SALIM Versus STATE

KAMAL MUSTAFA BOKHARY, J. ‑Saleem (aged 21/22 years) and Vakil (17 years) were tried for the murder of Muhammad Shafi. Qazi Muhammad Latif, Additional Sessions Judge, Gujranwala convicted them under sections 302/34, P. P. C. and sentenced each of them to imprisonment for life and to pay a fine of Rs. 500 each or in default of its payment to suffer further rigorous imprisonment for 6 months each, vide his judgment passed on 10‑9‑1974. If realized, the fine was ordered to be paid to the heirs of the deceased as compensation under section 544‑A, Cr. P. C. The convicts have come in appeal.

2. Briefly, the prosecution case as disclosed in the F. I. R. is that on a moonlit night of 5‑9‑1970 at ishawela, Bahadar Ali and three others, who were subsequently named as Hanif, Aslam and Faqiria, went to the house of Muhammad Shafi deceased who was lying on a cot and was smoking huqqa on the outer door of his house in village Mari Van Khurd, district Gulranwala and attacked aim. The three companions held the deceased from arms and legs while Bahadar Ali cut the throat of the deceased with his chhuri. The complainant Ramzan (not examined) and Mst. Bashiran P. W., who were sitting talking to each other on the roof of kotha of that house raised alarm which attracted Shaukat P. W. son of Ibrahim, Ramzan son of Rehmat Ullah and Siraj Din (not examined) who reached (he spot and witnessed the occurrence. Bahadar Ali had asked his companions by naming them as Hanif, Aslam and Faqiria to catch hold of Ramzan com plainant and Shaukat but due to the arrival of Ramzan and Siraj the accused ran away. Since Shaukat P. W. had been living in the village of Bahadar Ali he told Ranizan complainant that the companions of Bahadar Ali were Hanif, Aslam and Eaqiria by name. Ramzan complainant then left for the Police Station, Kamoki but met Muhammed Sadiq, A. S. I. (P. W. 13) in village Kassoki where his statement was recorded, ors 6‑9‑1970 at 8‑45 a.m. on which formal F. I. R. was registered at the police station, on 6‑9‑70 at s‑30 a.m. The distance between the spot and the police station is 3 miles. The explanation given in the F. I. R. was that a relation had died due to which all members of the family being relatives had gone to attend that death ceremony and that the complainant did not leave his house to reach the police station on account of fear of his life at the hands of the accused.

The motive alleged in the F. I. R. Is that Ibrahim, a brother of the deceased, died about 12/13 years ago and after his death his widow, Mst. Naziran Bibi, married Bahadar Ali and went to live with him in Chak No. 82, Tehsil Lefah, district Muzaffargarh alongwith her four children from said Ibrahim. About one kills of land in village Marivan Khurd left by said Ibrahim was inherited by his widow Mst. Naziran Bibi and her four children. Bahadar Ali wanted to sell that land but the deceased who was paternal uncle of the children of Ibrahim, did not agree to that sale. The elder son of Ibrahim named Shaukat P. W. having left Bahadar Ali was living with the deceased for about 10 years prior to the occurrence while another son of Ibrahim named Aslam P. W. had joined the deceased about two or three months before the occurrence. After selling that one killa of land, Bahadar Ali wanted to take both these children to Tehsil Leiah but the deceased was opposed to it. Muhammad Ramzan complainant was sister's son of the deceased and on the night of occurrence was staying in the house of the deceased while P. Ws. Shaukat and Aslam sons of Ibrahim alongwith Sabir son of the deceased were sleeping at the bahak in the field.

After recording statement of Ramzan complainant in village Kassoki, Muhammad Sadiq, A. S. I. (P. W. 13) sent the same to the police station for registration of formal F. I. R. and himself went to the spot where he prepared my report and injury statement of the deceased and sent the dead body to mortuary. He secured blood‑stained earth, vide memo. Exh. P. D. and also secured blood‑stained dari, vide memo. Exh. P. E. He handed over investigation to S. H. O., who arrived at the spot at 11 a.m. on the same day. Ata Muhammad (P. W. 14), who was the S.H.O., Police Station , Kamoki partly investigated this case. He recorded statements of Shaukat, Aslam and Mst. Bashiran P. Ws. and Abdul Majid etc. He took into possession last worn clothes of the deceased, vide memo. Exh. P. F. He got prepared the site plan. The appellants appeared before him on 12‑9‑1970 when he arrested them, from the sugarcane field of Allah Dia which a which was secured , vide memo. Exh. P. G. The Investigating Officer, came to the conclusion during the investigation that Ramzan complainant had lodged wrong report, the persons named by him as accused were innocent and offence had been committed by the appellants whose names were nor mentioned in the F. I. R. Therefore, he challaned them for trial in Court.

