1984 P Cr (PLP)

8. On the same day the same doctor examined Nut Muhammad, accused, and found a superficial incised injury one inch long between thumb and index finger of the right hand, a superficial incised wound 1/16' x 1/16" on the back and outer side of the right little finger and its terminal phalanx, four abrasions on the right thumb, left cheek, left side of forehead and left leg, and an area of pain in the left ear, all of which simple injuries were held to have been inflicted between two and four days. .

9. On 14th September, 1975, Bashir, accused, was arrested by the Investigating Officer.

10. On 17th September, 1975 Nut Muhammad, accused, led to the recovery of a blood-stained chhuri P. 8, his blood-stained shalwar P. 9 and his blood-stained shirt P. 10, which were taken into possession by the police, vide memo. Exh. P. D. Likewise, Lai Din, accused, led to the recovery of a blood-stained chhuri P. 1 l which was taken into possession vide memo. Exh. P: F. his blood-stained shalwar P. 12 and his blood-stained shirt P. 13, which were taken into possession vide memo. Exh. P. G. and his cycle P. 14, which was taken into possession vide memo. Exh. P. H. All of these recoveries were witnessed by Iftikhar P. W. 5, Qurban Ali S.

1. P. W. 10 and Ramzan (given up P. W.).

11. The bloodstained earth recovered from the spot and the various recoveries effected at the instance of Nur Muhammad and Lai Din, accused, were found to be stained with human blood. After completing the necessary, investigation, the challan against all the three accused was sent up.

12. At the trial, the prosecution produced Rahmat P. W. 7 and Munawwar Ahmad P. W. 8 to prove the motive, Munawwar Ahmad P. W. 8 and Nur Ahmad P. W. 9 in proof of the ocular account, Iftikhar P. W. 5 and Qurban Ali. S.

1. P. W. 10 in support of the recoveries and Dr. Muhammad Nawaz Chaudhry P. W. I1 to corroborate the medical testimony.

13. At the trial, Nut Muhammad, accused, admitted that Lai Din, accused was his real brother and that Bashir, accused, was his collateral, but denied all the allegations that were levelled against, him, including the recoveries effected at his instance. He also denied having constructed a kotha on the shamilat, as his parents had already constructed a house since long on the shamilat land. He also claimed that Chaudharis of the village wanted to dispossess them otherwise than through due process of law, as, such they became inimical towards his brother Lai Din and his parents. He also denied having participated in the occurrence and instead pleaded alibi. In reply to the question "how do you explain injuries found on your person at the time of your arrest?" he gave the following reply:- 'I was not present in the village. I did not participate in the occurrence so question of my receiving the injuries during the course of incident does not arise at all. Dr. Muhammad Nawaz P. W. is a close relative of the complainant party. Ch. Shah Nawaz M. P. A. who is also a close relative of the complainant party was persuing this case for the prosecution. The complainant party was yielding maximum influence. Ch. Shah Nawaz in collusion with the doctor and the police got procured this false piece of evidence regarding my injuries." In answer to the question "have you anything else to say? " he stated:- "I proclaim absolute innocence in the matter. The fact of the matter is that Budba Goraya village and the surrounding villages are inhabited by Goraya Jats. 1 have only house in the village. One Arif, deceased, was a bad character and he was in habit of cutting jokes with the womenfolk of the Moeens of village. On the day of occurrence be came down to our house and tried to outrage the modesty of wife of my brother Lai Din, co-accused, who has since died by an electric shock. He could not tolerate this insult and out of grave and sudden provocation and to save his wife from being ravished by the offender, Lal Din inflicted injuries upon his person i.e. Arif deceased, under the above-mentioned circumstances. The occurrence had taken place in our house. The eye-witnesses were pot at all present there and they have been made up as false witnesses of occurrence. The dead body was still lying in our house when the police arrived. Munawwar and Latif started chasing Lai Din and were able to overpower him at the place of occurrence. My brother Lai Din was a well-built strong man. He was compara tively much stronger than both of them. He in order to save his own life caused injuries on the person of Munawwar and Latif, deceased. The entire evidence was fabricated under the overwhel ming influence of Shah Nawaz M. P. A. People's Party during the days of occurrence. Six months prior to this occurrence, I had got married and shifted to village Gohadpur. I was not present in the village and I am a victim of malicious prosecution. A large number of persons including my bhabi had appeared before the police in order to testify my false involvement in this case. Besides this many applications before the concerned forums were made but all efforts ended in a smoke because of the influence of Shah Nawaz and others. The police was very much instrumental in the hands of the complainant party and had carried out partial investigation. I was narrated this incident by my bhabi and others."

