ABDUL AZIZ Versus STATE
Akbar Ali (40), his brother Sardar Ali (60) and their first cousin Abdul Aziz (40) were tried for the murder of Naztr. Ahmad. On 6th January, 1979 learned Sessions Judge, Sheikhupura, convicted Abdul Aziz and Akbar Ali under section 302/34, P. P. C. and sentenced each to death with a fine of Rs. 1,000 each, in default to undergo six months' R. I. Sardar Ali was, however, acquitted of the charge. Appeal of the convicts and the connected murder reference are before us.
2. The occurrence in this case took place over a dispute arising out of property measuring 40 acres. Sardar Ali, accused, was a Patwari. He was said to have by misrepresentation got the land of Muhammad Latif, informant's parents mutated in the names of his sons and others. Accord ing so the prosecution on 29th October, 1977 at 11 a. m. Muhammad Latif (informant)-and his father Nazir Ahmad returned from Lahore, as they alighted from the bus at Stop Kalalwala, District Sheikhupura. Hassan Din and Barkat were present there. They stared at Nazir Ahmad who stopped them from behaving in that manner upon which a quarrel ensued and the parties beat each other. Muhammad Latif (informant) sustained injuries on his head, left arm and left shoulder. Hassan Din and Barkat also suffered injuries. People gathered at the spot and intervened. While leaving, Barkat and his companion threatened to avenge the insult. Muhammad Latif (informant) and his father went to their village Moranwala. They consulted Muhammad Ashraf, brother-in-law of the informant, who happened to be present in their house. They decided to report the matter. They proceeded towards the hospital and reached Dhankey Bus Stop at 2 p.m. As they, were waiting for the bus, Muhammad D Latif (informant) and Ashraf went to a nearby cigarette vendor's shop situate at the bus stand. In the meanwhile Abdul Aziz son of Hassan Din, armed with a dagger, Akbar, armed with a knife, and Sardar Ali, armed with a Dang, reached there raising lalkaras that they would not spare Nazir Ahmad, who, out of fear, took to his heels. The three accused chased him. Latif and Ashraf also ran after them. Nazir Ahmad ran into village Meerpur Nau and there he entered the haveli of one Ramzan. The accused also went in, When Muhammad Latif (informant) and Ashraf reached the door of the said haveli, they saw that the accused had laid down Nazir Ahmad, Abdul Aziz gave a dagger blow to him in the back right flank. Akbar inflicted a knife blow in his neck. The accused repeated the injuries. Sardar also gave a stick blow to him. Nazir Ahmad died at the spot, the three accused dragged Nazir's body and threw it outside the threshold of Ramzan Ali's haveli. As the accused were about to make good their escape. P. Ws. Muhammad Latif and Ashraf, with the assistance of P.Ws. Muhammad Ishaq, Faqir Muhammad and Muhammad Din, overpowered Akbar Ali and Abdul Aziz with their weapons. Sardar Ali, however, made good his escape. Besides the aforementioned persons, the occurrence was said to have been witnessed by other men and women of the village. After securing the accused, Muhammad Latif in the company of Babu Sat, Lumberdar, went to Police Station Sharaqpur situate at a distance of 7 miles from the place of occurrence. He made report Exh. P. H. at 3 p. m. the game day to P. W. 10 Fayyaz Mahmud Khan, S. I. After registering the case, the S. I. went to the place of occurrence, prepared the necessary documents and sent the dead body for its F test-mortem examination. He arrested Abdul Aziz and Akbar Ali who were produced before him by P. W. 9 Muhammad Ashraf, knife P. 3 of Akbar Ali was produced by him which was made into a sealed parcel and taken into possession ride memo. Exh. P. F. attested by P. W. 4 Ghulam Muhammad and P. W. 5,Bashir Ahmad. P. W. 9 Muhammad Ashraf also produced dagger P. 4 of Abdul Aziz. It was also made into a sealed parcel and taken into possession vide memo. Exh. P.G. attested by the same aforesaid witnesses. The SJ. collected blood stained earth from the place of occurrence through memo. Exh. .P. D. He also took into possession pieces of threshold wood of the door and made it into a sealed parcel through memo. Exh. P. E. attested by the same aforesaid witnesses.
