body of Nazir Ahmad (deceased) on 25-10-1987 at 5-00 p.m. And found a big cut on his throat starting from right side of the neck at the lateral side going towards the left side of the neck side at the lateral side measuring 5-1/2" x 2" x 3". He also noted two slight bruises on the right elbow. Larynx and trachea were cut underneath the injury: carotid vessels were also found cut both on the right and left side. In the opinion of the doctor there was excessive bleeding from the injury and the deceased went into shock and then hypovolumic shock due to lack of blood supply to the brain, as a result of which the deceased died within 5 to 15 minutes. The time between death and post--- mortem examination was stated to be about 16 hours.
7. In support of its case the prosecution examined 15 witnesses. Mukhtar Ahmad (P.W.12) (brother of the deceased) and Inayat Ali and Khurshid Ali, uncles of the deceased (P.Ws. 13 and 14 respectively) supported the prosecution case as given in para. 4 above. Zahoor Ahmad (P.W.3) and Muhammad Khan (P.W.4) deposed to the recovery of blood-stained Chhuri (P.1) from Ghulam Rasool alias Hassan (appellant). The motive for the offence was narrated b5--Mukhtar Ahmad (P.W.12) The accused when examined under section 34-, Cr.P.C. Denied the allegations. None of them appeared in disproof of the allegations, as required under section 340(2), Cr.P.C. Ghulam Rasool (appellant) asserted that he is not the person who is named in the F.I.R. As Hassan caste Arain, resident of Chak No.66, because his name is Ghulam Rasool, he belongs to Joya tribe and lives in Chak No.62/DB. In support of this he examined Javid Iqbal (D.W.1) and Ghulam Abbas (D.W.2). The former stated that he is son of Hassan Arain, a land owner of Chak No.66/DB who died on 21-8-1987. He produced his father's identity card (Exh. D.C.) and Jamabandis (Exh. D.D.) about his property. Ghulam Abbas, brother-in-law of Ghulam Rasool (appellant) appeared as D.W.2 and stated that Ghulam Rasool (appellant) was never called as Hassan and that he was innocent. The learned trial Court on consideration of the evidence on record discarded the defence evidence and believing the prosecution case as narrated by the P.Ws., convicted and sentenced Ghulam Rasool and Mst.
Bashiran, but acquitted Muhammad Aslam, as stated earlier, giving him benefit of doubt.
8. Learned counsel appearing on behalf of the appellants has submitted that the motive as alleged by the prosecution is not established. It is a night time occurrence which appears to be unwitnessed one. The eye-witnesses in the case are closely related to the deceased, who live separate from the deceased and a: sufficient distance, therefore, their presence at the relevant time looks odd and doubtful. Further argued that there is solitary injury on the person of the deceased, which seems to have been inflicted when the deceased was in deep sleep and that the assailant whosoever he was, must have disappeared unnoticed. He asserted that Hassan Arain mentioned in F.I.R. As the principal accused is some body else than Ghulam Rasool appellant who is neither Arain by caste nor lived in Chak No.66/DB, hence the appellants deserve to be acquitted.
Contrarily learned counsel for the State as well as for the complainant have defended the impugned judgment. Learned State counsel also submitted that the acquittal of Muhammad Aslam accused is unjustified.
9. The mainstay of prosecution is, evidence of motive and the ocular testimony furnished by Mukhtar Ahmad (P.W.12), brother of the deceased and Inayat Ali and Khurshid Ahmad (P.Ws. 13 and 14), his uncles.
10. We take up the evidence of motive first. Liaqat Ali (P.W.11) and Mukhtar Ahmad (P.W.12) had deposed about it. Mukhtar Ahmad, complainant, mentioned in the F.I.R. That Hassan Arain of Chak No.66/DB, whom he described at the trial as Ghulam Rasool alias Hassan (appellant), had illicit connections with Mst. Bashiran (appellant) were of Nazir Ahmad (deceased) his brother. The deceased admonished Mst. Bashiran many a time for her moral laxity but she did not mend her ways. He further stated that 2 days before the occurrence he and Liaqat Ali (P.W.11) had seen Mst.
Bashiran and her paramour Ghulam Rasool alias Hassan and Muhammad Aslam together in a cotton field near the Dera of the deceased whispering to each other and on seeing them they had dispersed. Liaqat Ali (P.W.11) supported him. It is worthnoting that Mukhtar Ahmad P.W. Neither himself showed any resentment over unholy rendezous of his brother's were with her paramour nor did he tell his brother all about this for punishing her. He rather ignored as if it was a matter of routine. It is in evidence that Mst. Bashiran (appellant) ignored her husband's rebukes and maintained her illicit relations with paramour who could meet her at her husband's place in the daylight without apprehending any harm from the deceased or his relations. Obviously, if the things were going so smooth for the adulterers then where was the necessity for them to kill Nazir Ahmad (deceased). We are, therefore, of the view that the motive part of the story is not established.
