DIN MUHAMMAD Versus THE STATE

RUSTAM S. SIDHWA, J. ‑‑ Din Muhammad appellant, was tried by the learned Special Judge, Punjab Special Court for Speedy Trial No. VI, Bahawalpur, under section 302/377, P.P.C. for committing sodomy on Fayyaz Hussain deceased, and murdering him thereafter. The learned trial Judge, by his judgment, dated 1‑‑1988, convicted Din Muhammad, under section 377, P.P.C. and sentenced him to 10 years' rigorous imprisonment with a fine of Rs.15,000 or in default thereof to undergo further 3 years' rigorous imprisonment and under section 302, P.P.C. to death with a fine of Rs.20,000 or in default thereof to undergo further rigorous imprisonment for 4 years. The fines, if recovered under both the heads of offences, were ordered to be paid to the heirs of the deceased as compensation. The appeal (Criminal Appeal 22 of 1988/BWP) preferred by Din Muhammad, convict, against his conviction and sentences, is now before us for disposal.

2. The brief facts of the case are that on 12‑8‑1987 at about 3‑00 p.m. Fayyaz Hussain, deceased, aged 12/13 years, had gone to Basti Khoja for getting 20 Kgs. of wheat ground. After a shortwhile, Ghulam Shabbir P.W.4, Rahim Bakhsh P.W.5 and Abdul Ghafoor (given up P.W.) and Manzoor Ahmad (given up P.W.) started for having a round of their cotton fields. On the bank of Ghazipur Minor Canal they found the wheat bag of the deceased and also heard the shrieks of Fayyaz Hussain, deceased. They rushed in the direction of the alarm and saw Din Muhammad accused, causing injuries with dagger to Fayyaz, deceased. Din Muhammad, accused, tried to run away, but was apprehended at the spot and his dagger was snatched by Rahim Bakhsh P.W.5. On their asking, Fayyaz, deceased, told them that Din Muhammad accused, had committed sodomy with him and when he had stated that he would disclose the same to his father, the accused had injured him with a dagger. Fayyaz Hussain deceased, who was naked from his lower portion, succumbed to the injuries shortly thereafter.

3. Leaving the other witnesses to guard the accused and dead body, Ghulam Shabbir P.W.4 reached Police Station Zahir Pir, where he lodged F.I.R. Exh.P.C. at 4‑00 p.m., which was recorded by Muhammad Asghar, S.I. P.W.11.

4. The Police Officer then proceeded to the spot. Din Muhammad, accused, was produced before him by the witnesses. He was formally arrested. Blood‑stained dagger EXh.P.l snatched from Din Muhammad was produced before him, which he took into possession vide memo. Exh.P.E. Since the clothes of the accused were blood‑stained, he got removed the blood‑stained Chaddar P.2, the blood‑stained Kurta P.3 and blood‑stained Patka P.4 from the person of the accused, which he took into possession vide memo. P.F. The bag Exh.P.5 containing wheat belonging to the deceased was also taken into possession vide memo. Exh.P.G. The Police Officer also collected blood‑stained earth from the spot, vide memo. Exh.P.D. All the recoveries were witnessed by Rahim Bakhsh P.W.5, Muhammad Asghar, S.I. P.W.11, and Hazoor Bakhsh (given up P.W. ). After preparing the necessary papers, the dead body of Fayyaz Hussain, deceased, was sent for post‑mortem examination.

5. On 13‑8‑1987 at 8‑00 a.m. Dr. Muhammad Irshad Khan P.W.1 performed the post‑mortem examination on the dead body of Fayyaz Hussain, deceased, and found the following injuries on his person:

(1) An incised wound 5 c.m. x 1 c.m. cutting the skin muscles of the chest and ribs and also the pleura and the middle lobe of the left lung.

(2) An incised wound size 3.5 c.m. x 1.5 c.m. cutting skin muscles of the chest and cartilages and ribs and also cutting pleura and the middle lobe of the left lung.

(3) An incised wound size 5.5 c.m. x 1.5 c.m. cutting skin of the cartilages and the ribs and also cutting left lobe of liver.

(4) An incised wound size 2 c.m. x 1 c.m. muscle deep on the back of the middle left chest.

