MUHAMMAD SIDDIQUE Versus THE STATE

Muhammad Siddiq son of Sardar Khan through instant appeal has called in question the judgment, dated 7‑8‑1996 passed by Sessions Judge, Khushab whereby he was convicted under section 302(c), P.P.C. for the murder of Rustam Khan and sentenced to 25 years' imprisonment and directed to pay Rs. 25,000 as compensation to the heirs of the deceased. In case of default of payment of compensation ` to further undergo R.I. for a period of two years. Co‑accused Sadaqat Hussain and Ghulam Shabbir were acquitted by extending them the benefit of doubt. Criminal Rovision No. 319 of 1996 has been filed 'by complainant Ghulam Gillani for enhancement of the sentence of the appellant from life imprisonment to death.

2. Criminal Appeal No. 793 of 1996 filed by Ghulam Gillani stands already dismissed by the order of this Court, dated 16‑6‑1997.

3. I intend to decide through this single judgment Criminal Appeal No.791 of 1996 and Criminal Revision No. 319 of 1996.

4. The occurrence which resulted in the death of Rustam Khan took place on 11‑6‑1994 at 6‑30 a.m. in Mohallah Thatta Kalrani situated in Mauza Namey Wali at a distance of three kilometres from Police Station, Khushab, District Khushab. The matter was reported by Ghulam Gillani to Muhammad Anwar, Sub‑Inspector, Police Station Khushab vide application Exh.P.F. on the basis of which formal F.I.R. Exh.P.F./1 was recorded.

5. The prosecution version succinctly described in the F.I.R. authored by Ghulam Jillani is that on 11‑6=1994 at 6‑30 a.m. he was present in his house when he was attracted by shot fired from fire‑arm weapon and on reaching the spot he found Rustam Khan present in front of his house where he was told by Muhammad Shameer and Muhammad Riaz residents of the village who were already present that Rustam Khan son of Ghaus Muhammad was injured, by Muhammad Siddique armed with a gun accompanied by Sadaqat Hussain also armed with gun and Ghulam Shabbir armed with a Lathi who thereafter decamped with their weapons. It was further learnt that Rustam Khan deceased was stopped by the accused from passing on the street in front of his house.

6. Motive for occurrence was stated to be the abduction of Mst. Nasreen by Ameer son of Dost Muhammad about 5 or 6 years who happened to be the real paternal uncle of the deceased Rustam Khan. Mst. Nasreen happened to be a near relative of the accused is stated to have married Ameer. Accused took offence to this abduction and in furtherance of common intention caused murder of Rustam Khan.

7. Muhammad Anwar, Investigating Officer after recording the formal F.I.R. proceeded to the Civil Hospital, Khusbab where he found dead body of Rustam Khan in the compound of the hospital. After preparing the injury statement Exh. P.H. and inquest report Exh. P.I. he handed over the dead body to Subtain Ali, Constable for its post mortem examination. The Investigating Officer left for the place of occurrence from where he secured blood‑stained earth taken into possession vide recovery memo. Exh.P.G. On 11‑6‑1994 he arrested Muhammad Siddique and prepared his injury statement Exh. P.K. and got him medically examined through constables from Civil Hospital, Khushab. Sadaqat Hussain the acquitted accused was also admitted in the hospital at Jauhar Abad and was unable to make statement as he was operated upon. On 18‑6‑1994 while in custody the appellant led to the recovery of .12 bore gun p.5 and live cartridge P.6 from the house which were taken into possession vide recovery memo. Exh. P. E.

8. Dr. Muhammad Sharif, Medical Officer, District Headquarters Hospital Khushab on 11‑6‑1994 at 9 a.m. conducted post‑mortem examination on the dead body of Rustam Khan son of Ghaus Muhammad and found the following injuries on his person:‑‑‑

(1) A lacerated wound 6 c.m. x 3 c.m. at the base of ponis, with blackening leading to rupture of penilo arteries, corpora carvernoza and spongiosa and hence leading to messive haemorrhage. Wound of entrance.

