GULZAR HUSSAIN Versus STATE
This appeal is directed against the judgment of learned Sessions Judge, Sargodha, dated 13th March, 1980, whereby Gulzar Hussain and Afsar Ali appellants were convicted under sections 302/34 and 404, 34, P: P: C. Both the appellants were sentenced to imprisonment for life under section 302/34, P. P. C. and to rigorous imprisonment for one year under section 404/34, P. P. C. Both the sentences were ordered to run concurrently.
2. According to the prosecution version, Gulzar Hussain and Afsar Ali appellants committed the murder of their partner in business, named, Gul Muhammad alias Gulla, on the night between 31st August, 1979 and Ist September, 1979 and after committing his murder, took away bicycle P. 7, which the deceased had taken on hire from Muhammad Wahid (P. W: 7). On 1st September, 1979, at about 5.30 a.m., Muhammad Nawaz Lambardar of Chak No. 100/N. B. was proceeding towards Sargodha, on bicycle. He noticed the dead body of an unknown person in a pool of blood near the hills situated in the area of Chak No. 100/N. B. He sent for Ghulam Rasool Chawkidar and leaving him with the dead body, reached Police Station, Sadar Sargodha, at 7-30 a. m. and lodged the F. I. R. which was recorded by Muhammad Akram, A. S. 1. After recording the F. I. R., the A. S. I. reached the spot and prepared the injury statement and inquest report of the body of an unknown person and sent it for post mortem examination. He collected blood-stained earth from the spot and sealed it into a parcel. He recovered an empty cartridge P. 4 and sealed it into a parcel. He took into possession two baskets (tokras) and a pair of hawai chappal from near the dead body. Fateh Muhammad constable brought back the last worn clothes of the deceased P. I to P.
3. The clothes were stained with blood, which were taken into possession. The parcels were sent to the Moharrir Head Constable for safe custody. The parcels were later sent to the office of Chemical Examiner and Forensic Science Laboratory,
On 5th October, 1979, the two appellants met Dost Muhammad VP W. 12) at his house situated in Istiqlalabad Colony, Sargodha, where Bakhsha (P. W. 13) was also present. Both the appellants confessed to have murdered Ghulam Muhammad deceased. Afsar appellant informed the said two witnesses that the deceased was killed as he was suspected of having illicit relations with his wife. Dost Muhammad and Bakhsha P. Ws. pro duced the two appellants before the A. S. I. the same day, who arrested them. Afsar appellant, while in police custody, produced blood-stained knife P. 1, his own bicycle P. 10 and his own blood-stained shalwar P. 12 and shirt P. 13 from his house. The knife was sealed into a parcel. The same day, Gulzar Hussain appellant, while in police custody, produced revolver P. 14; three live cartridges P. 15/1-3 and a bicycle P. 7 of the deceased, which were taken into possession. The revolver was sealed into a -parcel. The parcels were delivered to the Moharrir. Head Constable. On 22nd October, 1979, the A. S. I. took into possession register P. 8 and a, photostat copy of receipt P. 9 about the purchase of bicycle vide memo. Exh. P. J. The challan was submitted in Court against the two appellants after the investigation was completed.
4. Before I touch the other merits of the case, I would like to point out that the prosecution did not bring on record the material evidence pertaining to the' identity of the dead body. On examining the case diary, I found that six photographs of the dead body were taken, which were produced by Fateh Muhammad Constable before the A. S. I., and these photographs were identified by Mst. Bakhan, sister and Fateh Sher brother of the deceased. The photographs were neither placed on the record nor the photographer,. Fateh Muhammad constable, Mst. Bakhan and Fateh Sher were examined on this material aspect of the case. It was clearly a negligence on the part of the prosecution, which could not be allowed to go unnoticed.
The prosecution, however, by producing other relevant evidence, succeeded in proving that the dead body was that of Gul Muhammad deceased.
5. The prosecution examined Muhammad Siddiq (P.W. 10) and Muhammad Malek as eye-witnesses of this case, but both of them did not support the case and they were allowed to be cross-examined by the learned P. P.
