GUL NAWAZ Versus STATE

The appellants namely, Gul Nawaz aged (35 years), Shahbaz aged 40 years, sons of Muhammad Nawaz alongwith their brother Shah Nawaz (aged 55 years), Muhammad Nawaz (75 years), and Fateh Sher (82 years), their father and brother-in-law respectively, were tried under sections 302, 307, 148 and 149, P. P. C. for causing murder of Dost Muhammad aged 50 years and injuries to Shah Nawaz, complainant. The learned Additional Sessions Judge vide judgment dated 22-12-1979 acquitted Shah Nawaz, Fateh Sher and Muhammad Nawaz, but convicted Gul Nawaz and Shahbaz under sec tion 302/34, P. P: C. and sentenced both of them to life imprisonment and to a fine of Rs. 4,000 or in default to undergo 6 months' R. I. each. Half of the fine on realization was directed to be paid as compensation to the heirs of the deceased. The appellants were also convicted under section 324/34, P. P. C. for causing injuries to Shah Nawaz P. W. and were sentenced to undergo R. I. for one year d a fine of Rs. 500 each or in default to undergo further R. I. for one month each. Fifty per cent. of the fine if realized, was directed to be paid to Shah Nawaz, P. W.

2. The prosecution version as narrated in the F. I. R. Exh. P. J. record ed at 4.30 p.m. on 10-10-1976 by Munir Hussain, S. I., P. W. 9 on the statement of Shah Nawaz P. W. was that at 9.00 a. m. the complainant Shah Nawaz and the deceased Dost Muhammad were sowing grams in the land in herited by Ghulam Hussain and Ghulam Muhammad, the father and paternal uncle of the complainant respectively. The aforesaid land originally belonged to one Muhammad Nawaz, a paternal grand-father of the complainant and after his demise Mst. Alam Khatoon, his widow inherited the same. The afore said Mst. Alam Khatoon also died without any male descendant whereupon the land in question was mutated in the name of aforesaid Ghulam Hussain and Ghulam Muhammad. It is also stated in the F. I. R. that the acquitted accused Muhammad Nawaz and Fateh Sher who were related to aforesaid Mst. Alam Khatoon claimed that Mst. Alam Khatoon had given that land to the mosque of the village through a written-deed. They were demanding the possession of the aforesaid land and on the day of occurrence the appellants and their acquitted co-accused Shah Nawaz armed with '12 bore guns and the other accused armed with Waholas came in the aforesaid land where deceased Dost Muhammad was sowing grams with the help of Shah Nawaz, complainant. The appellants and their co-accused raised Lalkara that they will not allow anybody to escape. The appellants and the acquitted co-accused Shah Nawaz fired towards the complainant and the deceased with their respective guns but none was hit. Rab Nawaz, Ghulam Hassan and Muhammad Iqbal who were also present, managed to runaway after the firing, but Dost Muhammad deceased and the complainant could not escape as they were carrying the seed bags. The appellants and their co-accused thereafter came near and Fateh Sher accused aimed a Wahola blow on the head of Dost Muhammad deceased, but the same fell on his left shoulder, and he thereupon fell down and was beaten mercilessly by Gul Nawaz. Shahbaz and Shah Nawaz from the Butt ends of their guns and by Muhammad Nawaz and Fateh Sher by the wrong sides of their respective Waholas. The complainant tried to intervene to save the deceased, his maternal uncle and inflicted a Soti blow to Shah Nawaz, the acquitted co-accused, thereupon all the five accused gave beating to the complainant with their respective weapons and caused him injuries. It is also mentioned in the F. I. R. that Rab Nawaz, Ghulam Hassan and Muhammad Iqbal did not come near the deceased due to fear but kept on watching at some distance. After the assailants had left the spot, the deceased was taken on a cot to the Civil Hospital, Kalukot but he died on reaching there. Thereafter, the complainant leaving the dead body in the compound of the Hospital, went to lodge the report at Police Station, Kalukot. After registration of the case Munir Hussain, S. I., S. H. O. P. W. 9 inspected the spot and picked up crime empty P-9 and secured the same vide Memo. Exh. P. H. He also prepared the injury statement and inquest report, etc. On 12-10-1976 the site plans Exhs. P. D. and P. D. 1 were prepared by Karam Haider Shah P. W. and Gul Nawaz and Shahbaz appellants and their co-accused Shah Nawaz were arrested by the police on 12-10-1976. The acquitted co-accused namely, Muhammad Nawaz and Fateh Sher were taken in custody on 19-10-1976. On 26-10-1976 gun P. 4 and two live cartridges were taken into possession from the residential Kotha of Gul Nawaz. The same were secured into parcel vide Memo. Exh. P.E. Likewise Shahbaz appellant led to the recovery of gun P. 6 and Olive cartridges from his residential Kotha and the same were taken into possession vide Memo P. F. On the same day on house search of Shah Nawaz, the acquitted co-accused Wahola P. 8 was taken into possession from the ceiling of the Chaphar of house and was sealed into parcel vide Memo. Exh. P. G. However, on the house search of Muhammad Nawaz and Fateh Sher nothing incriminatory was taken into possession. It may be mentioned at this stage that the empty P. 9 was not found as having been fired from any of the two guns P. 4 or P. 6 as the Fire Arms Expert vide his report Exh. P. Q. reported that the crime empty had not been fired from '12 bore shot-gun marked `A' and the other shot-gun marked `B' was not in working order. The recovery of guns as well as Wahola was effected after about 14 days of the arrest of the appellants and their acquitted co-accused. The recovery of guns is of no avail to the prosecution, as the crime empty was not connected with the guns. The recovery of Wahola is also of no assistance as the Wahola would be found in every house of a villager. It may also be mentioned at this stage that during police investigation the participation of Muhammad Nawaz and Fateh Sher accused was considered doubtful by the police as it was admitted that witness produced in defence before Police stated that Muhammad Nawaz and Fateh Sher were not present at the time of occurrence. The Investigation Officer, however, submitted the challan against these accused as well as the witnesses for the prosecution had attributed specific role of causing injuries to the deceased.

