' MIAN ABDUL KHALIQ, J.---Mehar Hussain son of Ibrahim (28 years), Ahmad Yar son of Wali Muhammad (29/30 years), Abdul Hameed son of Faiz Bakhsh (30 years), Noor Muhammad son of Gul Muhammad (50 years), Sohanra son of Ali Muhammad (30/35 years), Muhammad Nawaz son of Ibrahim (20/21 years) and Allah Diwaya son of Faiz Muhammad (35 years) were tried for the murder of Nazir Ahmad deceased, Mst. Noor Khatoon deceased and for making murderous assault on Allah Diwaya (P.W.). The learned Additional Sessions Judge, Bahawalpur vide judgment, dated 15-10-1990 acquitted Noor Muhammad, Sohanra, Muhammad Nawaz and Allah Dawaya, but convicted and sentenced the others as under:-- ' Under section 302, P.P.C. For the murder of Mst. Noor Khatoon.
' Under section 302, P.P.C. For the murder of Nazir Ahmad.
' All to undergo life imprisonment each and a fine of Rs,5,000 each or in default to suffer R.I. For 3 years each.
' All to undergo life imprisonment each and a fine of Rs,5,000 each or in default to undergo R.I. For 3 years each: ' All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to them. They have appealed against their conviction and sentence vide Criminal.
Appeal No,76 of 1990/BWP. The State has also preferred Criminal Appeal No,29 of 1991/BWP and the complainant has filed Criminal Revision No,4 of 1991/BWP for enhancement of their conviction and sentence. The appeals and the criminal revision shall be disposed of by this judgment.
2. Briefly, the prosecution case is that P.W.1 Muhammad Bakhsh on 1-7-1989 at 8-20 a.m. Lodged F.I.R. Exh.PA. At Police Station Ahmadpur East, District Bahawalpur with P.W.12 Muhammad Siddique, S.I./S.H.O. To the effect that he was resident of Mauza Matoo Lar and was a cultivator. His paternal- cousin Rahim Bakhsh was lodged in Central Jail, Bahawalpur in a murder case for the last about 9/10 years. He alongwith his brother deceased Nazir Ahmad, P.W.2 Abdul Haleem, P.W.3 Allah Diwaya, Mst. Noor Khatoon (deceased) wife of Rahim Bakhsh, Mst. Azra Bibi aged 11/12 years and Mst. Najma Bibi aged 8/9 years P.Ws. (both given up) daughters of Rahim Bakhsh set out for Bahawalpur to see Rahim Bakhsh in jail. At about 6-00 a.m. When they reached in the area of Mauza Khurampur, Chah Qazi Wala, Canal Sultan Wah, near the lands of Ch. Muhammad Akram, there Allah Diwaya (acquitted co-accused) armed with a gun, Abdul Hameed appellant armed with Chhura, Mehar Hussain appellant armed with a pistol, Muhammad Nawaz (acquitted co- accused) armed with Chhura, Sohanra accused/respondent in State appeal) armed with hatchet and Ahmad Yar appellant armed with hatchet and Noor Muhammad accused/respondent in State appeal) armed with gun had ambushed in the cluster of Jaal (bushes) and emerged. Allah Diwaya fired with his gun which hit on the chest of Nazir Ahmad deceased. Simultaneously Mehar Hussain and Noor Muhammad accused also fired which hit on the stomach and neck of Nazir Ahmad deceased. P.W.3 Allah Diwaya reached for the help of Nazir Ahmad, Noor Muhammad accused gave a gun butt blow on hfs head. The complainant Muhammad Bakhsh (P.W.1) alongwith his accompanying persons ran due to fear. Mst. Noor Khatoon deceased also followed them. Sohanra, Ahmad Yar, Muhammad Nawaz and Abdul Hameed accused caught hold her from behind and started injuring her with hatchets and Chhuras and injured neck, shoulders and other parts of her body. P.W.1 complainant alongwith P.W.3 Allah Diwaya, P.W.2 Abdul Haleem, Mst. Azra Bibi and Mst.
