SARDAR MUHAMMAD DOGARJ.- F.I.R .EX. PS/1 was registered at Police Station Haroonabad, District Bahawal Nagar on 22-6-1985 at 12-10 noon by Habib Ullah, S.I.PW 12, on submission of written application Ex. PS, by Mahmud PWS. According to F.I.R, the complainant was sitting in his house in Chak No.87/5-R, along with Muhammad Amin, Mst. Manzuran Bibi, Mst. Ajjan, Mst. Amiran, .Yar Muhammad, Ramzan, Hasham Ali and Mst. Mannan Bibi. Sher Muhammad & Kabal armed with guns, Adil armed with a 12-bore pistol, Mustafa alias Dholi armed with a Kassi, Sadiq & Falak Sher armed with hatchets, entered his house, while Sher Muhammad son of Bagh Ali armed with a gun, accompanied by his brothers Mahbub & Muhammad Ali armed with a gun &. Hatchet respectively, stood outside his house and raised lalkaras to Finish the whole family. Sher Muhammad fired a shot at Muhammad Amin which hit him on the head, ear and other parts of the body. Sadiq caused him injury on the right arm. Kabal Fired a shot on the abdomen of Mst. Manzuran Bibi while Gulsher Fired a shot on her private parts. Mst. Ajjan was given a hatchet blow on the head by Sadiq. Falak Sher also caused her injuries with the hatchet. Adil Fired a shot from the pistol at Amin. Mvf. Ajjan was given injuries on the head by Mustafa. Mst. Amiran Bibi was given injuries by Sadiq and Falak Sher with hatchets, as a result of which thumb and Finger of her right hand were cut. Mst .Amiran Bibi was Fired at by Gulsher. Adil Fired a shot at Ramzan while Falak Sher struck him with the hatchet, yar Muhammad, Hasham Ali and Mst. Ramzan Bibi also suffered injuries due to the Firing by the accused and blows with hatchets on different parts of their bodies. Manzur Ahmad & Munir Ahmad sons of Mahmud, Amir son of Shera and Muhammad Nawaz son of Nadira, witnessed the occurrence. Other villagers were also attracted to the spot but none dared intervene. The accused while leaving, removed a sum of Rs. 1000/-from the pocket of Amin and also took away 10 tolas of gold, 40 tolas of silver and a sum of Rs. 15,000/- after breaking the door of the room with hatchets.
Motive for the occurrence mentioned in the F.I.R, was unfounded suspicion of the accused of illicit intimacy of Amin with Mst. Gullan daughter of Sadiq. Muhammad Amin and Mst. Manzuran died on the spot while Mst Ajjan died in the hospital on 22-6-85.
2. Habib Ullah, S.H.O. After recording the F.I.R, reached the spot. He sent A/iV. Ajjan, Mst Mannan Bibi, Hasham Ali, Yar Muhammad, Muhammad Ramzan and Mst. Amiran to the hospital through constable, after preparing their injury statements. The dead bodies of Muhammad Amin and Mst.
Manzuran were sent by him to the mortuary for post-mortem examination after preparing their injury statements and inquest reports. Bloodstained earth from different points was also collected by him and taken into possession vide separate memos. Four wooden pieces of the butt of gun.7 said to be that of Sher Muhammad, were taken, in to possession by him from the spot. He had also collected four empty cartridges from there.
Gun P5, Pistol P8, Kassi P11 and hatchet P12, produced by Sher Muhammad, Adil, Mustafa and Sadiq respectively at the time of their arrest on 23-6-85, were taken into possession by him vide separate memos. He had also taken into possession bloodstained clothes of Adil, Sher Muhammad and Sadiq accused. The challan was submitted to Court by him against Sher Muhammad Adil, Mustafa alias Dholi, Sadiq, Kabal and Gulsher sons of Satia & Falak Sher. Alter completion of necessary investigation. Sher Muhammad, Mahbub and Muhammad Ali sons of Bagh Ali were found innocent during the investigation. They were neither arrested nor were challaned.
