GHULAM RASOOL Versus THE STATE

Ghulam Rasul son of Nawab Khan, caste Awan, resident of village Paharey, Police Station Lalamusa, was tried by the learned Sesions Judge, Gujrat, under section 302, P.P.C. on the allegation that on 27th ions , 1980 at morning prayer time he committed the murder of Mst. Razia Bibi, wife of Allah Ditta. By judgment dated 13th June, 1981 tie was convicted on the said charge and sentenced to imprisonment for life and a fine of Rs. 10,000 or in default in the payment thereof, to undergo further rigorous imprisonment for three years. He was also directed to pay Rs. 5,000 as compensation to the legal heirs of the deceased or in default of its payment to suffer further R.I. for six months. The convict has appealed.

2. The F.I.R. version of the occurrence is that ten days prior to the occurrence Mst. Razia Bibi deceased eloped with Ghulam Rasul accused who took her towards Azad Kashmir. Ahmad Khan, uncle of the deceased, asked Muhammad Irshad complainant to look for the accused and make efforts for restoration of the deceased. The complainant and Bashir Ahmad P.W. thereupon went to village Barnala. Ghulam Rasul accused met them there and they asked him for the restoration of Mst. Razia Bibi. The accused told the complainant that he would bring Mst. Razia Bibi on the following day on some pretext and would hand her over to him. On 27th June, 1980 at about morning prayer time Ghulam Rasul accused went to the house of Muhammad Irshad complainant in village Adam Chohan and asked him to take the custody of the deceased. The complainant and Bashir Ahmad accompanied him to a field situate at a distance of four furlongs from village Paharey and found Mst. Razia Bibi deceased sitting near a Kikkar tree. Ghulam Rasul accused asked her to accompany the complainant and Bashir Ahmad P.W., upon which she abused him and refused to accompany them. She told the accused that he would be put in jail in case she was restored to her relatives. The accused then took out a Chhuri from his right fold and gave several blows to her hitting her neck and other parts of the body. He also pressed her neck with her pigtail as a result of which she died at the spot. Due to fear of the accused the complainant and Bashir Ahmad P.W. did not raise alarm. After committing the murder, the appellant, ran away from the spot.

Leaving Bashir Ahmad P.W. with the dead body, Muhammad Irshad went to Police Post Kakrali and reported the occurrence to Amir Muhammad, A.S.I., at 7 a.m. vide his statement Exh. P.A. on the basis of which formal F. I. R. Exh. P. A./1 was recorded at the police station at 9 a. m.

3. After recording the statement of the complainant, Amir Muhammad A.S.I. reached the spot. He prepared the injury statement (Exh. P. B./1) and the inquest report (Exh. P.B.) of the dead body and despatched it to the mortuary for post‑mortem examination. Then he took some blood‑stained earth from the spot and made it into a sealed parcel vide memo. Exh. P.E. He also took into his possession eleven pieces of broken bangle Exh. P.2/1‑11, Khes Exh. P.3, Burqa Exh. P.4, pair of shoes Exh. P.5/1‑2 and Loee Exh. P.6 from the place of occurrence vide memo. Exh. P.F. He arrested Ghulam Rasul accused on 29th June, 1980. On 2nd July, 1980 he led to the recovery of blood‑stained Churri Exh. P.1 and blood‑stained clothes, viz. Chadar Exh. P.9 and Kurta Exh. P.10, from his residential house which were made into sealed parcels vide memo. Exh. P.H. After the investigation, the appellant was challaned.

4. On 28th June, 1980 at 11 a.m. Dr. Muhammad Rashid Javed, Medical Officer, A.B.S. Hospital, Gujrat, conducted the autopsy on the dead body of Razia Bibi deceased and found the following injuries on it:‑

(1) An incised wound 1" x going deep on the right side of neck just near the midline.

(2) An incised wound 1" x x going deep on the right side of neck frontal part and just near injury No.1.

(3) An incised wound on right cheek. It was 1" x x through and through.

(4) A lacerated wound x x, bone deep on head back of right ear. There was swelling around the wound.

(5) Abrasion 1" x 1" on right elbow on the posterior aspects.

(6) Swelling and deformity on left forearm near wrist joint.

(7) A bruise with swelling on left hand.

(8) Incised wound x 1/8" x skin deep on left side of chest below the nipple.

(9) Incised wounds two in number each measuring x 1/8" x skin deep on left nipple.

(10) Abrasions two‑three in number on font of abdomen near umblicus.

(11) An incised wound x 1/8" x skin deep on centre of chest.

(12) A bruise semi‑circular 2" in length and across the neck.

Injuries Nos. 1, 2 and 6 were grievous. In the opinion of the doctor, death was due to injuries Nos.1 and 2 collectively which led to haemor rhage and shock. Time between injuries and death was immediate and between death and post‑mortem about 30 to 34 hours.