Najma Bibi P.Ws. (given up) while standing at some distance had witnessed the occurrence and on their hue and cry within their sight the accused lifted Nazir Ahmad and placed him on Mst, Noor Khatoon and escaped from the scene. The complainant alongwith the P.Ws. Reached the spot, and witnessed that Nazir Ahmad and Mst. Noor Khatoon had succumbed to their injuries. The motive behind was that the accused suspected that Mst. Noor Khatoon deceased and Nazir Ahmad deceased had illicit relations although the same was incorrect. Nazir Ahmad deceased considered Noor Khatoon deceased as his real sister. All the seven accused after making mutual consultation had killed innocent Nazir Ahmad and Mst. Noor Khatoon. Leaving behind the dead bodies of Nazir Ahmad and Mst. Noor Khatoon under the guard of P.W.2 Abdul Haleem and P.W.3 Allah Diwaya, P.W.1 Muhammad Bakhsh complainant reached the police station and reported the matter.
3. P.W.12 Muhammad Siddique S.H.O. After recording the F.I.R. Exh.PA. Proceeded to the spot, inspected the same, prepared injury statement of Nazir Ahmad deceased Exh.P.R. Injury statement of Mst. Noor Khatoon deceased Exh.P.S. As well as their inquest reports Exhs.P.E. And P.G.
Respectively. Then he despatched the dead bodies to the hospital for postmortem examination. He also collected the blood-stained earth from near the dead bodies of deceased Nazir and deceased Mst. Noor Khatoon vide memos. Exhs.P.J. And P.I. Respectively. He secured two empties P.1/1-2 from the spot vide memo. Exh.P.K. And prepared their sealed parcel. He arrested accused Mehar Hussain, Ahmad Yar and Abdul Hameed on 21-7-1989. On 30-7-1989 Ahmad Yar appellant while in police custody led to the recovery of bloodstained hatchet P.12 from his residential Kotha which was secured vide memo. Exh.P.N. On the same day, Abdul Hameed Appellant led to the recovery of blood-stained Chhura P.13 from his residential Kotha and P.W.12 secured the same vide memo. Exh.P.O. Mehar Hussain also led to the recovery of pistol P.14, secured vide memo. Exh.P.P.
P.W.12 arrested the acquitted co-accused Noor Muhammad, Muhammad Nawaz, Sohanra and Allah Diwaya on 28-7-1989. He deposited the sealed parcel with the Moharrir.
4. The prosecution examined 13 P.Ws. In all to prove its case. This case rests on motive, ocular account, medical evidence and the recoveries. The evidence of motive and ocular account was furnished by Muhammad Bakhsh (P.W.1), Abdul Haleem (P.W.2) and Allah Diwaya (P.W.3). P.W.4 Dr. Muhammad Iqbal Shaheen on 1-7-1989 at 3-00 p.m. Conducted autopsy on the dead body of Mst.
Noor Khatoon deceased and found the following injuries:--
(1) A cut wound of neck on frontal side in which trachea larynx, pharynx, jugular vein and other caropic arteries are cut.
(2) A cut wound on left and lateral side of mouth about 10 x 1 c.m.
(3) The ring finger of left hand is fully putt off.
(4) There are two incised wounds on dorsum of left hand.
(5) A cut wound on lower side of elbow (left elbow).
(6) There are two cut wounds on medial side of left elbow.
(7) There is deep incised wound under left axilla about 13 c.m. x away from axilla in lateral of left chest.
(8) There are three incised wounds on left chest.
(9) There is an incised wound under the right breast about 10 c.m. From the nipple.
(10) There is incised wound of 6 c.m. x 1 c.m. On left side about 8 c.m. From umblicus.
(11) There are three lacerated wounds on left side of knee joint.
' The cause of death in the opinion of the doctor was due to cutting of the neck alongwith the main blood vessels and much blood of the body lost due to cutting of blood vessels of the neck. The trachea, pharynx and larynx is also cut off. There was also injury of the left side of the lungs and due to that injury much blood also lost from the lungs. So in his opinion the exact cause of death was due to loss of blood (Hypovolenic shock). Probable time between injuries and death was few minutes and between death and post-mortem was about 8 hours.
' On the same day the Doctor (P.W.4) conducted autopsy on the dead body of Nazir Ahmad deceased and found the following injuries on his person:---
(1) There is an incised wound of 8 c.m. x 5 c.m. On occipital side of head.
(2) Two incised wounds of 6 c.m. x 1 c.m. And 5 c.m. x 5 c.m. On right side below the ear.
(3) Two incised wounds on right upper arm (below deltoid).
(4) An incised wound on the right index fmger.
(5) An incised wound on the right side below right last rib.
(6) A lacerated wound on right chest above nipple.
