HAFIZ ABDUL HAMID Versus THE STATE Nazir Ahmad Bhatti , Ch. Muhammad Ashraf Akhtar
The propriety and legality of the judgment, dated 23‑6‑1985 pronounced by the learned Sessions Judge, Bahawalpur, has been questioned in this Jail Appeal, who had convicted the appellant under section 302 of the P.P.C. for murdering Muhammad Nawaz and Mst. Hayat Bibi and had awarded him life imprisonment on each count and a fine of Rs.5,000 or to suffer three years' R.I. on each count. The appellant was directed to pay compensation of Rs.5,000 on two counts which was directed to be paid to the legal heirs of the two deceased and in default of the payment of compensation, he was ordered to suffer six months' R.I. (words missing) this crime, in substance., are that Rashid Ahmad, the complainant, and his brother Muhammad Nawaz deceased was cultivators. Muhammad Nawaz was living apart from Rashid Ahmad complainant. Seven or eight years back, Khuda Bakhsh shifted his residence from the area of Musafir Khana alongwitil his family members to Chak No. 66/D.B. and Khuda Bakhsh commenced cultivating the land of Muhammad Nawaz in the capacity of a tenant‑at- will. During those days, Mst. Hayat Bibi, wife of Khuda Bakhsh, developed illicit relations with Muhammad Nawaz, who was already married to Mst. Mehmooda Begum, his first cousin. When the complainant party came to know of their amatorial ties, they asked Khuda Bakhsh to go away. Khuda Bakhsh shifted his residence but Mst. Hayat Bibi again came to the house of Muhammad Nawaz. Muhammad Nawaz got instituted a suit from Mst. Hayat Bibi for the dissolution of marriage against Khuda Bakhsh in the Civil Court at Pasroor District Sialkot, and obtained an ex parte decree. After the said ex parte decree, Muhammad Nawaz married Mst. Hayat Bibi and she gave birth to a son Mumtaz, who was three or four years old at the time .of incident. Mst. Hayat Bibi was also pregnant at the time of this incident.
3. Khuda Bakhsh had initiated criminal proceedings against Muhammad Nawaz, Mat. Hayat Bibi and the complainant for the abduction of Mst. Hayat Bibi and that case was subjudice before the learned Additional Sessions Judge, Bahawalpur. Hafiz Abdul Hameed, the appellant, who is the son of Mst. Hayat Bibi and was 15 or 16 years of age at that time felt incensed and on 22‑7‑1984 at about 3‑00 a.m. he came to the house of Muhammad Nawaz while armed with a hatchet. The complainant heard an alarm of Mst. Hayat Bibi and scaled over the wall and entered the house of his brother Muhammad Nawaz where he found Muhammad Nawaz having been axed to death and the appellant was found injuring his mother Mst. Hayat Bibi. Muhammad Khan and Shabbir Ahmad also reached there. They tried to apprehend the appellant, who threatened them with dire consequences and ran away.
4. The matter was reported to the police by Rashid Ahmad complainant and the F.I.R. Exh.P.K. was recorded by Nemat Ali Arshad S.I. P.W.12 at 6‑30 a.m. on 22‑7‑1984.
5. The police collected the blood‑stained earth from the cots of both the deceased, who had succumbed to the injuries on the spot. The appellant was arrested on 23‑7‑1984 and the police got removed his blood‑stained Kurta P.5 and blood‑stained Shalwar P.6 which were made into a sealed parcel vide memo. Exh.P.H. On 25‑7‑1984, the appellant led to recovery of blood‑stained hatchet P.7 which was taken into possession vide memo. Exh.P.J. After the completion of the investigation, the challan of the appellant was submitted. As a sequel to the impugned trial, he was awarded the afore-mentionned punishment.
6. The autopsy on the dead bodies of both the deceased was conducted by Dr. Muhammad Siddiq P.W.1 who had observed the following injuries on the dead body of Muhammad Nawaz:
(1) There was an incised wound 15 x 2 to 4 c.m. The wound was variable in size at different sites. It started from the middle of the neck in front at cricoit cartrilage towards the left shoulder above the clavicle bone, cutting skin, trachea oesophaguous and all major blood vessles coming in the way.
(2) There was 3 x 5 c.m. incised wound on the chin below the lower lip.
(3) There was incised wound 3 x 1 c.m. on the neck below the tight mandible.
7. The doctor has opined that the death of Muhammad Nawaz occurred due to injury No.1 which was sufficient to cause death in the ordinary course of nature. He also observed semen being emitted out of the male organ at the time of the autopsy and has opined that the death of Muhammad Nawaz was caused at the time of cohabitation.
8. The same doctor had listed the following injuries on the dead body of Mst. Hayat Bibi, who was only wearing a blood‑stained Chaddar at the time of the incident:‑
(1) There was an incised wound 11 x 3 c.m. with sharp‑edged weapon and gaping below the right scapula on the back. The wound was oblique fashion cutting the muscles on the back and vertebrae and lower edge of the scapula.
(2) There was a sharp wound on the middle of the neck at the back starting from the cervicle vertebrae towards left lower jaw. It was measuring 7 x 3 c.m. and cutting all the major blood vessles on the back and on the right of the neck.
(3) There was an incised wound 4 x c.m. on the back of the neck starting from the injury No.2 as mentioned above towards the dorsal vertebrae.
(4) There was 8 x 1 c.m. wound on the back side of the head cutting skin, scalp and skull also.
(5) Left ear was fully cut except the lower lobe.
(6) There was an incised wound 13 x 5 c.m. on the right shoulder fracturing the shoulder bones.
(7) Thumb of right hand was imputated and there was a cut on the index and middle fingers also.
(8) There was a sharp wound on ring and middle fingers of left hand.
