BAHADAR Versus THE STATE

SARDAR MUHAMMAD DOGAR, J. ‑‑ Bahadur son of Amir and Murad son of Sher, both aged 20 years, were tried by Additional Sessions Judge, Jhang, under section 302/34, P.P.C, for having murdered Muhammad Hayat and Mahmood Akhtar, both aged 18 years, on 19‑1‑1984, at 12‑30 p.m., in Chowk Adda Haveli Bahadur Shah, on the road, within the area of Haveli Bahadur Shah, at a distance of 29 k.m., from Police Station, Shorkot. The learned trial Judge convicted both of them under section 302/34, P.P.C, on two counts, and sentenced each of them, on each count, to death, plus to pay a fine of Rs.10,000 each, in default whereof to undergo R.I. for one year each. Each one of them has also been directed to pay a sum of Rs.10,000 as compensation to the heirs of each deceased, or in default to suffer R.I. for one year each.

2. The convicts have filed appeal. The learned Additional Sessions Judge has made reference for confirmation of death sentences. Both the matters are being disposed of by one judgment.

3. F.I.R. (Exh.P.L./1) was registered at the police station at 1‑30 a.m. during the night between 19th/20th of January, 1984, by Zahur Ahmad, M.H.C. (P.W.10), on receipt of statement (Exh.P.L.) of Sikandar Hayat (P.W.11), recorded by Muhammad Saleem, Inspector/S.H.O. (P.W.13), at Civil Hospital, Jhang, during the same night at 12‑5 a. m.

According to the F.I.R., the complainant alongwith Mahmood Akhtar and Muhammad Hayat (both deceased in the present case) boarded a bus from Adds Mahram Shah for Haveli Bahadur Shah at 12‑30 p.m. on 19‑1‑1984. Appellants also boarded the same bus. The bus reached Adds Haveli Bahadur Shah at 1 p.m. The complainant alighted from the bus alongwith the two deceased and so did appellants. Both the appellants raised a Lalkara that they will teach a lesson for having quarrelled at Mela Lohi. Bahadur gave Chhuri blows to Muhammad Hayat on the abdomen and chest. When Mahmood Akhtar went ahead to save him, Murad gave him injuries with the knife on abdomen, chest and shoulder. Both the injured fell down. Thereafter, both the appellants caused injuries to Muhammad Hayat. The occurrence, apart from the complainant, was witnessed by given up P.W. Asghar Ali and Mahar Sarang (P.W.12). The accused ran away from the spot after the occurrence. They had threatened the witnesses on their having tried to intervene.

Motive for the occurrence was that 4/5 days prior to this occurrence, Muhammad Hayat and Mahmood Akhtar had abused and given fist blows to the appellants alongwith their companions in the Lohi Mela, at Jandi Dakhli Mahram Sial. Both the appellants had issued threats at that time that they will teach them a lesson.

4. Muhammad Saleem, S. H .O. , after recording statement (Exh.P.L. ) examined the dead body of Muhammad Hayat and entrusted the same for post‑mortem examination to the constables after preparing injury statement (Exh.P.Q.) and inquest report (Exh.P.Q./1). Blood‑stained clothes of Muhammad Hayat and Mahmood Akhtar, who died later, which had been removed after medico‑legal examination, prior to the arrival of the S.H.O. were taken into possession by him vide memos. Exhs.P.M. and P.N. respectively, on the same having been produced by Sikandar Hayat complainant. The memos. were attested by the complainant, Ahmad Nawaz and Muhammad Arif, apart from the S.H.O.

He made an application (Exh.P.G.) to the doctor soliciting opinion if Mahmood Akhtar was fit to make a statement. The doctor expressed opinion (Exh.P.G./1) that he was not fit to make a statement. Thereafter, he proceeded to the spot and inspected the same on 20‑1‑1984.

On receiving information about the death of Mahmood Akhtar on 25‑1‑1984, he visited the hospital and dispatched the dead body of Mahmood Akhtar for post‑mortem examination, after preparing necessary papers.

Bahadur appellant was arrested by him on 21‑1‑1984. He got recovered blood‑stained Chhuri (P.9) buried outside the courtyard of his house on 26‑1‑1984. It was taken into possession vide memo. Exh.P.O.

