JAVID IQBAL, J.-Muhammad Zaman son of Mohr Muhammad aged 32 years has been convicted under section 302, P. P. C. And sentenced to death for the murder of his relative Ahmad Yar vide judgment dated the 11th of July, 1972, of the Additional Sessions Judge, Sargodha, he was also convicted under section 366 read with section 511/149, P. P. C. For the attempted abduction of Mst.
Sat Bherai (P. W. 9), daughter of the deceased and sentenc--ed to five years' R. I. Which was to become operative if the death sentence was not confirmed. His co-accused, namely, Zaman son of Mehr Muhammad, Fatah Muhammad Tiwana son of Fatah Khan, Abdur Rehman son of Wazir, Dost Muhammad son of Ghulam Muhammad and Fatah Muhammad alias Fatta son of Ghauns were acquitted of the murder charge but were convicted under section 366 read with section 511/149, P. P. C. For the attempted abduction of Mst. Sat Bherai P. W. And sentenced to five years' R. I.
Each. Mehr Muhammad son of Manga, aged 27 years, father of Muhammad Zaman and Rehman was given the benefit of doubt and acquitted. The appeal of the convicts as well as reference for the confirmation of death sentence awarded to Muhammad Zaman are being taken up and disposed of together by this judgment.
2. The occurrence took place on the 17th of July, 1969, at sunset time in the area of village Okhli Mohla, at a distance of 8 miles from Police Station Gunjial, District Sargodha, F. I. R. (Exh. P. A.) was lodged by Mst. Fatah Khatoon (P. W. 8) sister of Mst. Sat Bherai P. W. And daughter of the deceased at 12-15 a. m. On the 18th of July, 1969. And it was recorded by Saleh Muhammad S. I. (P. W. 11) at Police Station Gunjial.
3. The motive for offence as set up by the prosecution is that 8/9 years prior to the occurrence Muhammad Zaman appellant was engaged to Mst. Sat Bherai P. W. Three years before the occurrence the engagement was broken as there was a dispute between the parties respecting ornaments. Thereafter, Muhammad Zaman appellant married Mst. Panno, his maternal cousin. One month prior to the occurrence, Mst. Sat Bherai P. W. Was engaged to Jan Muhammad, real brother of Riasat (D. W. 1). According to the prosecution, the engagement of Mst. Sat Bherai P. W. To Jan Muhammad was disapproved by Muhammad Zaman, Rehman appellants and their father, she still insisted that she should be married to Muhammad Zaman appellant. Consequently, the aforementioned three alongwith other co-accused attempted to abduct her in the course of which the deceased was killed at the hands of Muhammad Zaman appellant.
4. The occurrence is reported to have taken place in the following manner. The deceased alongwith his wife Mst. Nawabzadi and daughter Mst. Sat Bherai P. W. Originally resided in village Choba, at a distance of 12/13 miles from village Okhli Mohla. On account of draught in village Choha he loft that village alongwith his wife and the aforementioned daughter as well as his cattle four months prior to the occurrence and started living with his son-in-law Akbar (P. W. 6) in village Okh1i Mobla. In the meantime, it rained in village Choba and his other daughter, namely, Mst. Fatah Khatoon P. W.
Came from that village two days prior to the occurrence to inform the deceased about it. As a result, on the day of occurrence, shortly after peshiwela the deceased alongwith his cattle as well as his wife and the two daughters left village Okhli Mobla for returning to village Choha. They crossed the bridge of Moharir Branch Canal and covered a distance of about six killas on their way to village Choba. By this time, the sun was about to set. When suddenly, as stated in the F. I. R. Mehr Muhammad acquitted co-accused armed with lathi, his sons Muhammad Zaman and Rehman appellants armed with guns, and Sher Muhammad son of Nur Khan armed with gun appeared.
These four gave a lalkara to the deceased to the effect that he had promised the hand of Mst. Sat Bherai P. W. To them and that now he wanted to get her married elsewhere, he would be taught a lesson. Thereafter Mehr Muhammad acquitted co-accused instigated his sons to get hold of Mst.
