KAUSAR Versus THE STATE Muhammad Akbar Tarar and Dr. Khalid Ranjha , Muhammad Rafiq Butt
MUHAMMAD MUNIR KHAN, J. ‑‑This Criminal Appeal No. 543 of 1983 and the connected Murder Reference No.1 of 1984 arise from the judgment of learned Additional Sessions Judge, Gujranwala whereby he, on 1‑9‑1983 while acquitting Riaz, Ghulam Nabi, Mahmood and Muhammad Sarwar co‑accused convicted Kausar (23) appellant under section 302, P.P.C. for the murder of Manzoor Ahmad and sentenced him to death and a fine of Rs.5,000 in default whereof one year's R.I. with the direction that the fine if recovered, 2/3rd of the same be given to the legal heirs of the deceased.
2. The occurrence took place on 29‑5‑1981 at Maghrab prayer time outside the Dera of Manzoor Ahmad deceased situated in the area of Khoth of Police Station Wandoo, District Gujranwala. F.I.R. is statement Exh.P.B. of Riasat Ali P.W. 10 son of the deceased which, was recorded by Muhammad Ismail A.S.I. P.W. 15 at the Dera of Noor Alam in village Kehrwali at 8‑30 a.m. on 30‑5‑1981. The distance between the place of occurrence and dera of Noor Alam is five 'miles. Formal F.I.R. Exh.P.B./1 was drawn up by Muhammad Sharif Moharrir Head Constable P.W.2 on the same day at 9‑30 a.m. The distance between the place of occurrence and the police station is ten miles.
3. The parties are closely related to each other. Riasat Ali complainant is son of Manzoor Ahmad deceased. Kausar appellant and Mahmood acquitted accused are his first cousin. Sarwar acquitted accused is his uncle and Ghulam Nabi acquitted accused is brother in‑law of Sarwar acquitted accused. Riaz acquitted accused is nephew of Ghulam Nabi co‑accused.
4. The motive as alleged by the prosecution was a dispute between the deceased and the appellant and his co‑accused over the possession of two acres of land. Manzoor Ahmad deceased purchased 5 acres of land from Faqir Muhammad six months before the occurrence. Out of the five acres purchased by the deceased, two acres of land were in possession of Kausar appellant and his co‑accused Muhammad and Sarwar. The deceased desired to obtain the possession of two acres of his land from Kausar appellant and others but they refused to vacate the land, hence this occurrence.
5. As for the main occurrence, it has been stated that at the eventful time, Manzoor Ahmad was offering Naghrab prayer near a fodder cutting machine. Asghar Ali P.W. was sitting there. Riasat Ali complainant P.W.9 alongwith Qaim Ali P.W.12 was sitting in his Behk near the place of occurrence, when Kausar appellant, Mahmood, Sarwar and Riaz acquitted accused armed with Chhuris and Ghulam Nabi acquitted accused carrying a hatchet came there. On the Lalkara raised by Riaz co‑accused that Manzoor should not be spared alive. Ghulam Nabi acquitted accused gave three hatchet blows on the head of Manzoor Ahmad. Kausar appellant gave a Chhuri blow in the chest of Manzoor Ahmad. Sarwar acquitted accused inflicted Chhuri blow on the left side of the chest of Manzoor Ahmad. Mahmood acquitted accused inflicted a Chhuri blow on the ribs of Manzoor Ahmad. Kausar appellant cut the throat of Manzoor Ahmad with his Chhuri. The complainant, Asghar Ali and Qaim Din tried to intervene but were threatened with dire consequences. The appellant and his co‑accused then ran away taking the weapons with them. Manzoor Ahmad succumbed to the injuries on the spot.
6. On 30‑5‑1981 at 4‑30 p.m. Dr. Zaheer Ahmad Choudhry P.W.9 conducted post‑mortem on the dead body of Manzoor Ahmad. He found 43 incised wounds on different parts of the body. On internal examination, he found that the skull, walls of the chest, larynx, trachea, right lung, left lung and pleura were injured. He also found three cuts in the pericardium and heart. In his opinion, the death was due to shock and haemorrhage as a result of the injuries found on the deceased which were caused by sharp‑edged weapons and were sufficient to cause death in the ordinary course of nature. The death was instantaneous. The time between the death and post‑mortem was 18 hours.
