MUSHTAQ AHMAD Versus STATE

1. MUSHTAQ HUSSAIN, J.--‑ Mukhtar Ahmad, aged 30 years, (2) Niamat Ali, aged 35 years, sons of Shera, (3)Mushtaq Ahmad aged 24 years, (4) Hidayat, aged 38 years, (5) Muhammad Ishaq, aged 28 years sons of Ismail and (6) Qadir, aged 28 years, son of Nawab, all Jats by caste, residents of Chak No. 49/J.B. Tehsil and District Lyallpur, have been convicted by the learned Additional Sessions Judge, Lyallpur, of his order dated 7‑4‑1970 under section 302/149, P. P. C. for having caused the death of Fateh Muhammad on I1‑11‑1969 at digarwela in Chak No. 49/J.B in front of the house of Mukhtar in the abadi at a distance of 12 miles from Nishat Abad Police Station. Mukhtar Ahmad, Niamat Ali and Mushtaq Ahmad have been sentenced to death on this count while Hidayat, Muhammad Ishaq and Qadir have been sentenced to transportation for life.

2. By the same order, the learned Additional Sessions Judge teas convicted all of them under section 323/149, P. P. C. for causing simple hurt to Yousuf P. W. and sentenced each to 3 months R. I. They have also been convicted under section 14b, P. P. C. and sentenced to undergo six 6 months R. I. each.

3. Two or three months before the occurrence, Muhammad Yusuf, a young unmarried roan, was going to his house. He met Mst. Mukhtaran, sister of Mukhtar Ahmad, applicant. He cut a joke with her. Next day, Mukhtar happened to meet him and he reprimanded him for this action. He also gave him two or three sota blows. Muhammad Hussain (P. W. 6) and Muhammad Ali (P. W. 8) who happened to be there intervened.

4. Eight days later, Muhammad Hussain Lambardar (P. W. 6) convened a panchayat in his own house in which Yusuf and Mukhtar also participated and the opposite‑party was also sent for. No compromise could, however, affected. In fact Mukhtar and Fateh Muhammad deceased exchanged abuses. Mukhtar appellant threatened that he will murder either Yusuf or Fateh Muhammad because of this incident.

5. A day before the occurrence, Muhammad Hussain (P. W. 6.) convened another panchayat at his house and this time besides exchange of abuses. Fateh Muhammad slapped Mukhtar appellant whereupon the latter threatened him with dire consequences.

6. On the fateful day, at digarwela Fateh Muhammad deceased who is a real brother of Yusuf (P. W. 10) followed by Yusuf and Muhammad Ishaq Mete passing the house of Mukhtar Ahmad appellant which is situated at a thoroughfare, with a view to going to their lands situated in Square No. 37. They found Mukhtar Ahmad appellant sitting outside the dour of his house with a licensed double‑barrelled gun along with Hidayat son of Ismail who had a dang, Mushtaq son of Ismail, who also had a dang. Qadir son of Nawab with a dang and Niamat son of Sher Muhammad also with a dang. these six persons got up, ran towards Fateh Muhammad deceased and caught hold of hit". Muhammad Yusuf (P. W. 10) and Ishaq (P. W. 11) also ran towards them and Ishaq snatched away the 12 bore gun from the hands of Mukhtar Ahmad. Mukhtar appellant picked up a wooden rafter from the place and hit Fateh Muhammad with is on his head. He was followed by Mushtaq who hit him with the wrong aide of the hatchet. Fateh Muhammad consequently fell down. Yusuf (P. W. 10) tried to rescue him and received four hatchet injuries on his two arms from Mushtaq in the bargain. Mushtaq then hit him on his back with the wrong end of the hatchet as well as on his right shoulder. Yusuf got afraid and receded. He then saw Hidayat giving a dang injury on the right eye of Fateh Muhammad who was lying on the ground. He was followed by Muhammad Ishaq who gave him two injuries on his face and then Qadir also gave him two injuries with his dang on his face. Niamat then got on to his chest and gave him two dang injuries. These people continued to belabour him while Yusuf (P. W. 11) and Ishaq (P. W. It) continued to be onlookers. Feteh Muhammad died at the spot. Ghulam Hussain alias Ghulam Ali son of Ghulam Muhammad who happened to be present at the spot saw the occurrence.

