' Mumtaz alias Mutti alias Nawab son of Muhammad Yar was tried by the learned Additional Sessions Judge, Bahawalpur alongwith his acquitted co-accused Muhammad Amin, Sher Khan, Fayyaz, Munawar Khan and Muhammad Yar for the murder of Mst. Allah Bakhshai and Ahmad Nawaz, brother of the complainant Allah Dad (P.W.6) and was convicted and sentenced under section 304, Part II, P.P.C. To undergo 7 years' R.I. And a fine of Rs,3,000, in default whereof to suffer one year R.I. He was also extended the benefit of section 382-B, Cr.P.C. To assail his conviction and sentence he has come up in appeal.
2. The prosecution case in brief is that the F.I.R. Exh.PJ/1 was recorded on 9-5-1989 at 6-30 p.m. At Police Station Qaimpur on the complaint of P.W.6 Allah Dad recorded by P.W.9 Muhammad Mansha, A.S.I. To the effect that he was resident of Chak Islamabad, Mauza Karampur, Chah Sharianwala and at about 11/12-00 p.m. (night) he alongwith Ahmad Nawaz deceased, his brother, Muhammad Aslam (P.W.7) and Muhammad Hussain alias Mamla P.W. (given up) were proceeding from Chah Sharianwala to Chah Tahliwala and when they reached Basti Adamabad in front of the house of Muhammad Hussain Ghulam on the roadside, Mumtaz appellant armed with an iron handle, Munawar Khan, Muhammad Yar, Muhammad Amin, Sher Khan and Fayyaz (acquitted co- accused), all armed with Sotas, reached and caught hold of Ahmed Nawaz deceased and dragged him to the house of Muhammad Hussain. The appellant had given blow with iron handle of hand pump on the head of Ahmad Nawaz deceased and co-accused Munawar Khan inflicted Sota blow on his head, on which the deceased fell down. Co-accused Muhammad Yar, Fayyaz, Muhammad Amin and Sher Khan tied his hands and thereafter gave injuries with Sotas and iron handle. Ahmad Nawaz succumbed to his injuries at the spot and thereafter the appellant stated that Mst. Allah Bakhshai, his wife, be brought and be killed and in this was they would be saved.
Thereafter the accused dragged Mst. Allah Bakhshai from the house of her father Muhammad Hussain and caused injuries on her with Sotas and iron handle, who also died at the spot. The P.Ws.
Had witnessed the occurrence. The motive behind the occurrence was that the accused suspected illicit liaison between the deceased. On the alarm of the complainant, P.Ws. Reached and the accused escaped. Leaving behind P.Ws. To guard the dead bodies, the complainant reached the police station and lodged the F.I.R.
3. The appellant alongwith his co-accused were challaned and sent up for trial. Charge under sections 148, 364/149, 302/149 and 302/149, P.P.C. On two counts was framed, to which they denied and claimed trial.
4. The prosecution examined 11 P.Ws. In all to substantiate its case. P.W.6 Allah Dad complainant narrated the facts mentioned by him in the F.I.R. Exh.PJ/1. P.W.7 Muhammad Aslam supported his statement. They stated the ocular account as well as the motive behind the occurrence. The appellant was arrested on 10-5-1989 by P.W.10 Muhammad Sarwar Inspector, and the same day he led to the recovery of iron handle smeared with blood P8. P.W.10 secured the same vide memo.
Exh.PE attested by P.W.5 Muhammad Jamil and P.W.10 Muhammad Sarwar Inspector. The reports of the Chemical Examiner and that of the Serologist Exhs.PN and PO were positive.
5. The medical aspect of the case was furnished by Dr. Muhammad Iqbal Javed (P.W.8) who conducted autopsy on the dead body of the deceased Ahmad Nawaz and found the following injuries on his person:---
(1) Large lacerated wound measuring 10 c.m. x 2 c.m. x bone deep with depressed skull fracture and brain matter coming out situate on the occipital region near the vertex with friction of the wound specially.
