' Abdul Karim son of Noor Muhammad, Abdul Karim son of Ghulam Haider, Abdul Malik son of Ghulam Haider, Mitha son of Wahid Bakhsh and Noor Muhammad son of Bahram were tried by the learned Additional Sessions Judge, Rahimyar Khan for the murder of Raees Faiz Bakhsh deceased, who vide his impugned judgment dated 30-8-1987 convicted appellants Nos.1 to 4 and acquitted co-accused Noor Muhammad and sentenced appellants under section 302/34, P.P.C. To undergo imprisonment for life each and a fine of Rs,2,000 each in default whereof to suffer one year R.I. Each.
They were further directed to pay Rs,8,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, and in default whereof to undergo 6 months R.I. Each. They were also convicted under section 460, P.P.C. And sentenced to 10 years' R.I. Each and a fine of Rs,2,000 each, in default whereof to suffer one year R.I. Each. All the sentences were directed to run concurrently. They were not extended the benefit of section 382-B, Cr.P.C. They have come up in appeal to assail their conviction and sentence. The State has filed Criminal Appeal No,11/1988 and the complainant has preferred Criminal Revision No,2/1988 for enhancement of sentence. All these matters shall be disposed of by this judgment.
2. The prosecution case in brief as unfolded in the F.I.R. Exh.PT reduced into writing on the complaint of P.W.9 Muhammad Aslam and recorded by P.W.13 Muhammad Younus, A.S.I. At Police Station Rukhanpur, District Rahimyar Khan on 24-8-1982 at 4-15 a.m. Under sections 148, 149, 302, 452, P.P.C.
Was to the effect that on the night of occurrence the complainant's deceased father Raees Faiz Bakhsh, his brother Salim Akhtar and paternal-cousin Ayyaz son of Rasool Bakhsh, after taking meals slept on the roof of the house. The lantern was as usual burning. At about 3-30 a.m. The complainant alongwith his brother Muhammad Saleem (given up) were awakened. They witnessed that appellants Abdul Karim son of Noor Muhammad armed with hatchet, Abdul Karim son of Ghulam Haider, Abdul Malik son of Ghulam Haider armed with hatchets, Mitha son of Wahid Bakhsh armed with hatchet and Noor Muhammad, acquitted co-accused, armed with pistol, residents of Mauza Tajpur Peerwala, Tehsil and District Rahimyar Khan who were previously known to the P.Ws., were inflicting hatchet blows on the deceased, Raees Faiz Bakhsh. The deceased was raising hue and cry. The complainant alongwith the P.Ws. Tried to rescue his father, on which Noor Muhammad, acquitted co-accused, after pointing pistol towards them threatened that if anybody would come near, he would be killed. Meanwhile Rais Irshad Ahmad (P.W.8) and Rais Abdul Rehman P.W. (given up) the neighbours called and stated that they were coming. The accused jumped from the eastern side of the roof. The complainant alongwith the P.Ws. Came down from the stairs after opening the door of the Haveli, ran after the accused, Rais Abdul Rehman P.W.
(given up) and P.W.8 Rais Irshad Ahmad also joined them, who identified the accused. The accused were chased for a distance of about one square, but they succeeded in running away. The P.Ws.
Returned and witnessed that the deceased had succumbed to his injuries. The motive behind the occurrence was that 1-1/2 years earlier Abdul Karim son of Ghulam Haider appellant had teased the complaint's relative Mst. Maqsood Mai and in that connection Chachers and Legharis assembled, but Abdul Karim Leghari refused to accept the award and due to that revenge Khair Bakhsh son of Elahi Bakhsh of tribe of the complainant had teased Mst. Haleeman, a lady from the accused tribe, on which they threatened to murder the deceased, and the deceased got initiated preventive proceedings against both the parties. The Leghari tribe due to preventive proceedings and teasing of woman had grievance against the deceased as he had illegally helped Khairu Chacher. Leaving behind the P.Ws. To guard the dead body, the complainant reached the police station and lodged the F.I.R. Exh.PT.
