MUHAMMAD ABBAS Versus THE STATE
The appellants Muhammad Abbas, aged 23 years, and Muhammad Afzal, aged 25 years, both sons of Lal Khan, have challenged the order of their conviction and sentence, dated 4‑8‑1980 passed by the learned Sessions Judge, Gujrat, whereby Muhammad Abbas appellant was sentenced to suffer three years' rigorous imprisonment under section 325, P.P.C. plus a fine of Rs.5,000 and in default thereof to suffer further one year's rigorous imprisonment. He was also ordered to pay a sum of Rs.5,000 as compensation to the legal heirs of the deceased Allah Ditta and in default thereof to suffer further three months' rigorous imprisonment. The appellant Muhammad Afzal was sentenced to five years' rigorous imprisonment under section 304, Part II, P.P.C. plus a fine of Rs.5,000 or in default to suffer further two years' .rigorous imprisonment for causing one injury on the head of the deceased Allah Ditta. He was directed to pay a sum of Rs.5,000 as compensation to be paid to the legal heirs of the Deceased Allah Ditta and in default thereof to suffer further six months' rigorous imprisonment. It may be mentioned that the co‑accused of the appellants namely, Abdul Rahman alias Abdul, Shafique, Sabir Hussain and Safdar Hussain, have been acquitted by the learned trial Court vide the same judgment.
2. Briefly stated, the facts of the prosecution case are that Abdul Rahman alias Abdul, son of Allah Rakha, aged 70 years, Shafique son of Abdul Rahman, aged 35 years, Sabir Hussain son of Chanan Khan, aged 45 years, Safdar Hussain son of Muhammad Ashraf, aged 20 years, Muhammad Abbas, aged 23 years, and Muhammad Afzal, aged 25 years, both sons of Lal Khan, were challaned under section 302/148/149, P.P.C. by the Police Station Sarai Alamgir, District Gujrat, on the allegations that on 2‑8‑1978, at about noon time within the area of village Qasba Kariali formed an unlawful assembly with common intention of causing the death of Allah Ditta while armed with deadly weapons and consequently in execution of their common object, committed the murder of Allah Ditta. F.I.R. Exh.P.N. was lodged by the complainant Daulat Ali (P.W.7). The complainant disclosed in the F.I.R. that he as well as his brother Allah Ditta deceased were present at noon time in their field which field is at a distance of one mile from their village towards the southern side. Both of them were busy in grazing their cattle when the appellants Muhammad Afzal and Muhammad Abbas armed with sticks alongwith the acquitted co‑accused, namely, Sabir Hussain armed with a hatchet, Shafique, Safdar Hussain armed with sticks came to the spot. Abdul Rahman, acquitted co‑accused shouted whereupon appellant Muhammad Afzal gave a stick blow which landed on the head of Allah Ditta deceased. Sabir Hussain, acquitted co‑accused caused a hatchet blow from its wrong side on the head of Allah Ditta who on the receipt of these injuries fell down on the ground. Thereafter, Muhammad Abbas appellant inflicted a stick blow on the left arm of Allah Ditta deceased. Shafique, acquitted co‑accused, gave a stick blow which landed on the back side of right hand of the complainant Daulat Ali (P.W.7). Similarly, Safdar Hussain, acquitted co‑accused, injured the complainant Daulat Ali by causing a stick ‑blow on his left shoulder. The incident was witnessed by Bashir Ahmad (P.W.4) and Muhammad Hanif (P.W.6) who were grazing their cattle in the nearby field.
3. The motive of the prosecution story is that the cattle of Abdul Rahman, acquitted co‑accused, entered into the field of the complainant a day earlier to the occurrence at Deegarwela and they caused some damage to the standing crop. Allah Ditta deceased raised an objection and thereon there vas an exchange of abuses between the parties. They also grappled with each other. For this grievance; the accused party injured the complainant Daulat Ali as well as his brother Allah Ditta who later on died on account of the injuries received by him in the Civil Hospital, Jhelum on. 18‑8‑1978. It may be observed that earlier a criminal case under Section 307, P.P.C. was registered but the offence was later on changed to section 302, P.P.C. after the death of Allah Ditta.
