1976 P Cr (PLP)

MUHAMMAD RAFIQ TARAR, J.‑Muhammad Durez, Said Rasul and `Nur Khah appellants ware tried by the learned Session Judge Jhelum, for co omitting the murder of Sohnda Khan deceased, in furtherance of their common intention, on '2nd September 1972 at noon time, in the area of village Dhaku. By judgment, dated 17th April 1974 all of them were convicted under section 302 read with section 34 of the Pakistan Penal Code and sentenced to death. They have appealed against their conviction and sentence and the case is also before us on reference for confirmation of the death sentence awarded to them. The appeal and the reference are being taken up together and disposed of by this judgment.

2. The brief facts of the prosecution case are that on 22nd September 1972 Muhammad Yaqub complainant was present with his maternal uncle Sohnda Khan deceased in the latter's Baithak at village Durez Khan appellant armed with a knife, Said Rasul armed with a Knife said Rasool armed with a hatchet came there and raised a Lalkara. Out of rear Muhammad Yaqub complainant ran out of the Baithak and come in the courtyard of the Baithak where Mst. Sattar Begum daughter of the deceased, and Hayat Muhammad P. W. were busy in their work. Nur Khan appellant gave the first hatchet blow to the deceased who was lying on the cot inside the Baithak. The blow landed on the abdomen of the deceased. Then Durez Khan appellant inflicted knife blow on the deceased, which also landed on his abdomen. The deceased raised alarm whereupon Said Rasul appellant inflicted a Toka blow on his neck 'then all the three appellants gave more blows to him. The complainant, Mst. Sattar Begum and Hayat Muhammad P. W. saw the occurrence while standing in the courtyard. The complainant kept on raising alarm but did not go near the appellants out of fear. After inflicting a large number of blows on the abdomen, back and legs of the deceased, the appellants left the spot raising Lalkaras that they had taken the revenge. Thereafter, the complainant and the other two eye‑witnesses went near the deceased and found him lying unconscious on the ground. After a short while, he succumbed to his injuries.

3. The motive for the murder was that a year before the occurrence Abbas Khan, father of Durez Khan appellant, was murdered and Fateh Khan son of Sohnda Khan deceased and one Muhammad Nazir Musalli were prosecuted for that murder. In August 1972 both of them were convicted and sentenced to death. It is alleged that Durez Khan and the other two appellants committed the murder of Sohnda Khan deceased to take revenge of the previous murder.

4. After the occurrence, Muhammad Yaqub complainant left for Police Station, Chakwal to lodge the report. On his way he learnt that the Sub‑Inspector was present in village Oderwal. Consequently he went to village Oderwal and reported the occurrence to Ghulam Sarwar S. H. O. Police Station Chakwal, at 2 p. m., incorporating the above facts, vide statement Exh. P.A. On the basis of this statement formal F. I. R. Exh. PA/1 was recorded at Police Station, Chakwal at 2‑30 p.m.

5. After recording the statement Exh. P A., Ghulam Sarwar Sub- Inspector reached the spot. He prepared the injury‑statement (Exh. PH) and inquest‑report (Exh. P.J) of the dead body and sent it to the mortuary for post‑mortem examination. Then be took some blood‑stained earth from the spot and made it into a sealed parcel vide memo Exh. PD. On 24th September 1972 he arrested Nur Khan Appellant. On 27th September 1972 he arrested Durez Khan appellant who while under arrest, led to the recovery of blood‑stained knife (Exh. P. 34 on the same day, which was made into a sealed parcel vide memo. Exh. PE/l. Said Rasul appellant was arrested on 15th October 1972. After the investigation, a case under section 302/34, P. P. C. was sent up against the appellants.

