The appellant was tried along with Mst. Safia Bibi widow of Sardar Ali, Mst. Alain Khatoon wife of Zulfiqar and Attar Khan son of Hakim Khan for committing the: murder of Sikandar Ali by Additional Sessions Judge, Mianwali for the offences under section 120-B read with section 302, P.P.C. Under section 302/34, P.P.C. The appellant was convicted on 30-3-1995 whereas his co-accused were extended the benefit of doubt and were acquitted The conviction of the appellant was recorded under section 302(b), P.P.C. And he was sentenced to life imprisonment and a fine of Rs.20,000 under section 544-A, Cr.P.C., as compensation to be paid to the legal heirs of the deceased, and in default of payment of the same he was 'to undergo further for six months. He was given benefit under section 382-B, Cr.P.C.
2. Briefly the facts leading to the registration of the case resulting in trial and conviction of the appellant are that Haji Mehboob Elahi reported the alleged occurrence having taken place at 12-30 a.m. On 3-10-1992 in the area of Dhoke Mehar Muhammad Dakhali Namal of Chakrala, District Mianwali. He stated that they were five brothers and Sardar Ali deceased was one of them. He was employed in the army and had arrived home on leave of two weeks at 10 p.m. On 30-9-1992. At about 12-30 a.m. On the night of occurrence he heard the cries of Sher Abbas, his brother, and Noor Bharri, his sister and went to the house of Sardar Ali and saw three sharp-edged injuries on his head; brain had come out of the injuries and was lying pool of blood on a cot in the courtyard of the house and breathed his lest when he reached there. Mst. Safia, his widow and his son of 1-3/4 years of age were present there but could not explain the identity of assailants and were keeping silent and as such he was of the strong suspicion that the murder of Sardar Ali had taken place on her abetment. After recording the F.I.R. Zafar lqbal, S.I./S.H.O. Proceeded to the spot, inspected the dead body, prepared the injury statement Exh.P.L., prepared inquest report Exh.P.M. And forwarded the dead body of Sardar Ali for post-mortem examination to the mortuary under the escort of Sardar Khan, Constable P.W. He inspected the spot, collected blood-stained earth and sealed the same into a parcel and secured vide memo. Exh.P.E. He also took into possession blood-stained cot P.1, Tullai P.2. And Pillow P.3 which were secured vide memo. Exh.P.F. He prepared rough site plan of the place of occurrence Exh.P.N. Sardar Khan P.W. Produced last-worn clothes Dhoti P.4 and vast P.5 of the deceased, which were secured, vide memo. Exh.P.G. He recorded the statements of the P.Ws.
And on 4-10-1992 Haji Abdul Qayyum produced Ruqqa P.B. And photograph P.C. Before him which were secured vide memo. Exh.P.D.
3. Mst. Safia Bibi was arrested on 5-10-1992, Ghulam Muhammad appellant was arrested on 12-10- 1992 and Athar Khan was arrested on 20-10-1992. On interrogation the appellant allegedly led to the recovery of hatchet P.6, blood-stained, from his residential house, and the same was made into a sealed parcel and secured vide memo. Exh.P.J. Rough site plan of the place of recovery was Exh.P.J./1.
4. He got prepared site plans Exh.P.A. And Exh.P.A./1 by Muhammad Shafique, draftsman and he gave his notes in red ink and signed the same. He recommended the discharge of Mst. Safia Bibi and Athar Khan accused from the case on 7-8-1993, as he had found them innocent in the case.
The arrest of Mst. Alam Khatoon was not affected but Mst. Safia. Bibi and Athar Khan and Mst. Alam Khatoon were summoned by the trial Court.
5. The appellant was challaned and was sent up to stand his trial before the Court of Session by a Magistrate having jurisdiction in the matter.
6. The trial Court framed charges against the appellant and his co-accused under sections 120-B and 302/34, P.P.C. On 27-3-1994. The charge was put to the accused who pleaded not guilty and claimed trial.
