ABDUL GHAFFAR Versus THE STATE
LEHRASAP KHAN, J .‑‑Abdul Ghaffar (18), Muhammad Boota (24) and Akbar Ali (24) have been convicted by a learned Additional Sessions Judge, Sheikhupura vide his judgment dated 9‑12‑1985, under Sections 302/34 P.P.C. on two counts for causing the murders of Muhammad IIyas alias Ilyas (34) and his mother Maraj Bibi alias Majan (60). All the three convicts have been sentenced to death and a fine of Rs.10,000 each or in default to suffer four years' R.I. No direction has been made regarding payment of compensation to the legal heirs of the deceased.
2. Vide the same judgment the three co‑accused, namely, Murad Ali, Abdul and Jalal Din were acquitted.
3. The aforemetioned convicts have challenged their conviction and sentences through two separate appeals, viz, Criminal Appeal No.734 of 1985 which has been filed by Abdul Ghaffar anal Criminal Appeal No. 769 of 1985 which has been preferred by Muhammad Boota and Akbar Ali. The matter also stand referred to us under Section 374 Cr. P.C. seeking confirmation of the death sentences awarded to these convicts. The appeals as also the murder reference shall be disposed of by this judgment.
The occurrence in this case took place on, 10‑5‑1984 at 5‑00 PM in the 'Bethak' of Murad Ali (acquitted accused) in village Choorkot at a distance of 10/11 miles from Police Station Sangla Hill, District Sheikhupura. The occurrence was reported to the police through F.I.R, exhibit PK which was lodged by Mst. Safia P.W. 4, sister of Ilyas deceased, on the same day at 8‑05 P.M. The FIR was recorded by Muhammad Hanif Inspector S.H.O. Police Station Sangla Hill P.W.9.
5. About the motive, it has been alleged that the grandfather of Ilyas deceased, namely, Feroze Din, who was also father of Murad Ali acquitted accused had muted his entire land in favour of Murad Ali, Ilyas deceased demanded his share from his uncle, Murad Ali, after the death of Feroze' Din, Murad Ali had, in fact, sold away the entire land mutated in his favour by Feroze Din eight years prior to the present occurrence. Murad Ali paid Rs.30,000 to each one of his four sisters out of the sale price but did not pay any share to. Ilyas deceased for the reason that father of Ilyas had died during the life‑time of Feroze Din. Ultimately, Murad Ali agreed to pay Rs.25,000 to Ilyas and the payment was promised to be made on the day of occurrence. It may be pointed out here that Abdul Ghaffar appellant and Abdul Jabbar acquitted accused are son of Murad Ali acquitted accused who happened to be the paternal uncle of Ilyas deceased while Muhammad Boota and Akbar Ali appellants are the sons of sister of Murad Ali. Jalal Din acquitted accused is husband of the sister of Murad Ali and father of Muhammad Boota appellant.
6. Regarding the main occurrence, it has been alleged that on the eventful day, IIyas deceased went to the Bathak of Murad Ali acquitted accused at 3‑30 P.M. for having a nap over there. Shortly thereafter, his mother Meraj Bibi deceased and sister Mst. Safia P.W. 4 also left for the house of Murad Ali. When the two ladies reached near the Bethak' of Murad Ali, they found Murad Ali armed with 7 M.M. rifle, Abdul Ghaffar armed with iron Lathi, Abdul Jabbar armed with gun, Akbar Ali and Muhammad Boota armed with 'Sotas'. They had surrounded Muhammad Ilyas inside the Bethak within the view of these two ladies. Murad, Ali and Abdul Jabbar exhorted the co‑accused that Muhammad Ilyas should not go alive that day. Thereupon, Abdul Ghaffar opened the attack and gave iron 'Lathi' blow on the head of Muhammad IIyas deceased who fell down. Akbar Ali and Muhammad Boota then inflicted one blow each to Muhammad Ilyas with 'Sota'. Meraj Bibi deceased, the mother of Ilays, ran inside the house through the inner door of the house as the outer door of the "Bethak' was bolted from inside. The moment she entered the "Bathak' from the inner door of the house, Murad Ali and Abdul Jabbar raised "Lalkara' whereupon Abdul Ghaffar caused injury with iron 'Lathi' blow on the head of Meraj Bibi who staggered and fell down. Thereafter, Akbar Ali and Muhammad Boota caused injuries with Sotas' to her. Both Muhammad Ilyas and Meraj Bibi died on the spot. The occurrence was witnessed by Muhammad Rafiq P.W.5, Mst. Najma daughter of Ilyas not produced and Mst. Hussain Bibi not produced, besides Mst Safia PW 4. Jalal Din acquitted accused was alleged to have instigated these murders.
