RAJA AFRASIAH KHANJ.- Sardara (70) son of Gehna, Mst. Khatoon (50) wife of Sardara, Umar Hayat
(20) Muhammad Hayat (22) sons of Sardara and Muhammad (55) son of Saec were tried by Mr. Lutaf Ali Malik, learned Sessions Judge Sargodha, for the double murder of Muhammad Nawaz (21/22) and Mst. Amina Bibi (25/26). By Judgment dated 16.2.1986, the learned trial Judge convicted Umar Hayat, Muhammad Hayat and their father Sardara under section 302/34 PPC. Umar Hayat and Muhammad Hayat were sentenced to death plus a fine of Rs.2000/- each on two counts or in default thereof to undergo one year's R.I. Each on two counts. Sardara was sentenced to life imprisonment plus a fine of Rs.1,000/- or in default thereof to suffer further R.I. For six months on two counts. Mst. Khatun and Muhammad accused were acquitted by the learned trial Judge for lack of evidence. The appellants have challenged their conviction and sentence by filing Cr.A.No.144/86.
The learned trial Judge has sent a reference under section 374 Cr.P.C, for confirmation of the death sentence of Muhammad Hayat and Umar Hayat. The complainant Muhammad Ameer has instituted Cr.'Rev.No.467/86 for setting aside the judgment of acquittal of Mst. Khatoon and Muhammad. It was prayed that they might be ordered to be convicted and sentenced in accordance with law. The above-referred matters shall be disposed of by this judgment.
2. The prosecution story is that Muhammad Amir complainant was a resident of Chak Sheikhs and was on friendly terms with one Muhammad Nawaz of village Noor Khanewala. On 21.2.1985 Muhammad Ameer and Muhammad Nawaz son of Saec Muhammad resident of Chak N0.I6/J.B.
Went to village Noor Khanewala to invite Muhammad Nawaz son of Sahib Khan to visit their village.
At about 7.00 a.m., near the house of Nazir Pawali, they saw Muhammad Nawaz son of Sahib Khan while coming on a motor-cycle towards his house. Near the house of Nazir Pawali, Umar Hayat armed with 12-bore gun suddenly emerged from behind a wall and fired which hit Muhammad Nawaz on his abdomen. Muhammad Amir chased Umar Hayat who entered into the Haveli of his father Sardara and disclosed to his father Sardara, his brother Muhammad Hayat, his brother-in- law Muhammad and his mother Mst. Khatoon, that he had murdered Muhammad Nawaz. Upon this, the aforesaid accused exhorted him to make a short work of Mst Amna Bibi also. Muhammad Hayat declared that he would himself kill her. On the above instigation, Muhammad Hayat took out his loaded carbine and fired which hit Mst Amana Bibi on her chest. Ameer and Mehmood attempted to apprehend Muhammad Hayat whereupon he threatened them with dire consequences if they came near him. Mst. Amna Bibi died on the spot. Muhammad Nawaz too succumbed to his injury. At the time of occurrence, Mst. Nasreen and Mst. Kausar were also present.
The occurrence was witnessed by Dil Muhammad and Zawar.
The motive is that Muhammad Nawaz deceased had made a murderous assault on Sardara appellant. He was challaned but was acquitted by the trial court. Sardara and his two sons thus bore a grudge. Besides, Muhammad Nawaz (deceased) and Mst. Amna Bibi (deceased) were owners of a piece of land measuring six Acres in Purana Bhalwal. The said land was in the cultivating possession of Sardara and he never gave the owner's share of produce to the two deceased. Muhammad Nawaz used to demand his share of produce. But Sardara did not give him his share. On account of this grudge too, the deceased were done to death by the accused. On the statement of Muhammad Ameer complainant FIR (Ex.PN) was recorded by Gul Jahan Inspector/SHO, Police Station, Bhera.
3. Haji Gul Jahan Inspector/SHO (PW12) investigated the case. He visited the spot and prepared injury statement Ex.PR and Inquest report Ex.PR/1 of Muhammad Nawaz. He also prepared the injury statement Ex.PS and Inquest report Ex.PS/1 of Mst Amna Bibi. The Inspector sent both the dead bodies to mortuary for post mortem through Ghulam Abbas and Iqbal FCs. Motor-cycle P9 along with its broken brake was taken into possession vide memo Ex.PH. Bloodstained earth was collected from the spot and was taken into possession, vide memo Ex.PF. Crime empty P8 was taken into possession vide memo Ex.PG. Blood-stained earth from the place of murder of Mst. Amna Bibi was taken into possession vide memo Ex.PJ. Crime-empty P10, was also taken into possession vide memo Ex.PK. Last worn clothes of Muhammad Nawaz, Shirt P5, Shalwar P6, Bunyan P7 were taken into possession vide memo Ex.PE. Last worn clothes of Mst Amina Bibi, Shirt PI, Shalwar P2, Lokaar P3, Bunyan P4 were taken into possession vide memo Ex.PD. Muhammad Hayat and Muhammad accused were arrested on 22.2.1985. Site-Plans Ex.PC and Ex.PC/1 were got prepared by the Police Officer through Muhammad Saleem Draftsman PW1. Umar Hayat, Sardara and Mst. Khatun accused were arrested on 26.2.1985. On 27.2.1985 Muhammad Hayat led to the recovery of carbine P.I from an earthen Bin from his house which was taken into possession vide memo Ex.PL. On 24.3.1985 Umar Hayat got recovered a 12-bore gun from his dera vide memo Ex.PM. Reports of the Chemical Examiner Ex.PT, Serologist Ex.PU and Forensic Science Laboratory Ex.PV were tendered in evidence.
