2004 PLP 1430 (MLD)

MUHAMMAD FARRUKH MAHMUD, J.‑‑‑Allah Ditta, Atta Muhammad Wahid Bukhsh and Lal Bakhsh were sent up to face trial in 167, registered at Police Station Yazman, on 29‑4‑2001, for offences under sections 302/34, P.P.C., for causing murders of Muhammad Bakhsh alias Mamli and Mst. Janoo Mai‑widow of Ghulam Muhammad (mother of Allah Ditta appellant). Vide judgment dated 25‑8‑2003 handed down by Mr. Khaqan Babar, Additional Sessions Judge, Bahawalpur, the appellants were convicted and sentenced for causing (sic). (1) Allah Ditta under section 302, P.P.C. Sentenced to death. (2) Wahid Bakhsh, Atta Muhammad and Lal Bakhsh under sections 302(c)/34, P.P.C. Sentenced to 10 years' R.I. each. All the appellants were directed to pay compensation to the tune of Rs.50,000 to the legal heirs of the deceased Muhammad Bakhsh, in default of payment thereof each of them was to suffer further S.I. for three months. Benefit of section 382‑B, Cr.P.C. was extended to Wahid Bakhsh, Atta Muhammad and Lal Bakhsh appellants.

2. However, all the appellants were acquitted by the learned trial Court of the charge of murder of Mst. Janoo Mai on the basis of compromise affected between the legal heirs of Mst. Janoo Mai and the appellants.

3. Feeling aggrieved, Allah Ditta, Atta Muhammad and Wahid Bakhsh‑appellants through Criminal Appeal No.271 of 2003 and Lal Bakhsh‑appellant through Criminal Appeal No.263 of 2003 have challenged their convictions and sentences. Murder reference seeking confirmation of death sentence of Allah Ditta has also been placed before us. We propose to decide all these matters by this consolidated judgment.

4. Hakim Ali, S.I./S.H.O. (P.W.12) on 29‑4‑2001 at about 8‑15 p.m. while he was present alongwith other police officials near Yazman Petroleum recorded the statement (Exh.P.A.) of Allah Bachaya (P.W.2). On the basis .of complaint Exh.P.A. formal F.I.R. Exh.P.A./1 Sr. No.167 was registered at Police Station Yazman, on 29‑4‑2001 at 8‑30 a.m. for offence under section 302/34, P.P.C. by Ghulam Muhammad, S. I..(P.W.7).

5. The relevant facts as given in the F.I.R. are that the complainant and Muhammad Bakhsh alias Mamli (husband of sister of the complainant) lived in Chak No.83/DB. For the last 6/7 months, prior to the occurrence. Muhammad Bakhsh had shown his intention to contract second marriage with Mst. Janoo Mai widow of Ghulam Muhammad. Wahid Bakhsh appellant was negotiating With Lal Bakhsh appellant (a cousin of Mst. Janoo Mai) on that regard. Wahid Bakhsh used to charge money for his services from Muhammad Bakhsh but inwardly he sided with Lal Bakhsh, who had asked the complainant that he should warn Muhammad Bakhsh to let Mst. Janoo Mai alone. The complainant conveyed the message to Muhammad Bakhsh, who stated that he would get the hand of Mst. Janoo Mai at all costs. Muhammad Bakhsh usually used to go in the morning to Mosque Chowk Dubai within the vicinity of Chak No.83/DB and return to his, house at about Eesha time. On 28‑4‑2001 Muhammad Bakhsh did not return to his house till 10‑00 p.m. The complainant got worried and narrated the story of Muhammad Bakhsh to P.Ws. Allah Palia resident of Chak No.78/DB and Muhammad Bakhsh son of Rahim Bakhsh resident of Chak No.80/DB, who were sitting with the complainant. The complainant carried a torch and went to Dubai Chowk alongwith S. Muhammad Bakhsh and Allah Palia. When they reached there they were informed that Muhammad 13,akhsh had accompanied Wahid Bakhsh to the house of Lal Bakhsh. The complainant got worried and he alongwith P.Ws. rushed towards the house of Lal Bakhsh. At about 11‑00 p.m., when the complainant party was at a distance of two Acres from the house of Lal Bakhsh, they heard hue and cry of Muhammad Bakhsh. When the complainant reached near the heap of wheat crop, they saw in the torchlight that Allah Ditta appellant was causing injuries on the neck and chest of Muhammad Bakhsh with hatchet. Muhammad Bakhsh fell on the ground. Atta Muhammad raised Lalkara that nobody should intervene otherwise he would lose his life. Meanwhile, Lal Bakhsh reached the spot. He was carrying Mst. Janoo Mai on his back, while Wahid Bakhsh was holding the hands of Mst. Janoo Mai. They threw Mst. Janoo Mai on the ground near Muhammad Bakhsh. Atta Muhammad took hatchet from Allah Ditta and caused blow on the neck of Mst. Janoo Mai. Thereafter all the accused left the scene of occurrence. Muhammad Bakhsh and Mst. Janoo Mai died at the spot. According to F.I.R., leaving Muhammad Bakhsh and Allah Palia with the dead bodies, the complainant left the spot to report the matter to the police.

