RASHID AHMAD Versus STATE

The eleven appellants, namely, Rashid Ahmad, Ahmad Bakhsh, Abdul Hameed son of Allah Bakhsh, Abdul Razzaq, Abdul Majid son of Abdul Ghafoor, Pir Bakhsh, Khuda Bakhsh, Ghulam Muhammad, Abdul Rahman and Ahmad Yar, all Mehar by caste and residents of Mud Adil, District Rahimyar Khan, were tried alongwith three others, namely, Yaseen, Abdul Majid son of Allah Bakhsh and Abdul Karim (since acquitted) by Additional Sessions Judge, Rahimyar Khan, for rioting and for murdering Habib Ullah and Sher Muhammad. Learned trial Court while acquitting the last mentioned three persons convicted all the appellants under section 302/149, P. P. C. for the murder of Habib Ullah and sentenced them to imprisonment for life and a fine of Rs. 500 each in default whereof to undergo 6 months' rigorous imprisonment. They were further convicted under section 302/149, P. P. C. for committing the murder of Sher Muhammad and sentenced to life imprisonment and fine of Rs. 500 each, in default whereof to undergo 6 months' rigorous imprisonment, and under section 148, P. P. C. to 2 years' rigorous imprisonment. The fine, if recovered, was ordered to be paid to the heirs of the two deceased persons. All the sentences were, however, ordered to run concurrently. The convicts have filed joint appeal Criminal Appeal No. 227/1977/BWP) against their convictions and sentences.

2. The incident took place on 22nd June, 1976 at 1 p.m., in the fields of village Mud Adil at a distance of 7 miles from Police Station Zahir Peer which was reported by Muhammad Akram (P. W. 5) vide complaint Exh. P. A. A. sent to the Police Station through Abdul Malik (P. W. 8) on the basis of which S. I. Bashir Ahmad (P. W. 10) drew up formal F. I. R. Exh. P. C. C. at 3 p.m., the same day.

3. Muhammad Akram (P. W. 5), the first informant, is the husband of sister of the two deceased persons, namely, Habib Ullah and Sher Muhammad. In the year 1974 one Jindwadda, brother of Ahmad Bakhsh, Pir Bakhsh and Khuda Bakhsh, appellants, was murdered wherein besides others the two deceased persons and Muhammad Akram (P. W. 5) were challaned on the report of aforementioned Ahmad Bakhsh. During the days of occurrence, all the accused persons in that case were on bail and Ahmad Bakhsh, appellant, moved application for cancellation of their bail. On 21st June, 1976 Muhammad Akram (P. W. 5) after appearing in the Court of Sessions Judge, Rahimyar Khan, in connection with application for cancellation of their bail, accompanied Habib Ullah and Sher Muhammad to their place at their request for settling bargain of land with Allah Wasaya Galija who intended to purchase land of the deceased persons.

4. On 22nd June, 1976 at 9/10 a.m., Sher Muhammad, Habib Ullah and Muhammad Akram went to the place of Allah Wassaya Galija for finalizing the bargain. They discussed about the bargain but it did not materialise and they started for the back journey at 1 p.m. On the way Muhammad Akram lagged behind for he sat for urination and Habib Ullah and Sher Muhammad went ahead for about an Acre's distance when all of a sudden the 11 appellants all armed with hatchets accompanied by the 3 acquitted co-accused who were armed with sticks emerged from the nearby Jantar field raising Lalkaras. They encircled both Habib Ullah and Sher Muhammad. Ahmad Bakhsh, appellant, opened attack giving first hatchet blow on the head of Habib Ullah while Pir Bakhsh, appellant, gave the second blow on his neck as a result whereof he fell down. Ghulam Muhammad, appellant, gave a hatchet blow on the head of Sher Muhammad and Ahmad Yar appellant inflicted hatchet blow on his neck and due to these injuries he, too, fell down. Then all the appellants gave further blows to both Habib Ullah and Sher Muhammad. Muhammad Akram (P. W. 5) raised alarm which attracted Allah Jiwaya son of Gul Muhammad and Allah Diwaya son of Rasool Bakhsh who at that time were cutting Jantar in a nearby field. They also witnessed the occurrence. Having accomplished their job the appellants decamped. Both Habib Ullah and Sher Muhammad succumbed to their injuries then and there. Muhammad Akram (P.W. 5) sent written complaint to Police Station Zahir Peer and the case was registered.