4. Dr. Mumtaz Ahmad PW2 conducted the post mortem examination upon the dead body of Muhammad Nawaz on 21.2.1985 at 12.30 p.m. And found the following injuries on it:-
1. A fire-arm wound of entrance with 7 holes, edges were inverted. Surrounded by slight blackening, over an area of 5^ c.m x 2\ c.m. On the front, middle and lower third of abdomen, mid-way between ambicus and pubis. Each hole measured 3/4 c.m. x 3/4 c.m. Going into abdominal cavity.
Seven pellets were collected from above-mentioned different sites which were sealed in a bottle. In the opinion of the Doctor, death occurred due to shock and haemorrhage on account of injury No.1 which was sufficient to cause death in ordinary course of nature. The injury was ante-mortem, fatal to life and was caused by fire-arm. Probable time between injury and death was immediate and between death and post mortem examination was within six hours.
On the same day at 1.30 p.m., the same Doctor conducted the post Mortem Examination on the dead body of Mst Amna Bibi and found the following injury on it:-
1. A fire-arm wound of entrance with six holes, inverted margins, each hole measuring 3/4 c.m. x 3/4 c.m. Going into left chest cavity, edges were slightly blackened over an area of 11 c.m. x 4k c.m. On front of * left shoulder and upper part of left chest.
Six pellets were collected from above-mentioned different parts which were sealed in a bottle. In the opinion of the Doctor, death occurred due to shock and haemorrhage due to injury No.1 which was sufficient to cause death in ordinary course of nature. The injury was ante-mortem, fatal to life and was caused by a fire-arm. Probable time between injury and death was immediate and between death and post Mortem examination was within six hours.
5. Eye-witness account was furnished by Muhammad Nawaz PW9, Muhammad Amir PW10 and Mehmood PW11. The appellants while making a statement under section 342 Cr.P.C, denied the allegation levelled against them. Sardara appellant, stated that the two deceased were the children of his real brother and that they were murdered in the small hours of the day while they were on their way to the shrine of Hazrat Sultan Bahoo. He further stated that the complainant party was not at all related to the deceased and that they wanted to grab their property. He stated that Mehmood, a maternal uncle of the deceased had been made to stand against him and his family in this false case with an ulterior motive. He disclosed that the complainant party had taken away the structure of the house. He pleaded his innocence and stated that he had been implicated falsely in the case. Umar Hayat appellant adopted the statement of his father Sardara.
He took the plea that recovery had been planted upon him by the police. Fabrication of the crime- empty too was pleaded by him. However, no evidence in defence was led by the accused. The learned trial Judge while relying upon the prosecution evidence convicted and sentenced the appellants as mentioned above.
6. Learned counsel contends that it is established that the prosecution witnesses were not present at the spot and that the occurrence was unwitnessed. It is argued that the prosecution witnesses are chance witnesses and that there is nothing on record to justify their presence at the spot.
Learned counsel maintains that no witness from the place of occurrence was produced in support of the case of the prosecution. Learned counsel submits that the medical evidence shows the possibility of one assailant having committed the two murders. Mr. D.M. Awan learned counsel for the complainant and Mr. Muhammad Rafiq Butt, learned State counsel defended the judgment of conviction and sentence of the appellant. Learned counsel say that the appellants had a very strong motive to commit the murders. Regarding Ameer PW10 it is argued that he is an honest witness and that he had no interest to falsely implicate the appellants in the case. It is maintained that Mehmood PW11 is equally related to both sides and as such there is no justification to discard his trust-worthy evidence.
7. We have heard the learned counsel for the parties at considerable length and have read the record with utmost care. So far as, Sardara appellant and his son Umar Hayat appellant are concerned, we are of the view that the prosecution has failed to connect them with the commission of the crime. Muhammad Amir PW10 is first informant. Admittedly, he is not resident of village Khanewala where the occurrence took place. His village Chak Sheikha is at a distance of about 3/4 miles from the village of occurrence. He concedes that his relatives do not live in the said village. It is, therefore, established that the first informant is just a chance witness. He has failed to justify his presence at the spot. The only explanation given by him is that Muhammad Nawaz wanted to purchase some land from him. We are not prepared to accept this explanation for the simple reason that in case Muhammad Nawaz PW10 wanted to purchase some land from him, he should have then gone to the village of the first informant. There is nothing on record to shown that, in fact, Muhammad Nawaz wanted to purchase any land from the witness. The evidence of the first informant can also be looked from another angle inasmuch as he remained associated with the case from the very beginning to the end for reasons best known to him. He had shown great interest in the prosecution of the case. He admitted that he obtained the certified copies of the judgment and decrees of the civil court Ex.PO and Ex.PO/1 during the investigation for using them in the case. He also knows the background of earlier criminal litigation between the deceased and his uncle Sardara appellant. The fact of collection of documentary evidence by the first informant demonstrates the extent of his interest in the prosecution case. As observed earlier, he is not at all related to the two deceased. According to him, he is only a friend of Muhammad Nawaz, deceased.
