1976 P Cr (PLP)

SALEEM MAZHAR, J.‑‑By his judgment dated Ist April 1972 the learned Sessions Judge, Multan has convicted Nabi Bakhsh aged 26 years for an offence under Section 302, Pakistan Penal Code and sentenced him to death for the murder of Ahmad Yar resident of Qasba Marhal on 24th August 1970 at 4 a.m. The convict has appealed and the Reference for confirmation of death sentence is also before us. Both the matters are being disposed of by this judgment.

2. The prosecution case as disclosed in the F. I. R.; Exh. P‑A/l, is that Khuda Bakhsh complainant along with his brother Ahmad Yar (deceased) were residing together and on the night between 23rd and 24th August 1970 the complainant, the deceased and his family and Allah Ditta P. W., nephew of the complainant, were sleeping on four cots in the courtyard of the house. Rahim Bakhsh P. W. and Wali Muhammad (not produced) were sleeping outside the Havelt guarding the castle. At about 4 a.m. Khuda Bakhsh heard the shrieks of his brother Ahmad Yar (deceased) and got up. He then noticed that a lantern was burning with a rod fixed in the ground and found Nabi Bakhsh appellant resident of Chak No. 380/ WB, Police, Station Dunyapur, armed with a hatchet standing there. Ahmad Yar was writhing with pain and was besmeared with blood. Allah Ditta, nephew of the complainant, who was sleeping close by, also got up and went In pursuit of Nabi Bakhah appellant. On the alarm Rahim Bakhsh (P. W. 8) and Wali Muhammad (not produced) also got up and followed Nabi Bakhsh appellant. Nabi Bakhsh succeeded in making his escape good. The complainant saw his brother Ahmad Yar who had an injury on his head and had died. The motive alleged is that about three years prior to the occurrence Mst. Phirawan, a niece of the complainant, was abducted by Nabi Bakhah and a case was registered against the appellant. The abductee was recovered but the case was discharg ed and Mst. Phirawan remained with the appellant. Allah Wasaya (P. W. 9) uncle of Mst. Bhirawan, ailed a complaint against Nabi Bakhsh in the Court of Ilaqa Magistrate, Multan and this case was pursued by Ahmad Yar (deceased). Last date of hearing was 18th August 1970 and on that day the complainant alongwith the deceased and Allah Wasaya. (P. W. 9) had attended the Court where Nabi Bakhsh appellant bad threatened the deceased that he would not be spared. Nabi Bakhsh had a grudge on this account as to why the deceased was pursuing the case and had murdered Ahmed Yar (deceased). Khuda Bakhsh complainant made the statement at Police Post Qasba Marhal at a distance of one furlong, which was recorded by S. I. Muhammad Akram (P. W. 13) at 4 a.m. on 24th August 1970. S.

1. Muhammad Akram then sent the complainant (Exh. P‑A) to Police Station Makhdoom Rashid, where the formal F. I. R. (Exh. PA/l) was recorded by A. S. I. Muhammad Akbar (P. W. 6) at 6‑40 a.m.

3. S. I. Muhammad Akram (P. W. 13) proceeded to the spot and reached there at 4‑50 a.m. He found the dead body of Ahmad Yar (deceased) lying on a cot in the courtyard of his house. He prepared the injury statement (Exh. PC) and the inquest report (Exh. PC/1) of the deceased and handed over the dead body to F. C. Allah Ditta for taking it to the mortuary for post‑mortem examination. He also took into possession lantern (Exh. P. 1) vide memo (Exh. P. C.) F. C. Allah Ditta (P. W. 2) produced the last worn clothes of the deceased, which the Sub‑Inspector took into possession vide memo (Exh. P‑D). The Sub Inspector got prepared the site plan (Exh. P. F.) and its copies from Ahmad Bakhsh Draftsman (P. W. 4). Prior to that the Sub‑Inspector also took into possession the blood‑stained earth from the spot and made it into a sealed parcel. The recovery memo of the lantern (Exh. P. 1) was attested by Allah Ditta (P. W. 7), Faiz Bakhsh (not produced) arid S. I. Muhammad Akram (P. W. 13). The Sub‑Inspector arrested the appellant on 27th August 1970 when produced by one Hazar Muhammad Awan before him.

