1. ' BASHIR A. MUJAHID, J.-- Muhammad Ibrahim son of Muhammad Sharif, Akbar alias Baggu son of Ibrahim, Ayub alias Kalu son of Muhammad Sharif and Muhammad Ismail son of Ishaque have challenged judgment dated 4-7-1997 passed by the learned Additional Sessions Judge, Gojra whereby they were convicted under section 302/34, P.P.C. For commission of murder of Riaz and Muhammad Akbar alias Baggu was sentenced to death while Muhammad Ibrahim, Ayub and Ismail were sentenced to imprisonment for life with benefit of section 382-B, Cr.P.C.
2. ' Briefly stated the facts of the prosecution case are that Abdul Wahid P.W.6 got his statement Exh.P.0 recorded with Muhammad Rashid, S.I. P.W.9 at 1-30 a.m. At Tehsil Chowk, Gojra during the night of 14-5-1995 on the basis of which F.I.R. No,142 of 1995 Exh.P.C/1 was, registered at Police Station Sadar Gojra at 1-30 a.m. On the same day about the occurrence stating therein that out 13- 5-1995 at Eisha Wela Allah Ditta and Waris Ali sons of Allah Rakha were sitting in the house of his maternal uncle Muhammad Ramzan and were busy in talking; Electric bulb was also on when they all of a sudden heard noise from the neighbouring house of Muhammad Ibrahim accused. The complainant and the P.Ws. Witnessed over the wall and saw that hands of Riaz brother of the complainant had been tied with a string from backside and Ibrahim armed with Sota, Akbar, Ayub and Ismail armed with hatchets were present near Riaz deceased. Akbar gave two hatchet blows on the back of neck to Riaz. Ayub caused hatchet blow hitting on back of neck of Riaz. Muhammad Ismail caused hatchet blow of Riaz hitting on back of his left shoulder. Muhammad Ibrahim gave Sota blow to the deceased hitting on his back of right shoulder. The complainant and the P.Ws.
3. Raised Lalkara but they were threatened by the accused that if anyone will come near he will also be dealt with severely. The accused after causing injuries to Riaz ran away from the spot. The P.Ws.
4. Went to the deceased and found him succumbed to the injuries.
5. ' The, motive alleged for the occurrence was that Muhammad Ibrahim accused had suspected illicit relations of Riaz deceased with his daughter Mst. Sakina.
6. ' Muhammad Rashid, S.I. P. W.9 after recording statement Exh.P.0 sent the same for registration of formal F.I.R. And himself arrived at the place of occurrence and took the dead body of Riaz into possession and prepared his injury statement vide memo. Exh.P.A/2 and inquest report Exh.P.A/3 and despatched the dead -body for post-mortem examination through Shaukat Ali, F.C. He took the blood-stained earth from the spot vide memo. Exh.P.E. He recorded the statements 'of the. P.Ws.
7. Under section 161, Cr.P.C. Shaukat Ali, F.C. P.W.2 produced the last worn clothes of the deceased before him which were taken into possession vide memo. Exh.P.B. On 29-5-1995 accused/appellants were produced before him by Abdur Razzaq, Lambardar and they were arrested. Ibrahim accused produced Sota P.4 which was taken into possession vide memo.
8. ' Exh.P.C. Akbar produced blood-stained hatchet P.5 which was taken into possession vide memo.
9. Ddi.P.G. Ayub produced hatchet P.6 which was taken into possession. Vide memo.Exh.P.H and Ismail produced hatchet P.7 which was taken into possession vide memo. Exh.P.J. He despatched the sealed parcels in police Malkhana for safe custody. He completed the investigation and submitted the challan.
10. ' Charge was framed by the trial Court which was denied by the accused/appellants who claimed trial.
11. ' During trial prosecution examined as many as 9 witnesses to prove the guilt of the accused.
12. ' Medical evidence was furnished by Dr. Muhammad Aslam P. W.1 who on 14-5-1995 at 9-30 a.m.
13. Conducted the postmortem examination on the dead body of Riaz and found the following injuries:--
(1) Incised wound 20 x 10 c.m. On the back of head cutting skull. Brain matter was coming out.
(2) Incised wound 3 x 2 c.m. Muscle deep on the back of neck. Corresponding cut was present on Qameez.