7. The prosecution produced Muhammad Shafique draftsman P.W.1 who had prepared site plans Exh.P.A. And Exh.P.A./1 after inspecting the spot 20' x 1". Mansab Khan P.W.2 stated that Haji Abdul Qayyum, P.W. Produced letter Exh.P.B. And the photograph Exh.P.C. In his presence before the Investigating Officer who secured the same vide memo. Exh.P.C. He identified the photograph as that of Mst. Bilqees, the wife of the appellant, Khuda Bakhsh P.W.3 had joined the investigation and blood-stained earth was secured in his presence vide memo. Exh.P.E. And the Investigating Officer had also taken into possession blood-stained cot P.1, blood-stained Tullai P.2 and blood-stained pillow P.3 vide memo. Exh.P.F. He attested the memos. He also identified the dead body of Sardar Ali at the time of post-mortem examination. Sardar Khan Constable P.W.4 escorted the dead body of Sardar Ali to mortuary at Mianwali and delivered the same intact and after the post-mortem examination he was given blood-stained Dhoti P.4, blood-stained vast P.5, the last-worn clothes of the deceased which he produced before the Investigating Officer and were secured through memo. Exh.P.G. He took the sealed parcel of earth from the police station to the office of the Chemical Examiner and delivered the same intact on 7-11-1992. Dr. Munawar Hussain Tabassum, P.W.5 conducted the post-mortem examination on the dead body of Sardar Ali. Three incised wounds were found on the head of the dead body by him and brain matter was found to be coming out in large amount from the three injuries. The cause of death in his opinion was gross damage of brain matter associated with haemorrhage caused by injuries Nos.1, 2 and 3 which were ante-mortem and caused with sharp-edged weapon and sufficient in the ordinary course of nature to cause death individually as well as collectively. Probable time between injuries and death was immediate and between death and post-mortem was 12 to 16 hours. Exh.P.H was the post- mortem report and Exh.P.H./l was' the sketch of injuries. Sher Abbas P.W.6 had joined the investigation on 19-10-1992 and in his presence hatchet P.6 was got recovered by the appellant, which was blood--stained and was secured vide memo. Exh.PJ. Yousaf P.W.7 stated that he was the son of the appellant and Mst. Alam Khatoon was his maternal-aunt, whereas Mst. Safla Bibi was the daughter of Mst. Alam Khatoon. Athar Khan accused was the son of paternal-aunt of Ghulam Muhammad appellant. He also stated that on 2-10-1992 he had gone to the house of his father, appellant, along with Ghulam Muhammad son of Sher Jhang where all the four accused were present. Ghulam Muhammad appellant asked the other accused that as the deceased Sardar Ali was out-raging the modesty of his family Mst. Alam Khatoon and Athar Khan should join in killing Sardar Ali, deceased. Alam Khatoon and Safia Bibi consented to help him. Ghulam Muhammad appellant then told Mst. Safia Bibi that he would get her remarried after the death of Sardar Ali and she would also be entitled to the pension of the deceased. Yaran P.W.8 stated that he along with Ata Muhammad was present in his Baithak at about 10 p.m. About two years earlier. Ghulam Muhammad accused came to him, who was a relation. He told him that Sardar Ali was carrying on with Mst. Bilqees and he along with Athar Khan had murdered Sardar Ali and asked him to get the matter patched up as both the parties were related to him. He refused on the ground that as the murder was recent in time and he could not get the matter patched up. Haji Abdul Qayyum P.W.9 stated that about 12-30 mid night of the occurrence he was driving his tractor towards the house of Mehboob Elahi. When he reached near the house of Khuda Bakhsh, Ghulam Muhammad, Athar Khan, having hatchets in their hands and their clothes having stains of blood, were running towards their house. He identified them in the headlights of the tractor. He parked his tractor in the house of Mehboob, reached the house of Sardar Ali and found the dead body of Sardar Ali in his house. Mehboob Ali, P.W. Had already gone to the police station. He admitted that he and Latif were taken to the police station by the police and were made to join the track parade on that day. He denied that he had produced the blood-stained hatchet and blood-stained clothes before the police and that they falsely implicated the accused persons. He also admitted that Mst. Safia was taken to the police station on 3-10-1992. Haji Mehboob Elahi P.W.10 was the first informant and he narrated the same story as given by him in the F.I.R. He stated admitted that the police visited the spot on 3-10-1992 and a tracker came to the spot to trace the footprints. Ghularn Muhammad and Ahmad Khan accused were taken to the police station after they joined track parade, which was conducted on 3rd day after the occurrence. War Iqbal, S.I./S.H.O P W.11 was the Investigating Officer.
