P (PLP)

Vir Sen Sawhney, for Appellant. Muhammad Shafi, for Respondents. This is an appeal under section 517, Criminal Procedure Code, by the Provincial Government from the order of the Additional Session Judge, Gujranwala at Gujrat, whereby he acquitted Hassan Muhammad and his four sons Muhammad Yousaf. Bashir Ahmad, Ghulam Rasool and Nazir Ahmad, who were tried by him on charges under sections 302 and 396 Indian Penal Code. On the 14th March 1948 a report was made at Police Station Kuthiala Sheikhan, in the district of Gujrat by Ali Muhammad Lambardar of Mauza Bhikhi. He said‑ that four bags were seen by him in a deserted well known as Hasiana, in the area of Bhikhi. Offensive smell was emanating from the well but be could not stay what the bags contained. Ire suspected that they contained same dead bodies. The, Mharrir Head Constable, Muhammad Faiz Rasool (P. W. 25) went to the spot with the informant after recording his report. He had the gunny bags P. 29 to P. 32 taken out of the well. They contained four dead bodies one was of an old man, another of an old woman, the third of a young woman and the fourth of a small girl. The bodies could not be identified by the people of Mauza Bhikhi who were asked to make enquiries as to who they were. On the next day, i.e., the 15th March 1948 Roshan and Mutalli Lambardars of Mauza Bhikhi brought Muhammad Ali and Ali Ahmad from Chak. No. 38, situated at a distance of about two miles, and they identified the bodies to be those of Jewan, his wife Hussain Bibi, his daughter Rasool Bibi and her daughter Shamim Akhtar. They were known to Muhammad Ali and Ali Ahmad as they too were residents of Chak No.

38. They were told to make enquiries about the culprits. This happened in the morning. At about 1 p. m. the same day Muhammad Ali and Ali Ahmad returned to Bhikhi and gave some information to the Head Constable where upon he proceeded to Chak No. 38 and visited the house of the deceased. Hassan Muhammad respondent, brother of Jewan deceased and his family including his four sons named above, lived in the same Ihata as jewn deceased and his family, though in sepa rate rooms. The Head Constable went into the house of Hassan Muhammad and found two gunny bags there, marked exhibits P. 27 and P. 28 which were similar to the gunny bags P. 29 to P. 32 which contained the dead bodies. Mst. Zainab Bibi, wife of Ghulam Rasool respondent, was living in the room next to that in which Hussain Bibi, Rasool Bibi and Shamim Akhtar lived. Jewan lived in the room on the other side of the room occupied by his wife and children. Zainab Bibi was questioned and she made a statement which is marked exhibit D. B. dated the 15th March 1948. She appeared at the trial as a witness for the prosecution and stated that on the night of the occurrence, probably the 29th February 1948, she was sleeping alone in her room as her husband Ghulam Rasool had gone out. At about midnight she heard a noise from the room occupied by jewan Ali's family. She went to see what had happened and found Hassan Muhammad strangulating Shamim Akhtar. Muhammad Yousaf was strangling Rasool Bibi and Muhammad Bashir was strangling Hussain Bibi. She asked these men to stop but was pushed back into her room and threatened with death if she tried to interfere. The door of her room was bolted from outside. After a short while the three respondents who were strangling the two women and the girl and the other respondents, namely her own husband Ghulam Rasool and his brother Nazir opened the door of her room and warned her that if she raised an alarm she would be done to death. They again shut the door and went away. They returned at morning payer time and again cautioned her against telling any one what she had seen. She added that Hassan Muhammad respondent was a brother of jewan Ali deceased and about six months or so before the occurrence the respondents had asked him to give away his land to them as he had no son. Jewan replied that had made Nadir Hussain, husband of Rasool Bibi, his Khandan and wished to give his land to his daughter. The respondents were seen going out of the village by Muhammad Ali Lambardar, when be returned to Chak No. 38, after identifying the dead bodies. Muhammad Yousaf and Bashir were carrying rifles. Muhammad Ali had a taut with thorn and with the help of the other Lambardars, Roshan and Mutalli, persuaded the respondents to hand over the rifles to him. Muhammad Ali then went with these rifles to Bhikhi and brought the Head Constable with him to Chak No.