(7) There are 7 in number lacerated wounds on left side of chest. These are multiple in number and are irregular in shape.
(8) There are four lacerated wounds and incised wounds on left side of body, on and above hypochomdirum and all these injuries a cut shows that 5 to 6th ribs are fractured. Right side of lung cut off and heart injured.
' In the opinion of the Doctor, the exact cause of death was due to multiple injuries on different parts of the dead body. On opening the heart there was blood in the heart. The lung was also injured. The liver also lacerated. So there was loss of much blood. Due to these injuries the collection of blood occurred in the abdominal cavity. So the exact cause of death was due to cardiogenic shock and Hypovolenic shock. Duration between injuries and death was within few seconds and between the death and the post-mortem was 8 hours.
' On the same day P.W.4 also medically examined Allah Diwaya (P.W.3) and found a lacerated wound of 3.5 c.m. x 1.5 c.m. On the frontoparietal side of skull about 8 c.m. Above from the left eye.
5. The appellants when examined under section 342, Cr.P.C. Denied the charge against them.
Mehar Hussain appellant stated that the eye-witnesses falsely claimed that they had seen the occurrence. They were not present at the spot. He alongwith appellants Ahmad Yar and Abdul Hameed was going to their houses in the darkness of night before the sunrise. At that time he was armed with a pistol and Ahmad Yar with hatchet, while Abdul Hameed was empty handed. They heard cries of Mst. Noor Khatoon and saw that Nazir Ahmad deceased had thrown down Mst. Noor Khatoon. At that time in order to defend and protect the honour of Mst. Noor Khatoon and under grave and sudden provocation he alongwith Ahmad Yar appellant inflicted injui ies on Nazir Ahmad and Mst. Noor Khatoon, deceased persons. He alongwith co-appellant Ahmad Yar went to the police station and had reported the matter, but the police did not register the State case. The alleged eye-witnesses were summoned from their homes and were made as eye-witnesses against them. His own pistol was not shown to have been produced by him and instead another weapon after having been fired by the S.H.O. Was planted against him for which he had prepared the alleged crime empties. The other acquitted co-accused Noor Hussain, Sohanra, Allah Diwaya and Muhammad Nawaz were not present. The co-appellants made the similar statements. The appellants did not make statements on oath as envisaged under section 340(2), Cr.P.C.
6. It was argued by the learned counsel for the appellants that the prosecution had failed to establish its case and the witnesses examined by it are interested and the appellants had murdered the deceased under the grave and sudden provocation.
7. P.W. 1 Muhammad Bakhsh (complainant) and Abdul Haleem (P.W.2) are real brothers of the deceased, whereas Allah Diwaya (P.W.3) is brother-in-law of Nazir Ahmad deceased and also their paternal-cousin. The evidence of the eye-witnesses is full of material contradictions; It is also in conflict with the medical evidence and the number of accused appeared to have been exaggerated. The presence of injury on P.W.3 does not prove his presence at the spot or that he had witnessed the occurrence. P.W.12 had made no mention of injury and sending him for medico- legal examination in the case diaries. Moreover, P.W.4 had not issued his proper M.L.R. But had stated about medical examination of P.W.3 on the back of Exh. The acquitted co-accused were also found innocent by the police during investigation. The appellants were arrested on 21-7-1989 and the recovery of weapons of offence from them was effected on 30-7-1989 i,e, on 10th day of their arrest. The recoveries of weapons of offence from the appellants do not stand proved because P.W.8 Faqir Bakhsh is not the resident of Mauza Khurrampur and lived at a distance of one mile from the place of recovery. Nazir Ahmad deceased was son of his maternal-aunt. No person from Mauza Khurrampur was associated with the recovery proceedings. The other family members were present in the houses at the time of recovery and the house of Abdul Hameed appellant was vacant and the door was open. P.W.7 Ghulam Farid who allegedly witnessed the recovery of blood- stained hatchet P.12 at the instance of Ahmad Yar appellant, Chhura P.13 at the instance of Abdul Hamid appellant, and pistol P.14 at the instance of Mehar Hussain appellant alongwith 3 live cartridges P.14/1-3 is resident of one kilometre away from the house of Abdul Hameed appellant and he had admitted to be correct that Allah Diwaya, Noor Muhammad and uncle of Abdul Hameed resided with Abdul Hameed in Mauza Khurrampur. Mehar Hussain appellant was residing alongwith his father and other brothers in Mauza Mithu Lar. Nazir Ahmad deceased was his maternal-cousin and Mst. Noor Khatoon deceased was also daughter of his aunt. It is pertinent to mention here that the recoveries at the instance of the appellants were effected after about one month of the occurrence and how it could be possible for the appellants to keep the said weapons of offence in their respective houses even after one month of the occurrence. P.W.8 and P.W.9 are closely related to the deceased persons. The evidence of P.W.7 Ghulam Farid and P.W.8 Faqir Bakhsh about the recovery of weapons of offence do not inspire confidence. P.W.12 Muhammad Siddique, Inspector/S.H.O. Was examined to prove recoveries and his statement in the absence of public witnesses does not inspire confidence. Due to the above reasons the recoveries of weapons of offence and matching of crime empties with the fire-arm of Mehar Hussain and the reports of the Forensic Science Laboratory, Chemical Examiner and the Serologist are of little consequence.