7. The appellants then put a noose around the neck of the dead body and dragged it into their ihata of Mukhtar whereupon P. Ws. 10 and 11 raised a hue and cry which attracted Muhammad Hussain (P. W. 6). Muhammad Ali (P. W. 8) and Noor Muhammad (P. W. 9) as well as Fateh Muhammad who interceded and requested the appellants not to burn the body of the de ‑cased which they very much wanted to do. The appellants then ran away while Muhammad Yousuf proceeded to the police station where he lodged F. I. R. Exh. P. D. at 6‑A0 p.m. It was recorded by Farzand Ali, Sub‑Inspector (P. W. 14).

8. Having recorded the F.

1. R. he proceeded to the spot where he found the dead body of Fateh Muhammad lying on the terrance of Mukhtar appellant. He, inter alia took into possession the ratter P. 4 which he has described as a piece of wood from the bazar where the actual occur?rence is alleged to have taken place vile memo. Exh. P. C. Ishaq P. W. produced the gun Exh. P. 10 which is a licensed weapon of Mukhtar appellant which was taken into possession vide memo. Exh. P. N.

9. ? The appellants were apprehended by him on 13‑11‑1969. Hidayat appellant produced the sofa of kikar Exh. P. 5 before him which he took into possession vide memo Exh. P. H. Mushtaq appellant took the S. I. to his residential kotha and got hatchet Exh. P. 6 recovered from there which was taken into possession vide memo Exh. P. J. Ishaq similarly got the dang Exh. P. 7 recovered from his kotha which wag taken into possession vide memo Bib. P. J. Niamat Ali appellant led to the recovery of dang Bib. P. 8 ride memo Exh. P. L. Qadir appellant when arrested got recovered Bang Exh. P. 9 from his kotha vide memo Exh. P. M. After completing the investigation, he challaned the accused.

10. At the trial Mukhtar appellant stated as follows :‑

11. "Muhammad Hussain P. W. was on bad terms with me. Mina and his sugarcane supply book was joint for the previous season and when the now season set in he wanted a fresh and a separate supply book to be prepared. On the old joint supply book we had been supplied fertilizers by the Crescent Sugar Mills for Rs. 1716. In the old sugar‑cane season when the supply book was joint Muhammad Hussain had three acres of sugarcane the price thereof to me nor did give any surety for the price thereof which if demanded when he tried to get a separate sugarcane supply book. Fateh Muhammad tried his beast to get a separate supply book issued but the mills told him that unless I had consented that the price of nine bags of fertilizers had been paid till then separate supply book could not be prepared. From there started our dispute. Yusuf P. W. and Majid son of Muhammad Hussain P. W. were after me to kill me. I was alone in the village and so I applied to the Superintendent of Police and there?after proceedings under section 107/151, Cr. P. C. were taken in hand by the police against Fateh Muhammad deceased, Yusuf P. W., Muhammad Hussain son of Chand P. W., Majid son of Muhammad Hussain, Muhammad Ali, Ghulam Nabi alias Ghulam Hussain P. Ws and Ibrahim son of Ghulam Muhammad. I was also challaned as against them under section 107/151, Cr. P. C.

