1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,382 of 1999 filed by Ilyas son of Mahmood Nazir, Ali Sher, Allah Ditta, and Pehlwan all sons of Balia, appellants, who were convicted and sentenced by the learned Additional Sessions Judge, Burewala District Vehari vide his judgment dated 25-10-1999 as under:-
(1) All appellants, death under sections 302/149, P.P.C. Plus a fine of Rs,50,000 each, in default six months' R.I., the fine if recovered was ordered to be paid to the legal heirs of Dost Muhammad deceased as compensation.
2. ' Three years' R.I. Each under section 148, P.P.C.
2. Occurrence in this case had taken place at 1.30 p.m. On 27-9-1992 within the revenue estate of Chak No,49/AB at a distance of 11 miles from Police Station Fateh Shah, District Vehari, while the matter was reported to the police by Sarung Ali at 6-15 p.m. At Adda Khairwala vide a complaint Exh.P.A. And the formal F.I.R. Exh.P.A.1 was recorded by Riasat Ali Head Constable.
3. Briefly stated the facts of the case are that Sarung Ali was resident of Chak No,49/KB and was an agriculturist, Dost Muhammad son of Akbar Khan was son of his paternal uncle. On 27-9-1992 at 1.30 p.m. His brother Dost Muhammad who had gone to his cotton crop and while he had reached near the cotton crop came over there Muhammad Ilyas armed with hatchet, Nazar Muhammad armed with hatchet, Allah Ditta armed with Sotta, Pehlwan armed with Sotta and Ali Sher armed with Sotta, who were already in ambush in their cotton crop. Ilyas exhorted the co-accused to get hold of Dost Muhammad and do away with his life. Dost Muhammad raised alram upon which the first informant alongwith Gul Muhammad, Muhammad Amin and Shah Muhammad reached there is their presence. Ilyas inflicted hatchet blow at Dost Muhammad which hit him on the left side of his head. Nazar Muhammad gave a second blow with hatchet which hit on the right side of the head of Dost Muhammad and he fell down on the ground. While Dost Muhammad was on the ground, he was inflicted Sotta blow by Allah Ditta, who repeated the same which hit on the right side of head of Dost Muhammad. Pehlwan inflicted three sota blows which hit upon the eyes and head of the victim. The sota blows given by Ali Sher landed near the neck eyes, back and at the right of index finger of Dost Muhammad. On raising alaram by the complainant party the accused fled away while brandishing their arms.
3. ' The motive behind the occurrence was that the accused had suspected that Dost Muhammad deceased had illicit relations with the mother of Ilyas accused. Dost Muhammad was removed to hospital.
4. ' After registration of the formal F.I.R. A.S.I. Nasrullah investigated the case but since he had expired as such Muhammad Aslam Inspector P.W.8 appeared to depose secondary evidence to Nasrullah A.S.I. In his own statement. The said A.S.I. In consequence of the investigation went to the spot, took into possession blood-stained earth vide memo. Exh.P.H., prepared injury statement of Dost Muhammad Exh.P.K, he recorded the statements of the witnesses under section 161, Cr.P.C. Dost Muhammad injured subsequently, his inquest report Exh.P.M. Was prepared, then the investigation was taken over by P.W.8 Muhammad Aslam Inspector, he on 18-10-1992 arrested all the five accused persons, on 21-10-1992 Ilyas got recovered blood-stained hatchet P.9 which was taken into possession vide memo. Exh.P.E., after that Nazar Muhammad got recovered bloodstained hatchet P.5, taken into possession vide memo. Exh.P.F., on the same day, the sota P.6 recovered at the instance of Ali Sher was taken into custody vide memo. Exh.P.G., recorded the statements of P.Ws. And after completion of the investigation, prepared the final report under section 173, Cr.P.C., whereby all the five accused were challaned to face the trial.
5. ' At the trial, the prosecution in order to prove its case produced 9 P.Ws. Then the learned D.D.A.
6. Tendered in evidence reports of the Chemical Examiner and that of the Serologist as Exh P. P. , Exh. P .Q . , Exh .P. R and Exh.P.S. Respectively and closed the prosecution case, thereafter, the statements of the appellants were recorded under section 342, Cr.P.C. In which they claimed innocence. Two D.Ws. Were also produced by the accused in support of their defence version. After conclusion of the trial, all the five accused were convicted and sentenced as stated above.
7. ' Learned counsel for the appellants after having read the entire prosecution evidence and other relevant material available on record submits that the witnesses are chance witnesses and are related inter se, they are not resident of the place of occurrence and had come there in order to purchase a buffalo but the person from whom they had to make purchase did not meet them, F.I.R.
8. Was recorded at the spot after examination of the dead body and then fixing the responsibility falsely on each and every accused, conduct of the witnesses is not trustworthy. Both the parties had their land adjacent to each other, no recovery was effected from Allah Ditta and Pehlwan appellants, both Allah Ditta and Pehlwan were found to be innocent in five successive investigations, this fact has been stated by, the Investigating Officer at page 79 of the paper book, story of the defence is more plausible then the version of the prosecution, Mst. Sakina Bibi mother of Ilyas appellant has appeared as D.W.1 while Mst. Sharifan who used to live in the house of Mst.