5. After registering the case S. I. Bashir Ahmad (P. W. 10) reached the spot. He prepared injury statement Exh. P. B. and inquest report Exh. P. C. of Habib Ullah deceased and injury statement Exh. P. E. and inquest report Exh. P. F. of Sher Muhammad deceased and despatched both the dead bodies for post-mortem examination under the escort of Constable Ahmad Khan (P. W. 2). He also collected blood-stained earth from two places where dead bodies of the two deceased were lying.

6. On 23rd June, 1976 the SA., arrested Rashid Ahmad, Abdul Hameed, Ahmad Bakhsh and Abdul Razzaq, appellants, who got recovered blood-stained hatchets P. 11, P. 1, P. 13 and P. 12, respectively which were seized and secured in separate sealed parcels vide memos. Exhs. P. N., P. M., P. Q. and P. O., respectively. On 28th June, 1976, he arrested Pir Bakhsh, Khuda Bakhsh, Abdul Hameed son of Abdul Ghafoor and Abdul Majeed son of Abdul Ghafoor, appellants, and Yaseen, Abdul Karim and Abdul Majeed son of Allah Bakhsh (since acquitted), who led to the recovery of blood-stained hatchets P. 14, P. 16, P. 17, P. 18, P. 22, P. 20, and P. 21 separately which were sealed and seized through memos. Exhs. P. R., P. T., P. U., P. V, P. Z, P. X. and P. Y., respectively. On 2nd July, 1976 he arrested Ghulam Muhammad and Abdul Rahman, appellants, who led to the recovery of blood-stained hatchets P. 15 and P. 19 which were sealed and seized through memos. Exhs. P. S. and P. W. On 29th July, 1976 he arrested Ahmad Yar, appellant, who led to the recovery of blood-stained hatchet P. 23 which was sealed and seized through memo. Exh. P. B. B. All the aforementioned recovery memos. except Exh. P. B. B. were attested by Ghulam Qadir P. W. (given up) and Rahim Bakhsh (P. W. 4) besides the Investigating Officer S. I. Bashir Ahmad (P. W. 10) whereas Exh. P. B. B. was attested by Allah Diwaya (P. W. 6) and Abdul Malik (P. W. 8) besides S. I. Bashir Ahmad (P. W. 10).

7. The Chemical Examiner's reports Exhs. P. D. D. and P. E. E. revealed that all the hatchets recovered from the appellants as well as the earth collected from the spot were stained with blood which was found to be of human origin by Serologist vide reports Exh. P. F. F, and P. G. G. After completing the usual investigation, the case was put in Court for trial.

8. Dr. Salah-ud-Din (P. W. 1) had conducted the autopsy on the dead body of Habib Ullah on 23rd June, 1976 and noted the following injuries:-

(1) An incised wound 12" on the middle of the head. The occipital bone alongwith part of parietal bone completely cut and separated from the head and brain matter was completedly damaged.

(2) An incised wound 6" x 2' x vertebra deep on the back of the neck. The vertebral column and spinal cord was cut.

(3) An incised wound 4" x 1" x bone deep over the left shoulder. Scapula was cut.

(4) An incised wound 2" x " x muscle deep on the left shoulder below injury No. 3.

(5) An incised wound 2" x x skin deep on the left shoulder on the posterior axillary fold.

(6) An incised wound 1 " x " x skin deep on the left shoulder below injury .No. 3.

(7) An incised wound 5' x 2" x muscle deep on the right shoulder.

(8) An incised wound 6" x 2" x muscle deep on the right shoulder below injury No. 7.

(9) An incised wound 7" x 5" x muscle deep on the middle of the back.

(10) An incised wound 4" x 2" x muscle deep on the middle of the back 2" below injury No. 9.