5. In support of its case the prosecution examined two eye‑witnesses, namely, Muhammad Irshad complainant and Bashir Ahmad P.W. It also relied on the evidence relating to recovery of blood‑stained Chhuri and blood‑stained clothes at the instance of the appellant.

6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. When asked why this case against him, he made the following statement:‑

"I am doing the business of timber. At mid‑day the police arrested me. I was given beating. I asked them why they were giving him beating on which they told me that I had caused the death of Razia. My clothes were got removed at the police station. I was tortured and asked to confess the guilt. The relatives of the deceased had killed Razia because of her bad character. I do not know anything else."

No evidence was led in defence.

7. The learned trial Judge accepted the ,1prosecution evidence and convicted and sentenced the appellant as mentioned above.

8. The learned counsel for the appellant contended that the presence of the eye‑witnesses at the spot is not established and the story narrated by them is highly unnatural. He further submitted that both the eye‑witnesses are related to the deceased and had strained relations with the appellant, therefore, their uncorroborated evidence was not sufficient to warrant the conviction. He assailed the recovery of blood stained Chhuri and blood‑stained clothes on the ground that no person from the locality was cited as a witness and only two relatives of the deceased belonging to a different village were produced as recovery witnesses.

The learned State counsel, on the other hand, submitted that the eye‑witnesses had no enmity with the appellant and it being the case of a single accused, it was unbelievable that the real culprit was let off and the appellant was falsely implicated.

9. Muhammad Irshad (P.W.1) and Bashir Ahmad (P.W.6) supported the prosecution version of the occurrence. The gist of their evidence is that about ten days prior to the occurrence Ghulam Rasul appellant abducted Mst. Razia Bibi deceased and took her towards village Barnala in Azad Kashmir. Her uncle Ahmad Khan asked them to persuade the appellant to restore her to her relatives. They went to Barnala and were sitting at the shop of Wilayat P.W. when Ghulam Rasul appellant came there. They asked him to return Mst. Razia as she was a married woman. He promised to meet them on the next day. They stayed for the night at the house of Wilayat P.W. On the next day they waited for the appellant at the shop of Wilayat but he did, not turn up They again stayed for the night at the house of aforesid Wilayat P.W and waited for the appellant at his shop on the following day. The appellant met them at the shop on that day and told them that he would bring Mst. Razia on some pretext and would return her to them, upon which they returned to their village. On 27th June, 1980 at about Sehri time Ghulam Rasul appellant knocked the door of the house of the ecoeplainant situate in village Adam Chohan and informed him that he had brought Mst. Razia and she was present in a field outside the village, upon which they (the complainant and Bashir Ahmad P.W.) accompanied him to a field situate one mile away from the village where Mst. Razia was present. The appellant told her that she would be returned to her relatives, upon which she abused him and retorted that he would be put in jail if she was returned to her relatives. The appellant then took out a Chhuri from his fold and gave several blows to the deceased. He also pressed her neck with her pigtail and ran away from the spot taking the Chhuri with him. Mst. Razia succumbed to her injuries at the spot.

10. Both the aforementioned eye‑witnesses, namely, Muhammad lrshad and Bashir Ahmad, are first‑cousins inter se. Allah Ditta, husband of the deceased, is the Khalu of Bashir Ahmad P.W. One Zaman is a first‑cousin of Mst.. Razia deceased. His sister ig married with the brother of Bashir Ahmad P.W. In this way both the eye‑witnesses are related to the deceased and her husband. It goes without saying that the eye‑witnesses being relatives of the deceased, must be having strained relations with the, appellant who had enticed her away and in that view of the matter, their evidence would require a very cautious scrutiny. The story that the eye‑witnesses met the appellant at the shop of Wilayat P.W. at Barnala, he promised to meet them on the next day but did not return, they stayed at the house of Wilayat P.W. for two nights and the appellant again met them at the shop of Wilayat on the third day, is not mentioned in the F.I.R. Even otherwise, the evidence of the eye‑witnesses on this aspect is unsatisfactory. Muhammad Irshad complainant was unable to tell the distance of Barnala from his village. He also could,, not give the names of the villages falling on the way, the population and the number of bazars of Barnala. In examination‑in‑chief he did not specifically state that he and Bashir Ahmad P.W. had met the appellant at Barnala. What he stated was: "Myself and Bashir P.W. went to the side of Barnala and we met Ghulam Rasul accused". In cross‑examination he stated that "Walayat P.W. is a dentist in Awan Sharif. He is doing business there for the last 4‑5 years ..I met only Walayat in Awan Sharif". At a later stage he volunteered: "Walayat Khan belongs to Barnala". Statement of Walayat Khan P.W., on the other hand, shows that he is a resident of Awan Sharif and was running his "shop of Dental Surgery" at Barnala. Both the eye‑witnesses belong to village Adam Chohan. Wilayat P.W. admitted that he had no relationship in that village. Bashir Ahmad P.W. also admitted that he had no relationship with Wilayat P.W. It is not understandable why the eye‑witnesses thought of going to the shop of aforementioned Wilayat P.W. who was a stranger to them. If Ghulam Rasul appellant had met them at the shop of Wilayat on the first day of their visit to Barnala and not turned up on the next day as promised, normally the eye‑witnesses would have returned to their village. It is again not understandable why they stayed at the house of Wilayat Khan P.W. for two nights. One also fails to understand why the appellant agreed to return Mst. Razia to the eye‑witnesses when there was no pressure on him nor was there any police report against him regarding the abduction matter. According to the prosecution, the appellant had enticed away Mst. Razia. She was a married woman and was related to the eye‑witnesses. In that view of the matter, the appellant was not at all expected to take the risk of going to the house of the complainant all, alone at Sehri time to tell him that the girl was available in the field outside the village.

