NABI BAKHSH Versus THE STATE Muhammad Bashir Khan , Tasaddaq Hussain Jillani

QURBAN SADIQ IKRAM, J .‑‑ Nabi Bakhsh 45 has come up in appeal against his conviction under section 302, P.P.C. by learned Additional Sessions Judge, Multan, who vide judgment, dated 28‑4‑1982, sentenced him to death and fine of Rs.10,000 or in default three years' R.I. for the murders of Hakam Khan aged 45 years and Mst. Jannat Mai aged 35 years.

The proceedings are also before us for confirmation of the sentence of death. Both these matters will be disposed of by this judgment.

2. The occurrence in this case took place on 2‑7‑1980 (wrongly printed as 20‑7‑1980) before noon near Chah Jan Muhammadwala in village Seekran, about 8 miles from Police Station Kahror Pacca, District Multan. The F.I.R. Ex.P.F. was recorded on the same day at 2‑05 p.m. by A.S.I. Taj Muhammad P.W.8 at the instance of Muhammad Bakhsh P.W.6.

It was stated by Muhammad Bakhsh P.W. in his First Information Report that he resided at Chah Yousafwala in village Seekran. Hakam Khan deceased was son‑in‑law of his brother Nizam. About one year before this occurrence, Nabi Bakhsh accused took Hakam Khan deceased and his family members to his land as tenant. He developed illicit relations with Mst. Jannat Mai deceased wife of Hakam Khan deceased during this period. He and Hakam Khan deceased came to know of this relationship. He, therefore, asked Hakam Khan to leave the land of Nabi Bakhsh accused. However, Nabi Bakhsh accused assured them of his innocence and promised that there will be no complaint in future. In spite of this assurance, Nabi Bakhsh accused continued his illicit relations with Mst. Jannat Mai. As such, Hakam Khan deceased who had sown the land of Nabi Bakhsh accused, took his share of wheat and shifted his residence alongwith his family to Chah Yousafwala, about 15/16 days prior to the occurrence. Nabi Bakhsh accused continued asking Hakam Khan for his return. Muhammad Bakhsh complainant further stated that on 2‑7‑1980, before noon, he alongwith Hakam Khan deceased, Mst. Jannat Mai deceased and Mst. Kalsoom P.W., daughter of Hakam Khan, went to Chah Pir Bakhshwala to lift the Bhoosa of the share of Hakam Khan lying there. Nabi Bakhsh accused came there. He stopped them from lifting Bhoosa and asked Hakam Khan that it will be good for him if he comes back to that land otherwise he will have to suffer. This resulted in exchange of abuses between Hakam Khan deceased and Nabi Bakhsh accused. Thereafter, Nabi Bakhsh left saying that he would teach him a lesson for the abuses. Hakam Khan deceased, Mst. Jannat Mai deceased and Mst. Kalsoom P.W. lifted bundles of Bhoosa on their heads and started going back to their Chah. He was following them. When they all reached near Chah Jan Muhammadwala, Muhammad Nawaz and Ghulam Muhammad P.Ws. met them in the way. In the meanwhile, Nabi Bakhsh accused armed with .12 bore gun came there. He shouted a Lalkara saying that he would teach lesson for the abuses and for prohibiting him from meeting Mst. Jannat Mai. He fired which hit on the chest of Hakam Khan. At this Mst. Jannat Mai and Mst. Kalsoom threw their bundles and tried to run. Nabi Bakhsh accused fired second shot which hit the face and mouth of Mst. Jannat Mai who fell down. Both Hakam Khan and Mst. Jannat Mai died at the spot. They raised alarm, but the accused ran away with his weapon. They could not apprehend him. Leaving the two dead bodies and crime empties at the spot in the care of Muhammad Nawaz and Ghulam Muhammad P.Ws., Muhammad Bakhsh complainant went to Police Station and lodged the F.I.R. Ex.P.F.

3. The police, after registration of the case, undertook investigation. The dead bodies of Hakam Khan and Mst. Jannat Mai were sent for post‑mortem examination which was conducted by Dr. Abdul Karim P.W.4.