(11) An incised wound 5" x 2 " x bone deep on the posterior side of the left elbow. Head of the radius and lower end of the humorous was cut.

In the opinion of the doctor injures Nos. 1 and 2 were fatal. The time between injuries and death was immediate and between death and post -mortem was 20 to 30 hours.

9. On the same day, the same doctor conducted autopsy on the dead body of Sher Muhammad deceased and noted the following injuries:-

(1) An incised wound over the back of the head starting from the left ear to the right ear. The parietal bone on both sides and occipital bone completely cut and brain matter was badly damaged and cut.

(2) An incised wound 2" x " x " on the right shoulder.

(3) One bruise 3" x 1" on the middle of the right side of the back.

(4) An incised wound 3" x " x " on the middle of the left side of back.

(5) An incised wound 4" x 1" x bone deep on the upper 1/3 rd of the left forearm and radius was cut.

(6) An incised wound 1" x " x " on the right cubital fassae.

(7) An incised wound 1 " x " x " on the right wrist.

(8) An incised wound 5" x " x skin deep on middle of the posterior side of the right leg.

(9) One bruise 3" x 1" on the left buttock.

In the opinion of the doctor death had occurred due to injury No. 1 which damaged the brain extensively and was sufficient to cause death in the ordinary course of nature. Time elapsed between injuries and death was immediate and between death and post-mortem examination 20 to 30 hours.

10. At the trial the prosecution examined as many as 10 witnesses, of whom Muhammad Akram (P W. 5) and Allah Diwaya (P. W. 6) stated about the incident, Rahim Bakhsh (P. W. 4) and S. I. Bashir Ahmad (P. W. 10) narrated about the incriminating recoveries while Dr. Salah-ud -Din (P. W. 1) proved that both Habib Ullah and Sher Muhammad had died of violence.

11. The appellants' case is of denial simpliciter. In reply to the question, "Why this case against you?", all of them stated that they have been implicated falsely because their relative Jindwadda was murdered and Ahmad Bakhsh, appellant, lodged F. I. R. against Muhammad Akram first informant and the two deceased besides others, who were released on trail and Ahmad Bakhsh moved application for cancelling their bail. They further stated that both the deceased were smugglers and had many enemies and were murdered by some unknown persons and that Muhammad Akram had involves) them in this case to save his skin from Jindaddat murder case. No defence evidence was, however, produced. Having accepted the ocular evidence, the motive and partly the incriminating recoveries, learned trial Judge found the appellants guilty and sentenced them as mentioned above.

12. I have heard learned counsel for the appellants as well as for the State assisted by learned counsel for the complainant and perused the record with their assistance.

13. It is argued on behalf of the appellants that learned trial Court has erred in believing the recovery witnesses, namely, Rahim Bakhsh (P. W. 4) and S. I. Bashir Ahmad (P. W. 10) qua Abdul Hamid, Abdul Majid, Rashid Ahmad and Abdul Razzaq, appellants, as they have been disbelieved qua other appellants on the same point. The eye-witnesses apart from being highly interested are chance witnesses who lived miles away from the scene of occurrence and, therefore, it is not safe to rely on their testimony without independent corroboration. On the other hand, learned counsel for the complainant argued that it is a day time occurrence wherein F. I. R. was lodged with promptitude precisely giving role played by each accused which excluded possibility of false implication. Further argued that the testimony of Muhammad Akram and Allah Diwaya P. Ws. cannot be discarded merely because they are relations of the deceased for it is not an indispensable rule that in each case corroboration of interested witnesses must be insisted upon. He pointed out that evidence of motive and incriminating recoveries provide necessary corroboration if at all the same was needed in this case.

14. Admittedly, Muhammad Akram P. W. is husband of the sister of both the deceased and Allah Diwaya P. W's. real sister is married to Rahim Bakhsh (P. W. 4) who is the real brother of aforesaid Muhammad Akram. Both the deceased and Muhammad Akram P. W. were facing charge of murdering Jindwadda, a close relative of the appellants and they were on bail in that case when this occurrence took place. Rather a day before this incident they appeared in Court, in connection with application moved by Ahmad Bakhsh praying for cancellation of their bail. So it is obvious that the parties were at daggers drawn and there existed acute enmity between them prior to the present occurrence.

