' Maqbool Ahmad and Abdul Rehman appellants were tried for an offence under section 302/34, P.P.C. By learned Sessions Judge, Okara, and vide judgment dated 9-2-1993 convicted and each sentenced to imprisonment for life and a fine of Rs,20,000 or in default thereof 2 years' R.I. Each.
Whole of the fine if realised, was ordered to be paid to the heirs of Irshad deceased. The two convicts have preferred appeal and at the same time Mst. Bhagan complainant (P.W.8) has filed revision petition for the enhancement of the sentence. The two matters are being disposed of by a single judgment.
2. The occurrence took place at about 11-30 p.m. On the night intervening 14/15-3-1992 in Chak No,27/4-L at a distance of 1/2 kilometre from Police Station Shah Bhor. Mst. Bhagan complainant (P.W.8) met Malik Muhammad Aslam Inspector/S.H.O. (P.W.12) at the bridge of Chak No,27/4-L at 7- 10 a.m. On 15-3-1992 and made statement (Exh.PC). It was sent to the police station where formal FIR. (Exh.PC/1) was registered by Muhammad Aslam, Moharrir Head Constable (P.W.4).
3. The detail of the occurrence given in the F.I.R. Was that Mst. Bhagan complainant was a labourer of the Chak, on the night of occurrence she was sleeping at the house of Noor Muhammad and her son Irshad deceased was sleeping under the Chhapper. She heard some sound, got up and came out of the house. A bulb was on at the Chhapper. She saw Maqbool Ahmad appellant armed with a hatchet and Abdul Rehman appellant empty handed. The deceased Abdul Rehman caught hold of the legs of the deceased and Maqbool gave hatchet blows near the left eye, on the head and neck.
Irshad fell down the cot. The alarm raised by the complainant attracted Muhammad Abbas and Noor Muhammad (P.Ws. 9 and 10). The appellants left raising Lalkaras and the deceased expired at the spot.
4. The motive given in the F.I.R. Was that the appellant Maqbool Ahmad suspected his cousin- sister's illicit connection with the deceased.
5. Dr. Nasarullah Baig (P.W.11) performed the post-mortem examination on the dead body at 3-00 p.m. On 15-3-1992. It was the dead body of a young man of 18 years, clad in shirt, Shalwar and Jursy all blood-stained. He observed the following injuries:---
(1) An incised wound 9 . 2-1/2 c.m. x bone exposed on the left side of face.
(2) An incised wound 9 x 3 c.m. x bone exposed and cut on the left side of head 6 c.m. Above the left ear.
(3) An incised wound 12 c.m. x 2 c.m. x bone exposed and cut on the back of head 10 c.m. Above the hair line.
(4) An incised wound 2-1/2 c.m. x 1/2 c.m. x bone deep underlying bone cut on the middle of phalanyx of middle finger of left hand.
' All the injuries were by sharp-edged weapon and ante-mortem resulting in death within about 1/2 to one hour. The time between death and post-mortem examination was stated to be within 20 hours. The death was due to haemorrhage and shock caused by the injuries which were sufficient to result in death in the ordinary course of nature.
6. The case was investigated by Malik Muhammad Aslam Inspector (P.W.12). After recording the statement of the complainant he reached the spot, inspected it, prepared rough site plan (Exh.PJ), collected blood-stained earth vide memo. (Exh.PE), blood-stained cot, Khais, Gadha, Quilt and Pillow all blood-stained (P.5 to P.9) vide memo. (Exh.PF). He arrested Maqbool appellant on 22-3- 1992 and on the next day he got recovered blood-stained hatchet (P.4) from under the bedding from his house and was secured vide memo. (Exh.PD). He also got prepared site plan to scale (Exhs.PB and PB/1). In cross-examination he informed that the dead body was lying at a distance of about 13 feet from the cot with no trail of blood in between. The house of Mst. Bhagan was about 2/3 acres on the east of the spot. According to him Mst. Bhagan was alone when she met him and denied that before recording the statement of Mst. Bhagan he had been informed about the occurrence by Ahmad Din, Noor Muhammad and Abbas P.Ws. At the police station. He also denied that after making preliminary investigation he cooked up the case. He admitted that on being arrested Abdul Rehman pleaded that on the night of occurrence he was on his duty in Okara Textile Mills till 10-00 p.m. And thereafter stayed with Muhammad Akram, an employee of Agriculture Department over there for the night.
7. Maqbool appellant at the close of the trial pleaded innocence. According to him the occurrence was an unwitnessed one and came to light in the morning. Noor Muhammad was at D.H.Q. Hospital Okara, with his ailing son, was called and in collusion with the police he was falsely involved. Abdul Rehman appellant also pleaded innocence and informed the Court that on the night of occurrence he was in Okara Textile Mills on his duty and after 10-00 p.m. Went to stay with Muhammad Akram at Okara. He produced Muhammad Akram (D.W.2) to support him. Ch. Abdul Rehman D.S.P. (D.W.1) was also produced in defence. He stated that according to his investigation Abdul Rehman was not present at the spot on the night of occurrence.