On 3‑7‑1980, at 7‑00 a.m., the Medical Officer conducted post‑mortem examination on the dead body of Hakam Khan. On external examination he found the following injuries:‑---

(1) A lacerated wound 1 c.m. x 1 c.m. with inverted edges on sternal angle. The skin around wound is black.

(2) A lacerated wound 1 c.m. x 1 c.m. with inverted edges on left side of sternum at the same level of wound No.1. The skin around wound was black and burnt.

(3) A circular lacerated wound 1 c.m. x 1 c.m. with inverted edges on left side of chest in 2nd intercostal space penetrating the 3rd rib bone also. This wound is in mid clavicular region.

(4) A circular wound 1 c.m. x 1 c.m. with inverted edges on left side of chest, 5 c.m. above the left nipple penetrating the rib also.

(5) A circular lacerated wound 1 c.m. x 1 c.m. with inverted edges with smoky area around the wound. This was 3 c.m. above the left nipple,.

(6) On left side of chest 3 c.m. below the left nipple there was a lacerated wound 1 c.m. x 1 c.m. with inverted edges penetrating the rib also.

(7) A circular lacerated wound 1 c.m. x 1 c.m. with inverted edges on the xiphi/sternum.

(8) A circular lacerated wound 1 c.m. x 1 c.m. with inverted edges on the xiphi/sternum close to wound No.7. Only tag of skin was present between wounds Nos. 7 and 8. (Correct spelling is xiphoid).

On dissection, he found that all the wounds were penetrating down into chest cavity. One pellet was found in the middle of back of soft tissue over the left scapula. Second pellet was found in the lower 1 / 3rd back of left chest close to mid‑line and the third pellet was found in the upper 1/3rd of left chest close to mid‑line. The pleural cavity contained clotted blood. There was a lacerated wound 2 c.m. x 2 c.m. on interior wall of heart and another wound 3 c.m. x 5 c. m. on the posterior 'wall of the heart which caused extra vasation of blood around the heart.

The death was due to severe bleeding from rupture of heart. All the injuries had been caused by fire‑arm. The time between injuries and death was immediate and the post‑mortem was conducted after about 18 to 24 hours of the death.

On the same day at 9‑00 a.m. the same Medical Officer conducted post‑mortem examination on the dead body of Mst. Jannat Mai. On external examination, he noted the following four injuries on her dead body:‑---

(1) A lacerated wound 2 c.m. x 2 c.m. with oval hollow on the frontal bone.

(2) A lacerated wound 2 c.m. x 1 c.m. on left side of face. The whole face arid forehead region of the dead body had been blackened.

(3) A circular lacerated wound with burnt edge 1 c.m. x 1 c.m. behind the left ear (approximately 1 c.m. behind the left ear).

(4) A circular wound 1 c.m. x 1 c.m. with burnt edge 3 c.m. behind the left ear.

All the wounds were penetrating the bones causing their fracture. The uterus was found bulky and contained foetus of about 3 months old. The scalp, frontal bone, parietal bone, temporal bone and sphenoid were fractured. These were depressed and elevated types of fractures. The brain was totally damaged and in liquid form. There was fracture and opening in maxilla bones and also fracture of mastoid bone. All these injuries had been caused by fire‑arm. They had totally damaged the brain and caused immediate death. The time between injuries and death was immediate and post‑mortem was conducted after about 18 to 24 hours of death.

4. The Investigating Officer during inspection of the spot collected blood‑stained earth from the place where Mst. Jannat Mai had fallen at the place of occurrence vide memo. EX.P‑M. He collected blood‑stained earth from the place where Hakam Khan had fallen vide memo. Ex.P.L. Two crime empties P.12/1‑2 were picked up from the place of occurrence vide memo. Ex.P.N. The bundle of Bhoosa P.13 belonging to Hakam Khan deceased was lying at the spot. It was taken in possession vide memo. Ex.P.O. The bundle of Bhoosa P.14 belonging to Mst. Jannat Mai was taken in possession from the place of occurrence vide memo. Ex. P.Q. The bundle of Bhoosa P.15 belonging to Mst. Kalsoom P.W. was taken in possession from the place of occurrence vide memo. Ex. P.R. All those recovery memos were prepared by A.S.I. Taj Muhammad P.W.8 and attested by Muhammad Nawaz and Ghulam Muhammad, both given up P.Ws.

