KHALIL-UR-REHMAN RAMDAY, J.--- Muhammad Yar alias Shaoon was the solitary accused who was prosecuted for the murder of one Bakhatawar and a learned Additional Sessions Judge at Faisalabad, having found him guilty on 25-9-1988, convicted him under section 302, P.P.C. And sentenced him to death with a fine of Rs.10,000 or sufferance of one year's R.I. In default of [lie said payment. He was also found guilty under section 324, P.P.C. For having caused simple injuries on the person of Mst. Irshad Bibi P.W. And was sentenced to one year's R.I. With a fine of Rs.1,000 or sufferance of one month's R.I. In default of payment of the said fine.
2. Murder Reference No.250 of 1988 seeks confirmation of death sentence imposed on the said Ahmad Yar who in turn challenges the conviction and sentences recorded against him through Criminal Appeal No.1203 of 1988. .
3. Both these matters are being disposed of together through this single judgment.
4. Muhammad Yar convict is a young boy of about 20 years of age. He lives immediately in front of the house of Bakhatawar deceased.
5. The complainant of the present case is one Mahmoora who appeared as P.W.8. He is the real brother of Bakhatawar deceased and is also an eye-witness of the occurrence in question. Mst.
Irshad Bibi above-mentioned is the second eye-witness of the said occurrence. She is the real sister of the deceased and the complainant and had also allegedly received a sharp-edged injury on her person during the occurrence in question.
6. The F.I.R. Culminating in the present proceedings was recorded at Police Station Chak Jhumra at 9-10 p.m. On 14-3-1938 on the statement of Mahmoora above-mentioned who had disclosed that 3/4 days prior to the occurrence, his brother Bakhatawar had had a quarrel with Muhammad Yar convict in which the said convict had received minor injuries and that the respectables of the village had brought about a compromise between the two but Muhammad Yar convict kept declaring that he would avenge the insult given to him.
7. The complainant has further alleged that at about Shamwela, Bakhatawar deceased had gone out into the fields to urinate. Muhammad Yar convict started following him while armed with a hatchet whereupon, the complainant, his brother-in-law Haji (given up P.W.), his mother Mst.
Sattan (given up P.W.) and his sister Mst. Irshad (P.W.9) also went after the convict to entreat him to spare Bakhatawar deceased and just as Bakhatawar deceased sat down to ease himself, about two and a half Killas from the village Abadi, the convict reached him and inflicted repeated blows on the neck and the head of the deceased.
8. The complainant had further claimed that his sister Mst. Irshad Bibi (P.W.9) rushed forward to save the deceased but she was also injured by Muhammad Yar with a hatchet blow.
9. Having thus killed Bakhatawar deceased and having injured Mst. Itshad Bibi P.W., the convict went away from the place of occurrence.
10. As against this prosecution story, the convict had a different version to tell about the occurrence in question.
11. He stated that Mst. Irshad Bibi P.W. Had illicit relations with one Muhammad Nawaz of Chak No.18/J.B. And that on the day of occurrence after it had become dark, she was present with the said Nawaz in the fields which is stated to be the place of occurrence, for immoral purpose; that her brother Bakhatawar deceased who was returning home from work saw them in that state and inflicted an injury on the person of Mst. Irshad with the Kulhara that he was carrying; that Muhammad Nawaz snatched the Kulhara and in turn caused injuries to Bakhatawar deceased who died at the spot; that Mahmoora complainant and his family members bore grudge against the convict as they suspected him of having illicit liaison with Mst. Rahmoon another sister of the complainant; that one Malik Waryam was an influential Zamindar of the village who had very cordial relations with the police and he was also inimical towards the convict as the convict had abused him for fraudulently and forcibly taking the blood of the convict for a Police Inspector as a result of which, the convict had even fallen ill; that Mst. Irshad P.W. Was alone at the place of occurrence and in order to save her paramour and to hide her own guilt and in collusion with Malik Waryam and Mamoora complainant, the prosecution had named him as the culprit.
12. The prosecution story appears to be full of infirmities and improbabilities.
13. Except for a bald allegation of a previous quarrel between the convict and the deceased, there is nothing on record to prove that any such incident had taken place between the convict and Bakhatawar deceased.
14. It is not believable that the convict would keep looking for an opportunity to kill the deceased and would finally pick on the broad daylight and that also in the open fields quite close to the village Abadi to accomplish his designs.
15. It is equally unbelievable that even if Muhammad Yar convict had started going towards the fields with a hatchet in his hands, Mehmoora complainant would immediately smell that the convict was going out only to kill the deceased.
16. The complainant and his family members started in pursuit of Muhammad Yar convict in order to save Bakhatawar deceased but never picked up any weapon from their house when they started in pursuit of the convict nor did they shout to warn the deceased of the designs of Muhammad Yar convict. They never raised any hue and cry either to attract the public from the bazar or to scare away the convict in order to save the life of Bakhatawar deceased.