7. Kausar appellant was arrested on 9‑6‑1981 by Muhammad Saleem Butt S.H.O. P.W.
13. At the time of arrest, he was wearing blood‑stained Chaddar P.6 which was removed from his person and taken into possession vide memo. P.J. attested by Muhammad Ismail A.S.I. P.W.15. Muhammad Saleem Butt P.W. 13 and Mukhtar Ahmad (not produced). On 13‑6‑1981, he led to the recovery of blood‑stained Chhuri P.5 from a cattle shed which was taken into possession vide memo. Exh.P.F. attested by Muhammad Ramzan P.W.7 and Nazir Ahmad (not produced). The Serologist report Exh.P.O. reveals that Chhuri P.5 and Chaddar P.6 were stained with human blood.
8. The prosecution examined as many as 15 witnesses. Riasat Ali P.W.10 and Asghar Ali P.W.12 have given the ocular account of the occurrence. They claim to have seen the appellant and 4 acquitted accused causing injuries to the deceased with their respective weapons. They supported the prosecution version of the main occurrence in all material particulars. Riasat Ali P.W.10 also supported the alleged motive. Muhammad Ramzan P.W.7. Muhammad Saleem Butt P.W.13 and Muhammad Ismail P.W.15 supported the recoveries of blood‑stained Chaddar P.6 and blood‑stained Chhuri P.5 from Kausar appellant. Dr. Zaheer Ahmad Choudhry P.W.9 has proved the post‑mortem examination report of the deceased. Dr. Muhammad Yousaf P.W.11 had answered the quarries made by the Superintendent of Police, Crimes Branch. His report is Exh.P.H. The rest of the evidence is more or less of formal nature.
9. When examined under section 342, Cr.P.C. the appellant and his co‑accused denied all the incriminating circumstances. They raised the plea of false implication on account of enmity. Kausar appellant tendered document Exh.D.A. to D.D. in his defence. The trial Court examined Rana Maqbool S.P. as a court‑witness. He stated that Muhammad Sarwar, Mahmood, Ghulam Nabi and Riaz co‑accused had raised plea of alibi during the investigation which was found correct and it was also found during the investigation that they had no motive to participate in the murder of the deceased.
10. Learned trial Court was of the view that the participation of the four co‑accused in the commission of the crime was doubtful; that Kausar appellant is young man of 23 years and could inflict 43 injuries to the deceased; that motive was proved against him and that the recoveries of blood‑stained Chaddar and Chhuri have also been established by the prosecution. So while acquitting the four co‑accused the trial Court convicted and sentenced the appellant as stated above.
11. Learned counsel for the appellant contended that the prosecution has also failed to prove its case beyond reasonable doubt against the appellant; that there is inordinate delay of more than 12 hours in lodging the F.I.R.; that the eye‑witnesses have been disbelieved to the extent of four co‑accused; that two eye‑witnesses are related and inimical and that the recoveries of blood‑stained Chaddar and the appellant are highly doubtful. Conversely the learned counsel for the State has supported the judgment of the trial Court.
12. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statements of the accused recorded under section 342, Cr.P.C. statements of the Court‑witnesses and the circumstances appearing in the case, carefully. We feel persuaded to agree with the learned counsel for the appellant. We find that it is a case of inordinate delay in lodging the F.I.R. The occurrence took place at Maghrab prayer time on 29‑5‑1985 and the F.I.R. was lodged on the following day at 8‑30 a.m. The distance between the place of occurrence and the Dera where the F.I.R. was recorded is 5 miles. While explaining the delay, Riasat Ali P.W. 10 stated that he remained with the dead body of his father throughout the night and did not go to police station out of fear of the accused. The explanation given by him is neither reasonable nor satisfactory. In the F.I.R. he did not state that he remained with the dead body of his father throughout the night. In cross‑examination, he stated that he left for police station at about Namazwela in the morning al alone and since the sun had arisen, therefore, he had no fear in going to the police station. So, the possibility that the interval between the occurrence and the registration of the case was spent in consultation and deliberation, cannot be excluded.