The accused was arrested on 5‑7‑1980. On that day, he led to the recovery of his licensed gun P.11 alongwith two live cartridges P.16/1‑2 from his house which was taken in possession vide memo. Ex.P.S. by A.S.I. Taj Muhammad P.W. 8 in presence of Muhammad Nawaz and Ghulam Muhammad, both given up P.Ws.

The two crime empties P.12/1‑2 were found to have been fired from gun P.11 vide report Ex.P.U. from the Forensic Science Laboratory, Lahore.

The accused was challaned after completion of the investigation.

5. The prosecution during the trial examined 8 witnesses in all in support of its case. Muhammad Bakhsh P.W.6 and Mst. Kalsoom P.W.7 were examined as eye‑witnesses. Muhammad Nawaz and Ghulam Muhammad who both were named as eye‑witnesses in the F.I.R. and who also had witnessed the recoveries from the place of occurrence and at the instance of the accused, were given up as unnecessary. The medical evidence was furnished by Dr. Abdul Karim P.W.4 as given in detail above. He was also recalled as C.W. 1 for some clarification in his evidence. The case was investigated by A . S.I . T‑aj Muhammad P.W.8. The evidence of the rest of the witnesses was of formal nature.

The accused, when examined under section, 342, Cr.P.C. denied the charge pleaded innocence. He stated that his licensed gun was withheld by the prosecution and instead, another gun which did not belong to him was produced in evidence during the trial. He did not produce any evidence in defence.

The learned trial Judge considered the recovery of gun P.11 from the accused as cf no help to the prosecution. He relied on the evidence of motive and the statements of the eye‑witnesses and convicted the accused as stated above.

6. We have gone through the evidence on record with the assistance of learned counsel for the appellant and learned Assistant Advocate General.

It is contended on behalf of the appellant firstly, that Nabi Bakhsh appellant had no motive to launch an assault on the two deceased; secondly, the eye‑witnesses were interested and chance witnesses, their statements were discrepant and, therefore, not reliable and thirdly, that the medical evidence contradicted the ocular account of this case. In alternate, it was argued that even if the prosecution case is accepted, then also the sentence awarded to the appellant was uncalled for in the facts and circumstances of the case. The learned Assistant Advocate‑General controverted the contention on behalf of the appellant. It was argued by him that the accused not only had a motive but there was an immediate motive also for him to murder Hakam Khan and his wife; that it was a day light occurrence and a case of single accused and that though the medical evidence contradicted the ocular account furnished by the two eye‑witnesses, still the medical evidence is to be treated at par with other witnesses and the conflict, if any, would not demolish the prosecution case in view of the overwhelming ocular account furnished by the two independent eye‑witnesses.

7. A perusal of the record indicates that the prosecution sought to prove its case against Nabi Bakhsh appellant by producing evidence on recovery, motive, eye‑witnesses and the medical evidence.

The licensed gun P.11 was recovered at the instance of Nabi Bakhsh appellant by A.S.I. Taj Muhammad P.W.8 in the presence of Muhammad Nawaz and Ghulam Muhammad P.Ws. These two witnesses were not examined during the trial and were given up as urnecessary. The recovery is supported only by A.S.I. Taj Muhammad P.W.8 but no reliance can be placed on his evidence because the licence took of Nabi Bakhsh appellant, though taken in possession vide memo. Ex.P.S. was not produced in Court during the trial. It was stated by the accused that his licensed gun was taken in possession by the police. It was not produced in Court and instead, another gun which did not belong to him was produced in evidence during the trial. The omission to produce the licence book makes the recovery of gun P.11 doubtful. The crime empties P.16/1‑2 were taken in possession on 2‑7‑1980 from the place of occurrence. The gun was recovered on 5‑7‑1980 but in spite of that the two parcels containing crime empties and the gun were sent together through F.C. Muhammad Sharif to the Forensic Science Laboratory, Lahore. As such, we are not prepared to place any reliance firstly, on the recovery of gun P.11 from the accused and secondly, on the report of Fire‑arms Expert Ex.P.U. The learned Assistant Advocate‑General also did not support the recovery of gun P.11 from the accused.