During cross‑examination, he stated that he had learnt about the occurrence through the constable when he was on patrol duty, for which he had proceeded at 8 p.m. from the police station during the same night. He admitted that he did not record the statement of the constable in this regard. He stated that he had reached the hospital between 11/12 midnight. In answer to another question, he stated that he had interrogated shopkeepers of the shops around the place of occurrence, but none claimed having seen the occurrence. He admitted that a telegram and some applications were received at the police station, with copies to the higher authorities from 27‑1‑1984 onward on behalf of Murad that he was innocent and had been falsely involved in the case and that he was present in Qulkhawani at Chak No.324/T.T. Singh.

5. Murad appellant was arrested by Allah Bakhsh Inspector (P.W.8) on 18‑2‑1984. He led to the recovery of knife (P.3) from his cattle‑shed, which was taken into possession vide memo. Exh.P.C. He also admitted in cross‑examination that Murad and his father had given various application during investigation claiming that Murad was innocent.

6. Fourteen witnesses were examined at the trial by the prosecution. Asghar Ali, an eye‑witness named in the F.I.R. and five other witnesses including one Muhammad Azam were given up as unnecessary.

The ocular account was deposed to by Sikander Hayat complainant (P.W.11) and Sarang Khan (P.W.12).

Sikandar Hayat re‑narrated the facts given by him in the F.I.R. During cross‑examination, he stated that a lot of persons including shopkeepers had witnessed the occurrence. He gave the names of Talib, Mulazim, Shah Muhammad and Fazil specifically. He admitted that he had not named them as witnesses in the F.I.R. He also stated that the buses ply round the clock from the Chowk where the occurrence took place. In answer to another question, he stated that while boarding bus, he and the deceased had noted the accused and they had also noted them. According to him, they had travelled peacefully to the Chowk where the occurrence took place. He admitted that 'they had not produced the tickets of the bus to the Investigating Officer. He expressed lack of knowledge of anyone having chased the accused after the occurrence. He admitted that Rural Health Centre, Haveli Bahadur Shah, where an M.B.,B.S. doctor is posted was only half a furlong from the place of occurrence, but they had not taken any of the deceased in injured condition for first aid. According to him they had reached Jhang hospital at 3‑30/3‑45 p.m. He conceded that he had not sent anyone including the witnesses to report the matter to the police. The explanation he gave is that they were worried about the injured persons. In answer to another question, he stated that Mahar Ghulam Abbas Bharwana and Muhammad Arif were already present in Jhang hospital and so many other relatives had also reached the hospital before the arrival of the police. He denied the 'suggestion that both the deceased used to follow a college girl from Haveli Bahadur Shah and that both the deceased were waiting for the said girl and the relatives of that girl had beaten them and both had suffered injuries in that incident. He also deposed having witnessed the recovery of Chhuri (P.9) at the pointing of Bahadur appellant.

Sarang Khan (P.W.12) corroborated the statement made by Sikandar Hayat (P.W.11) in so far as it pertained to the actual occurrence. According to him, he had accompanied the deceased to Jhang hospital and had remained there for the whole night. While explaining his presence at the spot, he stated that he had returned from village Rustam Sargana, where he had gone a day before, in order to participate in the Punchayat to settle the dispute between Murad of village Rustam Sargana and Sarang and Karam. The dispute, according to him, pertained to land. On confrontation with Exh.D.C., the statement he made before the police, he was found to have given entirely a different reason for visiting village Rustan Sargana, in that he was found to have stated that he had gone there to see one Karam Bothana. He denied that he had made that statement.

Ghulam Akbar (P.W.7) deposed about having witnessed the recovery of knife (P.3) at the instance of Murad.

Ghulam Abbas (P.W.6) deposed about motive for the occurrence. According to him, he was sitting in Mela Lohi near graveyard. Muhammad Hayat and Mahmood Akhtar (both the deceased) were sitting with their companions at some distance from them. The appellants were walking over the graves. Hayat asked them to be respectful to the graves. Bahadur retorted and said that the graves did not belong to his father. Whereupon, Hayat and Mahmood abused them and slapped them. The accused left the place threatening that they will avenge the insult.