15. Muhammad Akram P. W., brother-in-law of the two deceased, conceded that he resided in village Chachra about 3 miles away from the place of occurrence. He stayed with the deceased on the night preceding fateful day. On the following day Muhammad Akram P. W. went to the house of Allah Wasaya Galija in the company of the two deceased for settling bargain of the land of the deceased, which did not materialise. At mid-day they were returning home but were attacked in the way by the appellants. Allah Diwaya (P. W. 6) admitted that he is cart-man by profession and used to ply his cart in Chachra town 3 miles away from the scene. When suggested that he and his father permanently resided in Basti Malhar of village Chachra and that his father's name was entered as a voter in the electoral roll of that Basti, be replied in the negative, but his father Rasool Bakhsh (P. W. 7) frankly admitted saying that he was not allowed to cast his vote in Basti Mud Adil, therefore, he went to Chachra for exercising his right of franchise but he could not do so for he reached there after the polling time. As the name of Allah Diwaya's father is entered in the electoral roll of Chachra and also ordinary place of business is Chachra, it follows, therefore, that he was not resident of Mud Adil in the days of occurrence. Both Muhammad Akram and Allah Diwaya P. Ws. cannot, therefore, be ordinarily expected to be present at or around the place of occurrence in village Mud Adil at the relevant time. However, each of them has stated particular reason of his presence at the spot which needs close scrutiny.

15-A. Muhammad Akram P. W. claims to have stayed at deceased's house on the night between 21st/22nd June, 1976 and 22nd June, 1976 he went in the company of the two deceased to the place of Allah Wasaya Galija for settling bargain of land but despite deliberations it did not materialise and while returning home at mid-day, they, were attacked by the appellants. The question, whether the deceased and the first informant Muhammad Akram had really gone to Allah Wasaya Galija on the day of occurrence is of great importance. In this connection, Allah Wasaya Galija was the proper person to testify about this fact but Allah Wasaya Galija despite having been cited as a prosecution-witness was withheld which leads to the inference that had he appeared in Court he would have not supported the prosecution story. Learned Sessions Judge while believing presence of Muhammad Akram P. W. at the spot observed that the deceased persons took him alongwith them for they needed a literate person for settling the bargain and for that matter Muhammad Akram P. W., brother-in-law of the deceased, was selected to help them in preparing relevant document expected to be executed at that time. But it is nobody's case. Even Muhammad Akram has not stated that he accompanied the deceased for this purpose, therefore, this finding of the learned trial Judge being purely conjectural must be ignored. There is nothing on record that Muhammad Akram had relations of special kind with Allah Wasaya Galija whom he had gone to persuade for purchasing the land of the deceased. It appears to me that story of bargain of land and visit to Allah Wasaya Galija's place has been introduced just for creating an excuse for the presence of Muhammad Akram at the relevant time. I doubt the presence of this witness at the time of occurrence for yet another very important reason, that is, supposing it were the appellants who attacked and killed Habib Ullah and Sher Muhammad in order to avenge the murder of Jindwadda, their close relative, then there was no earthly reason for them to spare Muhammad Akram if he was anywhere at or around the place of occurrence for he was also named among the murderers of Jindwadda and was challaned and bailed out alongwith Habib Ullah and Sher Muhammad in that case.

16. The other eye-witness is Allah Diwaya P. W. is nephew of deceased who alongwith Allah Jiwaya P. W. 9 (given -up) was allegedly cutting Jantar in the field of the deceased and hearing alarm went to the place and saw the occurrence. He admitted that he used to ply a horse-driven cart in Chachra 3 miles away from the scene of offence. It is commonly known that cart-men get business usually during the day and collect fodder for their animals towards fage-end of the day. It is not therefore probable that he was cutting Jantar (fodder) for his horse at noon time near the place of occurrence. Allah Jiwaya P. W. too felt shy of appearing in Court to support him on the point. The witness admitted that he had not shown to the draftsman the place where he heard alarm and where he stood during the occurrence and witnessed it. The Investi gating Officer did not see any sickle lying there either. The Investigating Officer found the two dead bodies lying 20 Karams apart from each other. It suggests that on being surprised both the victims ran in different directions and the assailants whosoever they were formed two parties and chased them and by overtaking them killed them. To the contrary the eye-witnesses stated that at first one of the deceased was done to death by all the assailants and then they chased the other and killed him. Had it been so then during the time one was being killed the other must have run far beyond a distance of 20 Karams because each of the victims suffered many injuries.

