AHMAD Versus STATE

Ahmad, Khuda Bakhsh and Noor were tried by Rao Muhammad Hayat Khan, Additional Sessions Judge, Multan, under section 302/34, P. P. C. for the murder of Altaf Hussain. The said learned Judge by his judgment dated 20th November, 1976 convicted all the said three persons under the said section and sentenced them to undergo life imprisonment each and to pay a fine of Rs. 1,000 each or, in default, to further rigorous imprisonment for a period of one year. It was also ordered that the fine, if realised, shall be paid to the heirs of the deceased.

2. The brief facts of the case are that on 18th December, 1974 at about noon‑time, Altaf Hussain deceased with Ghulam Rasid P. W. 8, went to the dera of Allah Yar P. W. 7 to purchase a bullock. Having purchased the same the deceased with his companion was on his way to his home when Ahmad, Khuda Bakhsh and Noor accused, all armed with hatchets, emerged from the sugarcane field and challenged the deceased stating that they would not allow him to go alive. Ahmad accused inflicted a hatchet blow on the head of Altaf Hussain deceased, who fell down. Khuda Bakhsh then gave two hatchet blows on the head and face of the deceased. Noor accused also gave two hatchet blows on the left wrist and left arm of the deceased. Thereafter, Ahmad accused gave some more blows to the deceased who died at the spot. Nazar P. W. 9 and Muhammad Amin (given up P. W.), who were present in the nearby fields, witnessed the occurrence. They could not intervene as the accused were armed with hatchets. All the three accused then lifted the dead body of Altaf deceased and carried it to their bhaini. The motive for the crime was that the accused had suspected that Altaf deceased had illicit relations with Mst. Tasleem, wife of Ahmad accused. Ghulam Rasool P. W. 8 immediately proceeded to Police Station Alpa, where he lodged F.

1. R. Exh. P. A. at 3 p. in., which as recorded by Noor Muhammad A. S. I. P. W.

10. The said P office Officer immediately proceeded to the dhari of the accused, which was 8 miles away from the police station, and there at 4‑15 p. m., recovered the dead body of the deceased which was lying in a kholan where fodder was lying. The dead body was taken into possession vide memo Exh. P. K. All the accused who were present at the dhari were arrested by the same officer. Ahmad, Khuda Bakhsh and .Noor accused produced their respective blood‑stained hatchets P. 6, P. 9 and P. 12, which were taken into possession, vide, memos. Exhs. P.D., P.F. and s' 11. respectively. Likewise, the blood‑stained shirt P. 7 and blood‑stained chaddar P. 8 of Ahmad accused, blood‑stained shirt P. 10 and blood‑stained chaddar P. 11 of Khuda Bakhsh accused. and the blood‑stained shirt P. 13 and blood‑stained chaddar P. 14 of Noor accused, which these three accused had on their persons, were removed from their persons and taken into possession by the Police, vide memos. Exh. P.E., P. G. and P.I. respectively. In the evening the same day Allah Yar P W 7 produced the bullock (which lie had sold the same morning to the deceased) and blood‑stained rope P. 15 to the police, which was taken into possession, vide memo Exh. P. M. All the said recoveries were witnessed by Ghulam Hussain P.W. 6, Noor Muhammad A. S. I. P. W. 10 and Ramzan (given up P. W.).

3. On 19th December, 1974 at 3‑30 p. m. Dr. Ikramul Haq, M. S., Civil Hospital, Multan (P. W. 1) performed the post‑mortem examination on the dead body of Altaf deceased and found 10 gaping incised wounds on its head, face, neck, back of right forearm and left wrist, left hand and left thigh and knee. Incised injuries Nos. 1, 2, 3 and 5, which were on the head, face and neck and caused with a sharp‑edged cutting weapon, were held individually and collectively sufficient to cause death in the ordinary course of nature. Stomach was found full of semi‑digested solid food (approximate 8 ounces). The small and large intestines were found to contain chyme and faecal matter present. Time between injuries and death was opined as immediate and that between death and post‑mortem examination as 32 hours

4. After completing the necessary investigation and obtaining the reports from the Chemical Examiner and Serologist etc. the challan against the accused was sent to the Sessions Court.

