DOST MUHAMMAD Versus STATE M. Arif , Col. Muhammad Abdur Rashid, Khalid Farooq Qureshi
Dost Muhammad and Asghar, sons of Muhammad, were tried by an Additional Sessions Judge of Faisalabad under section 302/34, P.P.C. for the murder of Muhammad Hayat, deceased. The learned trial Judge, by his judgment, dated 18‑6‑1981, convicted Dost Muhammad, accused, under section 302, P.P.C. and sentenced him to life imprisonment with a fine of Rs.15,000 or in default thereof to undergo further rigorous imprisonment for three years and acquitted Asghar, accused, by giving him the benefit of doubt. The amount of fine imposed on Dost Muhammad, accused, if realised, was ordered to be paid as compensation to the heirs of Muhammad Hayat, deceased, under section 544‑A, Cr.P.C. The benefit of the full period of detention undergone by Dost Muhammad, accused, as under trial prisoner, was given to him under section 382‑B, Cr.P.C. The appeal (Criminal Appeal No. 407 of 1981) of Dost Muhammad, convict, and the two revision petitions (Criminal Revision No. 465 of 1981 and Criminal Revision No. 201 of 1982) filed by Muhammad Zaman, complainant, for the enhancement of sentence of Dost Muhammad, convict, and the conviction of Asghar, acquitted accused, are now before me for disposal.
2. The prosecution story, according to the F.I.R. Exh. P.C., is that Muhammad Zaman P.W. 5 was serving fodder to his cattle in his Dhari on 9‑5‑1979 at 5‑00 p.m. when suddenly he heard noise from the side of the Dhari of Muhammad Amir and went running towards the side. The complainant saw that deceased Muhammad Hayat, Muhammad Iqbal (given up P.W.), Muhammad Ramzan P.W.9 and Ghulam Qadir P.W.8 were standing on the Katcha path towards the west of the Dhari of Muhammad Amir. Dost Muhammad accused, armed with a .12 bore gun, was standing in the nearby field and he had aimed his gun towards the P.Ws. Behind Dost Muhammad, accused, at some distance, his brother Asghar, accused, armed with a rifle, was also present. On the Katcha road going to Chak No. 566/G.B., Muhammad, father of Dost Muhammad, accused, armed with a Sota, and Ghulam Muhammad, maternal‑uncle of Dost Muhammad, accused, armed with a revolver, were also standing. Dost Muhammad, accused, gave a Lalkara to Hayat, deceased etc. that he would not go back without teaching him a lesson for his insult and he fired a shot from his gun, which hit Muhammad Hayat, deceased on the belly, who fell down on the ground. Ghulam Muhammad and Muhammad, who were not challaned by the police, gave Lalkara that remaining persons should not go alive and thereupon Asghar, accused, fired a shot from his rifle, which did not hit any person. Dost Muhammad and Asghar, accused, were trying to reload their guns, when Muhammad Ramzan P.W.9 and Ghulam Qadir P.W.8 overpowered both of them, snatched their gun and rifle from them and started giving injuries to them with the butts of these weapons. Muhammad Ramzan P.W.9 also gave injuries with a Kassi, which he picked up nearby, to Dost Muhammad and Asghar, accused. During the quarrel, both the guns got broken and the accused ran away towards their Dhari. The deceased Muhammad Hayat succumbed to his injuries at the spot. The motive for the occurrence was that four days before the occurrence, Muhammad Ramzan P.W.9 and Ghulam Qadir P.W. 8 had cut an immoral joke with Mst. Zarina, a daughter of the maternal‑nephew of Muhammad, and the accused came to know about this act and, on account of annoyance, they intentionally killed the deceased Muhammad Hayat. The broken gun and rifle were taken into possession by Muhammad Iqbal (given up P.W.) and Ghulam Qadir P.W.8. Leaving behind Muhammad Ramzan P.W.9 to guard the dead body, Muhammad Zaman P.W.5 proceeded to Police Station Lundianwala where he lodged the F.I.R. Exh.P.C. at 8‑05 p.m., which was recorded by Muhammad Javed S.I. P.W.10.