7. Muhammad Hanif Inspector SHO PW. 9 after recording the FIR exhibit PK visited the spot. He found the dead bodies of Ilyas and Meraj Bibi lying in the house of Murad Ali, He prepared the injury statement (exhibit PB) and inquest report (exhibit PC) in respect of dead body of Meraj Bibi. Similarly, he prepared the injury statement (exhibit PE) and inquest report (Ex.PF) of the dead body of Muhammad Ilyas deceased. Both the dead bodies were then handed over to Nazeer Hussain Foot Constable (P.W. 8) for being escorted the mortuary for post‑mortem examination.
8. P.W.1 Dr. Muhammad Rafiq, the then Senior Medical Officer, Civil. Hospital, Sangla Hill, District Sheikhupura, held the autopsy on the dead body of Meraj Bibi at 10‑00 a.m. on 11‑5‑1984 and found the following injuries on her person:‑--
(1) A lacerated wound 4 cm x 1/2 cm x bone deep on the left side of the fore‑head.
(2) A lacerated wound 4‑3/4 cm x 1 cm x 1 cm x bone deep on the right side of the head, extending to the upper part of the right Pinna.
(3) A lacerated wound 4 cm x 1 cm x bone deep on the top of the head.
(4) A lacerated wound 4‑1/2 cm x 11/2 cm x bone deep on the back of the head.
(5) A lacerated wound 3‑12 cm x 1 cm x bone deep on the left side of the head, 5 cm from the left ear.
(6) A contusion 11 cm x 2‑1/2 cm with a contused wound 1‑3/4 cm x 1 cm x bone deep on the upper and outer side of the right arm. Right humerous bone fractured completely and its lower edge was protruding out.
(7) A bruise 5 cm x 3 cm on the anterior and upper part of the neck.
The, doctor opined that the death of Meraj Bibi occurred due to severe shock, haemorrhage and asphyxia due to injuries detailed above which were collectively sufficient to cause death in the ordinary course of nature. He further opined that all the injuries were ante‑mortem caused by blunt weapon injuries Nos.6 & 7 were grievous while the rest were simple.
9. On the same day at 11‑00 a.m. the same doctor conducted the post‑mortem examination on the dead body of Muhammad Ilyas alias Ilyas deceased and found the following injuries on the dead body:‑---
(1) A lacerated wound 5 cm 1‑3/4 cm x bone deep on the left side of the head 1‑3/4 cm behind the left ear.
(2) A lacerated wound 4 cm x 1 cm x bone deep on the left‑ side of the head 6 cm above the left ear.
(3) A lacerated wound 2‑1/2 cm x 1 cm x 2 cm on the lower part of the left jaw.
(4) A bruise 6 cm x 4 cm on the anterior and upper part of the neck. Marked swelling was present below it.
The doctor opined that the death in case of Ilyas occurred due to severe shock and, haemorrhage and asphyxia. He further opined that the injuries were sufficient to cause death in the ordinary course of nature. According to him, all the injuries were ante‑mortem having been caused with blunt weapon; injury No.4 was grievous and dangerous to life while to remaining injuries were simple.
The doctor could not give his positive opinion as to which of the two deceased died first.
10. Abdul Ghaffar appellant was arrested on 12‑5‑1984 by Muhammad Hanif Inspector P.W.9. On the same day, he led to the recovery of blood‑stained 'Shalwar' P.6, shirt P.7, which was not blood‑stained, and blood‑stained Parna P.8 from his house which were taken into possession vide recovery memo. exhibit P0, attested by PW. 5 Muhammad Rafiq, PW.6 Muhammad Siddiq and P.W9 Muhammad Hanif Inspector. On 16‑5‑1984, Abdul Ghaffar led to the recovery of blood‑stained iron 'Lathi' P.4 from his cattle shed which was taken into possession vide memo. exhibit PJ, attested by Muhammad Latif PW 3, Muhammad Iqbal not produced and Muhammad Hanif PW.9.