5. At the trial, the prosecution produced Ghulam Rasool P. W. 8 to prove the motive, the said witness and Nazar P.W. 9 in support of the ocular account, Allah Yar P.W. 7 to prove the purchase of the bullock by Altaf deceased, Ghulam Hussain P. W. 6 and Noor Muhammad A.S.I. P.W. 10 to support the recoveries and Doctor Ikramul Haq (P.W. 1) to corroborate the medical testimony. All the accused denied the accusa tions levelled against them. Khuda Bakhsh and Noor accused in their statements under section 342, Cr. P. C. totally denied the occurrence and the recovery of the blood‑stained hatchets and clothes from their possession or person. Ahmad accused in his statement under section 342, Cr. P. C. also denied the prosecution version and the recoveries, but in answer to the question why the case had been initiated against him, he stated

"The case is false. The mother of Noora my co‑accused had died and all of us had gone to his house. It was still dark when I came to my house to put Bhoosa before my cattle. I found my wife and Altaf deceased in compromising position inside the Pallah and I lost my self‑control and picking up an axe which was lying there I inflicted injuries on Altaf deceased while my wife escaped."

6. The trial Judge relying upon the motive, the ocular account, the recoveries and the medical testimony convicted and sentenced all the three accused as stated in para. 1 above. Being aggrieved by the findings recorded against them, the said three accused preferred an appeal to the High Court against the said findings, which is now before me for disposal.

7. I have heard the arguments of the learned counsel for the appellants and the State and have also gone through the record. The evidence as regards the motive is furnished by Ghulam Rasool P. W.

8. The said witness stated that Ahmad appellant suspected that Altaf deceased had illicit connections with his wife Mst. Tasleem. The defence version as submitted by Ahmad appellant, is his statement under section 342. Cr. P. C., also supports Ghulam Rasool P. W. 8's evidence. The motive, therefore as suggested by the prosecution, stands adequately proved. The learned trial Judge accepted the story as regards the motive as alleged by prosecution and there is nothing in the evidence to suggest that the said finding is in any way was incorrect.

8. The ocular testimony in the case is provided by Ghulam Rasool P. W. and Nazar P. W.

9. Ghulam Rasool P. W. 8 submitted that on the day of incident at about 10‑30 or 10‑40‑ a.m. he accompanied Altaf deceased to the Dera of Allah Yar P. W.

