FAZAL MUHAMMAD Versus THE STATE
SARDAR MUHAMMAD DOGAR, J .--Bashir Ahmad alias Muhammad Bashir (20) and his father Fazal Muhammad (62), were tried by Additional Sessions Judge, Bhakkar, for having murdered Khushi Muhammad, at 6 p.m. on 25-1-1978, near Dera Muhammad Nawaz, in the area of Chak No. 70/T.D.A., at a distance of 16 miles from Police Station, Bhakkar (then district Mianwali). The learned trial Judge vide judgment dated 16-11-1983, convicted both of them under section 302/34, P.P.C. Bashir Ahmad was sentenced to death while Fazal Muhammad was sentenced to imprisonment for life. Each one of them was ordered to pay a fine of Rs.10,000, in default whereof to suffer R.I. for three years.
2. The convicts have filed appeal. The learned trial Judge has made reference for confirmation of death sentence of Bashir Ahmad. As both the matters arise from the same judgment, they are being disposed of by one judgment.
3. F.I.R. (Ex. P.E.) was recorded at Police Station, Bhakkar on 26-1-1978, at 8-30 a.m. by Allah Ditta, A.S.I. on the statement of Wali Muhammad P.W. 6.
According to the F.I.R., the complainant, the deceased and Fazal Muhammad (appellant) are real brothers. The complainant and his brother Sardar Muhammad were residing in Chak No. 13/14-L, Police Station Kassowal, district Sahiwal, while Fazal Muhammad had taken up residence in Chak No. 70/T D A Police Station Bhakkar. Khushi Muhammad (deceased) who had retired from the army was living with Fazal Muhammad and used to pay him his earnings. Fazal Muhammad had promised to arrange marriage of Khushi Muhammad, but he had not fulfilled the promise. The demand made by Khushi Muhammad for handing over his share in the land and cattle was refused by Fazal Muhammad. Whereupon, Khushi Muhammad approached Wali Muhammad complainant for intervention. The complainant accompanied by P.Ws Nek Muhammad and Rustam went to Chak No. 70/T D A, on the evening of 24-1-1978. They stayed for the night in the house of Khushi Muhammad alias Rala son of Ahmad Din. They went to the Dera of Fazal Muhammad and talked to him about the payment of share of Khushi Muhammad (deceased). Fazal Muhammad agreed and promised to pay share of Khushi Muhammad.
At Degarwela, the complainant accompanied by deceased Khushi Muhammad, P.Ws Nek Muhammad and Rustam went to the Dera of Muhammad Siddique son of Maula Bakhsh, on courtesy call. Shortly thereafter Bashir appellant came there. He was having a Kulhari with him. He demanded a bed from Siddique and went back alongwith Khushi Muhammad deceased, carrying bed with him. While leaving, he told the complainant and the witnesses to come at the earliest. Some time later the complainant and P.Ws went after them. At 6 p.m. when Bashir appellant and deceased arrived near the Dera of Muhammad Nawaz Allahdari, Bashir appellant threw the bed. Fazal Muhammad also came out from the bushes, armed with a Kulhari. While abusing Khushi Muhammad and saying that they will teach him a lesson for demanding share, he struck a Kulhari blow on the head of Khushi Muhammad. He fell down. Bashir gave a Kulhari blow on the neck of Khushi Muhammad. Thereafter, both of them gave blows after blows on the head, neck and hands of Khushi Muhammad. When the complainant and the P.Ws tried to intervene, they were threatened by the appellants. They did not dare to intervene, being empty handed. Khushi Muhammad died at the spot and the appellants went away towards their Dera.
It is stated in the F .I . R . that they could not go to the police station during the night, as there was no transport arrangement.
4. Allah Ditta, A.S.I. had investigated the case. Bashir appellant was arrested by him. However, Fazal Muhammad was arrested by Muhammad Hayat, S.I. (P.W.9.)
After completion of necessary investigation, challan was put to Court.
5. At the trial prosecution in all examined nine witnesses.
Dr. Muhammad Sadiq (P.W.1), who had performed autopsy on the dead body of Khushi Muhammad on 27-1-1978 at 8-30 a.m. at Bhakkar, had noted in all seventeen injuries on the body of the deceased. Excepting injury No. 17, which was a contusion, all others were incised wounds. Seven of the injuries were on the head. According to the opinion of the doctor, death had occurred due to shock and haemorrhage, caused by injuries Nos. 1, 2, 3, 5, 6, 7 and 10, which were opined to be sufficient, even individually, to cause death in the ordinary course of nature.