17. As against this claim of Mahmoora complainant, the stance taken by Mst. Irshad P.W. Is also equally strange.
18. Contrary to the position taken by Mahmoora complainant, Mst. Irshad P.W. Stated that they were raising hue and cry while following the convict and were asking the people to catch the convict as he was about to kill the deceased. She said that she was not the only one who was raising this hue and .Cry but her mother Mst. Sattan and others were also doing the same. She had further stated that a number of persons from .The bazar had also reached the place of occurrence on hearing their hue and cry and despite that, the convict had managed to inflict injuries on her person and on the person of the deceased and had further managed to escape from the place of occurrence.
19. From amongst the family members of the complainant party who were allegedly chasing the convict, at least two were male members, i.e. Mahmoora complainant who was aged about 30 years and his brother-in-law Majeed (given up P.W.). It is strange that none of them went forward to rescue Bakhatawar deceased and it was only a young girl, namely, Mst. Irshad P.W. Who was leading this party and who finally picked up the courage to intervene. It may also be mentioned here that it were not just these four family members of the deceased who were present but according to the eye-witnesses, a number of persons from the bazar had also collected and it is unbelievable that no one would intervene, especially when the convict was alone and was armed only with a hatchet.
20. Mahmoora complainant admitted in his cross-examination that it had become dark when the occurrence had taken place. He had also admitted that his sister Mst. Rehmai who was the were of Haji (given up P.W.) had been abducted by some persons of district Sheikhupura and that thereafter she used to spend most of her time in her parental home. He had further admitted that Muhammad Yar convict used to live in the house of the complainant party most of the time and the convict's father used to complain to the complainant party for allowing the convict to live with them.
21. Similar admissions were made even by Mst. Irshad P.W. Who also admitted that even she used to live in her parents' house most of the time and the excuse offered by her for the purpose was, `looking after of the ailing father'. Such like stay of Mst. Irshad P.W. In her parents' house, is not understandable. Her mother Mst. Sattan is alive and lives with the husband i.e. The father 'of Mst.
Irshad P.W. She had at least two brothers, namely, Bakhatawar deceased and Mahmoora complainant who were living with the father and in the circumstances, there was no occasion for Mst. Irshad -P.W. To come and live in her parents' house, only to look after the ailing father.
22. Although she has denied the suggestion that she had, any illicit relations with Nawaz above- mentioned, but the circumstances do not rule out the possibility of such a connection.
23. The eye-witnesses had also denied that Muhammad Yar convict had any immoral relationship with Mst. Rehmai but both of them had admitted that Muhammad Yar convict used to spend most of his time in their house and that Mst. Rehmai who was married, then abducted and then restored, also used to stay in the house of her parents most of the time.
24. A connection between Muhammad Yar convict and Mst. Rehmai cannot, thus, be an improbability either.
25. The plea of the convict was that he had been roped in at the instance of one Malik Waryam who was offended with him for the reason, which has already been noticed above.
26. This Malik Waryam figures very prominently in the entire prosecution case.
27. Mahmoora complainant had admitted that the alleged quarrel between the convict and Bakhatawar deceased, which was the motive for the occurrence in question, had been settled with the intervention of the noteables of the village, namely, Malik Waryam and Mallay Khan Lumberdar.
He had further admitted that after the occurrence in question, Malik Waryam, Mallay Khan Lumberdar and other members of the complainant's family collected together and had consultations before the case was registered. This witness had further admitted that Malik Waryam had also asked the complainant- to lodge the report against Muhammad Yar convict.
28. The complainant did not deny the suggestion that Muhammad Yar convict had given his blood at Lahore for one Aslam Khan Inspector through the coercion and deceipt of Malik Waryam and that he had remained in bed for 5/G months as a result of the same and further that Muhammad Yar appellant and his brother-had abused Malik Waryam for taking him to Lahore and for forcing him to give his, blood as above-mentioned. Mahmoora complainant admitted that he used to work for Malik Waryam and Mallay Khan Lumberdar and that they had good relations with them.
29. Having thus analysed and examined the entire evidence and material available on record, we find that the involvement of Muhammad Yar appellant in the murder of Bakhatawar deceased, is not free from doubt, the benefit of which) doubt has to be extended to the appellant.
30. Consequently, Criminal Appeal No. 1203 of 1988 is allowed. The convictions and the sentences recorded against the appellant under sections 302 and 324, P.P.C. Are set aside. He is acquitted of the said charges and shall be set at liberty forthwith, if not required to be detained in any other case.
31. Murder. Reference No.250 of 1988 is also answered in the above terms.