13. Adverting to the crucial evidence, i.e. ocular testimony, we find that the two eye‑witnesses are closely related to the deceased. Riasat Ali P.W.10 is son of the deceased. Mst. Sajda, daughter of the elder brother of Asghar Ali P.W.12 was engaged with Muhammad Afzal son of the deceased. The eye‑witnesses are not injured and as such there is no circumstantial guarantee or judicial certainty of their presence at the time of occurrence. Riasat Ali P.W.10, the son of the deceased, was involved in three cases of murderous assault and one case of murder and he was also complainant in a case of murderous assault. Had he been present on the spot at the time of occurrence, when as many as 43 injuries were inflicted on the person of his father, he could not have refrained himself from interfering and could not have escaped unhurt. Similarly, Asghar Ali who was also closely related to the deceased could not be a silent spectator. Furthermore, had the two eye‑witnesses, closely related to the deceased, been present near the place of occurrence, then the accused) might not have given as many as 43 injuries and would have tried to do away with the deceased by inflicting a few fatal blows on the vital parts of the body. A large number of injuries on the person of the deceased shows that no witness was present near the deceased at the time of occurrence. So the assailant /assailants were free to cause as many injuries as he/they wished. The trial Court has virtually disbelieved the statements of the eye‑witnesses against the four co‑accused. The four co‑accused had raised plea of alibi during the investigation, which was found correct as stated by Rana Maqbool Ahmad, S.P., C.W.1. The trial Court was also in doubt with regard to their participation in the occurrence. Asghar Ali P.W.12 was examined on 8‑6‑1983. He did not name Riaz accused at all on that date. He stated that Ghulam Nabi, Kausar, Mehmood and Sarwar accused came over there, Ghulam Nabi was armed with hatchet while the other accused were armed with Chhuri. There was nobody else.
After making this statement he started trembling and feeling pain in the chest and the case was adjourned to 9‑6‑1983, Strangely enough on 9‑6‑1983, the witness stated that Riaz accused was also present and had caused injuries with Chhuri to the deceased. He dishonestly stated that the statement made by him on 8‑6‑1983 was wrong to the extent one accused. The eye‑witnesses, categorically stated that the four acquitted accused had also inflicted number of injuries on the person of the deceased. Contrarily, the trial Court observed that 43 injuries found on the person of the deceased might have been caused by Kausar appellant alone. The statements of the' eye‑witnesses are neither in consonance with probabilities nor fit in with the circumstances of the case. They are not confidence inspiring witnesses. In any case, they are not wholly reliable witnesses and the rule of prudence requires independent corroboration of their evidence qua appellant. The recovery of blood‑stained Chadar Exh.P.6 and blood‑stained Chhuri Exh.P.5 from the appellant seems to be fake and ridiculous. The occurrence took place on 29‑5‑1981 and blood‑stained Chadar was removed from his person on 9‑6‑1981 i.e. after ten days. The conduct of appellant of wearing blood‑stained Chadar for ten days runs counter to natural probabilities. Similarly, blood‑stained Chhuri was recovered from the cattle shed of the appellant after 14 days of occurrence. It is not believable that the appellant would have kept blood‑stained Chhuri intact for two weeks although he could easily wash away the blood. There remains of motive. It is well‑settled that motive cuts both ways. which way it actually cuts depends upon the peculiar circumstances of the case. In the instant case, we are of the view that the benefit of the maxim must not go to the prosecution. Manzoor Ahmad deceased was involved as an accused in two murder cases and as such, he had several enemies, so the possibility that someone else might have settled the account, cannot be excluded. For all these reasons, we are of the view that the prosecution has not been able to brine; home the guilt of the appellant beyond reasonable doubt.
The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the appellant, the appeal is accepted. The appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case.
DEATH SENTENCE IS NOT CONFIRMED.
S.A./K‑90/L Appeal accepted.