(5) An incised wound size 4.5 c.m. x 1 c.m. muscle deep on the back of the middle of the right chest.

Death was due to excessive internal haemorrhage due to injuries Nos.1, 2 and 3, which had cut the left lung and liver and due to shock. All the injuries were anti‑mortem and caused by a sharp‑edged weapon and were sufficient to cause death in the ordinary course of nature. Probable duration between injuries and death was 5 to 10 minutes and that between death and post‑mortem examination was 17‑20 hours. Three swabs were taken from the anus canal for detection of semen. No lacerations were found around the anus canal. Blood stained clothes of the deceased and phial containing the swabs were delivered by the doctor to Abdul Aziz F.C. P.W.6, which later were delivered to Akhtar Hussain, A.S.I. Moharrir P.W.9.

6. The earth recovered from the spot, the dagger and clothes were all found to be stained with human blood. The anal swabs were found to be stained with semen.

7. After completing the necessary investigation, the challan against Din Muhammad, accused , was sent up.

8. At the trial the prosecution produced Ghulam Shabbir P.W.4 and Rahim Bakhsh P.W.5 in support of the motive, the ocular account and the dying declaration made by the deceased, Rahim Bakhsh P.W.5 and Muhammad Asghar S.I. P.W. 11 in proof of the recoveries and Dr. Muhammad Irshad Khan P.W.1 in corroboration of the medical testimony.

9. The learned trial Judge, by his judgment, dated 1‑3‑1988, convicted and sentenced the accused, as stated in para. 1 above.‑