(3) Incised wound 4 x 1 c.m. Muscle deep just below injury No,2 on the back of neck. Corresponding cut was present on Qameez.
(4) Incised wound 4 x 3 c.m. Muscle deep ,on the back of left shoulder. Corresponding cut was present on, clothes.
(5) Contusion 9 x 0.5 c.m. On the top and back of right shoulder.
(6) Contusion 3 x I c.m. On the outer surface of left hand.
(7) Contusion 3 x 1 c.m. On the outer surface of left wrist joint.
(8) Contusion 6 x 1 c.m. On outer surface of right forearm above right wrist joint.
14. ' The ocular account was furnished by Abdul Wahid P.W.6 who was complainant of the case. He supported the version of the F.I.R. And narrated the prosecution story as an eye-witness of the occurrence. He also attested the recovery memos. Of all the incriminating articles taken into possession from the spot and recovery memos. Of capons of offence produced by the appellant.
15. Waris Ali P.W.7 was also an eyewitness of the occurrence. He supported the prosecution story and his statement is in line with the statement of Abdul Wahid P.W.6. He stated that he along with the complainant was present in the house of Muhammad Ramzan and on hearing noise from the adjoining house of Muhammad Ibrahim accused, he along with Abdul Wahid complainant and Sultan Ali (not produced) saw over the wall that accused were causing injuries to Muhammad Riaz brother of the complainant Abdul Wahid. Muhammad Naseeb P.W.8 was witness of the Wajtakkar.
16. He stated that on 13-5-1995 10/15 minutes before Eisha prayer he Was going in the street and saw Akbar accused taking Riaz deceased along with him towards his house and thereafter he heard that Riaz has been done to death by the appellants. Latif Ahmad, H.C. P. W .3 had recorded formal F . I . R. Exh.P.C/1 while Kazim Hussain Gillani P.W.4 was draftsman and prepared the site plan.
17. Muhammad Khan P.W.5 had identified the dead body of Muhammad Riaz at the time of post- mortem examination.
18. ' The prosecution evidence was closed after tendering in evidence report of Chemical Examiner Exh.P.C. And that of Serologist Exh . P. M.
19. ' Statements of the accused were recorded under section 342, Cr.P.C. They had denied the allegations and claimed their innocence. Akbar accused in reply to question No,10 as to why the case against him and P.Ws. Deposed, he stated as under:- "I am innocent. The factual position is that on the night of occurrence after mid-night Riaz deceased entered into my house and tried to abduct Mst. Sakina my sister who had come to visit us from her inlaws and during this process I awoke. I lost my self-control due to ' provocation and out of Ghairat caused injuries to the deceased from both sides of the hatchet as a result whereof he died. I myself appeared before the police at the police station and narrated these facts. The other co-accused were not present at the spot at the time of occurrence and the P.Ws. Did not witness the occurrence and they were subsequently made up witnesses."
20. ' The trial culminated into conviction of the appellants as mentioned above. They have challenged their conviction and sentence through Criminal Appeal No, 708 Of 1999. Akbar alias Baggu has also filed Criminal Appeal No, 624 of 1998 against the same judgment. Abdul Wahid complainant of the case has filed Criminal Revision No, 42 of 1998 for enhancement of sentences to Muhammad Ibrahim, Ayub and Ismail and Awarding of compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased. The trial Court has sent up Murder Reference No,133 of 1997 for confirmation of death sentence of Akbar, under section 374, Cr.P.C. All the matters are the outcome of one and the same judgment, therefore, are being decided by this single judgment.
21. ' Learned counsel for the appellants has argued that Akbar alias Baggu has admitted the occurrence for having caused injuries to Riaz deceased under Ghairat and to save the honour of the family as deceased had come to his house during the night to abduct his sister Sakina. He woke up and apprehended the deceased and caused injuries by using both sides of the hatchet.
22. He himself reported the incident to police. It was unwitnessed night occurrence and the prosecution story is false; that the eyewitnesses of the occurrence are closely related to the deceased and inter se. Abdul Wahid P.W.6 and Waris Ali P.W.7 are resident of different streets and Muhammad Ramzan maternal uncle in whose house they stated to be present has not been examined. Therefore, the plea of accused Akbar is more plausible, and therefore, after discarding the prosecution evidence the plea of accused be accepted and they be acquitted from the charge.