Injuries Nos. 1, 2, 3, 5, 6 and 7 were on the head, while injury No. 10 was on front of left side of neck.
Probable time between injuries and death was 5 to 15 minutes while between death and post-mortem 24 to 48 hours.
The same doctor had examined Bashir appellant on the same day at the instance of the police at 5 p.m. and had noted following injuries on his person:--
(1) An incised wound, 1" x 3/4" x cutting the bone partially on the back of right shoulder, directed transversely.
(2) Incised wounds each of 3/4" x 1/6" x skin deep on the back of 2nd to 5th fingers of left hand, directed transversely in one line, indicative of inflicted in one stroke.
(3) An incised wound, 1" x 1/6" x skin deep on the back of left thumb in line with injury No. 2 suggesting to be inflicted by the same injury.
All injuries were kept under observation. After X-ray, they were declared simple.
Wali Muhammad (P.W.6), while stating ocular account, repeated the facts given by him in the F.I.R. In addition he stated that after the occurrence, they had sent for Tufail Lambardar and had requested him to accompany them to the police station for registration of the case, but he advised them to proceed in the morning, as no conveyance was available at that time. He also stated that he had produced licensed revolver of the deceased before the police, which was taken into possession by the police. In cross-examination, he stated that Fazal Muhammad was the eldest brother while Khushi Muhammad was the youngest. He stated that they had filed a joint claim of the land left by their father in India and 9 ? acres of land had been allotted to them, in lieu of their claim. He accepted the suggestion that he was occupying the entire land of the joint Khata. He stated that Fazal Muhammad had settled in Chak No. 70/T D A, ten/twelve years before the occurrence. He expressed lack of knowledge when Khushi Muhammad had joined army and when he had retired. He stated that he did not know the post the deceased was holding in Pakistan Army, but had heard that he was Subedar. He also stated that he did not know what pay the deceased was drawing while in service. He denied the suggestion that the woman he was keeping as wife, was earlier the wife of Sadar Din and he had abducted her. He also denied the suggestion that he had lodged an F.I.R against Bashir appellant for having abducted his daughter, Mst. Naseeran Bibi. While answering another question, he stated that they had taken meals with Khushi Muhammad alias Kala. He conceded that Khushi alias Kala was not related to them. In answer to another question, he stated that the revolver, which he had produced before the police was lying under a pillow of a bed in the Baithak of Fazal Muhammad accused. He denied the suggestion that the revolver was lying near the dead body Rustam (P.W.7) corroborated the statement made by Wali Muhammad (P.W.6). In cross-examination he stated that he was stranger in the locality of the occurrence and did not know anyone including Tufail Lambardar. He stated that he did not remember when Tufail Lambardar arrived at the spot.
Both the witnesses denied that they had not witnessed the occurrence.
Muhammad Tufail Lambardar, who appeared as P.W.8 stated that he had gone to the spot on a message received from Wali Muhammad P. W., who had asked for a tractor, for going to the police station. He also stated that he had advised Wali Muhammad to go to the police station early in the morning, as no conveyance was available. He also stated about having witnessed the recovery of Kulharis from the appellants and of having attested the relevant memos. In cross-examination, he stated that he had reached the place of occurrence at 8 or 9 p.m. and that when he reached the spot with the Chaukidar, none else was resent there and the dead body was lying unattended on the path. He gave distance of the house o Siddique from the place of occurrence, to be two squares and the house of appellants, to be at a distance of one and a half squares. According to him, the police had arrived at the spot on the following morning at 9/10 a.m. In answer to another question, he stated that the licensed revolver was also lying near the dead body on the path.
Allah Ditta, A.S.I. who had conducted the investigation died before the trial. The documents prepared by him were proved by Muhammad Hayat, Inspector (P.W.9), as the latter had worked with the former and he could identify the handwriting and signatures of Allah Ditta, A.S.I.
Muhammad Hayat stated that the F.I.R. (Exh.P.E) had been recorded by Allah Ditta and it bore his signatures. He also proved injury statement (Exh. PK) and inquest report (Exh. P.L.): Recovery memos. Exhs. P.D, P.F, P.G. and P.J. written by Allah Ditta and bearing his 'signatures, were also proved. Exh. P.D. pertained to the taking into possession of blood-stained clothes of the deceased, removed from his body at the time of post-mortem examination. Exh. P.F. is recovery memo. of taking into possession of blood-stained earth from the spot. Exh. P.G. is recovery memo of the bed clothes taken into possession from the spot. Exh. P.J. is recovery memo of Kulhari, said to have been recovered from Bashir appellant.
