19899CMR715 (PLP)

According to the F.I.R. the prosecution story is briefly stated that Pir Bakhsh complainant alon~with his brothers Amir Bakhsh and Ghulam Qadir alias Budhu both deceased and their maternal uncle Oadir Bakhsh (P.W.10) while on return from the house of Mst. S*aram Khatun, the mother‑in‑law of Amir Bakhsh (deceased) when reached‑it front of the house of Imam Bakhsh (P.W.9), Allah Ditxa appellant and', Ghulam SlWbbir acquitted co‑accused both armed with guns, "Faiz 14uhammad and Ahmad Bakhsh both acquitted accused armed with Sotis appeared there from hidogs in trees and raised `Lalkara' to both the deceased that they would not go alive. On hearing the Lalkara the complainant Pir Bakhsh, Qadir Bakhsh and both the deceased tried to run towards the house of Imam Bakhsh (P.W:9) for saving their lives but Ahmad Bakhsh and Faiz Muhammad accused raised Lalkara to their other co‑accused to fire on them. So Allah Ditta fired at Amir Bakhsh, while Ghulam Shabbir fired at Ghulam Oadir alias Budhu. Both of them wete hit by these shots as a result of which both died on the spot. This occurrence was witnessed by Imam Bakhsh (P.W.9) and Ghulam Sarwar (given up). The motive for this occurrence according to prosecution was that Allah Ditta appellant had suspected that Ghulam Qadir alias Budhu deceased developed illicit relations with his wife Mst. Bhirawan but according to the complainant this was a baseless suspicion. The complainant Pir Bakhsh (P.W.8) went to the Police Station Ahmedpur East which was at a distance of 10 miles from the place of occurrence and lodged the F.I.R. on the same day at 10‑30 a.m. The F.I.R. was recorded by S.H.O. Malik Nasir Ahmed (P.W.il) who after recording the F.I.R. visited the spot and found the dead bodies of Amir Bakhsh and Ghulam Qadir deceased lying in a Barsim field. He prepared the injury sheets and inquest reports, Exhs. P.V. and P.X. of Acair Bakhsh deceased and Exhs.P.Y. and P.Z. of Ghulam Oadir deceased and sent the dead bodies to the mortuary for post‑mortem examination under escort of Ghulam Oadir constable (P.W.2). The S.H.O. collected blood stained earth from the places where both the deceased were lying and secured it into separate sealed parcels vide memo. Exhs. P.H. and P.L. The S.H.O. recovered at a distance of 7 feet on the north of the dead body of Amir Bakhsh five crime empties Exh. P.15/1‑5, four pellets and six wadds vide memo. Exhs. P.F. and P.G. and from a distance pf four karams 13 more crime empties P.16/1‑13 were recovered vide memo. Exb. P.J. and five pellets and four wadds and four crime empties P.17/1‑4 vide memo. Exhs. P.K. and P.M. near the dead body of Budhu. On 7‑2‑1979, the S.H.O. arrested all the accused and after an interrogation they disclosed about the weapons of offence which the S.H.O. recovered at their instance .12 bore shotgun Exh. P.18 from Allah Ditta, gun Exh. P.19 from Ghulam Shabbir, blood‑stained Soti Exh. P.20 from Ahmad Bakhsh and blood‑stained Soti Exh.P.21 from Faiz Muhammad, were recovered by the S.H.O. vide Exhs. P.Q, P.R., P.S. and P.T. On 7‑2‑1979 at 9‑30 a.m. Dr. Ahmad Nawaz P.W.6 conducted the post mortem examination on the dead bodies of Amir Bakhsh and Ghulam Qadir (both deceased) who found 13 injuries on the dead body of Ghulam Oadir deceased and 10 injuries on the dead body of Amir Bakhsh deceased. All the injuries on the dead body of Ghulam Oadir, according to the doctor, were ante mortem and were caused by gun shots except injury No. 7 which was caused by blunt object. Injuries Nos. 2, 7, 8 and 9 were grievous and injury No. 4 was dangerous to life. According to the doctor the death of Ghulam Qadir occurred due to these injuries which were sufficient to cause the death in the ordinary course of nature. The doctor also opined that injuries on the dead body of Amir Bakhsh deceased were also ante‑mortem and were caused by fire‑arm and injuries Nos. 1, 2, 3, 5 and 7 were dangerous and death of the deceased occurred due to all these injuries as they were sufficient to cause his death in the ordinary course of nature. On completion of the investigation all the accused were challaned by the police before the Court of Sessions Judge, Bahawalpur for their trial. During the trial the appellant admitted that he had committed both the murders himself and gave a different version that he was living at Basti Mahli Wala where both the deceased were also living. He suspected that Ghulam Oadir alias Budhu deceased had started illicit relations with his wife Mst. Bhirawan. He twice complained this matter to Qadir Bakhsh and Pir Bakhsh P.Ws. on which Qadir Bakhsh told that he would look into the matter. This suspicion was later on changed into reality and on this the appellant had to change his residence to Basti Dinan Wali. On being away of the appellant from the house, he sent his wife to the house of his father‑in‑law. On the day of occurrence when his father‑in‑law and his brother Qadir Bakhsh were away from their house the wife of the appellant was alone at the house. On return of the appellant when he went to the house of his father‑in‑law, he saw Amir Bakhsh deceased sitting outside while Budhu deceased was inside the house with Mst. Bhirawan wife of the appellant. Amir Bakhsh deceased called out his brother, upon which both Budhu deceased and Mst. Bhirawan came out of the house. On seeing the appellant both the deceased started running away but at a distance of 14/15 karams both the deceased were overtaken by the appellant and fired fatal shots at them as a result of which both of them died. After the commission of the offence the appellant handed over himself to the police alongwith his gun. The appellant also denied the company of the other co-accused. The other co‑accused also took the same plea and denied their presence in the occurrence and said that they have been falsely implicated in this case by the prosecution because of their relations with the appellant. The appellant and his other co‑accused however, did not produce any evidence in their defence. The learned trial Judge after recording the evidence in this case, did not consider the defence version but partly accepted the