MUHAMMAD BAKHSH Versus STATE

GHULAM MUJADDID MIRZA, J: The prosecution case is that Mst. Faiz Mai, daughter of Ghulam 'Raider maternal uncle of Allah Wasaya the first informant in this case, was married to Ghulam Qadir son of Allah Diwaya, resident of Mauza Shard about 15/16 years ago. Wife of Allah Wasaya died vw/4 years prior to the alleged occurrence. He, therefore, requested his maternal uncle Ghulam Haider that he should marry Mst. Fayz Mai to him and in exchange he would marry his daughter Mst. Kanez Mai to Ghulam Qadir. Ghulam Haider agreed to this arrangement. A month prior to the occurrence, the maternal grand‑father of Ghulam Qadir, namely Ramzan alongwith Haji Fazal and Muhammad Bakhsh visited the house of Ghulam Haider and asked him to fix a date for the marriage of Mst. Faiz Mai with Ghulam Qadir. Allah Wasaya came to know of this. He alongwith his relatives Gul Muhammad Bashir and Ghaus Bakhsh went to the house of Ghulam Haider at Chah Ranjhewala, and told Ramzan that Mst. Faiz Mai could not be married to Ghulam Qadir as Allah Wasaya's wife had died and he himself wanted to marry Mst. Faiz Mai and in exchange was prepared to marry his daughter Mst. Kanez Mai to Ghulam Qadir. This was not agreed to by the maternal grandfather of Ghulam Qadir as wall as Muhammad Bakhsh. The parties flared up and there was an exchange of abuses. Gul Muhammad who had accompanied Allah Wasaya intervened and the situation was saved. Ramzan and others felt offended and returned to their house but while leaving they threatened the other party with dire consequences for the insult and for being responsible for interfering in the proposal of marriage. A day prior to the occurrence at about 8/9 a.m. Allah Wasaya was going to Bhagri. He had a mare with him. He noticed Ghulam Qadir, Muhammad Bakhsh, Nabi Bakhsh and Pir Bakhsh, residents of Mauza Shani armed with dangs, going towards Darbar Pir Imam Shah. He suspected that the party might not be going to abduct Mst. Faiz Mai. Allah Wasaya, therefore, at once rode on a mare and came to the house of his maternal uncle Ghulam Haider at Chah Ranjhewala. He stayed there for the day and returned in the evening to his house at Chah Januwala. There his brother‑in‑law Ata Muhammad, son of Misri had come. Both of them after their night meal slept on the kotha. Allah Diwaya brother of Allah Wasaya slept on a cot outside the house where Allah Wasaya used to sleep. A lantern which was lit, was placed on the wall for keeping watch on the cattle. At about mid‑night Allah Diwaya's shriek was heard on which Allah Wasaya and Ata Muhammad woke up and so did Mst. Bhirwan wife of Allah Diwaya, who was sleeping Inside the outer door. All the three saw Ghulam Qadir, Muhammad Bakhsh, Nabi Bakhsh and Pir Bakhsh 9n the light of the lantern. Ghulam Qadir had caught hold of Allah Diwaya from his head, Muhammad Bakhsh held the feet and Nabi Bakhsh was sitting on the abdomen of Allah Diwaya and had held his arms. 'Pir Bakhsh had a chhurri in his hand and he was cutting the throat of Allah Diwaya with it. Mst. Bhirawan stepped forward in order to rescue Allah Diwaya but all the four accused threatened her not to come close otherwise she too would be killed. Allah Wasaya and others raised hue and cry on which Ghulam Sarwar and Chhotoo came to the spot. They had a torch with them. They also attempted to catch hold of the accused, but the accused managed to escape, nevertheless Ghulam Sarwar and Chhotoo identified the accused. Allah Diwaya's throat had been cut and he had died. According to the statement of Allah Wasaya the accused wanted to kill him on account of his interference in the marriage proposal but instead of him it was his brother who was murdered.