12. On 11th November 1969, I came from my land in Square No. 31 to village abadi in the evening. When I reached my Bethak in front thereof two persons from Azad Kashmir were also sitting there. My gun was with me. I had hardly sat there for four five minutes when Yusuf P. W. came up there and gave me a lalkara that he had come and I should be prepared to meet him. In the meantime Bashir, brother of Fateh Muhammad deceased, Rehmat Ali. Muhammad Ishaq P. W. and Fateh Muhammad deceased appeared from the corner of northern bazar. I picked up my gun which was lying on the cot and fired two shots in the air. Fetch Muhammad deceased and others mentioned above in spite of the fire in the air did not recede and attacked me so we were entangled. I could not load my gun again. Holding the gun from the butt side I gave 2‑3 blows with the barrel side on the body of Muhammad Yusuf P. W. All these dragged me towards the north in the bazar where they were joined by two three other persons. They tried their best to snatch the gun ? from me. Bashir, Rehmat Ali, Yusuf and Muhammad Ishaq had, dragged me in to the bazar towards the north while Fateh Muhammad had been left in front of my house. These people were dragging me to the ahata of Rehmat Ali above‑mentioned. When they had dragged me to the house of Sharif son of Rehmat Ullah, Yaqub son of Hussain Baksh, Umra son of Bhaga and my paternal aunt Mst. Hussain came up there. My aunt threw dust and I was rescued by Yaqub and Umra but my gun alongwith the, bandolier with cartridges were snatched by those people. I ran back towards my house. Ishaq P. W. gave lalkaras from behind and also tired shots but I went inside my house and bolted the door from inside. After bolting the main door of my ahota when I reached at the terrace of my house I found Fateh Muhammad had come in the house and asked where Niamat Ali accused my brother was. Niamat accused was at that time in his fields. The women told that they had Fateh Muhammad with tire help of two Azad Kashmir people with brick‑bats and the old Balas; of Sikh times lying there. My house, had been built and so my bricks were lying in the ahata.

13. I bolted the door from inside and asked my aunt Hussain Bibi to go to the fields and tell the occurrence to Niamat Ali accused. I also asked her to tell Niamat to go to the police station. I kept the door bolted and at 1 p.m. the S. I. and Niamat accused came together. Only on the assurance of Niamat accused I opened the door."

14. In support of its case the prosecution produced 14 witnesses while the defence produced none.

15. Dr. Safdar Ali who appeared as P. W. 1 deposed to having performed the post‑mortem examination of the dead body of Fateh Muhammad on 12‑11‑1969 at 2‑15 p.m. and to have found the following injuries on it :‑

(1) A contusion mark 3? x 2?? on the left side of face outside the eye.

(2) An incised wound 3? x 1? bone deep on the right eye‑brow outer side oblique in direction.

(3) A punctured wound ?? x ?? x ?? on the right lower jaw, half inch is front of right ear, right ear was also cut.

(4) Swelling with a contusion 3? x ?? on the right side of neck upper part. .

(5) An area of multiple contusions 5?? x 4? on the left side of the neck.

(6) A contused wound, ?? x ?? into bone deep on the left occipital region 3? behind the left ear.

(7) A contusion mark 1? x 1? on the right side of lower lip right lower jaws fractured.

(8) An incised wound 1? x 1/6? into bone deep on the back of left little finger first metacarpophelangeal joint first phallings was fractured

(9) 1/2? x 1/4? akin deep on the back of left ring finger first joint.

(10) An incised wound ?? x ?? into skin deep on the back, of face left index finger.

(11) An abraided contusion 8? x ?? obliquely in front of right chest 1?? above the nipple, second, third, fourth and fifth ribs were fractured.

(12) An abraided contusion 4? x ?? x 1?? 1f below and parallel to injury. No. 11. Six seventh ribs were fractured.

(13) Three contusions in area of 3? x 2? on the back of left upper arm.

(14) A contusion on the back of left forearm 2? x 1?.

(15) An abrasion ?? x ?? on the outerside of right shoulder.

16. In his opinion, injuries No. 11 and 12 were sufficient in the ordinary course of nature to cause death. The testimony of the doctor proves that Fateh Muhammad died a violent death as a result of no leas than 15 injuries.

17. Dr. Imtiaz Ahmad examined Muhammad Yusuf (P. W. 10) on 13‑11‑1969 at 3‑30 p.m. and found the following simple injuries on his person :‑

(1) An abrasion 1?? x ?? on the back of right forearm.

(2) An abrasion 1? x 1/6? on the back of left forearm.

(3) A contusion mark 2? x 1? on the right shoulder.

(4) A contusion mark 2? x 1? on the back of left side of chest.

18. It proves that the witness had received injuries on his person within 24 to 40 hours of the examination.

19. Before proceedings further, it would be convenient to state the relation?ship in which the parties stand to each other and the enmity whim exists amongst them as well as the witnesses. Mukhtar Ahmad an., Niamat Ali appellants are the ions of Sher and consequently brothers inter i.e. Hidayat Muhammad Ishaq, Mushtaq Ahmad are the sons of Ismail and consequently brothers. Qadir is the son of Nawab. They are all Jats by caste.

