Muhammad Aslam (30), his brother Muhammad Anwer (28), their cousin Hafeez Ullah (25) and a friend Riasat Ali alias Billa (20) were convicted by Additional Sessions Judge, Gujranwala, for the murder of Muhammad Ilyas, their co-villager, vide judgment, dated 13-3-1982, and sentenced to imprisonment for life and a fine of Rs.3,000 each or in default of payment of fine to undergo one year's R.I. Each. It was further directed that half of the fine, if realised shall be paid to the legal heirs of the deceased as compensation. Feeling aggrieved thereby the convicts have filed the instant appeal (Criminal Appeal No.203 of 1982) jointly challenging both their conviction and sentence, while Muhammad Sharif, complainant, has filed revision application (Criminal Revision No.311 of 1982) praying that the sentence of the appellants be enhanced to that of death and also the amount of compensation be increased. Both these matters are being disposed of by this single judgment.
2. Muhammad Sharif, complainant (P.W.11) is the father of Muhammad Ilyas (deceased in the case). They as well as the appellant lived in Kotli Mughlan, District Gujranwala. Muhammad Sharif, complainant, owned a tube-well, about 10 to 12 acres away from village Abadi, jointly with, Sardar Muhammad who had one-half share in the tube-well, Ilam Din had one-fourth share in the tube- well and remaining one-fourth was shared by him with Allah Din. For keeping guard on the tube- well it was arranged between the share-holders that Sardar Muhammad would sleep at the tube- well for 2 months, for one month Ilam Din would sleep there and the complainant and Allah Din would sleep there for 15 days each. During the days of occurrence it was the turn of Muhammad Sharif, complainant, to sleep at the tube-well. On the fateful night (night between 28/29-6-1980)
Muhammad Ilyas (deceased) after taking meals at Ishawela left his house for the tube-well to sleep there in place of his father, the complainant. Next morning Muhammad Sharif, complainant, went to his land near that tube-well and started ploughing. Sardar Muhammad, his co-sharer, was also ploughing the adjoining field. At 7/8 a.m., one Zafar approached the complainant and told him that somebody was lying murdered in the `Khal' of the tube-well. The complainant and Sardar Muhammad went there and saw that Muhammad Ilyas was lying murdered there with injuries on the forehead, neck and arms. Muhammad Sharif then left for making the report. In the way Rashid Ahmad, Inspector/S.H.O., Police Station Saddar Gujranwala, met him, whom he gave report (Exh.
P.B.). He did not express suspicion against anybody in that report. The Inspector sent that report to the police station on which the formal F.I.R. Exh.P.B./1 was recorded.
3. The Police Inspector (P.W.12) then visited the spot and secured blood--stained earth from there vide memo. Exh. P.D. After preparing inquest report Exh. P.K. And injury statement Exh.P.K./1 he sent the dead body to the mortuary for post-mortem examination under police escort.
4. Dr. Ishfaq Ahmad (P.W.10) on 29-6-1980 at 3-45 p.m., conducted autopsy on the dead body of Muhammad Ilyas and found following injuries on it:-- (1)An incised wound (transverse) 12 c.m. x 4 c.m. x bone deep, cutting occipital bone of head.
(2)Incised wound 8 c.m. x 3 c.m. x bone deep cutting the first cervical vertebra of neck.
(3)Incised wound (transverse) 12 c.m. x 8 c.m. x cutting muscle and blood vessels and 5th cervical vertebra on the right side of the neck.
(4)Incised w8und 12 c.m. x 2 c.m. x bone deep on back of top of right shoulder.
(5)Incised wound 15 c.m. x 2 c.m. x skin deep on back of left shoulder and chest.
(6)An oblique incised wound 9 c.m. x 1-1/2 c.m. x bone deep cutting the forehead (frontal bone) and root of the nose.
(7)Incised wound 10 c.m. x 2 c.m. x bone deep cutting the right maxillary bone of right cheek (oblique).
