NOOR AHMAD Versus STATE
Noor Ahmad (35) son of Akbar Ali, caste Dogar resident of village Bhophar was tried by a learned Additional Sessions Judge Gujranwala for committing the murder of Shangara Masih (40) son of lqbal Masih his co-villager on 8th April, 1980 at 2-30 p.m. near the Tonga stand in the area of village Wando at a distance of two furlongs from Police Station Wando.
2. The learned trial Judge vide his judgment, dated 31st October, 1981 convicted Noor Ahmad under section 302, P.P.C. and sentenced him to life imprisonment and a fine of Rs. 10,000 or in default two years' further R.I. It was also directed that the fine, if realized, 2/3rd share of the same would be paid to the legal heirs of the deceased.
3. The convict has challenged his conviction and sentence through the present appeal.
4. The occurrence was reported at the Police Station Wando at 3 p.m. by Denial (P.W.9) a cousin of the deceased and on his statement F.I.R. Exh. P.E. was recorded by Zakaullah (P.W.11) the then A.S.I. posted at Police Station Wando.
5. The F.I.R. account of the prosecution version is that on 8th April, 1980 Denial (P.W.9). Shangara Masih, Niamat (not produced) brother of Denial and Balqar (P.W.10) brother of Shangara deceased Went to village Wando to make purchases in connection with the marriage of the sister of Denial which was to take place on the following day. After making purchases they reached in front of the shop of Karam Din near the Tonga stand of Wando, where Noor Ahmad appellant was already present armed with 'Kassi'. He challenged Shangara Masih declaring that he would avenge his insult and simultaneously caused 'Kassi' blow to Shangara Masih hitting him on the neck near the right ear. After receiving Shangara Masih fell down. Thereafter, Noor Ahmad appellant more injuries with 'Kassi'. Denial, Balqar and Niamat over powered the appellant and apprehended him. Shangara Masih deceased succumbed to the injuries on the spot. Denial, Balqar and Niamat produced Noor Ahmad before the police at the time of lodging of the F.I.R. Blood stained 'Kassi' (P.4) the weapon of offence, was also produced by Denial (P.W.9.). The 'Kassi' was taken into police custody vide memo. Exh. P.F. which was attested by Balqar, Denial and Niamat besides Zakaullah A.SA.
As regards motive, it is alleged that womenfolk of Christians used to work in the houses of 'Zamindars' of the village. About 4/5 days prior to the occurrence the Christian women when came back to their 'Thathi' complained to their relatives that the appellant used to tease them. Thereafter, Shangara Masih deceased admonished Noor Ahmad appellant and asked him to desist from such activities. An altercation between Shangara Masih and Noor Ahmad thus followed. They were, however, separated by the persons present on the spot. On that occasion, Noor Ahmad appellant declared that he would avenge his insult'.
6. After recording the F.I.R., securing the weapon of offence Exh. P.4 and apprehending the appellant, Zakaullah A.S.I. (P.W.11) proceeded to the place of occurrence. After necessary formalities, he despatched the dead body to the mortuary.
7. Autopsy on the dead body of Shangara Masih deceased was performed by Dr. Gulzar (P.W.7) the then Senior Medical Officer. D.H.Q. Hospital Gujranwala on 9th April, 1980 at 12-54 p.m. He vide his post-mortem report, Exh. P.D. noticed four incised wounds one on the right side of upper part of neck over auricle, second on the right side of upper part of front of neck, third just below injury No. 2 and the fourth at the front of the lower part of the neck.
On the internal examination it was found that right mastoid bone was partly cut under injury No. 4. Upper part (cervical part) of the left pleura was cut under injury No. 4. Larynx trachea was cut under injury No. 4. Upper part of the left lung was cut under injury No. 4. Major blood vessels of neck were also cut under injury No. 4. Similarly, oesophagus was cut under injury No. 4.
All these injuries were opined to be ante-mortem and caused by sharp-edged weapon. The death in the opinion of the doctor occurred due to shock and haemorrhage as a result of injury No. 4 which was sufficient to cause death in the ordinary course of nature. Other injuries also accelerated the haemorrhage and shock. Time between injuries and post-mortem examination was estimated as 22 hours. In his cross-examina tion, Dr. Gulzar specifically stated that all the injuries on the person of the deceased were caused by hatchet.
8. As per contents of Exh. P.J. and P.K., reports of the Chemical Examiner and Serologist respectively, the result of blood in respect of 'Kassi' (P.4) was positive.
9. As already stated, Denial (P.W.9) and Balqar (P.W.10) testified at the trial as eye-witnesses to furnish ocular account of the prosecution version. The third alleged eye-witness named Niamat brother of Denial was, however given up as unnecessary. Denial and Balqar by and large supported the prosecution version as contained in the F I.R. Exh. P.E.
10. The appellant pleaded total denial and claimed to be innocent. He also denied of his alleged apprehension on the spot and recovery of blood-stained, 'Kassi' (P.4) from him. No evidence in defence has, however, been produced by the appellant.
