' MIAN ABDUL KHALIQ, J.---Usman son of Sabzal, Nawab son of Saleh Muhammad, Mehar son of All Sher, Mitha alias Mithu son of Khameesa, Ali Sher son of Mahboob, Qadir Bakhsh alias Mithu son of Khameesa and Hoat son of Sikkin Ladha were tried by the learned Additional Sessions Judge, Rahimyar Khan, who vide his impugned judgment, dated 4-5-1992 convicted and sentenced Usman, Nawab appellants and Hoat co-accused under section 148, P.P.C. To undergo 3 years' R.I.
Each and a fine of Rs,1,000, in default whereof to suffer 3 months' R.I. Each. Usman, Nawab and Hoat accused were also tried under section 302/149, P.P.C. For the murder of Baddal deceased. Usman and Nawab appellants were found guilty and were convicted under section 302/149, P.P.C. Usman appellant was sentenced to death and a fine of Rs,50,000, in default whereof to suffer 5 years' R.I.
And Nawab appellant was sentenced to imprisonment for life and a fine of Rs,30,000, in default whereof to undergo 3 years' R.I. Further. Usman and Nawab appellants were also convicted and sentenced for the murder of Lakhan deceased to undergo imprisonment for life each and a fine of Rs,30,000 each, in default whereof to suffer 3 years' R.I. Each. The fine, if realized, whole was directed to be paid to the legal representatives of Baddal and Lakhan deceased. Hoat and Qadir Bakhsh, co-accused were tried for the murder of Boral deceased. Qadir Bakhsh was acquitted by the Court and Hoat co-accused, was acquitted due to compromise in respect of triple murder because he had been pardoned by the legal heirs of the deceased persons except the commission of rioting.
Usman, Nawab appellants, Hoat co-accused, and Mir Khan and Ahmad Din absconder-accused were found guilty of the murder of Baddal deceased and that they were convicted under section 302/149, P.P.C. Co-accused Ali Sher, Mehar, Mitha and Qadir Bakhsh were acquitted, whereas Hoat co-accused was acquitted due to compromise. Mir Khan and Ahmad Din co-accused had absconded. Sawan was also involved by the complainant, but he was discharged by the police.
Neither he was summoned by the Court nor any private complaint was filed by the complainant against him. Usman and Nawab appellants have filed Criminal Appeal No,40 of 1992/BWP, whereas Usman appellant had filed Criminal Appeal No,51/1992 through jail. The learned trial Court has also sent Reference under section 374, Cr.P.C. Both the appeal and the Murder Reference shall be decided together by this judgment. The sentences were directed to run concurrently and if death sentence was not confirmed, both the appellants were to be extended the benefit of section 382-B, Cr.P.C. All Sher, Mehar, Mitha and Qadir Bakhsh co-accused who were acquitted vide the impugned judgment, were issued suo motu notice by this Court. Mehar (acquitted co-accused) has since died as reported and proceedings against him are abated. Ali Sher, Mitha and Qadir Bakhsh co- accused are represented by their learned counsel. No suo motu notice was issued to Hoat (acquitted co-accused) as he was acquitted due to compromise.
2. The case of the prosecution in brief as unfolded in the F.I.R. Exh.PQ recorded under sections 148, 149 and 302, P.P.C. At Police Station Kot Sabzal on 5-10-1984 at 3-00 p.m. Recorded by P.W.14, S.I.
Dalil Khan on the complaint of P.W.7 Bradi, was to the effect that the complainant was resident of Mauza Muradpur Goath Bahar and was a cultivator, and on the day of occurrence at about 12-30 p.m. (day time) he alongwith Lakhan deceased, Tillan (P.W.8), Baddal son of Dodha deceased and Bhoral son of Qabal aged 11/12 years (deceased), Sher Muhammad P.W. (given up) and Wandal son of Dodha (given up) all Chachar by caste, residents of the village, reached in their ancestral graveyard in village Shahpur for putting water on the graves, as it was 9th of Moharram-ul- Haraam. Besides them many other persons were also watering the graves of their ancestors.