3. The Investigating Officer then proceeded to the spot, where, after preparing the necessary papers, he sent the dead body of Muhammad Hayat, deceased, for post‑mortem examination. Ghulam Qadir P.W.8 produced before him .12 bore gun P.4 (the licensed gun of Muhammad, father of Dost Muhammad, accused) with bandolier P.8 containing four live cartridges P.9/1‑4 and an unlicensed rifle P.5 containing one empty, which were taken into possession vide memos. Exhs. P.J. and P.K., respectively. The said recoveries were witnessed by Ghulam Qadir P.W.8. Muhammad Ramzan P.W.9, Muhammad Javed S.I. P.W.10 and Muhammad Iqbal (given up P.W.).
4. Both the accused, who were injured during the occurrence, got themselves medically examined by Dr. Khurshid Ahmad P.W.6. Dost Muhammad, accused, was found to have the following injuries on his person:‑
(1) A lacerated wound 5 c.m. x 1 c.m. x scalp deep on the left side of head.
(2) An abrasion 4 c.m. x 1 c.m. on upper side of left wrist joint.
(3) An abrasion 4 c.m. x 0.5. c.m. on left upper arm.
(4) An incised wound 2‑5 c.m. x 1 c.m. x skin deep on the back of left buttock.
(5) An incised wound 2 c.m. x 1 c.m. x skin deep below injury No.4.
(6) An abrasion 6 c.m. x 2 c.m. on the back of right chest.
(7) An incised wound 4 c.m. x 1 c.m. x 2 c.m. on left heel.
(8) An abrasion 3 c.m. x 1 c.m. on left thigh.
(9) An abrasion 6 c.m. x 2 c.m. on outer side of right leg.
(10) A lacerated wound 1.5 c.m. x 1 c.m. x skin deep on right buttock.
(11) A contusion 8 c.m. x 1 c.m. on the back of right chest.
Injury No. 1 was found to be grievous, whereas the remaining were simple. Injuries Nos. 4, 5 and 7 were caused by sharp‑edged weapon and the remaining by blunt weapon. Probable duration of injuries was within six hours.
Asghar, accused, was found to have the following injuries on his person:‑
(1) A lacerated wound 7 c.m. x 1 c.m. x scalp deep on the left side of head.
(2) Abrasion 1.5 c.m. x 1 c.m. on the back of left elbow joint.
(3) An abrasion 2 c.m. x 1 c.m. on the back of right wrist joint.
(4) A contusion 8 c.m. x 3 c.m. on the back of left chest.
(5) Two abrasion marks in an area of 5 c.m. x 3 c.m. on the back of left , scapular area.
All the blunt weapon injuries were simple and caused within a duration of six hours.
5. On 10‑5‑1979 the Investigating Officer recovered blood‑stained earth, a .12 bore empty P.6 and a wad P.7 from the spot, which were taken into possession vide memos. Exhs. P,L., P.M. and P.N., respectively. The said recoveries were witnessed by the same four witnesses who had witnessed the recoveries the day before.
6. On 10‑5‑1979 at 9‑30 a.m. Dr. Imtiaz Ahmad Gill P.W.1 performed the post‑mortem examination on the dead body of Muhammad Hayat, deceased, and found the following injuries on it:‑
(1) Ten gun shot wounds 1/2 c.m. x 1/2 c.m. each on the right side of the abdomen below the umibilicus. Burning and tattooing was present.
(2) Thirty‑eight gun shot wounds on the left side of abdomen 1/2 c.m. x 1/2 c.m. each. Burning and tattooing was present.
(3) Twenty‑two gun shot wounds 1/2 c.m. x 1/2 c.m. each on the left side of the abdomen just above the umbilicus. Burning and tattooing was present.
(4) An abrasion 4 c.m. x 1‑1/2 c.m. on the right side of abdomen.
(5) An abrasion 2 c.m. x 2 c.m. on the left side of the abdomen.
(6) An abrasion 2 c.m. x 2 c.m. on the left side of abdomen.
