Mukhtar Ahmad son of Khair Muhammad caste Korai Baluch resident of Mauza Muhammadpura Qureshian and Manzoor Ahmad son of Roshan Din caste Arain resident of Sultanpur, Tehsil and District Rahim Yar Khan, have filed this appeal against the order of Additional Sessions Judge, Rahim Yar Khan, dated 21-2-1989, whereby they were convicted and sentenced to imprisonment for life and a fine of Rs.5,000 each or in default thereof to undergo 3 years' R.I., under section 302/34, P.P.C. And to 3 years' R.I. And a fine of Rs.2,000 each or in default thereof to undergo 6 months' imprisonment under section 404/34, P.P.C. It was further directed that out of the fine recovered, half of it shall be paid to the heirs of the deceased. All the sentences were directed to run concurrently.
The convicts were, however, given benefit of the provision$ of section 382-B, Cr.P.C. Bashir Ahmad, complainant, has also filed revision (Criminal Revision No.44 of 1989/BWP) seeking enhancement of sentence of imprisonment for life awarded to the appellants by-the trial Court to that of death.
Both these matters shall be disposed of by this single judgment.
2. The prosecution case as disclosed at the trial was that Bashir Ahmad, complainant (P.W.8), lived in village Sultanpur alongwith his family, about? K.M. Away from Police Station Saddar Rahimyar Khan. His son Muhammad Iqbal was employed in Civil Hospital, Rahimyar Khan, who was on night duty on 25-2-1986, therefore, Abdul Salam (deceased), his other son, went to the hospital on a bicycle at 6-30 p.m., for delivering his meals but he (deceased) did not return home thereafter.
Muhammad Iqbal returned from duty next morning and told Bashir Ahmad, complainant, on his inquiry that, Abdul Salam after giving him the food on the previous evening had gone back. At this, Bashir Ahmad, complainant, got worried and started searching for him alongwith Muhammad Salim, Muhammad Sharif and Manzoor Ahmad P.Ws. They happened to see some blood, spread near rectangle No.10 and then going further on, they found a ditch freshly filled up in the graveyard which was dug up and dead body of Abdul Salam was found buried there having injuries on its head and neck. Leaving the witnesses there Bashir Ahmad, complainant went to Police Station Saddar, Rahim Yar Khan, and lodged F.I.R. (Exh.P.B.) with Raja Muhammad Basharat, Inspector/S.H.O. (P W.12) at 10-30 a.m.
3. After registering the case Raja Muhammad Basharat, Inspector (P.W.12), reached the spot. He prepared inquest report and sent the dead body of the deceased to the morgue for post-mortem examination. He then collected blood-stained earth from there. He picked up an identity card of Abdul Salam (deceased) lying near the place of occurrence and secured it under memo. Exh.P.E.
On 10-3-1986, Manzoor Ahmad (appellant) confessed to have killed the deceased before Muhammad Boota (P.W.5) and Sufi Bashir Ahmad (P.W.6) who took him along and produced him before the Inspector (P.W.12) who arrested him. Similar confession was made by Mukhtar Ahmad (appellant) before Muhammad Anwar (P.W.7) who also produced him before the Investigating Officer (P.W.12) and was arrested. The same day, Manzoor Ahmad (appellant) led to the recovery of Kassi (P.5) from his cattleshed, which was secured under memo. Exh.P.G. He also got recovered bicycle belonging to the deceased and also blood-stained hatchet (P.6) from his residential Kotha which were seized vide memos. Exhs.P.H. And P.I respectively. He also got recovered his blood- stained Chaddar (P.7) and shirt (P.8) which were secured under memo. Exh.P.J. Mukhtar Ahmad (appellant) produced a pair of Chappals, (P.9/1-2) belonging to Abdul Salam (deceased), the same day, which was taken into possession under memo. Exh.P.K. All these recoveries were witnessed by Manzoor Hussain (P.W.10), Muhammad Ashraf, (P.W., not produced) and the Investigating Officer (P.W.12). Vide Serologist's report Exh.P.U., earth collected from the spot, hatchet (P.6) and clothes (P.7 and P.8) of Manzoor Ahmad (appellant) were found stained with human blood.
4. Dr. Abdul Rashid (P.W.13), on 27-2-1986 at 4 p.m. Conducted post-mortem examination on the dead body of Abdul Salam (deceased) and found following injuries on it:--
(1) An incised wound 13 c.m. x 2 brain deep (brain-matter visible) on top of head, in mid line, lying anterioposteriorly.