3. Since Dr. Abdul Mujeeb Khan, Medical Officer. D. H.. Q., Hospital, Shaikhupura,who held the autopsy, had proceeded to Libya and could not be produced without undue delay, because his return was uncertain, therefore, secondary evidence was led P. W. 8 Abdul Majid, Dispenser, who had worked with the doctor proved the post-mortem report Exh. P. J. The autopsy was held by Dr. Abdul Mujeeb on 30th October, 1977. He found the following injuries: --
(1) "A stab wound 1 ' x 3/4' on the right side of back 6 below the inferior angle of right scapula between the 7th and 8th inter costal space on cut section on the right. Lower lobe is punctured through and through and chest cavity full of blood.
(2) Abrasion 2" x 3/4" on the right lumber region posteriorly.
(3) Abrasion 2' x 1" on the back of middle side 3" below the inferior angle of right. scapula.
(4) Stab wound 1 /2" x 1 /4" x 1 /4 on the right side of chest in the right anterior axiliary line I1" below the right axilla. One out section only skin deep.
(5) Stab wound 1/2' x 1/2" x 3" in the centre of neck lower part just above the membrane sterai. One cut section only skin deep.
(6) Stab wound 3/4" x 1/2" x 1/4' on right side of neck oblique in direction on cut section to blood vessels out.
(7) Two abrasions 1/2" x 1/2" on the acromial side of right clavical.
(8) An incised wound I" x 1 /4" x 1 /4" between the right thumb and right index finger.
(9) An incised wound 3/4" x .3" x 2" on the inner and radial side of. the left wrist.
(10) Abrasion (two) 2' x 1/4' on the front and lower part of left thigh.
(11) Abrasion 1/2 x 1/2" on the right elbow.
(12) Abrasion 1/2" x 1/2" on the right ankle.
In doctor's opinion, injury No. 1 was sufficient to cause death in the ordinary course of nature. Rest of the injuries were simple. Six of deceased's injuries were caused by sharp-edged weapon, rest with blunt. Death occurred due to severe shock and intra thoracic. After completing the investigation, the accused were sent up for trial.
4. At the trial, admitting their ant r se relationship, all accused denied guilt. Explaining the land dispute with Nazir Ahmad (deceased), Abdul Aziz and Akbar Ali stated that about 20 or 25 years ago their father instituted a suit for the redemption of mortgage of land, out of which 5 Killas of land were redeemed. Nazir Ahmad also instituted a suit for the redemption of mortgage, but his suit was dismissed. They added that Nazir Ahmad had himself given 5 Killas of land to their father. They admitted that the land dispute was referred to arbitration, but denied whether 16 Killas of land was allowed to Nazir Ahmad by the Arbitrator. They also denied that Nazir Ahmad and his men were trying to plough the said 16 Killas of land in village Moranwala and the accused prevented them and had beaten them up. The two accused admitted that Hassan Din was their father and Barkat Ali was the son of their father's elder brother, but they denied that on the day of occurrence that they quarrelled with Latif and Nazir at Kalalwala bus stand. According to them, the quarrel took place near Dhamke bus stand in the area of village Meerpur Nau Denying his apprehension at the spot and the recovery, Abdul Aziz made the following statement: -
"The case has been set up ag nst us due to enmity with the complai nant party. We got lanli from Court by its judgment. The complainant party wants to take possession of the land by force. The complainant party had been attacking us even before the occur rence and we had been getting cases registered against them at Sharqpur Police Station. On the day of occurrence the complainant and his deceased father quarreled with Barkat Ali and Hassan Din in village Meerpur Nau. The police did not register the case of Hassan Din and Barkat Ali. The quarrel between the complainant and his father on the one side and Barkat Ali alnd Hassan Din took place between 11 a. m. and 12 noon."
According to Akbar Ali, he had been falsely roped in due to enmity with the complainant party and his relationship with Abdul Aziz.
Explaining the land dispute, Sardar Ali made the following statement: -
"Five Killas of land were under mortgage. My father and my father's brother, Hassan Din, instituted a case for redemption of mortgage in 1952-53. The Collector redeemed the mortgage in 1956. Nazir Ahmad and his brothers appealed to the Commissioner against the order of the Collector. Their appeal was dismissed in 1958. We took possession of the land. Nazir Ahmad and his party men gave us the possession of the land."
