JUMA KHAN Versus THE STATE Khakan Babar , Hafiz Ghulam
MUHAMMAD MUNIR KHAN, J. ‑‑This criminal appeal and the connected Murder Reference No.252 of 1980 arise from the judgment of the learned Additional Sessions, Judge Sargodha whereby he, on 15‑10‑1980, convicted Juma Khan appellant (31) under section 302, P.P.C. for causing death of Allah Yar (16) and sentenced him to death and a fine of Rs.100 in default thereof R.I. for one month.
2. The occurrence took place on 20‑12‑1979 at 8 p.m. At bank of Rajbah Wassowana in Chak No.III/Janobi within the limits of Police Station Bhagtanwala. F.I.R. is statement Exh.P.R. of Fateh Muhammad P.W.9 the uncle of the deceased recorded in Civil Hospital, Sargodha by Ghulam Nabi A.S.I. P.W.14 at 10‑30 a.m. on 21‑12‑1979. The formal F.I.R. Exh.P.R/1 was drawn up by Muhammad Yousaf M.H.C. P.W.8 at 11‑30 a.m. on the same day. The distance between the place of occurrence and the police station is seven miles. The formal F.I.R. was registered under section 307, P.P.C. On the death of Allah Yar at 5‑30 a.m. on 27‑12‑1974, section 307, P.P.C. was amended as 302, P.P.C. There was no background of the murder of Allah Yar. The deceased and the appellant were not even previously known to each other.
3. The prosecution case is that on the night between 20/21‑12‑1979 at 8/9 p.m. Allah Yar deceased came across a Pathan near bridge Doungiwala who asked him about his destination. Allah Yar told him that he was in search of some employment and wanted to spend night somewhere. The Pathan then accompanied him and after covering distance of one square, he asked the deceased to submit himself to his lust. On his refusal, the Pathan launched murderous assault with his knife on Allah Yar and not only injured him seriously but also took away his Mufflar and wrist watch. The occurrence was allegedly seen by Muhammad P.W.10 and Wall Muhammad P.W.11 and Ahmad (not produced). On seeing them, the Pathan ran away. When the aforesaid witnesses came near Allah Yar who was lying in injured condition, he told them that the Pathan desired him to submit to his lust and on his refusal gave him injuries with knife. On enquiry Allah Yar disclosed the name of his father and his address whereupon the eye‑witnesses sent Rehman P.W.12 to inform the father of Allah Yar about the incident. Muhammad and others removed Allah Yar in injured condition to Shah Muhammad Lambardar who took him to Civil Hospital Sargodha, reaching there at about 8‑00 a.m. on 21‑12‑1979.
4. On 21‑12‑1979 at 8‑45 a.m. Dr. Malik Muhammad Azim examined Allah Yar in injured condition and found six stab wounds on his person. All the injuries were caused by sharp‑edged weapon within 9 to 18 hours and were grievous in nature. Allah Yar was admitted in the hospital where he succumbed to the injuries on 27‑12‑1979 at 5‑30 a.m. On the same day at 11‑30 a.m., the same doctor conducted post-mortem examination on the dead body of Allah Yar. He found three stab wounds in the abdomen and three stab wounds on the chest of the deceased. On internal examination, the doctor found that pleura was punctured on both sides and cavity contained puss. Left lung was collapsed and gangrenus, giving very foul smell. Abdominal valve was also punctured. Peritonium was inflammed and punctured. In his opinion, death was due to shock of taximia, caused by the injuries which had gone septic. All the injuries were grievous, dangerous and sufficient to cause death even individually in the ordinary course of nature.
On 21‑12‑1979 Ghulam Nabi A.S.I. P.W.14 on spot inspection, found cap P.9 of the appellant alongwith his photograph P.10 lying near the place of occurrence which were taken into possession vide memo. Exh.P.S. attested by Shah Muhammad P.W.6 and Muhammad P.W.10.
6. On 23‑12‑1979 Ch. Bashir Ahmed, M.I.C. recorded dying declaration Exh.P.Q/2 made by Allah Yar in his injured condition. According to the doctor's certificate Exh.P.Q. Allah Yar was fit to make statement. In his statement P.Q/2 Allah Yar stated that on his refusal to submit to his lust, a Pathan had caused him injuries with knife at about 8/9 p.m. on the eventful night and that the Pathan had also snatched away his wrist watch and Mufflar.
7. The appellant was arrested on 2‑1‑1980. On 8‑1‑1980 he led to the recovery of blood‑stained knife P.8 which was taken into possession vide memo. P.K. attested by Shah Muhammad P.W.6 and Fateh Muhammad P.W.9. On 10‑1‑1990 he got recovered Mufflar P.2 and wrist watch P.3 of the deceased from a Dhari which was taken into possession vide memo. P.L attested by the same witnesses. The serologist's report P.V. shows that knife P.8 was stained with human blood.
8. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. While owning cap P.9 and photograph P.10. he stated that the police searched his house and took into possession these articles. In reply to the question as to why the case against him, he stated that:‑
"Since a Pathan was named as a culprit so I have been made the scape goat. I have not committed the present occurrence "
In defence he did not lead any evidence.
9. Believing the ocular evidence, dying declaration Exh.P.Q/2 and the recovery of the incriminating articles from the appellant, the trial Court came to the conclusion that Juma Khan appellant had definitely caused the death of the deceased by giving him knife blows.
10. The learned counsel contended that the real culprit could not be identified at the time of occurrence and that the appellant has been involved on account of suspicion. He argued that the eye‑witnesses had not seen the actual infliction of the injuries to the deceased; that the identity of the culprit in the circumstances of the case is at least highly doubtful and that the recoveries of Mufflar, wrist watch and blood‑stained knife have been planted on the appellant to connect him with the commission of the crime. On the other hand the learned counsel for the State supported the judgment of the trial Court.
11. We have considered the arguments advanced by the learned counsel for the parties with care and have appreciated the evidence in accordance with the guidelines given by the superior Courts for the appreciation of evidence in such like cases. We find that in F.I.R. Exh.P.R. which was recorded after more than 12 hours of the occurrence; the name of the culprit as well as his description are not mentioned. It is remarkable that although immediately after the infliction of the injuries, Muhammad and others, the eye‑witnesses (who claim to have known the accused previously) had a talk with Allah Yar deceased and Rehman A P.W.12 whom they sent for information to the father of the deceased and that it was actually on the information supplied by Rehman that Fateh Muhammad brother of the deceased had lodged the F.I.R., yet the name and the description of the culprit is not given in the F.I.R. Muhammad P.W.10 and Wali Muhammad P.W.11 claiming to be the eye‑witnesses of the occurrence have stated that they had identified Juma Khan appellant at the time of occurrence. The crucial question for consideration, therefore, is whether in fact they witnessed the occurrence and were in a position to identify the offender. On the examination of the entire evidence and the attending circumstances we find that there are reasons to doubt that they in fact witnessed the occurrence and had identified the culprit inasmuch as, the name of Juma Khan appellant is not mentioned in the F.I.R. which was lodged more than 12 hours after the occurrence. Had the two eye‑witnesses namely Muhammad and Wali Muhammad identified the culprit; they would have naturally disclosed his name to the deceased and Rehman P.W.10 whom they had sent to the relatives of the deceased for information of the occurrence. Had they disclosed the identity of the culprit to Allah Yar, he would have certainly mentioned the name of Juma Khan in his dying declaration which was recorded after three days of the occurrence. The omission of the name of Juma Khan in dying declaration Exh.P.Q/2 leads to an irresistible conclusion that at least by that time, the identity of the culprit was not known. Wall Muhammad P.W.11 stated that the Thanedar had brought Juma Khan on the 3rd day after the occurrence on the spot and he learnt the name of accused as Juma Khan This statement, not only falsifies the claim of the witness to have identified Juma Khan at the time of occurrence but also adversely affects the claim of Muhammad P.W.10 that he had identified Juma Khan appellant at the time of occurrence. Had Muhammad identified the culprit, he would have certainly named Juma Khan before Wali Muhammad, and the latter would have learnt the name immediately after the occurrence and not on third day. Wali Muhammad further stated that he did not state the name of Juma Khan in his statement Exh.D.A. recorded under section 161, Cr.P.C. on the second day of occurrence. He was confronted with Exh.D.E. wherein the name of Juma Khan is very much mentioned. This shows that statements under section 161, Cr.P.C. were not genuinely recorded. Since the name of Juma Khan is not mentioned in the dying declaration, this piece of evidence is also of no consequence, as for the identity of the culprit is concerned. The recoveries of blood‑stained knife, Mufflar and wrist watch at the instance of appellant from near the place of occurrence are highly doubtful. Ghulam Nabi A.S.I. P.W.14 stated that he had arrested the appellant on 2‑1‑1980 i.e. after 12 days of the occurrence from village Dukki, District Loralai in the province of Baluchistan. In these circumstances the appellant could easily take Mufflar and wrist watch and the knife to village Dukki of District Loralai and would not have left the articles behind near the place of occurrence. The appellant was arrested as stated by C the S.H.0 on 2‑1‑1980, the recoveries were effected on 8‑1‑1980 and 10‑1‑1980. Wali Muhammad P.W.11 has falsified the statement of the Investigating Officer relatable to the arrest of the appellant. He stated that the Thanedar had brought the accused on the third day after the occurrence at the spot. This shows that the investigation of the case was not conducted honestly. The rest of the circumstantial evidence is not strong enough to exclude the hypothesis of the innocence of the appellant. For all these reasons we are of the view that the prosecution has failed to prove its case beyond reasonable doubt.
12. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction, while giving him the benefit of doubt, the appellant is acquitted of the charge. He shall be released forthwith if not required to be detained in any other case.
M.Y.H.
Appeal accepted.