14. Bashir, accused, also admitted his relations with Noora, co -accused. So far as the occurrence is concerned, he denied having parti cipated in the occurrence. He also pleaded alibi and gave the following detailed reply to the question "why this case against you and why P. Ws. have deposed against you 7" : "On 17th February, 1965. at maghrib prayer time, Gul Nawaz deceased the real uncle of Latif Ahmad deceased and Munawwar Ahmad, complainant, in the instant case and the real brother of Ch. Shah Nawaz Goraya ex.-M. P. A. in a state of drunkenness trespassed into my house and assaulted my wife with an intention to commit rape with her. The cries of my wife attracted me when I was returning after saying my maghrib prayer. I rushed to my house and saw that Gul Nawaz under the influence of liquor was holding my wife from her breast and his tehband had fallen off his body; I under grave and sudden provocation and in the exercise of the right of private defence of my wife's person murdered Gul Nawaz. In that murder case Inayat Ali (given up P. W.) the real brother of Gul Nawaz deceased was the first informant. Ghulam Rasool and his two sons namely Fazal Hussain and Ejaz Hussain and one Bashir Masih were involved falsely because with the former Gul Nawaz's family was on long standing political as well as criminal animosity and that with the latter (Bashir Masih) due to the fact that Gul Nawaz deceased was convicted and sentenced to 7 years' R. I. for committing rape upon Bashir Masih's wife prior to the said occurrence. I and my co-accused were acquitted on this charge, on 24th October, 1965 by Mr. K. M. A. Samdani, the then learned Sessions Judge, Sialkot. Said Bashir Masih was murdered by Munawwar Ahmad complainant on the night following the murder of Gul Nawaz and his murder remained untraced. With the murder of Gul Nawaz I alongwith my family members left village Budha Goraya for good due to the fear of being murdered by the brother's and nephews of Gul Nawaz. I am permanently settled in Ittefaq Colony, Gujranwala, since then. I am a labourer, poor man, Machhi by caste and Gul Nawaz's family is a land lord/Zamindar, one commanding the maximum influence in the village. Ch. Sarfraz Goraya and Shah Nawaz Goraya are the Ex-M. N. A. and Ex h. P. A., respectively out of the complainant family. On 8th September, 1975 at about 5-30 p. m., the alleged day and time of the occurrence, S. I. was present in my Mohallah Ittifaq Colony, Gujranwala. I was not present at the spot and did not commit the murder of Latif Ahmad and Munawwar Hussain, deceased. I had never come to the village Budha Goraya after 17th February, 1965. I do not know cycling. I have been falsely implicated in this case because of Gul Nawaz's murder. The complainant's family had pressurised Khan Muhammad, the father of Arif deceased, on the same day of occurrence to name me as an accused but he refused to accede to their illegal demands thus I have been saved in that murder case. As the witnesses are either close relations of Gul Nawaz or are his party men and have deposed against me because of animosity." He also offered to produce defence evidence.

15. The accused produced as many as three witnesses in defence. D. W. 1 Nawaz Ali deposed that Bashir, accused, was known to him for the last fifteen years. On 8th September, 1975, he and Bashir, accused, offered their Zohar prayer at 2-00 p. m. and Asar prayer at 4-00 p. m. bajamat in mohallah mosque, Ittifaq Colony, Gujranwala. On the follow ing day i. e. 9th September, 1975, when the police took away Bashir, accused, then he learnt that he was involved in a murder case. He also stated to have appeared before the Investigating Officer during the investi gation and made similar statement. He also stated to have not seen Bashir, accused, while cycling.