23. ' Conversely the appeal has been opposed by the learned State counsel and for the complainant.
24. They have supported the impugned judgment. Learned counsel for the complainant has also pressed his version.
25. ' Heard. Record perused.
26. It is correct that the occurrence took place in the house of accused Ibrahim and Akbar and hands of Muhammad Riaz deceased were found tied with string. The presence of Abdul Wahid and Waris Ali in the adjoining house belonging to Muhammad Ramzan paternal uncle of complainant has been established and is believable as Muhammad Ramzan was closely related to the complainant. Both the witnesses Abdul Wahid and Waris Ali stood the test of lengthy cross- examination but nothing has been brought on record to discard their testimon:r. Their evidence is confidence inspiring an :1 they are truthful witnesses. Mere relationsh p with the deceased is no ground to discrec it their evidence as they have no previous animosity for false implication of the accused. The motive, occurrence and the place of occurrence is admitted. The case of Akbar appellant is that under 'Ghairat' and in order to save the family honour he inflicted injuries to Riaz deceased but this version does not appear to be correct. Dr. 'Muhammad Aslam P.W.1 had stated that hands of the deceased Riaz were tied when the dead body was brought before him for post- mortem examination. Had Akbar was alone to cause the injuries at the deceased it was not possible for him to overpower a young man and to tie his hands which shows that there were more than one person who had overpowered the deceased after seeing him in the house and thereafter he was caused injuries. However, the prosecution has failed to show as to how Riaz deceased happened to be in the house of the accused/appellants during the night hours. The arguments of the learned counsel for the accused/appellants that string was not taken into possession by the Investigating Officer therefore, this allegation is false and has no force Abdul Wahid complainant and Dr. Muhammad Aslam P.W.1 have not been cross-examined by the defence on this point. Akbar accused has not only admitted the commission of crime but has also produced the blood-stained hatchet which proves his involvement in the commission of crime. But injuries Nos.5 'to 8 are the result of blunt weapon and nature of the injuries indicate that those are not the result of hatchet even used from the wrong side as per plea of Akbar. Doctor has categorically stated in his cross- examination that injuries Nos. 6 to 8 could not have been caused from wrong side of the hatchet, which indicates that more than one weapon of offence were used. The possibility cannot be ruled out that Muhammad Ibrahim who was allegedly armed with Sega is responsible for causing those injureis to the deceased. The ocular account furnished by Abdul Wahid P.W.6 and Waris Ali P.W.7 has been corroborated by medical evidence and recovery of weapons of offence against Akbar and Muhammad Ibrahim.
27. As far as case of Ayub and Ismail appellants is concerned they were not residing in the house of Ibrahim and Akbar accused. Admittedly they have separate residences at some distance from the place of occurrence and their presence in the house of Muhammad Ibrahim accused at odd hours of the night is, doubtful, and possibility is that the complainant had thrown the net wide? To implicate both the appellants Ayub and Ismail falsely being relatives of Muhammad Ibrahim. The hatchets produced by them were also not stained with blood. The injuries attributed to them could possibly be caused by hatchet recovered from Akbar appellant. Therefore, they are entitled to the benefit of doubt and appeal to their extent is allowed and they are acquitted from the charge. The conviction and sentence awarded to them is set aside. They are directed to be released forthwith if not required to be detained in any other case.
28. The prosecution has successfully proved its case against Muhammad Ibrahim and Akbar appellants as discussed above. Therefore, their conviction is maintained. However, motive of illicit relations of the deceased with Mst. Sakina daughter if Ibrahim and sister of Akbar has been admitted by the prosecution and no reasonable explanation has been furnished as to how the deceased was present in the house of the accused during the night hours, which leads us to believe that Ibrahim and Akbar appellants had overpowered the deceased and caused his death under `Ghairat' and in order to save their family honour and under provocation. Therefore, the maximum penalty of death is not warranted under the law and keeping this fact as mitigating circumstance, the death sentence of Akbar is reduced to life imprisonment which will meet the ends of justice. The benefit, of section 382-B, Cr.P.C. Will be available to them. The appeals are dismissed with the above modification.
29. ' Murder Reference No,1337 of 1997 is answered in the negative.
18. Criminal Revision No,42 of 1998 filed by the complainant is dismissed having no force. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.