17. Since I have found the ocular evidence unreliable, the evidence of motive and incriminating recoveries becomes inconsequential. Even otherwise the recovery evidence is worthless. Rahim Bakhsh P. W. is the sole recovery witness who is brother of Muhammad Akram P. W's wife. He has not been believed by the trial Court qua recoveries effected from Pir Bakhsh, Khuda Bakhsh, Rashid Ahmad, Abdul Majeed, Abdul Hameed and Abdul Rahman, appellants. It is, therefore, not safe to believe him qua other appellants, namely, Abdul Hameed son of Allah Bakhsh, Rashid Ahmad and Ahmad Yar, also. Again, in his cross- examination the witness admitted that aforesaid 4 appellants jointly led to the recovery of their hatchets which is inadmissible and the learned Sessions Judge erred in law by relying upon this piece of evidence.

18. The F. I. R. Exh. P. C. C. relied upon as having been lodged with promptitude is also not free from doubt. It is in the evidence that Muhammad Akram started writing application Exh. P. A. A. at 2/2.15 p.m. and gave to Abdul Malik (P. W. 8) for taking it to the Police Station at 2.30 p.m., and formal F. I. R. on its basis was registered at 3 p.m., which shows that Abdul Malik reached the Police Station within half an hour from the spot but the Station House Officer reached the spot at 5.30 p.m., that is, that he covered the same distance in 2 hours. Abdul Malik P. W, stated, that he took the complaint Exh. P. A. A. to the Police Station in a rolled form. I have carefully examined this document which does not bear any wrinkle or sign of fold. It is astonishing that the complainant had carried fool-scape paper Exh. P. A. A. for 7 miles without folding it. Again Rahim Bakhsh (P. W. 4), real brother of Muhammad Akram, first informant, stated that he learnt about the occurrence at 1 p.m. in his house in village Chachra which is admittedly 3 miles away from the place of occurrence. He further stated that he reached the spot at 2.30 p.m. and found the police already present there. It means that the prosecution's claim that the F. I. R. was drawn up at 3 p.m. at Police Station Zahir Peer (7 miles away from the spot) is simply false and unbelievable. In the circumstances, I feel sanguine that the occurrence had taken place much earlier to 1 p.m. and also the F. l: R. was prepared at the spot, naturally after deliberations and consultations. The reason for attributing specific and fatal injuries of the deceased persons to Ahmad Bakhsh, Pir Bakhsh and Khuda Bakhsh, appellants, is that they are real brothers of Jindwadda deceased and Ahmad Bakhsh, appellant, is complainant in Jindwadda's murder case who also applied for cancellation of the bail of accused persons of that case. The Supreme Court of Pakistan in Rahmat v. State (P L D 1959 S C 109) struck a note of precaution in similar cases in the following words:-

Where the entire case rests on ocular evidence which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye-witnesses fix specific parts in the accomplish ment of the crime."

19. For the above reasons I find that the approach of the learned trial Judge in the appraisement of the evidence of eye-witnesses was not in accordance with known principles enunciated by the superior Courts o the country from time to time. In this case, a possibility clearly arises that the implication of all the 11 appellants by interested, partisan and chance witnesses was not based upon direct knowledge of their participa tion, rather it has been based on conjectures and will to avenge. Having found the entire evidence on record as unsatisfactory against the appellants and their conviction on capital charge as illegal, I allow this appeal, set aside the conviction and sentence of the appellants and acquit them. They are on bail. They are discharge of their bail-bonds.

S. G. D. Appeal allowed.