6. After drafting the complaint on 29‑4‑2001 at 8‑15 p.m. Hakim Ali S.I. (P.W.12) proceeded towards the scene of occurrence and collected blood‑stained earth from the places where the dead bodies of Muhammad Bakhsh and Mst. Janoo Mai were lying, vide memo. Exh.P.B. and Exh.P.C. attested by Allah Palia P.W.3 and Muhammad Bakhsh, who was not produced during the trial.

7. On 2‑5‑2001 Allah Ditta, Atta Muhammad and Lal Bakhsh accused were arrested, while Wahid Bakhsh was arrested on 7‑5‑2001. On 16‑5‑2001 Allah Ditta while in custody led to the recovery of blood stained hatchet P.1 from his house, which was secured vide memo. Exh.P.D. attested by witnesses mentioned above. However, no recoveries were effected from the rest of the accused.

8. Dr. Bushra Tariq (P.W.5), who conducted the post‑mortem examination on the dead body of Mst. Janoo Mai, took two vaginal swabs of the deceased, which were sent to the Chemical Examiner for detection of semen. According to the report of Chemical Examiner Exh.CD‑A, the swabs were found to be stained with semen.

9. After completion of investigation, the appellants were sent up to face trial. As they denied the charges and claimed to be tried, the trial commenced.

10. During trial, the prosecution produced 12 witnesses in support of its case. Allah Bachaya (complainant) P.W.2 and Allah Palia P.W.3 furnished the ocular account. They stated in accordance with the story given, in the F.I.R. P.W.2 also stated about the motive but only to the extent that Muhammad Bakhsh wanted to contract second marriage with Mst. Janoo Mai and for that purpose he had asked Wahid Bakhsh to arrange marriage, who had contacted Lal Bakhsh, a cousin of Mst. Janoo Mai, on that regard. P.W.3 stated about the recoveries from the spot and from the possession of Allah Ditta as well. Dr. Irshad Ahmad appeared as P. W .6 and stated that he had conducted post‑mortem examination on the dead body of Muhammad Bakhsh on 29‑4‑2001. He had observed three injuries on the dead body, which were caused by a sharp‑edged weapon. According to his opinion, Injury No.1 and Injury No.2 had caused death of Muhammad Bakhsh. Dr. Bushra Tariq appeared as P. W .5 and stated that on 29‑4‑2001 she had conducted post mortem examination on the dead body of Mst. Janoo Mai and had observed two injuries on her body. One injury was caused by a sharp edge weapon on the right side of .neck, while the second injury was multiple abrasion on right buttock. According to her opinion, Injury No.1 had caused death of Mst. Janoo Mai. She stated during cross examination that two vaginal swabs were taken during the post‑mortem examination and were sent to the Office of the Chemical Examiner, Lahore, for detection of semen. Hakim Ali, S.I., appeared as P.W.12 and stated about the drafting of complaint and investigation of the case. The rest of the witnesses are formal in nature and need not be discussed.