3. The appellants alongwith the acquitted co-accused were challaned and sent up for trial. Charge under three heads i,e, under sections 148, 460 and 302 read with section 149, P.P.C. Was framed, to which they denied and claimed trial.
4. The prosecution examined 14 P.Ws. In all to substantiate its case. P.W.13 Muhammad Younus, A.S.I.
Recorded the F.I.R. Exh. PT at the police station, reached the. Spot, prepared injury statement Exh.PD, inquest report Exh.PE and despatched the dead body to the mortuary. The deadbody was lying on a cot on the roof. He secured blood-stained earth vide memo. Exh.PR, lantern P15 vide memo. Exh.PS which was burning. P.W.8 Irshad Ahmad produced a torch P14 which was secured vide memo.
Exh.PQ. On the same day, after post-mortem examination Ahmad Khan Constable (P.W.3) produced last-worn clothes of the deceased i,e, Kurta P1 and Lungi which were secured vide memo.
Exh.PB. He arrested the appellants on 27-8-1982. Abdul Karim son of Noor Muhammad appellant on 29-8-1982 led to the recovery of bloodstained hatchet P10 which was secured vide memo. Exh.PM.
On 29-8-1992 at the time of his arrest Abdul Karim son of Noor Muhammad appellant also led to the recovery of blood-stained shirt P11 and blood-stained Chadar P12 which were secured vide memo. Exh.PN. Abdul Malik appellant on the same day led to the recovery of blood-stained hatchet P4 from his house which was secured vide memo. Exh.PH. He also led to the recovery of blood- stained shirt P5, and blood-stained Chadar P6 which were taken into possession vide memo.
Exh.PJ. Mitha appellant also led to the recovery of blood-stained shirt P8 and bloodstained Chadar P9 which were secured Vide memo. PL. Thereafter Mitha appellant also led to the recovery of blood-stained hatchet P7 from his house which was secured vide memo. Exh.PK. Thereafter Abdul Karim son of Ghulam Haider appellant led to the recovery of his blood-stained shirt P2 and Chadar P3 from his house which were secured vide memo. Exh.PG. He also led to the recovery of blood- stained hatchet P1 from his residential Kotha which was secured vide memo. Exh.PE. On the same day Noor Muhammad, acquitted co-accused, while in custody led to the recovery of .12 bore pistol P13 which was secured vide memo, Exh.PO. He also prepared sealed parcels of the case property.
After completion of the investigation he produced file before the S.H.O. Who challaned the accused.
5. P.W.4 Dr. Irshadul Haq on 24-8-1982 at 11-30 a.m. Conducted autopsy on the dead body of deceased Rais Faiz Bakhsh and found the following injuries on his person:---
(1) One incised wound 12 x 7 x bone deep on back of the neck and pigns from middle of the neck from interior side below the left mendible and extends up to the back of the neck up to right ear region. All muscles were cut and fibres were intermingled with each other. Bones were cut. Lateral side of left clavicle upper border of left scapula lower end of left mendible, first, second, third vertebrae.
(2) One incised wound of 7 x 4 bone deep on left oxipital region. Oxipital bone incised.
(3) One incised wound 4 x 3 over left oxipital region. This wound joints margins of wounds Nos.1 and 2.
(4) One incised wound 6-1/2 x 6 into bone deep over palm of right hand bones of hand, intercorple bone cut Fingers of right hand little fmger, ring finger and middle finger cutted with incised wound.
First phalangeal joint cutted.
(5) One incised wound over right shoulder size 4 x 2-1/2 into bone deep shoulder joint bones cut longitudinally.
(6) One incised wound '4 x 2-1/2 into bone deep over left shoulder. Bones of left shoulder joint cut longitudinally.
(7) One incised wound over left ear, ear tissue cut through and through. And opined that the cause of death was incised wound on back of the neck. Wounds were through and through up to vertebral column. These wounds bleed to death. The injuries were ante-mortem and all were caused with sharp-edged weapon as incised. The injuries were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about half an hour and between death and post-mortem about eight hours.