3. Learned Additional Sessions Judge-II, Bahawal Nagar who had conducted the trial, convicted Sadiq (50). Sher Muhammad (35) and Adil (30) sons of Satia under Sec. 452/34 & 302/34 PPC for having murdered Muhammad Amin & Msl. Ajjan. Under Section 326/34 PPC for having caused injuries to Mst. Amiran Bibi, under Section 324/34 PPC for having inflicted injuries to Mst. Mannan Bibi, under Sec. 324/34 PPC for having caused injuries to Raman and under Sec. 326/ 34 PPC for having caused injuries to Yar Muhammad and awarded sentences as follows: U/s. 452 PPC Slier Muhammad, Sadiq & Adil to undergo R.I.For 3 years each plus to. Pay a fine of Rs.500/-each in default whereof to suffer further R.I. For 3 months. #tbs U/s. 302/34 PPC for causing the death of Amin. #the Sher Muhammad-Death, plus to pay a fine of Rs.1000/- in default whereof to suffer R.I. For one year each.
Sadiq & Adil--Imprisonment for life, plus to pay a fine of Rs. 1000/- in default whereof to undergo R.I.
For one years. #tbs U/s 302/34 PPC for causing the death of Mst. Ajjan Bibi.
U/s. 326/34 PPC for causing injuries to Mst. Amiran.
U/s. 324/34 PPC for causing . Injuries to Mst. Mannan & Ramzan.
U/s. 326/34 PPC for causing injuries to PW Yar Muhammad. #the Sher Muhammad, Sadiq & Adil-Imprisonment for life, plus to pay a fine of Rs.l000/-each in default whereof to undergo R.I. For one year each.
All three to undergo R.I.For 10 years each plus to pay a fine of Rs. 1000/-each in default whereof to suffer R.I. For two years each.
All the three to undergo R.I. For two years each on two counts, plus to pay a fine of Rs. 200/- each in default whereof to suffer further R.I. For one month each All the three to undergo R.I. For 5 years each plus to pay a fine of Rs. 200/-each in default whereof to suffer further R.I. For one month each. {{TABLE MISARRANGED}} All the sentences awarded to Adil and Sadiq have been directed to run concurrently. They were also given benefit of the provisions of Section 382-B of the Code of Criminal Procedure.
4. Mustafa alias Dholi, Kabal, Gulsher and Falak Sher their cousin, were acquitted vide same Judgment.
5. The convicts have filed appeal. Learned trial Judge' has made a reference for confirmation of death sentence awarded to Sher Muhammad. Mahmud complainant had filed a revision petition which has been disposed of vide separate order passed today on the statement made by his son that they have compromised with the accused and so they do not want to press the same.
Mahmood Petitioner, according to him had died 1-1/2 years ago. The appeal and the murder reference are being disposed of together.
7. Statements of twelve P.Ws were recorded at the trial.
Dr. Manzoorul Haq , who had medically examined Mst. Ajjan on 22-6-85 at 3.00 p.m, appeared as PW2. He had noted eight injuries, which included 3 lacerated wounds, a swelling and four redish- blue contusions.
All the injuries were opined to have been caused by a blunt weapon within 12 hours.
Mst. Ajjan had died while being given first-aid and her dead body was post - mortemed by the same doctor on the same day at 6-00 P.m. He had noted the same injuries on her body as found during medical examination.
Death was opined to have occurred due to compression of brain, which resulted from injury No.3, which has been defined as follows; "One swelling 12 cm x 8 cm on right side of scalp and temporal region 5 cm above right ear."
The injuries were opined to have resulted from a blunt weapon.
8. He had examined on the same day Yar Muhammad PW at 3-25 P.M. And noted 3 lacerated wounds and a swelling on his person. Except the injury on the right index finger the others were declared simple. The injuries were opined to have been caused by a blunt weapon within 12 hours.
9. Mst. Mannan Bibi, on medical examination on the same day, was found to have suffered 2 incised wounds., a lacerated wound and one abrasion on different parts of her body. The incised wounds were opined to have been caused by a sharp-edged weapon while the abrasion and lacerated wounds were opined to have been caused by a blunt weapon. All the injuries were declared simple.
10. Mst. Amiran Bibi PW on being medically examined on the same day, was found to have suffered a radish contusion, 2 incised wounds, a lacerated wound and five wounds of entrance of pellets.