Sat Bherai P. W. Muhammad Zaman and Rehman appellants held Mst. Sat Bherai P. W. And dragged her away. The complainant party raised alarm and interfered, but they were stopped by Mohr Muhammad acquitted co-accused and Sher Muhammad. When Mst. Sat Bherai P. W. Was dragged away to a distance of about 1-- killas forcibly, she laid herself down on the ground whereupon Muhammad Zaman and Rehman appellants gave her blows on the back with the butts of their guns. In the meantime, the deceased advanced in order to rescue Mst. Sat Bherai P. W. But Mehr Muhammad acquitted co-accused gave out a lalkara that they should fire at him if he came near. On this Muhammad Zaman appellant fired a shot from his gun at the deceased which hit him on the chest. The deceased fell down on the spot and died. On hearing alarm Muhammad Afzal (P.
W. 10) and Riasat (D. W. 1) were attracted to the scene of crime and they witnessed the same. There were other people who also rushed to the scene of occur--rence. On seeing them, all the four ran away leaving Mst. Sat Bherai P. W. In the scuffle Mst. Sat Bherai as well as Mst. Fatah Khatoon P. Ws.
Sustained injuries at the hands of the appellants.
5. The prosecution has produced three eye-witnesses of the occur--rence, namely, Mst. Fatah Khatoon (P. W. 8), daughter of the deceased as well as the elder sister of Mst. Sat Bherai P. W., who sustained injuries; Mst. Sat Bherai (P. W. 9) younger daughter of the deceased who also sustain-- ed injuries and Muhammad Afzal (P. W. 10), maternal cousin of Jan Muhammad who was to be married to Mst. Sat Bherai P. W. As well as the nephew of the father-in-law of Mst. Fatah Khatoon P.
W. Riasat cited in the F. I. R. As P. W. Was given up by the prosecution and he appeared as D. W. 1.
Mst. Fatah Khatoon P. W. Subsequently made a supplementary statement to the effect that she in a state of confusion mentioned the name of Sher Muhammad in the F. I. R. Whereas Sher Muhammad was not present. She stated that besides Mehr Muhammad acquitted co-accused Muhammad Zaman and Rehman appellants, there were four other persons constituting the accused party, namely, Fatah Muhammad Tiwana appellant armed with a gun, Abdur Rehman appellant armed with a stick, Dost Muhammad appellant armed with a stick and Fatah Muhammad alias Fatta appellant armed with a gun. She further stated that she omitted to mention their names at the time of the recording of the F. I. R. As she was confused. She also stated that from amongst the people who were attracted to the scene witnessed the occurrence. It may be noted here that the supplementary statement of Mst. Fateh Khatoon P. W. Was neither proved nor exhibited by the prosecution at the trial.
As it has already been mentioned, Riasat was not produced as a P. W. Similarly, Khan Muhammad and Dost Muhammad were also not produced by the prosecution. Mst. Nawabzadi, wife of the deceased, was examined in respect of the motive before committing Magistrate, but she was not produced at the trial.
6. Muhammad Zaman and Rehman appellants and Mehr Muhammad acquitted co-accused were arrested on the 19th of July, 1969, by Saleh Muhammad S. I. (P. W. 11). The rest of them were arrested on the 24th of July, 1969. 'The relevant recoveries in this case are: single-barrelled gun P. 5.
Recovered at the instance of Muhammad Zaman appellant and taken into possession vide memo.
Exh. P. H., dated the 19th of July 1969 and single-barrelled gun P. G. Recovered at the instance of Fateh Muhammad Tiwana appellant and taken into possession vide memo. Exh. P. B., dated the 24th of July, 1969. These recoveries are not of any use because no crime empties were found on the spot. According to the prosecution version only one shot had been fired which killed the deceased and that was attributed to Muhammad Zaman appellant. No recoveries were made from the other co---accused although some of them were stated to have carried guns and the others sticks.