6. P.W.9 complainant Muhammad Aslam stated about the motive behind the occurrence i,e, his niece Mst. Maqsood Mai was teased by Abdul Karim appellant. He informed the deceased, who convened a Punchayat which was attended by members of Leghari and Chacher families.
Appellant Abdul Karim did not accept the decision of the Punchayat. Thereafter P.W.5 Khair Muhammad started teasing Mst. Hallman, a relative of the accused, who threatened him. P.W.5 informed the deceased, who took him to the police station and a Kalandra against the accused party was prepared. The ocular account was furnished on record by the statement of P.W.9 Muhammad Aslam complainant and P.W.10 Muhammad Saleem. P.W.B. Irshad Ahmad alongwith Abdul Rehman P.W. (given up) had witnessed the appellants present at the Kotha of the deceased armed with hatchets and Noor Muhammad, acquitted co-accused, armed with pistol and jumping from the roof of the house of the deceased on the ground. They had chased the accused alongwith the P.Ws.
7. P.W.6 Rais Khandu stated about the recovery of incriminating articles. Recovery of blood-stained hatchet P1 at the instance of Abdul Karim son of Ghulam Haider and his blood-stained shirt P2 and Chadder P3 were secured in his presence vide memo. Exh.PG. He also witnessed recovery of bloodstained hatchet P4 at the instance of Abdul Malik appellant which was secured vide memo.
Exh.PH. He witnessed the recovery of appellant Abdul Malik's blood-stained shirt P5, Chadder P6 by the S.H.O. Who secured the same vide memo. Exh.PJ. He further stated that Mitha appellant also led to the recovery of blood-stained hatchet P7 secured vide memo. Exh.PK. Mitha appellant also got recovered blood-stained shirt P8 and Chadder P9 secured vide memo. Exh.PL. Appellant Abdul Karim son of Noor Muhammad also led to the recovery of blood-stained hatchet P10 from his residential Kotha secured vide memo. Exh.PM. He also led to the recovery of blood-stained shirt P11 and Chadder P12 which were secured vide memo. Exh.PN. Sealed parcels of the incriminating articles were prepared. P.W.4 Dr. Irshadul Haq furnished medical account of the occurrence.
Reports of the Chemical Examiner Exh.PU and Serologist PX are positive.
8. The appellants when examined under section 342, Cr.P.C. Denied the prosecution evidence against them as well as the recovery of incriminating articles at their instance. In answer to the question Have you anything else to say?", all of them stated that they were innocent. The occurrence was unwitnessed one. Trackers were called, and footprints were traced. Without clue of real culprits, the police arrested them on the very first day due to suspicion and unlawfully detained them and thereafter implicated them due to dishonest investigation. They neither made statement on oath as envisaged under section 340(2), Cr.P.C. Nor produced evidence in defence.
9. The learned trial Court after evaluating the evidence on record had passed the impugned judgment.
10. I have heard the learned counsel for the parties and have perused the record. I have been taken through the whole evidence by the learned counsel for the appellants who have perused the evidence on record and the impugned judgment.
11. The motive as alleged by the prosecution for the present occurrence was that 1-1/2 years earlier to the present occurrence, Abdul Karim son of Ghulam Haider had cut joke with Mst. Maqsood Mai, a relative of the complainant and a Punchayat was convened between the people of Chacher and Leghari tribes. Abdul Karim appellant refused to accept the decision and due to that grudge Khair Muhammad (P.W.5) had also cut indecent jokes with Mst. Haliman who was a relative of Abdul Karim appellant and the people of Leghari tribe had threatened Khair Muhammad to murder him and preventive proceedings were initiated between the parties. The appellants nursed grudge against the deceased, who had helped Khairu Chacher. The police recorded the statements of P.W.5 Khairu and P.W.12 Mst. Maqsoodan Mai one month after the alleged occurrence. P.W.9 Muhammad Aslam complainant has stated during cross-examination that he was not present when the Punchayat was convened for the settlement of the dispute arisen out due to the cutting of indecent jokes of Abdul Karim appellant with Mst. Maqsoodan Mai. He further stated that he was not in the know of the preventive proceedings and his deceased father had not helped Khairu Chacher and the preventive proceedings had been compromised between the parties earlier to the present occurrence. The appellants had a grudge against Khairu and instead they were stated to have murdered the deceased. In the circumstances; the motive stands disproved.