7. There they purchased a bullock from Allah Yar P. W. 7 for Rs. 4,000. At about 11 a.m. or 12 noon when they were returning to the house of Altaf deceased and were on the path by the side of barseen field, all the three appellants armed with hatchets came out of the sugar‑cane field and Ahmad appellant shouted a lalkara that Altaf deceased would not he allowed to go alive as he suspected him of having illicit relations with his wife Mst. Tasleem. Ahmad appellant then gave a hatchet blow on the head of Altaf deceased, as a result of which he fell down. Khuda 13akhsh appellant then gave two hatchet blows on the head and face of the deceased. Noor appellant gave two hatchet blows on the left arm of the deceased. Thereafter, Ahmad accused gave some more blows with his hatchet to the deceased, whereupon Altaf deceased died at the Spot. Nazar P. W. 9 and Muhammad Amin (given up P. W.), who were on a round of their fields, witnessed the occurrence. Due to all the appellants being armed with hatchets, the witnesses could not intervene. The appellants thereafter removed the dead body of Altaf deceased from the spot to their bhaini. Nazar P. W. 9 also corroborat ed the said account. Ghulam Rasool P. W. 8 in his cross‑examination stated that Ahmad appellant had begun to suspect the liaison between the deceased and his wife 25 days before the occurrence. He also admitted that the mother of Noora appellant had died before the occurrence, but since he had no social . intercourse with the appellant he had not gone for condolence. He also admitted that seven years prior to the occurrence, Allah Yar, father of Altaf deceased, was attacked by the father of Noora appellant and others and he had reported the case to the Police, but he could not remember the names of all the persons whom he had involved in that case. He further admitted that since that time there had been enmity between them and the accused party. He admitted that this occurrence happened about 15 or 20 years back. He further admitted that 15 to 20 days before .the occurrence, the appellants had tried to assault Altaf deceased near the school which was close to the house of the appellants, but Altaf deceased being on horseback had made good his escape.. The witness also stated that the appellants had placed the dead body in a chaddar, that two of them had held the head side and the third had held the foot side and they carried the deceased in that manner to the pallak. When confronted with his F. I. R. and the statement made under section 164, Cr. P. C. and that .before the commit ting Magistrate, he admitted that it was nowhere stated therein that the appellants had carried the dead body of the deceased in a chaddar to the pallah. Nazar P. W. 9 in his cross‑examination admitted that Muhammad Amin (given up P. W.) owned Chah Lumberdarwala which was four acres to the west of the place of occurrence and that he was a tenant of the said Muhammad Amin (given up P. W.). He admitted that he could not remember the killa or square numbers of the fields in which he and Muhammad Amin (given‑up P. W.) were standing at the time of occurrence, but stated that the place was 2$ paces from the place of occurrence. He also stated that the appellants placed the dead body in a chaddar and then carried it to their dera. He also admitted that he did not state before the Police or the committing Magistrate that the deceased was carried in a chaddar by the appellants to their bhaini. Allah Yar P. W. 7 in his statement confirmed that Altaf deceased and Ghulam Rasool P. W . 8 had come to him to purchase the bullock, which he had sold to the deceased for Rs. 4,000, and that after about 20125 minutes they left his dera along with the bullock in the direction, of the deceased's house. He further submitted that the police summoned him in the evening and he produced the aforesaid bullock that had stayed back to his house together with the blood‑stained rope P. 15, which was taken into possession by the police officer, vide memo. Exh. P.M. In his cross‑examination he admitted that Altaf deceased had purchased the bullock on credit for Rs. 4,000 and that no writing was executed about the sale of the same, because prior to that sale the deceased had also purchased a buffalo from him in respect of which Ghulam Rasool P. W. 8 had arranged the bargain. Allah Yar P. W. 7 is related to the deceased as Hakam Bibi, the maternal‑aunt of Altaf deceased, is the wife of her brother Malah. However, relationship by itself cannot effect his testimony. In cross‑examination he stated that the deceased and Ghulam Rasool P. W. 8 carne to purchase the bullock from him at about I1 a. m., that they left with the bullock after about 20/25 minutes of the transaction in the direction of Altaf deceased's house, that he then immediately left for Salarwahan, that he returned to the spot after 3‑4 hours and saw that the bullock had returned and also learnt of the incident, which evidence clinches the matter as regards the time, namely, that the occurrence took place at about Dopaharwela and that Ghulam Rasool P. W. 8 was accompanying the deceased back to his dera, as alleged by the ‑prosecution. Altaf deceased and Ghulam Rasool P. W. 8 were returning from Killas Nos. 16 and 25 of Square No. 84. where the dera of Allah Yar P. W. 7 is situate, and proceeding two squares to the north of the place of occurrence to Chah Mallahwala, which according to Sadiq Masih P. W. 5, was the Chah where the house of Allah Yar father of Altaf deceased was situate. In these circumstances, both the deceased and Ghulam Rasool P. W. 8 had to travel through certain killas of Square No. 84 and their ambush in Killa No. 3 therefore stands properly explained. The presence of Ghulam Rasool P. W. 8, therefore, at the spot in Killa No. 3 at the time of incident cannot be disregarded. It cannot be denied that Muhammad Amin (given up P. W.) had land at Chah Lumbardarwala which was four killas to the West of the place of occurrence. In these circumstances Muhammad Amin (given up P. W.) and his tenant Nazar P. W. 9 were natural witnesses, as their land was very closeby, Ghulam Rasool P. W. 8, on his own showing. had enmity with the appellants. Ghulam Rasool P. W. 8 is the first cousin of the father of Altaf deceased and has admitted his enmity with the appellants. Nazar P. W. 9 is a tenant of Muhammad Amin (given up P. W.) and considering the fact that the latter is the son of the paternal aunt of the deceased, Nazar P. W. 9 cannot be stated to be a disinterested witness in view of the relationship of Muhammad Amin (given‑up P. W.) with the deceased. Noor Muhammad A. S. L. P. W. 10 in his cross- examination admitted that he did not find any trail ‑of blood between the pallah and the alleged place of occurrence. Further, both the eyewit nesses in their statements to the police and the Committing Magistrate, did not refer to the carrying of the dead body by the appellants in the chaddar from the place of occurrence to the pallah. The chaddar was introduced later to explain the absence of any trail of blood between the place of occurrence to the pallah, though perhaps the fact that the appellants had blood‑stained clothes on their persons, when arrested, was forgotten. However, it appears that there is some improvement in the ocular testi mony and considering that Ghulam Rasool P. W. 8 is related to the deceased and inimical to the appellants and Nazar P. W. 9 is a tenant of Muhammad Amin (given‑up P. W.), who is also related to the deceased, notwithstanding that presence at the spot being established, corroboration is required in the instant case and the ocular testimony by itself cannot be accepted to bring home the charge of guilt to the appellants.