Abdomen was full of blood. Stomach was torn into pieces. It was empty. Forty‑five pellets were removed around the vertebral column in the abdomen and left iliac fossa. Multiple holes were present inside small and large intestines. In the opinion of the doctor, injuries Nos. 1, 2 and 3 were caused by fire‑arm and remaining injuries resulted from blunt weapons and all the injuries were ante‑mortem. The death resulted due to shock and haemorrhage and injuries Nos. 1, 2 and 3 were collectively sufficient to cause death in the ordinary course of nature. The death was immediate and probable time between death and post‑mortem examination was about twenty‑four hours.
7. On 11‑5‑1979 though an attempt was made by Muhammad Javed S.I. P.W. 10 to record the statements of both the accused who were admitted in the hospital, they were found mentally unfit to give their statements.
8. On 13‑5‑1979 Dost Muhammad and Asghar, accused, were arrested by Muhammad Javed S.I. P.W.10. On this date, both the accused were found fit to give their statements to Muhammad Javed S.I. P.W.10, who recorded the same.
9. The blood‑stained earth recovered from the spot was found to be stained with blood of human origin and the crime empty P.6 recovered from the spot was found to match with the gun P.4 produced by Ghulam Qadir P.W.8 before the Investigating Officer.
10. After completing the necessary investigation, the challan against Dost Muhammad and Asghar, accused, was sent up. Muhammad and Ghulam Muhammad, who were named in the F.I.R. as assailants, were not challaned, as they were held not to be present at the place of occurrence or to have participated therein,
11. The complainant party filed a private complaint against Muhammad and Ghulam Muhammad above‑named who, after preliminary inquiry, were not summoned to face the trial.
12. At the trial, the prosecution produced Muhammad Zaman P.W. 5 and Muhammad Ramzan P.W.9 to prove the motive, the said two witnesses and Ghulam Qadir‑P.W.8 in proof of the ocular testimony, Muhammad Javed S.I. P.W.10, Ghulam Qadir P.W.8 and Muhammad Ramzan P.W.9 in support of the recoveries and Dr. Imtiaz Ahmad Gill P.W.1 and Dr. Khurshid Ahmad P.W.6 to corroborate the medical testimony.
13. The accused, in their statements under section 342, Cr.P.C. denied the allegations. Dost Muhammad, accused, in his statement in reply to question No. 9, gave the following version of the occurrence:
"Two days before the occurrence, Mst. Khurshid sister of Ghulam Qadir P.W. was picking some tomatos from my field, when I caught her and removed her Dopatta in order to admonish her, Ghulam Qadir and the other P.Ws. took exception to it. On the day of occurrence, in the afternoon, I went to Killa No. 21 for a round because my harvest was lying there. Square No. 31 is owned by our enemies. So, I took my father's gun alongwith the bandolier. Killa No. 21 is adjacent to the road, where Ghulam Qadir and other P.Ws. gathered to attack me and they actually dragged me to Killa No. 5 across the road, where I was given a merciless beating. They were trying to snatch my gun and in the struggle it went off and hit Hayat deceased. Ghulam Qadir, Ramzan and others were armed with sticks and a hatchet. Asghar my brother came to rescue me but he was also beaten down. I became unconscious. Ramzan Lambardar rescued us alongwith other inmates of the nearby Dharis. I was taken to my Dhari on a Charpai by the sons of Ramzan Lambardar. One year before the occurrence, Faiz Muhammad Chairman's son Fayyaz was involved in a murder case of my cousin, who was the son of my maternal‑uncle Ghulam Muhammad. Faiz Muhammad, Chairman manoeuvred this case:'
Both the accused led no defence. Asghar, accused, contended that his brother Dost Muhammad, accused, was being beaten and he went to the spot to rescue him and he was given injuries by the P.Ws.