2. The aforesaid incident took palace on the night between 16th and 17th August 1971 and was reported by Allah Wasaya P. W. to Muhammad Shafi A. S.I whom he met at Adda Pir Ghalib while he was on his way to Police Station, Shujabad. The A.S.I after recording the statement of Allah Wasaya forwarded the same to Police Station, Shujabad on which formal F. I. R. Exh. P. D/1 was recorded by Ali Muhammad A. S. I Muhammad Shafi A. S. I. then proceeded to the place of occurrence where he prepared inquest report Exh. P. I. and injury statement Exh. P. J/1 of the deceased. He also took into possession blood‑stained earth from the spot vide memo. Exh. P. A. and seized the lantern P. 1 vide memo. Exh. P. B. which was produced by Allah Wasaya P. W. Ghulam Sarwar produced torch P. Z which was taken into possession vide memo. Exh. P. C. The police officer also took into possession vest P. 4, parka P. 5, cot P. 6, khes P.7 and chaddar P. 8 vide memo. Exh. P. H.

The accused were arrested on 24th August 1971 and immediately after their arrest chhurri P. 3 was recovered at the pointing out of Pir Bakhsh which was taken into possession vide memo. Exh. P. G.

3. Post‑mortem examination of Allah Diwaya son of Karim Bakhsh was performed by Dr. Muhammad Afzal Hashmi, on 18th August 1971 at 7‑30 a.m. who found the following injury thereon:‑‑

"One incised wound, 6 x 3' vertebra deep, on the front of neck at the level of 1/3' below upper edge of adam's apple. It was slightly oblique from left down and to the right, the two edges being at difference of 1/3rd of an inch. There was sharp cut, 1/4' deep, running across the upper part of the front of third vertebra of the neck, in line with the superficial wound. The big blood vessels of the two sides (carotid and jugular'), sound box and food pipe were sharply cut across. The wound had digested meals coming out of the food pipe."

According to the opinion of the doctor death had occurred due to bleeding from cutting across of the big blood vessels of the two sides of the neck by the injury which was sufficient to cause death in the ordinary course of nature.

4. After the completion of investigation all the four accused were challaned under section 302/34, P. P. C. and the case was committed to the Court of Sessions Judge by order dated 29th December 1971 of the Commit ting Magistrate. The trial Court found that the participation of Nabi Bakhsh in the alleged crime had not been proved beyond reasonable doubt. He was, therefore, acquitted. The remaining three accused were found guilty under section 302/34, P. P. C. for the murder of Allah Diwaya. Pit Bakhsh was sentenced to death and the other two to transportation for life. The convicts have filed a joint appeal in this Court and reference under section 374, Cr. P. C. for confirmation of death sentence of Pir Bakhsh is also before us. This judgment will dispose of the appeal as well as the murder reference.

5. The prosecution in support of its case relied on the testimony of Allah Wasaya (P. W. 9) and Mst. Bhirawan (P. W. 10). Reliance was also placed on the evidence of Ghulam Sarwar (P. W. 7) who had seen all the four accused running from the place of occurrence and Pit Bakhsh had a chhurri in his hand at that time. The prosecution also produced evidence pertaining to extra judicial confession and it was Ghulam Haider (P. W. 11) who deposed about the same. Recovery of chhurri P. 3 which was found to be stained with human blood vide Serologist's report Exh. P. K. and the medical evidence was also used against the appellants.

6. Ghulam Qadir appellant when examined by the trial Court admitted that Pir Bakhsh was his real brother whereas the other two accused were not related to him. It was also admitted by him that Ghulam Haider P. W. had married his daughter Mst. Faiz Mai to him while she was minor but rukhsati had not taken place. When questioned "is it a fact that Ghulam Haider P. W. refused to marry his daughter to you and instead agreed to give her hand in marriage to Allah Wasaya P. W.", the answer given was "No. They wanted divorce of Mst. Faiz Mai from me." He denied the rest of the allegations and said that he had been involved on account of the anxiety of the prosecution to secure divorce of Mst. Faiz Mai from him and explained the case in the following words :‑