8. The place of occurrence is an open place and in case a couple who is alleged to have developed illicit relations would not like to meet in an open place for their nefarious act. The motive behind the occurrence as stated by P.W.1, P.W.3 and P.W.4 was only a suspicion and nothing further which was also negated by them in their statements. Two vaginal swabs were taken by the Doctor during autopsy of the dead body of deceased Mst. Noor Khatoon and sent to the Chemical Examiner for detection of any semen, but the report of the Chemical Examiner was negative. It is pertinent to mention here that the husband of Mst. Noor Khatoon deceased was in the jail for the last 11 years and if she would have developed illicit relations with his co-deceased Nazir Ahmad, there would have been some finding about semens by the Doctor. Mst. Noor Khatoon deceased was living without her husband for the last 11 years alongwith her daughters. She was a virtuous lady. She had not opted to go back to the house of her parents and this had been the cause of her death at the hands of her close relations. No witness was produced in defence to state about illicit relations between both the deceased. Appellant Mehar Hussain at the time of his arrest before P.W.12 Muhammad Siddique, I.O./S.H.O. Had stated that he alongwith his co-accused heard the cries of Mst. Noor Khatoon and were attracted to the spot and after murdering Nazir Ahmad deceased they also killed Mst. Noor Khatoon.From the above resume it appears that both the parties are not coming up with the true story, and from the material on record it is difficult to determine genesis of the occurrence. The statements of the P.Ws. Have already been found not confidence inspiring. Now we are left only with the statements of the appellants and in such a case we have to believe and rely upon their statements in totality or draw our own conclusion. The appellants Mehar Hussain, Ahmad Yar and Abdul Hameed have stated that while coming back to their houses they heard the cries of Mst. Noor Khatoon and under grave and sudden provocation appellant Mehar Hussain and Ahmad Yar who were armed with pistol and hatchet respectively, caused injuries to Nazir Ahmad deceased and done him to death and thereafter they also killed Mst. Noor Khatoon. Appellant Abdul Hameed was empty handed and had not caused any injury to the deceased. From this discussion it is manifest that the appellants were attracted as per their statements, to the place of occurrence on the cries of Mst. Noor Khatoon, which clearly indicates that she had no C immoral liaison with deceased Nazir Ahmad. The appellants were attracted due to the cries of Mst. Noor Khatoon and if she had any illicit liaison with Nazir Ahmad deceased, she would not have raised cries, which attracted the appellants to the spot. It can be visualised from the evidence on record and the circumstances appearing in the case that the appellants did not like the stay of Mst. Noor Khatoon with her daughters at the house of her husband after his involvement in a murder case who was in the jail for the last 11 years and the same must have prompted the accused - appellants to murder her. Deceased Nazir Ahmad considered Mst. Noor Khatoon as his real sister and she was the wife of his brother who was in jail and finding an opportunity they killed both of them.
9. For the foregoing reasons we dismiss the appeal filed by Mehar Hussain and Ahmad Yar appellants and maintain their conviction and sentence of imprisonment and fine and the sentence in default of payment of fine. The fine if realized, shall be paid to the legal heirs of the deceased as compensation. They shall, however, be extended the benefit of section 382-B, Cr.P.C. The appeal qua Abdul Hameed is allowed and he is acquitted of the charge. He shall be released forthwith if not required in any other case. The, connected Criminal Appeal No,29/1991/BWP and Criminal Revision No,4/1991/BWP have no force and are dismissed accordingly.