Meanwhile Mir Khan, Ahmad Din co-accused (absconders) and Usman son of Sabzal appellant armed with guns, Mehar co-accused son of All Sher, Mitha son of Khameesa, Ali Sher son of Mahboob (co-accused), Nawab son of Saleh Muhammad appellant, Qadir Bakhsh alias Mithu son of Khameesa (acquitted co-accused) armed with hatchets, Hoat son of Sikkin Ladha (acquitted co-accused) armed with hatchets and an unknown person armed with a rifle, all Chachar by caste, residents of Mauza Muradpur, after making consultation, in prosecution of their common object, reached and raised Lalkara that they had come to take revenge of their innocent murders, on which Mir Khan (absconder) fired at Lakhan deceased and Ahmad Din (absconder) fired at Bhoral deceased. The complainant alongwith Baddal deceased and Tillan due to fear ran, but Usman appellant fired with his gun at Baddal deceased, who fell with his face downward. Littoral and Lakhan deceased also fell. Mehar son of All Sher, Mitha son of Khameesa, All Sher son of Mahboob (acquitted co-accused), Nawab son of Saleh appellant, Lakhan, Hoat son of Sikkin Ladha and Qadir Bakhsh alias Mithu (acquitted co-accused) with their hatchets continued inflicting injuries on the deceased. The unknown person fired at the complainant which was missed. The P.Ws. Raised alarm, on which Mehrab P.W. Son of Khair Muhammad (given up), Dhani Bakhsh P.W.
Son of Mangla (given up) and many other persons who were already present in the graveyard, reached running, but the accused witnessing them approaching while brandishing their respective weapons of offence ran saying that they had taken the revenge of murders of Imam Din and Arbi.
Lakhan, Baddal and Bhorai deceased succumbed to their injuries at the spot. Leaving behind the P.Ws. To guard the dead bodies, P.W.7 Bradi reached the police station and lodged F.I.R. Exh.PQ.
3. P.W.14 Dalil Khan S.I. After recording F.I.R. Reached the spot, prepared rough site plan Exh.PAA on the pointation of P.Ws. He prepared injury statements of Bhoral, Baddal and Lakhan deceased Exhs.PX/3, PZ/3 and PY/3 respectively and despatched the dead bodies to the mortuary. He secured blood-stained earth from three places where the dead bodies were lying vide memos Exhs.PR, PS and PT and made sealed parcels. He seized three empty cartridges P18/1-3 of .12 bore vide memo.
Exh.PU from near the dead body of Baddal deceased. He also secured a live cartridge .12 bore therefrom. He secured three empties from near the dead bodies of Lakhan and Bhoral P19/1-3 i,e, empties of .12 bore cartridges and also secured one live bullet .7 mm P20 and one empty of .7 mm P21 therefrom vide memo. Exh.PV. He prepared separate sealed parcels. He arrested on 27-11-1984 accused All Sher, Nawab Qadir Bakhsh, Usman, Mitha and Mehar. Mir Khan and Ahmad Din accused absconded and were declared absconders. Nawab appellant on 8-12-1984 led to the recovery of hatchet P15 (not blood-stained) from his residential Kotha, which P.W.14 Dalil Khan S.I.
Secured vide memo. Exh.PN. Usman appellant led to the recovery of gun .12 bore P17 from his residential Kotha, which P.W.14 secured vide memo. Exh.PO. The co-accused had also led to the recoveries of their respective weapons.
4. On 6-10-1984 Dr. Abdul Wahab (P.W.10) conducted autopsy on the dead body of Bhoral and found six incised wounds 2'-7" x 1' x bone deep on the left side of head, face and neck cutting the skull, cervical vertebrae, spinal cord and blood vessels. In this case, no fire-arm injury was noted as alleged in the inquest report. D.S.P. Sadiqabad was informed accordingly. He opined that the cause of death was haemorrhage and cutting of brain, spinal cord from injury No,1 caused by sharp- edged weapon. All the injuries collectively and individually were sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem. The probable duration between injuries and death was instantaneous and between death and post-mortem was 12 to 24 hours.
