MUHAMMAD BAKHSH Versus THE STATE

MUHAMMAD MUNIR KHAN, J .--This Criminal Appeal No. 180 of 1983 and the connected Murder Reference No. 140 of 1983 arise from the judgment of the learned Additional Sessions Judge, Vehari, whereby he on 21-7-1983 convicted Muhammad Bakhsh (45), Falak Sher (25) and Atta Muhammad (22) appellants under section :302/34, P.P.C. for the murder of Abdullah (60) and sentenced them as under:-

(1) Falak Sher and to death and a fine of 8.1,000 each Atta Muhammad appellants. in default thereof 6 months' R.I.

(2) Muhammad Bakhsh to imprisonment for life and a fine appellant of Rs.1,000 in default thereof 6 months' R.I.

The appellants were directed to pay Rs.1,000 each as compensation under section 544-A, Cr.P.C. or in default thereof 6 months' R.I. each. It was further directed that the fine and compensation if recovered be paid to the legal heirs of the deceased.

2. The occurrence took place on 29-10-1981 at 4-00 p. m. in Khasra No. 23, Square No. 38 of Chak No. 66/K.B. Tehsil Mailsi, District Vehari at a distance of 11 miles from Police Station Mailsi. F.I.R. is statement Exh.P.A. of Muhammad Yar P.W. 7 brother of the deceased recorded by Hafiz Khuda Bakhsh, A.S.I. P.W.9 in Civil Hospital, Mailsi on 30-10-1981 at 5-00 p.m. Formal F.I.R. Exh.P.A./1 was drawn up at the police station on the same day at 5-15 p.m. by Ghulam Yasin constable P.W.1.

3. The motive as alleged by the prosecution was that 2 days before the occurrence, Manzoor Hussain P.W.8 was going on bullock cart to his house when Atta Muhammad, Falak Sher and Muhammad Bakhsh appellants mounted the cart against his consent, so he admonished them whereupon they slapped him. Thereafter, Qazi Nazar Hussain, Qazi Ismail and Qazi Ahmad Hassan (all not produced) effected compromise between the parties one day before the occurrence but the accused resiled from the compromise and committed the murder of Abdullah.

4. As for the main occurrence it has been stated that at the eventful time, Abdullah deceased was irrigating his cotton crop at Chah Chowkianwala. Muhammad Yar complainant was present in his own cotton field at a distance of one killa. The appellants armed with Dangs came there. Muhammad Bakhsh gave Dang blow on the head of Abdullah who fell down. Falak Sher and Atta Muhammad appellants then caused injuries to Abdullah with their Dangs. On the alarm raised by Muhammad Yar complainant, Manzoor Hussain P.W.8 and Turez were attracted to the spot. The appellants then ran away taking Dangs with them. Abdullah was firstly removed to his house. The appellants tried to compromise with the complainant party but compromise could not be effected. On the next day Abdullah was removed to Civil Hospital Mailsi and got admitted there at 4-00 p. m. The doctor rang up the police. Hafiz Khuda Bakhsh A.S.I., P.W.9 came to Civil Hospital and recorded the statement Exh.P.A. of Muhammad Yar P.W.7. Abdullah succumbed to the injuries in the hospital on 2-11-1981.

5. Dr. M.A. Rauf Bhatti, P.W.3 examined Abdullah on 30-10-1981 and found 12 injuries on his person. Abdullah was unconscious. His pulse was imperceptible. The pupils were equal and sluggishly reacting to light. The injuries were caused by blunt weapon.

On 2-11-1981, the same doctor conducted post-mortem examination on the dead body of Abdullah and found following injuries: ---

"(1) A swelling 7 x 4 c.m. on the top of head.

(2) A contused area 22 x 10 c.m. around the left shoulder.

(3) A contusion mark 8 x 4 c.m. on the back and middle of left chest with swelling around.

(4) A contusion 6 x 3 c.m. on the back and lower part of left chest.

(5) An abrasion 2 x c.m. on the left side of forehead.

(6) An abrasion 1 x c.m. on the bridge of nose.

