KHADIM HUSSAIN Versus STATE
This appeal is directed against the judgment, dated 7‑1‑1996 passed by Mr. Abdul Waheed Khan, learned Additional Sessions Judge Rawalpindi whereby he convicted the appellants under section 302, P.P.C., and sentenced each of them to suffer imprisonment for life and to pay Rs.50,000 each as compensation to the legal heirs of the deceased or in default thereof to undergo R.I. for six months each. They were also extended benefit of section 382‑B, Cr.P.C.
2. Briefly stated the facts as unfolded in complaint Exh.P.G. lodged at the instance of Sain Multan (P.W.3), are, that he keeps buffaloes at his Dera situated in Dhok Safoo near Ali Market. On 12/13‑10‑1992 at about 8‑00 p.m. his grandson Muhammad Banarus aged 17/18 years left for Dhok Safoo after having his meals at about 8‑00 p.m. Ibadat Hussain uncle of Muhammad Banarus reached his Dera at 10‑00 p.m. and found that Muhammad Banarus was sleeping over there. Ibadat Hussain also went to sleep and when he got up at 5‑00 a. m. he found that Muhammad Banarus was not available at his cot. On receipt of said information complainant and others tried to search out Muhammad Banarus. However they failed to find any clue about him. He alleged that Khadim Hussain son of Maqsood, Maqsood son of Bagga, Muhammad Ali alias Manni son of Ghulam Rasool, Lal Hussain son of Bagga and Basharat son of Shamail have abducted him with the intention to commit his murder, as Khadim Hussain suspected Muhammad Banarus for having liaison with his sister Mst. Shama. Accordingly complaint was recorded by Buniad Ali Shah, A.S.I.
Hussain uncle of Muhammad Banarus reached his Dera at 10‑00 p.m. and found that Muhammad Banarus was sleeping over there. Ibadat Hussain also went to sleep and when he got up at 5‑00 a.m. he found that Muhammad Banarus was not available at his cot. On receipt of said information complainant and others tried to search out Muhammad Banarus. However they failed to find any clue about him. He alleged that Khadim Hussain son of Maqsood, Maqsood son of Bagga, Muhammad Ali alias Manni son of Ghulam Rasool, Lal Hussain son of Bagga and Basharat son of Shamail have abducted him with the intention to commit his murder, as Khadim Hussain suspected Muhammad Banarus for having liaison with his sister Mst. Shama. Accordingly complaint was recorded by Buniad Ali Shah, A.S.I.
3. Syed Buniad Ali Shah, A.S.I. (P.W.10)'after recording complaint Exh..P.G proceeded to the place of alleged abduction of Muhammad Banarus and prepared a rough sketch Exh.P.I. He recorded supplementary statement of complainant as well as statements of P.Ws. under section 161, Cr.P.C. The investigation kept on pending with him till 17‑10‑1992 when it was transferred to Mukhtar Hussain Shah, S.I. On 18‑10‑1992 Mukhtar Hussain Shah, S.I. entrusted dead body of Muhammad Banarqs alongwith necessary documents to him for taking the same to the mortuary for post -mortem examination. On the same day post- mortem examination was conducted and he produced last worn clothes of deceased before the Investigating Officer who secured the same vide memo. Exh.PJ. The case was partly investigated by Mukhtar Hussain, S.I. (P.W.12) who deposed that on 18‑10‑1992 he conducted Nakabandi at Peshawar Mor and apprehended Basharat and Khadim Hussain who made a disclosure about the dead body of Banarus lying in Sector‑I‑9 Islamabad. Accordingly he proceeded to the said place and after securing the dead body prepared its inquest report and also took into possession identity card of Basharat accused wrapped in an envelope and prepared memo. Exh.P.C. He deposed that last worn clothes 'of the deceased were produced before him by A.S.‑I. who secured the same vide memo. Exh.PJ. On 25‑10‑1992 both accused Basharat and Khadim Hussain led to the recovery of crime weapons from their house which he secured vide memos Exh.P.F. and Exh.P.D. respectively. On the same day he also recovered the clothes worn by Basharat accused which were bloodstained and prepared memo. Exh.P.E. He prepared site plan of the place of recovery of crime weapon pertaining to Basharat accused Exh.PK. He also got prepared the site plan of the place of recovery of dead body from draftsman which are Exh.PL and Exh.PL/l. He also got the dead body identified by Muhammad Younas and Muhammad Farid P.Ws. After completing investigation he got the accused challaned.