' On the same day P.W.10 Dr. Abdul Wahab also conducted postmortem examination of the dead body of Lakhan deceased and found the following injuries on his person:---
(1) Four incised wounds 4" x 8" x 1" x bone deep on the left side of face and neck, transversely cutting the skull, left ear, vertebrae, spinal cord and blood vessels.
(2) An incised wound 2" x 1/2" x bone deep on the left eye.
(3) An incised wound 1-1/2" x 1/2" x bone deep on the left side of head and forehead 2" above the left eye-brow.
(4) An incised wound 2" x 1/2" x scalp deep on the right side of head anteroposteriorly.
' No fire-arm injury was noted on the deceased as alleged in the inquest report. D.S.P. Sadiqabad was informed accordingly. In the opinion of the Doctor, the cause of death was haemorrhage and cutting of spinal cord from injury No,14 caused by sharp-edged weapon. All the injuries collectively and each component of injury No,1 individually were sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem. The probable duration between injuries and death was instantaneous and between death and post-mortem was 12 to 24 hours.
' On the same day the same Doctor conducted autopsy on the dead body of Badal and found the following injuries on his person:---
(1) A lacerated wound of entry on the back and left side of neck and shoulder 1" in diameters.
Margins blackened having 4 lacerated wounds exit 1/3" - 2/3" in diameter on the neck.
(2) 2 incised wounds 5" and 7" x 1" bone deep on the left side of head, face and neck cutting the skull, cervical vertebrae, spinal cord, blood vessels.
(3) An incised wound 1" x 1/5" x bone deep on the left fore-arm lower part. Left ulna was cut.
' Food and wind pipe blood vessels and face were cut. In his opinion, the cause of death was injury No,1 due to haemorrhage and cutting of spinal cord. Injury No,1 was by fire-arm. Injuries Nos.2 and 3 were by sharp-edged weapons. All the injuries collectively and injuries Nos.1 and 2 each component, were sufficient to cause death in the ordinary course of nature. The injuries were ante- mortem. Probable duration between injuries and death was instantaneous and between death and post-mortem was 12 to 24 hours.
5. The accused were challaned and sent up for trial. Charge under sections 148/149, 302/149, 302/149 and 302/149, P.P.C. Was framed, to which they denied and claimed trial.
6. The prosecution examined 14 P.Ws. In all to substantiate its case. P.W.7 Bradi and P.W.8 Tillan stated the motive behind the occurrence i,e, that the triple murder was the revenge of the murders of Imam Din and Arbi deceased, the relatives of the accused. The ocular account was furnished on record by the statements of P.W.7 Bradi and P.W.8 Titian. The medical aspect of the case was stated by P.W.10 Dr. Abdul Wahab, who had conducted autopsy on the dead bodies of three deceased persons. The recovery aspect was stated by P.W.7 Bradi and P.W.14 Dalil Khan S.I.
7. The appellants when examined under section 342, Cr.P.C. Denied the prosecution evidence against them and also recovery of .12 bore gun P17 and hatchet P12 at the instance of Usman and Nawab respectively. They stated that they had been involved due to previous enmity and suspicion and were innocent. They neither produced evidence in defence nor made statements on oath.
8. We have heard the learned counsel for the parties at length. The learned counsel for the appellants took us through the entire record and in his submissions at the Bar criticised almost all the items of evidence of the prosecution.