(8)An oblique incised wound 8 c.m. x 4 c.m. x skin deep on, upper part of right cheek.
(9)Incised wound 13 c.m. x 4 c.m. x cutting the upper part of trachea and blood vessels of the neck.
(10) Incised wound 6 c.m. x 3 c.m. x bone deep on back of left upper arm.
(11) Superficial incised wound 2 c.m. x 1/2 c.m. x skin deep on outer side of left elbow joint.
(12) Incised wound 2 c.m. x 1 c.m. x bone deep cutting the distal phalanx of left thumb.
(13) Incised wound 5 c.m. x 1-1/2 c.m. x cutting the bone of left clavical (outer side).
(14) Contusion 4 c.m. x 1 c.m. On left side of chest.
5. No clue was found by the police till 9-7-1980 as to who had murdered Muhammad Ilyas (deceased). About 10/11 days after the occurrence Muhammad Ashraf Lohar (P.W.8) informed the police that he had seen the appellants committing the murder of Muhammad Ilyas (deceased) because Mst. Maqboolan who earlier had illicit relations with Hafeezullah and Riasat Ali (appellants) had befriended with the deceased. Mst. Muhammad Bibi, mother of Muhammad Ashraf Lohar, claimed that the appellants came to her house on the night of occurrence in pursuit of her son Muhammad Ashraf to kill him and told her that they wanted to kill Ashraf who had seen the occurrence. Imdad Hussain (P.W.9) stated that Hafeez Ullah (appellant) had confessed to have killed the deceased with the help of other three appellants. Rashid Ahmad, Inspector (P.W.12) arrested the appellants on 18-7-1980. On 22-7-1980 Hafeez Ullah (appellant) got recovered blood- stained Toka (P.4) from the ceiling of his cattleshed, which was secured under memo. Exh. P.F. The same day, Riasat Ali (appellant) got recovered blood-stained hatchet (P.5) buried in Bhoosa lying in the cattleshed of Siddiq which was secured under memo. Exh. P.G. And then Muhammad Aslam (appellant) got recovered Dang (P.6) from his own cattleshed which was secured under memo.
Exh. P.H. All these recoveries were witnessed by Muhammad Siddiq (P.W.6) besides the Investigating Officer (P.W.12). The Investigating Officer deposited the sealed parcels of the abovesaid articles on 30-6-1980 and 22-7-1980 in the Malkhana through M.H.C. Sharafat Hussain (P.W.2) who in turn sent them to the Chemical Examiner for analysis and report. The Chemical Examiner and the Serologist vide their reports Exhs. P.M./P.N. And Exhs. P.O./P.Q. Confirmed that these articles were stained with blood of human origin. After completing the investigations, challan against the appellants was put in Court.
6. The prosecution examined 12 witnesses to prove its case and mainly relied on eye-witness account given by Muhammad Ashraf Lohar (P.W.8); the extra-judicial confession made by the appellants before Mst. Muhammad Bibi and Imdad Hussain (P.W.7/P.W.9); and the recovery of blood-stained weapons made at the instance of the appellants as deposed to by Muhammad Siddiq (P.W.6) and the Investigating Officer (P.W.12) besides the medical evidence furnished by Dr. Ishfaq Ahmad (P.W.10) who proved that the deceased died of the injuries suffered by him.
7. The appellants when examined under section 342, Cr.P.C., denied the allegations. They examined Mahr Akbar Ali, Magistrate 1st Class, Gujranwala, in their defence, who stated that application (Exh.
D.G) was moved before him on 20-8-1980 on behalf of appellants requesting that Mst. Maqboolan daughter of Bashir Ahmad caste Jat Cheema resident of Kotli Mughlan be got medically examined for her virginity. He summoned the Investigating Officer alongwith the record for 13-9-1980. Mst.
Maqboolan was also present on that date but he rejected the application vide his order (Exh. D.H.) for the investigation was complete and case was triable by Sessions Court. In cross-examination, he stated that Mst. Maqboolan appeared to be 25 years of age and that she had not thumb marked the application nor was she identified by any person before him.