prosecution version in holding the appellant and his co‑accused Ghulam Shabbir guilty of the offence beyond any reasonable doubt, convicted them under section .302/34, P.P.C. for the murder of Amir Bakhsh to death with fine of Rs.1,000 or in default to suffer each one further R.I. for one year and for the murder of Ghulam Oadir alias Budhu to life imprisonment and with fine of Rs.1,000 or in default each to one year further R.I. However, the learned trial Judge found the case against Faiz Muhammad and Ahmad Bakhsh doubtful and gave them the benefit of doubt by acquitting them from the charges of murder, vide his judgment dated 6‑12‑1979. The appellant and his co‑accused Shabir Ahmad filed appeal against their conviction and sentences before the Lahore High Court, Bahawalpur Bench. The learned Judges of the Division Bench of the High Court after a detailed examination of the entire evidence on record and ocular account furnished by the P.Ws., disposed of the appeal of the appellant and Ghulam Shabbir as under‑‑ "In our estimation the occurrence had gone un witnessed or at least not seen by the witnesses cited by the prosecution. As discussed above neither medical evidence nor evidence of recoveries was reliable to provide adequate corroboration to eye‑witness account. We are, therefore, of the view that the quality of prosecution evidence on the record against Ghulam Shabbir appellant does not prove the case against him beyond reasonable doubt and resorting to the principle of abundant caution we extend benefit of doubt in his favour and acquit him. He shall be released, forthwith from jail if not required in any other case. Allah Ditta appellant confessed causing double murder intentionally to vindicate family honour as Budhu deceased had developed illicit relations with his wife while Amir Bakhsh was keeping watch out side. We are clearly of the‑view that he is not entitled to the benefit of exception 1 to section 300, P.P.C., maintain his conviction under section 302, P.P.C. on two counts, but there being element of family honour it would be unfair to award the maximum penalty of death to the appellant, we, therefore, alter his sentence from death to imprisonment for life and fine of Rs.10,000 on each count, in default to undergo two years R.I. in each case. The sentences shall however, run concurrently. The amount of fine after its recovery shall be paid as compensation to the legal heirs of both the deceased". We have heard the learned counsel for both the parties and perused the record. The State counsel urged that the ocular account by the prosecution witnesses has its corroboration from the medical evidence and incriminating recoveries from the appellant and the spot and therefore, the life imprisonment awarded to the appellant by the learned High Court is in accordance with safe administration of criminal justice. 1n this case tie ocular account is furnished by Pir Bakhsh (P.W.8), Imam Bakhsh (P.W.9) and Oadir Bakhsh (P.W.10), they are inter se related with the deceased. The complainant Pir Bakhsh (P.W.8) is brother of the deceased, Qadir Bakhsh is brother of Mst. Zohran, the mother of Imam Bakhsh (P.W.9). Mst. Jannat is mother of the complainam and deceased and sister of Mst. Zohran. They are however, related to the deceased party as well. This fact is deposed by Imam Bakhsh, and Oadir Bakhsh and due to this relationship, according to the defence, they were not cross‑examined by them. All the eye‑witnesses have stated that one or two Dang blows each were inflicted by Faiz and Ahmed Bakhsh both acquitted accused to both the deceased. But according to the medical evidence there was no blunt weapon injury on the dead body of Amir Bakhsh. The F.I.R. does not bear anywhere that Faiz and Ahmad Bukhsh had inflicted injuries to any one of the deceased with their respective Dangs whereas the medical report shows that only injury No. 7 on the dead body of Ghulam Qadir alias Budhu deceased was caused by blunt weapon and all the injuries on the dead body of Amir Bukhsh deceased were caused by fire‑arm. Therefore, due to these material contradictions in the statements of the prosecution witnesses, the benefit of doubt has rightly been given to Faiz and Ahmad Bakhsh accused by the learned trial Judge who acquitted them from the charges of double murder. A perusal of the record further shows that the version given by the prosecution m this case suffers from material discrepancies and almost all has been disbelieved by the learned High Court, except that of the appellant who had himself admitted the responsibilities of both the murders. The version given by him is more plausible than that of the prosecution version. The defence version also finds support from the evidence on record because there is no mention of any kind of enmity or other cause of occurrence between the parties except the illicit relations which were developed between Budhu deceased and the wife of the appellant. The prosecution did not examine Mst. Amir, Mst.. Sharam and Muhammad Ali father of Mst. Bhirawan to prove the presence of the deceased and P.Ws. Pir Bakhsh and Qadir Bakhsh at the spot. Imam Din is also an eye witness in this case who has deposed that Faiz Muhammad and Ahmad Bakhsh had inflicted Soti blows to both the deceased. But his deposition was contrary to the medical evidence and was rejected by the trial Court, therefore, his testimony does not inspire any confidence. The appellant has himself confessed the causing of death of both Budhu and Amir Bakhsh deceased, therefore, in spite of the discrepancies in the prosecution evidence, he is not entitled to the benefit of doubt but under the circumstances he committed both the murders, entitled him to the lesser penalty of sentence under section 302/34, P.P.C, which the learned High Court after a proper appreciation of the evidence on record, has already awarded to him. Thus, under the circumstances, we are of the view that the finding of the learned High Court is unexceptionable and we do not see any reason to interfere in it. The result is that the appeal of the appellant has no force which is accordingly dismissed, M.A.K./A‑411/S Appeal dismissed