The pellet wounds were opined to have been caused by a firearm .The incised wounds were opined to have been caused by a sharp-edged weapon while the lacerated wound and the contusion were opined to have been caused ba blunt weapon. All the Injuries were declared simple.
11. Muhammad Ramzan PW, on medical examination was found to have suffered 3 lacerated wounds, a swelling and a punctured wound of entrance of pellet. The punctured wound was opined to have been caused by a firearm, the incised wound was opined to have been caused by a sharp edged weapon while the remaining injuries were opined to have been caused by a blunt weapon.
All the injuries were declared simple, per X-Ray examinations.
12. The same doctor had performed autopsy on the dead body of Mst. Manzuran Bibi on 23-6-85 at 7-30 a.m. and noted a circular wound of pellets on the outer aspect of right hip-joint below interior superior iliac spine with one wound of exit of pellet, over middle of right buttock. The. Edges of the wound were blunt. Three pellets and eight pieces of bone were removed from peritonial cavity.
Death was opined to have occurred due to severe haemorrhage and shock resulting from the above noted injury.
13. The same doctor on the same day had performed autopsy on the dead body of Muhammad Amin at 10-00 a.m. He had noted 10 incised wounds, a swelling and 8 lacerated wounds on different parts of the body.
During internal examination, the skull, right frontal and right maxilla bone were found fractured.
Death was opined to have occurred due to severe haemorrhage resulting from all the injuries.
Injuries No. 2,3 and 9, which are described as under, were opined to be sufficient to cause death collectively as well as individually ,in the ordinary course of nature:
2. One incised wound 4 cm X 3 cm X right ulna bone was cut through and through 4 cm above wrist joint. Right ulnar artery was cut.
3. One incised wound 7 cm X 5 cm X right ulna bone was cut through and through 8 cm below elbow joint. Ulnar artery was cut.
9. One lacerated wound 3 cm IX bone deep over right eye brow with swelling 1 cm X 4 cm over right cheek and lower eye lid. Fracture of maxilla right frontal bone was present in (Y) shape manner.
The incised wounds were opined to have been caused by. a sharp-edged weapon, while the rest of the injuries were opined to have been caused by a blunt weapon.
Probable time between the injuries and death was opined to be between few seconds and half an hour, while the time between death and postmortem was opined to be within 24 hours.
14. The same doctor had medically examined Sadiq appellant on 23-6-85 at 6-00 p.m. And noted a lacerated wound and a bluish contusion, both the injuries were opined to have been caused by a blunt weapon and were declared simple.
15. He had also medically examined Adil appellant on the same day and noted an incised wound, an abrasion and a swelling on different parts of the body. Except the injury beneath the incised wound which was declared grievous, the others were declared simple. The incised wound was opined to have been caused by a sharp-edged weapon while the other two were opined to have been caused by a blunt weapon.
16. Sher Muhammad appellant, on medical examination on the same day, was found to have suffered a lacerated wound, two swellings and a radish contusion on different parts of the body.
Except the injuries on the phalanx of the ring and middle fingers which were declared grievous, the other injuries were found simple. All the injuries were opined to have been caused by a blunt weapon.
17. Ocular account was deposed to by Mahmud PW8 who had lodged the FIR, Mst. Amiran Bibi PW5 and Mst. Mannan PW6.
Mahmud PW during examination in -chief did not state anything about the motive for the occurrence nor did he allege that Sher Muhammad, Mahbub and Muhammad Ali armed with various weapons had stood outside his house and raised lalkaras to finish them . He also did not state that the accused had removed a sum of Rs. 1000/-from the pocket of amin deceased and had also removed gold silver and cash from his house after breaking the door of room with hatchets.
During cross-examination he denied, that he had recorded such facts in report/ application EX. PS.