11. The statements of the appellants were recorded under section 342, Cr.P.C. Wahid Bakhsh, Atta Muhammad and Lal Bakhsh took the plea of innocence and stated that they were roped in the case because of their relationship with Allah Ditta‑appellant. Allah Ditta appellant took the plea that he had committed the murder of Muhammad Bakhsh and Mst. Janoo Mai under grave and sudden provocation as he saw the two deceased committing Zina. The plea taken by Allah Ditta is being reproduced for ready reference:‑‑ "Muhammad Bakhsh and Mst. Janoo Mai deceased had illicit relations with each other. On the night of occurrence I was coming back to my home after labouring. When I reached at the distance of two acres from my house I heard some slow noises. When I reached near then I saw my mother Mst. Janoo Mai and Muhammad Bakhsh in naked position busy in committing Zina with each other. On seeing this I became emotional and I lost my control, so firstly I committed murder of Muhammad Bakhsh and then Mst. Janoo Mai with hatchet. After reaching in the Basti I told this fact to the people and on the morning time, I handed over myself to police on my own‑self. Atta Muhammad and Wahid Bakhsh got arrested me and police had involved them in this case wrongly. At the time of occurrence no P.W. was present at the place of occurrence." The appellants did not appear as .witness in their defence tinder section 340(2), Cr.P.C. and also did not produce any defence witness during trial.

12. The learned counsel for the appellants have argued that it was an un-witnessed occurrence; that the P. Ws. were not only related to the deceased 'but also were chance witnesses; that the ocular account furnished by P.Ws.2 and 3 was not supported by the circumstances of the case; that Wahid Bakhsh, Atta Muhammad and Lal Bakhsh had not participated in the occurrence; that the plea taken by Allah Ditta appellant was born out from the circumstances of the case; and the case of Allah Ditta squarely attracted the provisions of section 302(c), P.P.C.

13. Conversely, the learned counsel appearing on behalf of the State has argued that mere relationship of P. Ws. with the deceased would not enough to discard their testimony; that delay in reporting the matter to the police was plausibly explained by P.W.2 during his statement recorded by the learned trial Court; that the ocular account was supported by the medical evidence and motive; that the ocular account qua Allah Ditta was corroborated by the factum of recovery of blood stained hatchet and his own admission made in the statement recorded under section 342, Cr.P.C.

14. We have heard the learned counsel for the parties and gone through the record of the case. Admittedly the occurrence took place in the mid of night (at 11‑00 p.m.) in a field about two Acres away from the house of Lal Bakhsh appellant. P.Ws.2 and 3, who are very close relatives of the‑deceased, claim to reach in time and see the occurrence, per chance. Their evidence needs close scrutiny.

15. It has been noticed by us that though the occurrence took place the matter was reported to the police at 8‑15 in the morning, after more than nine hours. According to P.W.2 the reason for delay was that no conveyance was available at, that hour of the night. However, he admitted that the distance between the place of occurrence and his house was One Km and that the distance between Adda Mukdi and his house was also One Km. He also admitted that Adda Mukdi is on the metalled road leading to Yazman and the distance between Adda Mukdi and Yazman was 4/5 Km. However, he denied the suggestion that Buses and Wagons were always present at Adda Mukdi. On the same point P. W .3 stated that Mukdi was a large Adda and conveyance was available there 24 hours. It is also noteworthy that according to this P. W. he went to his Chak in search of conveyance but when he reached there he did not inform anybody about the occurrence. A perusal of the statements of P.Ws.2 and 3 reveals that delay in lodging the F.I.R. could not be plausibly explained.