8. Learned trial Court on consideration of the material on record rightly observed that the extra- judicial confession allegedly made by the appellants at the house of Mst. Muhammad Bibi (P.W.7) was inadmissible as it was jointly made by the appellants, however, it believing the ocular testimony furnished by Muhammad Ashraf Lobar (P.W.8), the evidence of extra-judicial confession deposed to by Imdad Hussain (P.W.9) and the incriminating recoveries made from the appellants deposed to by Muhammad Siddiq and the Investigating Officer held the appellants guilty for the murder of Muhammad Ilyas and convicted them under section 302/34, P.P.C. But refrained from imposing the death penalty saying that the murder was committed due to rivalry between Hafeez Ullah and Riasat Ali (appellants) on one side and Muhammad Ilyas (deceased) on the other.
Feeling aggrieved thereby the convicts have challenged their conviction and sentence by filing instant appeal whereas the complainant has sought enhancement of sentence through filing a revision.
9. Muhammad Ashraf Lohar (P.W.8) is the solitary eye-witness in the case. He stated that he was employed in Awami Metal Words situate at Muslim Road, Gujranwala where the wires of televisions are manufactured. The deceased was his friend who fell in love with Mst. Maqboolan daughter of Bashir Cheema who lived at Dera Bajw, an at a distance of two acres from the tube-well of the deceased. Earlier Mst. Maqboolan had connections with Hafeez Ullah and Riasat Ali (appellants).
On fateful night it was "Shab-e-Birat". Muhammad Ilyas (deceased) came to his house where they kept talking till 11-00 p.m. Thereafter, both of them went to the tube-well of Muhammad Ilyas (deceased). The deceased took his cot on the roof of the tube-well room. A little later the deceased went away towards Dora Bajwatl and then came back. After some time Mst. Maqboolan came there and lay with the deceased on a cot while he sat on the edge of the roof - of the tube-well room. It was moonlit night. He saw the appellants coming towards tube-well from Dera Bajwan and informed the deceased but he did not take notice of it. All the appellants, i.e., Hafeez Ullah armed with Toka, Riasat Ali with hatchet, Muhammad Aslam armed with Dang and Muhammad Anwer empty-handed came there. Riasat Ali asked Mst. Maqboolan as to why she came there since she was his beloved. Then all the four appellants reached the roof and attacked the deceased.
Muhammad Anwer seized the deceased by his legs who was lying on the cot. Riasat Ali gave a hatchet blow on the head of the deceased Hafeez Ullah gave a Toka blow on his neck and Muhammad Aslam inflicted Dang blow on his arm. Meanwhile Mst. Maqboolan jumped down and ran away while the witness had gone under a shady tree and witnessed the occurrence from there.
The appellants then lifted the deceased and threw him down. At this the witness started running towards his house. The appellants called him out to stop but he did not stop and reaching home he chained the outer door and concealed himself under the manger. The appellants reached there in his pursuit and knocked at the door, which was opened by his mother Mst. Muhammad Bibi (P.W.7).
They asked her about her son Ashraf saying that they had already murdered Muhammad Ilyas and now they wanted to murder the witness because he had seen them murdering Muhammad Ilyas.
His mother (Muhammad Bibi) begged for forgiveness and assured them on Holy Qura'n that they would not disclose about the murder to anybody whereupon the appellants went away. In his cross-examination, he stated that he had gone to the tube-well of occurrence on the night of occurrence only. He denied to have stated before the police that he had also developed relations with Mst. Maqboolan through Muhammad Ilyas some 2 months prior to the occurrence but it was found so recorded in his statement Exh. D.D. He also denied to have stated in his statement Exh. D.D.
That he started with the deceased for the tube-well with a programme that they would call Mst.
Maqboolan there and would enjoy themselves but it was also found recorded in statement Exh. D.D.