However, on confrontation he was found to have stated so in FIR EX. PS/1. He also denied that he had got recorded in the FIR that Sher Muhammad, Mahbub and Muhammad Ali sons of Bagh Ali armed with gun and hatchets, had stood outside his house and raised lalkaras to finish his whole family, however, on confrontation, he was found to have stated so in the FIR. He denied that Sadiq appellant suspected that Amin deceased had illicit relations with his daughter Mst. Gullan. He refuted that he had got recorded in EX. PS/1 that the accused had finished the whole family as they suspected illicit connections between Amin deceased and Mst. Gullan daughter of Sadiq. However, on confrontation he was found to have stated so. He denied the suggestion that on the day of occurrence Sadiq appellant had seen Amin deceased in an objectionable position with his daughter Mst. Gullan in his house and that when Amin ran from there he had chased him and inflicted him injuries under grave and sudden provocation, accompanied by Adil and Sher Muhammad who also, on learning the said fact, had joined him, he denied the suggestion that the other persons had suffered injuries during the occurrence when they had tried to intervene and attack them (the appellants). He denied that he had put up a false version of the occurrence in court.
18. Mst. Amiran Bibi PW5 and Mr/.Mannan PW6 corroborated the statement made by Mahmud PWS, during examination-in-chief. Like him, both of them denied that the accused suspected that Amin decease had illicit connections with Mst. Gullan. Like him,, they also did not allege anything against Sher Muhammad, Mahbub and Muhammad Ali sons of Bagh Ali nor did they say anything about the accused having taken away money from the pocket of the deceased and valuables from their house. Both of them, on confrontation with their previous statements before the police, were found to have stated said facts.
Mst. Amiran Bibi had voluntarily stated that the accused wanted to give the hand of Mst. Gullan to Amin deceased and also wanted the hand of Mst. Manzuran in lieu thereof. She had dubbed Mst.
Gullan as a 'taxi'. She explained the term 'taxi' used for Mst. Gullan for being a woman of easy virtue.
The suggestions put to Mahmud complainant about the appellants having acted under grave and sudden provocation, on having seen Amin deceased in a compromising position with Mst. Gullan, were also put to both of these witnesses, which they denied.
Mst. Amiran during cross-examination stated that Sadiq appellant had chased Amin deceased for 1-1/2 acres for inflicting injuries. During cross-examination she denied that she had stated in EX. DA that door of the room was broken by the accused. The same, however, was found to have been recorded in her previous statement.
Mst. Mannan stated during cross-examination that they had not seen Mst. Gullan in the village after the occurrence (her statement was recorded on 26-2- 86).
All the three witnesses denied that anyone from their side had inflicted injuries to any of the appellants.
19. Bashir Ahmad who claimed to have witnessed the collection of bloodstained earth, broken pieces of gun and empties from the spot, and of having witnessed the production of gun by Sher Muhammad, pistol by Adil & Kassi by Mustafa alias Dholi, appeared as PW9 and deposed those facts. During cross-examination he stated that Sadiq (appellant) was son of the sister of his mother. However, he denied that he knew his daughter Mst. Gullan. He expressed ignorance whether Sadiq had murdered his daughter Mst. Gullan also, on the same day. He also expressed ignorance whether there was suspicion about illicit relations of Mst. Gullan with Amin deceased.
20. Habib Ullah, S.I. who had registered the case and submitted the challan to Court after completion of necessary investigation, appeared as PW12 and deposed those facts. During cross- examination he admitted that Sadiq, Adil and Sher Muhammad appellants were found bearing injuries at the time of arrest and so he had got them medically examined. The statements of the remaining Plowshare more or less of a formal nature.
21. Yar Muhammad, Hasham Ali, Ramzan who had suffered injuries during the occurrence and Manzur and Amin who were also alleged to have witnessed the occurrence, were given up as un- necessary. Mst. Amiran and Muhammad Sadiq son of Manhay Khan, named as eye-witnesses, were given up as having been won over.
22. The appellants during their statements under Section 342 Cr. P.C. Denied the prosecution case as a whole and pleaded innocence. Sadiq appellant stated as follows in answer to the question, why this case against you?
Mst. Gullan Bibi is my real daughter. I saw her in an objectionable position in my house with Muhammad Amin deceased. Seeing me, Muhammad Amin deceased ran away to his house. I while armed with my hatchet chased him to his house whereupon his relatives interferred and gave me injuries, At this my co-accused came to my help and Adil and Mustafa alias Dholi gave them injuries in grave and sudden provocation and in our self-defence. After the occurrence I came to my house and in grave and sudden provocation murdered my daughter Mst. Gullan deceased. None other person was present af the place of occurrence except Adil, Sher Muhammad and myself."