4. Dr. Mansoob Ahmad (P. W. 1) on 24th August 1970 at 2 p.m. performed autopsy on the dead body of Ahmad Yar (deceased) an old man and found the following injuries :‑ (1) A contused wound 4 x 1 on the left side of head two inches above the upper part of left oar and 1 ' above the outer end of left eye‑brow. The meninges were torn and the brain matter was conning out. There was a fracture of frontal bone, parietal bones both sides, temporal bones both. Ten pieces of bone were lying loosely. The occipitoparietal suture was open throughout. The meninegal vessels and the brain sinuses were torn up. There was fracture of the base of the skull on both sides. (Anterior and middle cranial fossae). (2) A contused wound ' x 1/10' on the back of right index finger on the middle falaynx. It was bone deep and the bone underneath was fractured. (3) Two contused wounds 1' x x bone deep and ' x 1/3 x bone deep on the back of right middle finger on the proximal falayna. The bone underneath was fractured. (4) A contused wound 1 x ' x bone deep on the back of right ring‑finger. Bone underneath was fractured. (5) A contused wound on the back of right little finger ' x 1/8 x bone deep on the proximal falaynx. The bone underneath was broken. Stomach contained dark‑water fluid about 3 ounces, small intestines contained chyme, large intestines contained faecal matter. Bladder contained urine about 2 ounces. Death in the opinion of the doctor was due to multiple fracture of skull, interachronial haemorrhage and injury to brain due to. injury No. 1, which was sufficient to cause death to the ordinary course of nature. All the injuries were caused by a blunt weapon and were ante‑mortem. Injuries Nos. 2 to 5 were grievous. Probable time between injuries and death was immediate and death and post‑mortem examination was 12 hours.

5. The appellant when examined at the trial stated that three years before the occurrence a case under section 366, P. P. C. was registered against him at the instance of Allah Wasaya for the abduction of Mst. Bhirawan, niece of the deceased, but he denied that Ahmad Yar deceased pursued that case. He further stated that Mst. Bhirawan was his wife and Abdul Rehman (P. W. 11) had filed a frivolous complaint against him under section 497/498, P. P. C. and in that ease he appeared for the first time on 11th August 1970 in the Court of the Magistrate but he denied that he gave any threat to the deceased and stated that the deceased never pursued that case and he had no grouse against the deceased. He further stated that Mst. Bhirawan was given to him in marriage by her father Ahmad Bakhsh. He stated that he had never been to Qasba Marhal and did not know where the deceased resided., In answer to a question as to why this case against him he stated that Abdur Rehman and his relation Allah Wasaya wanted to get back the hand of Mst. Bhirawan from him and they have involved him in this case in conspiracy with Khuda Bakhsh and Rahim Bakhah their close relations. He pleaded not guilty and produced no defence.

6. The learned trial Judge relying on the ocular evidence and that of motive convicted and sentenced him as stated above.

7. At the trial Khuda Bakhsh (P. W. 5), Allah Ditta (P. W. 7) and Rahim Bakhsh (P. W. 8) were produced as eye‑witnesses and as regards motive the learned trial Judge relied on the evidence of Khuda Bakhsh, Allah Wasaya and Abdul Penman P. Ws.

