HAZOOR BAKHSH Versus THE STATE

QURBAN SADIQ IKRAM, J .‑‑In brief the facts of this case are stated below:‑

There was suspicion that Abdul Hameed P.W. had illicit relations with Mst. Faiz daughter of Manzoor Ahmad appellant. On 9‑9‑1981, at about 11‑00 a.m. Abdul Hameed P.W., was grazing cattle near the house of Manzoor Ahmad, who alongwith his brother Hazoor Bakhsh objected and abused him saying as to why he was grazing cattle near their house. Abdul Hameed also abused in return. Manzoor Ahmad and Hazoor Bakhsh left the spot saying that they would teach him lesson. Abdul Hameed also returned home in the evening and narrated the incident to his father Jam Haji who admonished the appellants telling them that they were unnecessarily suspecting his son Abdul Hameed.

Jam Haji deceased as usual was sleeping on a cot outside his Ehata in a field to keep watch on the cattle. At about 3‑00 a.m. on 10‑9‑1981, Rustam Khan complainant got up on hearing alarm. He went to that side with a torch and saw Manzoor Ahmad and Hazoor Bakhsh appellants inflicting hatchet blows on the person of his father Jam Haji. He also saw Haji Ahmad accused armed with stick standing nearby. He raised alarm which attracted Elahi Bakhsh, Ghulam Mohammad and Mehr Khan P.Ws. who also witnessed the occurrence and identified the accused in torch light. The accused ran towards sugarcane crop field. Rustam Khan and other witnesses tried to apprehend them but did no; succeed. Jam Haji died at the spot as a result of the injuries.

Rustam Khan complainant P.W.3, leaving the dead body in the care of Elahi Bakhsh and other witnesses, went to Police Station Ahmadpur Sharqia, about 6 miles from the place of occurrence and lodged F.I.R. Ex.P.C. at 5‑30 a.m. on the same morning which was recorded by A . S . I . Mohammad Abdullah P . W . 11.

2. The dead body of Jam Haji deceased aged about 75 years was sent for post‑mortem examination which was conducted at 10‑00 a.m. on 10‑9‑1981 by Dr. Javaid Hussain P. W.7 who on external examination, found the following injuries on the dead body:‑---

(1) An incised wound on right side of front of neck above thyroid bone, cutting underlying organs, measuring 12 c.m. x 4 c.m. x 4 c.m.

(2) An incised wound on centre of forehead cutting bone and brain matter coming out, measuring 13 c.m. x 3 c.m. x brain deep.

(3) An incised wound in front of left shoulder joints cutting bone measuring 11 c.m. x 3 c.m. x 4 c.m.

(4) An incised wound on top of right side of skull cutting bone and brain tissue measuring 4 c.m. x 1 c.m. x brain deep.

(5) An incised wound on left side of injury No. 4 measuring 4 c.m. x 1 c.m. x brain deep.

(6) An incised wound on back of skull measuring 4 c.m. x 1 c.m. x brain deep.

(7) An incised wound in front of thigh, in the centre, measuring 5 c.m. x 1 c.m. x 1 c.m.

On internal examination, the skull bone and brain were found cut under injuries 2, 4 and 6. The thorax, trachea and oesophagus were found cut under injury No.1. The death was due to shock and haemorrhage as a result of injuries 1, 2, 4 and 6 which were sufficient in ordinary course of nature to cause death. All the injuries had been caused by sharp‑edged weapon. Probable time between injuries and death was within few minutes and post‑mortem was conducted after about seven hours of death.

3. After registration of the case, A.S.I. Mohammad Abdullah P.W.11 undertook investigation. He on 10‑9‑1981, during inspection of the place of occurrence collected blood‑stained earth vide memo. Ex.P.D. He also took in possession blood‑stained bedding and cot on which the deceased was sleeping at the time of occurrence vide memo. Ex. P. E.

Manzoor Ahmad and Haji Ahmad accused were arrested on 12‑9‑1981 and Hazoor Bakhsh accused was arrested on 22‑9‑1981.