(2) Lacerated wound measuring 5 c.m. x 2 c.m. Situate in left parietal region near middle line. It was bone deep with depressed fracture brain matter coming out. The wound is set antero posteriorly.
(3) Lacerated wound measuring 6 c.m. x 2 c.m. Deep with brain matter coming out on right parietal region near vertex and is set obliquely.
(4) A lacerated wound 6 c.m. x 2 c.m. x scalp deep situate on right side of injury No,1 set obliquely.
(5) A contusion measuring 3 c.m. x 1 c.m. Situate on the lateral half of right clavicular region. On exploration right clavicle was fractured in middle 1/3.
(6) Multiple abrasion situate on the posterior aspect of right elbow covering on area of 3 c.m. x 3 c.m. With variable distance in between.
(7) An abrasion measuring 2 c.m. x 1 c.m. Situate on the aspect of right forearm in its middle 1/3 on radial side.
(8) A circular collar of abrasion with variable distance in between on left wrist-joint.
' The Doctor opined that all the injuries were ante-mortem and caused by blunt weapons. Injuries Nos.1 to 5 were caused by heavy blunt weapons and the others by light blunt weapons and frictions. Injuries on the skull namely Nos.1, 2 and 3 caused damage to the vital organ (brain) with haemorrhage leading to hypovolumic shock which was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was within few minutes and between death and post-mortem within 24 hours.
' P.W.8 Dr. Muhammad Iqbal Javed also conducted autopsy on the dead body of Allah Bakhshai on the same day and found the following injuries on her person:-
(1) Large lacerated wound measuring 10 c.m. x 2 c.m. x bone deep with depressed fracture and brain matter coming out on right parietal region.
(2) Lacerated wound measuring 4 c.m. x 2 c.m. Bone deep with depressed fracture on left parietal region.
8. The learned trial Court after evaluating the evidence on record convicted and sentenced the appellant vide the impugned judgment.
9. I have heard the learned counsel for the parties at length, who have taken me through the record. The learned counsel of the appellant has criticised the evidence on record and stated that the deceased were done to death by the complainant party as they had seen them in the compromising position and the appellant had been made a scapegoat.
10. P.W.10 Dr. Muhammad Iqbal Javaid during post-mortem examination had sent two vaginal swa bs of Mst. Manzooran deceased to the Chemical Examiner and the saw vide his report Exh.PT were found to be stained with semen. Mst. Manzooran deceased was divorced by her previous husband who was living with her brothers with her 4 years child. The appellant who was living with the brother of the deceased Mst. Manzooran, demanded her hand which was refused and thereafter he was turned out from the house and Asghar All deceased had helped the complainant party in turning him out from the house. The appellant was turned out from the house alongwith the luggage who had threatened the complainant party as well as Asghar Ali deceased. P.W.5 Ahmad Yar complainant and P.W.6 Noor Ahmad are brothers of deceased Mst. Manzooran and their evidence cannot be thrown away or brushed aside on account of their relationship with the deceased. They had no animus against the appellant and motive to falsely involve 'him in the present case. The appellant had also fired at P.W.7 Muhammad Aslam and Maqsood P.W. (not produced) when they chased him while he was running away after the murder of Mst. Manzooran and Asghar All deceased. His fire missed. The appellant was apprehended alongwith pistol P12 and 4 live cartridges P13 to P16 on the arrival of P.Ws.5 and 6. P.W.9 Muhammad Yaqoob Inspector/S.H.O.
Secured 3 empties P18 to P20 from near the place of occurrence. He also secured Chadar P8 of Asghar Ali deceased which contained fireshot marks vide memo. Exh.PE. The report of the Forensic Science Laboratory Exh.PW is positive.