16. Abdul Rehman D. W. 2 deposed that Noor Muhammad, accused, was known to him as he was married in his village and used to sell eatables to school going children and had permanently shifted to and settled in village Gohadpur prior to the occurrence. On the first day at 10-00 a. m., the police came to the village and arrested Noora. Then he came to know that Noora was wanted in a murder case. He gave version to the thanedar that Noora remained in the village throughout the day. Similarly, a number of other persons made similar statements.

17. Mst. Mumtaz Bibi D. W. 3, widow of Lai Din, accused, deposed that Noora, accused, is the brother of her late husband Lai Din, accused (since dead). About seven or eight years back, she was present in her house. At about deegarwela, Arif, deceased, trespassed into her house and tried to outrage her modesty. She raised alarm, which attracted her husband Lai Din, who came down forthwith, took up the chhuri with which she was cutting vegetable and pounced upon him and killed him there and then. When the police came, the dead body of Arif Hussain was still lying in her house. She also stated that six months prior to this occur rence, Noor Muhammad, accused, used to sell sweetmeats in village Gohadpur and also shifted from village Budha Goraya permanently and was not present at the place of occurrence, nor he participated in the occurrence. Arif, deceased, was a notorious person and used to tease the womenfolk of moeens of the village. Lai Din then decamped from the spot with chhuri, who was chased by Munawwar Ahmad and Latif, deceased.

18. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical evidence, convicted and sentenced Noor Muhammad and Bashir, accused, as stated in para. 1 above.

19. I have heard the arguments of the learned counsel for the appellants and the State and have also perused the record. The evidence as regards motive is furnished by Munawwar Ahmad P. W. 8. and Rehmat P. W.

7. According to their testimony, there was a dispute between Munawwar Hussain Farqir, deceased, on one hand, and Nur Muhammad, appellant and Lal Din, deceased-accused, on the other, in respect of a plot of shamilat land where the deceased used to tether his mare and where the appellant and his deceased brother had tried to construct a residential kotha, part construction of which was also stopped. There was a dispute between the parties which took place a few months before the occurrence, wherein Nur Muhammad, appellant, and Lal Din, deceased accused, had a scuffle with Munawwar Hussain, deceased. It appears that some attempt was made to resolve this dispute by the respectables, including Rehmat P. W. 7. and Nazir (given up P. W.), but no final settlement could be reached. The appellant suspected that Latif Ahmad, deceased used to side with Munawwar Hussain, deceased accused, in this respect. The testimony of these two witnesses in respect of the motive has not been shaken in the cross-examination. Noor Muhammad, appellant, in his statement under section 342, Cr. P. C. whilst denying the motive story, stated that his parents had already a constructed house since long on the shamilat land, that the chaudharies of the village wanted to dispossess them otherwise than through due course of law from that land and, as such, had become inimical towards his brother Lal Din and his parents. Nur Muhammad, appellant, tried to shift the blame on the chaudharies with regard to their attempt to dispossess him from that land, which obviously has reference to the land referred to by the trail Judge in his question No.

2. It does show that there was some dispute about the very land referred to by the prosecution witnesses. No attempt was made to show that the motive, as set forth by the prosecution, was untrue or could not be reasonably believed. The motive, therefore, has been established by the prosecution against Noor Muhammad, appellant; but there is none against Bashir, appellant.