11. All the other accused were arrested on 16‑5‑1984 by the same police officer i.e. Muhammad Hanif Inspector SHO. P.W.
9. On 23‑5‑1984. Murad Ali led to the recovery of licensed 7 MM rifle P.1 alongwith the licence P.2 which taken into possession vide memo. exhibit PG, attested by Muhammad Latif (P.W. 3) Muhammad Hanif P.W.9 and Muhammad Iqbal not produced. On the same day. Abdul Jabbar got recovered licenced gun P.3 of .his brother Abdul Ghaffar from their house which was taken into possession vide memo exhibit PH in the presence of the afore‑mentioned witnesses. Muhammad Boota appellant also .led to the recovery of 'Sota' P.18 on the same day which was seized vide memo exhibit PS in the presence of the same witnesses. No recovery was effected from Akbar Ali and appellant. In fact, as a result of investigation conducted by the police. Akbar Ali Jalal Din were found innocent and their names were placed in column No.2 of the report under section 173 Cr.P.C.
12. At the trial, Mst. Safia P.W. 4, sister of Ilyas deceased and daughter of Meraj Bibi deceased and P.W. 5 Muhammad Rafiq, cousin Mamoozad of Illyas deceased and nephew of Meraj Bibi deceased, testified as eye‑witnesses to furnish the ocular account of the prosecution version. Mst. Safia also deposed about the motive. The learned trial Court has disbelieved the recovery of weapon of offence for the reasons detailed in paragraph No.23 of his judgment. He, however, believed the recovery of blood‑stained clothes of Abdul Ghaffar at his instance.
13. All the appellants and the acquitted accused pleaded total denial and claimed to be innocent. Murad Ali acquitted accused in reply to question No.7, in his statement recorded under Section 342 Cr.P.C. stated: ‑---
Muhammad Ilyas deceased had enmity with Hassan Din and others who lived in front of my house in Mauza Choor Kot. He was in jail for four years for murdering two partymen of Hassan D.n and was released on bail about twenty days prior to the occurrence. Because of his bitter enmity with Hassan Din and others. I had stopped Muhammad Ilyas deceased visiting or coming towards my house. On the day of occurrence when, and my son were working at our land w.) learnt that the dead bodies of Muhammad Ilyas and his mother Meraj Bibi were lying in the Bathak of my house. The door of that Bethak is in the street and opposite to the house of Hassan Din aforesaid. I and my sons rushed to our house and found the entire village collected there. Village Councillor, Lambardars and Chowkidars were also there. Police was accordingly informed who reached the spot in about an hour and asked me to make a report but I refused to do so as the incident did not take place within my sight. Saba and Rafiq P.W. were then called from Faisalabad and Mananwala respectively who also persuaded me to become complainant against the enemies .of Muhammad Ilyas deceased but I refused as I had not seen the occurrence and did not want to take on me the enmity of the deceased's enemies. After deliberations and consultations and in connivance with the police the relatives of the deceased who were not even the residents of mauza Choor Kot got us involved falsely in the case.
The statement of Murad Ali was adopted by other accused while claiming their false involvement. No evidence has, however, been led by the appellants in their defence.
14. While supporting the judgment under appeal, it has been urged by the learned counsel representing the State that Mst. Safia, being the natural witness of the occurrence, deserves to be given full credence. She had come to the place of occurrence accompanied by her deceased mother immediately after her brother had left for the house of Murad Ali. It has been maintained that although she belongs to some different village but she has explained that she had come to the house of her brother as he was bailed out in a criminal case only a few days earlier. It has also been argued that recovery of blood‑stained clothes of Abdul Ghaffar furnishes corroboration to the testimonies of eye‑.witnesses and that the occurrence on this case took place at 5.00 p.m. while the FIR was lodged at 8‑5 p.m. at a distance of 11 miles in which all the appellants and the co‑accused have been ascribed their respective roles.