The prosecution case at the trial is that on arrival of Muhammad Sadiq, A. S. I. (P.W. 13) it transpired that Ramzan complainant, who was a first cousin of Saleem appellant, in order to save the appellants who were the real culprits had lodged F. I. R. in which he had falsely named Bahadar .alt and three others as culprits. According to Mst. Bashiran (P. W. 7), widow of the deceased, she alongwith Shaukat (P. W. 11) was sleeping on the roof of her house on a separate charpai while Aslam (P. W. 10) was asleeping outside house in the bazar and the deceased was sleeping in the court-yard, the house near the main gate. At about midnight she heard shriek, got up and awakened Shaukat P. W. She saw that Vakil appellant was on the legs of the deceased and was holding his arms while Saleem, appellant was keeping his left hand on the head of the deceased are was cutting his throat with the chhuri with his right hand. She awakened Shaukat (P. W. 11) and her cries attracted Aslam (P. W. 10) and her cries attracted Aslam (P .W. 10) and Abdul Salam (P. W. 8) who also arrived and witnessed the occurrence. There was light of a lamp at the spot. The accused then ran away saying, "now you old man would not be able to oppose the engagement of his brother." Many people assembled thereafter. Siraj, father of Saleem appellant and Ramzan complainant also reached there and on their asking the witness told them that the appellants had ‑committed the murder. Ramzan complainant and Siraj Din then went to lodge F. I. R. and on arrival of the S. H. O., the witness told the above facts and named the appellants when the S. H. O. told her that Ramzan complainant had falsely named Bahadar Ali, who was brother of the deceased.

The motive alleged at the trial is that Rafique (P. W. 6) was going to marry his daughter, Salma Bibi, with Hakim, brother of Saleem appellant, on the assurance of their father Siraj Din that the latter owned 1 squares of land but on asking of Rafique P. W, deceased told him that Siraj Din in fact owned. IJ kills of land upon which Rafique P. W. gave up idea of marrying his daughter with Hakim. Thereafter Rafique P. W. proposed to marry the same daughter with Aslam, son of Mst. Bashiran P. W. The appellants felt aggrieved because of that and committed murder of the deceased in order to wreak vengeance.

3. Dr. Muhammad Yousaf (P. W. 1) conducted post‑mortem examina tion on the dead body of Muhammad Shafi accessed, aged 70 years, on 6‑9‑70 at 3‑30 p.m. and found two injuries on his dead body. Injury No. 1 eras a gaping incised wound 4 " x 1 "x going deep on the front of the neck while injury No. 2 was also an incised wound 1 " x " scalp deep on right fore‑bead. Injury No. 1 was dangerous to life and injury No. 2 was simple, both were caused by sharp‑edged weapon and were ante‑mortem. On internal examination the doctor found that 6th cervical vertebra was cut partially, the trachea oesophagus, both the common cartilages, neck of the muscles were cut, the spinal cord and the scalp were injured. The stomach and small intestine were empty, faecal matter was present in the large Intestine and the bladder was full of urine. In the opinion of the doctor death resulted from shock and hoemorrhage due to injury No.1 which was sufficient to cause death in the ordinary course of nature. The duration between injuries and death was immediate and that between death and post‑mortem examination was about 24 hours.

4. At the trial prosecution examined 14 witnesses while Muhammad Sadiq, Foot Constable (C. W. 1), who had been examined as (P. W. 9) was examined as Court witness. Mst. Bashiran (P. W. 7), Shaukat(P. W.11), Aslam (P, W. 10) and Abdul Salam (P. W. 8) were examined as eye‑witnesses while same Mst. Bashiran, Muhammad Aslam (P. W. 10) and Muhammad Rafique (P. W. 6) gave the motive. The recoveries of blood‑stained earth and blood stained dari from the spot were proved by another Muhammad Aslam (P. W. 3) and the Investigating Officer, Muhammad Sadiq, A. S. I. (P. W. I s) while the recoveries of blood‑stained chhuri at the instance of Saleem appellant was proved by same Abdul Salam (P. W. 8) and the Investigating Officer, Ata Muhammad, S. I. (P. W. 14). The afore‑mentioned Aslam (P. W. 10) was not available at the trial, his non‑availability was proved by Muhammad Sadiq F. C. (C:. W. 1) and P. W. 9 and the statement of Aslam before the committing Magistrate was transferred to the Sessions record. Other formal witnesses were also examined. All the prosecution witnesses supported the case of pro secution at the trial. The statement of Dr. Muhammad Yousaf before the committing Magistrate war transferred to the Sessions record. According to report (Exh. P.M./1) of the Serologist the earth recovered from the spot and chhrri recovered at the instance of Saleem appellant were found stained with human blood.

5. The appellants pleaded not guilty to the charge. When examined under section 342, Cr. P. C. they denied the allegations, the motive alleged by the prosecution and attributed their false implication due to enmity with the prosecution witnesses. Both appellants stated that 'Hakim was not brother of Saleem appellant. Saleem appellant denied recovery of blood stained chhuri at his instance.