11. The appellant's niece Mst. Zahoor Mai is married with Allah Yar, brother of the complainant, and the complainant party could not think of falsely involving the appellant in the case. In the alternative it was also vehemently argued by the learned counsel for the appellant that the deceased were done to death by the appellant under grave and sudden provocation, as he witnessed them in compromising position. The appellant was not closely related to deceased Mst.
Manzooran and at the time of his formal arrest by P.W.9 Muhammad Yaqoob, S.H.O. He stated that he was innocent and was falsely implicated. It was also urged that the deceased were done to death by the complainant party and to save their skin they had falsely involved the appellant. Mst.
Zahoor Mai, the niece of the appellant who was married with Allah Yar, brother of the complainant, neither protested nor made any complaint about the false involvement of the appellant as well as the relations of Asghar All deceased. P.W.7 Muhammad Aslam was serving with Asghar All deceased, even he or near ones of Asghar Ali deceased had not protested on the false involvement of the appellant that the deceased was done to death by the complainant party. The appellant was apprehended at the spot by the P.Ws. And produced before P.W.9 who secured carbine Exh.PD from him as well as 4 live cartridges from his pocket. P.W.9 also secured empties from the spot. The parcels of empties and pistol were sent to the Forensic Science Laboratory and the report Exh.P.W. Thereof was positive.
12. The vaginal swa bs taken from Mst. Manzooran deceased were sent to the Chemical Examiner and whose report was Exh.PT as Mst. Manzooran deceased was a divorcee. She was murdered while lying on the cot in the house of her parents and nearby her brothers and other family members were sleeping. It was not possible for anyone to commit sexual intercourse with her in the presence of the P.Ws. Who were sleeping nearby. The dead body of Asghar Ali deceased was found at a distance of 52 Karams. Asghar Ali deceased is stated to have been shot at by the appellant when he was sleeping on the cot in his Ehata and after the receipt of fireshot he ran and fell at some distance and succumbed to his injuries. There is no iota of evidence on record that the deceased Asghar All and Mst. Manzooran had illicit liaison or they were witnessed by anybody or suspected to have illicit relations. P.Ws. 5, 6, 7 and 8 had no animus against the appellant and no motive whatsoever to falsely involve him in the present case. They had made their statements in a straightforward manner. P.W.5 and P.W.6 are brothers of deceased Mst. Manzooran. They are inmates of the house where Mst. Manzooran was done to death and were awakened on the barking of the dogs as they were sleeping nearby. They are natural witnesses. They had chased the appellant who had escaped from the scene and thereafter fired at Asghar All deceased, who also succumbed to his injuries after crossing some distance. Asghar All deceased had also helped in turning out, the appellant from the house who while going away had threatened the complainant party as well as Asghar Ali deceased with dire consequences. In the last it was vehemently urged that the ocular account is not in consonance with the medical evidence as the Doctor had stated during cross-examination that after receipt of injury, deceased Asghar All could not run. It is pertinent to mention here that the appellant fired at Asghar Ali and ran away, and he was already being chased by P.W.5, P.W.6 and others from the side where Mst. Manzooran was fired at by the appellant. P.W.7 Muhammad Aslam P.W. Maqsood Ahmad (not produced) present at a sufficient distance also ran towards the spot and in the circumstances, they might not have exactly observed as to how Asghar All deceased behaved after having been shot at. The appellant was apprehended at the spot by the P.Ws.
13. F.I.R. Exh.PD contains the name of the accused, the witnesses, the weapon carried by the accused/appellant and the manner in which the occurrence took place, all are given therein. The motive behind the occurrence stands proved. The ocular account is supported by the medical evidence, which is further corroborated by the recovery of the crime weapon from the appellant, who was apprehended at the spot. The empties had matched with the pistol P12 and the report of the Forensic Science Laboratory Exh.PW is positive.
14. Pursuant to the above discussion, I am of the view that the appellant was rightly convicted and sentenced and no exception can be taken to the impugned judgment. Resultantly this appeal fails and is dismissed.