The motive in this case was stated to be that about one year before the present occurrence, Nabi Bakhsh appellant had taken Hakam Khan deceased and his family members to his land where Hakam Khan worked as his tenant. Mst. Jannat Mai deceased wife of Hakam Khan deceased developed illicit relations with Nabi Bakhsh appellant as a result of which Hakam Khan deceased and his family members including Mst. Jannat Mai left the land of Nabi Bakhsh appellant on the asking of M uhammad Bakhsh complainant. It was contended on behalf of the appellant firstly, that there was no ill‑will between Mst. Jannat Mai and Nabi Bakhsh and as such, there was no occasion for the appellant to fire her; secondly, Muhammad Bakhsh P.W. was the real cause of trouble who had compelled both the deceased to leave Nabi Bakhsh appellant and come over to Chah Yousafwala. The precise argument was that the motive if any was against Muhammad Bakhsh and not the two deceased of this case; thirdly, that there was no evidence that Hakam Khan deceased even worked as a tenant of Nabi Bakhsh appellant; and fourthly, that according to Muhammad Bakhsh P.W.6, Hakam Khan deceased and his family members after leaving the lard of the accused took up residence at Chah Yousafwala but according to Mst. Kalsoom P.W. 7, they started residing at Holeywala. We have considered these contentions. Even if Nabi Bakhsh accused had some ill‑will against Hakam Khan deceased, there was no occasion for him to fire and kill Mst. Jannat deceased. There is nothing in evidence to show that Mst. Jannat Mai at any time or occasion annoyed Nabi Bakhsh accused on the day of occurrence or before the present occurrence. Muhammad Bakhsh P.W.6 Has an uncle of Mst. Jannat Mai deceased. He had pressed Hakam Khan deceased to leave the land of Nabi Bakhsh appellant. Hakam Khan accordingly obliged Muhammad Bakhsh. Thus, if at all there was any motive, it was against Muhammad Bakhsh P.W. and not the two deceased. It is in evidence that Hakam Khan was tenant under Nabi Bakhsh accused since about one year before this occurrence. No revenue record was produced to support this version of the prosecution. The discrepancy regarding the place where Hakam Khan deceased took up residence after allegedly leaving the land of the accused was also material. Mst. Kalsoom P.W.7 resided with her deceased parents and as such, she could not have stated mistakenly where her father started living thereafter. As such, this discrepancy materially affects the merits of this case. We are, therefore, of the view that the prosecution has failed to prove motive against the accused.

Chah Yousafwala was about one mile from Chah Jan Muhammadwala where the occurrence took place. Chah Pir Bakhshwala from where the Bhoosa was being brought in bundles by the two deceased was 11 miles from Chah Jan Muhammadwala. This means that Chah Yousafwala was about 21 miles from Chah Pir Bakhshwala. The accused lived at Chah Palluwala, about two acres away from Chah Yousafwala. There is nothing in evidence to show that the accused knew that the two deceased and the two eye‑witnesses had gone to Chah Pir Bakhshwala to get Bhoosa from the field. The accused Nabi Bakhsh was not armed with any weapon when he allegedly had exchanged the abuses in the field with Hakam Khan deceased. After exchange of abuses he left the spot and it is alleged that he was sitting in ambush when the two deceased alongwith the witnesses were returning home. This again is an improbable story. There was no need for the accused to sit in an ambush. He could have gone to his own field or he could have attacked Hakam Khan deceased near Chah Yousafwala. Secondly, the deceased must not have taken much time to place the small quantity of chaff (Bhoosa) in three bundles. They must have taken a very short time to complete the job. On the other hand, the accused went all the way back to his house, brought his gun and sat in an ambush about one mile from his house near Chah Jan Muhammadwala where Muhammad Bakhsh P.W., as admitted by him, jointly owned tube‑well with Haji Jan Muhammad owner of Chah Jan Muhammadwala. The place of occurrence was not the proper place for the accused to sit in ambush. We are, therefore, of the view that the prosecution story is improbable.