4. A charge under section 302/34, P.P.C. was framed against the accused to which they pleaded not guilty and claimed trial.
5. In order to bring home guilt to the accused prosecution examined P.W.1 Malik Fareed who is witness of recovery of dead body, securing bloodstained earth, securing of identity card and of Sota. P.W.2 Hafeez Ullah A.S.I. Moharrir Malkhana was handed over a sealed parcel containing bloodstained earth for keeping the same in Malkhana. On 20‑10‑1992 he entrusted the same to Ata Muhammad Constable for onward transmission to the office of Chemical Examiner, Lahore. On 18‑10‑1992 he was also handed over two sealed parcels and two sealed envelopes and he entrusted the same to Ahmad Yar Constable for onward transmission to the office of Chemical Examiner, Lahore. P.W.3 Sain Multan is the complainants and has corroborated his version appearing in complaint Exh.PG. Ibadat Hussain P.W.4 is uncle of the deceased and is also witness of recovery of dead body. He also corroborated the contention of the complainant appearing in complaint Exh.PG. He further deposed that Mehboob Elahi and Zaheer informed them that they had seen the deceased Muhammad Banarus in the company of Khadim Hussain, Basharat, Muhammad Ali alias Manni, Lal Hussain and Maqsood on the previous night proceeding towards an isolated place at some distance from the Dera situated at Dhok Safoo. He further deposed that on account of said facts they suspected the aforementioned accused for abducting and committing the murder of deceased Muhammad Banarus. He did not support the prosecution version and as such was declared hostile. Mehboob Elahi P.W.5 has deposed that he alongwith Muhammad Saeed had seen the deceased lastly in the company of accused named above. Fazal Ahmad, S.‑I. P.W.6 is a formal witness and has recorded formal F.I.R. Exh.PG/1 on the basis of complaint Exh.PG. Ata Muhammad, Constable P.W.7 was handed over a sealed parcel containing bloodstained earth for onward transmission to the office of Chemical Examiner, Lahore. Dr. Naseer‑ud‑Din M.O. (P.W.8) conducted post‑mortem examination of the dead body of Muhammad Banarus on 18‑10‑1992 and found the following injuries on his person:‑‑‑
(1) An incised wound 2 x 1 c.m. bone deep on outer end of left eye brow.
(2) Lacerated wound 5 x 1.5 c.m. bone deep on mid parietal region of head.
He deposed that no final opinion could be given regarding the cause of death without seeing the report of Chemical Examiner. After perusing the report of Chemical Examiner, he stated that deceased had died due to asphyxia caused by throttling after head injury which was sufficient to cause death in the ordinary course of nature. He further deposed that probable time between injury and death could not be estimated whereas between death and post‑mortem examination was within 7 days. He issued post‑mortem examination report Exh.PH which bears his signatures. Ahmad Yar Constable P.W.9 deposed about conveying parcels in the office of Chemical Examiner, Lahore. Syed Buniad Ali Shah, A.S.‑I. is P.W.10 is the Investigating Officer whose evidence has already been discussed above. Ishtiaq Hussain Shah Inspector P.W.11 deposed that during the investigation of this case he found Lal Hussain, Muhammad Ali, Maqsood as innocent and forwarded his said report. Mukhtar Hussain Shah S.I. P.W.12 partly investigated the case and his evidence has already been discussed above. Muhammad Akram Draftsman P.W.13 visited the place of occurrence and prepared the site plans Exh.PL and Exh.PL/1 and handed over the same to the Investigating Officer. The learned D.D.A. produced reports of Chemical Examiner Exh.PM and Exh.PN and that of Serologist Exh.PO and thereafter closed the prosecution evidence vide his statement, dated 24‑10‑1995.
6. When examined under section 342, Cr.P.C., accused Khadim Hussain, Lal Hussain, Muhammad Basharat, Muhammad Ali alias Manni and Maqsood Ali denied the prosecution version and stated that they have been implicated in this case falsely. They further stated that P.Ws. are related with the deceased and are also interested inter se and have deposed against the accused due to suspicion as it was a blind murder and as parties had strained relations, so they have been implicated in this case falsely. None of the accused chose to produce defence evidence and to examine himself under section 340(2), Cr.P.C.