11. As regards the ocular testimony of this case, it may be observed that Denial (P.W.9) is the first cousin of the deceased while Balqar (P.W.10) is the real brother of the deceased. Both are residents of village Bhophar whereas the occurrence has taken place near Tonga stand of village Wando, a place located at a distance of four miles from village Bhophar. They claimed that they went to village Wando accompanied by the deceased for making purchases in connection with marriage of the sister of Denial which was to take place on the following day. At the trial, however Balqar (P.W.10) has stated that marriage of the sister of Denial (P.W.9) was to take place about ten days after the occurrence. Denial (P.W.9). stated that he had shown the articles which they had purchased in connection with the marriage of his sister to the investigating Officer. The Investigating Officer, however, has deposed while appearing as P.W.11 that no such articles were shown to him. The eye-witnesses in this case are thus not only close relatives of the deceased but are also chance witnesses. In case of such witnesses, this Court has always insisted upon independent corroboration for the safe dispensation of criminal justice. Corroboration is sought to be provided by recovery of weapon of offence and the medical evidence. As regards weapon of offence viz. 'Kassi' (P.4), it may be observed that the appellant denied its recovery from him and has pleaded that he was arrested on tile following day of the occurrence from his village. The injuries on the person of the deceased as noticed at the time of post-mortem examination are all incised wounds without any laceration. Ordinarily, there must he laceration if injuries are caused by a weapon like 'Kassi'. The doctor who performed the post-mortem examination has stated in unequivocal terms that injuries in case of the deceased were caused by hatchet. In view of this opinion of the doctor, the recovery of 'Kassi' (P.4) is not of much consequence. Similarly, medical evidence which is indicative of the fact that incised wounds to the deceased were caused by hatchet does not support the prosecution version as narrated by the eye-witnesses that the deceased was injured and done to death by inflicting injuries on his person by ' Kassi' .
12. It is alleged that it was a calculated murder because the appellant harboured grudge against the deceased for the insult on account of an occurrence which took place about a few days prior to the incident. It does not sound to reason that a person would come to commit a calculated murder armed with a weapon like 'Kassi' instead of any other handy and effective weapon.
13. In regard to the medical evidence, it has also been noticed that Zakaullah A.S.I. (P.W.11 ), the Investigating Officer has claimed that he despatched the dead body to the mortuary at 3-30 p.m. on the day of occurrence. The post-mortem, however, was performed on the following day at 12-54 p.m. The eye-witnesses i.e. Denial and Balqar both have stated that the dead body of the deceased was despatched to the mortuary at 11-00 at night. They have also disclosed that after some investigation on the spot, the dead body was first taken to the Police Station from where it was despatched to the mortuary at 11-00 at night. In the post-mortem report, the doctor has opined that the probable time which elapsed between death and post-mortem examination was about 22 hours. These circumstances lead to the conclusion that the dead body was despatched to the. mortuary not at 3-30 p.m. as claimed by Zakaullah A.S.I. but in fact it was taken to the Police Station from where it was sent to the mortuary at 11-00 at night and, therefore, on the following day at 12-54 p.m. autopsy was conducted.
14. Both the eye-witnesses have disclosed that the police was informed about the murder at the police station. After receiving this information, the A.S.1. came to the spot where after enquiries he recorded the state ments of Denial, Balqar and Niamat. This shows that the F.I.R was in fact recorded after preliminary enquiry on the spot and not at the Police Station as it purports to be.
15. One Mansha who has been examined as P.W. 4 has in his capacity as attesting witness of the recovery memo. Exh. P.B. about the securing of blood-stained earth from the place of occurrence stated that he got information of the murder of Shangara Masih in his village which is at a distance of four miles from the place of occurrence at about 1]</2-00 p.m. on the day of occurrence. He further disclosed that when he and other members of his brother hood received the information about the murder of Shangara Masih he, Niamat, Balqar (P.W.10) and many other persons rushed to Wando in order to know as to who was the real culprit. The correctness of the statement of this P.W. who is from the brother hood of the deceased has not been challenged by the prosecution. He has thus entirely demolished the prosecution case inasmuch as according to this witness Niamat and Balqar the eye-witnesses in fact accompanied him to Wando after receipt of information of the murder of Shangara hlasih whereas the prosecution version is that Niamat, Balqar and Denial were accompany ing the deceased at the time of murder.
16. For proof of motive, P.W.8 Inayat has been examined. He disclosed that the appellant teased the womenfolk of his brotherhood On the complaint of 'their women, Shangara Masih. protested to the appellant and admonished him. The appellant felt insulted and threatened Shangara Masih of dire consequences. Inayat has stated in his cross-examination that the Investigating Officer came to their village and this witness produced his womenfolk before the Investigating Officer to tell him that they were teased by the appellant. The Investigating Officer, however has stated while appearing as P.W.11 that he had not gone to village Bhophar in connection with the investigation of this case.
17. In the light of the above observations, it transpires that the prosecu tion case suffers from the following infirmities:-
(i) The motive as alleged in the F. I. R. has not been proved. The women who were allegedly teased by the appellant have not been examined by the Investigating Officer.
(ii) The eye-witnesses in this case are not only close relatives of the deceased but are chance witnesses. Their presence at the time of occurrence at a place which is four miles from their Village is highly improbable. P.W.4 Mansha whose statement has not been challenged has categorically stated that Balqar and Niamat, the two eye-witnesses, in fact accompanied him to the place of occurrence after they received the information about the murder of Shangara Masih.
(iii) The medical evidence does not support the prosecution case as detailed in the F.I.R. and as disclosed by the eye-witnesses. The medical evidence also renders the alleged recovery of the weapon of offence to be of no consequence.
(iv) The dead body of the deceased was despatched to the mortuary after an inordinate delay of more than eight hours.
In Muhammad Ali v. The State 1971 P Cr. L J 1181 it was held that the delay in the despatch of the dead body for post-mortem examination and drawing F.I.R. at the place of occurrence were indicative of the fact that the prosecution wanted to build up a case and that these circumstances were enough for rejecting the whole prosecution case.
18. In the presence of these infirmities in the prosecution case, it cannot be concluded by any stretch of imagination that the prosecution has been able to bring home the guilt to the appellant beyond any reasonable doubt. In this view of the matter, this appeal is allowed. Conviction and sentence of the appellant are set aside and he is acquitted. He is directed to be released forthwith if not required to be detained in any other case.
M. Y. H. Appeal allowed.