8. The main question to be determined in this case is whether Khuda Bakhsh, Allah Ditta and Rahim Bakhsh P. Ws. were able to identify the culprit at the spot, The occurrence admittedly took place round about 3‑30 or 4 a.m. as stated by Khuda Bakhsh (P. W. 5) at the trial. Khuda Bakhsh P. W. is brother of the deceased and he has stated that he alongwith the deceased and family of the deceased was sleeping alongwith Allah Ditta (P. W. 7) nephew of the complainant and the deceased and that he heard the shrieks of his brother and being awakened looked at him and saw the appellant standing towards the head side of the cot of the deceased with a hatchet in his hand. The deceased was writhing on the cot while being injured by the hatchet. Allah Ditta P. W. also got up but the appellant took to his heels followed by Allah Ditta P. W: and Rahim Baksh (P. W. 8) a brother of the deceased also joined him, who was sleeping at a distance of 9 or 10 karams from the spot and was awakened alongwith Wali (given up P. W.) by the stir. Allah Ditta, Rahim Bakhah P. Ws. and Wali (given up P. W.) came back after ten minutes and told Khuda Bakhsh that the appellant had run away and could not be cultured. Allah Ditta (P. W. 7) has contradicted him by stating that he was awakened by the stir and saw the appellant giving hatchet blows to Ahmad Yar (deceased) on his bead. In cross‑examined at Khuda Bakhsh P. W. has admitted that Rahim Bakhsh is his brother, Abdul Rehman (P. W. 11) is the son of his mother's sister's son, Wasaya (P. W. 9) is his sister's son and Wali Muhammad (given up P. W.) is the son of the daughter of the deceased. He has also admitted in his cross‑examination that they did not complain about this threat to the Magistrate hearing the case on 18th August 1970 but had only informed the Sub‑Inspector, who was by chance within the Kutchery premises that very day. But this has been denied by the Sub‑Inspector. He further stated that he did not state before the Committing Magistrate that he was awakened by the sound of the foot‑steps of the accused but in his cross‑examination it is recorded there. He also denied to have stated before the Committing Magistrate that when he saw the appellant for the first time it was at a distance of 7 feet from the deceased with which he was duly confronted where it is so recorded. He has also admitted that he did not state before the Committing Magistrate that he had no business to sleep in accused giving hatchet blows on the head of the deceased, with which he was duly confronted, where it is so recorded. He has also admitted that his wife and children also resided in the Abadi of Qasba Marhal at a distance of four killas from the spot and he had no business to sleep in the house of the deceased. He has also admitted that the family of Allah Ditta, P. W. also resided in the Abadi of the Qasba and he too gad no business to sleep near the cattle shed. Allah Ditta P. W. has made a similar statement as P. W. 7 and has stated in cross‑examination that he and his uncle Khuda Bakhsh P. W. got up simultaneously but he is contradicted by Khuda Bakhah P. W. on this point. He also stated that he did not remember to have stated before the police that he was awakened at the voice of Khuda Bakhsh but it is so recorded in his police statement (Exh. D. A.) He denied to have stated before the Committing Magistrate that he got up at the sound of the foot-steps of the accused but it is so recorded. He also denied to have stated before the Committing Magistrate that as he tried to put on his shoes the accused in the meanwhile ran away but he was duly confronted. He asserted to have stated before the police that he had identified the light of the lantern and that of the moon but it is not his police statement (Exh. D. A.) He has also admitted that the deceased had two wives and his first wife was in his house situated in the Qasba Martial along with his children. He denied to have stated before the Committing Magistrate that the police had registered the case at the spot and obtained the thumb impression of Khuda Bakhsh and he was duly confronted where it is so recorded. The last eye‑witness Rahim Bakhsh has stated that he was sleeping in the cattle shed where their cattle were tethered and Wali Muhammad (given up P. W.) was also sleeping there, that at about 3‑30 or 3‑45 a.m. he heard an alarm and also heard Allah Ditta P. W. saying that Nabi Bakhsh accused was running away after murdering his uncle Ahmad Yar and that they also chased the accused but could not capture him. He has also admitted in his cross‑examination that the accused had gone away at a distance of ten feet from them when they started running after him. He denied to have stated before the Committing Magistrate that the accused was at a distance of about two kanals from them when they started pursuing him with which he was duly confronted where it is so recorded.

9. Mst. Zobran (P. W. 12) wife of the deceased was examined at the trial who has stated that in the small hours she heard the alarm of Khuda Bakhsh saying that the appellant was running away after murdering his brother Ahmad Yar (deceased). She stated that she did not see the occurrence nor did see the accused at‑ the spot. She also stated in the cross‑examination that there was no Naheela in their house and Naheela is a sort of wooden stand on which the pitcher containing the curd is placed for being churned. The Investigating Officer has stated in his cross‑examination that it is correct that the house of Naqi, Manzoor and Ghulam Hussain adjoin in the aforementioned order to the house of the deceased towards the south and then onwards starts the unending abadi of the qasha. Similarly the house of Naqi Shah adjoins that of the deceased on the western side. He has also admitted that on the northern side of the house of the deceased leaving the foot‑path there were fields of jawar and charri which run from east to west. He has also admitted that he did not mention the presence of the lantern at the spot or about its seizure in columns 23 and 24 though he has mentioned in his inspection note that the lamp was burning at the spot. He also stated in his cross -examination that the wooden Nahella on which the lantern (Exh. P. 1) was burning was at a distance of one foot from the south‑eastern corner of the aforementioned kotha, and there are Sheesham trees in the courtyard of the house, which were 15 to 20 feet high and all the four walls were more than 7 feet high. But the eastern and the western walls of the Ihata were about 10 feet high.