8. The Public Prosecutor gave up Muhammad Altaf, Qadir, Ghulam Jellani Inspector, Muhammad Ishaq Sindhu D.S.P., Syed Ejaz Hussain, S.P. Crimes and Hafiz Ata Muhammad as unnecessary or. 13- 6-1994. Dr. Abdur Rauf P.W. Was given up as unnecessary on 6-11-1994. Ghulam Muhammad and Mst. Jawar Khatoon P.Ws. As unnecessary on 29-11-1994. The Public Prosecutor also gave up Allah Yar and Fateh Khan P.Ws. As unnecessary on 6-12-1994. He tendered in evidence reports of the Chemical Examiner Exh.P:O. And Exh.P.P. And that of the Serologist Exh.P.Q. And Exh.P.R. And closed the case for the prosecution.
9. The accused were examined under section 342, CrY.C. Mst. Safia Bibi made the following statement in answer to question No.6:-- "It is correct that my husband, before his murder, had come on 15 days' leave from Army but it is incorrect that he was murdered by Ghulam Muhammad and Attar Khan with my connivance.
Actually my deceased husband was murdered by Latif etc. Three accused persons of the cross-- complaint lodged by me and is pending adjudication before this Honourable Court. I and Zulfiqar my father were the eye-witnesses of the murder of my husband Sardar Ali at the hands of Latif etc. Above said who were variously armed with hatchet and axe and pistol. After the murder, on my hue and cry, Mahboob Elahi complainant and other persons arrived in my Haveli. I narrated the whole eye-witness account to Mahboob Elahi and asked him to accompany. Me to the police station for lodging report against Latif etc. Abovementioned. Mahboob Elahi pacified me by saying that whatever has been communicated to him he would report the matter against Latif etc. Abovementioned and thereafter I would be produced as a witness. One or two days after the occurrence I learnt that the real story of murder has not been reported by Mahboob Elahi to the police and I was taken by the police on the pretext of setting me up as a P.W. I was kept in the Thana and tortured by the police to compel me to depose against Ghulam Muhammad and Attar Khan and for that illegal purpose I was also taken to different places including Chashma Barrage where too I was tortured to toe the line of Mahboob Elahi. Upon my refusal I have been involved and arrested as an accused. Ghulam Muhattinad, Attar Khan and Mst. Alam Khatoon have also been falsely involved in this case. I tried my best to get Latif etc. Challaned through investigation but the police did not investigate the case on correct lines and ultimately I along with other my co-accused persons have been challaned. During investigation, 1, Attar Khan and Alam Khatoon were declared innocent and got discharged from the Court. After the bail, I flied complaint against Latif etc. Abovementioned about the murder of may deceased husband Sardar Ali in which Latif etc. Have been summoned and are facing trial. I am innocent. The police in connivance with the complainant has wrongly reported the matter and investigated the case and ultimately challaned me as well as my co-accused and cried to spoil the case of murder of my deceased husband. "
Athar Khan and Alam Khatoon denied all the questions and pleaded innocence. Ghulam Muhammad gave the following answer to question No.9:-- "I have been falsely involved in this case by the complainant because he wanted to save relations Latif etc. Accused of the cross-complaint case. Latif etc. Are the real murderers of the deceased and Mst. Safia Bibi co---accused being wife of the deceased and eye-witness of the, occurrence has also been involved in this case along with me so that evidence of murder should be spoiled. All the P.Ws. Are inter se related and inimical to me due to the reason that Muhammad Yousaf P.W.
Who is my son is also inimical towards me. The P.Ws. Except the complainant have been set up as witnesses much after the occurrence in order to save Latif etc. Above said."
All the accused denied to appear on oath to make statement under section 340(2), Cr.P.C.