20. The ocular account in this case is furnished by Munawwar Ahmad P. W. 8 and Noor Ahmad P. W.

9. Munawwar Ahmad, P. W. 8, is the real brother of Latif Ahmad, deceased, whereas Nur Ahmad Lambardar P. W. 9 is not related to any of the two deceased. Apart from the motive, as set forth by the prosecution, no enmity exists between Munawwar Ahmad P.W. 8, on the one, hand and any of the two appellants, on the other. Nur Ahmad Lambardar, P. W. 9, also has no enmity with any of the appellants. The narrative of the occurrence, as given by Munawwar Ahmad P. W. 8 and Nur Ahmad Lambardar, P. W. 9, is given in para. 2 above and need not, therefore, be repeated. On behalf of the appellants, the following submissions have been made with regard to the ocular account. First, that Munawwar Ahmad P. W. 8 is related to one of the deceased and his testimony, therefore, should be treated as that of an interested witness. Second, that Nur Ahmad P. W. 9, being a lambardar it was his duty to join Police investigations in all cases and being a stock witness of the Police, this testimony should also be treated as that of an interested witness. Third, that the complainant party wielded influence in the area, as Shah Nawaz M. P. A. was the paternal-uncle of Munawwar Ahmad P. W. 8 and Sarfraz Ex-M. N. A. was paternal-cousin of Ch. Pir Muhammad, the father of Munawwar Ahmad P. W. 8, and as these two Members of the Provincial and National Assemblies resided in the same area, they wielded great influence and were instrumental in diverting the course of justice. Fourth, none of the P. Ws. could state which appellant or acquitted accused inflicted which injury to which of two deceased, which shows that they were not present at the spot. As regards Bashir, appel lant, in particular, it is submitted that he had no motive to join Nur Muhammad, appellant, or Lal Din, deceased accused, in the crime; that no blood-stained clothes or any blood-stained chhuri or his cycle were recovered at his instance; that he was challaned previously for Gul Nawaz's murder case and, therefore, he was falsely involved by Munawwar Ahmad P. W. 8; that actually he had left village Budha Goraya for good ten years earlier and had never returned to the village and that nothing had been brought out on the record to show why he had abruptly joined the appellant and his brother in committing the gruesome murders. I have given my anxious consideration to these submissions. Notwithstanding the fact that Munawwar Ahmad P. W. 8 is the real brother of Latif Ahmad, deceased, there is no good reason why his testimony should be discarded. On the date of the incident, he, with his brother Latif Ahmad, deceased, had gone to Daska to effects certain purchases and, on their return journey, they had boarded Munawwar Hussain deceased's tonga, in which Nur Ahmad Lambardar P. W. 9 and Khuda Bakhsh (given up P. W.) also happened to board by chance. Nur Ahmad P. W. 9 also confirms that he had also effects certain purchases due to the beginning of Ramzan, though he had actually not started from the village with that purpose in mind. It was per chance that he and the others collected at the Tongas and at Daska and boarded the tonga of Munawwar Hussain, deceased. In the absence of any strong enmity, the testimony of Munawwar Ahmad P. W. S cannot be brushed aside on the ground of relationship. However, the fact that two uncles of Munawwar Ahmad; complainant P. W. 8; happen to be an M. P. A. and M. N. A., does put me straightaway on guard, for if they have had any enemies, the complainant would implicate them aid Nur Ahmad Lambardar P. W. 9, out of pressure, would be constrained to support the version. The fact that Nur Ahmad P. W. 9 is a lambardar does not imply that he is a stock witness of the Police. Nothing has been brought out in evidence to show that he has appeared in a number of cases for the prosecution. Rather, according to his statement in cross-examina tion, he only once appeared as a prosecution witness during his life. He is not, therefore, a stock witness. The fact that both the witnesses could not remember or did not hazard to commit themselves to a narration of specific injuries inflicted by each of the accused to the two deceased, does not mean that they were not present. The incident was sudden and it could not be expected that any of the witnesses would clearly remember the exact sequence or the mode or manner in which each accused inflicted each injury to the two deceased. With regard to Bashir Ahmad's participation, it is admitted by him in his statement under section 342, Cr. P. C. that his forefather and that of Nur Muhammad, appellant, were cousins inter se. He is, therefore, very remotely related with Nur Muhammad, appellant, and his brother Lal Din deceased accused, It cannot be denied that he was challaned in 1965 in respect of the murder of Gul Nawaz, a paternal uncle of Munawwar Ahmad P. W. 8 and Latif Ahmad, deceased, and had to leave Budha Goraya village for good, as the complainant party had made it difficult for him to stay there. In the said case, Munawwar Ahmad P. W. 8 and Nazir (given up P. W.) were witnesses. It is also admitted that Bashir Ahmad, appellant, was acquitted in that case. In these circumstances, it cannot be totally ignored that if he was in company with Nur Muhammad, appellant, and Lal Din, deceased accused, at the time of the incident, he could be falsely named and ascribed to be present by Munawwar Ahmad P. W. 8, in which, case the Police and Nur Ahmad Lambardar P. W. 9 would be under sufficient pressure to support such a case. Taking all circumstances into consideration, I would hold that Munawwar Ahmad P. W. 8, and Nur Ahmad P. W. 9 are natural witnesses and did see the occurrence, but out of abun dant caution and for the safe dispensation of justice, I would look for a confirmatory circumstance against each appellant before convicting any of them.