The two eye‑witnesses are related to the deceased. Mst. Kalsooml P.W. was daughter of Hakam Khan and Mst. Jannat Mai deceased. Muhammad Bakhsh P.W. was an uncle of Mst. Jannat Mai deceased. Muhammad Nawaz given up P.W. was also related to the deceased but Ghulam Muhammad given up P.W. was an independent witness. These two witnesses were given up by the prosecution as unnecessary for unknown reasons. Muhammad Bakhsh P.W. was inimical with Nabi Bakhsh appellant firstly, because of the suspicion of his illicit relations with Mst. Jannat Mai; and secondly, because, as admitted by him. Allah Diwaya, a Mangetar of his daughter Mst. Nazir, had occupied the land belonging to Muhammad Bakhsh father‑in‑law of Nabi Bakhsh accused. He was, therefore, an interested witness being inimical to the accused. Mst. Kalsoom P.W.7 was a child witness under the control of Muhammad Bakhsh P.W. the statements of the prosecution witnesses were discrepant. According to Muhammad Bakhsh P.W.6, the accused got out of ambush from a pit while according to A.S.I. Taj Muhammad P.W. 8, there was no such pit at the spot; secondly, according to Muhammad Bakhsh P.W.6, no other person had arrived at the place of occurrence before he left for the police station. This witness again stated that one Soofi and his son had arrived there while according to Mst. Kalsoom P.W.7, many people had assembled at the spot before Muhammad Bakhsh left the place of occurrence; and thirdly according to Muhammad Bakhsh P.W.6, he went to his house and informed the family members and then went to the police station and that Mst. Kalsoom remained at the place of occurrence. On the other hand, Mst. Kalsoom P.W.7 stated that Muhammad Bakhsh P.W. came to her house with her from the spot and then he proceeded' to the police station. She further stated that she went to her house for a short time and thereafter, came back near the dead bodies. It will be observed that Muhammad Bakhsh P.W. claimed that he went alongwith the two deceased to Chah Pir Bakhshwala to bring chaff from the said land. It is stated by him that three bundles of chaff had been brought on that day and that Bhoosa of about 10/12 bundles still remained to be lifted. In spite of this although Muhammad Bakhsh) P.W. travelled about 2‑ miles from his house to that land but did note himself lift any bundle of Bhoosa alongwith the two deceased and Mst. Kalsoom P.W. There was no apparent reason for Muhammad Bakhsh P.W. to accompany the two deceased to that land. We are, therefore, of the view that Muhammad Bakhsh P.W. did not accompany the two deceased at the time of occurrence. Mere presence of three bundles of Bhoosa would not mean that Muhammad Bakhsh P.W. was present at the time of occurrence.

We have carefully gone through the medical evidence in this case and find that it not only does not support the ocular account but materially contradicts the statements of the two eye‑witnesses. According to Muhammad Bakhsh P.W.6 the accused had fired at 'the deceased at a distance of two karams from the Pagdandi. It was stated by him that when Muhammad Nawaz and Ghulam Muhammad P.Ws. met and started walking alongwith him, they were following Mst. Jannat Mai at a distance of two acres (about 80 Karams). Mst. Kalsoom P.W. was about three Karams ahead of Mst. Jannat Mai and Hakam Khan deceased was further 3/4 Karams ahead of Mst. Kalsoom. According to Mst. Kalsoom P.W. her father Hakam Khan was ahead of her at a distance of 2/3 Karams. Her mother Mst. Jannat Mai was following her at a distance of about 2 or 3 Karams while Muhammad Bakhsh P.W. was following her mother at a distance of 2 or 3 Karams. She saw Nabi Bakhsh accused, for the first time, from the distance of 2/3 Karams. These two witnesses did not state the exact distance from which the accused fired at both the deceased. However, in the site plan which was prepared at the pointing of Muhammad Bakhsh complainant and the two given up P.Ws. Nabi Bakhsh accused fired at Hakam Khan deceased from a distance of 49 feet and at Mst. Jannat Mai deceased from a distance of 102 feet. It is stated by both the eye‑witnesses that Nabi Bakhsh accused fired only two shots during the occurrence, on each at the two deceased. This evidence is contradicted by the medical evidence. A perusal of the statement of Dr Abdul Karim P.W.4 would show that the skin around injury No. 1 was black, the skin around injury No. 2 was black and burnt while the area around injury No. 5 was smoky. There was no blackening, burning or smoke around any other injury of Hakam Khan deceased Injuries 1 and 2 were on the edge on sternal angle. Injury No. 3 was on left side of chest penetrating in the 3rd rib bone. Injuries 4, 5 and 6 were around left nipple while injuries 7 and 8 were on the exiphoid‑‑sternum (lower end of sternum). It is therefore, clear that these injuries were of two types; one which had blackening/smoke/burn and others which did not have any blackening or burning. In our view, all these injuries had not been caused firstly by one fire and secondly, from same distance. In any case, it contradicts the prosecution case that Hakam Khan deceased received one fire‑arm injury from a distance of 49 feet. Even if these injuries were the result of one fire, then also these had been caused from a distance of less than 10 feet and could not be caused from a distance of 49 feet.