14. The learned trial Judge held that the motive stood established in the case against both the accused. As regards the main occurrence, the trial Judge held that the F.I.R. was lodged after due deliberations and consultations; that the complainant‑party had falsely involved Muhammad and Ghulam Muhammad; that the version of the prosecution that both the accused ran away from the spot after the occurrence did not ring true; that the version of the witnesses was exaggerated; and that the version of the prosecution witnesses that they were going to give medicine to the buffalo of Barkhurdar also did not ring true. However, in view of the fact that the occurrence was admitted, though in different circumstances, the learned trial Judge, after keeping the story of the prosecution and that of the defence in juxtaposition, held that the evidence on the record and the surrounding circumstances showed that Dost Muhammad, accused, had fired first and when he tried to reload his gun he was overpowered by the witnesses, who snatched the gun and inflicted injuries on him and that Asghar, accused, was nowhere in the picture. Accordingly, the trial Judge, convicted and sentenced Dost Muhammad, accused, as stated in para. 1 above and acquitted Asghar, accused.
15. I have heard the arguments of the learned counsel for the appellant, the State and the complainant and have also perused the record. The motive in this case, as set up by the prosecution, has been totally disbelieved by the trial Judge in para. 12 of his judgment. The reasons given by the trial Judge for rejecting the motive are cogent and convincing. No attempt has been made by the learned counsel for the State or the complainant to show that the motive, as set up by the prosecution witnesses, was true and should be believed. In these circumstances, the motive, as suggested by the prosecution witnesses, must by rejected outright.
16. Before giving the ocular account in this case it is necessary to give the relationship of the appellants and the accused inter se and that of the prosecution witnesses inter se. Two pedigree‑tables, as submitted below, show the said relationship.
RELATIONSHIP OF WITNESSES
Bhai Khan
|
Sultan
|
|
|
|
Amir
|
Dil Sher
|
(Mst Ghulam Fatima)
(Mst Faizan Bibi)
|
Fateh Mohd
|
|
Dildar
|
Mst.
Maryam
|
|
Mohd
Hanif
|
|
Mohd.
Hayat
Deceased
|
Meher
|
|
Ghulam
Qadir
P.W.8
Mst.
Khurshid
Amir
Iqbal
Given
Up P.W.
Mohd.
Ramzan
P.W.9
Mohd
Zaman
P.W.5
RELATIONSHIP OF THE ACCUSED
_________________ ________________
| | | |
Sister Mohd. + Wife Ghulam Mohd.
| accused accused
| ______________________
Mohd. | |
Siddique Dost Mohd. Asghar
| accused accused
|
Mst. Zarina
17. The ocular account in this case is furnished by Muhammad Zaman P.W.5, Ghulam Qadir P.W.8 and Muhammad Ramzan P.W.9. Muhammad Iqbal P.W., who was cited in the challan, was given up as unnecessary. Muhammad Zaman P.W.5 is the son of Mehr, a cousin of Muhammad Hayat, deceased, whereas Muhammad Ramzan P.W. 9 and Muhammad Iqbal (given up P.W.) are the nephews of the deceased. Ghulam Qadir P.W.8 is not related to the deceased or the other three eye‑witnesses. The occurrence is admitted by Dost Muhammad, appellant, though in different circumstances. The presence of the eye‑witnesses at the time of occurrence is also admitted by the appellant. The only question, therefore, that arises is whether, after putting in juxtaposition the case of the prosecution and that of the defence, the evidence on the record establishes the case of the prosecution beyond every shadow of doubt or leads to the reasonable inference that the defence story is true or reasonably probable. The learned trial Judge, in para. 11 of his judgment arrived at the following findings, namely, that Muhammad and Ghulam Muhammad, were found innocent during the investigation and were not challaned; that the private complaint filed against the said Muhammad and Ghulam Muhammad was also dismissed after preliminary inquiry; that though no roles were attributed to the said Muhammad and Ghulam Muhammad in the F.I.R. yet at the trial the prosecution had attempted to impute specific parts to them; that the said Muhammad and Ghulam Muhammad were blatantly and falsely involved in the case; that the number of the accused mentioned in the F.I.R. Exh.P.C. was inflated; that it was, therefore, clear that deliberations and consultations had preceded the registration of the F.I.R.; and that the false involvement of Muhammad