7. Dr. Zahid Hussain Bokhari (P. W. 2) conducted post-mortem examination on the dead body of the deceased on the 12th of July, 1969, and found the following injuries on his person: (1) 2 gunshot wounds of entrance on the front of right and left chest (2) abrasion on the front of right side of chest, and (3) 6 gunshot wounds of exit on the lower part of left side of chest. In his opinion, death in this case had occurred due to shock and haemorrhage as a result of injury No. (1) which was sufficient to cause death in the ordinary course of nature. Injury No. (2) might have been caused by pellet but it was simple. Injury No. (3) was the exit wound. Two pellets were recovered near injury No. (3).
Lady Dr. Khadija Qureshi (P. W. 1) medically examined Mst. Fateh Khatoon P. W. At 6-15 p. m. On the 18th of July 1969, and found on her person a contusion mark over the left buttock and a contusion mark over the right knee-joint. The injuries were simple in nature and caused by a blunt weapon.
She medically examined Mst. Sat Bherai P. W. On the same day at 6-00 p. m. And found on her person multiple abrasions in an area of 7' x 3' on the back of the right side of the chest. The injury was simple in nature and had been caused by a blunt weapon.
8. The appellants in their statements before the trial Court totally denied having participated in the occurrence. They stated that they had been involved in this case due to enmity.
Riasat who bad been produced as a D. W. Did not support the defence version. However, he had stated before the committing Magistrate that Mst. Fateh Khatoon and Muhammad Afzal P. Ws.
Were in doubt about the identity of the accused when they left for the police station. Anyway, in our view, the statement of Riasat as D. W. 1 is not of any benefit to' the appellants.
9. We have heard learned counsel for both the sides in detail and carefully perused the record. It may be so that the three eye-witnesses produced by the prosecution in this case are closely related to the deceased. They may also be partisan or interested witnesses. But there is no doubt in our mind that Mst. Fateh Khatoon and Mst. Sat Bherai P. Ws. Were present at the scene of crime for both of them bad sustained injuries. Both these witnesses are consistent in their version that Muhammad Zaman and Rehman appellants forcibly attempted to abduct Mst. Sat Bherai P. W.
While the deceased and Mst. Fateh Khatoon P. W. As well as her mother were trying to intervene.
They also consistently stated that Mst. Sat Bherai P. W. Was given blows with the butts of their guns on her back by Muhammad Zaman and Rehman appellants. Further, both of them consistently deposed that when the deceased advanced in order to rescue Mst. Sat Bherai P. W. From the clutches of Muhammad Zaman and Rehman appellants, Muhammad Zaman appellant fired a shot from his gun which hit at the chest of the deceased, as a result of which he fell down and died.
Not only that the statements of these two witnesses corroborate one another, in this respect they are also corroborated by the testimony of Muhammad Afzal P. W. As well as Riasat D. W., besides being supported by the medical evidence. According to the version of the two female witnesses, the appellants other than Muhammad Zaman and Rehman did not play any active role in the commission of crime although some of them were armed with guns and the others with sticks.
According to Ma. Fateh Khatoon P. W. She was given a lathi blow by Mehr Muhammad acquitted co-accused. She has been disbelieved by the trial Court for the reason that it was doubtful that an old man aged 81 years could have participated in the crime by giving a blow to this witness.
Anyway, the testimony of these two female witnesses who were themselves injured was to the effect that Fateh Muhammad Tiwana appellant who was armed with a gun, Abdur Rehman appellant who was armed with a stick, Dost Muhammad appellant who was also armed with a stick and Fateh Muhammad alias Fatta appellant who was armed with a gun did neither use their guns or sticks in the course of the occurrence, nor in any way actively assisted Muhammad Zaman and Rehman appellants in the attempted abduction of Mst. Sat Bherai P. W., nor fired at the deceased. The finding of the trial Court is also to the same effect.