There is nothing on the record to show the depth of his friendship with the deceased for which he has been pursuing the prosecution case with such an unusual zeal. The plea of the appellants that he wanted to grab the property of the two deceased by siding with the deceased is not, thus, a far fetched plea. He also deposed regarding the motive for commission of the crime although he is not at all a witness of the motive. He is totally a stranger. It is admitted by him that a number of people saw the occurrence but at the same time he categorically excluded the possibility of these witnesses to give evidence in favour of the prosecution. In our view the witness could not himself exclude other villagers from becoming witnesses in the case. It may be particularly noted that for the first time Muhammad Ameer disclosed during trial that he did not say in the FIR Ex.PN that he was taken by Muhammad Nawaz PW with him with a view to purchase land from Muhammad Nawaz, deceased. This is, definitely an improvement having been made by the witness so as to create justification for his presence at the spot. The witness concedes that there were about 200/300 houses in village Noor Khanewala. He stated that people of different tribes lived in the said village. It is strange that the witness would chase the accused after he had murdered Muhammad Nawaz, to apprehend him. It may also be seen that the witness was empty handed and ran after the appellant Umar Hayat who was heavily armed. It is unbelievable. We, therefore, conclude that Muhammad Ameer did not see the occurrence and that he was not present at the spot. He was made to become a witness with ulterior motive to provide strength to prosecution case, we, accordingly, reject his evidence. The evidence of Muhammad Nawaz PW9 too cannot be believed for similar reasons. He conceded that the deceased was not related to him and that he was simply known to him. The witness is a resident of Chak N0.I6/NB which is at a distance of 13/14 miles away from the place of occurrence. He frankly conceded that his relatives did not live in the said village nor had he any property there. The witness was also challaned in a murder case of Ahmad Kahoot sometime earlier. He admitted his friendship with Muhammad Ameer PW10. He admitted that he had no friendly relations with Muhammad Nawaz, deceased. We are, therefore, of the view that Muhammad Nawaz PW9 gave evidence in favour of the prosecution on account of his fast friendship with Muhammad Ameer PW10. His evidence does not inspire confidence and is certainly not worth reliance. In the circumstances, we proceed to reject his evidence, as well. Since we have rejected the ocular account given by Muhammad Nawaz and Muhammad Ameer PWs, so far as the murder of Muhammad Nawaz is concerned, therefore, we need not discuss the motive part of the prosecution story. Admittedly, Sardara appellant did not do any overt act in the commission of the crime. He simply instigated his son Muhammad Hayat appellant to minder Mst Amna Bibi.
There is absolutely no evidence to show that he abetted his co-accused to commit the offence. His participation in the commission of the crime is certainly doubtful. The prosecution has failed to prove its case against Sardara and Umar Hayat appellants. We, accordingly proceed to set aside their conviction and sentence and acquit them. Their appeal succeeds and is allowed. They are set at liberty forthwith provided they are not required in any other case.
8. So far as, Muhammad Hayat appellant is concerned we have come to the conclusion that the prosecution has succeeded in proving its case against him beyond doubt. Mehmood PW11 appears to be a reliable witness. His evidence inspires confidence. He is not only maternal uncle of the two deceased but is also closely related to the appellant. In other words, this witness is related to both parties. There is nothing to show that he had any enmity with the accused. There are sufficient grounds to justify his presence at the spot on the day of occurrence. He had come a day earlier to live with the two deceased being their maternal uncle It is quite natural. Being a close relative, his stay with deceased in the circumstances was not unusual. The appellant and the deceased lived in the same Haveli. Apart from the above, medical evidence lends considerable corroboration to the ocular account given by Mehmood PW11. Prosecution evidence is consistent in showing that it was Muhammad Hayat who fired and killed Mst. Amina Bibi. The report of the Director Forensic Science Laboratory is also positive inasmuch as the opinion was that the crime-empty of 12-bore gun matched with the carbine recovered from the appellant Muhammad Hayat. The argument of the learned counsel that Mehmood PW11 is not a resident of the village of occurrence, thus, looses its importance because of his close relationship with both the parties.
9. Upshot of the above discussion is that the prosecution has succeeded to prove its case against Muhammad Hayat for the murder of Mst Amina Bibi. Accordingly, we convict him under section 302 PPC and sentence him to death plus a fine of Rs.2,000/- or in default to undergo one year's R.I. The fine shall be paid to the legal heirs of Mst Amina Bibi, deceased, as compensation. His death sentence IS accordingly confirmed.
10. For the foregoing reasons, we do not find any force in the revision petition which is dismissed.