MUNIIR AHMAD Versus STATE

Munir Ahmad and his tenth degree collateral Mahmood Ahmad have beef convicted by Mr. Bashir Ahmad Sessions Judge, Lyallpur under section 302/34 P. P. C. for the murder of their co‑villager Siddiq and have been sentence( to transportation for life each.

2. The occurrence took place on the night between the 14th and 15tl of May, 1970, at the Behk of Siddiq deceased in square No. 29 Kills No. 14 in Chak No. 463/G.B., Police Station Samundari in the District of Lyallpur The prosecution, story is that Muhammad Karim (P. W. 7) paternal uncle of the deceased was, sleeping outside the Dhari of the deceased when at about midnight he was awakened by the sound of a blow lie saw that Munir Ahmad armed with a Kasuli and Mahmood Ahmad armed with a dang were standing by the cot of the deceased. Mahmood Ahmad caught hold of the legs of the deceased while Munir Ahmad gave him 2/3 injuries with the Kasuli. The first informant could not say whether the injuries were given b, the blunt side of the Kasuli or by its sharp side. On the outcry raised by, Muhammad Karim P. W. the accused took to their heels and were met in the way by Muhammad Rafiq (P. W. 9) the brother of the deceased, and one Talib Hussain, who was riot produced. Ilyas (P. W. 8) who is married to the sister of the deceased and belongs to Gujranwala District, had come to stay with the deceased and was sleeping at the Dhari at the time of the incident He also saw the occurrence.

3. The deceased in an injured condition was being taken to Samundari hospital when somewhere in the way he breathed his last. On reaching the Civil Hospital, Samundari, the Carriers found him dead. Muhammad Karin thereafter went to Police Station, Samundari and lodged the F. I. R Exh. P. A. which was recorded by Muhammad Nawaz (P. W. 10) on 15tt of May, 1970, at 4 at. m. The distance between the police station and the place of occurrence f is three‑and‑a‑half miles.

4. The Investigation Offer went to the Civil Hospital and prepared the inquest report of the deceased 'and sent the dead body for post‑mortem examination. The doctor who performed the post‑mortem examination, found five lacerated wounds on the des d body one of them on the head. The head injury had resulted in the fracture of the skull which was so extensive that brain was protruding out of the wound. All the injuries had been caused by blunt weapon. In the opinion of the doctor death was instantaneous due to injury on the head.

5. The Investigating Officer reached the spot at 8 a. m. and recovered the blood‑stained earth from the place of occurrence. At about none, the accused appeared before him. Chaddar P. 2 and shirt P. 3 of Munir Ahmad and Dhoti P. 4 and shirt P. 5 of Mahmood Ahmad were taken into posses sion vide memos. Exhs. P. D. and P. E. Munir Ahmad also led to the recovery of Kasuli P. 6 which was hanging with the beam of the ceiling in a room in his Dhari. These recoveries are attested by Hukam Din (P. W. 5) and Yunas (P. W. 6). These articles were consigned in the police on 17th of May, 1970, and thereafter were delivered to constable Asghar Ali (P. W. 3) for being taken to the office of the Chemical Examiner. The Serologist found that the clothes of Munir Ahmad and Kasuli P. 6 were stained with human blood.

6. The motive as narrated in the first information report was that there was a quarrel between the deceased and Munir Ahmad on the morning preceding the night of the occurrence and Munir Ahmad appellant had told the first informant that the consequence of the quarrel would be harmful to the deceased. At the trial, it was stated that the quarrel took place because Munir Ahmad forbade Siddiq deceased to visit his house but the latter replied that since his cousin was married to Munir Ahmad he would continue visiting his house. It may be pointed out that Munir Ahmad appellant denied that his wife was a, cousin of the deceased.

7. At the trial. Muhammad Karim P.‑ W. claimed that he and Rafiq P. W. were present at the time of the morning quarrel and that they had separated the parties. This was not stated in the F. L R. Muhammad Karim made different statement as to the place where this quarrel had takes place. Before the committing Magistrate he stated that the quarrel had taken place near a water channel but at the trial he said that the quarrel had taken place in the Bazar. Rafiq P. W. however said that the quarrel had taken place in front of the house of the accused. He further said that actually it was not a quarrel but a [SHOOR SHARABA]. The motive part of the story as held by the trial Court has not been proved.

8. At the trial, Muhammad Karim and Ilyas (P. Ws. 7 and 8) appeared as eye‑witnesses. Muhammad Rafiq the brother of the deceased claimed to have seen the accused running away after the commission of the offence. It was stated in the first information report that he was accompanied by one Talib Hussain who was not produced at the trial. Actually, Muhammad Karim stated during his cross‑examination that Rafiq was not accompanied by Talib Hussain. The learned trial Judge relied of the testimony of Karim. Ilyas and Rafiq P. Ws, and also sought corroboration from the fact that the Serologist had found that the garments of Munir Ahmad and Kasuli P. 6 were stained with human blood. Muhammad Karim claimed at the trial that Munir Ahmad appellant was a grandson of his uncle. This assertion was repudiated by the accused. In my view, the alleged relationship would not be very material for determination of the crucial point in this case namely as to whether Muhammad Karim and Ilyas had seen the commission of the offence. The F. I. R. gives an impression that the Dhari where the occurrence took place was jointly owned by Muhammad Karim and the deceased. It has, however, come on the record that Muhammad Karim had his own Dhari and his two sons work along with him. He said that he used to tether his cattle in this Dhari because his own Dhari had no boundary walls. Muhammad Rafiq stated at the trial that Muhammad Karim used to tether his cattle on certain occasions at their Dhari but further improved upon this statement and said that Muhammad Karim had started tethering his cattle in this Dhari five or six months before the occurrence. Before the committing Magistrate, however, he had made a categorical statement that Muhammad Karim had never tethered his cattle at their Dhari.