6. The learned trial Judge found that the prosecution version had been established and the ocular evidence was corroborated by the motive and recovery of chhuri from Saleem appellant. The learned counsel for the argued that F. I. R. was recorded at the spot after consultation and deliberation, the investigation was not conducted according to the Code of Criminal Procedure, the appellants have further argued that the eye‑witnesses are not corroborated by independent evidence. He has also argued that blood‑stained chhuri planted on Saleem appellant and that the motive alleged by the prosecution was a cooked story The learned counsel for the State has submitted that the conviction and sentences of the appellants be maintained for the cogent reasons given by the learned trial Judge. I have been taken through the entire evidence which I have read myself and have considered it in the light of the submissions made by the learned counsel for the parties.

7. The prosecution examined Mst. Bashiran JP. W. 7), Shaukat Ali (s'. W. 11), Muhammad Aslam (P. W. 10) who were sons of Ibrahim and were nephews of the deceased and Abdus Salam (P. W. 8) with whom Muhammad Aslam (P. W. 10) was employed as a private servant. Accord ing to the prosecution version adopted subsequent to the F.

1. R. and at the trial Mst. Bashiran P. W. widow of the deceased was sleeping on the roof of her house alongwith her nephew Shaukat Ali P. W. Muhammad Aslam (P. W. 10) was sleeping outside that house in the bazaar while Shafi deceased was sleeping in the court‑yard of the house near the main gate. Mst. Bashiran P. W. deposed that it was at about midnight that she heard strike of the deceased and on getting up she awakened Shaukat Ali P. W. and both of them saw that Vakil appellant was sitting on the legs of to the deceased while holding his arms and Saleem appellant was cutting throat of the deceased with his chhuri. It is in evidence of Mst. Bashiran that she and Shaukat Ali saw the occurrence from a distance of at out 60 yards and P.m. time of occurrence was midnight. According to her Muhammad Aslam (P.W. 10) was sleeping outside the house in the bazar but according to her Muhammad Aslam P. W. himself and Abdus Salam (P. W. 8) they both came from their behak when they were attracted on the cries raised by Mst. Bashiran P. W. Only two injuries were suffered by the deceased which would not take long time to complete the incident before the arrival o! Muhammad Aslam, and Abdus Salam P. Ws. Even if the lamp was burning at the spot it was not possible for Mst. Bashiran and Shaukat Alt 11. Ws. to observe the occurrence and identify the culprits from the distance to by claimed to do so while Muhammad Aslam and Abdus Salam were u of capable of reaching the spot to witness the occurrence from their behak According to the original version in the P'.

1. R. lodged by Muhammad Ramzan (not examined) the occurrence took place at about ishawela. The medical evidence discloses that the incident may have taken place at about or 6 a.m. on 6‑9‑1970 and not at the time of ishawela of 5‑9‑1970 as alleged in the F.

1. R. or at midnight of the night between 5 and 6th September 1970. The eye‑witnesses examined at the trial have made improvements and exaggerations. The testimony of the eye‑witnesses is not uniform. It does not inspire confidence particularly on the point that any of them was capable of identifying the real culprits who caused the murder of Muhammad Shafi deceased. The motive alleged by the prosecution is remote and only related witnesses have been examined to prove it Abdus Salam (P. W. 8), who claimed to have reached the spot from his behak and also deposed about the motive, was a member of the complainant party. It is in evidence that Muhammad Aslam (P. W. 10) was employed with him as a private servant. The F. I. R. was not reged directly at the police station but originally the statement of Muhammad Ramzan (not examined) was recorded by Muhammad Sadiq S. I. (Q. VP. 131 at a place near Kassowal where he was ors patrol duty 1 from there he reached the spot without going to the police station. in cross‑examination he deposed that he went in search of Bahadar Ali, to Tehsil Leiah and it was Bahadur Ali who was originally named in the F.

1. R. Muhammad Sadiq A. S. T. P. W. remained at the spot up to about 11o clock and if the eye‑witnesses had disclosed him the wanes of the appellants as culprits the investigation would not have been made to trace Bhadar Ali in Tehsil Laiah. The recovery of blood stained Chhuri at the instance of Saleem appellant appears to be fabricated. It appears that was a case of unseen murder in which the identity of the culprits was mown till 6‑9‑1970 and the appellants were involved on suspicion.

On the evidence on record and in the circumstances of the case the prosecution has failed to prove guilt of the appellants beyond reasonable doubt and they are entitled to benefit of doubt which is allowed to them.

8. As a result of above discussion the appeal is accepted, the conviction and sentences passed against the appellants by the learned trial Judge are set aside and both the appellants are acquitted.

Appeal allowed.