1986 PLP 1158 (MLD)

(6) Stab wound clean cut 6 c.m. x 2 c.m. left side of !he abdomen 11 c.m. above the navel at 2 O'clock; (7) Stab wound 4 c. m . x 1 c. m . x going deep on the back left lumber region; (8) Stab wound 2 c.m. x i c.m. back mid over lower dorsal vertebra. Death was due to shock and haemorrhage. In the opinion of the doctor, injuries Nos. 3, 4, 5 and 6 were individually sufficient to cause death in the ordinary course of nature. On the same day at 12‑00 noon the same doctor conducted the autopsy on tNe dead body of Kallo Khan and found the following injuries on it:‑ (1) 7 fire‑arm wounds of entry in area 5 c.m. x 2 c.m. on the outer upper half of the right arm each about 1 c.m. circular having their exits at the same level on the inner.aspect of the right arm; (2) 6 fire‑arm wounds of entry in crea 11 c:m. x 9 c.m.' on the right chest below and outer to the nipple each 1 c.m. circular; (3) 2 fire‑arm wounds of entry 1 c.m. each on the back of the left arm upper part close to each other; (4) 2 fire‑arm wounds of entry 1 c.m. each on the back of left shoulder close to each other; (5) Fire‑arm wounds, of entry 1 c.m. circular in front of left ear (6) Abrasion 2 c. m . x 11 c. m . just below injury No. 5 (7) Lacerated wound 1 c.m. x c.m. x scalp on the back lower part right side of the head; (8) Incised wound 1 c.m. x c.m. x muscle deep on the top of the right 'shoulder; (9) Stab wound clean cut 3 p.m. x 1 c.m. x going deep on the front lower left chest 9 c.m. below the nipple at 7 O'clock; (10) Stab wound clean cut 3 c.m. x 1 c.m. x going deep 2 c.m. below injury No.8 and parallel to it; Death was due to shock and haemorrhage. Injuries Nos.2, 9 and 10 were individually sufficient to cause death in the ordinary course of nature.

5. In support of its case the prosecution examined two eye‑witnesses namely Nawaz cemplainant and Mst. Sharifan. It also relied on the evidence relating to motive and recoveries and the reports of Chemical Examiner and the Fire Arms Expert.

6. The accused persons pleaded not guilty to the charge. Acquitted accused Ghulam Muhammad admitted that Muhammad Hanif and Haji Muhammad accused were his sons, Mst. Rehmat Bibi was his wife and Mst. Khurshid Bibi, Hanifan Bibi and Sharifan Bibi were his daughters. He, however, stated that Hidayat accused was not known to him. He admitted that his wife and daughters had left his house but added that since they had left in his absence, he did not know where they had gone. When asked whether Mst. Rehmat Bibi deceased had sought divorce from hire prior to the occurrence he stated that he did not receive any with any divorce case. He further stated that his daughters were residing in the house of Nawaz Khan in village Babliana but he did not know where Mst. Rehmat Bibi and Kallo Khan deceased were residing upto the time of occurrence. When asked to explain as to why this case against him, he made the following statement:-- "I had got registered a case regarding the abduction of Mst. Rehmat Bibi deceased and my three daughters aforementioned against Muhammad Nawaz P.W. and his nephews both paternal and maternal and his son also and his real brother Kallo Khan deceased. Apart from this another case under Hudood Ordinance of 1979 was also registered regarding the above‑said abduction by mhternal‑uncle of my daughters against these very Kama] Din P.W. including Mst. Hussaini and other P.Ws of this case (sic). I have also been putting pressure of the respectables of recovery of my daughters. This case is the result of tnai grudge entertained by Muhammad Nawaz, Mst. Hussaini P.W., Muhammad Ashraf son of Kallo Khan deceased against me. The above‑said persons were arrested in consequence of the registration of the case against them. This grudge and ill will of the Nawaz Khan and other P.Ws. was further aggravated due to the arrest of Mst. Hussain P.W. and Anwar son of Murad Khan deceased against me." Haji Muhammad appellant stated that Muhammad Nawaz, Mst. Hussaini, Anwar and Ashraf P.Ws. were inimical towards his father Ghulam Muhammad and maternal‑uncle Kamal Din due to registration of cases of abduction and Zina. He maintained that he was falsely implicated due to that enmity. When asked why the P:Ws. had deposed against him, he made the following statement:

. "Due to grudge, illwill stated above. My sister Sharifan Bibi has deposed against me. My father and brother under the pressure and coercion of the highest degree put. by the complainant party. Different Courts of law have been directing the recovery of my sister including Sharifan Bibi P.W. from the illegal confinement and possession of the complainant party but the complainant party desparately defied the orders of the Court and threatened them i.e. my sisters with dire consequences in case they state the truth and do not depose against me and my co‑accused. To keep my sister Mst. Sharifan Bibi P.W. in their clutches for the purpose of false deposition against me and my co‑accused the complainant party of this case staged a false marriage of her with one of members of the complainant party which is being inquired by learned Guardian Judge at Lahore on the application of her real husband Muhammad Sharif." Muhammad Hanif appellant also made similar statement. The accused persons examined Muhammad Siddique and Muhammad Hussain in defence. Muhammad Siddique stated that on the night of occurrence at about 10/10‑30 p.m. he along with many other person rushed to the spot on hearing the fire report and saw a woman lying dead and an injured man in precarious condition. No one was present there when they reached the, place of occurrence. A short while after one Hukam Din and Hasan Din, Vice‑Chairman also came there. Thereafter, Police also reached the place of occurrence and asked the persons present there to bring the relative of the deceased. Thereafter, Hasan Din, Hukam Din, and others went to village Babliana in a bus driven by Mushtaq and informed Nawaz complainant, Ashraf P.W. and others about the occurrence. Upon this information Ashraf and Nawaz accompanied Hasan Din etc. to the spot. Muhammad Hussain D.W.2 sated that on the night of occurrence at 10/10‑30 p.m. he heard port from the adjoining house where a man and woman were residing 24 months prior to the occurrence, He further stated that no r since body else was residing in the said house. Mst. Khurshid Bibi daughter of acquitted accused Ghulam Muhammad and Mst. Rehmat Bibi deceased, was examined as a Court witness. She stated that at the time of occurrence she and her sister Mst. Sharifan P.W. were residing in village Babliana. She further stated that her mother got divorce from her father 1i years prior to the occurrence and thereafter contracted marriage with Kallo Khan deceased.

7. The trial Judge accepted the prosecution evidence against Haji Muhammad and Muhammad Hanif accused and on its basis convicted and sentenced them as mentioned above. Hidayat and Ghulam Muhammad were, however, acquitted on benefit of doubt.

8. Learned counsel for the appellants contended that the F.I.R. was recorded at the spot after preliminary investigation and a concocted story was incorporated therein; presence of both the alleged eye‑witnesses is not at all established and the recoveries of crime empty and weapons of offence being fake, the reports of the Chemical Examiner and Fire Arms Expert are of no consequence. The learned counsel for the state, on the other hand contended that Mst. Sharifan Bibi the real sister of the appellants, therefore, it is unbelievable that she would falsely implicate them in a case involving capital punishment.

9. The prosecution version of the occurrence is supported by two eye‑witnesses namely Nawaz complainant and Mst. Sharifan Bibi daughter of Rehmat Bibi deceased and sister of the appellants. Nawaz P.W. is a resident of Village Babliana situate at a distance of 1i miles from Raiwind Town. Kallo Khan deceased was his real brother. The case of the prosecution is that on 19‑4‑1981 at about 8‑00 p.m. Mst. Hussain P.W. wife of the complainant, was returning home from the fields after cutting wheat crop when, on the way, she saw the accused at the Dera of Fateh Muhammad hatching a conspiracy to kill the deceased. On reaching home she apprised her husband Nawaz complainant of the situation, who at once, started for Raiwind Town to inform his brother of the design of the accused. According to the complainant, he was talking with the deceased when at 10‑30 p.m. the appellants Haji Muhammad and Ghulam Muhammad entered into the courtyard of the house of the deceased persons and attacked them. In cross‑examination suggestions were put to Nawaz complainant that he was informed of the occurrence at his house by some resident of Raiwind at mid‑night and upon that information he went to the Police Station and was made the complainant of this case. Although, these suggestions were denied by him, the facts and circumstances clearly indicate that the story narrated by Mst. Hussaini regarding the alleged conspiracy is a mere fabrication and there was absolutely no occasion for Nawaz complainant to have gone to Raiwind to lay information of the so‑called conspiracy befor his brother. Nawaz complainant is the husband of Mst. Hussaini. Deen is their son. He is a grown‑up married boy. It is very strange that both father and son were at t;ieir house but Mst. Hussaini who was supposed to be there at night was away to the fields for cutting the wheat crop and remained there till 8‑00 p.m. The story narrated by her is so unnatural and improbable that, it does not inspire any confidence whatsoever. She stated that she was at a distance of one or two fee from the accused when she heard them "talking about the planning to murder Kallo Khan. I stopped there for about a minute and identified all the accused one by one." It is very strange that the accused persons took no notice of her presence and allowed her to hear their talk and to identify each of them one by one. She is a witness of late appearance. According to her own showing she made her statement before the Police eight days after the occurrence. Nawaz complainant is an old man of 60/62 years. He admitted that due to illness and old age his memory had become weak. He admitted that he could count only upto 20 or 30 but not upto