7. After going through the evidence produced by the parties the Trial Court while acquitting Lal Hussain, Maqsood Ali and Muhammad Ali alias Manni convicted Khadim Hussain and Muhammad Basharat vide judgment under appeal.
8. Arguments have been heard and record perused.
9. It is submitted by the learned counsel for the appellants that prosecution evidence consists of:‑‑
(i) Last seen evidence;
(ii) Evidence of recovery of dead body, crime weapons and of identity card;
(iii) Motive, and
(iv) Medical evidence.
10. So far as the last seen evidence is concerned that consists of Mehboob Elahi only who is related to the complainant and is resident of village situated at a distance of 15 miles away from the place of occurrence, that there is no reason as to why the said P.W. was present at the Dera of the complainant when he was not residing in the said village. He further submitted that accused have been shown to have visited the Dera of complainant for acquiring the services of the deceased for taking him with themselves while on their way to Gujranwala for purchasing buffaloes. He submitted that as the accused suspected the deceased for carrying on with the sister of Khadim Hussain accused, so it does not appeal to reason that they would take him with themselves. He further contended that there is no corroboration of the evidence of Mehboob Elahi on record, as such no reliance can be placed upon such uncorroborated testimony of an interested witness. So far as the question of recovery of weapons of offence at the hands of accused is concerned, he submitted that the same has got no legal value as the said Dandas were not stained with blood. Regarding the recovery of dead body at the instance of accused, he submitted that place of recovery is situated at a distance of 4/5 paces from the main Pir Wadhai Road which is accessible to public in general so it cannot be held that dead body had been kept at that place by the accused. He further stated that even medical evidence does not corroborate the prosecution version as one of the injuries received by the deceased is of sharp edge weapon, whereas only blunt weapons have been recovered from them. He further stated that motive set up in the complaint has not been proved from the record. He next canvassed that oral evidence of the complainant does not find any support from either evidence of recovery or medical evidence. He, thus, submitted that Trial Court was not justified in passing the impugned judgment which is not sustainable in the eyes of law and by accepting this appeal the same be set aside and appellants be acquitted.
11. Conversely the impugned judgment has been supported by the learned counsel for the State.
12. A perusal of complaint Exh.PG shows that none had seen the deceased, committing his murder and as such it was a blind murder. During the investigation of this case the accused/appellants alongwith acquitted accused were apprehended and were interrogated. The accused/appellant Khadim Hussain and Muhammad Basharat have been assigned the role of making a disclosure regarding the presence of dead body and it is alleged that on their pointation the dead body was recovered. Admittedly dead body was recovered from the place situated at a distance of about 4/5 paces from the main Pir Wadhai Road, as such it could not be held with certainty that the dead body was kept there by the present accused. Again the presence of accused at the relevant time is not believable as the deceased must have not accompanied them as he was suspected for having illicit relations with the sister of Khadim Hussain appellant. The reason for the presence of deceased with the accused, given by P.W.5 is absolutely absurd. It is deposed by P.W.5 that on his enquiry he was informed by Banarus that he had been summoned by Khadim Hussain accused on the pretext that his buffalo was missing and he (Khadim Hussain) wanted him to accompany him Again it is deposed by P. W .5 that he had gone to the Dera of the complainant as paternal uncle of Banarus deceased had showed his inclination to purchase a buffalo and as he was going to Gujranwala cattle market, so he thought it fit to take him with himself. The reason advanced by P.W.5 does not appeal to reason and his presence on the spot becomes highly doubtful, as he is resident of Dhok Ranzani P.S. Tainol, a place situated at a distance of 15 miles away from the Dera of the complainant. The only other evidence implicating the accused is the statement of Ibadat Hussain (P.W.4) whose statement cannot be relied upon as he did not support the prosecution version and was consequently declared hostile. Thus, there is no corroboration of ocular account of P.W.4.
13. The up shot of above discussion is that prosecution has failed to bring home guilt to the accused beyond any reasonable doubt.
Accordingly appeal is accepted, judgment is set aside and accused/appellants are hereby acquitted. They are already on bail. Their bail bonds stand discharged.
Q.M.H./M.A.K./K‑98/L
Appeal allowed.