11. The occurrence took place in the area of village Paharey while both the eye‑witnesses are residents of village Adam Chohan. According to the prosecution, the appellant knocked the door of Muhammad Irshad complainant at Sehri time. The complainant and Bashir Ahmad (P.W.6) have separate houses in village Adam Chohan. Bashir Ahmad P.W. explained his presence in the house of the complainant saying that on the preceding night he had gone there to administer some medicine to the buffalo of the complainant and remained there for the night. In his statement before the police with which he was duly confronted, he had not mentioned the story of the ailment of the buffalo of Muhammad Irshad P.W. If at all he had gone to the house of Muhammad Irshad to administer medicine to his buffalo, he could conveniently return to his own house after doing the job. Apparently, this belated explanation was introduced in order to show that Bashir Ahmad P.W. was available at the house of Muhammad Irshad when the appellant came there to inform the latter that Mst. Razia was present in the field.

12. The medical evidence does not support the ocular account furnished by the eye‑witnesses. The eye‑witnesses are consistent that the appellant gave Chhuri blows to the deceased and pressed her neck with her pigtail. According to the post‑mortem report, the deceased had twelve injuries on her person. However, in the statement of the doctor only eleven injuries have been mentioned. Injuries Nos. 1, 2, 3, 8, 9 and 11 were incised wounds which could be caused by a Chhuri. Injury No.12 in the post‑mortem report, which has been detailed against No. 11 in the statement of the doctor, was a semi‑circular bruise across the neck which could be caused by pressing the neck with the pigtail. The remaining injuries i.e. Nos. 4, 5, 6, 7 and 10, were caused by blunt weapon. The eye‑witnesses have not explained these blunt weapon injuries on the person of the deceased. The medical evidence clearly shows that two types of weapons were used for causing all the injuries. The blunt and sharp weapon injuries indicate that number of assailants may be more than one.

13. The conduct of the eye‑witnesses was also highly unnatural. Both of them stated that they did not raise any noise during the occurrence. Muhammad Irshad complainant further stated that they did not throw any brick‑bat on the accused nor they tried to apprehend him. The accused was not armed with a firearm. Both the eye‑witnesses admitted that he had no stick with him. If two relatives of the deceased had been present at the spot, they must have raised alarm and also made efforts to apprehend the accused, but they did nothing which throws a serious doubt on their presence at the spot.

14. The evidence relating to recoveries is also unsatisfactory Jumma Khan (P.W.7) and Ahmad Khan (P.W.8) were examined to support the recoveries of blood‑stained Chhuri and blood‑stained clothes at the instance of the appellant. Ahmad Khan P.W. is the uncle of the deceased. Jumma Khan P.W. is the first‑cousin of Ahmad Khan P.W., and both of them are residents of village Adam Chohan. The recoveries were allegedly effected from the house of the appellant situate in village Paharey. Amir Muhammad, Sub‑Inspector (P.W.12), admitted that the house of the accused is in the centre of the village and many persons met him on way to the place of recovery but he did not ask them to join the investigation. He further admitted that 6/7 persons of village Paharey were present at the time of recovery. It is very strange that persons from the locality were available but they were not made to join the A recovery proceedings and only two close relatives of the deceased were cited as recovery‑witnesses. In the circumstances, I am not inclined to place reliance on the evidence relating to recoveries.

15. The evidence on the record indicates that Mst. Razia deceased was not having good character. It is the prosecution's own case that she had eloped with the appellant. Her uncle Ahmad Khan P.W. admitted that she was also abducted previously. It is also in evidence that 5/6 months prior to the occurrence her husband Allah Ditta had deserted her. These facts lead to the irresistible conclusion that her relatives were annoyed with her. In the circumstances, the possibility of the deceased having been killed by someone else in the dark hours of the night, cannot be ruled out. i, therefore, feel inclined to the view that the prosecution has not been able to prove its case beyond a reasonable doubt.

16. For the foregoing reasons, I allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. He shall be set at liberty forthwith if not required to be detained in any other case.

M.Z.M. Appeal allowed.