100. He claims to, have gone to Raiwind from his village on foot to inform his brother that the accused were planning his murder. He admitted that prior to the occurrence he had never visited the house in which the occurrence took place. I am reluctant to believe, that is old man whose memory had faded due to illness and who could not count upto 100, would undertake this journey to Raiwind all alone during the dark hours to visit the house of his brother which he had never seen before. According to him his grown‑up son Deeno was present in the house when his wife Mst. Hussaini came there carrying information that the accused were planning to kill Kallo Khari deceased. Muhammad Ashraf. P.W, (not produced) son of Kallo Khan is also a resident of the same village. The complainant could conveniently ask his son and aforesaid Muhammad Ashraf to go to Raiwind and apprise Kallo Khan deceased of the situation. The presence of the complainant at the spot is thus not, established end it appears that he was imported from village Babliana after the occurrence and set up as complainant in this case. It is also to be noted that there was no love lost between the accused person and the complainant and if he had been, present at the spot they would not have spared him. He admitted that his son Deeno, Kallo Kha deceased and others were accused in a case of abduction registered at the instance of Ghulam Muhammad accused. He, however, denied that he himself was also an accused in that case. Mst. Sharifan admitted that in the second case of abduction registered at the instance of the accused in this case, Nawaz Khan P.W. was an accused along with Deeno etc. Mst. Hussaini, wife of the complainant, further admitted that a case under the Hudood Ordinance was registered against her son Din Muhammad and her husband, on the report of Kamal Din a relative of acquitted Ghulam Muhammad. It is in evidence that aforesaid Kamal Din is the maternal‑uncle of the appellants.

10. According to the prosecution, Mst. Sharifan P.W. and her sisters were residing with their mother Rehmat Bibi deceased in the house of Kallo Khan ever since she eloped with him. The case of the defence, however, is that the daughters of Mst. Rehmat Bibi were residing in village Babliana in the house of Kallo Khan deceased and were not present at the spot when the occurrence took place. It is the prosecution's case that Kallo Khan deceased enticed away Mst. Rehmat Bibi who obtained a decree for dissolution of marriage and thereafter contracted marriage with Kallo Khan deceased. However, no document was produced to support the version that the marriage of Mst. Rehma Bibi with Ghulam Muhammad stood dissolved. The evidence shows that Kallo Khan had left his native village Babliana and taken up residenc at Raiwind. Mst. Khurshid Bibi (C.W.1) was examined as a Cour witness. She stated that at the time of occurrence she and her siste Mst. Sharifan Bibi were in village Babliana. In cross‑examination b the defence counsel she admitted that on the fateful night some respectable of Raiwind came to village Babliana and told them that Mst. Rehmat Bibi and Kallo Khan had been murdered by some body. A that time, Ashraf son of Kallo Khan deceased, Nawaz Khan complainant and other members of the family were also present. Muhammad Hussai (D.W.2) who resides just in the adjacent house stated that in the house of occurrence only one man and one woman were residing sine 2J months prior to the occurrence. A glance at the site plan would show that the house of Muhammad Hussain has a common wall with th house of occurrence. He is an unconnected person having no motive t support one party and oppose the other. Mst. Sharifan stated that she did not know the names of any of the neighbour and persons residing near the house of occurrence. This fact lends substantial support t the view that she was not residing in the house of occurrence. Had she seen, at least she must have known the name of her next door neigh bourer. House of Kallo Khan consisted only of one room. According the complainant the covered area was only half a Marla. In the beginnin Mst. Rehmat Bibi had eloped with Kallo Khan deceased to promote he illicit liaison. Probability is in favour of the view that only both o them might be residing in that small house. The appellants have stated that Mst. Sharifan deposed against them under the pressure of highest degree put by the complainant party. According to them, the complainant party staged a fasle marriage of Mst. Sharifan with a member of their family (Moor Muhammad) anti an application made by her red: husband Mrrhammad Sharif in that connection was pending in the Court of Guardian Judge, Lahore. Mst. Sharifan Bibi stated that she was married with Noor Muhammad about "two years back on 16th of 9th month" i.e. about six months prior to the occurrence. She admitted that she is Dogar by caste while Noor Muhammad is a Meo i.e. a caste‑fellow of Kallo Khan deceased and Nawaz complainant. She further admitted that none of her relatives had participated in the Nikah ceremony. She also admitted that one Muhammad Sharif had filed an application in the Court of Guardian Judge, Lahore, alleging that she was married with him prior to her marriage with Noor Muhammad and that case was pending in the said Court. Mst. Sharifan had contracted marriage with a member of the Baradri of Kallo Khan deceased against the wishes of her father and brothers. They must have felt annoyed over this marriage and had she been present at the spot, in all probability she would have met the same fate as her mother.