(2) An incised wound 4 c.m. x 2 c.m. x brain deep on left eyebrow, 2 c.m from midline.
(3) An incised wound 9 c.m. x 5 c.m. x through and through on left side of neck 5 c.m. Below the lobe of left ear lying transversely almost all neck tissues divided except skin tag anteriorly and posteriorly.
In the opinion of the doctor, all the injuries were ante-mortem. Death had occurred due to injuries caused with sharp-edged weapon. Probable time between injuries and death was approximately within minutes and between death and post-mortem examination was 24 hours. All the injuries were individually and collectively sufficient to cause death in the ordinary course of nature. It is pertinent to note here that this doctor was asked the question if the duration between death and post-mortem examination could be more than 24 hours vide application Exh.P.S. And he opined that ante-mortem changes in this case might have been delayed as the dead body remained buried in dry sandy soil and sand was found present on the body. In view of this explanation the death of the deceased could possibly have taken place on the evening of 25-4-1986 as stated by the prosecution:
5. At the trial, the prosecution examined 13 witnesses in all. Bashir Ahmad, complainant (P.W.8) supported his F.I.R. (Exh.P.B.). He also identified bicycle and Chappals recovered by the police, as belonging to the deceased. Muhammad Boota (P.W.5) and Sufi Bashir Ahmad (P.W.6) are the witnesses of extra-judicial confession made by Manzoor Ahmad (appellant) before them. They stated that Manzoor Ahmad (appellant) came to them and confessed that he had suspected the deceased Abdul Salam to be having illicit connections with his wife therefore, he wanted to do away with him. He could not do it single-handedly, so he took Mukhtar Ahmad (appellant) into confidence and planned to kill Abdul Salam (deceased) with his help when the deceased would go to deliver meals to his brother at evening time, On the relevant day, Mukhtar Ahmad (appellant) reached Adda Sultanpur at sunset time whom he made to sit in sugarcane field and himself went and brought a Kassi and a hatchet from his house. Then they hid themselves in a `Rays' crop nearby and waited for arrival of the deceased who came there riding a bicycle at about 10-15 p.m.
Mukhtar Ahmad (appellant) caught hold of deceased's bicycle from behind and he (Manzoor Ahmad appellant) inflicted hatchet blows on the head and neck of the deceased as a result of which he died on the spot. They wrapped the dead body in a Chaddar and buried it in the nearby graveyard. Manzoor Ahmad also confessed that he had taken away bicycle of the deceased while Mukhtar Ahmad took away his Chappals and woollen Chaddar. The P.Ws. Took the appellant to the Investigating Officer who arrested him.
6. Muhammad Anwar (P.W.7) stated that 2 years and 3 months back he was present in the Dera of Lai Din P.W. At 9/10 a.m. Mukhtar Ahmad (appellant) came there and asked Lai Din to come aside and hear him. Lal Din encouraged him to speak out whatever he wished in his (Muhammad Anwar's) presence. So, the appellant confessed that since Manzoor Ahmad, his co-accused, suspected illicit relations of the deceased with his wife, therefore, Manzoor Ahmad (appellant) sought his help for murdering the deceased which he did, that on the relevant day at 9 p.m., he sat in a sugarcane crop where Manzoor Ahmad brought hatchet and Kassi. Then they reached `Raya' crop at about 10 p.m. And sat in wait (if the deceased, who came there at 10-15 p.m. On a bicycle.
He caught hold of the bicycle from behind and Manzoor Ahmad gave him hatchet blow on his head as a result of which he fell down. Manzoor Ahmad gave more blows on his neck when he lay on the ground and as a result thereof the deceased died. They tied up his dead body in a Chaddar and buried it in a ditch in the nearby graveyard. He further told that bicycle of the deceased and Kassi and hatchet were taken away by Manzoor Ahmad while the woollen Chaddar and Chappals of the deceased were taken by him.
7. Manzoor Hussain (P.W.10) and the Investigating Officer (P.W.12) deposed to about the incriminating recoveries made at the pointation of Mukhtar Ahmad and Manzoor Ahmad (appellants).
8. In their statements under section 342, Cr.P.C., both the accused/appellants denied the charge and also denied to have made any extra-judicial confession or led to the recovery of incriminating articles mentioned above.