(7) A contusion 8 x 3 c.m. on the back and lower part of left fore-arm.

(8) A swelling 7 x 5 c.m. on the back left hand.

(9) An abrasion 4 x 2I, c.m. on the back and lower part of right fore-arm.

(10) A contusion 10 x 4 c. m. with swelling on the back and middle of right fore-arm.

(11) A swelling on the outer side of the right leg.

(12) The whole of right ankle and foot were swollen."

ON DISSECTION:

The scalp was congested under injury No. 1. There was a depressed fracture of parietal bone under injury No.l. The membrance and brain were lacerated. The effused blood on the brain surface was present. The 7th rib on the back and left side of chest was fractured. The left lung was congested. The heart was healthy and empty. The stomach was healthy and empty. The intestines were healthy and contained faecal matter. Rest of the organs were healthy.

In his opinion the death was due to shock and internal haemorrhage as a result of injury No.l, which was individually and the rest of injuries were collectively sufficient to cause death in the ordinary course of nature. The time between injuries and death was about 3 to 4 days.

On 4-11-1981, the doctor examined Atta Muhammad appellant. He found following injuries on his person.

INJURIES:

(1) A healed wound l x c.m. on the left side of head.

(2) A faint contusion 3 x 1 c.m. on the back and middle of left fore-arm.

(3) A faint contusion 6 x 2 c.m. on the outer and upper part of right thigh, slightly yellowish in colour.

The injuries were simple in nature and caused by blunt weapon within 7 to 10 days of the examination.

6. The appellants were arrested on 3-11-1981 by Hafiz Khuda Bakhsh, A.S.[. P.W.9. On the same day Falak Sher appellant led to the recovery of Sota Exh.P.A. (not blood-stained) from his house which was taken into possession vide memo. Exh.P.F. attested by Ghulam Rasool P.W.4 and Ahmad Bakhsh P.W.5. On the same day Atta Muhammad appellant got recovered Danda EXh.P.2 (not blood-stained) from the same house, which was taken into possession vide memo. Exh.P.G. attested by the same witnesses. No recovery was effected from Muhammad Bakhsh appellant.

7. To prove its case, prosecution examined 9 witnesses. Muhammad Yar P.W.7 and Manzoor Hussain P.W.8 have given the ocular account of the occurrence. They claim to have seen the appellants causing injuries with their Dangs to the deceased. They stated that Muhammad Bakhsh appellant had given fatal injury on the head of Abdullah whereupon he fell down. Thereafter, Falak Sher and Atta Muhammad gave Dang blows to him. Muhammad Yar P.W.7 deposed about the motive in his cross-examination. Manzoor Hussain P.W.8 has also supported the alleged motive. Ghulam Rasool P.W.4, Ahmad Bakhsh P.W.5 and Hafiz Khuda Bakhsh A.S.I. P.W.9 supported the recoveries of Dang blows Falak Sher and Atta Muhammad appellants. Since the bangs were not stained with blood, therefore, the same were not sent to the Chemical Examiner. Dr. M.A. Rauf P.W.1 has proved the post-mortem examination report of the deceased as well as the medico-legal report of Abdullah deceased. He has also proved the medico-legal report of the injuries of Atta Muhammad appellant. Rest of the evidence is of formal nature.

8. When examined under section 342, Cr.P.C. the appellants denied all the incriminating circumstances. They raised the plea of false implication on account of enmity. In defence no witness was produced.

9. The trial Court while believing the motive, ocular evidence and the medical evidence has convicted and sentenced the appellants.

