1988 P Cr (PLP)

IJAZ NISAR, J,--Ahmad son of Sadiq (25), Ahmad son of Sohna (30), Muhammad son of Sadiq (25), Rajad son of Khan (20), Habib Bakhsh son of Dulla (15) and Naseer son of Jalla (21) were tried for the murder of Bakhoo (40) by the learned Additional Sessions Judge, T.T. Singh. Vide judgment dated 26-3-1985 Ahmad son of Sadiq, Ahmad son of Sohna, Muhammad son of Sadiq, Rajad son of Khan and Habib Bakhsh son of Dulla were convicted under sections 148/302/149 P.P.C. Ahmad son of Sadiq and Ahmad son of Sohna were sentenced to death and fine of Rs.5,000 each or in default to undergo one year each while Muhammad, Rajad and Habib Bakhsh were sentenced to imprisonment for life and a fine of Rs.5,000 each or in default to undergo one year's R.I. All of them were also sentenced to two years' R.I. under section 148 P.P.C. The sentences of imprisonment were ordered to run concurrently with benefit of section 382-B Cr.P.C. They were further ordered to pay as compensation Rs, 5, 000 each to the legal heirs of Bakhoo deceased or in default to suffer 6 months' R.I. each. Naseer son of Jalla was however, given the benefit of doubt and acquitted.

2. This judgment will dispose of Criminal Appeal No.256/85 and the connected murder reference.

3. The prosecution case is that on the night between 5/6-9-1983 Bakhoo deceased, Chiragh PW.7, Lai and Mohabat PWs (not produced) were asleep under a Dhari within the limits of village Faridke Kathia. At about Fajjar prayer time Haitam PW.5 and Chiragh PW.7 woke up and found Ahmad son of Sadiq, Ahmad son of Sohna and Nazeer armed with guns, Muhammad Rajad and Habib Bakhsh armed with Gandasas launching attack on Bhakoo deceased while he was asleep on his cot. The accused carrying guns fired one shot each at him followed by Gandasas blows inflicted by Muhammad, Rajad and Habib Bakhsh accused. Bakhoo succumbed to the injuries on the spot whereafter.at the instance of Ahmad son of Sadiq the accused lifted his dead body and proceeded towards river Ravi. Ahmad son of Sadiq fired gun shots in the air to scare the P.Ws. Haitam PW.5, Chiragh PW.7, Lai and Mohabat (not produced) followed the accused whereupon they threw away his dead body in the Bela and fled away. The motive for the occurrence was that a year before the occurrence a brother of Habib Bakhsh appellant had been murdered for which Bakhoo deceased had been challaned and acquitted. The accused who were related inter se murdered him to avenge the murder of Ghulam Farid aforementioned. The occurrence over Haitam PW.5 left for Police Post, Aroti and made statement Exh.PB before S.I. Muhammad Akram PW.10 on the same day at 8-30 a.m. After recording statement Exh.PB of Haitam PW.5 Muhammad Akram S.I. left for spot, prepared the injury statement Exh.PQ and inquest report PR of Bakhoo deceased. He secured crime empties P.9/1-11 from the spot and made them into sealed parcel vide memo. Exh.PL attested by Chiragh PW.7 and Lai (not produced). He arrested Muhammad and Rajad appellants on 24-9-1983 who produced blood-stained Tokas P.1 and P.2 before him which were secured through memos. Exhs.PC and P.D. He arrested Ahmad son of Sadiq on 25-9-1983 and took into possession his gun P.3 and made it into a sealed parcel through memo. Exh.PE. Ahmad son of Sohna was also arrested on the same day. His gun P.5 was secured through memo. Exh.PF. On 12-10-1983 Naseer accused led to the recovery of gun P.7 from Bela of river Ravi which was made into a sealed parcel through memo. Exh.PG. On the same day Habib Bakhsh appellant led to the recovery of blood-stained Toka P.8 from Bela of River Ravi through memo. Exh.PH. Haitam PW.5 and Chiragh PW.7 attested the recovery memos. The Toka of Muhammad, Rajad and Habib Bakhsh accused were found to be stained with human blood by the Serologist vide his report Exh.PZ (page 13 of the printed book). The crime empties recovered from the spot were found to have been fired from the guns recovered from Ahmad son of Sohna and Ahmad son of Sadiq vide report Exh.PW of the Forensic Science Laboratory.

