MOHAMMAD BASHIR Versus THE STATE
Muhammad Bashir (aged 17/18 years) was tried for the murder of Muhammad Arif. Mr. Malik Akhtar Hassan, Sessions Judge, Mianwali. convicted him under section 302, P. P. C. and sentenced him to transporta tion for life and ordered him to pay Rs. 5,000 as compensation under section 544‑A, Cr. P. C., vide his judgment passed on 30‑i0‑1972. He has come up in appeal.
2. According to the prosecution case in the F. I. R. on 12‑5‑71 at about 1 p.m. Muhammad Arif deceased went from his house in Mohalla Ghulam Ahmed, Kundian to ease himself in the nearby graveyard and when he reached near a sarkanda bush appellant appeared from the eastern side, suddenly pulled out a knife and delivered a blow on the right side of back of the chest of the deceased as a result of which the deceased fell on the ground and the appellant ran away towards the East. The incident was witnessed by Hayat Ahmad and Ghulam Shabbir P. Ws. who were present nearby. Oncoming to know of this Ghulam Ahmad P. W. and other persons reached the spot and removed the deceased in injured condition to the Civil Hospital, Kundian where the doctor referred the deceased to the District Headquarter Hospital Mianwali. After getting medico‑legal report and a ruqqa from the doctor, Ghulam Ahmad P. W. reached the Police Post, Kundian where his statement was recorded at 2‑30 p.m. the same day upon which formal F. I. R. was registered at Police Station, Saddar, Mianwali at 3‑30 p.m. the same day.
The motive given in the F. I. R. is that about 8 or 9 months earlier Muhammad Sadiq brother of the deceased and others had altercation with the appellant and his sister's son Muhammad in which Muhammad and his mother Mst. Gullai suffered grievous injuries as a result of which a case was registered against Muhammad Sadiq and five others who were challaned in Court for an offence under section 326, P. P. C.
After recording statement (Exh. P. A) of Ghulam Ahmad P. W. Riaz Hussain Shah, S. 1. (P. W. 14) who was then incharge of Police Post, Kundian after sending the statement to the Police Station, Saddar, Mianwali for registration of the case, reached the spot on the same day. He took into possession blood‑stained earth from the spot vide memo. Exh. P. F. On 14‑5‑1971 he arrested the appellant who led him to the recovery of blood stained knife from a sarkanda bush near the spot which was secured vide memo. Exh. P. G. He visited the District Headquarter Hospital. Mianwali, on 19‑5‑1971, on receipt of a ruqqa (Exh. P. 1) from the doctor that the deceased died. After preparing the injury statement and inquest report in the hospital he sent the dead body of Muhammad Arif for autopsy and secured his last worn clothes. He got prepared the site plan and challaned the appellant.
3. Dr. Muhammad Bashir (P. W. 1) who was then Medical Officer, Government Dispensary, Kundian, medically examined Muhammad Arif in injured condition on 12.5‑1971 at 1‑25 p.m. and found one injury on his person. It was an incised wound 2' x 1' depth penetrating into the abdomen, over the right side of front of lower part of chest along the anterior axillary line, 3 below the right nipple. On exploring the wound, it passed through ribs towards the liver. Patient was in shock and was immediately sent to the District Headquarter Hospital. Mianwali. The injury was caused with sharp penetrating weapon and was fresh.
