GHULAM NABI Versus STATE Syed Mushtaq Ahmad Shah , Syed Murtaza Ali Zaidi
This criminal appeal arises from the judgment of learned Additional Sessions Judge, Dera Ghazi Khan, whereby he on 24‑10‑1981 convicted the appellant Ghulam Nabi, aged 28 ,years under section 302, P.P.C. for causing the death of Karim Bakhsh and sentenced him to imprisonment for life and a fine of Rs.2,000. In default thereof to further R.I. for 6 months. He also awarded Rs.2,000 as compensation under section 544‑A, Cr.P.C. and in default thereof to further R.I. for 6 months.
2. The occurrence took place on 13‑8‑1980 at 10‑00 a.m. in the main bazar of Choti Town. The F.I.R. Exh.P.E was lodged by Noor Muhammad P.W.7, the cousin as well as brother‑in‑law of the deceased at 10‑30 a.m. on the same day and was recorded by Abdul Sattar, A.S.I. P.W.10. The distance between the place of occurrence and the police station is one furlong.
The motive as alleged by the prosecution is that Karim Bakhsh deceased had abducted Mst. Sakina, the first cousin of the appellant 1 years before the occurrence which motivated him to kill the deceased.
3. The prosecution case is that on the eventful day Karim Bakhsh deceased alongwith Noor Muhammad P.W.7 and Soba Khan P.W.9 had come to Choti Town to offer Eid prayer. After having offered the prayer, they went to the shop of Elahi Bakhsh P. W.8 to purchase mutton. The appellant duly armed with hatchet came there, gave single blow on the neck of the deceased and ran away. The occurrence was allegedly witnessed by Noor Muhammad P.W.7, Ellahi Bakhsh P.W.8 and Soba Khan P.W.9. Dr. Nasir Ahmad P.W.1 conducted post‑mortem examination on the dead body of the deceased and found:
"An incised wound about 5" x 3" x cervicle vertebrae cut through and through on right side of neck. It was transverse in direction and was reaching upto back of the neck. Only skin and muscles of left side of neck were intact. All the underlying bones, muscles, carotid blood vessels were cut through and through. The underlying spinal cord was also cut through and through. Traches, oesophagus were also cut."
Stomach contained a small amount of liquid food. The death was immediate. In cross‑examination, the doctor stated that the injury found on the neck of the deceased could be caused by a sword and the possibility of this injury having been caused to Karim Bakhsh while asleep on his left side could not be ruled out. The appellant was arrested on 15‑8‑1980. On 17‑8‑1980, he got recovered blood‑stained hatchet Exh.P.4 from his house which was taken into possession vide memo. Exh.P.F. attested by Imam Bakhsh P.W.6, and Soba Khan P.W.9. The memo. was prepared by Abdul Sattar A.S.I, P.W.10. The Serologist Report Exh.P.K. indicates that the hatchet was stained with human blood.
4. To prove its case, the prosecution examine as many as 10 witnesses, out of whom Noor Muhammad P. W.7, Elahi Bakhsh P. W.8 and Sobs. Khan P.W.9 gave the ocular account of the occurrence. Imam Bakhsh P.W.6 Soba Khan P.W.9 and Abdul Sattar A.S.I., P.W.10 have stated that blood‑stained hatchet Exh.P.4 was recovered from the appellant.
When examined under section 342, Cr.P.C., the appellant denied incriminating circumstances and raised the plea of false implication.
5. Learned counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubts inasmuch as, the ocular evidence is not worth reliance, the only independent witness Elahi Bakhsh has not named the appellant and that the evidence with regard to recovery of blood‑stained hatchet Exh.P.4 from the appellant has been disbelieved by the trial Court.
On the other hand, the learned counsel for the State has supported the judgment of the trial Court on the ground that the witnesses having no animous against the appellant, their evidence is confidence inspiring.
6. I have considered the arguments advanced by the learned counsel with care. I find that the recovery of blood‑stained hatchet Exh. P.4 has been disbelieved by the trial Court in para. No.15 of its judgment and the conviction rests on the ocular evidence alone. Since the accused; appellant has denied incriminating circumstances and has not taken any special plea, the onus lies on the prosecution to prove its case against the appellant beyond reasonable doubts through reliable evidence find that Noor Muhammad and Soba Khan being the first cousin of the deceased are related witnesses. No doubt, their evidence cannot be discarded on this ground alone but I find that their evidence suffers from numerous infirmities. Elahi Bakhsh who is, admittedly, an independent witness has not supported the presence of Soba Khan P.W. on the spot at the time of occurrence. He rather stated that one Nehal was present there. Neither he was declared hostile nor he was re‑examined by the prosecution to clear the ambiguity, if any. Elahi Bakhsh has clearly stated in his cross‑examination that he had not seen the assailant giving hatchet blow to the deceased. In examination- in‑chief he stated that he was not sure as to whether Ghulam Nabi accused present in the Court was the assailant.
Coming to Noor Muhammad P.W.7, I find that he has given evidence with a motive other than that of telling the truth. It has been admitted by Imam Bakhsh P. W.6, the nephew of the deceased that the deceased was challaned for the theft of bullocks of Haji Sajjan ant he had also abducted Mst. Sehat but Noor Muhammad P. W.7 did no admit these facts. Noor Muhammad has admitted that he alongwith the deceased and Soba Khan P. W.9 used to live in one and the same house and that on the day of‑occurrence, they had left the house at 6‑00 or 7‑00 a. m. for Choti Town without taking breakfast and that after having offered the prayer, they straightaway went to the shop of Elahi Bakhsh where the deceased was done to death, whereas the medical evidence shows that there was liquid food in the stomach of the deceased. This would indicate that this witness was not with the deceased. The witness has stated that the injury was inflicted to the deceased when he was in standing position. I am of the view, that in view of the nature of the injury, the seat of the injury and the damage done to the deceased, it is at least doubtful that the injury was inflicted in a manner as stated by this witness. There is yet another circumstance which has created doubt in my mind, it appears that the F.I.R. is not a genuine piece of document and it was not prepared at the time and place as it purports. The prosecution case is that after the occurrence, the complainant went to the police station and lodged the F.I.R which was recorded at the police station, I find that the name of Elahi Bakhsh P.W. and his parentage is mentioned in the F.I.R. whereas the complainant has clearly admitted that he did not know the name of Elahi Bakhsh before the occurrence and that Elahi Bakhsh had disclosed his name when he was asked by the police. This indicate that the F.I.R. which, is the foundation stone of the prosecution was, in fact, recorded after preliminary investigation. It is thus a case of dishonest investigation. The eye‑witnesses are not injured. There is circumstantial certainty and judicial guarantee of their presence at the place of occurrence. The ocular evidence is not inconsonance with the probabilities, it does not fit in with the other evidence of the case and has failed to inspire confidence of truth in my mind. For all then reasons, the ocular evidence has to be excluded from consideration.
The upshot of the discussion is that there being no satisfactory basis to maintain the conviction, the same has to be set aside. Giving benefit of doubt to the appellant, he is acquitted of the charge. He shall be set at liberty forthwith, if not required in any other case.
M.A.K. Appeal accepted.