and Ghulam Muhammad in the case placed the Court on caution in appraising the ocular testimony, despite the fact that the presence of the witnesses at the time of the occurrence was not disputed. The learned trial Judge in para. 12 of his judgment, whilst dealing with the motive set up by the prosecution, came to the finding that the motive, as set up, appeared to be against Ghulam Qadir P.W.8 and Muhammad Ramzan P.W.9 and not against Muhammad Hayat, deceased, who apparently was killed; that the Lalkara given by the appellant to Muhammad Hayat, deceased, did not ring true; that Ghulam Qadir P.W.8 and Muhammad Ramzan P.W.9 themselves in cross‑examination disowned the motive story; and that, therefore, no motive stood established on the record to prompt Dost Muhammad appellant, to kill Muhammad Hayat, deceased. The learned trial Judge in para. 13 of his judgment, whilst dealing with certain aspects of the prosecution story, held that after injuries were sustained by Dost Muhammad, appellant, and Asghar, acquitted accused, they were in serious state of health and not able to run away from the spot, as alleged by the eye‑witnesses, and that the admission of Muhammad Javed S.I. P.W.10 that Muhammad Ramzan, Lambardar had taken Dost Muhammad, appellant, and Asghar acquitted accused, in injured condition from the spot, appeared to be true and correct. The learned trial Judge also held, on the bass of the testimony of Dr. Khurshid Ahmad P.W. 6, that the possibility of Dost Muhammad, appellant, having received some sharp edged injuries from a straight sharp‑edged weapon like a hatchet could not be ruled out and that the possibility that Muhammad Ramzan P.W. 9 was armed with such a weapon, was correct. The learned trial Judge also held that the eye‑witnesses had a tendency and motive to give exaggerated version of the occurrence. The learned trial Judge in para. 16 of his judgment, whilst dealing with the question of participation of Asghar, acquitted accused, held that had Asghar, acquitted accused, been present with the rifle, then the eye‑witnesses would not have dared to overpower both the appellant and him; that had Asghar, acquitted accused, fired a shot from the rifle, as alleged, it is unbelievable that the shot would not have hit any of the witnesses; that the story that Asghar, acquitted accused, ran to the spot after hearing the report of the gun and was injured by the witnesses, when attempting to rescue his brother, appeared to be true; and that Asghar, acquitted accused, did not participate in the occurrence as to be criminally liable. After having arrived at the above findings, the learned trial Judge, in para. 15 of his judgment, proceeded to pick and choose items of facts and circumstances from the evidence of the prosecution witnesses to disprove the defence story of Dost Muhammad, appellant, as pleaded by him in his statement to the Court under section 342, Cr.P.C., and, after drawing certain inferences from the record, held that some exchange of hot words had taken place shortly before the occurrence, while the prosecution witnesses were standing close to the appellant, that the appellant fired the shot which struck Muhammad Hayat, deceased who was standing in front of him and during the interval of time that elapsed between the reloading of the gun, the prosecution witnesses overpowered the appellant and gave him a beating. In the first instance, the findings arrived at by the learned trial Judge in paras. 11, 12, 13, 14 and 16 of his judgment are cogent and correct and based on the evidence on the record. These findings have not been challenged even by the learned counsel for the State and the complainant, who have only attempted to support the inferences drawn by the trial Judge in para. 15 of his judgment. If the said findings, as given in paras. 11, 12, 13, 14 and 16 are accepted, which I have no hesitation in doing, then I must come to the necessary conclusion that the ocular account is false and exaggerated, that the true story has not been given by the witnesses and that the ocular account cannot be accepted with any degree of safety as giving a fair picture of what actually transpired. With this state of affairs, the prosecution story cannot be accepted with any degree of fairness to the appellant. I, therefore, have no hesitation in rejecting the ocular account as being an exaggerated and a false version and one trumped up after due deliberation and consultation.