9. The evidence as regards the recovery of the blood stained hatchets and clothes of the appellants is furnished by Ghulam Hussain P.W. 6 and Noor Muhammad A.S.I. P.W.

10. Ghulam Hussain P.W. 6 is a real brother of Nazar P.W.

9. He submitted that when the police came to the spot and visited the place where the dead body of Altaf deceased was lying in the pallah of bhoosa, all the three appellants were present near the dead body and they had hatchets in their hands. Noor Muhammad A.S.I. P.W. 10 also corroborated Ghulam Hussain P.W. 6 in that respect. Ghulam Hussain P. W. 6 admitted in his cross‑examination that he and Ghulam Rasool P.W. 8 were collaterals. He also admitted that from the pallah of bhoosa the dead body was carried to the place of occurrence and that the same was despatched by the Police Officer for post‑mortem examination the next morning at sunrise time. In the first instance, Ghulam Hussain P.W. 6 is the real brother of Nazar P.W. 9 and cannot be termed as an independent witness. Further, it seems strange that all the three appellants, with hatchets in their hands and blood‑stained clothes on their person, were waiting near, the dead body for the police to arrive and arrest them. The evidence does not inspire any confidence and must be rejected. Ghulam Hussain P.W 6. being the real brother of Nazar P.W. 9, who as already described is a partisan witness, it cannot be said that Ghulam Hussain P.W. 6 does not partake of the same character.