6. Both the appellants in their statements under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence.
Fazal Muhammad in answer to the question, "why this case against you", stated as follows:--
"Wali Muhammad P.W. had taken 13 thousand Rs. from the deceased to marry him, but he did not fulfil the promise. The deceased abducted Naziran the daughter of Wali Muhammad P.W. and brought her to my house. Wali Muhammad P.W. got a case registered against Bashir co-accused, he was found innocent in that case. Wali Muhammad P.W. is inimical to me on that account. Wali Muhammad P.W. is also occupying our ancestral property He has roped me in this false case. I am innocent."
Bashir in answer to the same question, stated as follows:--
"We have been falsely involved in this case by Wali Muhammad P.W. He was inimical towards us on account of the facts that his daughter Naziran had come and lived with us for some time."
17. Learned counsel for the appellants criticised the prosecution evidence and argued that the ocular account in this case has been deposed to by interested and inimical witnesses and they belong to a place far away from the place of occurrence and so their presence at the spot at the time of occurrence is highly improbable. Learned counsel contended that the prosecution has neither been able to prove the motive for the occurrence, nor reliable evidence has been produced to prove the alleged recoveries of weapons of offence. Learned counsel submitted that there is no explanation as to how Bashir appellant was found injured
8. The appeal has beer, preferred through jail. On an application submitted by the appellants for grant of personal hearing, they were summoned from the jail and were heard in person. They repeated the stand, they had taken up before the trial Court and submitted that the complainant had become inimical to them because of family differences and that Khushi Muhammad was murdered by some unknown person in darkness and case was registered against them.
9. Learned counsel for the State defended the judgment of the trial Court.
10. We have considered the contentions of the learned counsel for the parties and have gone through the record.
11. Both the eye-witnesses belong to a Chak near Kassowal, district Sahiwal. The only explanation given by them of their presence at the spot is that they had gone there on the request of the deceased to talk to Fazal Muhammad appellant for sorting out the differences of the deceased with Fazal Muhammad appellant.
If Wali Muhammad and Rustam P.Ws had gone to Chak No. 70/T.D.A. to sort out the differences between the deceased and Fazal Muhammad appellant, as claimed by them, they should have gone to the house of Fazal Muhammad, who is real brother of Wali Muhammad P.W. and friend of Rustam P.W. Their statements, that they had reached Chak No. 70/T.D.A. on the evening of 24-1-1978 and had stayed with Khushi Muhammad alias Kala, for the night, whose residence was at a place near the residence of Fazal Muhammad, lend support to the pleas and stand taken by the appellants during ? trial as well as during personal hearing, that Wali Muhammad had become inimical to them because of family differences before the occurrence. Had that not been true, Wali Muhammad naturally would have gone straight to the house of his brother and so would have Rustam P.W., who claimed friendship with Fazal Muhammad. Their stand that. when they went on the following day to Fazal to talk about the demand of Khushi Muhammad deceased, he (Fazal) readily agreed to hand over the share of the deceased, also negates the prosecution version that Fazal had defrauded the deceased and had refused to share land with the deceased or part with his share in the cattle.
Yet the other aspect in this connection is that according to Wali Muhammad himself, whole of the land allotted against the claim of their deceased father was in his possession. That being the position, Khushi Muhammad would have demanded his share from the complainant, instead of Fazal appellant, whose own share was also in possession of the complainant. There is no evidence that deceased and Fazal Muhammad appellant had purchased any land jointly in Chak No. 70/T.D.A. In fact, Wali Muhammad did not know about the resources of the deceased. He expressed lack of knowledge as to when Khushi Muhammad deceased had joined the army, when he had retired, what rank he held and what pay he was drawing. (He had, however, stated that he had heard that deceased was Subedar.) If that was all that he knew about deceased, how could he vouch-safe that deceased had been giving his earnings to Fazal Muhammad appellant. The prosecution story to that extent seems highly improbable.
12. According to both the eye-witnesses, shortly before the Bashir appellant had taken away the deceased from the Dera of Siddique, to whom both of them had gone to meet. They had also started from that Dera soon after Bashir appellant had left the Dera alongwith the deceased. This Dera, according to Rustam P.W., was two squares away from the place of occurrence. The natural reaction of the witnesses, after the occurrence, should have been to inform Siddique or send for him because they knew him more intimately and his Dera was also close by. But it is admitted by them that. they had neither sent for Siddique, nor had informed him, nor he had come to the spot of his own accord. The other person known to them intimately was Khushi Muhammad alias Kala. It is admitted by the witnesses that he was also not informed. Had these witnesses .been there and their statements that they had stayed with Khushi Muhammad alias Kala, and were at the Dera of Siddique just some time before the occurrence, they would have definitely informed both of them, being strangers in that part of the country. (The fact of their being strangers is admitted by both the witnesses). ??????