4. Major Abdul Ghafoor (P. W. 2) who was posted as Medical Officer, in the District Headquarter Hospital Mianwali, conducted the post‑mortem examination on the dead body of Muhammad Arif deceased (aged about 25 years), on 19‑5‑1971 at 3‑45 p.m and found one injury on it. It was an incised (stitched and infected) wound on the right lower part of chest situated at the anterior axillary line and 3 ' below the right nipple. The wound was 2' in measurement obliquely placed between the 7th and 8th ribs. The head was not opened. On internal examination he found that 9th rib was cut whereas the 8th rib was partially cut, pleura was punctured on right side, the right lung was punctured at its lower lobe and in section was present, the peritoneum was found cut corresponding to the reflection upon liver, disphragm was seen cut in the direction of wound and the liver was found punctured in its right lobe. The stomach contained 12 ounces of water, small intestines contained secretion in traces. Large intestines con tained faecal matter and the bladder was empty. In the opinion of the doctor death resulted from shock and haemorrhage due to sharp‑edged weapon injury to the right lung and liver which was sufficient to cause death in the ordinary course of nature. The probable duration between injury and death was 7 to 8 days and that between death and post‑mortem examination was 4 hours.
5. At the trial prosecution examined 14 witnesses in all. Ghulam Ahmad complainant (P. W. 11) proved the F. I. R. and the motive while Hayat Ahmad (P. W. 12) and Ghulam Shabbir (P. W. 13) were examined as eye‑witnesses. The recoveries were proved by Shadhat Khan (P. W. 8) and Ata Ullah (P. W. 9) besides the Investigating Officer, Riaz Hussain Shah (P. W. 14). Other formal witnesses were also examined. They all supported the prosecution case. The statements of the two doctors before the Committing Magistrate were transferred to the Sessions record. According to the Serologist report earth recovered from the spot and knife recovered at the instance of the appellant were found stained with human blood.
6. The appellant pleaded not guilty to the charge. When examined under section 342, Cr. P. C. he denied recovery of the blood‑stained knife (Exh. P. 2) from him and attributed his false implication to the enmity of Ghulam Ahmad P. W. He stated that Ghulam Ahmad P. W. was beaten by uncle of the appellant about 7 or 8 years before the present occurrence. He further stated that Hayat Ahmad P. W. was cousin of the deceased in the second degree, their grandfathers being real brothers. He also stated that Mst. Jantan, mother of Ghulam Shabbir P. W. was paternal cousin of the mother of the deceased. He produced his school leaving certificate (Exh. D. C.) which gave the date of his birth as 1‑1‑1955. He also produced a copy of the pedigree‑table (Exh. D. D.) of Hayat Ahmad P. W. and led no other evidence in his defence.
7. The learned trial Judge found that Hayat Ahmad and Ghulam Shabbir P. Ws. witnessed the occurrence and their testimony was corro borated by the medical evidence and that the motive alleged by the prosecution was proved. He discarded the recovery of knife at the instance of the appellant. The defence plea did not find favour with the learned trial Judge because the same had not been taken to its logical conclusion. The learned counsel for the appellant has argued that the eye‑witnesses were chance witnesses who did not see the occurrence and the appellant had been convicted on account of enmity with Ghulam Ahmad P. W. He has further argued that the recovery of weapon of offence from the appellant and the motive alleged by the prosecution had not been proved. It was not proved that Mst. Gullai was related to the appellant. She had husband, sons and other near relatives and in their presence the appellant had no cause to avenge and vindicate. Finally be has argued that it was an unseen incident in which the deceased may have tried to commit sodomy. The learned counsel for the State has argued that the eye‑witnesses are neither related with the deceased nor they are inimical towards the appellant and their presence is not unnatural. Ghulam Ahmad P. W. is not a liar because he did not become an eye‑witness, the recovery of weapon from the appellant be believed and facts alleged for the motive are admitted by the defence.
