NAZIR AHMAD and another vs THE STATE

' RUSTAM S. SIDHWA, J, ---This is an appeal by Nazir Ahmad and Talib Hussain, appellants, against the judgment of a learned Single Judge of the Lahore High Court dated 10-10-1989 partly accepting their appeal in respect of their conviction and sentence under section 201/34, P.P.C., but rejecting that in respect of their conviction and sentence under section 302/34, P.P.C.

2. The appellants alongwith one Muhammad Aslam, who was acquitted by the Sessions Judge, were charged with causing the death of a young boy namely Rasool Bakhsh on the night between 17/18-6-1984. It was the case of the prosecution that the appellants alongwith the acquitted accused took the deceased from the Chakki of Haji Ghulam Hussain P.W.2 on 17-6-1984 at 9-00 p.m. In order to see a picture in the presence of Noor Muhammad P.W.6 and Khadim Hussain (won over P.W.). Later, after the cinema show when the appellants, the acquitted accused and the deceased were returning from Alipur City towards Tibbi Arain, they were seen by Muhammad Sadiq P.W.5 and Fazal (given up P.W.) at about 1-00 a.m. On 18-6-1984.

3. Early in the morning on 18-6-1984 when Haji Ghulam Hussain P.W.2 went to his Chakki, he did not find Rasool Bakhsh deceased, his employee there. His cycle was also not present. He then informed about the absence of the deceased to his parents. Since the deceased had not turned up at this house, his father Allah Wasaya P.W.3, Sher Muhammad P.W.4, Ghulam Hussain and others started search for him. During their search Noor Muhammad P.W.6 and Sadiq P.W.5 informed them of having seen the deceased with the appellants and the acquitted accused the day before. From there they went to the house of Khair Muhammad, father of Nazir appellant, and Ahmed Bakhsh, father of Talib Hussain appellant, and found that neither the appellants nor the acquitted accused nor the deceased were there.

4. In the meantime Sher Muhammad P.W.4 sent for Ahmad Bakhsh, father of Talib Hussain appellant, who produced before him his son Talib Hussain and Nazir Ahmad appellant. On inquiry from them as to where Rasool Bakhsh was, whom they had taken alongwith them, he was informed by the appellants that on their return from the cinema near Chah Boharwala they had tried to commit sodomy with Rasool Bakhsh deceased, but that when he had raised alarm and threatened that he would get a case registered against them, Nazir Ahmad appellant pressed his throat whilst Talib Hussain appellant held his legs and they suffocated him to death and threw his dead body in the well. Both stated their respective parts of the version regarding the occurrence. The appellants requested Sher Muhammad P.W. 4 to get them pardoned. Talib Hussain appellant had also told Sher Muhammad P.W.4 that Manzoor son of Allah Wasaya P.W.3 had divorced his aunt.

5. On receipt of information from Sher Muhammad P.W.4 Muhammad Hayat (given up P.W.) Allah Wasaya P.W.3 and this companions went to Chah Boharwala, where they found the dead body of Rasool Bakhsh in it, which they retrieved. The deceased who used to wear a watch and a chain around his neck, was found to be without the said watch and chain.

6. On 27-6-1984 Nazir Ahmad and Talib Hussain appellants and Muhammad Aslam acquitted accused led to the recovery of broken cycle belonging to Haji Ghulam Hussain P.W. 2, the deceased's watch P.1 and chain P.2 respectively, which recoveries were witnessed by Sher Muhammad P.W.4, Amir Abdullah SI, P.W.9 and Muhammad Afzal (given up P.W.).

7. At the trial the prosecution relied upon the motive, the last seen evidence, extra-judicial confession, the recovery of the dead body from the well on the information supplied by the appellants and the recovery of the cycle and wrist watch belonging to Haji Ghulam Hussain P.W.2 and the deceased at the pointing out of the appellants.

8. Both the appellants and the acquitted accused denied all the accusations that were levelled against them, including the recoveries alleged to have been effected at their instance. Nazir Ahmad appellant stated that his sister was married to Muhammad Aslam acquitted accused, who was not from their brotherhood, therefore, his uncle Sher Muhammad P.W.4 and the other witnesses, who were closely related inter se, did not like to give the girl to be so given away and therefore they had been falsely involved.