Their absence from the spot is also certified by Muhammad Tufail Lambardar (P.W. 8), who in cross-examination stated that none else was present at the spot when he had gone there along with to Chaukidar and the dead body was lying unattended on the path. Now, if the two witnesses had been at the place of occurrence, their natural course would have been to stay at the spot or move to the police station. It is admitted by them that they had not gone to the police station on the evening or during the night. Their absence from the place of occurrence, soon after the occurrence, was unnatural and there is no hypothetical answer even, to the argument of the learned counsel for the appellants that these witnesses were not present at the spot, at the time of occurrence and had not witnessed the occurrence.
Yet the other thing which has attracted our attention is that according to Tufail (P.W.8), licensed pistol of the deceased was lying near his dead body and the same was produced before the police. Although Wali Muhammad has stated that he had produced licensed pistol of the deceased before the police, but he did not say that he had picked up the same from near the dead body. According to him, he had picked up the pistol from a bed from the house of Fazal Muhammad appellant. If his statement that the pistol was lying in the house of Fazal Muhammad is correct, there was no occasion to produce that pistol before the police, because apparently, it was not connected with the crime. At the best it belonged to the deceased and the appellants could have no right to keep it, but then the complainant could have kept it with him as belongings of deceased. Articles not; connected with the crime and being no evidence, are not to be handed over to the police. Since the fact of the pistol having been produced before the police is an admitted fact, we have to accept the statement of Muhammad Tufail (P.W.8) that it was picked up from near the dead body of the deceased. The failure of these witnesses, particularly j the complainant, to have mentioned the existence of pistol of the deceased near his dead body, also lends support to the contention of the learned counsel for the appellants that they had neither seen the deceased being murdered, nor had reached the spot even immediately after the murder, on the evening of the occurrence.
13. Another important aspect is that if the appellants had decided and planned to murder the deceased, at the place of occurrence, and Fazal appellant was sitting there in ambush, waiting for the deceased and Bashir appellant, then Bashir appellant would not have invited and asked the complainant and other P.Ws to follow them soon, as in that case, he could have understood that if the witnesses follow them soon, they will become eye-witnesses of the murder. The stance of the prosecution, therefore, that Bashir appellant had taken away the deceased from the company of the witnesses telling them that they should follow them soon, is not only improbable, but also makes the story of the prosecution doubtful and unnatural.
14. Although there is no positive evidence to hold that the F.I.R. in this case had not been registered even at 8-30 a.m. on 26-1-1978, but the fact of the post-mortem having not been performed on 26-1-1978 and the same having been done on 27-1-1978, does lead to inference that the police had not been informed in early hours of the morning of 26-1-1978 or that at least the police had not registered the F. I. R. in the early hours of the morning. Had that been done, free dead body could have been despatched to Bhakkar, where post-mortem was performed, before 12 noon and since the distance between place of occurrence and Bhakkar was only 16 miles, the post-mortem would have been done on the same day at least before sunset.
15. On having scrutinized the ocular account and having considered all aspects of the case and taking into account the fact that none from the vicinity was cited as a witness, doubts have arisen in our mind about the truthfulness of the ocular account. The complainant in this case although is real brother of appellant Fazal Muhammad, but it is apparent from the record that they had conflicts, their interests varied and there was unhappiness between them. Moreover, the injuries found on the body of the deceased also speak of the fact that poor man was done to death by some persons brutally. Had Wall Muhammad P.W. been there, he might not have been able to save the deceased by actual intervention, but would have succeeded in belittling the onslaught and number of injuries by beseeching the accused, in the name of blood affinity.
16. The evidence that Bashir appellant was found injured at the time of his arrest and so was got medically examined by the police, does not advance the case of the prosecution, as none has stated that he had suffered those injuries during the occurrence. In fact, no reference was made to his injuries except that he was got medically examined. No question in this regard was put to him during statement under section 342, Cr.P.C.
17. In the circumstances, grave doubts have arisen in our mind about prosecution having succeeded to prove the case against the appellants. The evidence of recovery of weapons of offence, although is not coming from reliable source, but even if the same is believed, cannot advance the case of the prosecution, in the absence of reliable ocular account. This appeal is, therefore, accepted and the appellants are acquitted by way of grant of benefits of doubt.
M.Y.H./F-45/L ?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.