18. This, therefore, now leaves me with the defence plea of Dost Muhammad, appellant, as given by him in his statement under section 342, Cr.P.C. According to his statement, two days before the occurrence, Mst. Khurshid sister of Ghulam Qadir P.W.8, was picking some tomatoes from his field, when he caught her red handed and removed her Dopatta in order to admonish her. Ghulam Qadir P.W. 8 and other P.Ws. took exception to his conduct. On the day of occurrence, in the afternoon, he went to Killa No. 21 for a round, because his harvest was lying there. Since the Square No. 31 was owned by his enemies, so he took his father's gun alongwith bandolier with him. According to his statement, Ghulam Qadir P.W.8 and the other prosecution witnesses had gathered in Killa No. 21 of Square No. 33, which was adjacent to the road, to attack him and they actually dragged him to Killa No. 5 of Square No. 51 across the road, where he was given a merciless beating. The prosecution witnesses tried to snatch his gun and in the struggle it went off and hit Muhammad Hayat, deceased. Ghulam Qadir P.W. 8, Muhammad Ramzan P.W.9 and other witnesses were armed with sticks and hatchets. Asghar, acquitted accused, his brother, came to rescue him and he was also beaten down. He became unconscious. Muhammad Ramzan, Lambardar, rescued him alongwith other inmates of nearby Dharis. He was then taken to his Dhari on a Charpai by the son of Ramzan, Lambardar. The story of Mst. Khurshid stealing the appellant's tomatoes appears to ring true. This very story accounts for the presence of Ghulam Qadir P.W.8 at the spot and his attempt with others to attack and injure the appellant. Ghulam Qadir P.W. 8 is not related to the deceased and the other three witnesses. The story of Ghulam Qadir P.W.8 going to give medicine to the buffalo of Barkhurdar with Muhammad Ramzan P.W.9 and Iqbal (given up P.W.) has been disbelieved by the learned trial Judge in para. 14 of his judgment and rightly so. The presence of Ghulam Qadir P.W. 8 at the place of occurrence, far away from his home, and his participation in the occurrence, shows that the motive, as stated by the appellant, has a ring of truth. The appellant does not deny the presence of his father's licenced gun and bandolier with him in his defence story. According to him, Square No. 31 was owned by his enemies. He, therefore, had his gun with him. It is admitted by the trial Judge that Dost Muhammad, appellant, had no direct enmity with the deceased and that the origin of the quarrel also is not available from the record. In these circumstances, it is unbelievable that Dost Muhammad, appellant, straightaway would mount an attack on Muhammad Hayat, deceased, for no rhyme or reason. The possibility of some provocation having been given by the deceased is admitted by the learned trial Judge. If it was, it can only be due to the attempt on the part of Ghulam Qadir P.W.8 and his companions to teach a lesson to Dost Muhammad, appellant, Muhammad Ramzan P.W. 5 Muhammad Ramzan P.W. 9 and Muhammad Iqbal (given up P.W.) appear to have acted in aid of Ghulam Qadir P.W.8 to admonish the appellant regarding his conduct with Mst. Khurshid. The large number of sharp‑edged and blunt weapon injuries suffered by Dost Muhammad, appellant, clearly show that he was given a ruthless beating, giving him sufficient apprehension of grievous hurt. In fact, the lacerated wound on the left side of his scalp was found to be grievous. The version of Dost Muhammad, appellant, that after he was subjected to beating, the prosecution witnesses tried to snatch away his gun and in the struggle it went off and hit Muhammad Hayat; deceased, appears to be reasonable and probable. In these circumstances, the defence version of the appellant, as given by him in his statement to the Court under section 342, Cr.P.C. appears to be reasonably probable and has a ring of truth. The appellant has, therefore, established his defence. The appellant, therefore, appears to have acted in the exercise of his right of defence of his person and is, therefore, not liable under section 100 of the Pakistan Penal Code. The appellant has, therefore, made out a case for his acquittal.
19. For the foregoing reasons, this appeal succeeds and the conviction and sentence of Dost Muhammad, appellant, is hereby set aside. The appellant shall be released forthwith, if not required in any other case. The fine, if any, recovered shall be refunded to him.
20. There being no merit in the two private revision petitions (Criminal Revision No. 465 of 1981 and Criminal Revision No. 201 of 1982) filed by Muhammad Zaman, complainant, the same are hereby dismissed in limine.
S.A./D‑4/L Appeal accepted.