However, they produced defence. Zulfiqar 1).W.1 stated that on the night of occurrence he heard the cries of Mst. SaPia Bibi, his daughter and went to her house. He saw Qayyum, Latif and Altaf c,)ming out of the house of Sardar Ali deceased and saw them crossing the Galla of the deceased's house.
Latif was armed with axe, Qayyum with hatchet and Altaf was having a pistol. He went inside the house where he saw the deceased breathing his last. Mst. Safia Bibi accused told him that she was present on her cot with her child and woke up on the noise and saw that Latif was standing, armed with axe, by the head side of the deceased and Qayyum was standing towards his legs whereas Altaf was also present there, who threatened her. She gave the details of occurrence. After his arrival the parents of the deceased also came there and so did Mehboob complainant. Mst. Safia narrated the whole occurrence to them and offered to go to the police station to make a report whereupon Mehboob said that he would accompany her. She was sent back to the house and Mehboob alone went to the police station. He produced Mst. Safia Bibi before the police who wanted to make statement about the occurrence but she was taken to the police station on the assurance that her statement shall be recorded and case would be registered against Qayyum etc. But he was made to stay in the Thana. He stated that the accused of the case were not the culprits. Mansab Khan P.W.2 also made a statement in defense of Ghulam Muhammad appellant.
Mst. Safia Bibi tendered in evidence copy of the complainant filed by her against Latif etc. Exh.D.B., certified copy of the interim order Exh.D.C.; copy of the order dated 25-8-1992 Exh.D.D. And the certified copy of the application of discharge dated 7-8-1993 Exh.D.E and also relied on order made by Judicial Magistrate on the application of physical remand regarding Athar Khan, accused.
10. The trial Court disbelieved Yousaf P.W.7 who had made a statement regarding conspiracy. The Trial Court also disbelieved the evidence of Wajtakkar as stated by Haji Abdul Qayyum P.W.9 who was believed only to the extent of his production of Exhs.P.B. And P.C. And the attestation of memo.
Exh.P.D.
11. I have heard the learned counsel for the parties at length and have been taken through the prosecution evidence. So far as the evidence of P.W.5 is concerned the same relates to the injuries on the person of the deceased and is not material for the disposal of points raised by the learned counsel for the parties and is allowed to stand.
12. The prosecution produced evidence of Wajtakkar through Haji Abdul Qayyum, which was disbelieved. The allegation of conspiracy was also disbelieved and now we are left with the evidence of recovery, evidence of extra judicial confession and motive.
13. The motive alleged against the petitioner was sought to be proved through Mansab Khan P.W.2 in whose presence Haji Abdul Qayyum P.W.9 produced the letter and the photo of the wife of the appellant. The photographs etc. Were taken into possession vide memo. Exh.P.L. And P.W.9 stated that he had taken out those two articles from the box of the deceased after the occurrence. P. W.2 stated in the cross-examination that the letter and photographs were produced by Abdul Qayyum P.W.9 at about 9-30 a.m. On 4-10-1992. He admitted that he had not seen the envelope of the letter nor the wrapper of the photograph. Nobody was called by the police to get the handwriting identified nor the specimen were taken at the spot. The letter is alleged to have been written by Bilqees, the wife of the appellant but no proof whatsoever has been produced to connect the writing with Mst. Bilqees.
P.W.9 Abdul Qayyum was disbelieved by the trial Court on the factum of Wajtakkar but had believed the said witness on the question of motive. Even if it be assumed that letter Exh.P.B. And photograph Exh.P.C. Were produced before the police by Haji Abdul Qayyum the same was not sufficient to prove that these two articles were in fact found by Abdul Qayyum P. W in the box of the deceased. The witness who had been partly disbelieved by the trial Court suffers from the discredit and cannot be believed that he in fact had taken out these articles from-the box of the deceased.
No other witness has supported him to this effect and, therefore, the preparation of memo. Exh.P.D.