38. In the cross‑examination of Zainab Bibi it has been elicited that Hassan Muhammad had a wife, three other sons than the respondents and two daughters. It is urged that Zainab is the only one out of the inmates of the house who has come forward to give evidence. The reason for this is obvious. The others are too nearly related to the respondents. Zainab Bibi is the only one amongst then whose relationship is by marriage with Ghulam Rasool, and Rasool Bibi who has been killed, was married to her brother Nadir Hussain. At the time of the occurrence Nadir Hussain was residing in his own village called Chak Janu Kalan, situated at a distance of some miles from Chak No.

32. It is urged by the learned counsel for the respondents that Zainab Bibi has been put up by her brother Nadir Hussain to give false evidence against the respondents. There is nothing on the record to warrant this suggestion. She made her statement to the police as soon as they came to her village, that is to say, on the 15th March 1948 and it is in evidence that Nadir Hussain did not arrive on the scene until the 20th March 1948. It is finally urged that Mst. Zainab Bibi is an accomplice because she did not give any information about the crime until the arrival of the police. An accomplice means a guilty associate or partner in a crime; a person who is connected with the offence, or who makes admissions of facts showing that he had a conscious hand in it. Where a witness is not concerned with the commission of the crime he cannot be said to be an accomplice. Zainab Bibi was in no way concerned with the com mission of this crime nor did she have any hand in it. The mere fact that she gave no information about it until the arrival of the police is clearly attributable to her fear of the respondents As soon as the police arrived and she felt that she could safely say what she had seen she did so; and we believe that she was further emboldened to do this by the absence" of the respondents when the police arrived Yousaf, Bashir, Ghulam Rasool and Nazir were arrested on the 16th March 1948 at Phalia and Hussain Muham mad could not be found until the 26th March 1948 when be was taken into custody. Holding the view that Mst. Zainab Bibi is not an accomplice we do not see any force in the contention of the learned counsel for the respondents that her statement must be corroborated by other evidence. If, however, any corroboration of Zainab Bibi's statement were needed it would be found in the conduct of the respondents. The deceased lived in the same Ibata as the respondents and next door to them. It is impossible to believe that the four deceased were done to death and removed from their houses without the respondents hearing or knowing anything about it. In order to meet this difficulty the learned counsel for the respondents has argued that the deceased were not killed in their house, as stated by Zainab Bibi, but some where else. In support of this suggestion it was said that one witness for the prosecution named Walayat Hussain has stated that he had seen the four deceased, a few days before the 29th February 1948, passing through an open field near his behak and on being questioned they said that that they were going to Wazirabad. This statement appears to have been made by Walayat Khan, in cross‑examination, to oblige the accused. He also stated that he had seen Mst. Zainab passing by his behak a few days before that, and on being questioned she told him that she was going to Janu Chak for condolence on the death of her aunt. This was to support the suggestion of the defence that Zainab Bibi was not in her house on the night of the occurrence. The statement of Walayat Hussain regarding Zainab Bibi is contradicted by her and regarding the deceased it is contradicted by the evidence of Ali Muhammad (P. W. 21) grandfather of Shamim Akhtar, and Fazal Elahi, Head Master (P. W. 9) who have deposed that Shamim Akhtar was in Chak No. 38 on the 29th February 1948. She did not go to school nor was she seen alive after that and was probably killed with her mother and grand‑parents, on the night of 29th February. It was further urged that Nadir Hussain had written to his father‑in‑law, Jewan, to send back his wife Rasool Bibi, and his daughter, Shamim Akhtar, to him. Jewan and his wife Hussain Bibi, it is suggested, may have left with Rasool Bibi and Shamim Akhtar for Chak Janu, where Nadir Hussain lived, and they may all have been killed in the way. There is no evidence that the deceased or any one of them ever expressed the intention of going to Chak Janu or that they were seen going that way. Moreover, if it is assumed that they were going to Chak Janu or somewhere else where they were killed the question would rise, who killed them and why? The suggestion of the respondents' counsel is that some unknown persons did so perhaps to rob the deceased. This cannot be true because Shamim