20. Muhammad Hussain (P. W. 6) had fallen out with Mukhtar appellant on account of a dispute arising out of partnership business. Fateh Muhammad deceased had tried to help Muhammad Hussain in this dispute Mukhtar was apprehensive of an attack on his life by Yusuf (P. W. 10) and Majid son of Muhammad Hussain (P. W. 6). On his initiative, the appel?lants started proceedings under section 107/151, Cr. P. C. against Fateh Muhammad deceased. Yusuf (P. W. 10), Muhammad Hussain (P. W. 6), Majid son of Muhammad Hussain, Muhammad Ali (P. W. 8), Ghulam Nabi alias Ghulam Hussain (P. W. 12) as well as against Mukhtar. The case went up to the Court of Raja wluhammad Akram Khan, Magistrate on 17‑11‑1969 and was disposed of on 30‑12‑1969. The report is printed at p. 40 of the Paper‑Book. By this order, Mukhtar, Niamat and Ghulam Qadir appellants were bound down under section 118. Cr. P. C. Yusuf (P. W. 10), Muhammad Hussain (P. W. 6) and 5 others were bound down from the other party. The occurrence took place on 11‑11‑1969. Muhammad Ali and Ghulam Hussain P. Ws. 8 and 12 are real brothers. They are the nephews of Muhammad Hussain (P. W. 6). Fateh Muhammad P. W. is the brother of Ghulam Muhammad whose daughter is married to Ghulam Hussain (P. W. 12). Fateh Muhammad is also the maternal uncle of Muhammad Yusuf (P. W. 10), Muhammad Ishaq (P. W. 11) is the nephew of Muhammad Yusuf (P. W. 10), and the son of Fateh Muhammad deceased. Ghulam Hussain (P. W. 12) was also a party in the case under section 107/151, Cr. P. C., against Mukhtar accused and Muhammad Hussain Lambardar. It is, therefore, clear that while the appellants are inter‑related and belong to one faction, P. Ws. 6 to 12 belong to the opposite faction and enmity was ripe between them at the time the incident is said to have taken place.

21. Let us in this light now consider the story written in the F. I. R. Mukhtar Ahmad is said to have sent for Yusuf (P. W. 10) and Muhammad Ali (P. W. 8) to the dera of Muhammad Hussain (P. W. 6) in a panchayat. Is it possible that in the state of enmity narrated above, Mukhtar Ahmad, could have dared to send for Yusuf and Muhammad Ali P. Ws., and more particularly at the dera of Muhammad Hussain. The answer is in the negative.

22. Mukhtar Ahmad is supposed to have said there that he would avenge the insult hurled upon him by Muhammad Yusuf upon Fateh Muhammad, If he had been insulted by Muhammad Hussain (P. W. 10) who was present there, the question of his taking revenge front Patch Muhammad who was not in the picture did not arise. There was an altercation between them and they were separated by the intervention, again by Muhammad Hussain, a person who was equally inimically deposed towards Mukhtar appellant.

23. We are asked to believe that a day before the occurrence, Mukhtar Ahmad appellant again went to his sworn enemy Muhammad Hussain who again sent for Fateh Muhammad and Hussain Bakhsh although the security proceedings between the parties were at that time going on in the Court. The punchayat was also attended by Noor Muhammad (P. W. 9). The two parties again opposed each other and Mukhtar Ahmad left the punchayat saying that he will kill Fateh Muhammad. This is again inexplicable.

24. On the fateful day, when Fateh Muhammad etc. reached near the house of Mukhtar Ahmad they found him and his friends and relations sitting there armed to the teeth. Fateh Muhammad etc. were not armed. The only natural reaction should have been that they should have retraced their steps and run away to their houses because in that state of affairs they were inviting death by going that way and they had been told in no uncertain terms more than once, the last time being the day before, that Mukhtar Ahmad will murder Fateh Muhammad.