3. The prosecution case rests upon the ocular testimony of Shah Nawaz P. W. 7. and Rab Nawaz. P. W. 8, the two eye-witnesses, the medical evidence contained in the testimony of Dr. Muhammad Anwar Khan who bad examined Shah Nawaz P. W. complainant and had also performed post mortem on the dead body of Dost Muhammad deceased. There is also evidence of motive contained in the statement of the aforesaid P. Ws. the testimony of Karam Haider Shah P. W. 4 (Patwari) and the evidence of reco very of guns and Waholas. As against this the appellants as well as their acquitted co-accused in their statements under section 342, Cr. P. C. took up the position that Mst. Alam Khatoon during her lifetime lived in the house of Ahmad Nawaz son of Muhammad Nawaz. The acquitted co-accused Muhammad Nawaz, used to get her land cultivated through the accused party and before her death she gifted away the said 8 Killas of land in favour of a mosque and appointed aforesaid Ahmad Nawaz as Mutawalli of the said land which as such remained in their possession. The appellants and the other acquitted co-accused further asserted that they have been involved in the case due to enmity. Muhammad Nawaz, father of the appellants and the co-accused tendered in evidence Exh. D. D. Medical Examination report about the age of Mst. Aisha wife of Gul Nawaz, appellant, Exh D. E statement of Mst. Aisha dated 8-10-1971. Exh. D. F. Nikahnama of Mst. Aisha and Gul Nawaz ; Exh. D. G. certified copy of judgment of the Union Council Ghulaman ; another certified copy by the same Union Exh. H. D. and agree ment-cum-sale-deed Exh. D. J. executed by Mst. Fateh Khatoon in favour of Muhammad Nawaz. Another agreement Exh. D. K. purportedly executed on 26-1-1975, by .'fist. Alam Khatoon was produced to show the dedication of the land in question by Mst. Alam Khatoon.