On confrontation with the same statement it was found not recorded that Riasat Ali (appellant) had asked Mst. Maqboolan that first she used to love him and now she had started loving Muhammad Ilyas. It was also found not recorded in statement Exh. D.D. That while the witness was running towards his house he was called out by the appellants to stop. It was also found not stated in Exh. D.D. That he watched the occurrence standing under a tree. He asserted that he had mentioned to Iris statement Exh. D.C. Recorded by a Magistrate that his parents took oath on Holy Qura---n (for not disclosing about occurrence) before the appellants but it was found not recorded therein. He stated that out of fear he had remained at Gujranwala for 10/11 days but he had been going daily to the workshop where lie used to work. He also admitted that Mst.
Maqboolan had -l/5 brothers, namely, Akbar, Ashraf, Liaqat, Rafaqat and Abdul who are elder to her.
10. The evidence of Muhammad Ashraf (P.W.8) shows that the witness has been making different statements at different times. During the investigation, his case was that he also had illicit connections with Mst. Maqboolan and that on the night of occurrence he had gone with the deceased with a set programme to enjoy the company of Mst. Maqboolan. Obviously, therefore, if the appellants on account of their rivalry had gone there to kill Muhammad Ilyas then they would have not spared this witness as well. Since it was a moonlit night, as stated by the prosecution, therefore, four armed persons having gone to the spot with an avowed purpose to do away with their rivals then they would not have let Muhammad Ashraf P.W. To escape from the spot as well, particularly when residence of the witness was 12 acres away from the place of occurrence. I am not at all impressed by his testimony. Furthermore, his evidence is in conflict with medical evidence inasmuch as according to him Muhammad Aslam (appellant) gave a Dang blow on the arm of the deceased but there is no such injury on his arm. There is only one blunt weapon injury, i.e., a contusion on the left side of the chest which could be result of friction against hard substance during the attack. Rest of the injuries are with sharp-edged weapons, which are on arms, head, neck; and face. If two appellants started causing injuries with hatchet and Toka to Muhammad Ilyas (deceased) while he lay on a cot, then they would hardly need anybody else's help for securing the deceased by his legs. It means that Muhammad Aslam and Muhammad Anwer (appellants) had been falsely involved. Evidence of this witness thus is bristled with grave improbabilities and infirmities and cannot, therefore, be safely relied upon qua other appellants as well hence it must be ignored.
11. Next comes the evidence of extra-judicial confession. Hafeez Ullah appellant's confession is sought to be proved through Imdad Hussain (P.W.9). This witness has admitted that father of Hafeez Ullah had contested election against him. He tried to neutralise the effect of this enmity by saying that father of Hafeez Ullah had withdrawn from election in his favour but on further questioning he admitted that father of Hafeez Ullah did place his ballot-box at polling station which means that he actually contested the election. Since the appellant and the witness belong to opposite camps, therefore, it is not believable that Hafeez Ullah (appellant) would have gone to his enemy (Imdad Hussain P.W.) for making a confessional statement before him. I do not find this piece of evidence also as worthy of credence.
12. As for the recoveries, it is admitted that Muhammad Siddiq P.W. Who appeared to prove the same is a close relation of the deceased and is also not a resident of the locality. In the circumstances, when ocular testimony and the evidence of extra-judicial confession have been discarded the evidence of incriminating recoveries even if accepted would be inconsequential.
Again, if Mst. Maqboolan was the bone of contention then how, Hafeez Ullah and Riasat Ali (appellants) who are themselves rival of each other had joined hands against Muhammad Ilyas (deceased)? It remains unexplained. Furthermore, if Mst. Maqboolan, as stated by prosecution, had an affair with the deceased then it might be that the deceased had been done to death by her brothers.
13. For what has gone above, the conviction of the appellants recorded on the basis of the evidence on record by the trial Court cannot be sustained. In the result, I would allow this appeal, set aside the conviction and sentence of the appellants and acquit them. They are on bail They stand discharged of their bail bonds. The revision petition filed by the complainant for enhancement of sentence of the appellants automatically fails and is dismissed,