(9) There was a sharp wound 3 x 1 c.m. on the right thigh.
(10) There was an abrasion on the right knee joint.
She was found pregnant of about 38 to 40 weeks.
9. The learned Sessions Judge, Bahawalpur, has disbelieved the recoveries of blood‑stained clothes of the appellant and the blood stained hatchet which was recovered at his instance. He has given cogent reasons for the same in para. No.16 of the impugned judgment. He has, however, relied on the ocular and the medical evidence.
10. Rashid Ahmad P.W.10, who is the complainant and real brother of Muhammad Nawaz, has stated that he heard the noise of Mst. Mehmood8 Begum and scaled over the wall and saw his brother Muhammad Nawaz having been killed by the appellant and the appellant was killing his mother Mst. Hayat Bibi. He has stated that Muhammad Khan and Shabbir Ahmad also reached there and witnessed this occurrence. Rashid Ahmad has conceded that Khuda Bakhsh was the tenant of Muhammad Nawaz, who developed guilty associations with Mst. Hayat Bibi and Khuda Bakhsh left the village but after some time Mst. Hayat Bibi came to the house of ' Muhammad Nawaz, who arranged to get an ex parte decree for the dissolution of marriage from the Civil Court Pasroor and Muhammad Nawaz married Mst. Hayat Bibi. He has added that Khuda Bakhsh got a case registered at Police Station Musafir Khana and they were released on bail and the case was sub judice at that time. When subjected to the cross- examination, he has stated that village Ghulamun Mohar is at a distance of 9 or 10 miles from their village if they go on foot and if they go to that village by bus then they had to travel to Khanqah Sharif and then to Musafir Khana and this distance comes to about 15 miles collectively.
11. Muhammad Khan P.W.9, who happens to be the first cousin of Muhammad Nawaz and the complainant, has corroborated that he was attracted to the spot after hearing an alarm of Mst. Mehmooda Begum and when. he reached the spot he saw Hameed accused having killed Muhammad Nawaz and was killing his mother Mst. Hayat Bibi, who was running for her life and the accused was giving tier blows with the hatchet. He has added that they tried to apprehend the accused but he threatened, them with dire consequences and they could not succeed in catching hold of the appellant as they were empty handed. In his cross‑examination, he has deposed that Muhammad Nawaz was his first cousin and the accused is aged 15 or 16 years and is having a weak physique.
12. Mst. Mehmooda Begum, the first wife of Muhammad Nawaz and now his widow, figured in the witness‑box as P.W.10 and has corroborated the prosecution story. She has stated that she was sleeping near the cot of Muhammad Nawaz at 3‑00 a.m. when she was awakened by the report of a stroke and saw her husband Muhammad Nawaz having been killed and the appellant was killing his mother Mst. Hayat Bibi who got up on hearing her alarm. She has added that Rashid, Muhammad Khan and Shabbir P.Ws. also reached there and the appellant after threatening the witnesses ran away. She has stated that she had seen the appellant seven years before this occurrence when the appellant used to memorise the Holy Qaur'an.
13. All the ocular witnesses are the close relatives of the deceased. Rashid Ahmad does not live in the house of Muhammad Nawaz and he came from the neighbouring house like Muhammad Khan, the first cousin of Muhammad Nawaz deceased. Mst. Mehmooda Begum has not been named in the F.I.R. nor she was expected to identify a lad of 15 or 16 years of age like the appellant whom she had seen seven years ago. Her statement is, therefore, of no avail.
14. In the site plan, the house of Muhammad Khan has not been shown. It appears that Shabbir Ahmad was the only independent witness, who had not been examined by the prosecution and he was given up as unnecessary on 28‑5‑1985. The statements of Rashid Ahmad and Muhammad Khan P.Ws. need to be scrutinized with utmost care and circumspection. The appellant had no motive to kill Muhammad Nawaz and his mother Mst. Hayat Bibi, who were married seven years ago. Khuda Bakhsh, the father of the appellant, had initiated criminal proceedings against Muhammad. Nawaz, Mst. Hayat Bibi and the complainant, as is evident from the copy of the judgment EXh.D.1 and he had the, motive to kill Mst. Hayat Bibi and Muhammad Nawaz. The appellant is stated to be a lad of weak physique and it does not stand to reason that he came all alone from a distance of fifteen miles to kill Muhammad Nawaz and Mst. Hayat Bibi. It has been stated by Mst. Mehmooda Begum P.W. that Mst. Hayat Bibi was injured and killed by the appellant when all the witnesses had assembled' there. Mst. Hayat Bibi sustained not less than ten injuries and the appellant could not have done so in the presence of four persons as suggested by the prosecution. It appears that some assailant had chosen the odd time to kill both of them when there was a faint moon light. The identification of the appellant in that light is also doubtful. It may be noted that in the document EXh.P.J.l, the site plan of the recovery of hatchet, the assailant is named as Ghulam H.aider at the bottom which also casts doubt in favour of the appellant.
15. The medical evidence shows that both the deceased were axed to death but the opinion that Muhammad Nawaz was killed while cohabiting with Mst. Hayat Bibi does not corroborate the prosecution case. Semi‑digested food was found in the stomach of Mst. Hayat Bibi and the doctor has opined that she had taken her meals 4 or 5 hours before her death. The villagers usually take their food at sunset and it appears that the incident took place before mid‑night. All these facts put together cast a lurking doubt in my mind regarding the involvement of the appellant in this crime. I, therefore, extend benefit .of doubt to the appellant, accept this appeal and set aside the conviction and sentence ordered against him and acquit him of the charge framed against him. The appellant shall be set at liberty forthwith if not required to be detained in any other case.
M.Y.H./A‑371/L Appeal accepted.