He also endorsed the statement of his co-accused by saying that Nazir Ahmad and Muhammad Latif had quarrelled with Hassan Din and Barkat in village Mirpur Nau as a result of which Hassan Din and Barkat Ali received injuries and Nazir Ahmad received fatal injuries. Muhammad Latif did not receive any injury. He claimed to have gone to the hospital with Barkat and Hassan Din. He added that he was falsely implicated due to enmity with the complainant party and his relationship with the co-accused.
5. The accused produced D. W. 1 Dr. Sardar Muhammad, Medical Officer, Civil Dispensary, Sharqpur, who examined Barkat Ali and Hassan Din on 20th October, 1977 at 1 p. m. and found the following injuries: -
Barkat Ali: --
(1) Contusion 2 p.m. x 2 c.m. on right side of head behind the right ear.
(2) Swelling 4 c .m. x 2.5 c.m. on superior aspect of left chest close to left shoulder.
(3) Swelling 2 c.m x 3 c.m. on superior aspect of right chest between right shoulder and neck.
(4) Contusion 6 c.m. x 3 c.m. on anterio-superior aspect of right shoulder.
(5) Swelling 6 c.m. x 5 c.m. on lateral aspect of right upper arm over its upper one-third.
(6) Punctured wound 1 c.m x 0.2 x 0.3 c.m. on posterior aspect of left forearm 10 c.m. below elbow joint.
(7) Contusion 8 c.m. x 7 c.m. on back of left chest over inferior angle of left scapula.
(8) Contusion 6 p.m. x 5 c.m. on back of right chest close to right scapula.
(9) Swelling 6 c.m. x 3 c.m. on lateral aspect of left knee.
(10) Swelling 18 c.m. x 15 c.m. on lateral, posterior and medical aspect of right leg over its upper and middle one-third.
(11) Lacerated wound 3 c.m. x 0.5 x 0.8 c.m. on front of left leg, over its middle one-third.
(12) Swelling 8 c.m x 4 c.m. on lateral aspect of right leg over its middle one-third.
(13) Swelling 4 c.m. x 4 c.m. on lateral aspect of right leg over its lower one-third.
Injury No. 6 was inflicted by a sharp-edged weapon, the rest with blunt weapon.
Hassan Din.-
(1) Lacerated wound 3.5 c.m. x 0.4 c.m. x scalp deep on posterior aspect of head 12.5 cm behind left ear.
(2) Contusion 3.5 c.m. x 3.5 c.m. on left side of head just behind left ear.
(3) Lacerated wound 2 c.m. x 0.5 c.m. x 0.8 c.m. on posterior aspect of right band close to root of left little finger.
(4) Swelling of severe intensity 10 c.m. x 2.5 c.m. on back of left chest over scapula.
(5) Contusion 3 c.m. x 3 c.m. on superior aspect of left shoulder.
(6) Contusion 11 c.m x 2 c.m. on back of right chest running obliquely over the lowest ribs. The inner end of the contusion was close to vertebral column.
(7) Lacerated wound 1 c.m. x 0.4 cm x 0.4 c.m. on front of right leg over its middle one-third.
(8) Complains of severe pain and tenderness over medial side of left knee joint.
All injuries were inflicted by blunt weapon.
On the following day, the doctor examined P. W. Muhammad Latif and found the following injuries on his person: -
(1) "Lacerated wound 1.7 c.m. x 0.3 c.m. x scalp deep on the left aspect of head 8 c.m. above left ear,
(2) Swelling 3 c.m. x 2.5 c.m. on top of left shoulder.
(3) Abrasion 0.8 c .m. x 0.3 c.m. on posterior aspect of left forearm 12 c.m. above left wrist."
All injuries were simple caused by blunt weapon.
6. Disbelieving the defence version that is it was one incident which was split into two, trial Court came to the conclusion that the prosecution case was satisfactorily proved by the evidence of Muhammad Latif (infor mant) and P. W. 9 Muhammad Ashraf.