6. On 23rd September 1972 at 7 a.m. Dr. Asghar Hamid Qureshi, Medical Officer. Civil Hospital, Chakwal conducted the autopsy on the dead body of Sohnda Khan deceased and found the following injuries on it:‑ (1) Incised wound 2' x 1 vertebral column deep on front and right side of the neck, cutting through thyroid cartilage deep tappering into a superficial wound 3' x 1/8'. On the left side of the neck wound was oblique. Its left end was higher. (2) Incised wound 1' x 1/2' x thyroid cartilage deep, the cartilage cut through and through on front and left side of the middle line oil upper part of the neck 3/4' above injury No.

1. It was also vertebral column deep. (3) Incised wound 2 x x chest cavity deep on front of the chest 5/8' to the left of the middle line and three inches above and inside left nipple. (4) Incised wound l' x ' x skin deep on front of the right shoulder. (5) Incised wound 2 ' x x chest cavity deep on lower part of the front and outside 5' below the left nipple. (6) Incised wound 3' x 2' abdominal cavity deep coils in large intestines, and large omentum had her heated out. It war situated 3/4' below injury No. 5, and on upper part of the abdomen on left side. (7) Incised wound 3 ' x into muscle deep on front of left thigh middle part, that muscles were cut. (8) A superficial incised wound horizontal, tapering on left side 3 x 1/8' on left side of abdomen, 2 ' below and to the left umbilicus. (9) Irregular incised wound 1 x 3/4 x skin deep, skin shaved on the back of base of left index anger and adjoining band back. (10) Incised wound 2 x x wrist joint deep on the outer side of right wrist. (11) Incised wound 7/8 x x chest well deep on lower part of chest on the front and outer side on the right side, 1 ' above the costal margin. (12) Incised wound 4' x 1 x abdominal cavity deep, liver was visible through the wound, oar the back and outer side of the lower part of the chest. Free fluid blood came out on moving the dead body. The invertible disc bore a cut mark between 4th and 5th cervical vertebrae under injury No.

2. In the opinion of the doctor, death was due to shock and haemorrhage due to injury to the left lung, liver and opening up of the chest cavities and peritonium cavity. Injuries Nos. 1, 3, 5, 6 and 12 were fatal individually as well as collectively and were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and had been caused by sharp‑edged weapon. The probable time between injuries and death was about 15 to 30 minutes and between death and post‑mortem examination was about 20 to 24 hours.

7. The appellant relied on the motive, the ocular testimony of Muhammad Yaqub complainant and Hayat Muhammad (P. W. 11) and the recovery of blood‑stained knife at the instance of Durez Khan appellant,

8. The appellants pleaded not guilty to the charge. They admitted that Abbas Khan father of Durez appellant was murdered about one and a half years before the occurrence and Fateh Khan, son of Sohnda Khan deceased, and one Muhammad Nazir were prosecuted for that murder and were convicted and sentenced to death. They denied all other allegations and contended that they had been falsely implicated on account of enmity and suspicion. Durez Khan appellant produced documents (Exhs. DB to DM) in his defence., His counsel also produced documents (Exhs. DN to DS). No other evidence was led in defence by any of the appellants.

9. After a detailed discussion of the evidence, the learned trial Judge reached the conclusion that the evidence of the eye‑witnesses coupled with the circumstantial evidence available from the existence of strong motive was sufficient to prove that the appellants were responsible for committing the murder of Sohnda Khan deceased. Consequently, he convicted them under section 302/34 of the Pakistan Penal Code.

10. The learned counsel for the appellants contended that the murderers of Abbas Khan had been sentenced to death, therefore, Durez Khan's sense of vengeance had been sufficiently satisfied and he had no motive to kill the deceased who was an old and infirm person and had not taken any part in the murder of Abbas Khan. He further contended that the other two appellants had absolutely no motive to join hands in the commission of this crime. He further contended that Muhammad Yaqoob complainant and Hayat Muhammad P. W. were interested witnesses and their presence at the spot was extremely doubtful, therefore, it would be unsafe to place reliance on their testimony.