9. Learned trial Court on consideration of the material on record believing the evidence of motive, the extra-judicial confession and the incriminating recoveries made from the appellants, convicted and sentenced them under sections 302/34 and 404/34, P.P.C. As indicated above but the normal penalty of death was not exacted on the appellants for the deceased had illicit connection with Mst. Salma wife of Manzoor Ahmad (appellant).
10. I have heard learned counsel for the appellants at some length and also perused the record.
11. I would first of all take up the case of Mukhtar Ahmad (appellant). The evidence led by the prosecution against him is two fold i.e., the recovery of Chappals (P.1/2) from him which allegedly belonged to the deceased and his extra-judicial confession sought to be proved through the evidence of Muhammad Anwar (P.W.7). It may be at one stated that Chappals (P.9/1-2) was identified by Bashir Ahmad, complainant (P.W.8), father of the deceased, and Manzoor Ahmad (P.W.10) brother of the deceased, as belonging to the deceased. But Manzoor Ahmad P.W. Admitted that it was of ordinary type which is easily available in the market. So in the absence of any specific mark of identification on the Chappal it cannot be said with certainty that this Chappal belonged to the deceased, hence it does not constitute incriminating circumstance against Mukhtar Ahmad (appellant). The other piece of evidence against him is the confession made by him before Muhammad Anwar (P.W.7). According to this witness, he was present at the Dera of Lal Din P.W.
(since dead) when Mukhtar Ahmad (appellant) came to Lal Din and requested him to hear him in solitude but then at the asking of Lal Din the appellant had confessed his guilt in the presence of the witness. There is no evidence that this appellant had a motive against the deceased or he was in any manner related to Manzoor Ahmad (appellant) who did have the one against the deceased.
There is nothing or record to show that why this appellant would go to Lal Din and confess that he had murdered the deceased. Needless to say that extra-judicial confession is always regarded as weakest type of evidence. There being no other corroborative evidence of the retracted confession, I find it highly unsafe for convicting the appellant on capital charge, therefore, his convictions and sentences under sections 302/34 and 404/34 recorded by the trial Court are not sustainable.
12. As far as Manzoor Ahmad (appellant) is concerned, his case stands on different footing. There is evidence against him that he suspected the deceased as having illicit relations with his wife Mst.
Salama, so he had a motive against p the deceased. There is evidence of Muhammad Boota (P.W.5) and Sufi Bashar Ahmad (P.W.6) about the appellant having confessed his guilt before them, and the recovery of bicycle, belonging to the deceased, effected from him besides and the recovery of blood-stained hatchet (P.6) and his blood-stained clothes (P.7 and P.8) effected at his point at ion vide memos. Exhs.P.H., P.1 and P.J., respectively. Testimony of Muhammad Boota and Sufi Bashir Ahmad P.Ws. Who proved extra-judicial confession of the appellant, inspires confidence as they have no personal axe to grind by implicating him falsely. Muhammad Boota P.W. Stated that Manzoor Ahmad (appellant) told them that he was making the confession for his conscience had pricked him. This confession is further corroborated by the recovery of blood-stained hatchet and blood--stained clothes of the appellant deposed to by Manzoor Hussain (P.W.10) and the Investigating Officer (P.W.12). No doubt Manzoor Hussain (P.W.10) is brother of the deceased but mere his relationship is not enough to discard his deposition. He is corroborated by the Investigating Officer. There is no evidence whatsoever that any of the above-mentioned witnesses had any ill-will or animosity against Manzoor Ahmad (appellant). All these pieces of evidence put together satisfy a judicial mind that Manzoor Ahmad (appellant) is responsible for the murder of Abdul Salam (deceased). Therefore, I would uphold conviction of Manzoor Ahmad (appellant) recorded under sections 302 and 404, P.P.C. By the trial Court. Award of lesser penalty of imprisonment for F life under section 302, P.P.C. By learned trial Court is appropriate since the deceased was having illicit connection with the wife of the appellant which constitutes a mitigating circumstance.
13. In the result, the conviction and sentence of Manzoor Ahmad, appellant, under sections 302 and 404, P.P.C. Is upheld and this appeal to his extent is dismissed, whereas qua Mukhtar Ahmad, appellant, it is allowed and c. His conviction and sentence on both charges under sections 302 and 404, P.P.C. Is set aside and he is acquitted. His release from jail was directed by me vide short order, dated 10-3-1991. For the same reasons, the revision petition dismissed in limine.
N.H.Q./M-252/L