GHULAM RASOOL Versus THE STATE
MAZHAR UL HAQ. J.‑‑ Ghulam Rasool, his brother Muhammad Khan and Ahmad Khan their cousin Nurang Khan and Ata Muhammad, brother, of a son-in-Law of Ahmad Khan, were tried by :sessions Judge, Mianwaili for rioting armed with deadly weapons and for committing the murder of Ghulam Qadir and attempting the murder of Hayat Khan (P. W. 11) in the course of the riot. All the accused were acquitted except Ghulam Rasool, who was sentenced to death under section 302 of the Pakistan Penal Code for the murder of Ghulam Qadir. His appeal and the connected murder reference are before us.
2. Hayat Khan P. W. and Sher Muhammad separately cultivated adjoining land of one Qadir Dad Khan in China village. They had a common thrashing floor, which was situated near the house of Hayat Khan. According to the prosecution case, on the morning of 7th May 1970, Mst. Amiran (P. W. 10) and Mst. Janat unmarried daughters of Hayat Khan, passed by the thrashing floor to fetch water from the river. Sher Muhammad .x a nephew of Ata Muhammad accused, was thrashing his wheat crop with the help of Muhammad Khan, Ahmad Khan, Ata Muhammad accused and two other men namely Sharaf Din and Muhammad Nawaz. Sher Muhammad caught the arm of Muhammad Khan and Sharaf Din caught the arm of Ahmad Khan and said (it is white Maxi, they would have it). The remark was heard by Hayat Khan who was following his daughters to bathe in the river. He remonstrated with Ahmad Khan, who replied that he regarded his daughters as his own, but could not help Hayat Khan said that if they were to misbehave like this again, they should remove their wheat from the thrashing floor.
3. Next day i.e. on 8th May 1970, Hayat Khan P. W. had to thrash his wheat. He had called his brothers Abdullah Jan (P. W. 13) and Jahan Khan (given up as unnecessary) from Dera Zafran as well as his relatives Alam Khan (P. W. 12) and Ghulam Qadir deceased from Allah Khel to assist him. All the five accused reached the house of Hayat Khan at rotiwela. They were armed with guns except Ata Muhammad, who carried a rifle. Muhammad Khan accused shouted to Hayat Khan to be ready to suffer the consequences of asking them not to use the thrashing floor. He then fired a shot at him, but Hayat Khan dodged it and went to his kotha. As Ghulam Qadir got up to follow him there, Ghulam Rasool shot him in the chest. Naurang Khan, Ata Muhammad and Ahmad Khan also fired towards Hayat Khan, when he was in the door of his kotha. The shots fired by them bit the walls. Ghulam Qadir staggered into the kotha of Hayat Khan arid died. Ata Muhammad raised his rifle and shouted that they had taken the revenge. All the accused then went away.
4. Hayat Khan went to Police Station Issa Khel at a distance of five miles from the place of occurrence and reported the matter to Sultan Mahmood, Moharrir Head Constable (P. W. 6) at 5‑20 p m. Muhammad Bakhsh A. S. I. (P. W. 15) went to the spot, prepared the necessary documents and sent the dead body of Ghulam Qadir for post‑mortem examination. He collected crime empties Exh. P. 2/1‑7 from the spot, made them into a sealed parcel and prepared the recovery Exh P. C., which was attested by Muhammad Aslam Khan (P. W. 8) and Rab Nawaz.
5. Doctor Muhammad Nazir, Medical Officer, Issa Khel (P.W. 1) held the autopsy on 9 th May 1970, on the dead body of Ghulam Qadir and found a fire-arm entrance wound in front and mid-line of chest at 4 th rib. On internal examination, he found thorax wall at chest wall sternum injured. Left lung pleura were injured. A pellet was removed from the posterior wall of spine. Stomach contained 6 ozs. of digested food material. Death was instan taneous and was due to shock anal haemorrhage caused by a fire‑arm injury. Autopsy was held within 24 hours of the death.
6. Fazal Muhammad, Sub‑Inspector (P. W. 14), arrested the appellant and his co‑accused on 13th May 1970. He recovered gun (Exh. P. 5) at the instance of Muhammad Khan. Rifle (Exh. P. 1) was recorded at the instance of Ata Muhammad. Only gun (Exh. P. 5) was sent to the Firearms Expert, who reported that the crime empties were not fired from it.
7. The appellant denied guilt and ascribed the case to enmity with Hayat Khan P. W. He denied his relationship with Naurang Khan and Ata Muhammad, the acquitted accused. No accused produced defence.
8. Prosecution alleged two motives for the crime, (a) the murderous attack by Hayat Khan and his relatives on Ata Muhammad accused eight years before the occurrence and (b) his asking the accused one day before the present occurrence to remove their wheat from the thrashing floor, if they were going to misbehave again. Hayat Khan was acquitted of the charge of attempted murder and there was no subsequent trouble till the present occurrence. As to the incident of c‑using of the girls, it was not expressly mentioned by Hayat Khan in the first information report, but the teasing must have been done because Hayat Khan could not have quarrelled with the accused without any reason. It appears that he mad only a brief reference to the incident in the first information report in order to avoid family disgrace, but was subsequently prepared to give its details.