12. The ocular account has been furnished on record by the statements of P.W.9 Muhammad Aslam complainant and P.W.10 Muhammad Saleem, who are real sons of the deceased. They stated unanimously that the appellants who were armed with hatchets inflicted injuries on the deceased, and they were awakened on the alarm of the deceased. The other inmates of the house were sleeping in the compound of the house. Neither they were awakened nor attracted to the spot.
P.W.9 and P.W.10 stated tnat Noor Muhammad, acquitted co-accused, kept standing with the pistol in his hand and threatened the eye-witnesses not to come near. P.Ws. 9 and 10 neither intervened nor tried to rescue the deceased, who was their real father and during the occurrence P.W.8 Irshad Ahmad and Abdul Rehman P.W. Sister-in-law's husband of the deceased, having been won over, reached and asked P.W.9 and P.W.10 to wait as they were coming and meanwhile the appellants were alleged to have escaped after jumping from the roof and the level of the roof was 16 feet from the ground. None of the appellants was injured when they jumped from the roof. It is surprising that P.W.9 and P.W.10 who are real sons of the deceased, had not intervened during the occurrence when their father was at the mercy of the appellants, but are stated to have went down the stairs and accompanied by P.W.8 Irshad Ahmad, P.W.9 Muhammad Aslam and Abdul Rchman P.W.
(given up) chased the appellants up to the distance of 1-1/2 squares, without any arm. The learned trial Court had not believed the statement of P.W.8 Irshad Ahmad and those of P.W.9 and P.W.10 up to that extent i,e, that they had chased the appellants.
13. The recovery aspect of the case has not been believed by the trial Court. The footprints of the culprits were preserved and Lalu, Talib and Jogal trackers were summoned and they are stated to have identified the footprints, but neither their statements were recorded nor they were cited as P.Ws., Muhammad Younus A.S.I. (P.W.13) stated that there was dust-storm at the time of the occurrence and also when he reached the place of occurrence. P.W.9 and P.W.10 have stated that a lantern was burning at the time of occurrence at a distance of 5 Karams from the deceased and in the said light they had identified the appellants, and if there was storm, how lantern could go on burning? Moreover a lantern is lit for some time and at the time of sleeping the lantern is not used i,e, to ward off the insects. P.W.13 Muhammad Younus, A.S.I. Visited the spot. He is stated to have secured the lantern on 24-8-1982. He returned to the police station which was at a distance of 3 acres from the spot and on the same morning is stated to have deposited the lantern with the Moharrir. P.W.2 Muhammad Nawaz Moharrir H.C. Stated that P.W.13 Muhammad Younus A.S.I. Had not deposited the lantern with him. The story of the lantern has been introduced only to prove identification of the appellants. The occurrence took place on the 4th of the lunar night i,e, 24-8- 1982 at 3-30 a.m. And at that time there would have been no moon. The introduction of lantern by the prosecution was only to strengthen its case about the identification of the appellants.
14. P.W.9 Muhammad Aslam and P.W.10 Muhammad Saleem, eyewitnesses of the occurrence are the real sons of the deceased. No independent person has been produced by the prosecution from the vicinity. Statements of A P.W.9 and P.W.10 have no strong and independent corroboration. The motive has been disbelieved by this Court. The recovery aspect of the case was disbelieved by the trial Court as well as the statements of P.W.9 and P.W.10 were partly believed.
15. Pursuant to the above discussion, I am of the view that prosecution has failed to establish its case beyond doubt against the appellants and giving them the benefit of doubt I acquit them of the charge. They are present on bail, their bail bonds are discharged. Criminal Appeal No,11/1988 filed by the State and Criminal Revision No,2/88 preferred by the complainant have no merits and are dismissed.