15. The learned counsel for the appellants on the other hand contended that Muhammad Ilyas deceased had many enemies. He was done to death by such enemies. The appellants and their acquitted had no motive or animosity against the deceased. Both the eye‑witnesses are chance witness. They do not belong to villager Choor Kot, Mst. Safia is resident of Faisalabad while Muhammad Rafia PW.5 is resident of village Katianwala of Police Station Mananwala. Both these eye‑witnesses are close relations of the deceased. In case of relatives and chance witnesses, independent corroboration is necessary which is not forthcoming in this case.
16. We have considered the arguments advanced on behalf of the appellants and we are of the view that they are not without substance. Both the eye‑witnesses have contradicted each other in respect of material details of the occurrence. Muhammad Rafiq PW.5 deposed that Jalal Din acquitted accused was also present at the time of occurrence although he was empty‑handed. His presence at the spot has not been alleged by Mst. Safia in her statement at the trial or in the FIR. According to Muhammad Rafiq PW. 5, the assailants had left their weapons of offence on the spot while decamping from over there. This witness claimed that he was already present at the spot at 5‑00 p.m. when he heard the noise from the 'Bethak' of Murad Ali and through its window he witnessed the occurrence. Mst. Safia on the other hand stated that she and her mother Meraj Bibi deceased left for the house of Murad Ali immediately after Ilyas deceased had left for the 'Bethak' of Murad Ali. According to her, Muhammad Rafiq PW. 5 and witnesses, who have not been produced, came subsequently. She has also deposed that the accused left the place of occurrence leaving behind their respective weapons. According to her statement at the trial, the deceased was lying on a cot at the time of occurrence although it was not stated so by her in the F.I.R. The Inspector SHO has stated that the dead bodies of both the deceased were lying on the ground inside the 'Bethak' of Murad Ali. He also collected blood‑stained earth from underneath these dead bodies from inside the 'Bethak'. He has deposed that a cot was, of course, lying outside in the street in front of door of the Bethak of Murad Ali. It was a washed one. The Inspector has not been able to explain as to whose cot was and who washed it. The doctor has opined that beside shock and heamorrhage, both the deceased died of asphyxia as well. None out of the two eye‑witnesses, namely, Mst. Safia and Muhammad Rafiq has disclosed that anyone of the assailants throttled the deceased in any manner, resulting into asphyxia. Mst. Safia admitted that her sister named Parveen was abducted by Ashraf son of Sadar Din about eight years earlier from Faisalabad. Sadar Din aforesaid, Hassan Din and Lal Din are the resident of Choor Kot and lived opposite to the house of Murad Ali in the same lane. She disclosed that the case of abduction was cancelled on the statement of Mst: Parveen. She further admitted that as a retaliatory measure, Muhammad Ilyas deceased and others abducted Shahnaz, sister of Ashraf aforesaid. Muhammad Ilyas is admitted to have got registered a case against Ashraf. Sadar Din Badar Din, La Din and others for giving the eyes of Jugdey and Suba. A cross case was also registered against Muhammad Ilyas. Subsequently, according to Mst. Safia, a case for the murders of Mukhtar and Ashraf and for causing injuries to Sadar Din, Hassan Din and Muhammad Din was registered against Muhammad Ilyas and nine others. In that case. Muhammad Ilyas was released on bail only 22 days prior to these murders.
17. It has been explained by the prosecution that according to FIR version, Muhammad Ilyas left his house for the 'Bethak' of Murad Ali at 3‑30 p. m. for having a nap. Immediately thereafter, he was followed by his sister and the deceased mother. No sooner the ladies reached near the 'Bethak' of Murad Ali, they heard the noise anti saw that Muhammad Ilyas was being done to death by the accused. The time of occurrence in the FIR was stated as 5‑00 p. m. The difference of 1‑1/2 hours has not been explained. Muhammad Rafiq, the other eye‑witness has also deposed that the occurrence took place at 5‑00 PM.
18. As a result of considered and careful analysis of the prosecution evidence and other circumstances appearing from the record, we have come to a positive conclusion that the prosecution has failed to bring home the guilt to the appellants beyond reasonable doubt. We, therefore, allow these appeals, set aside the convictions and sentences of the appellants and acquit them. They shall be released forthwith, if not required to be detained in any other case.
The death sentences awarded to the appellants are thus not confirmed.
S.A./A‑241/L Appeal accepted.