11. The ocular testimony, comprises statements of Mukhtar Ahmad, Khurshid Ahmad and Inayat Ali P.Ws. Admittedly, they lived with their families in separate house situate 3/4 acres away from the place of occurrence. Mukhtar Ahmad (P.W.12) stated that on the relevant night he slept outside the compound wall of the deceased's house for guarding his cattle tethered there but he had not mentioned in the F.I.R. This reason for his sleeping at the Dera of the deceased. Inayat Ali and Khurshid Ali P.Ws. Stated that camels of Nawabs used to destroy their cotton crop at night, therefore, 'they had gone to have a round of their cotton crops at mid-night and while returning home from there they heard alarm raised by. Mukhtar Ahmad P.W. Near his house. They rushed there and saw the occurrence. All these three P.Ws. Stated that Ghulam Rasool alias Hassan (appellant) had cut throat of the deceased with a Chhuri in their presence and within their view and then Ghulam Rasool alias Hassan and Muhammad Aslam accused ran away but Mst.
Bashiran was apprehended. The deceased suffered a solitary injury. It cannot be expected that the accused would take so much time for inflicting one injury that the witnesses after hearing the alarm would reach the spot from a distance, even before the actual causing of that injury to the deceased. Khurshid Ahmad and Inayat Ali, P.Ws. Stated that they did not go together for taking a round of their cotton crop on the night of occurrence but had met each other per chance while returning home. Again it appears to be a chance that when they drew near to the house of occurrence the alarm was raised by Mukhtar Ahmad, complainant, and in this way they saw the occurrence from its beginning which appears to be highly improbable unless the nature itself had so ordained. Learned counsel for the appellants is not far wrong in saying that the deceased seems to have suffered the injury while in deep sleep and his assailant disappeared in the veil of darkness. If we assume the occurrence to have taken place at 12 mid-night it would mean that F.I.R.
Was delayed for 9 hours, which is not explained. To our minds, it had occasioned due to the fact that the inmates of the house came to know about the murder of the deceased next morning and thereafter they deliberated over it and then lodged the F.I.R. With the police.
11. A very serious question as to the identity of Ghulam Rasool alias Hassan, appellant, has been raised. Mukhtar Ahmad, complainant, has given in the F.I.R. Name of Hassan Arain of Chak No.66/DB as the principal accused who actually cut the throat of the deceased. It is argued that Ghulam Rasool, appellant, is not the person who is named as principal accused in the F.I.R. Mukhtar Ahmad, complainant, in order to overcome this difficulty attempted to improve his statement saying that Ghulam Rasool was known as Hassan also but there is no solid proof to this effect. Admittedly, Ghulam Rasool, appellant, is not proved to be ever called as Hassan. His caste is Joya and not Arain and further he is resident of Chak No.62/DB and not of Chak No.66/DB is mentioned in the F.I.R.
Contrarily the defence has shown that there did exist a person by the name of Hassan Arain who also lived in Chak No.66/DB and owned landed property there. This has been proved by Javed Iqbal (D.W.1) who claims to be the son of that Hassan Arain and had also produced National Identity Card (Exh. D.C.) of his father and also Jamabandi (Exh. D.D.) to show that said Hassan owned property but had died in August, 1987. It is noteworthy that Inayat Ali (P.W.13) and Khurshid Ahmad (P.W.14) stated that they knew Ghulam Rasool Joya, appellant, as Ghulam Rasool but they did not tell Mukhtar Ahmad, complainant, about this. Mukhtar Ahmad, on the other hand, has contradicted them saying that he was told by P.Ws. 13 and 14 the particulars of this appellant. It appears that all the three witnesses have perjured themselves on this point for the simple reason that if P.Ws. 13 and 14 had known Ghulam Rasool, appellant, before the occurrence and had identified him as perpetrator of the crime then in all probability they would have exchanged notes about the assailant with Mukhtar Ahmad, complainant, before lodging of the F.I.R. And thus the correct particulars of Ghulam Rasool, appellant, would have been mentioned in the F.I.R. But it is not so.
Benefit of the slightest, doubt ought to go to the accused. We would, therefore, hold that Ghulam Rasool Joya, appellant, is not the person who has been described in the F.I.R. As Hassan Arain. This finding topples the whole prosecution case as it would mean that this appellant had no affair with Mst. Bashiran, he was not at all interested in the elimination of the deceased, he was not seen in the company of Mst. Bashiran hatching conspiracy for killing the deceased, and finally, he was not the person who cut throat of the deceased on the fateful night.
12. For the above discussion we find that there are no satisfactory basis for holding the appellants guilty of murder of Nazir Ahmed (deceased). Consequently, we would allow the appeal (Criminal Appeal No.58 of 1988/BWP) filed by the appellants, set aside their conviction and sentence and acquit them. Death sentence awarded to Rasool Bakhsh alias Hassan, appellant, by the trial Court is not confirmed and the murder reference is rejected. The State appeal (Criminal Appeal No.7 of 1989/BWP) filed against the acquittal of Muhammad Aslam accused fails automatically.
13. We have already released the appellants by our short order and these are the reasons for the same.