10. As regards the motive we have the testimony of Allah Wasaya (P. W. 9) and Abdul Rehman (P. W. 11). Allah Wasaya (P. W. 9) has stated that Mst. Bhirawan is the daughter of his sister and she is the wife of Abdul Rehman (P. W. 11) and Mgt. Bhirawan was abducted by the appellant, that he got registered a case at Police Station Makhdoom Rashid and that Abdul Rehman also filed a complaint under Section 498, P. P. C. against the deceased. He has, however, admitted that abduction case of Mst. Bhirawan against the appellant was cancelled and the witness was proceeded against under Section 182, P. P. C. He has also admitted that the deceased and Khuda Bakhsh (P. W. 5) were not witnesses in the complaint case filed by Abdul Rehman. He has also admitted that accused is a resident of Chak No. 380 W. B., Police Station Dunyapur and his place of residence is about a mile from the Chak of the appellant, whereas Abdul Rehman P. W. is resident of village Jalla 10 or 11 miles away from the place of the appellant and so is the distance of the place of occurrence from Chak No. 380/WB. He has admitted that :‑ "It is correct that the litigation so far launched by us against the accused have not ended in conviction. It is true that Mst. Bhirawan is still with the accused. We desire earnestly that the hand of Mst. Bhirawan should be restored to us." Abdul Rehman (P. W. 11) has stated that Mst. Bhirawan is his wife and she was abducted by the appellant alongwith some other persons and he filed a complaint under section 497/498, P. P. C. against the appellant and others in the Court of Ilaqa Magistrate. In cross‑examination this witness has admitted that father and brother of Mst. Bhirawan are alive. He has also admitted that Mst. Bhirawan has not come over to him even uptil now in spite of the fact that Nabi Bakhsh accused is in Jail since the year 1970. He also admitted that Allah Wasaya lodged a case with the police regarding Mst. Bhirawan but the same was cancelled.

11. The learned counsel for the appellant argued that if the appellant had any motive to kill, the target should have been Allah Wasaya and Abdul Rehman and not the deceased, because it was Abdul Rehman and Allah Wasaya who had got registered a case against him. We see force in this contention of the learned counsel for the appellant. The learned counsel also urged that the eye‑witnesses being close relations of the deceased, they should not be believed. Tire identification of the appellant at the spot becomes highly doubtful because the presence of the lantern was not mentioned in the inquest report and the moon rise time on 24th August 1970 being at 23‑39 hours and with the Sheesham trees and a keekar tree in the courtyard where the occurrence took place, becomes highly doubtful in the moonlight to identify a person. We are constrained not to rely upon the statements of these P. Ws. and reject their testimony.

12. The upshot of the discussion therefore is that in view of the enmity between the parties emanating from the above said litigation between them and the unconvincing testimony of Khuda Bakhsh, Allah Ditta, Rahim Bakhsh P. Ws. eye‑witnesses, close relations of the deceased, the prosecution evidence does not inspire confidence, coupled with the lack of unimpeachable evidence of corroboration, and further having regard to the fact that it was a case of night occurrence and should have attracted other natural witnesses from the immediate neighbourhood to the spot, but none of whom is stated to have seen the occurrence, we are not satisfied that the prosecution has succeeded in bringing home the guilt to the appellant beyond reasonable doubt. Accordingly we bold that the appellant is entitled to tie benefit of doubt. Consequently, the appeal is allowed and the conviction and sentence is set aside. The appellant shall be released forthwith from Jail provided he is not required to be detained in any other case. The Murder Reference automatically stands rejected. Appeal allowed.