11. We have gone through the entire evidence with the help of the learned counsel for the parties and have given our careful consideration to arguments addressed by them. The motive alleged by the prosecution was that a year prior to the occurrence Abbas Khan, father of Durez appellant, was murdered and Fateh Khan son of Sohnda Khan deceased and one Nazir were prosecuted for that murder and sentenced to death. The case of the prosecution is that the appellants harboured grudge against the deceased on that account and committed his murder to take revenge of the murder of Abbas Khan. The evidence reveals that apart from the murder of Abbas Khan the parties had enmity with each other on other scores as well. It is in evidence that at the time of this occurrence Yaqub complainant, his mother's sister's son Khizar Hayat and his cousin Fazal Dad (son‑in‑law of the deceased, were being prosecuted under section 326, P. P. C. on the allegations that they had chopped off the nose of Ghulam Sughra daughter of Abbas Khan and sister of Durez Khan appellant. A copy of the F. I. R. of that case has been placed on the record as Exh. P.B, which shows that Abbas Khan father of Durez Khan was the complainant in that case. The complainant admitted in cross‑examination that Nur Khan appellant had been cited as a prosecution witness in that case. These facts amply show that the parties had inveterate enmity with each other. Ii is true that Sohnda Khan deceased had not taken part in the murder of Abbas Khan and that his murderers were prosecuted and had been sentenced to death before this occurrence but on the basis of these facts it cannot be said with certainty that Durez appellant's sense of vengeance had been satisfied and he had no motive to kill the deceased because motive is a fact which is only in the knowledge of the person doing the act. The only thing that emerges from the evidence on the record is that the parties were at loggerheads with each other. It hardly needs any emphasis that enmity cuts both ways. It may be the reason for the attack and it may also induce a person to implicate his enemies falsely. In the previous murder the victim was Abbas Khan, father of Durez appellant. There is nothing on the record to show that Said Rusal and Nur Khan appellants had any motive to commit the murder of Sohnda Khan deceased. On the other hand, Nur Khan appellant had appeared as a witness in the previous murder case and was also cited as a P. W. in the case against Yaqub and others under section 326, P. P. C. therefore, Yaqub complainant had a motive to implicate him.

12. The learned counsel for the appellants contended that Muhammad Yaqub and Hayat Muhammad P. Ws, were interested witnesses and their presence at the spot was extremely doubtful, therefore no reliance could be placed on their, testimony. He argued that Yaqub complainant had cut the nose of the real sister of Durez Khan and a case under section 326, P. P. C., was pending against him at the time of this occurrence, therefore, if he had been present at the spot the appellants would never have spared him The contention is well‑founded it needs hardly any argument that an assault of this type particularly on a woman presents the gravest type of provocation to her relatives. In examination‑in‑chief Yaqub complainant stated that on hearing the lalkara raised by the appellants he abruptly got out of Baithak due to fear and stood outside in the courtyard only at a distance of six to eight yards and it was from there that he saw the occur rence. In cross‑examination he stated that when he ran out of the room to the door of the Baithak, the appellants were also advancing towards the same door at that time. He further stated that he witnessed the occurrence from a distance of eight yards and from the same position he saw the appellant running out of the Haveli. From his evidence it appears that the appellants passed by him twice; firstly when they entered the Haveli and again when they went out of it. He, however, came up with a flimsy explana tion that he was not inimical towards the appellants nor they were inimical towards him. But in the same breath he stated that he ran out of the Baithak due to fear of the appellants and that he was not on speaking terms with them eversince the time that Mst. Ghulam Sughra's nose was chopped off. We agree with the learned defence counsel that the appellants had strong reasons to kill this witness and if he had been present at the spot he would have been their first target and in any case they would not have permit ted him to stay in the courtyard and see the occurrence from there. The site plan (Exh. PF) indicates that the door of the room of occurrence was to the south and there was a window in its northern wall. Nawab Khan draftsman (P. W. 5) stated that any body could easily pass through that window. In cross‑examination Yaqub complainant stated that he did not go into the adjoining room through the back window apprehending that the door of that room might not have been chained from outside, and preferred to run out of the room throughout the door when the accused were also advanc ing towards the same door. The explanation given by him for not going to the adjoining room is quite flimsy it is astonishing that he did not go to the adjoining room merely on the assumption that its door might be chained from outside but he did not apprehend any danger in the courtyard and remained there throughout the occurrence. The evidence and circumstances show that if he had been present at the spot, probably he would not have been alive that day to be available as a complainant in this case.