4. The F.I.R. was recorded by Nazar Hussain M.H.C. (P.W.8) who sent a copy thereof alongwith the medico‑legal report to Muhammad Qasim A.S.I. (P.W.10) who recorded the statements of the witnesses. He inspected the spot on the following day. He then proceeded to the Civil Hospital in order. to record the statement of Allah Ditta but the same could not be done because of the precarious condition of the injured Allah Ditta. The witness received the information on telephone from Dr. Abdul Shakur about the death of Allah Ditta on 18‑8‑1978 at 2‑50 p.m. On the receipt of the information the witness went to the hospital. He prepared the inquest report Exh.P.Q. The dead body was despatched to the mortuary at Kharian. After this, the investigation was transferred to S.H.O. Police Station Muhammad Yaqub (P.W.11). This witness arrested the accused. Muhammad Afzal appellant led to the recovery of stick P.3 from his house. Similarly, the other accused led to the recovery of their sticks and hatchet from their respective houses.
5. Dr. Muhammad Sami Tariq (P.W.5) medically examined Allah Ditta and found the following injuries on his person:‑
(1) An abraded swelling on the right parietal region right side on to the posterior in direction.' Abrasion was equal to " x ", swelling was equal to 2 " x 2 " with bleeding from the right ear.
(2) A swelling on the posterior side of the left lower arm at a junction of middle and lower third left lower arm equal to 2 " x 2"
(3) A swelling on the right lower third left arm 2" x 1 ". The injuries were kept under observation. The doctor opined that the injuries had been caused within the duration of 6 to 8 hours with a blunt weapon.
6. On 18‑8‑1978, the same doctor conducted the post‑mortem examination on the dead body of Allah Ditta and found the following injuries on his person:‑
(1) A swelling with light brownish scab around an area of abrasion on it on the right temporo‑parietal region 3" x 2‑3/4".
(2) A swelling with fracture of right ulna 2" x 1 " .
(3) A fracture with swelling of left ulna 1 " x 1 " x 1".
In the opinion of the doctor, Allah Ditta died because of head injury which was sufficient to cause death in the ordinary course of nature. The injury was ante‑mortem and was caused by a blunt weapon. Time between injuries and death was six days and between death and post‑mortem about 4 hours.
7. The same doctor medically examined Daulat Ali (P.W.7) and found the following injuries on his person:‑
(1) A bruise on the left side back of left shoulder.
(2) A swelling on the little and ring finger and first inter joint of right hand.
Both the injuries were simple and caused by a blunt weapon within 6 to 8 hours. The doctor also opined that the possibility cannot be ruled out that the injuries of Daulat Ali P.W. could be self ‑suffered.
8. The prosecution in order to prove its case against the accused produced as many as 12 witnesses in all. Daulat Ali (P.W.7) is the complainant and is the real brother of the deceased Allah Ditta. He has supported the version of the prosecution. Bashir Ahmad (P.W.4) and Muhammad Hanif (P.W.6) are the two eye‑witnesses who have supported the case of the prosecution. They are also the witnesses of the recoveries. Both the eye‑witnesses are the first‑cousins of the deceased. The appellants Muhammad Abbas and Muhammad Afzal are grandsons of Abdul Rahman alias Abdul acquitted co‑accused. Sabir Hussain acquitted co‑accused is nephew of Muhammad Afzal appellant. Shafique acquitted co‑accused is son of Abdul Rahman, acquitted co‑accused. Daulat Ali complainant (P.W.7) in the case stated that Muhammad Afzal appellant caused a stick blow which hit Allah Ditta deceased on his head. Sabir Hussain, acquitted co‑accused, gave a hatchet blow from its wrong side on the head of the deceased. On receipt of these injuries, Allah Ditta fell down on the ground. Thereafter, the appellant Muhammad Abbas inflicted a stick blow which landed on the right arm of the deceased. He further stated that he was injured by Shafiq and Safdar Hussain acquitted co‑accused. This statement of the complainant is supported by Bashir Ahmad (P.W.4) and Muhammad Hanif (P.W.6). This is all about the eye‑witness account given by the prosecution.