"Close to the house of Allah Wasaya P. W. are situated the houses of Imam Bux, Dildar and Ghulam Sarwar Bhaplas by caste. Muhammad Ramzan had illicit connection with Mst. Ashraf wife of Dildar and Allah Diwaya used to provide asylum in his house for illicit meeting of Mst. Ashraf with Muhammad Ramzan. Originally this Dildar was suspected of having murdered Allah Diwaya. Moreover, Ramzan son of Qadir Bux made indecent overtures to the wife of Allah Diwaya deceased. In retaliation the deceased actually broke open the door of Qadir Bux father of Ramzan and made indecent attack on the daughter‑in‑law of Qadir Bux. There were tracks at the spot. Rana Muhammad Aslam tracker was sent for but the police did not fairly investigate the case and played in hands of Allah Wasaya P. W. and his friends."

Ghulam Qadir declined to produce any evidence in defence.

Similarly, Pir Bakhsh denied all the allegations and said that he was not present at the time of the alleged occurrence. He further stated that all the prosecution witnesses were interrelated and had falsely implicated him. He did not produce any defence. When asked "why this case against you", his answer was:

"It is a false case. As a matter of fact the wife of Dildar, Mst. Ashraf by name was carrying on with Muhammad Ramzan in the house of Allah Diwaya with the connivance of Allah Diwaya deceased and Dildar bore a grudge against the deceased. Moreover, Allah Diwaya had made an indecent assault on the daughter‑in‑law of Qadir Box in retaliation for Ramzan son of Qadir Bux having made indecent assault on the wife of the deceased. So Dildar and Qadir Bux both had heart burning against the deceased. They were originally suspected in the investigation. Even an attempt was made by the prosecution to get the track: at the spot compared with their tracks but then a false story was manufactured against us on account of discussion and deliberation with connivance of the police."

Muhammad Bakhsh appellant admitted that Ghulam Haider P. W. had married his daughter Mst. Faiz Mai to Ghulam Qadir but rukhsati had not taken place. He denied the remaining allegations including the one pertaining to extra judicial confession and said that he had been implicated due to enmity with the prosecution witnesses. He did not produce any evidence in defence.

7. The best course to test whether the prosecution has been able to prove its case beyond reasonable doubt against the appellants would be to first examine the evidence pertaining to motive. Allah Wasaya and Ghulam Haider P. Ws. deposed about the motive. Ghulam Haider P. W. father of Mst. Faiz Mai, admitted that his daughter had been married to Ghulam Qadir while she was minor but rukhsati had not taken place and that after the death of the wife, of Allah Wasaya he had agreed to give the hand of his daughter to him and in return asked for the daughter of Allah Wasaya Mst. Kanez Mai for Ghulam Qadir appellant. He also admitted that about a month prior to the occurrence Muhammad Bakhsh appellant alongwith his maternal grand‑father and others came by way of Panchayat and requested him to fix a date for the marriage of his daughter with Ghulam Qadir appellant. This led to altercation between the members of the Panchayat on the one hand and he, Allah Wasaya and others on the other and it was only on account of the intervention of Gul Muhammad that the situation did not take an ugly turn. Same is the evidence of Allah Wasaya P. W. pertaining to motive.

8. So far as the eye‑witnesses are concerned, both are related to the deceased. Allah Wasaya is the real brother of the deceased while Mst. Bhirawan is the widow of the deceased. Even Ghulam Haider P. W. who deposed about the motive is relative of Allah Wasaya, being his maternal uncle. Allah Wasaya's statement before the trial Court was according to the first information report which he had lodged. He stated that he and Ata Muhammad were sleeping on the roof of the kotha. Mst. Bhirawan was sleeping on the ground‑floor and a lantern was burning which had been placed on the wall of the courtyard for keeping a watch of the cattle. Allah Diwaya was sleeping on the ground‑floor when on hearing a shriek in the middle of night be got up and saw Muhammad Bakhsh holding Allah Diwaya from his feet. Nabi Bakhsh was on his chest and was holding him by his arms. Ghulam Qadir held the head of the deceased and Pir Bakhsh was inflicting chhurri blows on the neck of the deceased. Mst. Bhirawan corroborated the statement of Allah Wasajra. She very accurately deposed what had been seen by her.