13. The statement of Yaqub complainant at the trial further shows that he is not a straightforward witness as he tried to suppress certain patent facts. He admitted that ire was challaned along with Khizar Hayat and Fazal Dad under section 326, P. P. C. When questioned about the allegation against him in that case he stated as under: - "I do not know what was the allegation against me in that case. That case is still pending it was registered against us about 3 years and 9 months ago. The case has been pending in the Court for' the last about 3 years and 9 months. We have engaged a counsel in that case. No witness has yet been examined. My counsel did not tell me as to what was the charge against me ire that case. Nor was I told about the prosecution's allegations in that case by Khizar Hayat and Fazal Dad, my co‑accused. It is incorrect that I know the allegations against me and that I have made a false statement. I have never tried to find out from any source as to what are the allegations against me. It is correct that the allegation in that case is that we cut the nose of Mst. Sughra daughter of Abbas Khan aforementioned (sister of Muhammad Durez accused)." The above narration by this witness amply shows that he is not a reliable witness inasmuch as he tried to suppress his knowledge of the allegation in the aforesaid case under section 326 of Pakistan Penal Code and admitted this fact only when he was cornered. He is inimical to the appellants and is very closely related to the deceased. He is sister's son of the deceased and the widow of the deceased is she real sister of his father. His first cousin Fazal Dad who is his co‑accused in the case under section 326, P. P. C. is the son‑in‑law of the deceased. For all these reasons we are of the view that he is a liar and big presence at the spot is extremely doubtful. We, therefore exclude his evidence from consideration.

14. The next witness in the case is Hayat Muhammad (P. W. 11). He is not related to the deceased nor is there anything on the record to show that he had any enmity with the appellants but these facts do not necessarily show that he is truthful witness. There is sufficient material on the record to show that he wary just a domestic servant of the deceased although he himself told a number of lies to suppress this fact. In his examination‑in- chief he stated that before the occurrence he had been assisting the deceased in the cultivation of his land for about twelve years. He, however, stated that in fact he and the deceased used to render assistance to each other in cultivation because he also had some agricultural land. At the trial he asserted having stated before the police and the committing Magistrate that he and Sohnda Khan deceased mutually used to assist each other in cultivation. He was confronted with both the statements where it was not so recorded. Mehr Khan (P. W. 6) stated in cross‑examination that this witness was weaver by caste and did not own any land. Therefore, the statement of Hayat Muhammad P. W. that he also owned land and he and the deceased used to render assistance to each other in cultivation was false and was seemingly introduced in order to show that he was not a servant of the deceased although there is abundance of evidence on the file to show that he was. He denied the suggestion that he used to work with Sohnda Khan deceased as an employee on meals and clothes but in his statement before the committing Magistrate with which he was duly confronted be had admitted that Sohnda. Khan deceased started to provide him with meals and clothing everesince the time he started to cultivate his land. Before the committing Magistrate he further stated that he bad‑been living in the house of the deceased for the last ten or eleven years. Accord ing to him, at the time of occurrence he was mincing fodder at the machine in the courtyard of the Haveli of the deceased. It is in the statement of the complainant that during the days of the occurrence it was ploughing season and the people were preparing land for sowing the wheat crop. Hayat Muhammad P. W. also admired that in those days there was quite a rush of ploughing operation" As it was ploughing season therefore, in the normal course this witness was, expected to be at the lances, moreso when we find that Sohnda Khan deceased was old and infirm and his only son having been convicted in the murder case was also not available to carry out the cultivation. The witness could not give any explanation for not going for ploughing and simply stated that on the day of occurrence "I just did not go for ploughing business. Since the business was rather small I did not go". In cross‑examination he stated that he bad gone for ploughing on the day preceding the day of occurrence and had ploughed the livid till dopaharwela He further stated that on that day he had brought fodder at Peshiwela for about 15 or 16 heads of cattle but on the day of occurrence he brought fodder only for two heads of cattle and the fodder for the remaining cattle was yet to be brought. There is sufficient force m the contention that the story of cutting fodder for only two beads of cattle was introduced with a view to show that the witness was relieved earlier and was therefore, available at the scene of occurrence at noon time. In cross‑examination a question was put to the investigating officer whether he noticed any fact or circumstance at the place of occurrence supporting the presence of the eye‑witnesses to which he replied that he was unable to understand the question. The learned trial Judge then told him that the defence wanted to know whether he noticed the presence of any fodder or fodder cutting machine at the spot, to which he replied that he did see the minced fodder and the fodder cutting machine there. He however, admitted that presence of minced fodder at fodder cutting machine was not mentioned by him either in the case diary or in the Inspection Note. At the trial, Hayat Muhammad P. W. stated that in his police statement he had mentioned that on the day of occurrence he was preparing fodder at the machine in the Haveli of the deceased. He was confronted with his statement before the police (copy Exh. D. A) where it was not so recorded. So there is no reliable evidence on the record to show that at the time of occurrence he was mincing fodder. This witness was employed by the deceased for carrying out his cultivation and the occurrence took place in the village abadi when the ploughing season was in full swing, therefore, it is doubtful that he was present at the spot.