And attestation of the same by Mansab Khan, P.W. Is of no help to the prosecution The story of motive appears to be an afterthought and is disbelieved and also in view of the fact that the luggage of the deceased including the box was brought by the Army Personnel two weeks after the occurrence and was delivered in the village. This was admitted by Sher Abbas P.W.6 whereas the Investigating Officer has stated that Exh.P.D. Was prepared on 4-10-1992 i.e. Next day after the occurrence. The mala fides ofthe investigation are very clear and show that there was a strong motive on the part of Abdul Qayum and his relative to involve to involve the appellant in the case and they had tried to fabricate the evidence against the appellant.
Hatchet P.6 was allegedly recovered by the investigating officer on 19-10-1992 at the instance of the appwllant. Sher Abbas P.W. 6 had attested the recovery memo. Exh. P.J The second witness of recovery was Muhammad Altaf who has not been produced by the prosecution. Sher Abbas was the real brother of the deceased and that of the first informant. The witness has admitted that there were 3/4 rooms of the house of Ghulam Muhammad accused and his brothers also resided in the same compound. This excludes the exclusive possession of the appellant of the place of recovery. A doubt has cropped in my mind while discussing the recovery of Exh.P.B. .And Exh.P.C.
And recording veracity of the investigation. The fact that the tracks were covered, police reached the spot and Shah Nawaz tracker was brought to the spot and Abdul Qayyum P.W.9 and the accused in the complaint case were made to parade as suspects, sufficiently shows that the complainant was not sure about the actual culprits. It was thus Abdul Qayyum who became the champion of the prosecution case, while becoming a witness of Wajtakkar and production of the alleged incriminatory letter and the photograph. The conduct of the Investigating Officer was not above board and in view of the fact that the disclosure regarding the blade of the hatchet P.6 was not made in his presence and that he was present in the house of the accused at the asking of the police and had joined the police I from his house whereas the accused was brought from the police station in custody for the purpose of recovery. P.W.6 Sher Abbas has not stated in his evidence that the appellant had made a disclosure regarding the weapon of offence and only stated that he had led the police to his residential house and got recovered the blade P.6. This does not connect the appellant with the commission of crime, recovery thereof notwithstanding although the same has also not been proved through an independent source. .
Yaran P.W.8 was the witness of extra judicial confession. According to him Ghulam Muhammad accused had come to him while he was sitting along with Ata Muhammad P.W. (not produced) in his Baithak and informed them that Sardar Ali was carrying on with Mst. Bilqees and he along with Athar Khan murdered Sardar Ali and requested him to get the matter patched up. During the cross-examination the witness admitted that Sardar Ali deceased was the son of his real sister. He was very closely related to the deceased and other P.Ws. Athar Khan given up P.W. Was the real brother of P.W.8. The witness further stated "the tracker was called by the police and they traced Ghulam Muhammad and Athar Khan accused as the culprits". This part of his statement was destructive of the story of extra-judicial confession. If the appellant was picked by the tracker as an accused person on the day following the day of occurrence, there was no time as 10 p.m. Between the time of occurrence and the time of the track parade which could be taken as 10 p.m., the time of the making of confession by the appellant. Either of the two stories of the track parade and picking up of appellant as culprit and the making of extra judicial confession. He also stated in his evidence before the Court that on 4-10-1992 he had appeared before the police to make the statement at 9 a.m. Whereas it is the common version of the prosecution witnesses that tracker was called on the day following the night of occurrence i.e. 3-10-1992. P.W.8 is thus brazen faced liar and was owning two self-destructive versions against the present appellant. I disbelieve P.W.8 and thus I am not prepared to rely on the alleged evidence of extra judicial confession.
In view of what has been stated above the prosecution story was not only full of contradictions but was comprised of self-destructive admitted version. The prosecution has miserably failed to prove the case against the appellant beyond reasonable doubt. The co-accused of the appellant were acquitted by the trial Court and the witnesses of the prosecution were disbelieved to their extent.
There is no reason for me to believe the half-truth of the P.W. Against the appellant. 1 extend the benefit of doubt to the appellant, accept his appeal and set aside his conviction recorded by Additional Sessions Judge, Mianwali on 30-3-1995. He shall be released forthwith if not required in any other criminal case.
H.B.T/G-318/LAnneal accented