Mst. Jannat Mai deceased received four injuries on her person. Injury No. 1 on her person was a lacerated wound with oval hollow on the frontal bone. There was no blackening or charring on this wound. Injury No. 2 was a lacerated wound on left side of face. The whole face and fore‑head region of the body had been blackened. It is clear that these two injuries were on front side of the body. Injuries 3 and 4 were behind the left ear with burnt edges. In last lines of his cross‑examination, the Medical Officer stated that as there was no burning on wound No. 1 of Mst. Ghulam Mai, it may, be the exit wound'. Even bare reading of injury No. 1 would show that it was not an entry wound. It was a wound of big size with oval hollow. It was, therefore, rightly stated by the Medical Officer to be a wound of exit on the frontal bone of Mst. Jannat Mai deceased. Injuries 3 and 4 were behind the ear and as such, could not have been caused by one fire which caused injury No. 2 on her face. Secondly, it appears that these two injuries were the entry wounds of the exit wound described as injury No.1. These two injuries being behind the left ear could not have been caused from front. These appear to have been caused from back which caused an exit wound in the frontal bone. The three entry wounds on the person of Mst. Jannat deceased were blackened and burnt. These were, therefore, caused by fires from a close range of less than 10 feet. However, according to the prosecution evidence, Mst. Jannat Mai was fired at by Nabi Bakhsh appellant from a distance of 102 feet. Thus, they medical evidence contradicts ocular account furnished by the two eye‑witnesses.

It was contended by the learned Assistant Advocate‑General that the accused had two‑fold motive because firstly, Hakam Khan had left him against his wishes and secondly, because there was exchange of abuses between the two a shortwhile before the occurrence. We are or the opinion that Hakam Khan was never employed by Nabi Bakhsh as his tenant nor was there any exchange of abuses on the date of occurrence between the two. On the other hand, Muhammad Bakhsh had a motive to bring this case against the appellant regarding an unwitnessed occurrence. The accused was, no doubt, named in the F.I.R. but it appears that the two eye‑witnesses got information of the occurrence in their village. They came to the spot alongwith others and then lodged the report after mutual consultation because of the suspicion of illicit relations of the appellant with Mst. Jannat Mai. The learned Assistant Advocate‑General admitted the disparity between the medical evidence and the eye‑witness account but contended that the prosecution case is supported by the overwhelming ocular account furnished by two independent witnesses and as such, the' medical evidence should be ignored. We are not prepared to accept this argument because the contradiction is material and goes the root of the case. It belies the eye‑witnesses

To sum up we hold that Muhammad Bakhsh and Mst. Kalsoom P.Ws. were not present at the spot at the time of occurrence. Mst. Kalsoom has made false statement under influence of Muhammad Bakhsh P.W. These two witnesses have not been supported by any other independent corroborating evidence. The medical evidence contradicts the ocular account in this case. Even if Hakam Khan deceased got injuries as a result of one fire, then also the fire must have been shot from a close distance and not from 49 feet. Mst. Jannat Ma' received injuries as a result of two independent shots, one of which drained out her brain through injury No. 1 leaving only some liquid in head.

8. In view of the above discussion, we are of the view that the prosecution has failed to prove its case against Nabi Bakhsh appellant. This appeal is accepted. The conviction and sentence of the appellant is set aside. He is acquitted. The sentence of death is NOT confirmed. The appellant shall be released from prison forthwith, if not required in any other case.

M.Y.H./N‑89/L Appeal allowed.