25. We are then made to believe that although Mukhtar Ahmad was armed with a gun and about no less than 5 persons of his party were with him, Muhammad Ishaq (P. W. 11) was able to snatch away the gun from Mukhtar Ahmad. If Mukhtar Ahmad was sitting there with the intention of dealing with them, would he be sitting with an unloaded gun? The answer is ostensibly No. Mukhtar Ahmad then picked up a small piece of wood and hit Fateh Muhammad deceased on the head with it. Where?after he was followed by his other friends who are said to have inflicted numerous blows upon the deceased. Yusuf (P. W. 10) was armed with the gun that that he had snatched away from Mukhtar. Would he not in these circumstances use that gun as a dang and try to rescue his brother? We are asked to swallow the story that he remained standing watching, the whole thing helplessly and when he tried to intercede, he was given hatchet injuries on his arms. A gun is certainly longer than a hatchet and there is no reason why Mohammad Ishaq should not have been able to effectively incapticitato Mushtaq appellant in spite of the kulhuri in his hands and there is no reason why he should have permitted him to inflict kulharis blows on his arms. These kulhari blows which terrified him and which made him recede created nothing more than two abrasions and two con?tusion marks so slight in dimensions that it would be ridiculous to assort that a kulhuri when used from its wrong side could cause such minor injuries.

26. When Fateh Muhammad died, Mukhtar put a noose around his neck and dragged the body. There is no mark on the neck in spite of the fact that he had to be dragged for quite a few karams. The only injury on his neck is a swelling with a contusion 3? x 1?? on the right side of the neck upper part. It cannot be the mark of a noose because it was on the upper part of the neck of the right side and secondly, because there was no damage underneath. It has been described as an injury by a blunt weapon by the doctor. The dragging story in the manner it is described is, there?fore, not believable.

27. It is Muhammad Hussain (P. W. 6), Muhammad Ali (P. W. 8) and Muhammad (P. W. 9) all partisans of the complainants and even tic appellants who quietly walked into the haveli of Mukhtar and asked them not to burn the corpse of Fateh Muhammad deceased and suddenly the appellants decided to run away leaving the body there. We are afraid it is too preposterous a story to be clothed with the garb of credibility.

28. No independent evidence has been produced and partisan witnesses formed the mainstay of the case. It is an accepted rule of prudence that Courts should insist upon corroboration. Corroboration there is none except the dangs, kulhari and the piece of wood. The piece of wood P. 4 was stated to be blood‑stained. We have had a careful look at it and bad also shown it to the learned counsel for the prosecution to find if there were any marks on it. We find no trace of anything. It is supposed to have been broken on impact with the face of the deceased. The piece of wood is about 1 J' square in girth and when it struck the face of the deceased as a result of a blow given by a full‑blooded Jat, the result was a contusion mark 3? x 2?? on the left side of face outside the eye. Even if imagination were allow to be stretched to the limit of credulity the resultant injury could not have been as minor as this.

29. The other dangs and hatchet etc. have no blood on them either. They are, therefore, of no help in determining the guilt of those who might have used them. Further the witnesses of recovery are again partisans and cannot be believed.

30. There is, therefore, no corroboration available for the interested and partisan testimony of the P. Ws.

31. 'There is no earthly explanation for the fact that not even one indepen?dent witness has been produced although the occurrence took place in congested bazar.

32. As for the dragging of the body and the threat to burn it is concerned there is not one word in the statement of Muhammad Yusuf (P. W. 10 before the committing Magistrate that anybody gave a lalkara saying that the body should be burnt or even in the F.

1. R. showing that at any stag Mukhtar appellant or anybody else ever uttered a single word indication that they wanted to burn the body. This is just a figment of the imagina?tion and in the absence of any such suggestion one‑ wonders as to why an how did Muhammad Hussain etc. came to beg to them not to burn the body.

33. In these circumstances, we do not find it possible to uphold the Judg?ment of the learned lower Court which we hereby set aside by accepting the appeal and quashing the conviction and sentences of the appellants who have already been directed to be released if they are not wanted in any other case.

34. The Reference under section 374, Cr. P. C. is rejected.

35. Appeal allowed.