Akhtar was found to be wearing not only some churries which it is said may have been of glass, but also earrings made of gold, and Mst. Rasool Bibi was found with a gold nose‑stud. If the object of the murderers had been robbery these valuable articles would have been removed and if the deceased had been killed by highway robbers why were they carefully put in separate gunny bags and then thrown into the well. The placing of the bodies into gunny bags clearly indicates that they had to be carried from the place where they were killed to some other place, as alleged by the prosecution, i.e., from the house in Chak No. 38 to the well in the neighbouring village called Bhikhi. Walayat Hussain, before making the admis sions in favour of the accused, stated in his examination‑in‑chief that he had seen the respondents passing by his behak at night when four of them were carrying bags on their heads. The suggestion of the prosecution, is that the respondents were carrying the dead bodies in the bags. There is another witness Muhammad Salehun (P. W. 7) who claims to have seen the re spondents with the bags at about midnight, but there is a suspicion of some ill will between his brother and the respondents and we would rather ignore his evidence on this point. Similarly, we ignore the evidence regarding the extra‑judicial confessions. We are, however, satisfied that the evidence of Mst. Zainab Bibi is true, that she had no hand in the commission of the crime and, therefore, her statement needs no corroboration. The conduct of the respondents in doing nothing to prevent the murder or to bring the culprits to book, however, fully corroborates her evidence that the respondents were the murderers. There is also the evidence of Hakam Ali (P. W. 10) that soon after the disappearance of the deceased was told by Hassan Muhammad respondent that Jewan bad gone away with his family to Wazirabad and his cattle need not be kept apart from the cattle belonging to Jewan. Hassan Muhammad is shown by evidence to have been telling various people that Jewan had gone to Wazirabad and, on that pretext, to have sold some cotton belonging to Jewan and to have realised the sale proceeds, long before the discovery of the dead bodies. He also paid some revenue on account of the two squares of land belonging to Jewan which the latter had bequeathed to his daughter and of which, after the death of the daughter, the respondents believed themselves to have become the owners. It was contended by the learned counsel for the respondents that the land could not have been the motive for the crime because, according to the will triode by Jewan on 5th November 1947 and marked Exhibit P. W. 1,/1, in the event of death of Rasool Bibi, without leaving male or female issue, the land was to go to Nadir Hussain, husband of Rasool Bibi and therefore, while Nadir Hussain was living it was futile to kill the others. There would have been some force in this contention, if there had been evidence that the respondents knew that Nadir Hussain was the ultimate beneficiary of the will. There is no evidence to show this and the will was in the possession of Nadir Hussain. It was unregistered and; the respondents could not have known all its contents. We are, therefore, convinced that Jewan, his wife, daughter and granddaughter were all killed for the sake, of land which the respondents cultivated and which Jewan had deprived them of by bequeathing it to his daughter. The only question that remains is whether all the respondents have been proved to be guilty of murder. Zainab Bibi has deposed that she saw Hassan Muhammad, Yousaf and Bashir strangulating Hussain Bibi, Rasool Bibi and Shamim Akhtar. In this respect Zainab Bibi is corroborated by medical evidence that all the four deceased were strangled to death. Jewan used to sleep in the room next to that occupied by his wife, daughter and granddaughter`. He was killed in that room, presumably by Ghulam Rasool and Nazir respondents, but Zainab Bibi did not see them killing him. The suspicion against them is strong, but the possibility that Hassan Muhammad, Yusuf and Bashir had first killed Jewan and then killed the women cannot be excluded. Ghulam Rasool and Nazir may have arrived after the murders had been committed and may have merely joined their father and brothers in threatening Zainab Bibi with death if she told anyone what she had seen. We, therefore, hold that Hassan Muhammad, Yousaf and Bashir have heed proved to be guilty of murder but the only offence which has been established against Ghulam Rasool and Nazir is of criminally intimidating Mst. Zainab Bibi. We, therefore, convict Hassan Muhammad, Yusuf and Bashir under section 302 I. P.C., and order them to be hanged by the neck until they are deed. We convict Ghulam Rasool and Nazir under section 506 I. P. C. and sentence them to seven years' rigorous imprisonment each. A. H. Appeal accepted.