6. The prosecution case rests on circumstantial evidence. In the absence of the ocular evidence, an accused person can be convicted if the prosecution succeeds in proving his guilt through circumstantial evidence. A In the instant case, the prosecution examined Dost Muhammad (P.W. 12), Bakhsha (P.W. 13), Mst. Bakhan (P.W. 14) and Fateh Sher (P.W 15) in order to prove the motive. It was brought through the evidence furnished by Mst. Bakhan that the two appellants had come on a bicycle and took along Gulla 'deceased for the purchase of livestock and the deceased had taken his bicycle of red colour, which he had hired, alongwith a basket. The deceased had borrowed Rs. 10 from his sister Mst. Bakhan for replacing the tube of his bicycle. The evidence of Muhammad Arshad (P. W. 9) was .to the effect that six months ago, at peshewela. the deceased came to his- shop accompanied by the two appellants and the deceased told him to replace the tube of his bicycle of red colour, and he did so and received Rs. 10 leaving Rs. 2 as balance to be paid by the deceased. The deceased had borrowed one basket from Muhammad Ameer (P.W. 8) in order to carry a head of livestock. The deceased was accompanied by two persons at that time. Dost Muhammad (P. W. 12) and Bakhsha (P.W. 13) were examined on the point of extra-judicial confession made by the appel lants: They further proved the various recoveries referred to above made at the instance of the two appellants. Bicycle P 7, basket P 5/1 blood stained clothes and a chappal of the deceased were identified by Mst. Bakhan and Fateh Sher. lVfuhammad Wahid (P.W. 7) stated that the deceased had hired bicycle P. 7 from him on 2nd July, 1979 and he made its entry in register P. 8 at page 126 and the bicycle was of red colour. Muhammad Ameer (P. W. 8) deposed that the deceased had borrowed basket P. 5/1 in order to carry a head of livestock. Muhammad Arshad .stated that the deceased had brought bicycle P. 7 of red colour for the replacement of tube and he replaced it and charged Rs. 12. - The deceased paid him Rs. 10 and he had yet to pay Rs.
2. All these pieces of evidence read in juxtaposition established beyond doubt that the dead body was that of Gul Muhammad alias Gulla deceased.
7. Dost Muhammad and Bakhsha P.Ws., who deposed about the extra-judicial confession of the appellants and the recoveries referred to above had absolutely no motive against the appellants to make false state ments. Both of them were not under police influence. There was not an iota of evidence to indicate that they were stock witnesses of the police. Both of them made consistent statements and fully corroborated each other. They made confidence inspiring statements, Since there was no material to suggest that they had made incorrect statements, I place reliance on the testimony of the said witnesses.
8. The deceased lived in the house of his sister Mst. Bakhan in village Chaukera, The two appellants went there about six months ago at 1.00 p.m. and took along the deceased for the purchase of livestock. The deceased went on his bicycle-of red colour after tying a basket P. 5/1 on the bicycle. He borrowed Rs. 10 from his sister. Mst. Bakhan, while appearing in Court, stated that the two appellants took along the deceased. . She further stated that ten/eleven days prior to the departure of the deceased, she was told by the deceased that Afsar appellant got a suspicion against him of having illicit relations with his wife. Fateh Sher corroborated Mst. Bakhan by stating that the two appellants took away the deceased in his presence and in the presence of his sister Mst. Bakhan and the deceased thereafter did not return. He further stated that the deceased bad gone on his bicycle with a basket tied over it. He went on to say that he met Ameer P. W. while he was returning to his Chak after his stay in the house of his sister for two days and Ameer told him that the deceased had borrowed a basket from .him two days ago. He further stated that he noticed police and several persons near the hills in the area of Chak No. 100/N. B. and he identified clothes P. 1 to P. 3, chappal P. 6/1-2 and baskets P. 5/ 1-2 as belong ing to the deceased. He further deposed about the motive of the case. Both the sister and brother had no malice against the two appellants and they had no axe to grind. There was no reason to disbelieve the evidence of Mst. Bakhan and Fateh Sher.
