SHABBIR AHMAD Versus STATE Dilawar Mahmood , M.A.K. Chaudhry
LEHRASAP KHAN, J.‑ ‑ Shabbir Ahmad son of Muhammad Hussain (24) has been convicted by the learned Sessions Judge, Jhelum, vide judgment, dated 8‑2‑1984, under section 302, P.P.C. for causing the murders of Mst. Zaibun Nisa (35), Gulnawaz (7) and Haqnawaz (3). He has been sentenced to death on three counts and a fine of Rs. 6,000 on each count, in default R.I. for six months. His father Muhammad Hussain who was also tried as co‑accused for the aforementioned murders, has been acquitted by the same judgment.
2. Shabbir Ahmad has challenged his conviction and sentence through the present appeal. The matter also stands referred to us under section 374, Cr.P.C. seeking confirmation of death sentence awarded to Shabbir Ahmad. Both these matters shall be disposed of by this judgment.
3. The occurrence in this case took place during the night between 11th/12th August, 1982, in the house of Khadim Hussain, husband of Mst. Zaibun Nisa and father of Gulnawaz and Haqnawaz in village Bala. at a distance of six miles from Police Station Sadar Jhelum.
The occurrence was reported to the police by Muhammad Sadiq P.W.6, a neighbourer of Khadim Hussain on 12‑8‑1982 at 10‑00 a.m. through statement Ex.P.D. which was recorded by Qurban Ali P.W.10, the then S.I./S.H.O. Police Station Sadar Jhelum, near the hotel on G.T. Road, Jhelum. Formal F.I.R. Ex.P.B. was recorded by Muhammad Afzal P.W.2 M.H.C. at 11‑00 a.m.
4. No motive for the murders has been alleged by the prosecution. It has been stated by Muhammad Sadiq P.W.6 in his statement Ex.P.D. that his house was adjacent to that of Khadim Hussain and that during the night between 11th/12th August, 1982. this witness was sleeping on the roof of his house. At about midnight he heard the voice of Muhammad Hussain, the acquitted accused, father of Khadim Hussain. This witness went to the roof of the house of Khadim Hussain and saw in the electric light that Muhammad Hussain was present on a cot in the Haveli while Shabbir Ahmad appellant was running out of the Haveli. This witness enquired from Muhammad Hussain who kept quiet. On the following morning at 10‑00 a.m. the witness learnt that Zaibun Nisa wife of Khadim Hussain Gul Nawaz and Haq Nawaz sons of Khadim Hussain have been murdered. It has also been disclosed in the statement Exh.P.D. that at midnight Ahmad Khan P.W.8 had also seen Shabbir Ahmad running towards G.T. Road.
5. Qurban Ali S.I. P.W.10 after recording the statement Exh.P.D. of Muhammad Sadiq P.W.6, came to the place of occurrence. He prepared the injury statement and inquest reports in respect of the dead bodies and despatched them to the mortuary.
6. P.W. 5 Dr. Fayyaz Ahmad Khan, the then Medical Officer, D.H.Q. Hospital, Jhelum, performed the post‑mortem examinations on the dead bodies of Mst. Zaibun Nisa, Gulnawaz and Haqnawaz deceased on 12‑ 8‑ 1982. In case of Mst. Zaibun Nisa he noticed incised wounds in front of right ear, on throat, cutting throat carotid vessels and superficial part of vertebra, on abdomen, 3" from umbilicus with prolapsed of intestines, on abdomen 1‑1/2" above the umbilicus and on the right wrist. He opined that injuries Nos. 1 to 4 caused the death. All the injuries were ante‑mortem and had been inflicted with sharp‑edged weapon. He further opined that these injuries were sufficient to cause death in the ordinary course of nature.
In case of Gulnawaz deceased, two injuries were noticed, i.e. an incised wound in front of neck, involving trachea oesophagus and blood vessels of both sides and another incised wound on front of abdomen at the level of umbilicus. It has been opined that these injuries were sufficient to cause death in the ordinary course of nature and were ante‑mortem caused with sharp‑edged weapon.