21. I now turn to the story of the defence as stated by them at the trial. The version, given by Nur Muhammad, appellant, and Bashir, appellant, are narrated in paras. 13 and 14 above and need not be repeated. Both these appellants did not take up the plea of alibi in their earlier statements recorded under section 342, Cr. P. C. on 18th February, 1978 in the first round of litigation or produce any defence evidence to substantiate their defence plea at that stage. The plea of alibi was taken in the second round i.e. the present trial. The learned trial Judge in para. 19 of his judgment has adequately discussed their pleas and rejected them for cogent reasons, which I approve and which need not be repeated. No attempt was made by the learned counsel for the appellants to disprove the findings arrived at by the learned trial Judge in the said connection. The witnesses produced do not satisfactorily establish the defence version. I have no hesitation in disbelieving and rejecting the defence version.

22. The recovery of the blood-stained chhuri P. 8 at the instance of Nur Muhammad, appellant, together with his blood-stained shalwar P. 9 and blood-stained shirt P. 10, and the recovery of the blood-stained chhuri P. 11 at the instance of Lai Din, deceased accused, together with his blood-stained shalwar P. 12, blood-stained shirt P. 13 and his cycle P. 14, stand proved by Iftikhar P. W. 5 and Qurban Ali A. S. I. P. W.

10. Neither of the two witnesses are related to any of the deceased or are in any way inimical to any of the appellants. Nothing has been brought out in cross-examination to shake their credit. All the items recovered at the instance of Nur Muhammad, appellant, and Lai Din, deceased accused, were stained with human blood. These recoveries, therefore, act as incriminating pieces of evidence showing the participation of Nur Muhammad, appellant, and his deceased brother, in the crime in instance.

23. The medical testimony furnished by Dr. Muhammad Nawaz Chaudhry P. W. 11 shows that the two deceased suffered between them fifteen incised and six stab wounds on various parts of their body, of the nature which could have been inflicted by the two chhuris P. 8 and P. 11, recovered at the instance of Nur Muhammad, appellant, and Lai Din, deceased accused. The large number of injuries on the two deceased also clearly lead to the inference that the number of assailants could have been two or more. The medical testimony, therefore, corroborates the ocular account that two to three assailants, armed with chhuris, such ask of the nature recovered from Noor Muhammad appellant, and his deceased brother, could have caused the death of the two deceased.

24. The upshot of the above discussion is that the motive, the ocular account, the recoveries and the medical testimony, conclusively establish the case of the prosecution against Nur Muhammad, appellant. He appears to have been properly convicted and sentenced. There being no motive against or recovery for Bashir Ahmad, appellant, his participation appears to be highly doubtful. The complainant's past enmity against him leads to the reasonable inference that he has been falsely involved. If he was with the rest, on his cycle, as alleged, his cycle should have been recovered. However, his cycle was not recovered. He appears to have been falsely involved. His conviction and sentence is not based on a proper apprecia tion of the evidence and the law on the subject. His conviction and sentence is, therefore, liable to be set aside.

25. For the foregoing reasons, the appeal of Bashir Ahmad, appel lant, is accepted. His conviction and sentence is set aside. He shall be set at liberty forthwith, if not required in any other case. The fine, if any recovered from him, shall be refunded to him. The appeal of Nur Muhammad, appellant, is dismissed. In view of section 382-B, Cr. P. C., the period of detention undergone by Nur Muhammad, appellant, as under-trial prisoner, shall be treated as that undergone by him as a convict. M. Y. H. Appeal partly accepted.