' Allah Wasaya son of Elahi Bakhsh, appellant, has directed this appeal against the judgment dated 9-7-2001 rendered by Mr. Muhammad Raziq Nawaz, Additional Sessions Judge, Rajanpur, whereby he convicted the appellant under section 302(b), P.P.C. And sentenced him to life imprisonment.
The appellant was also directed to pay compensation of Rs,50,000 under section 544-A, Cr.P.C. In default of payment of compensation, the appellant was to further undergo simple imprisonment for one year. The amount of compensation, if recovered, was to be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. The appellant alongwith his brother Allah Ditta and cousins Hazoor Bakhsh and Maula Bakhsh was sent up to face trial in case F.I.R. No,344 registered at Police Station Dajal, Tehsil Jampur, District Rajanpur, for offences under sections 324/302/34, P.P.C. During trial, after completion of the prosecution evidence Allah Ditta accused absconded, while Hazoor Bakhsh and Maula Bakhsh- accused were acquitted.
3. P.W.9 Muhammad Ramzan-complainant lodged F.I.R. No,344 Exh.P.K. (aforementioned), which was recorded by Azmat Ullah Khan, S.-I./S.H.O., who appeared as P.W.11. According to F.I.R., the complainant alongwith his brother Muhammad Afzal and his cousin Allah Bachaya (Khalazad) went to Mouza Dhandla to meet his brother Muhammad Arif (deceased). The complainant and the P.W. Had also planned to stay over the night with Muhammad Arif-deceased and slept. There. At about 11/12 p.m. (night) Allah Wasaya-appellant knocked the door of the Dispensary Shop of Muhammad Arif, situated in Village Dhandla. Muhammad Arif opened the door and had a lantern in his hand, he was informed by the appellant that his brother Allah Ditta (principal accused) was not feeling well and needed medical attention, therefore, Muhammad Arif took medicines with him and alongwith complainant and other two P.Ws. Proceeded towards the house of Ibrahim, brother of Allah Ditta and the appellant. Muhammad Arif, who had a lantern in his hand, entered into the house of Ibrahim alongwith Allah Wasaya followed by the other P.Ws. The P.Ws. Saw in the light of lantern that Allah Ditta armed with a pistol alongwith Hazoor Bakhsh and Mania Bakhsh, empty- handed, were present in the compound. Allah Ditta came closure to Muhammad Arif and said that he had developed illicit relationship with Mst. Jindan Mai, wife of his brother Muhammad Ibrahim, therefore, he would not be spared, thereafter, Allah Ditta fired at Muhammad Arif, which hit on his abdomen. Allah Ditta reloaded his pistol and fired at the back of Muhammad Arif. The witnesses tried to move forward but they were informed that they would suffer the dire consequences. Thus the P.Ws. Did not interfere. It is further stated that Allah Ditta knocked the door of the room of Mst.
Jindan Mai and when the same was opened by Mst. Jindan Mai, Allah Ditta fired with his pistol on Mst. Jindan Mai, which hit her on her abdomen, who fell in the door of her room. Thereafter, all the four accused ran away. Muhammad Arif succumbed to the injuries at the spot. It is also stated that many neighbours assembled there after the firing. The motive as given in the F.I.R. Was that Allah Ditta and others had a suspicion that Muhammad Arif had developed illicit relationship with Mst.
Jindan Mai and for that reason Muhammad Arif was murdered and Mst. Jindan Mai was injured (who subsequently lost her life).
4. After recording the F.I.R., P.W.11 S.H.O. Reached the place of occurrence i,e, the house of Muhammad Ibrahim, brother of the appellant, and collected blood-stained earth from two places vide memo. Exh.P.M., where Muhammad Arif deceased was lying and vide memo. Exh.P.R. From the place where Mst. Jindan Mai received injuries. Three empties of .12 bore pistol P.6/1-3 were recovered from the place of occurrence vide memo. Exh.P.C. Lantern P.7 belonging to Muhammad Arif deceased, was also taken into possession vide memo. Exh.P.N. Chimni (head of the lantern) from the house of Muhammad Ibrahim was also taken into possession vide memo. Exh. P.O. The medicines brought by the deceased, which were lying in the water, were also taken into possession vide memo. Exh.P.P. All these memos. Except Exh.P.R. Were attested by Muhammad Afzal, brother of the deceased, Allah Bachaya P.W.10, Khalazad of the deceased, and S.H.O. P.W.11. The appellant alongwith his brother Allah Ditta was arrested on 20-1-1998. However, no recovery was effected from the appellant.