9. Saleena arfd that of Muhammad Ilyas appeared as D.W.2, and that Nazar, Ali Sher, Allah Ditta and Pehlwan are real brothers inter se while Ilyas the other appellant is their cousin. Further submits that whole family of Balia has been involved in this case and the net has been spread widen so that no male member is left behind. Lastly, submits that the prosecution story is full of doubts and benefits .Of doubt has to be granted to the accused not as a grace but as a matter of right.
10. ' On the other hand, learned counsel for the State submits that it was a broad daylight occurrence, having taken place at 1-30 p.m.., parties were known to each so there was no question of mistaken identity, injuries on the person of the deceased are with two type of weapons, opinion of the police is not binding upon the Court, recoveries have been effected from Ilyas, Nazar and Ali Sher appellants and that the prosecution has been successful in proving the case to its hilt against the appellants.
11. ' We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. In the instant case, Nazar, Ali Sher, Allah Ditta and Pehlwan are real brothers inter se. Ilyas is their cousin, the motive behind the occurrence was that the appellants suspected Dost Muhammad deceased having illicit relations with the mother of Ilyas appellant and due to this grudge they committed the murder of the deceased. The motive thus, stands proved.
12. ' Although, there are 9 injuries on the person of the deceased with blunt weapon and two were incised wound but in our view, the net has been spread wide by the prosecution, inasmuch as, apart from Ilyas to whom the motive was attributed his four cousins, who . Were real brothers inter se have been, implicated. At this stage, we would like to reproduce the defence version taken by Ilyas appellant in reply to Question No,8 which reads as under:-- "I am absolutely innocent in this case and so are other co-accused. The fact of the matter is that my land and the land of Dust Muhammad deceased contiguous. My mother Mst. Sakina Bibi alongwith Mst. Sharifan Lukhveri wife of Chakar Joyia had gone to bring Bhosa. My mother started collecting Bhosa from the Thar (stack) and Mst. Sharifan Lukervi started cutting tire-wood from the twigs of sheshum lying near the Thar in my own cotton fields near the boundary watt of our lands.
13. When all of a sudden Dost Muhammad deceased with his nefarious intentions came there and forcibly tried to molest and drag my mother to a site at which my mother and Mst. Sharifan resisted but finding themselves helpless resorted to the hatchet blows and Danda blows to Dost Muhammad and also raised alarm. Dost Muhammad deceased of having sustained some injuries ran out of the fields and fell down a few paces away towards the south of that place in is open fields which had no crop therein.
14. ' Later on several persons gathered there and informed the relatives of Dost Muhammad who carried him in an injured condition to the Hospital. The police came there and started inquiring about the true facts and when my mother and Mst. Sharifan Lukhveri were being blamed for the injuries of Dost Muhammad, my elders like Sakandar Joya etc., asked me to take, the blame on my shoulders and to save my mother's honour and that of the family. I offered myself to stand by it and thus. I was taken into custody by the police there and then but later on the relatives of Dost Muhammad cost the net wide and my co-accused having no concern whatsoever with us were also named as accused in this case. Police had registered the case late after the post-mortem examination had been conducted. I am innocent."
15. ' To support his version, Ilyas produced his mother Mst. Sakina Bibi as D.W.1 and Mst. Sharifan Bibi was also produced as D.W.2. If both the versions one put forward by the prosecution and the other set forth by Ilyas appellant are put in juxta position, the version of the appellant being true cannot be ruled out.
16. ' There are two types of injuries on the person of the deceased Dost Muhammad. Ilyas and Nazar were carrying hatchets with them while Ali Sher was having a sota. Those were recovered from them. Allah Ditta and Pehlwan appellants were found innocent in five successive investigations.
17. Though the opinion of the police is not binding on the Court but in the peculiar facts and circumstances coupled with the additional factor that nothing was recovered from them, we acquit them of the charge by extending the benefit of doubt. To their extent, this appeal is accepted, conviction and sentence recorded against them by the learned trial Court are set aside, their death sentence is not confirmed and they shall be released forthwith is not requited to be detained in any other case. Murder Reference to their extent is answered in the negative.
18. ' Now we take up the case of Ilyas, Nazar and Ali Sher appellants. It was the case of the prosecution itself that Dost Muhammad deceased was carrying with the mother of Ilyas appellant. Mother of Ilyas appellant appeared as D.W. I while Mst. Sharifan who was also residing in the house of Ilyas deposed as D.W.2, so taking this fact into consideration and from a bare reading of the F.I.R. Itself, the prosecution had made it a case of mitigating circumstance against the appellants.
19. ' After going through the record, submissions made by the learned counsel for the appellants and perusal of the. F.I.R. Stating the motive for the murder of the deceased as to having the deceased illicit relations with mother of Ilyas appellant, though we maintain the conviction under section 302(B), P.P.C. But convert the same from death to imprisonment for life, no doubt, with the benefit of section .382-B, Cr.P.C. The amount of fine is, however, set aside. Murder Reference qua Ilyas, Nazar and Ali Sher is also answered in the negative and their death sentence is not confirmed.