10. The medical testimony submitted by Dr. Ikramul Haque P. W. 1 now requires examination, but before I do so, it is necessary to first refer to the time of the incident as submitted by Ahmad appellant as stated by him in his statement under section 342, Cr. P.C. He stated that the mother of Noora, his co‑accused, had died and all of them had gone to his house. It was still dark when he came to his house to put bhoosa before his cattle, that he found his wife and Altaf deceased in a compromis ing position inside the pallah, that he lost his self‑control, that he picked up an axe which was lying there and that he inflicted blows on the deceased. This statement should show that Noora's mother had died some time much before sunrise when Ahmad appellant and others had gone to Noora's house, that it was still dark when Ahmad appellant returned to his house to put fodder to his cattle when he found the deceased in a compromising position with his wife and caused his death under grave and sudden provocation. Further, the other possibility that the occurrence took place much after sunset when it was dark, would also have to be taken into consideration, considering the fact that the statement of Ahmad appellant is not unequivocally clear about the time of occurrence. The doctor in his evidence stated that the time between the death and the post‑mortem of the deceased was about 32 hours, which places the death of the deceased earliest at about 7‑30 a.m. on 18th December 1974, which does not fit in with the early morning time before sunrise or the late evening time after sunset, as given by Ahmad appellant. Allowing for the marginal elasticity normally to be applied to the time given by the doctor in such cases, the time given by the prosecution fits in with the medical evidence. The doctor opined that the stomach of the deceased was full of semi‑digested solid food (approximating 8 ounces) and that the small and large intestines contained chyme and faecal matter. As regards the contents of the deceased's stomach, the doctor opined that the deceased had had his last meal two to three hours before his death. A normal meal is usually taken by villagers at about 9 a.m. in the morning and near sunset time in the evening in the mid‑winter months. Since the stomach of the deceased was full of semi‑digested solid food, the deceased died within two to three hours of his having taken ‑ his last meal. The deceased should have, therefore, died either between 1l to 12 noon near Dopaharwela or between 7 to 8 p.m. after sunset. The medical testimony agrees with the time of occurrence namely Dopaharwela, as given by the prosecution. It does not however, fit in with the time given by Ahmad appellant in his statement under section 342. Cr. P. C. 1f, according to Ahmad appellant's statement, the deceased had died before sunrise, he should have no solid semi‑digested food in his stomach and if he had died much after sunset, the doctor's assessment of time of occurrence (i.e. 32 hours prior to the post‑mortem) and the admitted recovery of the dead body in the afternoon from the khola of Ahmad appellant, belies the version that the occurrence could have taken place two to three hours after sunset. The medical testimony, therefore, corroborates the story of the prosecution that the occurrence took place at about Dopaharwela. The number and nature of injuries found on the deceased also support the prosecution case. However, everything said and done, the corroborative value of medical witness is generally specious, if not deceptive, for e though it may tend to support the prosecution case, one cannot definitely say that all the injuries were caused by three persons only and could not, have been caused by one or two or say four persons. Since the medical testimony leaves some probabilities open, some further confirmatory circumstance, however slight in value, is required in respect of each appellant, before it can be fairly said that each one of them participated in the occurrence.

11. The only effective confirmatory circumstance that is available on record in respect of the appellants is the statement of Ahmad appellant, who admitted his guilt, though in different circumstance. His statement supplies the necessary confirmatory circumstance so far as he is concerned, though not as regards the other two appellants. His statement together with the medical testimony, is good corroboration of the ocular testimony to show his participation.

12. In view of the above, it is clear that the ocular testimony duly corroborated by the medical testimony and Ahmad appellant's own admission brings home the charge of guilty to Ahmad appellant under section 302, P.P.C. There is no corroboration regarding the other two appellants. They, therefore, are entitled :o the benefit of doubt and deserve to be acquitted.

13. As regards the defence plea of Ahmad appellant, as pleaded by him in his statement under section 342, Cr. P.C. much had been set about it in para. 10 above dealing with the medical testimony, which shows that the same is untrue and cannot be believed. I need not labour on this point again, as the time of occurrence as given by this appellant stands belied by the medical testimony, which is sufficient to show that the plea is false and should not be believed. The same was rightly rejected by the learned trial Judge.

14. In view of the foregoing reasons, the appeal of Khuda Bakhsh and Noor appellants is accepted and their conviction and sentences are set aside. They are on bail and their bail bonds shall stand discharged. The fines, if realised, shall be refunded to them. However, the appeal of Ahmad appellant is dismissed and his conviction under section 302, P. P. C. is maintained. He is on bail. His bail is cancelled. He is ordered to be taken into custody and sent to Jail to serve the remaining portion of his sentence..

Appeal partly accepted.