In case of Haqnawaz deceased it was noticed that his throat was completely cut and neck was attached by a tag of skin to the rest of the body. This injury was opined to be sufficient to cause death in the ordinary course of nature. It was further opined that it was ante‑mortem and caused with sharp‑edged weapon
7. The appellant was arrested on 21‑8‑1982 by Qurban Ali S.I. P.W.10. On 25‑8‑1982, while in police custody he led to the recovery of Tesha P.6 from the village pond, vide memo. Exh.P.H., which has been attested by P.W.9 Ch. Muhammad Yaqoob, Noor Alam Sarbrah Lambardar (not produced) and Raja Munawar Hussain Inspector P.W.7. On the same day, the appellant led to the recovery of a bag from a field near the metalled road by digging earth. The bag contained blood‑stained Chhuri P.7, blood‑stained Shalwar P.8, string P.9 and blood‑stained Kurta P.10. These articles were seized vide memo. Exh.P.J. which has been attested by the same witnesses.
8. Vide reports Exhs. P.T. and P.U. of the Chemical Examiner and the Serologist, respectively, the bag, the Chhuri, Shalwar, string and the Kurta were stained with human blood.
9. It transpires from the above resume of facts of this case that the prosecution case against the appellant is based on evidence of Wajtakkar furnished by Muhammad Sadiq P.W.6 and Ahmad Khan P.W.8 and recoveries of Tesha, Chhuri and blood‑stained clothes of the appellant.
As already observed, no motive has been alleged against the appellant for causing the murders of his sister‑in‑law and nephews. There is no extra‑judicial confession nor any direct evidence.
10. The appellant, of course, pleaded not guilty and maintained that the village was predominantly populated by Gujjars. It was suspected that they were responsible for the murders of his ‑sister‑in‑law and nephews but being an influential tribe they falsely got the appellant and his father involved in the case. No evidence has, however, been led in defence.
11. As regards Wajtakkar evidence, the testimonies of Muhammad Sadiq and Ahmad Khan P.Ws. do not inspire confidence. Muhammad Sadiq claims that he went to the roof of the house of Khadim Hussain at the eventful time on hearing alarm and saw the appellant running out of the house towards the G.T. Road. He, however, informed the police of the occurrence as late as 10‑00 a.m. Had he seen the appellant running away in suspicious circumstances he would have ascertained the details of the occurrence at that very moment. Ahmad Khan says that on the fateful night he came from Rawalpindi by bus. At about midnight he alighted from the bus at bus‑stand near Chip‑board Factory, on G.T. Road from where he started for his village which is at a distance of 3/4 furlong. After covering a distance of half a furlong he saw the appellant running away towards G.T. Road carrying a bag. On his enquiry he was told that the appellant was going to Gujrat where he worked. It is noteworthy that this witness according to his own admission remained present with the police when the inquest reports and the injury statements in respect of the dead bodies were being prepared, but on that occasion he did not inform the police that he had seen the appellant running away carrying a bag in suspicious circumstances towards G.T. Road. He made a statement in this behalf subsequently after 2‑00 p.m. when he was called by the police
12. The evidence regarding recoveries is also self‑contradictory. Nur Alam Sarbrah Lambardar, one of the attesting witnesses, has not been examined. Muhammad Yaqoob has disclosed that for purpose of recoveries this witness and Nur Alam were summoned from their houses by the police. They first went to the police station and from there were taken by the police to the places of recoveries. Raja Munawar Hussain Inspector has conversely disclosed that Muhammad Yaqoob and Noor Alain were not summoned by the police. They joined the police voluntarily while the police was passing through the village for effecting, recoveries, Muhammad Yaqoob has admitted that he has already appeared as recovery witness in a number of cases. Such a stock witness does not deserve any credence.
13. In the light of. the above discussion we have come to the conclusion that the Wajtakkar evidence and that of recoveries, produced in this case, is hardly sufficient to bring home the guilt on a capital charge against the appellant. In a case based on circumstantial evidence, the evidence should be of unimpeachable character and there should not be any missing link. In the circumstances of the present case these requirements have not been met. We, therefore, allow the appeal, set aside the Conviction and sentence of the appellant and acquit him. He shall be set at liberty forthwith if not required to be detained in any other case. The death sentence awarded to the appellant is not confirmed.
S.G.D./S‑43/L ??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.