9. Both the learned trial Judge and the learned Judge of the High Court relying upon the above items of evidence, as stated in para 7 above convicted and sentenced both the appellants under section 302/34, P.P.C.

10. Leave was granted in this case to re-examine the evidence afresh.

11. On behalf of the appellants it is submitted that the motive as alleged by the prosecution, namely, that Manzoor Ahmad, a brother of the deceased had divorced Mst. Mana Mai, an aunt of Talib Hussain appellant, about 15/16 years back, as a result of which the said appellant had threatened that he would not spare the children of their family, cannot be accepted, as the occurrence was too old, that Rasool Bakhsh deceased was on speaking terms with the appellants and the acquitted accused over this long period and had Talib Husain appellant wanted to take any revenge, he would have killed Manzoor Ahmad instead of Rasool Bakhsh. As regards the recoveries, it is submitted that the testimony of Sher Muhammad P.W.4 and Amir Abdullah S.I. P.W. 9 is discrepant in material particulars. As regards the statement of Sher Muhammad P.W.4 regarding the extra-judicial confession made to him by the appellants, it is submitted that in view of his relationship with the deceased, he had gone all out to assist the complainant party and since his testimony as regards the recovery is discrepant and unnatural, he is a witness not worthy of credit and his testimony as regards the extra-judicial confession cannot be accepted with any degree of safety.

12. The evidence as regards the motive in this case may perhaps not inspire confidence as to support the case of the prosecution that any of the appellants would kill Rasool Bakhsh deceased, but the other two items of evidence in respect of which the learned counsel for the appellants has 'attempted to raise doubt, are not such as do not inspire confidence and can be brushed aside.

The recovery of the broken cycle of Haji Ghulam Hussain P.W.2 at the instance of Nazir Ahmad appellant is strong piece of incriminating criminating corroboration against the said appellant. Haji Ghulam Hussain P.W.2 was the employer of the deceased. They had left the said cycle at the Chakki on the night of 17-6-1986, only to find it missing the next day. It is the case of Noor Muhammad P.W.6 that when the deceased left with the two appellants and the acquitted accused on 17-6-1984 at 9-00 p.m. He had taken Haji Ghulam Hussain P.W's cycle with him. Haji Ghulam Hussain P.W.2 identified his cycle in Court. Likewise, Talib Hussain appellant led to the recovery of wrist watch P.1 belonging to the deceased. There is some discrepancy in the statements of Sher Muhammad P.W.4 and Amir Abdullah S.I. P.W.9 as regards whether they had all collected together at the police station and from there proceeded separately with each accused to effect the recovery or they had proceeded to an intermediary spot wherefrom they had proceeded separately with each accused to make the recovery, but this would not materially affect the recovery , for even assuming that they proceeded from the police station separately with each accused, which fact the Investigating Officer wanted to shield. Neither Sher Muhammad P.W.4 nor Muhammad Afzal (given up P.W.) had any motive to affirm false recoveries on the part of the accused. It cannot be forgotten that Sher Muhammad P.W.4 is more closely related to the three accused than the deceased.

13. The testimony of Sher Muhammad P.W.4 regarding the extra-judicial confession made by the appellants to him cannot under any circumstances be brushed aside as not inspiring confidence.

Sher Muhammad P.W.4 was not only the paternal-uncle of Nazir Ahmad appellant, but the grand- paternaluncle of Muhammad Aslam acquitted accused. In addition, Talib Hussain appellant was the son of his cousin. The evidence of Sher Muhammad P.W.4 fmds corroboration from the strangulation marks found on the body of the deceased, as also from the discovery of the dead body from that very place where the appellants had stated that they had thrown it.

14. Apart from the above, the learned counsel for the appellants did not seriously assail the last seen evidence furnished by Muhammad Sadiq P.W.5 and Noor Muhammad P.W.6 According to the testimony of the former, the deceased was last seen in company with the two appellants and the acquitted accused at 1.00 a.m. On 18-6-1984 as they were proceeding towards the village from Alipur City, whereas according to the latter they had seen the deceased moving out from the Chakki at 9-00 p.m. On 17-6-1984 at the invitation of the said persons, taking the cycle of Haji Ghulam Hussain P.W.2 with him.

15. Having read the evidence and having taken into consideration all the circumstances relevant in that respect, the conviction and sentence of the appellants appears to be well-founded.

16. There being no merit in this appeal, the same is dismissed.