4. Dr. Ghulam Ahmad PW.1 conducted autopsy on the dead body of Bakhoo deceased (40) on 7-9-1983 and found the following injuries thereon:- (1) Incised wound 25 cm x 10 cm starting from the angle of mouth on left side going backward passing through the middle of left ear and reaching the mastoid region. The underlying lower jaw, ear and skull bones were cut. The injury was caused by more than one blow. (2) Incised wound 15 cm x 5 cm on the front of chin. The underlying bone was cut. (3) Incised wound 25 cm x 10 cm x bone cut on the root of neck. The structure of neck, vertebra and other blood vessels were cut through and through. A tag of skin was left on the back. The injury was caused by more than one blow. (4) Incised wound 15 cm x 7 cm x bone cut on the top of left shoulder. The underlying bone was cut and joint cavity was open. (5) incised wound 10 cm x 5 cm x skin deep on the back of right side of neck. (6) Incised wound 12 cm x 5 cm x skin deep on the back of left side of- neck. (7) Incised-- wound 12 cm x 5 cm x skin deep on the back of neck. (8) Incised wound 3 cm x 1 cm x bone deep on the back of little, right and middle fingers of right hand. The bones of little and ring fingers were cut. This injury was caused by one blow. (9) Incised wound 2 cm x 1 cm x skin deep on the dorsum of middle of right thumb. (10) A firearm wound 3 cm x 3 cm on the back of left chest below the scapula 5 cm away from midline. The margins of wound were inverted and charred. The wound entered the chest cavity after fracturing the rib, pierced through the left lung, heart, right lung and pellets were lying under the skin on outer surface of right chest in the middle. Seven pellets were removed. One piece of 'Gatta' and a piece of cartridge were recovered from the wound. (11) A firearm wound 3 cm x 3 cm on the back of right chest below the right scapula 5 cm away from mid line. The margins were charged and inverted. The wound entered the chest cavity and pierced the right lung. Three pellets piereced the chest wall on the front below the nipple with exit wound 1 cm x 1 cm each. One pellet was found under the skin lateral to right nipple which was taken out and sealed in a bottle. One piece of Gatta was recovered from the injury. (12) A firearm wound 1 cm x 1 cm on the inner surface of middle of right forearm. The margins were inverted and not charred. The pellet was lying under the skin on the outer surface opposite to inlet wound. The pellet was removed. The injury was caused by the same pellet which came out from the chest and re-entered the upper arm if the arm was kept with the chest. (13) Multiple abrasions on the front of left chest right side of abdomen and front of left knee. Both lungs and heart were pierced through and through. Injuries Nos.1 to 9 were caused by sharp-edged weapon. Injuries Nos.10 to 12 were caused by fire-arm and injury No.13 was caused by blunt weapon. Injuries Nos.1 to 4, 8, 10 and 11 were grievous and rest were simple. The probable time between injury and death was immediate and that between death and post-mortem about 27 to 30 hours.

5. The appellants denied the prosecution allegations and attributed the case to enmity. They denied the production /recovery of the weapons of offence. No evidence was adduced by them in defence.

6. To prove its case the prosecution examined 10 P.Ws. Haitem P.W.5 and Chiragh P.W.7 furnished the ocular account. They also deposed about the recovery of instruments of aggression at the instance of the accused. Chiragh PW.7 proved the recovery of crime empties from the spot. S.I. Muhammad Akram PW.10 carried out the investigation of the case.

7. Relying on the ocular testimony, motive and the recoveries the trial Court convicted and sentenced the appellants as described above.

8. Assailing the judgment it is argued by the learned counsel for the appellants that both the eye-witnesses were interested against the appellants. Their presence at the spot was improbable and no independent evidence was led to corroborate their testimony.

9. Haitem PW.5 is brother-in-law of the deceased as his sister was married to him. They were also cousins inter se. Chiral h PW.7 is also related to the deceased as his real brother was married to the sister of Bakhoo deceased. The presence of Haitem P.W.5 and Chiragh PW.7 at the place of occurrence on the relevant day appears to be highly doubtful because they did not live there. Haitem PW.5 admitted that he lived at a distance of one mile from there while Chiragh lived at a distance of 8/10 killas from there. Haitem PW.5 is not an independent witness because he alongwith Bakhoo deceased and others was challaned for the murder of Ghulam Farid brother of Habib Bakhshi accused. He admitted that they had involved the present accused except Habib Bakhsh in the murder of one Islam Charayana in which they were acquitted. Had he been present at the spot the 1ccused would not have spared him because he was also one of the accused in the murder case of Ghulam Farid, brother of Habib Bakhsh appellant. The other eye-witness, namely, Chiragh PW.7 has also a chequered history besides- being closely related to the deceased. He admitteG his involvement in a number of criminal cases. He admitted that he was history-sheeter. In view of the hostility existing between the eye-witnesses and the appellants there was no likelihood of the eye-witnesses chasing the appellants particularly when they were firink shots. Behnis of Khokhars, Abadkaras, Dawanas etc. were situate. near the place of occurrence but none from the said places was examined to prove the occurrence or taking away the dead body by the appellants. Lal and Mohabat the other two eye-witnesses named in the F.I.R. were not produced by the prosecution. Furthermore no independent person was examined to prove the recoveries of crime empties from the spot as well as from the accused. Haitem PW.5 an(; Chiragh PW.7 who were examined to prove the occurrence had also testified to the recoveries taking place on different dates. No reason whatsoever has been advanced by the prosecution for the non-examination of any other witnesses to prove this circumstance. The eye-witnesses whose testimony itself required corroboration because of its interested nature could not corroborate the recoveries. The circumstance of the crime empties matching with the guns recovered at the instance of the appellants cannot be taken into consideration because of the inordinate delay in sending them to the Forensic Science Laboratory. The crime empties were recovered from the spot on 6-9-1983 while they were despacted to the laboratory on 1-10-1983 after the recovery of gun P.5 at the instance of Ahmad son of Sohna had taken place on 25-9-1983.

10. For the foregoing reasons, the prosecution has failed to bring home guilt to the appellants beyond all reasonable doubt. Accordingly, we accept their appeal, set aside their conviction and sentence and acquit them of the charge. They shall be released forthwith if not required in any other case.

11. The death sentence of Ahmad son of Sadiq and Ahmad son of Sohna is _not confirmed. M.Y.H./A-319/L Appeal allowed.