8. I have read the entire evidence in the case and have considered it in the light of the contentions raised by the learned counsel for the parties. Muhammad Arif deceased suffered an incised wound 2" x 1' depth penetrat ing into the abdomen over the right side of the front of lower part of chest, on 12‑5‑1971 at 1 p.m. as a result of which he died in the hospital on 19‑5‑1971 at 1 a.m. He suffered that solitary injury at an uninhabited place in the suburb of Kundian town. According to the prosecution the deceased had gone there to case himself but 1 p.m. of tree day is not a usual time for evacuating. The eye‑witness Hayat Ahmad had also gone there to answer the call of nature at that odd hour when he witnessed the occurrence while the other eye‑witness Ghulam Shabbir deposed in the examination‑in‑chief that he was on his way to Mohallah Titanwala from his house for some private job and in cross‑examination deposed that he was going to attend a majlas in the imambara in that Mohallah. It was a month of May and it is doubtful if any imajlas in the mambara would be held at 1 p.m. in that month. The witness did not state the purpose in his examination‑in‑chief. There is no mention of F. I. R. of the purpose for which both the aforementioned witnesses were present at the place of occurrence. The house of Hayat Ahmad is 700/800 karams away from the place of occurrence while that of Ghulam Shabbir P. W. is at a distance of one mile from the spot. On the evidence on record I am not persuaded to believe that any of the two eye‑witnesses was present near about the spot and witnessed the occurrence.
Ghulam Ahmad P. W. is the complainant in this case. The deceased was son of the maternal uncle of this witness and both the witness and the deceased were coolies in the Railway Carriage Shop at Kundian. The deceased did not reside in the house of Ghulam Ahmad P. W. The parents and brothers of the deceased also lived in the same town of Kundian. It is not mentioned in the F. I. R. as to who informed Ghulam Ahmad P. W. of the incident although he deposed in Court that Hayat Abroad P. W. came running from the spot and told him. there is nothing to show why the father or brothers of the deceased did not come forward to lodge the F. I. R. Ghulam Ahmad P. W. went to the Police Post after obtaining medico‑legal report and a ruqqa from the doctor of Civil Hospital Kundian, the injured having already been sent from Kundian to the Civil Hospital. All this must have taken some time during which the father or brothers of the deceased must have come to know about it. His house is only 5 or 6 hundred karams away from the house of the deceased and the deceased had not gone to the graveyard in his presence. Both the eye‑witnesses are Railway employees like Ghulam Ahmad P. W. and the deceased. The defence has suggested relationship between both the eye‑witnesses, the deceased and the complainant. The attack on the deceased was abrupt and sudden in which only one blow was delivered and thereafter the accused ran away yet the eye‑witnesses deposed that they saw the very infliction of the injury to the deceased although no lalkara is alleged to have preceded infliction of the injury. Even if the two eye‑witnesses were present near about the spot at the time of occurrence they could not see the injury being inflicted and their testimony on that point shows their anxiety to prove the prosecution against the appellants. The testimony of the eye‑witnesses is not consistent and they have made improvements on material points. The presence of the two eye‑witnesses at the spot at the time of occurrence, having been disbelieved by me, their testimony cannot be believed to form basis for conviction of the appellant.
9. The prosecution evidence is that the appellant was arrested on 14‑5‑1971 and led to the recovery of blood‑stained knife from a sarkanda bush near about the place of occurrence. The recovery witnesses including the Investigating Officer have contradicted each other on the time of recovery. The learned trial Judge rightly discarded it. This shows that the investiga tion planted the knife on the appellant and there is no evidence on record to persuade me to believe the recovery of knife at the instance of the appellant.
10. The motive alleged by the prosecution is far‑fetched. Mst. Gullai and her son Muhammad had suffered injuries at the hands of Muhammad Sadiq brother of the deceased and other persons and the deceased did not participate in that incident. Again Mst. Gullai had 4 grown‑up sons, her husband and brothers of her husband were alive and had their sons. As such the appellant could not have any motive to cause injury to the deceased without any immediate cause which has not been alleged. The motive alleged by the prosecution does not stand proved. In the circumstances of the case and on the evidence on record it appears to be a case of unseen murder in which the appellant was implicated due to suspicion. The prosecution has not proved the guilt of the appellant beyond reasonable doubt.
11. As a result of the above discussion, the appeal is accepted, con viction and sentence passed by the trial Court are set aside and the appellant is acquitted.
Appeal allowed.