5. During trial, the prosecution examined 11 witnesses. P.W.9 Muhammad Ramzan and P.W.10 Allah Bachaya stated about the motive as well as about the occurrence. Allah Bachaya P.W. Further stated about the recoveries. P.W.1 Dr. Suryya Altaf and P.W.5 Dr. Faiz Ullah stated about the post- mortem examination of the deceased Mst., Jindan Mai and Muhammad Arif, respectively. Mushtaq Ahmad, Patwari, appeared as P.W.7, while the Investigating Officer Azmat Ullah Khan, S.-I./S.H.O.
Appeared as P.W.11. The rest of the witnesses were formal in nature.
6. The appellant denied the charge in his statement recorded under section 342, Cr.P.C. And stated that he was involved in the case due to his relationship with Allah Ditta, the principal accused. He refused to appear as a witness in his defence under section 340(2), Cr.P.C. And did not produce any defence evidence.
7. The learned counsel for the appellant has argued that the appellant did not cause any injury to anyone. Principal accused had admitted the commission of offence due to grave and sudden provocation; that the witnesses were not only related but were also chance witnesses and their presence at the date of occurrence was doubtful; that the F.I.R. Was lodged after a considerable delay; that on the basis of evidence of Muhammad Ramzan and Allah Bachaya two of the accused Hazoor Bakhsh and Maula Bakhsh, who have not caused any injury to the deceased were acquitted and that in these circumstances, the appellant also deserves acquittal as no independent reliable evidence qua the appellant was available on the record.
8. On the other hand, the learned counsel appearing on behalf of the State has argued that the P.Ws. Had no previous enmity or grudge to involve the appellant falsely in this case; that the appellant played a pivotal role by bringing Muhammad Arif deceased to the house of Muhammad Ibrahim, where the occurrence took place; and that the appellant had a motive to commit the offence.
9. I have heard the learned counsel for the parties and gone through the record. Admittedly, the occurrence has taken place inside the house of Muhammad Ibrahim, husband of Mst. Jindan Mai deceased, brother of appellant as well as Allah Ditta (principal accused). Similarly, the only evidence available against the appellant is that he on the night of occurrence went to the shop of Muhammad Arif deceased, who was running a dispensary shop and brought him to the house of his brother Muhammad Ibrahim on the pretext that his elder brother Allah Ditta was not feeling well.
The whole prosecution evidence is to be analysed in the light of the allegation, levelled against the appellant Muhammad Ramzan P.W.9, elder brother of the deceased Muhammad Arif and Allah Bachaya P.W.10, Khalazad of the deceased, are the sole witnesses, around whom the prosecution case rests. Admittedly, both these witnesses are the residents of the place situated at the distance of 23 miles from the place of occurrence. They were unable to advance any reason as on the fateful night they had made up their minds to visit Muhammad Arif deceased. It is also in the evidence that Muhammad Arif deceased had only one room at his disposal, which was also used as a shop and for residence. It was for that reason his children and wife did not live with him and they were living with his brother at a distance of 23 miles. Both these witnesses have not stated that the appellant knew about the conspiracy. In fact there is nothing on the record to show that the appellant had the knowledge that his brother Allah Ditta had made up his mind to kill Muhammad Arif deceased on the fateful night. The appellant is younger brother of Allah Ditta and if Allah Ditta asked him to fetch the doctor, since he was not feeling well, in normal circumstances he would obey. The prosecution has miserably failed to bring on record any evidence that the appellant knew or shared the intention of Allah Ditta, his elder brother. Both these P.Ws. Had never met the appellant earlier to the occurrence and had never previously visited the house of Muhammad Ibrahim, where the occurrence took place. According to F.I.R., the occurrence took place at 11/12 p.m., the police station is at the distance of 10 Kms. And according to P.W.9, he left the place of occurrence for police station after about 15 minutes of the occurrence but the F.I.R. Was registered at 5-00 a.m. After about 5/6 hours. The distance of about 10 Kms. Would normally be covered within two hours. This delay also throws a doubt whether the witnesses were present at the scene of occurrence or were summoned after the occurrence.