9. All the accused denied the prosecution allegations while making statements under section 342, Cr.P.C. They alleged enmity and pleaded innocence. The appellant Muhammad Afzal while answering a question stated that Ajaib, real uncle of Allah Ditta deceased, moved a complaint against Allah Ditta deceased and Daulat Ali (P.W.7) for illegal possession of his land before the Local Committee of the village. It is stated that Abdul Rahman alias Abdul acquitted co‑accused was the Propaganda Secretary of the said Committee, and that he had sympathetic attitude for Ajaib and he had opposed Allah Ditta and Daulat Ali for which they had enmity towards them. To the same effect is the statements of the other accused including the other appellant. Ghulam Hussain D.W.1 was produced in defence. He produced the record from Junaid Cotton Factory Kotri for the month of August 1978, and that related to Shafique acquitted co‑accused.
10. The learned defence counsel at the very outset submitted that so far as the appellant Muhammad Abbas is concerned, there is enough evidence to justify his conviction and sentence awarded to him by the learned trial Court. However, the learned counsel forcefully submitted that there is absolutely no evidence to connect the appellant Muhammad Afzal with the commission of crime. He submitted that the medical evidence is not in line with the ocular account given by the P.Ws. Learned counsel maintained that there is delay in lodging the F.I.R. Learned counsel stated that the witnesses are admittedly related and are interested as such, no reliance can be placed on their deposition. Lastly the learned counsel submitted that it is established that there was only one injury on the head of the deceased Allah Ditta and that according to the eye‑witness account, appellants Muhammad Afzal and Muhammad Abbas gave two injuries on the head of the deceased. The learned State counsel has half heartedly supported the conviction and sentence awarded to the appellant Muhammad Afzal. I have anxiously considered the arguments raised by learned counsel for the parties. So far as Muhammad Abbas appellant is concerned, learned counsel for the appellants has frankly conceded that there is ample evidence to justify his conviction and sentence. However, learned counsel for the appellants stated that the appellant Muhammad Abbas was released on bail by the High Court and, therefore, he should be sentenced for the period already undergone by him. I do not find any justification to award lesser sentence to this appellant for the period already undergone by him. The appeal of Muhammad Abbas appellant is, therefore, dismissed and his conviction and sentence are maintained. He is on bail. He should be re‑arrested to undergo the remaining period of his sentence.
11. Regarding the other appellant Muhammad Afzal, I am of the view that the prosecution has not been able to prove its case against him. The eye‑witness account provided by Bashir Ahmad (P.W.4), Muhammad Hanif (P.W.6) and Daulat Ali (P.W.7) is crystal clear inasmuch as two head injuries were caused to the deceased by appellant Muhammad Afzal and Sabir Hussain acquitted co‑accused. Muhammad Afzal appellant is alleged to be armed with a stick, whereas Sabir Hussain, acquitted co‑accused had a hatchet with him. Sabir Hussain caused a hatchet injury from its wrong side on the head of the deceased. Similarly, the appellant Muhammad Afzal is stated to have given a stick blow which landed on the head of the deceased. Sabir Hussain has been acquitted by the learned trial Court. It is clear from the evidence of complainant Daulat Ali (P.W.7) that Muhammad Afzal appellant inflicted a stick blow which hit the deceased Allah Ditta on his head. The witness vividly stated that the hatchet injury from its wrong side given by Sabir Hussain, acquitted co‑accused, also landed at the same place Dr. Muhammad Sami Tariq (P.W.5) conducted the post‑mortem examination on the dead body of the deceased Allah Ditta and he found only one head injury on the deceased. Under these circumstances it is difficult to rind out as to who caused the fatal injury on the person of the deceased. According to the witnesses, two injuries were caused on the head of the deceased; whereas Dr. Muhammad Sami Tariq (P.W.5) stated that there was only one injury on the head of the deceased Allah Ditta. Therefore, the eye‑witness account is in direct conflict with the medical evidence. Apart from that there is nothing on the record to show as to whose injury proved fatal, whether that injury was caused by the appellant Muhammad Afzal or for that matter, that injury was inflicted by Sabir Hussain, acquitted co‑accused. Therefore, this is a case of grave doubt. The prosecution has wholly failed to fix the criminal liability on any one of the two accused who was responsible for the death of Allah Ditta deceased.
12. The upshot of the above discussion is that the prosecution has miserably failed to prove its case of murder against Muhammad Afzal appellant beyond any doubt. Accordingly, by giving him the benefit of doubt, I proceed to set aside his conviction and sentence and acquit him. His appeal is accepted. Appellant Muhammad Afzal is already on bail granted by the High Court. He shall be discharged of his bail bonds.
S.A. /M‑811/L Appeal partly accepted.