(2) A lacerated wound 1‑1/2 c.m. x c.m. on left lumber region below left rib margin with luish colouration all around. ‑

In the opinion of the doctor injury No.l was wound of entrance wherein injury No.2 was wound of exit and due to excessive bleeding death occurred. Injuries were anti -mortem caused by fire‑arm and sufficient in the ordinary course of nature to cause death. Time between injury and death was immediate and between death and post mortem was one to two hours.

9. On 11‑6‑1994 same doctor examined Muhammad Siddique aged 48 years and found the following two injuries on his person:‑‑‑

(1) A lacerated wound 5 c.m. x 1/2 c.m. x scalp deep on left parietal region.

(2) An abrasion 5 c.m. x 1 c.m. behind left side of chest. Injury No. l was declared as Shajjah Khaififah while No.2 was declared ghaif jaifah demian.

10. Dr. Muhammad Saleem Akhtar, Medical Officer, District. Headquarters Hospital Jauharabad, when examined as D.W.1 stated that on 11‑6‑1994 he medically examined Muhammad Shafique son of Muhammad Siddique aged about 12 years at 8‑30 a.m. when he was brought to the Hospital by his maternal grandfather Muhammad Nazir. He observed the following two injuries:‑‑‑

(1) A contused swelling 10 c.m. x 2 c.m. left, elbow postero lateral part.

(2) An abrasion 2 c.m. x 1/2 c.m. on left cheek just lateral and below the left eye.

Injury No. was declared as Ghair Gaifah Damiah whereas injury No.2 was declared as Shajjah Khafifah. Probable duration of injury was one to two hours and both of them were caused with a blunt weapon.

11. On the same day, doctor also examined Mst. Fazeelat widow of Muhammad Siddique aged 35 years at 8.30 a.m. when she was brought to Hospital by Muhammad Nazir and he found the following two injuries at her person:‑‑‑

(1) A contused swelling 7 c.m. x 2 c.m. on right elbow extending to fore‑arm lateral aspect.

(2) A contused swelling 8 c.m. x 2 c.m. on left upper arm outer part.

Injury No. l was declared as Ghair Gaifah Damiah whereas injury No.2 was also Ghair Gaifah Damiah. Probable duration of injury was one to two hours and were caused by blunt weapon.

12. Finally the same doctor also medically examined Sadaqat Hussain son of Muhammad Nazir who was brought to the Hospital by Muhammad Nazir on the same day i.e., 11‑6‑1994 and noted the following two injuries:‑‑‑

(1) A stabbed wound 1.5 c.m. x 1/2 c.m. on abdomen, 2 c.m. below the umblicus. Abdominal contents i.e. omentum was coming out of the wound. Cut mark on shirt and Bunian corresponding to wound was present.

(2) A stabbed wound 1/2 c.m. x 1/2 c.m. on right shoulder blade upper medium part. Wound was, not probed. Cut. mark present on shirt and Bunian corresponding to the injury. Muscle injury was visible.

Injury No.l was declared as Gaifah whereas injury No.2 was kept under observation. The operational notes indicated the perforation of small intestines, jejunum was transverse colon therefore, injury'. No. was declared as Gaifah and since no lesion was seen in the X‑Ray injury No;2 was declared as Ghair Gaifah Badiah. The patient remained in the Hospital till 23‑7‑1994.

13. After the investigation the challan was submitted in the Court. Appellant alongwith acquitted accused were charged for the murder to which they denied, pleaded not guilty and claimed trial. During the trial the prosecution examined as many as 10 witnesses. The ocular testimony accent was supplied by Muhammad. Shameer P.W.T and Ghulam Jillani, P.W.8 whereas the investigation was carried out by Muhammad Anwar, S.I. P.W.10. The appellant when examined under section 342, Cr.P.C. stated that the prosecution witnesses have given false statements because of their relationship with the complainant and the deceased and he alongwith his co‑accused were falsely implicated. It is stated that Rustam Khan deceased and Riaz, P.W. were aggressors‑and by concealing material facts the complainant party has falsely involved' them. Exh. D.F. which is copy of the order passed by the Civil Judge in the civil suit filed by Mst. Sat Bharai against the appellant and another was also produced in defence by the appellant.