4. At this stage it may be noted that after death of Mst. Alam Khatoon in July, 1976, Mutation No. 1166 of inheritance was sanctioned in the name of Ghulam Muhammad, Ghulam Hussain sons of Dost Muhammad and Mst. Ameeran daughter of Sakindar Khan on 15-9-1976. The occurrence subject-matter of this appeal took place on 10-10-1976 in Killa No. 2 of Rectangle No. 4464 which is part of the land left by Mst. Alam Khatoon. Mst. Aisha is cousin of Rab Nawaz P. W.

8. As per defence version Gul Nawaz appellant had enticed away Afst. Aisha and thereafter she was got examined for determination of her age. She was also produced before a Court where her statement was recorded and thereafter Nikah was performed. The aforementioned documents were produced to show that the relations between the accused and the complainant party were strained on account of abduction of Mst. Aisha by Gul Nawz and that was the reason for implicating the appellants in the murder case.

5. The learned counsel for the appellants argued that eye-witnesses who were admittedly close relatives of the deceased cannot be relied upon as they have already been disbelieved in respect of the three acquitted co-accused especially when there is no corroborative evidence on record, and that the case of the two appellants is not distinguishable from the case of acquitted co-accused. Learned counsel for the State and the complainant on the other hand submitted that the deceased, the eye-witnesses as well as the appellants and the acquitted accused were closely related inter se and there is no question of false implication as the abduction of Mst. Aisha was long forgotten because admittedly since abduction in 1971 till the date of occurrence nothing untoward happened between the parties.

6. I have gone through the entire record with the assistance of the learned counsel for the parties and have also carefully considered the r "Naive submissions made. The prosecution version that the occurrence took place in Killa No. 2 on Rectangle No. 4464 which is part of Khewat No. 48 is not denied by the appellant. The Khewat as per evidence of Karam Haider shah, Patwari P. W. 4 was in cultivating possession of the co-sharers numbering 12-13 persons including Mst. Alam Khatoon. On demise of Mst. Alam Khatoon the land left by her was mutated in the name of Ghulam Muhammad and Ghulam Hussain, etc. of the complainant party and it is their case that they were in possession of the said land and were sowing grams, when the appellants and their co-accused came there, launched the assault on Dost Muhammad deceased and injured Shah Nawaz, P. W. As against this the case of the defence was that the land was dedicated to a mosque in January, 1975, f. e. about one year and five months prior to the death of Mst. Alam Khatoon and that Ahmad Nawaz brother of appellants was in possession even in the lifetime of Mst. Alam Khatoon.

7. The aforesaid assertion was, however, not put to Karam Haider Shah, Patwari P. W. 4 and Shah Nawaz, P. W. 7 when asked in cross examination denied the suggestion that Mst. Alam Khatoon was in exclusive possession of the land in dispute and used to arrange its cultivation herself through Ahmad Nawaz son of Muhammad Nawaz, acquitted co-accused. The fact remains that the land in dispute was mutated in the name of Ghulam Muhammad, etc. belonging to complainant party and the accused party was denying the rights of the complainant party on account of alleged dedication in favour of the mosque of the land in question.

8. Moreover considering the respective versions in juxtaposition, another fact which clearly emerges is that the land is shown in the cultivating possession of the owners and not in the name of Ahmad Nawaz, brother of the appellants and the cultivation of Ahmad Nawaz brother of the appellants is also not borne out from the Revenue record: The ocular testimony of the two eye-witnesses also leads one to the conclusion that the occurrence took place between the parties on the very land in respect of which both the parties were claiming right of possession and as a result thereof Dost Muhammad was murdered and Shah 111awaz, P. W. received injuries. At this stage reply to the suggestion put to Shah Nawaz P. W. in cross-examination maybe referred and the same reads as under

It is incorrect to suggest that Shah Nawaz, accused was ploughing the land at the time of occurrence. It is incorrect to suggest that I gave Dang blow to Shah Nawaz accused while the deceased fired twice from his gun. It is incorrect to suggest that many people collected from both sides and in, melee I and the deceased received injuries.