8. Dr. Nasarullah Baig (P.W.11) provided the medical evidence. The eyewitness account was furnished by Mst. Bhagan, Muhammad Abbas and Noor Muhammad (P.Ws. 8, 9 and 10) alongwith the motive part of the story.
9. Learned counsel for the appellants contended that it was a dark night occurrence, unwitnessed by anybody, it came to light in the morning, the matter was reported at the police station by the family members of and not by Mst. Bhagan. After preliminary investigation the case was concocted in collusion with the police due to enmity. Further argument was raised as to the unnatural conduct of the eye-witnesses as to why they had not interfered with the appellants when only one of them was armed with hatchet. Learned counsel for the State on the other hand tried to support the judgment delivered by the learned trial Judge. After having heard the learned counsel and gone through the record, the conviction recorded against Maqbool Ahmad seems to be correct and not that of Abdul Rehman.
10. The occurrence admittedly took place under the Chhapper of Noor Muhammad P.W. It is the constant case of the eye-witnesses that a bulb was on. The fact that the village is electrified is not disputed in cross-examination to the witnesses. The police station is a few acres from the spot. It is in the statement of Mst. Bhagan complainant that she had sent Ahmad' Din, Noor Muhammad and Abbas P.Ws. To the police station to report the occurrence who returned after about an hour and reported that the police had been informed. Abbas P.W. Also admitted in cross-examination that he, Noor Muhammad and Ahmad Din P.Ws. Had gone to the police station to inform about the occurrence. He further stated that they reached the police station after about 1/2 hour of the occurrence and the policeman present there sent them back with the order that they would be reaching the spot soon. From the statements of the witnesses it seems that just after the occurrence, they reached the police station and informed the police but the police instead of reducing the information in the register F.I.Rs,, sent them back and on reaching the spot later on recorded the statement of the complainant. The witnesses are straightforward and truthful and they have not tried to cook up a case. The inefficiency or delinquency was on the part of the police and for that the prosecution case cannot be thrown out. It is an admitted fact in the statements of the witnesses that a young son of Noor Muhammad P.W. Was admitted in Hospital at Okara on the night of occurrence. In such a situation if Noor Muhammad had returned to the village for the night, the other relatives must have come to him and even stayed with him for the night as a mark of solace and relationship. This explains the presence of the deceased and Mst. Bhagan at the Chapper and House of Noor Muhammad at night. The house of Muhammad Abbas is nearby. It is also in evidence that Maqbool appellant is the son of the Lumberdar of the village and the family is very well-to-do. The complainant family are poor. No enmity of any sort has been brought out prompting the poor complainant family to falsely involve the son of the well-to-do lumberdar of the village. In cross-examination it is admitted by the P.Ws. That Mst. Bhagan complainant, Mst.
Rajhan and Mst. Paras are the sisters and Ahmad Ali is their brother. Mst. Rajhan is married to Qutab Din and has a son. (Muhammad Sarwar P.W.) and a daughter. Mst. Shehnaz. Mst. Paras has a son Muhammad Saleem by name. Mst. Bhagan complainant has a daughter Mst. Bibi. Ahmad Ali has, a son Naseer Ahmad by name. Both Naseer and Saleem were students of 10th Class in the chak of occurrence. It is suggested to the P.Ws. That Saleem was engaged with Mst. Shehnaz and Naseer Ahmad with Mst. Bibi and due to bad character of the boys the engagements were snapped. It is also suggested that Muhammad Saleem had contracted illicit connections with Mst.
Bibi and Naseer Ahmad established liaison with Mst. Shehnaz Bibi. The. Effort is to create enmity between the close family members of the complainant side but even if it be admitted without conceding that there were some differences among the family members, no reason at all has been made out why Maqbool should have been falsely involved. The contentions regarding Maqbool appellant are therefore, rejected.
11. So far as Abdul Rehman appellant is concerned, his case is at a different footing. He was not armed according to the witnesses nor caused any injury to the deceased. He as per their statements held the legs when Maqbool appellant gave the hatchet blows. But when hatchet blows were to be inflicted upon the deceased who was sleeping there was no necessity at all to hold the C legs. Abdul Rehman, D.S.P. Found him to be not present at the spot at the time of occurrence. He admittedly is employed in Okara Textile Mills and as per the statement of Muhammad Akram D.W. Slept for the night with him. His case is not free from doubt.
12. The upshot is that Abdul Rehman appellant is granted the benefit of doubt and is acquitted of the charge. His appeal is accepted, the conviction and the sentence are hereby set aside. He be set aside forthwith if not required to be detained in any other case. The appeal of Maqbool Ahmad appellant fails and is hereby dismissed. His conviction and sentence are maintained. No I ground has been made out for the enhancement of the sentence and so the revision petition also fails and is dismissed in limine.