1985 PLP 1604 (MLD)

IJAZ NISAR, J.--Ghulam Qasim (30) and his brother Ghulam Akbar (20) sons of Allah Jewaya, residents of Village Drigri, Tehsil and District D.G. Khan were tried for the murder of Muhammad Shaft deceased (34) by the learned Additional Sessions Judge, D.G, Khan, vide judgment, dated 25-10-1981, the learned Additional Sessions Judge, convicted Ghulam Qasim appellant under section 302, P.P.C. and sentenced him to death and a fine of Rs.2,000 or in default to suffer 6 months' R.I. He was also directed to pay Rs.2,000 as compensation to the heirs of the deceased or in default to undergo 6 months R.I. Ghulam Akbar was, however, given the benefit of doubt and acquitted. We have before us the appeal filed by Ghulam Qasim and the connected murder reference.

2. About two years prior to the occurrence Ghulam Qasim appellant had abducted Mat. Bhairo Mai, wife of Shaft deceased who was later got restored to the deceased through the intervention of a Punchayat. The appellant was not happy over her restoration and hence he with the help of his brother Akbar murdered Shan deceased. On 6-5-1980 at 9-10 a.m. Hamid P.W.6. Jindu P.W. (given up) and the deceased were proceeding towards their land for wheat thrashing. Jindu and the deceased were going ahead of Hamid P.W. When they reached the area of Band Fateh Wali the appellant and the acquitted accused emerged out of bushes. The appellant .was armed with a rifle while Akbar carried a Sota. The former fired at the deceased but the shot went amiss. Akbar grappled with Shaft deceased. Whereafter Ghulam Qasim appellant inflicted blows on the deceased with the butt of his rifle hitting his head, face and neck as a result of which he fell down. In the meantime, Rustam P.W.7 also reached there. The P.Ws tried to rescue Shaft deceased but the accused threatened them. The accused then left the spot with their weapons. Shaft succumbed to the injuries there and then. Hameed P.W.6 reported the matter to the police by lodging the F.I.R. Exh.P.D. at Police Station Harand, on the same day at 4-30 p. m. The distance between the spot and the police station, being 14 miles.

3. After recording the F. I. R., S. I. Muhammad Sadiq P. W.8 reached the spot. He prepared the injury statement Exh. P.G.and the inquest report Exh.P.H. of the deceased. On the following day, he arrested the accused, Ghulam Qasim appellant led to the recovery of rifle P.5 from a Khola underneath a heap of wood. It was secured through memo. Exh.P.F. attested by Rustam P.W.7 and Mahla P.W. (given up). After completing the investigation, he challaned the accused.

4. On 7-5-1980 at 11-00a. m. Dr. Hasnain Pitafi. Medical Officer Civil Hospital, Jampur conducted the post-mortem examination on the dead body of Shafii deceased and found the following injuries thereon: (1) A lacerated wound 3" x 1" x fracturing the underlying skull bone on, the back of middle of head. (2) A lacerated wound 3" x 1" x fracturing underlying skull bone on the back of middle of head. (3) A contusion 2" x 2" on the back of neck. (4) The nose was bruised and there was fracture of nasal bone. All the injuries were anti-mortem caused with blunt weapon. Injuries Nos. l and 2 were fatal while injury No.4 was grievous. Injury No.3 was simple. Death was due to shock and haemorrhage consequent upon injuries Nos.l and

2. The probable duration between injuries and death was from 1/2 to 1 hour and that between death and post-mortem 26 to 30 hours. Exh. P.A. is the post-mortem report.

5. The prosecution examined 8 P.Ws. in support of its case. Hamid P.W.6 is the complainant in the case. He deposed about the motive and the occurrence. Rustam P. W.7 testified to the occurrence as also recovery of rifle at the instance of the appellant. Muhammad Sadiq S.I., P.W.8 arrested the accused and carried out the investigation.