16. According to prosecution story when P.Ws. reached the scene of occurrence Atta Muhammad and Allah Ditta accused were present there and Allah Ditta caused injuries with hatchet on the person of Muhammad Bakhsh, who fell down. Meanwhile, Lal Bakhsh and Wahid Bakhsh accused carried Mst. Janoo Mai to the scene of occurrence and threw her near the body of Muhammad Bakhsh and thereafter Atta Muhammad after taking hatchet from Allah Ditta gave injury on the neck of Mst. Janoo Mai. This story is totally belied by the medical evidence. Dr. Bushra Tariq stated on oath that vaginal swabs of Mst. Janoo Mai were taken during post‑mortem examination and were sent to the Chemical Laboratory for examination. The report of the Chemical Examiner Exh.CD‑A is available on the record, according to which, the swabs were stained with semen. This concrete fact speaks volumes against the veracity of the statements of P.Ws. 2 and

3. It is not the prosecution case that any of the accused, who were closely related to Mst. Janoo Mai and one of them namely Allah Ditta was her son, committed sexual intercourse with Mst. Janoo Mai (who was widow), prior to the occurrence. Allah Ditta appellant has taken a specific plea by stating that he had seen both the deceased committing Zina, thus, he lost control and committed their murder under grave and sudden provocation. According to the guidelines given by the apex Court in the cases of Khalid Javed and another v. The State (2003 SCMR 1419) and Ashiq Hussain alias Muhammad Ashraf v. The State (PLD 1994 SC 879) all the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factor favouring the plea in defence to elicit the truth. Muhammad Sarwar, Constable/P.W.8, who had taken the dead bodies from the spot to the mortuary and had accompanied the S.H.O./Investigating Officer to the scene of occurrence, stated that the dead bodies were naked and were covered with a Chadar and it was Investigating Officer who put clothes on the dead bodies. Similar statement was made by Muhammad Amin P.W.10, who had identified the dead bodies before post‑mortem. According to F.I.R., Muhammad Bakhsh had accompanied Wahid Baksh but at the time of occurrence Wahid Bakhsh was not present there and allegedly he and Lal Bakhsh carried Mst. Janoo Mai to the spot. The first question which arises in the mind is that why should the appellants commit murder of Mst. Janoo Mai after killing Muhammad Bakhsh. There was no need to kill Mst. Janoo Mai, as the source of insult had already been done away with. It was stated in the F. I. R. that Muhammad Bakhsh deceased wanted the hand of Mst. Janoo Mai at all costs and Wahid Bakhsh appellant played a role of go between and he was paid for his services by Muhammad Bakhsh deceased. This fact hints at the relationship between Mst. Janoo Mai and Muhammad Bakhsh. The story put forward by the prosecution that Atta Muhammad, who was empty‑handed took the hatchet from Allah Ditta and inflicted injury on the neck of Mst. Janoo Mai, to say the least, is ludicrous.

17. The upshot of the whole discussion is that we are of the view that P.Ws. had not seen the occurrence and that the complainant being related to Muhammad Bakhsh deceased carved out the story much later after knowing about the murders of Mst. Janoo Mai and Muhammad Bakhsh. This leaves us with the plea taken by Allah Ditta appellant during trial that he had committed the murder after seeing the deceased committing Zina under grave and sudden provocation. Plea of Allah Ditta not only finds support from the above noted circumstances but also by the admission of Hakim Ali S.‑I./S.H.O. (P.W.12), who had investigated the case that it had come to his knowledge during investigation that Muhammad Bakhsh and Mst. Janoo Mai (both deceased) had illicit relationship.

18. Consequently, we alter the conviction of Allah Ditta appellant from offence under section 302, P.P.C. to section 302(c), P.P.C. and sentence him to undergo rigorous imprisonment for 10 years. Benefit of section 382‑B, Cr.P.C. is extended to him. The order of the learned trial Court relating to the compensation is maintained. This appeal to his extent is, therefore, partly allowed. Murder reference is answered in the negative. Death sentence is not confirmed.

19. As far as the case of Wahid Bakhsh, Atta Muhammad and Lal Bakhsh is concerned, in view of the abovementioned detailed discussion, this appeal to the extent of appellants Atta Muhammad, Wahid Bakhsh and Criminal Appeal No.362 of 2003, filed by Lal Bakhsh appellant are allowed. The judgment passed by the leaned trial Court qua them is set aside. They are acquitted of the charge. They would be released from Jail forthwith, if not required in any other case. N.H.Q./A‑135/L Order accordingly.