10. We have heard the arguments of the learned counsel for the appellant and the State and have perused the record. Ghulam Shabir P.W.4 and Rahim Bakhsh P.W.5 are witnesses to the motive, the ocular account and the dying declaration made by Fayyaz Hussain deceased. In these circumstances, the most important question that arises is whether these two witnesses were present at the spot and did witness the occurrence. According to their testimony, on 12‑8‑1987 at 3‑00/3‑15 p.m. Fayyaz Hussain, deceased, aged about 12/13 years, went to Basti Khoja for having wheat ground. He had taken about 20 Kgs. of wheat in Bota (bag). After a shortwhile, they alongwith Abdul Ghafoor and Manzoor Ahmad (given up P.Ws.) went outside for having a round of their cotton fields. On the bank of Ghazipur Minor Canal, they found the Bota (bag) of Fayyaz Hussain, deceased, lying on the ground. They heard the shrieks of the deceased from near the sugarcane field. They rushed to that direction and saw Din Muhammad, appellant, inflicting injuries with dagger to Fayyaz Hussain, deceased. The appellant tried to run away, but they encircled him and caught him at the spot. Rahim Bakbsh P.W.5 snatched the dagger from him. They asked the deceased as to what had happened, on which he told them that when Din Muhammad, appellant, had committed sodomy with him and he had informed that he would tell that to his father, the appellant injured him with a dagger. After a few minutes the deceased died at the spot. The deceased was naked from his lower portion and was lying with his face downward. According to Rahim Bakhsh P.W.5, after the police reached the spot, he produced blood‑stained dagger P.1 before the Investigating Officer, who took the same into possession vide memo. Exh.P.E. The police officer also took into possession the three blood‑stained clothes of the appellant and also the Bota (bag) Exh.P.5. containing wheat belonging to the deceased. In cross‑examination Ghulam Shabir P.W.4 stated that before they reached the spot, the appellant had already inflicted four/five injuries on the deceased, that the sugarcane field was in an area of 1‑1 Kanal, that the sugarcane was upto the shoulder height, that they had heard the shrieks of the deceased for the first time from a distance of four/five Kadams from the spot. He also stated that towards the east there was a cotton field owned by him and that they were coming on the Patri from the southern side, as his house was situate towards the south of the place of occurrence. He denied the suggestion that after they came from their house, first of all the sugarcane field in which the occurrence took place came and then the Ghazipur Minor Canal. He stated that they entered the field from the place where the Bota (bag) was lying and that the sugarcane field started right from the bank of the canal and that between the canal and the sugarcane field, there was the bank of the canal which was about six feet wide. He also stated that the place of occurrence was five/six Kadams inside the sugarcane field and five/six Kadams from the bank of the canal. He also stated that one could not see the spot from the bank of the canal. He also stated that on seeing them enter the sugarcane field, the appellant tried to run away, but was apprehended by them and that the appellant did not injure them with a dagger. He also stated that they did not assault the appellant, nor their clothes were torn in the process of apprehension. He also admitted that he owned no land in his own name, though three Killas were owned by his father. He again stated that his father had eight/nine Kanals of land and he cultivated the land of his father and that the Khasra Girdawari was in his name. He admitted that Akbar, a brother of Abdul Ghafoor (given up eye‑witness), was interrogated in the case by the S.H.O, and was involved because of the statement made by the appellant. He denied that on the day of occurrence, an announcement had been made in the mosque that his son was lying injured. He also denied the suggestion that on hearing the announcement, Ahmad Hassan, Fateh Mohammad and Bashir were the first persons who reached the spot and that they had reached there later. Rahim Bakhsh P.W.5 in cross‑examination stated that from. their house they crossed the Ghazipur Minor Canal and then took the bank of the canal and then reached the sugarcane field. He admitted that they had seen the Bota (bag) of the deceased after passing the canal. He stated that canal was at a distance of four Karams from the, spot. He stated that they heard the shrieks when they reached the Bota (bag). He admitted that the sugarcane field was in an area of one acre and the height of the sugarcane was a man's height. He stated that the said spot was about four Karams inside the field. He stated that they saw the deceased and the appellant when they reached close to the spot and that they first caught the appellant after he had run a distance of about a Karam. He stated that he had handed over the dagger P.1 to the police and not Ghulam Shabir P.W.4. He denied the suggestion that the dagger P.1 was brought by Ghulam Shabbir P.W.4 later on and was then produced before the police. He denied the suggestion that an announcement had been made in the mosque that Fayyaz Hussain was lying injured, on which Ahmad Hasan, Fateh Muhammad and Bashir Ahmad had reached the spot first, whereafter they had appeared later and had asked them as to what had happened. He denied the suggestion that they had cooked up a false story to implicate the appellant and that the deceased had told them that the appellant had inflicted injuries on him. He denied the suggestion that they had suspected both Din Muhammad, appellant, and Akbar to have committed the murder and on account of .this suspicion both were arrested. The site plan Exh.P.H. shows that the Bota (bag) Exh.P.5 left by the deceased was about a Karam to the south of the bank of Ghazipur Minor Canal and that fifty Karams farther to the south the dead body of the deceased was found. In f the first instance all the four eye‑witnesses are closely related, to Fazal Hussain, deceased. Ghulam Shabbir P.W.4 is the father of the deceased, Rahim Bakhsh P.W.5 is the maternal‑grandfather of the deceased, Abdul Ghafoor (given up P.W.) is the husband of the