9. So far as the evidence of Ghulam Mustafa (P. W. 8) pertaining to extra judicial confession is concerned, we are not impressed by his testimony. because the way he deposed, hardly inspires any confidence. According to this witness he was going to the house of Muhammad Bakhsh appellant which was at a distance of one furlong from Basti Sheeni when all the four accused gathered there and confessed before him that they had killed Allah Diwaya. This evidence on the face of it appears to be most unnatural and we are, therefore, not prepared to rely on the evidence pertaining to extra judicial confession. It was also admitted by this witness that he had extended a promise to the appellants that they should not be afraid of the police as he would help them.

Ghulam Mustafa also signed the recovery memo. Exh. P. G. on 24th August 1971 pertaining to the chhurri whereas the other two items, lantern P. 1 and torch P. 2 which were taken into possession vide memo. Exh. P. B. and P. C., respectively, were witnessed by Ghulam Hussain (P. W. 5) Sheikh Iqbal Ahmad (not produced) and Muhammad Shafi A. S. I. chhurri P. 3, as already observed, was found to be stained with human blood. It was recovered on the same very day on which Ghulam Mustafa produced all the four accused and his evidence is duly corroborated by Muhammad Shafi A. S. I., who admitted to have arrested all the four accused on 24th August 1971, therefore, it cannot be discarded. Similarly, the recovery of lantern which was taken into possession on the night of occurrence cannot be ignored.

10. Learned counsel for the appellants attacked the prosecution case on number of grounds. The first point urged was that the incident did not take place in the middle of night but Allah Diwaya was killed round about 10‑00 p.m. and at that time it was dark and no one saw the assailants Learned counsel then contended that the eye‑witnesses were closely related to the deceased. As such, they were interested and no reliance could be placed on their testimony especially when it finds no corroboration from other independent evidence.

In support of the first contention learned counsel referred us to the medical evidence and submitted that according to the post‑mortem report, the stomach of the deceased contained about two ounces of semi‑digested meal taken about three to five hours before the death. This was sufficient and conclusive proof of the fact that the deceased had been murdered in the early hours of the night and not in the middle of night, as alleged by the eye‑witnesses. Learned counsel submitted that if the occurrence had taken place in the middle of night, the condition of the contents of the stomach of the deceased would have been different than the one described by the doctor. We are unable to agree with this contention, because no attempt was made by the defence to clarify the precise time when the deceased took his last meal and, therefore, the defence cannot take any advantage of the opinion of the doctor. On the other hand his opinion lends support to the prosecution case that the deceased was killed at about mid‑night. It was the month of August and the last meal normally would be taken at the earliest between 8‑00 or 9‑00 p.m. and the doctor's opinion was that semi‑digested meal had been taken about three to five hours before death, which would mean that the occurrence did take place as alleged by the prosecution in the middle of night. It may be mentioned in this connection that the defence neither questioned the eye‑witnesses regarding the particulars of the last meal taken by the deceased nor the doctor was asked as to whether it was possible for him to describe the type of food taken by the deceased. In this sequence we may also dispose of the argument of the learned counsel that the first information was recorded at the spot and that it was a belated one. Allah Wasaya P. W. stated that after the appellants had run away, he had left Ghulam Hussain Chowkidar and himself left for police station when he met the A. S. I. near Adda Pir Ghalib and by then it was fajjar time when his statement was recorded. We, therefore, do not find any delay in lodging the first information report. It is but natural that some time is likely to be consumed when an occurrence, like the one, takes place and, therefore, it would be too much to expect that the person aggrieved would straightaway run to the Police Station. Moreover, there is nothing on the record to show the actual distance from the place of occurrence to Adda Pir Ghalib where the complainant met Muhammad Shafi, A. S. I., but according to the first information report the distance of Police Station Shujabad from Chah Januwala is eight miles towards south.