14. Learned counsel for the appellant has bitterly criticized the evidence and has stated that four persons i.e. appellant, his wife, his son and his brother‑in‑law were grievously injured at the hands of the complainant party in the melee some one fired and killed Rustam Khan whereupon a false case was foisted upon the appellant alongwith the acquitted accused. It was submitted that all these facts, which have come in the evidence were not appreciated by the trial Court, as such the conviction and sentence recorded suffered from grave illegality and has occasioned complete miscarriage of justice. Learned counsel for the complainant as well as State Counsel have supported the sentence recorded by the trial Court.

15. 1 have addressed myself to the arguments raised by respective counsel and have also gone through the record minutely. Two facts which have emerged from the evidence on record are clear that there is no doubt about the same. Firstly dispute took place regarding construction which was being carried out by the appellant on his own plot. The deceased thought that the construction is going to block his way whereafter a ‑free light took place in which blows were exchanged by either side. Secondly the fact which has come on .the record is the injuries caused to Siddique appellant, his brother‑in‑law Sadaqat Hussain, who was grievously injured and remained in hospital till 23‑7‑1994 and the injuries caused to the wife of Muhammad Siddique, Mst. Fazeelat and his son Shafique aged 12 years. Injuries on the side of the appellant to all these persons tally with the time given by the prosecution for the occurrence which is 6‑30 a.m. having taken place on 11‑6‑1994. Injuries on the person of Sadaqat, Siddique, Fazeelat, Shafique have been suppressed by the prosecution, so much so that Muhammad Shameer the only eye witness stated that no one was injured from the side of the appellant. Suppression of the injuries has gravely reacted on the prosecution version and renders it totally unbelievable. It detracts from the veracity of the ocular account given by Muhammad Shameer. There is one injury caused to the deceased by tire‑arm weapon whereas the number of injuries on Siddique, Fazeelat and Shafique are grossly outnumbered Sadaqat has sharp‑edged injury on his person which as noted above, confined him to the hospital till 23‑7‑1994. Similarly injuries on Siddique were on his head and chest. All this shows that the occurrence took place in a totally different context and the ocular account was suppressed not only to the extent of injuries caused by the complainant side but also the manner in which they took place and reason which triggered the occurrence is also shrouded in mystery. Muhammad Anwar, P.W.10 the Investigating Officer submitted that on the day of inspection of the spot he found bricks and ' Gara' lying at the place of occurrence belonging to the appellant for constructing a wall. The version of Siddique at the time of his arrest was that he was constructing a wall on his land when Rustam Khan and others attacked and injured him. Same was the version of Sadaqat at the time of his arrest. In view of the statement of the appellant and Sadaqat the Investigating Officer proceeded against Riaz and Shaukat belonging to the complainant party and challaned them under section 324/34, P.P.C. for causing injuries to Siddique and Sadaqat.

16. Prosecution has not come to the Court with clean hands, they have given a tainted version suitable to their needs, therefore, no reliance can be placed on the testimony of. either Muhammad Shameer or Ghulam Gillani, who came to the place of scene after the occurrence. They have hidden facts which go to the root of prosecution case and have not explained the injuries on so many persons from the accused side. Statements of these two witnesses are not trustworthy. The gun 'recovered at the instance of the appellant is worthless. and does not amount to incriminating evidence as the same has not been found to be wedded with any crime empties having been recovered from the place of occurrence. Resultantly I have no hesitation to accept the appeal of the appellant and set aside the conviction and sentence recorded by the trial Court vide its judgment, dated 7‑8‑1996. The conviction and sentence against appellant having been set aside he shall be set at liberty if he is not required in any other case. Criminal Revision is dismissed.

N.H.Q./M‑289/L

Appeal accepted.