7. Dr. Muhammad Latif Malik, who had medically examined both the deceased during life and had performed autopsies after their death appeared as P.W.9.

He had examined Mahmood Akhtar at 4 p.m. on 19‑1‑1984 and had noted following injuries on his person:‑

(1) A stab wound, 3 x 4 cm x unprobed, situated on the left side of abdomen, just below the sub‑constal margin 4 cm away from the midline, towards outside. Corresponding cut was present on the sweater and shirt.

(2) A stab wound, 1 x 0.5 c m unprobed on the right side on the chest, upper part near shoulder. Corresponding cut was present on the sweater and shirt.

According to his opinion, both the injuries were caused by sharp‑edged weapon, within the period of 1 to 3 hours. Injuries were, however, kept under observation.

Muhammad Hayat was examined by him on the same day at 4.15 p.m. He had noted two stab wounds, three incised wounds and four abrasions. One of the abrasions was defined as 'multiple'. The incised wounds and stab wounds were opined to have been caused by sharp‑edged weapon while abrasions were opined to have been, caused by blunt weapon.

The autopsy on the dead body of Muhammad Hayat was performed by him at 3‑30 p.m. on 20‑1‑1984. He noted the same injuries as he had noted at the time of medical examination.

According to his opinion death had resulted due to shock and haemorrhage, resulting from injuries Nos. 1 to 5, which were stab wounds and incised wounds. Injury No.2, according to him, was sufficient to cause death in the ordinary course of nature.

The autopsy on the dead body of Mahmood Akhtar was performed by him on 25‑1‑1984. Apart from the two injuries he had noted at the time of medical examination, he also noted a stitched laparotomy wound on the body of the deceased.

Cause of death opined by him was shock and haemorrhage and peritoneous, resulting from injury No.2, which has been defined as follows:‑

(2) A stitched wound, 3 cm in length situated on the left side of abdomen just below the subcostal margin, 4 cm away from the midline towards outside.

During cross‑examination, he stated that the injured person were brought by one Muhammad Arif son of Sultan Mahmood and he had received the medico‑legal certificates from him, after signatures as token of receipt. He stated that he had not sent any information to the police and the police had come to the hospital of their own.

8. Both the appellants during their statements under section 342, Cr.P.C. denied the prosecution case and pleaded innocence.

Muhammad Murad in answer to the question, "Have you anything else to say? , stated as follows:‑

"I am innocent. I was not present at the spot at the relevant time. On that day I was in Chak No.324 Praha, District T.T. Singh, in a Qul Khawani. I came to learn about the occurrence on 22‑1‑1984. I submitted so many applications to the higher authorities in this respect. I also informed the higher authorities telegraphically. I produced lot of persons in my defence who deposed in favour of my alibi before the I.O. and D.S.P. Shorkot. Pehlwan Kirtoana is my sworn enemy and he was author of this story. He has kept back and has prevailed upon the complainant party to involve me in this false case."

He produced Kamir Khan (D.W.1) and Haji Abdul Aziz (D.W.2) in support of plea of alibi taken by him.

Bahadur did not produce any evidence in defence.

9. Learned counsel for the appellants contended that Sikander complainant was related to both the deceased and so interested and that Sarang Khan was a chance witness. Learned counsel contended that both of them do not appear to have witnessed the occurrence. Learned counsel argued that the F.I.R. in this case had been lodged after unexplained delay of 12 hours, that the story put forth by the prosecution appears highly improbable and that the evidence of recovery of weapons of offence does not inspire confidence. Learned counsel contended that the prosecution has failed to prove motive and that even if the statement of P.W.6 is given any credence, it seems unbelievable that the appellants would have committed such an occurrence, for such a minor quarrel.

10. Learned counsel for the State defended the judgment of the trial Court.

11. Sikander (P.W. 11) is related to both the deceased. He had lodged the F.I.R. Police Station Shorkot, where the case was registered is 29 k.m. from the place of occurrence towards West. The District Headquarters Hospital, Jhang is 17 miles towards east to the place of occurrence. Both the eye‑witnesses accompanied both deceased in injured condition to Jhang hospital. Not only anyone of the did not proceed to the police station for making the report, no arrangement was made by them also to inform the police about the occurrence. The injured and the witnesses, according to the complainant, had, reached Jhang hospital between 3‑30/3‑45 p.m. The medical examination' of both the injured had been completed before 4-30 p.m. Even thereafter the complainant did not proceed to the police station, nor did he depute Sarang Khan, the other witness, who was available at the hospital, all the time.