10. Learned counsel for the appellants submitted that the prosecution has not been able to prove its case beyond reasonable doubt, inasmuch as, there is inordinate delay in lodging the F.I.R.; that Muhammad Yar P.W.7 and "Manzoor Hussain P.W.8, the eye-witnesses are closely related to the deceased; that they have made divergent statements; that the appellants had no direct motive against the deceased and that the statements of the eye-witnesses suffer from material contradictions and dishonest improvements. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

11. We have anxiously attended to the arguments advanced by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statements of the appellants made under section 342, Cr.P.C. and the circumstances appearing in the case, with care. We feel persuaded to agree with the learned counsel for the appellants and find that there was not only an inordinate delay in lodging the F. I. R. but the same was also recorded after preliminary investigation. The occurrence took place on 29-10-1981 at 4-00 p.m. whereas the report was lodged on next day at 5-00 p.m. i.e. after 25 hours of the occurrence although the police station was at a distance of 11 miles from the place of occurrence, yet no satisfactory explanation for the delay has been given by the complainant. Muhammad Yar complainant has admitted in cross-examination that the Thanedar had visited the place of occurrence on next day of the occurrence at 2-00 p. m. and had recorded his statement on the spot. He further admitted that Manzoor Hussain P.W.8 and Turez, the two eye-witnesses were also present at the spot at that time and made statements before the Thanedar. He has also stated that the Thanedar had secured his thumb-impression on a blank paper and told him to thumb-mark it failing which he would involve him for the murder of Abdullah. Manzoor Hussain P.W.8 has stated that the Thanedar had visited the place of occurrence on next day of the murder at about 4-00 p.m. when Abdullah was still on the spot and that they had shown Abdullah injured to Thanedar, who prepared his injury statement on the spot and thereafter Adbullah was carried to the hospital. The circumstances in which the F.I.R. was prepared indicate that there was sufficient time for consultation and deliberation and that the F.I.R. was, in fact, prepared after preliminary investigation.

12. Adverting to the crucial piece of evidence i.e. the ocular testimony, we find that the two eye-witnesses are not confidence inspiring. They are closely related with each other. Muhammad Yar is brother of the deceased and Manzoor Hussain P.W.8 is son of the deceased. During the interval between the occurrence and the report they could have been easily induced to become eye-witnesses of the occurrence. The statements made by the eye-witnesses suffer from infirmities such as material contradictions, major discrepancies and dishonest improvements. They have given inconsistent statements. In the F.I.R. Muhammad Yar P.W.7 stated that Muhammad Bakhsh appellant was armed with Dang and he inflicted injury on the head of Adbullah, who fell down. Thereafter, he gave another Dang blow on the left ribs of the deceased. In his supplementary statement Exh.D.B., which was recorded immediately after recording of his statement Exh.P.A., he substituted Falak Sher in place of Muhammad Bakhsh and stated that Falak Sher had inflicted blow on the head and left ribs of the deceased and that Muhammad Bakhsh appellant was empty-handed. Same is the position -of Manzoor Hussain P.W.8. Before the trial Court he stated that Muhammad Bakhsh inflicted a Dang blow on the head of Abdullah, who fell down and thereafter he gave Dang blow on his left ribs whereas in his statement Exh.D.A., recorded under section 161, Cr.P.C., the witness had stated that Muhammad Bakhsh appellant was empty-handed, and the injuries on the head and left ribs of deceased were inflicted by Falak Sher appellant. The witnesses have been confronted with the F.I.R. and their statements Exhs. D. A. and D. B. Although Qazi Nazar Hussain was admittedly present on the spot at the time of occurrence and many persons from the Chak had seen the appellants running away and had also chased them yet not a single independent person has been produced by the prosecution. We feel that the statements made by the eye-witnesses are not in consonance with probabilities. Had Manzoor Hussain against whom the appellants had direct motive been present on the spot, he would not have been spared. Furthermore, the appellants had no direct motive against the deceased. If the incident of the motive as alleged by the prosecution is believed then the motive to attack lay with the complainant party and not with the appellants who had slapped Manzoor Hussain P.W.8. The ocular evidence does not fit in with the rest of the evidence. In any case, the rule of prudence requires independent corroboration of their statements qua each accused which is not available in the instant case. For all these reasons, we are of the view that the prosecution has not been able to prove its case beyond reasonable doubt.

The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the appellants, while giving them the benefit of doubt they are acquitted of charges. They shall be released forthwith, if not required to be detained in any other case.

The sentence of Death is Not Confirmed.

S. A. /M-614/L Appeal accepted.