Manzoor Ahmad accused while in police custody, on 16‑9‑1981, led to the recovery of blood‑stained hatchet P.9 from his house which was taken in possession vide memo. Ex. P. K. by A. S. I. Mohammad Abdullah P.W. 11 in presence of Allah Ditta P.W. 10 and Ghulam Hussain P.W., not examined (wrongly printed as Ghulam Mohammad). On the same day, Haji Ahmad accused while in police custody, led to the recovery of Sota P.10 vide memo. Ex.P.L. in presence of same witnesses.

Hazoor Bakhch accused on 26‑9‑1981, while in police custody, led to the recovery of blood‑stained hatchet P.11 from his house which was taken in possession by A.S.I. Mohammad Abdullah vide memo. Ex.P.M. in presence of Allah Ditta P.W.10 and Ghulam Hussain P.W. not examined.

Hatchets P.9 and P.11 were found stained with human blood vide report of Chemical Examiner Ex.P.S. and that of Serologist Ex. P. R.

The police filed incomplete challan on 27‑9‑1981. On an objection from the prosecution branch, the Investigating Officer recovered torch P.1 from Rustam Khan P.W.3 on 14‑11‑1981, vide memo. Ex.P.B.

The accused were challaned after completion of investigation.

4. In support of its case, prosecution examined 14 witnesses in all. Rustam Khan P.W.3, Elahi Bakhsh P.W.4, Mehr Khan P.W.5 and Ghulam Mohammad P.W.8 were examined as eye‑witnesses. The incriminating recoveries were witnessed by Allah Ditta P.W.10. The medical evidence was furnished by Dr. Javaid Hussain P. W.7 as given in detail above. Abdul Hameed P.W.9 made statement regarding motive against the accused. The case was investigated by A.S.I. Mohammad Abdullah P.W.11. The evidence of rest of the witnesses was of formal nature.

The accused when examined after close of prosecution evidence, denied the charge and pleaded innocence. They stated that they did not abuse Abdul Hameed but admitted that they had suspicion of illicit relations between Mst. Faiz and Abdul Hameed.

The learned Additional Sessions Judge III, Bahawalpur, placed reliance on the evidence of the eye‑witnesses, recoveries of hatchets and motive. He, therefore, sentenced Manzoor Ahmad 45 and his brother Hazoor Bakhsh 40 to death and fine of Rs.2,000 or in default six months' R.I. each under section 302/34, P.P.C. Haji Ahmad 24 was, however, acquitted by the same judgment. Hence this appeal.

The two appellants having been sentenced to death, the proceedings are also before us for confirmation of sentence. Both the matters will be decided together by this judgment.

5. It is contended on behalf of the appellants that there was delay in lodging of the F.I.R.; that the occurrence took place during darkness when no witness was present; that the incriminating recoveries were false and fabricated; and that the appellants have been implicated on account of suspicion. It was, therefore, argued that they should, be acquitted. The learned counsel appearing on behalf of the State controverted the above contentions.

6. Hazoor Bakhsh and Manzoor Ahmad accused are brothers inter se. Haji Ahmad, acquitted accused, is their nephew.

Rustam Khan, Elahi Bakhsh and Ghulam Mohammad P.Ws. are brothers inter se and sons of Jam Haji deceased. Mehr Khan P.W. is uterine brother of Jam Haji deceased. Allah Ditta P.W. 10 is son‑in‑law of Ghulam Mohammad P.W.8. It is, therefore, clear that all the witnesses are closely related to the deceased.