9. Muhammad Karim stated that he had built his Dhari soon after the Partition. If he was tethering his cattle in the Dhari continuously all this time there does not appear to be any reason as to why did he choose to tether his cattle in the Dhari of his brother some time before the occurrence. Muhammad Rafiq's statement before the committing Magistrate however, clinches the issue as he stated that Muhammad Karim had never tethered his cattle at their Dhari. It is, therefore doubtful if Muhammad Karim was sleeping with the deceased on the night of the occurrence.

10. Ilyas the other eye‑witness is a sister's husband of the deceased. He belongs to another District and be was not mentioned in the F. I. R. The learned Sessions Judge observed that he might have forgotten to mention this fact. . It is not possible to agree with the learned Sessions Judge on this point. The presence of Ilyas at the Dhari was so important a fact that it could not have been forgotten by the first informant. Muhammad Karim said that he along with Ilyas, Rafiq and others had taken the injured to Samundari. Ilyas on the other hand, said that he had stayed on in the village. If Ilyas were present at Samundari, there was no reason why the investigating Officer could not have recorded his statement at Samundari or taken his signatures on the inquest report. The Investigating Officer said that he recorded the statement of other witnesses at the spot.

A doubt in the prosecution story has always to be resolved in favour of the accused. The presence of Ilyas at the place of occurrence, to my mind, is extremely doubtful.

11. Muhammad Rafiq P. W. said that he along with Talib Hussain and another person whom be was not able to name, was carrying the wheat of Hukam Din P. W. from Square No. 30 to the village. He stated that they had borrowed somebody's cart for this purpose but had yoked his own bullocks to the cart. He was coming back after finishing the job but he could not explain why did he not bring his bullocks back to his Dhari. Hukam Din P. W. was never put any question about the lifting of his wheat from Square No. 30. According to Rafiq Hukam Din was present at the spot when he reached there. This statement does not receive corroboration from any witness. Talib Husain's presence with Muhammad Rafiq is denied by Muhammad Karim P. W. It, therefore, appears that the story of Rafiq coming across the accused is a fabrication.

12. The witnesses claimed that they had seen the occurrence in the moon night. Rafiq had said that he had seen the two accused going away from distance of seventy yards. It was the seventh of the lunar month and the moon was in the sky till 1‑21 a. m. It is doubtful if he could identify them from that distance in the dim light of the moon of the seventh night.

13. According to the doctor, the death was instantaneous. This belies the assertion of the eye‑witnesses that they carried she deceased in an injured condition to Samundari and he died in the way. Perhaps this state ment was made in order to make out a case that f he witnesses had seen the occurrence.

14. The conduct of the two eye‑witnesses also does not inspire confidence. The assailants were not equipped with fire‑arms. The witnesses were sleeping at a Dhari to guard their cattle. 7 hey must have at least sticks with them at that time. We fined it from the evidence of Muhammad Karim that Ilyas P. W. was sleeping at a raised platform which was meant for cutting fodder: Therefore, there should have been some implement meant for cutting fodder in the Dhari. The witnesses did nothing to prevent the commission of the offence nor did they pursue the assailants. It is also hard to believe that the assailants chose the time for the commission o! the offence when the moon was to prise. It appears that the deceased was found dead early in the morning and the dead body was brought to Samundari.

15. Mahmood Ahmad appellant stated at the trial that members of the complainant party were prosecuted for the abduction of Mst. Naziran daughter of Ghulam Rasul and that he was one of the prosecution witnesses in that case. One of the accused in that case was Yusuf a brother of Yunas P. W. and another was a collateral of Hukam Din P. W. both of whom are witnesses of recoveries. These facts were admitted by Hukam Din P. W. although denied at the trial by Yunas. Yunas bad, however, admitted these facts before the committing Magistrate and had said ‑that Mahmood Ahmad might be a witness against his brother in that case.

16. There does not appear to be any reason for collaboration between the two accused. Mahmood Ahmad stated that he was a tenth degree collateral of his co‑accused but apart from that there is nothing to indicate as to what was the strong motive for him to align himself with is co‑accused in committing this heinous offence.

17. The recoveries are not above board. In the memos relating is these recoveries of clothes of Mahmood and Kasuli P. 6, it was not mentioned that these articles were blood‑stained. The Investigating Officer stated categorically at the trial that he did not notice any blood on the Kasuli. The two witnesses of recoveries had not stated before the police that these articles were blood‑stained. Hukam Din P. W. categorically stated at the trial that the clothes recovered from Munir Ahmad appellant were not stained with blood. He did not say positively as to whether other articles were stained with blood or not. Tunas the other witness of recoveries did say at the trial that these articles were stained with blood but he had not said so either before the police or before the committing Magistrate.

18. There are three Lambardar in the village. It was admitted by Hukam Din that Raja Shah, a Member of the Basic Democracy, was present when the interrogation was made. According to the evidence there ware other persons also present. Yunas P. W. is cousin of the deceased. Hukam Din is also connected with the complainant party. They have otherwise reasons to depose against the accused particularly Mahmood Ahmad. No impartial person has witnessed these recoveries. The articles moreover were not deposited in rue Malkhana promptly. In my view therefore, the recoveries lose their corroborative value and cannot be safely relied upon.

19. The result is that I give the benefit of doubt to both the appellants, set aside their conviction and sentences and acquit them. I direct that they shall be released forthwith unless they are lawfully required to be detained in some other case.

Appeal allowed.