9. The motive behind the occurrence was narrated by P.W.7 Bradi in the F.I.R. Exh.PQ to be the revenge of the murder of Imam Din and Arbi. P.W.7 Bradi before the trial Court also corroborated the motive aspect of the case stated in F.I.R. P.W.8 Tillan stated that the accused had murdered three deceased persons by claiming revenge of the murder of Imam Din and Arbi, who were closely related to the accused persons. P.W.7 Bradi during cross-examination admitted to be correct that enmity existed between Usman and his brothers on the one side and the complainant party on the other, prior to the present occurrence. All the accused are closely related inter se who were also enemies of the complainant party because of their relationship with Usman appellant.
Though there was no litigation with the accused except Usman appellant and his brothers. P.W.8 Tillan stated during cross-examination that it was correct that Arbi, brother of Usman was murdered prior to this incident and P.W.8's maternal-nephew Shall and P.W.8's son Ishaq were challaned. He further stated that it was correct that his son Ishaq and Mahboob were involved in the murder case of Imam Din. His son Ishaq was involved in the case of Ishaq. He also stated that in all the aforesaid three cases neither Lakhan nor his sons were involved and it was also correct that in all three cases P.W.8's sons were involved. There was long-standing enmity between him and the accused persons. The motive is a double-edged weapon.
10. The ocular account has been furnished on record by the statements of P.W.7 Bradi and P.W.8 Tillan. P.W.7 Bradi lodged F.I.R. Exh.PQ and had stated that on the day of occurrence at the relevant time he alongwith Bhoral and Baddal and Lakhan deceased, Tillan (P.W.8), Sher Muhammad and Wandal P.Ws. (given up) went to the graveyard in Mauza Shahpur for putting water on the graves and it was 9th of Moharram. At that time Mir Khan, Ahmad Din (both absconder accused) Usman appellant armed with .12 bore gun, Mitha, Mehar, Ali Sher, Qadir Bakhsh alias Mithu, Hoat (acquitted co-accused) and Nawab appellant armed with hatchets alongwith one unknown person armed with a rifle, reached. The accused raised Lalkara that none of them would be spared and they would take revenge of the murder of Imam Din and Arbi. Mir Khan fired at Lakhan deceased, Ahmad Din fired at Bhoral and Usman fired at Baddal deceased. Lakhan deceased fell on the ground, whereupon Ali Sher (acquitted co-accused) and Nawab appellant caused hatchet injuries to him. Bhoral deceased also fell on the ground, whereupon Hoat and Qadir Bakhsh alias Mithu caused hatchet injuries. Baddal deceased also fell on the ground, who was given hatchet blows by Mehar and Mitha (acquitted co-accused). The unknown assailant fired with his rifle, but it missed.
Baddal, Bhoral and Lakhan deceased died at the spot. The occurrence was witnessed by Mehrab, Dhani Bakhsh, Wandal and Sher Muhammad. P.W.8 Tillan corroborated the statement of P.W.7 Bradi and stated that Mir Khan fired at Lakhan deceased who fell on the ground and Ali Sher and Nawab accused caused hatchet blows to Lakhan deceased. Ahmad Din also fired at Bhoral, who fell on the ground, whereupon Qadir Bakhsh and Hoat caused hatchet blows. Usman appellant fired with his gun at Baddal deceased, who fell on the ground and Mitha and Mehar accused inflicted hatchet blows to him. All the three deceased succumbed to their injuries at the spot. The unknown assailant fired with his gun which did not hit anybody. Dhani Bakhsh and Mehrab P.Ws. Also reached the spot and witnessed the occurrence. P.W.7 Bradi and P.W.8 Tillan, the only eye-witnesses produced by the prosecution are real brothers of Lakhan deceased. P.Ws. Sher Muhammad, brother-in-law of deceased Lakhan, Mehrab an independent witness, Wandal, brother of Baddal deceased, Dhani Bakhsh, another independent witness, all eye-witnesses were not produced by the prosecution.