15. There are many other unsatisfactory features of the prosecution case. Nawaz Khan draftsman (P. W. 5) stated in cross‑examination that there are several houses on the eastern side of the courtyard of the Haveli. He further stated that in fact the courtyard is bounded by the louses belong ing to other persons which means that even a wall did not intervene between those houses and the place of occurrence. According to the eye witnesses the appellants had raised lalkara on their arrival and departure, therefore, a. large number of persons were expected to witness the occurrence. It is indeed curious that not a single independent witness was produced to support the prosecution version. In cross‑examination Yaqub complainant admitted that "Large number of people collected there, soon after the accused had left". Hayat Muhammad P. W., however, gave a different version, which is highly unnatural. He stated that the appellants raised the first lalkara when they entered the Haveli and again when they got out of it but nobody from the surrounding houses saw them when they raised the Lalkaras.

16. The ocular testimony of Yaqub complainant and Hayat Muhammad P. Ws. with regard to the injuries ascribed to Muhammad Durez appellant is also belied by the medical evidence. Yaqub complainant stated that Durez appellant had given the knife blow to the deceased with full force. He further stated: " The knife blow was given is a stabbing manner. When the deceased was aground, Durez accused bad been thrusting the knife into his body from above. He had been giving knife blows 'almost in the same manner. "Hayat Muhammad (P. W. 11) stated: " The knife blow was given as one would stab. Nur Khan and Durez gave subsequent hatchet and knife blows in a similar fashion". Thus according to the' eye‑witnesses, Durez appellant had given the knife blows in a stabbing fashion while the medical evidence shows that out of the twelve injuries on the person of the deceased none was a stab wound. The doctor further stated that there was a least possibility of a chopper (toka) causing the injuries on the person of the deceased except injury No. 7 which could also be caused by a hatchet. Injury No. 7 was on the front of left thigh. Both the eye‑witnesses were consistent that Said Rasul appellant who was armed with a toka had given a blow on the neck of the deceased. The medical evidence thus mutilates against the ocular account.

17. For all the foregoing reasons, we are of the view that the prosecu tion version of the occurrence bristles with serious doubts and it will be unsafe to maintain the conviction of the appellants. We, therefore, accept this appeal, set aside the conviction and sentence of the appellants and acquit them of the charge by giving them the benefit of doubt. They shall be set at liberty forthwith if not required to be detained in any other case. The death sentence awarded to then is not confirmed. Appeal accepted,