The occurrence took place at 3‑00 a.m. It is admitted by the witnesses that it was dark night. According to Munir Ahmad Patwaril P.W.1, the houses of the eye‑witnesses were about 40 Karams from the place of occurrence. The witnesses themselves gave this distance as about 21 Karams. It was stated by Rustam complainant that he was attracted to the spot on hearing the cries of Jam Haji deceased. On a perusal of the medical evidence, it appears that the deceased' received at least three fatal injuries on head and one fatal blow on neck. In our view, it was not possible for the deceased to raise alarm after receiving these injuries which must have completely incapacitated him. The Medical Officer in cross‑examination admitted that the deceased after sustaining the injuries was not in a position to speak. In view of these circumstances, we are not inclined to accept the statement of Rustam Khan P.W. that he was attracted to the place of occurrence on hearing the cries of his father. It was stated by Elahi Bakhsh P.W.4 that he used to live alongwith Rustam P.W. but it is surprising that he was not attracted to the place of occurrence on hearing cries of his father. He stated that he woke up at the alarm raised by Rustam Khan P.W. Similarly, the other two eye‑witnesses also reached the spot on hearing alarm of Rustam Khan complainant. The deceased received seven injuries on his person. All these injuries, excepting injury No. 7 in front of thigh, were on vital parts of the body. This means that the assailants inflicted these injuries at leisure. If Rustam Khan and other witnesses had reached the spot as claimed by them, the accused could not have inflicted that many number of injuries on the person of the deceased. The eye‑witnesses claimed to have identified the accused in torch light which, in our view, was not sufficient to enable clear identification in dark night. It was stated by Mehr Khan P.W.5 that the accused ran towards south with their backs towards them and that they had identified the accused from their backs. He further stated that the accused were running away at a distance of 15/20 Karams. In our view, it was not possible for the witnesses to clearly identify the accused in dark night even in torch light from that distance. This distance was given by Ghulam Mohammad P.W.8 as 8/9 Karams. It was stated by Elahi Bakhsh P . W . 4 that 'after the arrival of police when the day had dawned, we searched the tracks pf the accused and had showed these to the A.S.I. He had .not called any tracker and had himself seen the tracks. We had not covered the tracks." It was stated by Ghulam Mohammad P.W.8 that 'we made some search for the accused in the sugarcane crop field but could not apprehend them.' It was stated by the eye‑witnesses that when they came back after searching the accused, they asked Jam Haji as to who had inflicted injuries to him but he was not in a position to speak or tell anything. These facts clearly indicate that the eye‑witnesses did not themselves witness the occurrence. If they had seen the accused, there was no question of enquiring from the deceased as to who was his assailant. It was stated by Ghulam Mohammad P.W.8 that 'some of the children were sleeping on the cot lying nearby the cot of Jam Haji. Those children were of the age of about 10/12 years.' These children were not cited or examined as witnesses by the prosecution. A.S.I. Mohammad Abdullah P.W.11 when asked about the tracks, did not specifically deny their presence and stated that 'I do not remember if I called any tracker for tracing the footprints of the assailants'. The prosecution should have collected the evidence of footprints of the assailants which, according to the eye‑witnesses, were present at the place of occurrence. The failure on the part of the prosecution) to produce the said evidence makes its case doubtful.

The evidence regarding recoveries of crime weapons has been furnished by Allah Ditta P.W.10. He is son‑in‑law of Ghulam Mohammad P.W.

8. He is also an interested witness. It was admitted by A.S.I. Mohammad Abdullah that at the time of recoveries of weapons from the three accused, he did not summon any person to join the proceedings. He further stated that he had not summoned Allah Ditta B P.W. on both the occasions. This statement contradicts Allah Ditta P.W.10 who stated that he had been called by the police to join recovery proceedings. No reliance, therefore, could be placed on his evidence.

It was stated by Rustam Khan P.W.3 that at the time of recording of the F.I.R., he was in possession of the torch but the police did not take the same in possession. The Investigating Officer took the torch in possession on 14‑11‑1981 i.e. after about months of the filing of challan in Court. If Rustam Khan had been in possession of the torch, the police must have taken the same in possession at the initial stages of the investigation.

The evidence of Abdul Hameed P.W.9, in our view, does not advance the prosecution's case. It is admitted by the accused that they suspected Abdul Hameed P.W. of having illicit relations with Mst. Faiz. It appears to us that the occurrence was not witnessed by any one and the‑appellants have been involved in this case due to suspicion on account of the said illicit relations.

7. In view of the above discussion, we find that the prosecution has failed to prove its case against the accused beyond reasonable doubt. This appeal is accepted. The conviction and sentence of Manzoor Ahmad and Hazoor Bakhsh appellants is set aside. They are acquitted and shall be released from prison forthwith, if not required in any other case. Their sentences of death are NOT CONFIRMED.

M.Y.H./H‑47/L Appeal accepted.