P.Ws. Sher Muhammad, Mehrab and Dhani Bakhsh were given up as having been won over. It is pertinent that P.Ws. Sher Muhammad, Mehrab, Wandal and Dhani Bakhsh were not produced by the prosecution as they were not willing to support the prosecution version. P.W.7 and P.W.8 are real brothers of deceased Lakhan, but their Statements cannot be relied upon unless corroborated by independent strong evidence.
11. The medical aspect of the case was furnished on record by P.W.10 Dr. Abdul Wahab, who had conducted autopsy on the dead bodies of deceased Bhoral and Lakhan and had found no fire- arm injury on their dead bodies. P.W.7 and P.W.8 have unanimously stated that Bhoral and Lakhan deceased had received fire-arm injuries at the hands of Ahmad Din and Usman accused. It is pertinent to mention here that S.I. Dalil Khan (P.W.14) had mentioned fire-arm injuries in the inquest reports Exhs.PX/2 and PY/2 of Bhoral and Lakhan deceased respectively caused by Ahmad Din and Usman. The ocular account furnished on record by the statements of P.W.7 and P.W.8 is not in consonance with the medical evidence stated by P.W.10.
12. The recovery aspect of the case has been stated by P.W.5 Qabil P.W.7 Bradi and P.W. 14 S.I. Dalil Khan. P.W.14 on the day of occurrence i,e, 5-10-1984 had secured blood-stained earth from the places of the murder of Bhoral, Baddal and Lakhan vide memos. Exhs.PR, PS and PT respectively. He also secured 3 empties of .12 bore cartridges P1-3 from a distance of one Karam from near the dead body of deceased Baddal vide memo. Exh.PU. He also secured 3 empties of 7mm P20/1-3 and an empty to 7mm. P21 from near the dead bodies of Lakhan and Bhoral deceased. Vide memo.
Exh.PV. He had prepared the sealed parcels of the empties. P.W.5 Qabil had witnessed the recovery of hatchet P15 at the instance of Nawab appellant on 8-12-1984 secured vide memo. Exh.PM. Usman appellant on 8-12-1984 led to the recovery of .12 bore gun P17 from his house which was witnessed by P.W.5 Qabil. Accused Mehar, Hoat, Mithu, All Sher and Qadir Bakhsh had led to the recoveries of hatchets P11, P12, P13, P14 and P16 which were secured vide memos. PH, PJ, PK, PL and PM respectively.
The murders took place on 5-10-1984, whereas the recoveries were effected on 8-12-1984 after more than 2 months of the occurrence. It is surprising that neither in the memos. Nor in his statements under section 161, Cr.P.C. And P.W.14 S.I. Dalil Khan had not stated before the trial Court that the hatchets were blood-stained, but the reports of the Chemical Examiner Exh.PDD and that of the Serologist Exh.PEE were positive. The sealed parcels were sent on 24-4-1985 to the office of the Chemical Examiner and received on 3-7-1985. The parcels were received in the office of Serologist on 22-7-1985 i,e, after the lapse of a period of more than 8 months of the occurrence.