11. The ocular account furnished by Mst. Sharifan is highly unnatural and does not inspire any confidence. In examination‑in‑chief she gave a photographic description of the occurrence. She gave all the details as to who caused injuries to whom and on which part of the body but in cross‑examination, while trying to explain way she and the other inmates of the house escaped unhurt, she came up with the version that when the accused came inside, she and other members hid themselves in the bathroom and them caused could not cause any harm to them. If the so‑called eye‑witnesses had shut themselves in the bathroom then they could not have seen as to who assaulted whom and with what type of weapon. The assailant could conveniently attack Mst. Sharifan ane, Muhammad Nawaz even in the bathroom if they had been there but these eye‑witnesses were not available anywhere in he house of occurrence. In the circumstances, the ocular evidence produced by the prosecution is rejected.

12. The evidence relating to recoveries of crime empties and piece of lead from the spot and of weapons of offence from the appellants is also unsatisfactory. In this case the statement of the first informant was allegedly recorded at Manga Road at 12‑05 a.m. on 20‑4‑1981. In a case where F.I.R. is not recorded at the Police Station, the ordinary presumption is that it was recorded at the spot after the preliminary investigation. The presence of crime empty and pieces of lead at the spot does not find any mention either in the so‑called F.I.R. which was made after due deliberation or in any of the Inquest Reports of the deceased persons. These recoveries were allegedly effected in the presence of Muhammad Ashraf and Mst. Sharifan Bibi. Muhammad Ashra was given up by the prosecution. The statement of Mst. Sharifan regarding the actual occurrence has been disbelieved. In the evidence regarding these recoveries too cannot be accepted. The recoveries of weapons from the appellants were alleged effected in the presence of Muhammad Anwar and Naseeb Khan P.Ws. Muhammad Anwar is the son‑in‑law of the deceased. He was not examined Naseeb Khan repeatedly denied the suggestion that the deceased. This fact is, however, admitted by l Mst. Sharifan in cross‑examination dated 4‑10‑1982. He, thus, denied al patent fact obviously with a view to show that he is an independent witness. He stated that tie was present at the place of occurrence with Muhammad Anwar P.W. (not produced) represents yet another unsatisfactory aspect. ‑of the prosecution case. According to the prosecution, the statement of the complainant 'was recorded at 12‑05 a. m. on 20‑4‑1981. Bashir Ahmad S.I. prepared the lnjury Statements and Inquest Reports of both the dead bodies or the same night. He stated that he handed over the relevant papers to the Foot Constables for post‑mortern examination. Farmaish .All F.C, stated that he escorted both the dead bodies to the mortuary at Lahore. He further stated that he did not remember the date but it was day time and morning hours when the dead bodies were taken away. Muhammad Ashraf F.C. stated that dead body of Kallo Khan was given to him at 10‑09 a.m. on 20‑4‑1981. The post‑mortem examinations were conducted on 21‑4‑1981 at 11‑00 a.m. and 12‑00 noon. If the dead bodies had been despatched on 20‑4‑1981 as alleged by Muhammad Ashraf F.C., the same would have reached the mortuary within an hour or so and the post‑mortem examinations must have been conducted on the same day. It appears that the despatch of the dead bodies was deliberately delayed to gain time in order to build up a story so that the same could be incorporated in the Inquest Reports which were to be sent to the Medical Officer alongwith the dead bodies.

14. For all the foregoing reasons, I feel inclined to the view that the prosecution has, failed to prove its case against the appellants and H they are entitles o acquittal. I, therefore, accept this appeal, se aside the conviction and sentence of the appellants and acquit them of the charges. They shall be set at liberty forthwith if not required the detained in any other case. H.A.K. Appeal accepted.