9. It is doubtful if Hayat Khan was present when his daughters were insulted by the accused. If he was following his daughters, he would have protested to the accused then and there instead of picking up a quarrel wits; them on his return from the river. As the accused had a guilty conscience, they would not have resented a father's protest to such a great extent as to go to his house in a body next day with the intention of shooting him. Mst. Amiran P. W. admitted that the accused hats their guns at the thrashing floor and if they were really upset, there was nothing to stop them from shooting Hayat Khan, when he remonstrated with them there. Hayat Khan had admittedly gone to his father's dera next day to help him in thrashing his wheat and very likely he was told about the misconduct of the accused by his daughters, when he came back home. He was more likely to have gone to the accused to pick up a quarrel with them than that the accused came to his house to murder him merely for asking them to thrash their wheat elsewhere if they were not going to behave.
10. The occurrence of the following day is supported by Hayat Khan, his brother Abdullah Jan and his near relative Alam Khan P. W. Neither Abdullah Jan nor Alam Khan belonged to the village of Hayat Khan and they had been specially summoned by him. It is alleged that they were called to assist him in thrashing his wheat and were still present in the house of Hayat Khan when the accused came there. All these witnesses are closely related to the deceased. Their evidence is discrepant and it is also against the circumstances of the case. According to the original version, these persons had taken their meals in the house of Hayat Khan, when the accused came there. This would be quite natural because they had come to assist in thrashing wheat and must lave been fed by the host before starting work, But medical evidence showed that the stomach of Ghulam Qadir deceased did not contain undigested food. To get over this discrepancy, an attempt was made to show that the deceased took only lassi and a morsel or two of bread. But this fact was not mentioned at any time before the post‑mortem examination. Even if the deceased had taken a morsel or two, they should have been found semi‑digested in has stomach.
11. Four men bad come to the house of Hayat khan to assist hire and five accused had opened fire there, but only one of them namely, Ghulam Qadir deceased, was shot. In order to get over this difficulty, an attempt was made to reduce the gathering by saying that Abdullah Jan and Jahan Khan left for the thrashing floor in advance. It was not shown why they went by themselves and it is unlikely that they should have done so. Their going away before the occurrence and seeing that occurrence from the thrashing floor was not mentioned in the first information report and Hayat Khan did not even mention it at the trial.
12. As the heart and lungs of Ghulam Qadir were pierced, he mast have bled profusely. But not drop of blood was found in the house of Hayat Khan, although the chest cavity of the deceased was found full of blood. The trial Court was of the view that the blood did not fall out because the deceased lay prostrate after the occurrence. This is a wrong conclusion because he was shot while standing and he staggered into the kotha after receiving the chest wound. In any case, he was likely to have tossed about and if he was really shot at the alleged place, blood must have fallen there. To fix the scene of the occurrence, seven crime empties are said to have been recovered from the spot, but not one of them was noticed when the Sub‑Inspector reached there at night and when he prepared the injury statement and the inquest report of the deceased. They were said to have been recovered next day at 8 a. m. Some pellets marks were also alleged to have been noticed on the wall of the house, but this also was probably an after‑thought because these marks were not mentioned during the investigation or in the site plan. The Sub‑Inspector did not mention them even in his statement before the Committing Court. Only one pellet was found at the spot and another in the body of the deceased. This fact also belied the story of firing of a number of shots.
13. The prosecution also relied on the recovery of gun (Exh. P. 5) from Muhammad Khan and rifle (Ex. P. 1) from Ata Muhammad. Muhammad Akram Khan (P. W. 7) who is a witness of the recovery of gun was especially picked up by the Sub‑Inspector from the wandah of Zafran (brother of Hayat Khan) while Fatah Muhammad (P. W. 9) who deposed about the recovery of rifle, voluntarily went to the Sub‑Inspector from the house of Hayat Khan. He admitted that the rifle was recovered three weeks after the occurrence. No bullet was found at the spot and one of the seven crime empties alleged to have been found there, were proved to have been fired from gun (Exh. P. S). The trial Court also did n ot rely on these recoveries.
14. The occurrence is said to have taken place at rotiwela on 8th May 1970, but the report was lodged at police station at 5‑30 p.m. although the police station is only five miles from Chinnapura. Hayat Khan admitted that part of the journey could be performed by a bus. His explanation that he remained in his house for sometime on account of fear and that he passed though ravines to the accused seem to be a device to explain away the delay in reporting the occurrence.
15. Ghulam Qadir deceased does not seem to have been called to help Hayat Khan for thrashing wheat nor is he likely to have been shot in his house. Chances are that when Hayat Khan returned home from his father's thrashing floor on 7th May 1970, his daughters told him that the accused had outraged their modesty. He, therefore, collected his relatives and set out to avenge the insult. This led to a fight but we do not know when and where it took place. It does not appear to have taken place in the house of Hayat Khan. Even the learned Sessions Judge did not rely on any part of the prosecution evidence against the acquitted accused. He convicted Ghulam Rasool, because he saw no reason why he should have been falsely implicated when he had no enmity with the deceased. But this reason is not sufficient to connect the appellant with the crime especially when no gun was recovered from his possession. We cannot, therefore, distinguish his case from the case of the acquitted accused.
16. For the reasons stated above, we are of the view that the prosecution has failed to bring home the guilt to the appellant. We, therefore, accept his appeal, set aside his conviction and sentence and acquit him. He shall be released forthwith, if not wanted to be detained in any other case. The sentence of death is not confirmed.
Appeal accepted.