Learned counsel for the appellants vehemently urged that the eye-witnesses in this case were interested and, therefore, their testimony should not be believed. In his view, the occurrence took place in the darkness of night and the assailants were not identified. In other words, the case of the defence is that the complainant party was waylaid by some dacoits who wanted to deprive them of their cattle and that since it was dark, they could not be identified. The defence is relying on the statement made by Riasat D. W. Before the Committing Magistrate to the effect that Mst. Fateh Khatoon and Muhammad Afzal P. Ws. Were in doubt about the identity of the assailants when they went to the police station. It was, therefore, argued that the complainant party was attacked by some unknown assailants who could not be identified in darkness. We do not agree with learned counsel. The presence of Mst. Fateh Khatoon and Mst. Sat Bherai P. Ws. At the scene of crime, in our view, is clearly established. Mst. Fateh Khatoon P. W. In the F. I. R. Mentioned Sher Muhammad besides Muhammad Zaman, Rehman and Mehr Muhammad as the assailants. She subsequently deleted Sher Muhammad and instead mentioned four others. The reason given by her was that she was in a state of shock and confusion and, therefore, could not give out the names of the companions of Muhammad Zaman and Rehman appellants correctly. Be that as it may, we have no doubt in our mind that Mst. Sat Bherai as well as Mst. Fateh Khatoon P. Ws. Who bad themselves received injuries in the course of occurrence clearly indicated Muhammad Zaman and Rehman appellants as their assailants, accompanied by Mehr Muhammad acquitted co-accused and others. After a perusal of their state--ments our conclusion is that no active part was played by the co-accused, namely, Fateh Muhammad Tiwana, Abdur Rehman, Dost Muhammad and Fateh Muhammad alias Fatta appellants in the commission of crime. Consequently, in our considered opinion, their conviction under section 366 read with section 511/149, P. P. C. As well as sentence were not proper. They should have been given the benefit of doubt which we hereby give them.
Their conviction and sentence are set aside and they are acquitted. Their appeal is accepted. They shall be released from jail forthwith if not wanted in any other case.
As for Muhammad Zaman and Rehman appellants we are convinced in our mind that both of them did participate in the occurrence. Both of them attempted to kidnap Mst. Sat Bherai P. W. And when the deceased came to her rescue Muhammad Zaman appellant fired a gunshot at him which resulted in his death. Consequently, both these appellants are to be held responsible for their individual acts. At this stage learned counsel attempted to argue that Muhammad Zaman appellant might have acted at the instiga--petition of his father Mehr Muhammad acquitted co- accused because according to the prosecution version it was he who bad instigated Muhammad Zaman appellant to fire at the deceased when he approached near. It was, therefore, argued that on this account, a case was made out for a lesser penalty to him. In respect of Rehman appellant it was submitted that although he was also armed with a gun, he did not fire at the deceased. It was further submitted that he was the younger brother and, therefore, might have acted under the influence of Muhammad Zaman appellant. It was submitted that be had only assisted Muhammad Zaman appellant in the attempted abduction and was not directly connected with the motive.
Consequently, it was argued that, in the circumstances, his sentence be reduced.
We do not find any substance in the argument of the learned counsel in respect of the awarding of leaser penalty to Muhammad Zaman appellant. He is 32 years old and could not be considered to have acted under the influence of his father. He was directly connected with the motive. He attempted to abduct Mst. Sat Bherai P. W. And when resistance was offered by the girl's father, a man aged 65/70 years, he fired a shot from his gun at him and killed him. In our opinion, there is no mitigating circum--stance in his favour and consequently no case is made out for awarding lesser penalty to him. He was responsible for his own act, and, in our opinion in the circumstances, his convictions under section 302, P. P. C. As well as under section 366 read with section 511, P. P. C. And sentences there under were quite proper and these are accordingly maintained. His appeal is rejected.
As for Rehman appellant, we are of the view that his conviction under section 366 read with section 511, P. P. C. Was also quite proper and is accordingly maintained. As for the question of sentence, we are inclined to agree with learned counsel that since he had only assisted his elder brother in the attempted abduction of Mst. Sat Bherai P. W. Whereas he himself was not directly connected with the motive his sentence be reduced. According to the record, he has been in Jail for more than 1-- years. In the circumstances, wee are of the view that the sentence already undergone by him is sufficient to meet the ends of justice. Consequently, the sentence awarded to him is reduced to that which he has already undergone. His appeal is accepted to this extent. He shall be released from jail forthwith if not wanted in any other case.
10. The death sentence awarded to Muhammad Zaman appellant is confirmed.