Muhammad Wahid (P. W. 7) produced documentary evidence to show that the deceased had taken bicycle on hire from him and its entry had been duly made on 2nd July, 1979 in register P. 8 at-page 126. This piece of evidence established beyond doubt that bicycle P7 belonged to Muhammad Wahid and it was taken by the deceased on hire. This bicycle w subsequently recovered from the possession of Gulzar appellant. It was material piece of evidence, which connected Gulzar appellant with the com mission of the murder.
Muhammad Ameer did not support the prosecution case as regards the identity of the two appellants. He simply stated that the deceased had come to his dera accompanied by two persons and borrowed basket P. 5/1 from him. His statement, this much established that basket P. 5/1 belonged to him and it was borrowed by the deceased, which was found lying near the dead body. His evidence established the identity of the deceased.
Muhammad Arshad (P. W. 9) replaced the tube in bicycle P. 7 of red colour. He stated that the two appellants accompanied the deceased at that time. This witness was absolutely disinterested anal I have no reason to discard his statement.
9. There was another material piece of evidence against Gulzar appellant. The police had recovered one empty cartridge from the spot, on 1st September, 1979 and it was sealed into a parcel vide memo. Exh. P.G. The memo. was prepared by Muhammad Akram, A.S.I.. He handed over this sealed parcel to Nazar Muhammad, Muharrir Head Constable, on 5th September, 1979. The Moharrir Head Constable sent this parcel to the Fire-arms. Examiner, on 7th September, 1979 through Fateh Muhammad, F.C. It was stated by Fateh Muhammad F.C. (P.W. 3) that he delivered one parcel intact in the Office of Fire-arms Expert after receiving it from Moharrir Head Constable, on 7th September, 1979. The appellants were arrested on 5th October, 1979. The parcel of empty cartridge had been delivered in the Office of Forensic Science Laboratory about a month prior to the arrest of Gulzar appellant. Report of Fire arms Examiner Exh. P.S. proved that the empty cartridge recovered from the spot had been fired from revolver P. 14, which had been recovered from the possession of Gulzar appellant.
10. Afsar appellant had produced blood-stained knife P. 11 and his own blood-stained shalwar P. 12 and shirt P.
13. Sealed parcels of these articles were prepared and sent to the Chemical Examiner. The reports of Chemical Examiner P.O.1 and Serologist P.T. proved that the knife P. 11 recovered from. Afsar appellant was stained with human blood. It clearly connected Afsar appellant with the commission of murder.
11. The deceased had three incised wounds and one fire-arm wound besides ten multiple abrasions. It was clear from the medical evidence that the deceased was fired at and was also caused, injuries with sharpedged weapon. The revolver recovered from Gulzar appellant and blood-stained knife recovered from Afsar appellant were connected with the commission of murder. The medical evidence was another piece of evidence going against the two appellants. l2. I have reason to believe that two appellants had motive to commit the murder of Gul Muhammad as Afsar appellant suspected the deceased of having illicit relations with his wife. Since the two appellants and the deceased were partners in business in livestock, the deceased had the occasion to pay frequent visits to the house of Afsar appellant.
13. The case of the appellants was that of bare denial. They attributed the case to party faction. They further stated that they were kept in illegal custody by the police for about one month. They did not lead any evidence in defence. The contentions of the learned counsel for the appellants, that there was no ocular evidence; that the dead body had not been identified; that the two eye-witnesses did not support the prosecution version, that the evidence of extra-judicial confession was not reliable; that the recoveries were not proved through the evidence of disinterested persons, have already been met with in the earlier portions of the judgment. It appears that Arshad P.W. erred bona fide by stating that he saw the two appellants when he appeared before the police three days after the visit of the deceased to his shop. None from the other fifteen witnesses stated a word that the two appellants had been arrested by the police three days after the occurrence. The police did not require the presence of the two appellants for one month. If they wanted to plant false recoveries on the two appellants, they could do so in a couple of days.
14. The judgment of the learned Sessions Judge was commented upon adversely bur I do not find any fault in the impugned judgment. It was a well-reasoned judgment and the entire evidence had been thoroughly discussed and a correct conclusion arrived at.
The case was fully proved against the two appellants through disinterested circumstantial evidence. The appeal is without any merits and it is dismissed.
Appeal dismissed.