sister of the deceased and Manzoor Ahmad (given up P.W.) is the brother of the said Abdul Ghafoor. It is not understood how all of` them at 3‑00 p.m. in the blazing heat all of a sudden decided to take a round of the cotton fields, when there is no evidence to indicate that Rahim Bakhsh P.W.5, Abdul Ghafoor P.W. and Manzoor Ahmad P.W. had any cotton fields, which they were cultivating in the vicinity, except that of Ghulam Shabbir P,W.4, who had a petty Killa of cotton growing to the east of the place of occurrence. If they had been present as they claim, it is not possible to believe that Din Muhammad, appellant would have permitted them to capture him, specially after he had killed the deceased so brutally. He would either have run away, or offered resistance, in which case the witnesses would have suffered injuries, which is not the case. Assuming, for a matter of argument, that the appellant was arrested at the spot, as claimed, he would have been placed in the lock up in the Police Station, but according to Muhammad Asghar S.I. P.W.11, who investigated the case, he had not locked Din Muhammad, appellant, in the police lock‑up both on 12‑8‑1987 and 13‑8‑1987: The Investigating Officer does not give date of the arrest of the appellant in his examination‑in‑chief, though he states that the appellant was arrested by him at the spot, as he was produced before him by the witnesses there. According to Ghulam Shabbir P.W.4, the sugarcane field was in an area of 1‑1 Kanals, whereas according to Rahim Bakhsh P.W.5, the same was in an area of one acre. According to Ghulam Shabbir P.W.4, the sugarcane field started right from the bank of the Ghazipur Minor Canal, whereas site plan Exh.P.H. shows that the sugarcane field is almost thirty‑six Karams to the south of the bank of the canal. According to Ghulam Shabbir P.W.4, they had heard the shrieks of the deceased from a distance of four/five Kadams, when they were on the bank of the canal, whereas in cross‑examination he stated that they had heard the shrieks of the deceased for the first time from a distance of four/five Kadams from the spot. In examination‑in‑chief he stated that they were on the bank of Ghazipur Minor Canal when they heard the shrieks of the deceased and ran towards the spot, which was to the south, whereas in cross‑examination he stated that they were coming on the Patri from the southern side where his house was situate, but then prevaricated by stating that they entered the field from the place where the Bota (bag) was lying. In cross‑examination he stated that the place of occurrence was five/six Kadams inside the sugarcane field, whereas according to the site plan it is fourteen Karams inside the sugarcane field. Rahim Bakhsh P.W.5 in his examination‑in‑chief stated that he snatched the dagger from the appellant, which he produced before the Investigating Officer. The recovery memo. Exh.P.E. shows that Ghulam Shabbir P.W.4 seized the dagger from the appellant and produced it before the Investigating Officer. In cross‑examination he stated that the canal was at a distance of four Karams from the spot, whereas according to site plan Exh.P.H. the spot appears to be a little more than fifty Karams from the canal. According to this witness, the sugarcane field is adjacent to the Patri of the canal and the road adjacent to it, whereas according to the site plan Exh.P.H., the Patri and road of the canal are about thirty‑six Karams from the sugarcane field. According to him the spot was about four Karams inside the sugarcane field, whereas the site plan shows that the spot is about fourteen karams inside the field. It appears that the two witnesses with the other two given up witnesses were never at the spot, as eye‑witnesses, as claimed by them. This accounts for the fact why their story is so discrepant about the place of occurrence. According to the statement of Muhammad Asghar S.I. P.W.11, the Investigating Officer, the document Exh.P.O., which is entry No. 111 of Register No. 19 (relating to deposit of articles) shows that the sealed parcles of dagger, clothes of the deceased, clothes of the appellant, the blood‑stained earth and the Bota (bag) of the deceased were deposited in the Police Malkhana on 15‑8‑1987, which stands confirmed by document Exh.P.O./1, which is report No. 20 of Roznamcha Waqiati of the same day. These entries contradict the statement of Akhtar Hassan A.S.I. Moharrir P W.9 who stated that five sealed parcels were handed over to him for safe custody by Muhammad Asghar S.I. P.W.11 on 13‑8‑1987. From the contradictory evidence of Ghulam Shabbir P.W.4 and Rahim Bakhsh P.W.5 and the surrounding circumstances and the inferences that can fairly be drawn from the record, it seems obvious that the eye‑‑witnesses did not witness the occurrence, but that the finger of suspicion having been levelled against Din Muhammad, appellant, recoveries of the dagger and the blood‑stained clothes were then created and introduced into the case very likely on 15‑8‑1987 and Ghulam Shabbir P.W.4 and Rahim Bakhsh P.W.5 were put forward to act as eye‑witnesses. In these circumstances, it is not possible to accept the testimony of the eye‑witnesses with any degree of safety. We have, therefore, no hesitation in rejecting the ocular account.

In view of the above, we need not drag the chain any further. We have already held that the blood‑stained clothes of the appellant and the dagger alleged to have been used by him were introduced into the case sometime on 15‑8‑1987. In this view of the matter, we cannot rely upon the testimony of Rahim Bakhsh and Muhammad Asghar S.I. P.W.11, who are the witnesses to the recoveries.

The upshot of the above discussion is that the testimony of Ghulam Shabbir P.W.4 and Rahim Bakhsh P.W.5 as regards the motive, the ocular account and the dying declaration of the deceased cannot be accepted with any degree of safety. The testimony of the recovery witnesses also cannot be accepted. The appellant is, therefore, entitled to the benefit of doubt.

For the foregoing reasons, this appeal is accepted and the conviction and sentence of Din Mohammad appellant, is set aside. He shall be set at liberty forthwith, if not required in any other case. Fines, if any recovered from him, shall be refunded to him.

S.A./D‑29/L Appeal accepted.