In answer to the question, why the P.Ws, deposed against you?' he stated as follows: 'They are all related to each other and the deceased. They have given a false story and have not narrated the correct version so that the whole of our family may be implicated and the version of grave and sudden provocation may not come."
He also made statement on oath under Sec. 240(2) Cr.P.C, wherein he repeated the same version.
During cross-examination he denied that the occurrence had taken place in the manner put forth by the complainant party. His statement that he had murdered his daughter Mst. Gullan after having inflicted injuries to the deceased and other P.Ws., was not challenged during cross- examination. His assertion of having been married to Mst. Naziran Bibi sister of Amin deceased was also not challenged during cross-examination.
23. Adil and Sher Muhammad appellants owned the statement made by their brother and co- appellant Sadiq.
24. Learned counsel for the appellants after having taken us through the evidence, criticised the impugned judgment and contended that the prosecution version of the occurrence was neither reliable nor worth acting upon as the P.Ws. not only had made contradictory statements during the trial but had made a lot of changes in the statements made by them during the investigation, considered useful and beneficial by them. Learned counsel argued that the version part forth by the appellants was more probable and nearer the truth. Lastly, learned counsel submitted that since the parties have compromised, a lenient view may be taken about the sentences, in case they are found guilty of having Committed certain offences.
25. Learned counsel for the State defended the judgment-of the trial court.
26. It may be noted at the very outset that the parties have compromised. In that regard, affidavits of Mst. Mannan Bibi, Mst. Amiran Bibi, Yar Muhammad, Muhammad Anwar, Bashir Ahmad, Muhammad Ramzan and Manzoor Ahmad PWs were placed on record. They also appeared and made statements on oath, on 25-11-90.
The revision petition filed by Mahmud, who had lodged the F.I.R, was disposed of as having not been pressed on the statement made by his son Muhammad Anwar (Mahmud is reported to have died 1-1/2 years ago).
27. As it is borne out from the evidence, the appellants in this case put up with their own version of the occurrence and claimed that the complainant party for malafide reasons falsely reported the occurrence by fabricating an incorrect story. That being so both the versions have to be examined in a juxta-position.
28. Before proceeding to discuss the versions of both the parties we would like to mention here that Mst. Amiran PW5 and Mrf. Mannan PW5 were real sisters of Amin deceased. Yar Muhammad father of Amin deceased and Mahmud PW8 (complainant in the case) were Hamzulf (they were husbands of real sisters). Mst. Manzuran was daughter of Mahmud. Mst; Ajjan deceased was wife of Mahmud PW. Husband of Mst. Amiran PW5 was son of Mahmud and Mst. Ajjan Bibi. Ramzan and Bashir PWs were brothers of Muhammad Amin deceased. It is also admitted that Sadiq appellant was son of sister of the mother of Amin deceased, the claim of Sadiq appellant that he was married to Mst. Naziran Bibi sister of Amin deceased, was never challenged, even though he was cross-examined. All the appellants are real brothers. It is obvious fr6m the above facts that not only the P.Ws, and the deceased in this case were closely related, the appellants were also related to them.
29. As noted in the earlier part of the judgment, all the three eyewitnesses, i.e. Mahmud PW8, Mst.
Amiran PW5 and Mst. Mannan PW6, did not say anything regarding motive for the occurrence. In fact they denied that they had mentioned the suspicion of illicit relations of Mst. Gullan with Amin deceased, as motive for the occurrence, in their statements before the Police, and the F.I.R The conduct of the witnesses in that regard obviously was for malafide reasons. They must have thought that since Sadiq appellant has come up with a version that the occurrence had taken place because of the wrong behaviour of Amin deceased, qua his daughter Mst. Gullan. If they; also stick to the occurrence having resulted from the suspicion of illicit intimacy between the two, that would be supporting the version putforth by the appellants. The witnesses not only changed their statements as suited them with regard to that aspect of the case but had also denied to have named Sher Muhammad, Mahbub and Muhammad Ali to have facilitated the occurrence by standing outside their house armed with deadly weapons. The allegations levelled by them at the time of registration of case and during the investigation, of the accused having removed valuables from the pocket of the deceased and from their room by breaking-open the door of the room, were also taken back, obviously for malafide reasons, it is worth noticing that Bashir PW9 a real brother of Amin deceased while admitting that Sadiq appellant was son of the sister of his mother, denied that he knew Ms7. Gullan daughter of Sadiq. Even if it is admitted for the sake of argument that Mst.