10. It is in the evidence that Allah Ditta accused was armed with .12 bore pistol, which is a small weapon, who had been reloading it. The rest of the accused were standing there empty-handed.
Muhammad Afzal was not produced during the trial. Muhammad Ramzan is the real brother of the deceased Muhammad Arif, while Allah Bachaya is his cousin. If they were present there, normally they would not allow Allah Ditta to reload his pistol and would pounce upon him to save the life of their brother. It is also strange that on the fateful day, the P.Ws. Intended to visit his brother as per chance but never brought his wife or any of his children alongwith them. There was no special occasion on the fateful day for the assembly of the P.Ws. Not a single witness has been cited from the neighbourhood or the locality. In these circumstances, the possibility that P.Ws. Muhammad Ramzan and Allah Bachaya being summoned after the occurrence cannot be ruled out.
11. In order to satisfy my conscience,' I have gone through the statement of Mst. Jindan Mai deceased, shown to have been recorded by the police under section 161, Cr.P.C. In injured condition.
According to which the only allegation against the appellant is that he was standing alongwith the acquitted accused. In other words the statement of Mst. Jindan does not advance the case of the prosecution against the appellant.
12. The motive as set in the F.I.R. Was that Allah Ditta and others suspected that the deceased Muhammad Arif had developed illicit relationship with Mst. Jindan Mai, wife of Muhammad Ibrahim and brother of the appellant as well as Allah Ditta. No independent witness has been cited in support of the motive. Both these P.Ws. i,e, P.Ws.9 and 10, who are also eye-witnesses have stated about the motive. They have not named the appellant specifically in the F.I.R., that he had a motive.
On the other hand, during cross-examination it was suggested that Allah Ditta on the fateful night discovered Muhammad Arif deceased and Mst. Jindan Mai to be present in her room, therefore, due to grave and sudden provocation while armed with a pistol, he fired at them. Muhammad Arif tried to run away but could not escape and he was hit when he was in the compound.
13. The place of occurrence has not been challenged. Blood-stained earth has also been collected from the house of Muhammad Ibrahim. It is in the evidence that on the fateful night Muhammad Ibrahim was not sleeping in the room of Mst. Jindan Mai rather he was sleeping in the cattle-shed.
14. According to the medical evidence Mst. Jindan Mai was 25/26 years old, while Muhammad Arif deceased was about 27/28 years old. Mst. Jindan Mai was the second wife of Muhammad Ibrahim and it is in the evidence that wife and the children of Muhammad Arif deceased did not reside with him. In the light of the motive set in the F.I.R. And the ages of the deceased, the plea taken by the defence that Muhammad Arif had gone to the house of Muhammad Ibrahim on the fateful night, cannot be turned down. Especially when P.Ws.9 and 10 have stated that they were unaware of the motive prior to the occurrence. It is unfortunate that the investigation level has dropped very low and the police has adopted this habit that instead of investigating the matter and collecting the independent evidence, it relies upon the witnesses produced by the relatives of the deceased; as in this case no single witness or any independent witness has been produced to prove the motive.
The medical evidence supports the prosecution case to the extent that the deceased were done to death by the fire-arm injuries and does not support the case of the prosecution vis-a-vis the appellant, who had not fired at anyone. No recovery was effected from the appellant.
15. The upshot of the whole discussion is that I am of the considered view that the prosecution has failed to prove its case beyond doubt against Allah Wasaya appellant, therefore, I allow this appeal, set aside the impugned judgment dated 9-7-2001 rendered by the learned Additional Sessions Judge, Rajanpur. The appellant is acquitted of the charge. He would be released from jail forthwith if not required in any other case.