6. The appellant pleaded not guilty to the charge and denied the prosecution allegations. He attributed the case to enmity. He tendered in evidence a certificate Exh.D.B. issued by the Chairman, Union Council, Rajanpur showing that Muhammad Shafi deceased had divorced his wife, Mst. Bahairo Mai on 26-5-1978 which became effective on 30-8-1978.

7. The learned trial Court disbelieved the motive and the recoveries but relying upon the ocular evidence convicted the appellant.

8. Impugning the judgment, learned counsel for the appellant states that both the eye-witnesses are chance witnesses and lived at al considerable distance from the place of occurrence, they had been disbelieved qua Ghulam Akbar accused and as such should not have A been believed against the appellant without any independent corroboration. The recovery of rifle court not furnish the required corroboration as it had been disbelieved by the trials Court. The motive had also been disbelieved by the trial Court. The record shows that the deceased had other enemies as well, who could also be interested in his murder. According to the prosecution, the appellant was interested to get back Mst. Bhairo Mai, wife of the deceased but the latter was proving to be a hurdle in his way and so he was murdered. Hut Certificate Exh.D.6. issued-by the Chairman Union Council, Rajanpur gives a great setback to this part of the story as according to it nearly 1-3/4 years prior to the occurrence the deceased had divorced Mst. Bhairo and the Talaq pronounced by him to Mst. Bhairo Mai had even become effective. It is not understandable how in these circumstances could the deceased be opposed to the marriage of the appellant with Mst. Bhairo. The deceased was nephew as well as son-in-law of Hamid P.W.6. Mst. Bhairo Mai, wife of the deceased was his daughter. The appellant had enticed her away two years prior to the occurrence. Hameed P.W. admitted in cross-examination that Malik Hussain uncle of the appellant had caused injuries to him for which a case under section 307, P.P.C. was registered against him but he was acquitted. Hamid P.W. stated that in those days he was cultivating the land of Fazal Khan as his) tenant and when asked as to whether his came was entered in the Khasre Girdawari he replied in the negative. This question was asked from him to test as to whether there was soy genuine cause for his presence at the spot at the relevant time bur he evaded it stating that his landlord did not allow the Patwari to enter their names in the Khasra Girdawari apprehending that the tenants may not become the owners under the land reforms. Muhammsd Afzal Patwari P.W.4 contradicted him stating that the land in question was under the occupation of owners and not under the occupation of any tenant- He further stated that according to the Khasra Girdawari neither the deceased nor Hameed nor Rustam P.Ws, were cultivating any land as tenants in village Bhakkar. Rustam P.W.7 stated that he alongwith others was challaned for the murders of Mst. Banar and Mst. Anar and that one Allah Ditta had appeared as a P. W. in the said case against him but he expressed ignorance as to whether that Allah Ditta was a first cousin of the appellant's father. He admitted that he lived at a distance of two miles from Mauza Fatehpur and was at a distance of 40 C Karams when he heard the rifle fire. According to him, he was going to his land when he witnessed the occurrence but no such thing was mentioned in his statement Exh.D.A. with which he was duly confronted. According to the Patwari, he was not cultivating any land as per entries of Khasra Girdawari. He has been disbelieved by the trial Court on the point of recovery of rifle from the appellant. He does not appear, to be a natural witness and it would be unsafe to rely on him without any corroboration. In the circumstances of the case the medical evidence cannot be said to be furnishing the required corroboration- It stands established from the evidence that the deceased had enmity with others which could also lead to his murder. Piran P. W.5 admitted that a case had been registered against the deceased for committing rape with Mst. Bakhtawar, daughter of Qadir Bakhsh, and he was acquitted) 2-3 months before the occurrence. According to him the father of Mst. Bakhtawar lived in Mauza Bhakkarpur at a distance of three miles from the house of the deceased.

9. Keeping in view the above circumstances, the prosecution has not been able to prove its case against the appellant beyond all reasonable E doubt. Accordingly, we accept the appeal, set aside the conviction and sentence of the appellant and acquit him of tie charge by giving him the benefit of doubt. He shall be released forthwith if not required in any other case. The death sentence is NOT confirmed. H.A.K Appeal accepted.