7. Criticizing the finding, learned counsel for the appellants contended that the prosecution story was highly improbable because according to the eye-witnesses, they had decided first to go to the doctor for medical examination and thereafter to report the matter to the police but being afraid of the accused, they took a longer route and went to Bus Stop Dhamke leaving behind two Bus Stands namely Nawanpind and Kalalwala. The explanation of choosing Dhamke Bus Stop was that at the aforementioned two bus stops, they may not be confronted with the accused. If they were really so much afraid of the accused, then they should have at least carried some weapons to defend themselves. Strangely enough, none of the witnesses was armed. They all claimed to be empty- handed. Their conduct as such, was inconsistent with their story that they were afraid of the accused. Under these circumstances, it appears to be a put up story in order to conceal the true facts. On the other hand, the accused stated that there was only one incident in which Barkat and Hassan Din were attacked who in their defence attacked the deceased in village Meerpur Nau. It may be mentioned here that this village is 4 to 5 Killas from Dhamke Bus Stop. Prosecution has not produced any witness from Dhamke Bus Stop, although, there were shops and according to the informant he alongwith Ashraf was purchasing cigarettes when the accused turned up. Again we find the story of the long chase from the bus stop to the haveli of Ramzan does not inspire confidence, because the informant and Ashraf could have checked the accused much before they entered the haveli of Ramzan. P.W. 9 Ashraf admitted under cross-exami nation that he was taller and stronger than all the accused, yet he could not run faster because his leg had been fractured while playing kabadd; and had become weak. This part of the story is not supported by any evidence. On the other hand, we find that during the chase some of the deceased was behind him. Had his leg been weaker, as claimed by him, Muhammad Latif would have overtaken him in chasing the accused, Besides the statements of Muhammad Latif and Ashraf. the two interested witnesses, there is no evidence regarding their presence at Dhamke Bus Stop and the chase given by the accused to the deceased for a distance of about 4 to 5 Killas. Though the deceased was said to have been attacked inside the haveli of Ramzan, but none from that haveli was produced to support this version. The only disinterested eye-witness named in the F. I. R. is P. W. 7 Faqir Muhammad who is a resident of Meerpur Nau.-B He did not support the prosecution case at the trial and was declared hostile. According to this witness, P. Ws: Ashraf and Latif were not present at the spot but were informed about the attack on their father through the village barber. The witness claimed to be in his field when he beard the alarm and on reaching the place of occurrence, he was told that Akbar and Abdul Aziz were running away after killing Nazir Ahmad. The witness also claimed to have gripped Akbar Ali whereas Sadiq and Muhammad Din caught hold of Abdul Aziz. He added that the two accused had nothing in their hands. Although, this witness was not sug gested whether Barkat and Hassan Din were present at the spot but at the same time, we find the witness said nothing about the actual attack, never theless, he excluded the presence of the eye-witnesses. At this stage, we may mention that for the reasons given by us earlier, we have considered prosecution story about the deceased and the two eye-witnesses going unarmed to Bus Stop Dhamke, improbable. It is also noteworthy that according to the prosecution, the deceased was chased by the accused for quite a distance and the deceased went inside the Haveli of Ramzan. The accused were followed by the eye-witnesses and after killing the deceased, they dragged the dead body out in the lane and it was thereafter that the two appellants were said to have been apprehended at the spot. After attacking the deceased, the accused, would be in a hurry to decamp rather than to spend time in dragging the body out in the lane and running the risk of apprehension. It may be mentioned here that the appellants have denied their apprehension at the spot and according to them in this occur rence, the complainant party had quarrelled and attacked Hassan Din and Barkat and said Barkat in defence caused injuries to the deceased. The injuries to Hassan Din and Barkat are proved by D. W. I Dr. Sardar Muhammad Medical Officer, Civil Dispensary, Sharqpur. They were examined by him on 29th October, 1977. In the cross-examination of this defence witness, prosecution has proved the three injuries suffered by P.W.
Muhammad Latif whom he examined on 30th of October, 1977 i.e. on the following day of the occurrence. It may be mentioned here that the three injuries of Muhammad Latif are so trivial and minor in nature that they, cannot be ascribed to an aggressor who wants to avenge enmity. At every step, the prosecution story is full of improbabilities. Last but not the least, P. Ws. Ishaq and Muhammad Din who were alleged to have assisted in apprehending the accused were given up by the prosecution as having been won over and the other disinterested eye-witness named in the F.I.R. was to be assisted in apprehension i. e. P. W. 7 Faqir Muhammad has not supported the prosecution case.
8. Keeping in view the previous enmity between the parties over the land dispute and the fact that there is no corroboration of the testimony of the two interested witnesses, we consider the prosecution case doubtful. Giving the benefit of doubt to the appellants, we accept their appeal, se aside their conviction and sentence and acquit them of the charge.
S. Y. H. Appeal accepted.