Mahar Ghulam Abbas Bharwana and Muhammad Arif had reached the hospital even before the arrival of the injured. Some other relatives of injured had also reached the hospital thereafter but before the arrival of the police. In the circumstances, the explanation given by Sikander P.W. that he did not go to the police station to lodge the F.I.R. because of anxiety about the injured persons (the deceased in this case) is not only unimpressive but unsound also. Sikander as well as Sarang had not even moved out of the hospital for proceeding to Shorkot to lodge the F.I.R till the arrival of the Inspector S.H.O. i.e. some eight hours after the medical examination of the two deceased was over and one of them had died also. The S.H.O. had reached the hospital of his own on information received by him through some constable, which information he had received after 8 p.m. The delay of 7 or 8 hours or for that matter even of 12 hours may not be so significant so as to be fatal to the prosecution case in normal circumstances but in this case the complainant having taken no steps to lodge the F.I.R. even till eight hours after the medical examination of the two injured/ deceased was over, particularly when many of the relatives of the injured deceased were available to look after them, since just about the time when the deceased were admitted to hospital in injured condition makes the case of the prosecution about delay in lodging the F.I.R. not only unexplainable, but highly doubtful too.

Yet the other aspect is that the claim of Sikander P.W. of having accompanied the deceased in injured condition to the hospital and of his having got them admitted to hospital and got them medically examined, is negated by the statement of the doctor, according to whom, it was one Muhammad Arif, who had brought them for medical examination and it was he who had received the medico‑legal certificates.

The admission made by Sikander complainant during cross‑examination that many shopkeepers had witnessed the occurrence, out of whom he had given the names of four also, is in a way contradictory to the position he had taken up in the F.I.R., wherein he stated that the occurrence was witnessed by him and Sarang.

In the circumstances, we are of the view that Sikander P.W. was not present at the time of occurrence, nor had he witnessed the occurrence. Had he witnessed the occurrence, he would have sent somebody from the spot to the police station to inform about the occurrence before proceeding to hospital at Jhang. In any case, if he had missed to do that, he would have definitely gone from the hospital to the police station to lodge the F.I.R. after medical examination of the two deceased after 4.15 p.m.

The claim made by Sarang P.W. of having witnessed they occurrence also does not appear to be sound. This witness although appears to be disinterested, as he is not related to any of the deceased, but his deposition does not inspire confidence, as he waivered while explaining his presence at the spot, in that at the trial he stated that he had come to the place of occurrence from village Sargana, where he had gone to settle a dispute of land of Murad son of Rustam Sargana through a Punchayat, but he was found to have stated before the police that he had gone to village Rustam Sargana to see one Karam Bothana, which statement he denied to have made on being confronted with. Apart from that his conduct of not having proceeded to the police station to lodge the F.I.R. is also as questionable as that of Sikander P.W. Looking from the point of view that he was not. related to the two deceased and so had not so close sentimental feelings for the deceased, he could have left the deceased in injured condition to the care of their relatives, who were available in the hospital in large number and proceeded to the Police station to lodge the F.I.R. Such a position makes the claim of this witness of having witnessed the occurrence not only doubtful but unbelievable also.

In this case the other persons who had seen the occurrence and would have been natural witnesses too, being residents of close by place were not, only not produced at the trial, but were also not named in the F.I.R.

In the circumstances, the evidence of recovery of weapons of offences, which even otherwise does not inspire confidence, as Sikander P.W. who deposed about having attested the recovery of Chhuri from Bahadur, has not been believed for ocular account and testimony of Ghulam Akbar P.W. does not inspire confidence, as he did not belong to the village wherefrom the recovery was said to have been effected, even if were to be believed, would not advance the case of the prosecution for sustaining conviction. So also the evidence of motive, which otherwise does not appear to be sound, can be of little use to the prosecution at its own.

12. For all the reasons enumerated above, this appeal is allowed and the appellants are acquitted.

S.A./B‑43/L Appeal allowed.