The other eye-witness namely, Rab Nawaz P. W. 8 was not cross-examined at all in respect of the main occurrence itself. The testimony with respect to the causing of murder of Dost Muhammad and injuries to Shah Nawaz remained unchallenged. It may additionally be noted: that the abduc tion of Mst. Aisha by Gul Nawaz, appellant in the year 1971 was a long for gotten affair as nothing untoward happened between the parties for years uptil the date of occurrence. The said abduction in view of the dispute in respect of the land in question cannot be considered to be a cause for involving the appellants and their co-accused in the instant case. It is also of important to mention that in the Iqrar Nama Waqf Exh. D. K. there is no mention that the land is in cultivating possession of Ahmad Nawaz, brother of appellants. Moreover the fact that aforesaid Ahmad Nawaz was appointed Mutawalli, is also not mentioned in the said document as what is recorded therein is that the document is being handed over to Ahmad Nawaz son of Muhammad Nawaz, co-accused. Had the land been in possession of Ahmad Nawaz as a tenant or otherwise as Mutawalli, the said fact would have found mention in the document itself.

9. The picture which emerges by putting in juxta position while appraising the evidence it is to be remembered that the deficiencies in the defence version cannot be used to corroborate the prosecution version. It is also well-established that the defence version may appear to be fake or untrust worthy still verdict of guilty cannot be retained until the prosecution has succeeded in proving its case beyond all shadows of doubt as the onus to prove the guilt is always on the prosecution. The ocular account of the eye-witnesses, the evidence of Karam Haidar Shah, Patwari, P. W. 4 and the stand taken and the documents produced by the defence itself is that the land in dispute was mutated in the name of Ghulam Muhammad, etc. belonging to the complainant party and the accused party on the basis of the Iqrar Nama Waqf Exh. D. K. set up a claim over the said land and this resulted into the clash. In this clash Dost Muhammad was killed and Shah Nawaz received injuries at the hands of the appellants. The ocular account of the witnesses inspires confidence and the suggestion put that the deceased Dost Muhammad had his gun with him by which he fired two shots cannot be believed. Had it been so, then some one from the accused party would have received injuries. The ocular account of the eye-witnesses stands supported by Medical evidence, motive as well as the pleas taken by the defence itself as against the appellants. The conviction and sentences awarded to them are, therefore, maintained.

10. The criminal revision filed by the complainant is also without any merit. The learned trial Court had acquitted Muhammad Nawaz, Fateh Sher and Shah Nawaz accused, the father, father-in-law and the brother of the appellants, as the Investigating Officer P. W. 9 in his statement had accepted the suggestion of the defence that many persons appeared in the defence of the two accused (Muhammad Nawaz and Fateh Sher) to state that they were not present in Kallurkot at the time and date of occurrence and that he found the defence of the said accused as correct. Shah Nawaz accused also before the Investigating Officer claimed that Haji Muhammad Nawaz and Fateh Sher accused were not present at the time of occurrence. It may also be noted here that Shah Nawaz P. W. 7 in cross-examination admitted that his maternal aunt Mst. Daulat Khatoon was the first wife of Fateh Sher accused and that he had divorced his said paternal aunt and married .Mst. Alum Khatoon, daughter of Muhammad Nawaz, accused. He, however, denied the suggestion that he was inimical towards the accused since long before the present occurrence.

11. Considering the number of injuries caused to the deceased and Shah Nawaz P. W. I am also of the view that it would not be safe to convict Muhammad Nawaz, Fateh Sher and Shah Nawaz, co-accused in the circumstances mentioned above and that the acquittal of the co-accused was fully justified in law.

The upshot of the above discussion is that appeal filed by .the appellants as wall as the criminal revision filed by the complainant both fail and are hereby dismissed.

Appeal dismissed.