Gullan was not the daughter of his sister Mst. Naziran Married to Sadiq (as claimed by Sadiq) it has got to be accepted that he would have known Mst. Gullan being daughter of his first cousin, particularly so when they were living in the same village and their houses were not far away from each other.
In the circumstances, it is obvious that the eye-witnesses in this case made statements as considered suitable by them to their designs, and varied their testimony to strengthen the prosecution case without having regard to truth and the depositions earlier made by them.
That being so we have to fall back upon the version putforth by the appellants, which even otherwise inspires confidence for the reason that it cannot be believed that Sadiq appellant would have murdered his daughter Mst. Gullan and the other two appellants who were her real uncles, would have joined hands with him in doing that lawful act. Although the P.Ws, did not specifically admit that she was murdered by her father and uncles, yet it is on record through admission of an eye-witness that she was never seen thereafter alive.
30. Provocation of a father on seeing his daughter in compromising position in his own house with her own maternal uncle would naturally be of such a grave nature that he could have done anything. His co-appellants who were his brothers, would obviously have felt the same on being told by him. The version of Sadiq appellant that he had chased Amin deceased and inflicted injuries to him after having overtaken him, finds support from the admission of Mst. Amiran PW5 that Sadiq appellant had chased Amin deceased for 1-1/2 acres for inflicting injuries. This is contradictory to the prosecution version of the occurrence, according to which, Amin deceased was inflicted injuries when he was sitting in the house of the complainant. We are of the view that even if the unchallenged assertion of Sadiq appellant that Amin deceased was maternal uncle of Mst. Gullan being brother of his wife Mst Naziran, is set apart on account of the PWs having not clearly admitted that, the fact of Amin deceased being first cousin of the appellants would also have been enough to provoke Sadiq on seeing him in a compromising position with Mst. Gullan who being daughter of his (Amin's) cousin was his niece.
31. In the circumstances, we hold unhesitantly that the appellants cannot be held liable for having committed offences under Section 302/34 PPC. Consequently, their convictions under Section 302/34 PPC on both the counts are set aside. They are instead convicted under Section 304 Part-1 P.P.C, on two counts.
32. They were all arrested on 23-6-85. Sadiq and Adil appellants had remained in Jail till 15-10-88 when they were allowed bail after suspension of their sentences, which means that they had remained in jail for 3 years and about 4 months. Sher Muhammad is in jail since after his arrest on 23-6-85, which means that he has spent about 5-1/2 years in jail. The fact has also to be taken note of that the parties have entered into a compromise and the complainant party have forgiven the appellants after having been compensated. They are, therefore, sentenced to the period already spent by them in' jail, in both counts.
33. The convictions of the appellants under Sec. 452/34 PPC, under Section 326/34 PPC for having caused the injuries to Mst. Amiran Bibi, under Section 324/34 PPC for having caused injuries to Mst.
Mannan Bibi, under Section 324/34 PPC for having caused injuries to Ramzan PW and under Section 326/34 PPC for having caused injuries to yar Muhammad PW, are maintained. Learned trial Judge after awarding sentences to the appellants on these counts had directed running of the same concurrently. The maximum sentence awarded to them for such convictions, was 10 years R.I. And a fine of Rs. 5000/-, for having Caused injuries to Mst. Amiran Bibi. The sentences awarded to the appellants for such convictions are also reduced to the period already spent by them in jail after their arrest, for the reasons noted in the earlier part of the judgment while awarding sentences for convictions under Section 304 Part-1 PPC. As compensation was also paid for the compromise, the sentences of fine awarded to each of them on each count are also remitted.
34. Sadiq and Adil appellants are on bail. Their sureties stand discharged. Sher Muhammad appellant, who is in jail, shall be released forthwith if not required in any other case.