P.W. 14 S.I. Dalil Khan had secured from the spot empties on 5-10-1984 i,e, on the day of occurrence and had prepared the sealed parcel of the same. Usman appellant is stated to have led to the recovery of .12 bore gun on 8-12-1984. The sealed parcels of empties and gun were received in the office of Director, Forensic Science Laboratory, Punjab Police, Lahore on 19-8-1985 through Abdul Latif Constable. The parcels of the empties and the gun were sent to the Forensic Science Laboratory after the lapse of a period of about '10 months. The parcels of the empties and the gun were sent together. Neither Abdul Latif Constable, who had delivered parcels in the office of Forensic Science Laboratory nor any other police official who had kept the same in the Maalkhana has been produced by the prosecution as well as the delay in sending the parcels to the Forensic Science Laboratory has not been explained. P.W.5 Qabil who witnessed the recovery of .12 bore gun at the instance of Usman appellant is father of Bhoral deceased. The trial Court had rightly disbelieved the recovery aspect of the case. The dead body of deceased Baddal was found by P.W.14 S.I. Dalil Khan on his first visit to the place of occurrence at a distance of 3-1/2 acres from the dead bodies of Lakhan and Bhoral deceased. P.W.9 Arshad Mahmood Patwari also stated during cross-examination that it was correct that Baddal was murdered at a distance of 3-1/2 acres from the place of murder of Lakhan and Bhoral, which is adjacent to each other and it was correct that only Dhani Baksh and Wandal P.Ws. (given up) witnessed the murder of Baddal deceased and none else, and they had stated to have seen the murder of Baddal before P.W.9 Arshad Mahmood Patwari. Sher Muhammad P.W. (given up), Tillan (P.W.8) and Dhani Bakhsh P.W. (given up) witnessed the commission of murder of Lakhan and Bhoral. One or two P.Ws. Who pointed out to him all the places mentioned in the site plan Exh.PW, he did not know their names. There was a jungle, again stated bushes between points Nos.1, 2 and 3 mentioned in Exh.PW, some were high and some were short and there was a Basti at a distance of one Kanal from point No,3. Neither P.W.7 nor P.W.8 stated that Baddal was murdered at a distance of 3-1/2 acres from the place of murder of Lakhan and Bhoral. P.Ws. 6 and 7 have stated that at the time of incident, other persons were also present in the graveyard and none of them had been produced. P.W.7 during cross- examination stated that he had not stated before the police that All Sher, Mehar, Mithu and Qadir Bakhsh co-accused were innocent. P.W.13 Naseer Ahmad Inspector during cross-examination stated that on 18-7-1985 many persons joined the investigation and he had declared the involvement of Mitha, All Sher, Nawab, Mehroo, Qadir Bakhsh and Hoat accused in the case doubtful as having been involved by the complainant on account of previous enmity. P.W.14 Dalil Khan S.I. Stated during cross-examination that some respectable persons appeared before him and stated about the innocence of Ali Sher, Nawab, Qadir Bakhsh and Hoat and on 4-12-1984 Tillan, Sher Muhammad, Wandal and Mehrab P.Ws. Had joined the investigation alongwith 8 other persons and they all stated that the abovementioned accused persons were innocent.
13. Suo motu notice was issued by this Court against acquittal of All Sher, Mehroo (since died), Mitha and Qadir Bakhsh co-accused and after hearing the learned counsel for the parties and perusing the record, we are of the view that they were rightly acquitted and their acquittal was neither perverse, foolish or shocking to mind and in the circumstances, suo motu notice issued to them is withdrawn.
14. The accused party had a strong motive for the murder of P.W.8 Titan, but no attempt was made by any of the accused on his life, although he was stated to be present there i,e, near the place of occurrence. The evidence of P.W.8 is not supported and corroborated by any independent evidence on record. Arbi, brother of Usman appellant was murdered prior to the incident and P.W.8's nephew Shafi and son Ishaq were challaned. His sons Ishaq and Mahboob were involved in the murder of Imam Din. P.W.7 Bradi and P.W.8 Tillan had strong enmity with the accused party. The eye-witnesses mentioned in the F.I.R. Including Sher Muhammad, brother-in-law of Lakhan deceased, Wandal, brother of Baddal deceased, Dhani Bakhsh and Mehrab, independent witnesses were not produced by the prosecution as well as none of the persons present at the time of occurrence in the graveyard. The motive is a double-edged weapon. The ocular account furnished on record by the statements of P.W.7 and P.W.8 who are real brothers of deceased Lakhan is not supported by any independent witness. The ocular account is not in consonance with the medical evidence. The recovery aspect has also been disbelieved by trial Court.
15. Pursuant to the above discussion, we hold that the prosecution has failed to establish its case beyond doubt against the appellants and giving them benefit of doubt, we acquit them of the charge. The appellants are in jail, who shall be released forthwith, if not required in any other case.
The death sentence is not confirmed.