11. It is an admitted position that the two eye‑witnesses are close relations of the deceased and, therefore, in order to test the veracity of their evidence the first and foremost question to be considered is whether these witnesses could be present at the time of the occurrence and then if they were there did they actually see the occurrence and finally whether their evidence could be believed with or without corroboration. It was the house of Allah Wasaya P. W. where the alleged murder took place. The deceased was his brother. He was residing with him. Mst. Bhirawan was the wife of the deceased. She would, therefore, be naturally with her husband. No attempt has been made by the defence to prove that venue of occurrence was different than the house of Allah Wasaya. It is, therefore, quite natural that in the middle of night when the alleged occurrence took place. there would be nobody else except the occupants of the house and the neighbours would be 'attracted only, after they had heard the alarm. So there could be no doubt about the presence of these witnesses at the time of the alleged occurrence. The statement of Allah Wasaya does not suffer from any material contradiction or improvements. On the other hand it gets full support from the testimony of Mst. Bhirawan who very confidently narrated the entire incident. In cross‑examination she said:‑

"When I woke up I saw all the four accused holding the deceased as described above. My cot was to the west of the cot of the deceased. Pir Bux had butchered the deceased."

12. Learned counsel submitted that the recoveries were fake. It was submitted that lantern and torch had been introduced to facilitate the, eye‑witnesses for the correct identification of the appellants. Learned counsel first dealt with the evidence of Ghulam Hussain who attested the recovery memos of lantern and torch and argued that this witness admitted that the chimney of the lamp was dark and torch P. 2 had not been put to test in his presence. Great emphasis was laid on his admission that all the four accused had appeared before the police on 18th August 1971 and the police had hand‑cuffed them on that very day, whereas according to the statement of the Police Officer the accused were arrested on 24th August 1971. Recovery memo. pertaining to lantern could not be doubted as it was prepared immediately after the occurrence, but the evidence pertaining to the arrest of the accused by this witness is an obvious concession. Ghulam Hussain was only a recovery witness, therefore, his evidence that the A. S. I. had taken all the four accused when he left for the police station in the evening of 18th August 1971 with him could not be relied upon especially when Muhammad Shall, A. S. I. in his statement admitted that he arrested the accused on 24th August 1971. The mere fact that this witness gave a different date of arrest of the accused would not make the recovery pertaining to lantern as doubtful, nor could the recovery of chhurri be discarded, as it had been found stained with human blood.

Ghulam Sarwar P. W. deposed that he saw the accused while they were running and noticed Pir Bakhsh holding a chhurri in his hand. According to Mst. Bhirawan, Ghulam Sarwar and Chhotoo arrived when the accused had left. Even if it is accepted that at that time Ghulam Sarwar had a torch even then it is hardly believable that he could identify the accused, especially Pir Bakhah carrying a chhurri because when the accused were running they had their backs towards Ghulam Sarwar and it is not in evidence that they were identified by the witness while he was coming from the opposite direction. We, therefore, do not rely on the evidence of Ghulam Sarwar P. W.

13. For the foregoing reasons we are of the view that Allah Wasaya and Mst. Bhirawan were the natural witnesses and that they saw the occurrence, because there was enough light. Their evidence finds corroboration from the recovery of chhurri P. 3 as well as the medical evidence.

We have also examined the possibility of implicating more than one person. The medical evidence showed that the deceased had one injury but the nature and size of the injury and its location leave no room for doubt that the deceased was taken by surprise, which means that he was asleep and the manner in which the throat was cut further shows that he had been rendered absolutely helpless. This could only be done if the number of assailants was more than one because the deceased had been incapacitated to that extent that he could not even offer any resistance. It is, therefore obvious that is was not one man's job and that all the appellants participated in the commission of the murder of Allah Diwaya. We would, therefore, maintain the conviction and sentence of the appellants with the result that the appeal is dismissed and the sentence of death of Pir Bakhsh is confirmed.

Appeal dismissed.