RIAZ HUSSAIN SHAH Versus THE STATE
By his judgment of the 30th July, 1985; the learned Additional Sessions Judge, Gujranwala, convicted and sentenced Riaz Hussain Shah son of Ghulam Ali Shah, caste Syed, aged 25 years, cultivator, resident of village Pir Kamal, police station and tehsil Hafizabad, and Mumtaz Hussain, son of Muhammad Yar, caste Bhatti, aged 25 years, resident of Basti Shahalam, Police Station Pindi Bhattian, Tehsil Hafizabad District Gujranwala, as follows:
(i) Under section 302 read with section 34 of the Pakistan Penal Code for murdering Zahoor Hussain Shah in furtherance of their common intention and sentenced to undergo imprisonment for life and pay a fine of Rs.2000 and in default of payment thereof to suffer rigorous imprisonment for two years.
(ii) Under section 452 read with section 34 of the Pakistan Penal Code for committing in furtherance of their common intention house trespass in the house of the deceased after having made preparation for assaulting and sentenced to pass rigorous imprisonment for three years and pay fine of Rs.1000 and in case of failure to pay the same to undergo rigorous imprisonment for a year. Each of the convicts was directed to pay Rs.2,000 as compensation to the heirs of deceased failing which they were to suffer rigorous imprisonment for a year.
2. Riaz Hussain Shah and Mumtaz Hussain have filed separate appeals, Criminal Appeal Nos. 519 and 520 of 1985, respectively, against the decision of the learned trial Court. This judgment will dispose of both the appeals.
3. The sister of Riaz Hussain Shah, appellant, was the wife of Zahoor Hussain Shah deceased, Shabbir Hussain, PW 8, is the wife's brother of Khurshid Hussain Shah, complainant, P.W.9, Ijaz Hussain Shah, alleged eye‑witness of the occurrence, who had been given up by the prosecution as he was stated to have been won over by the accused, is the brother's son of Shabbir Hussain, P.W.
8. Even otherwise collateral relationship exists between all the aforementioned persons. They are residents of village Pir Kamal.
4. The prosecution version of the case laid against the appellants, as is set out in the first information report, Ex.P.G., lodged by Khurshid Hussain Shah, P.W. 9, at 9‑00 a.m., on the 26th April, 1983, at police station Sukheke, which is at a distance of about 14 miles from the place of occurrence, and recorded by Muhammad Salim Butt, Sub Inspector of Police and Station House Officer, P.W.10, may be stated in the following words. On the 26th April, 1983, Shabbir Hussain, P.W. 8, Khurshid Hussain Shah, P.W.9 and Ijaz Hussain Shah went in the evening to dera of Muhammad Ali Shah to offer fateha on his wife's death. They started back home from there at 10‑30 p. m. On the way they noticed the appellants entering the dera of the deceased, Riaz Hussain Shah had a sota in his hand and Mumtaz Hussain carried a hatchet. Mumtaz Hussain administered a hatchet blow on the head of the deceased who was lying asleep on a cot in the compound of his house. Khurshid Hussain Shah, Shabbir Hussain and Ijaz Hussain Shah raised alarm and caught hold of Riaz Hussain Shah along with sota at the spot. However, Mumtaz Hussain made good his escape. Zahoor Hussain Shah expired, almost instantaneously. Khurshid Shah went to Police Station Sukheke in the morning and reported the matter to the Police at 9‑00 a.m.
5. The motive behind the murder of the deceased, as mentioned in the first information report, was that Mumtaz Hussain had illicit connection with Riaz Hussain Shah's sister who was the wife of the deceased and Mumtaz Hussain often visited Riaz Hussain Shah's house which fact annoyed the deceased who had quarrelled with the appellant who had for that reason done away with the deceased.
6. Muhammad Salim Butt, P.W. 10, reached the spot at about 11‑30 a.m. on the 26th April, 1983, Riaz Hussain Shah, appellant, was produced before him and he placed him under arrest. The Danda, Exh.P.6, with which Riaz Hussain Shah was said to be armed at the time of occurrence, was produced before Muhammad Salim Butt who took it in its possession vide memo. Exh.P.F., which was attested by Khurshid Hussain Shah, P.W. 9, and Ijaz Hussain Shah.
7. Muhammad Salim Butt arrested Mumtaz Hussain, appellant, on the 29th April, 1983, On the 3rd May, 1983, Mumtaz Hussain got recovered Exh. P.5 from a field of wheat which was cultivated by Muhammad Hussain as tenant under one Ghulam whose dera was near that field. Muhammad Salim Butt made the hatchet, Exh P.5, into a sealed parcel and took it in its possession vide memo Exh. PE, which bears the attestation of Muhammad Walayat. P.W 6 and Mushtaq Hussain Shah, who was not produced by the prosecution because he was stated to have been won over by the appellants. The hatchet on examination by the Chemical Examiner and Serologist was found to be stained with human blood.
8. The recovery of the' hatchet from an open field of someone also after a lapse of quite some time of the occurrence is not in itself sufficient to link Mumtaz Hussain, appellant, with the commission of crime or to act as corroboration of the other prosecution evidence.
9. Dr. Muhammad Sadiq, Senior Medical Officer, Civil Hospital, Hafizabad, P.W 1, performed autopsy on the dead body of the deceased on the 27th April, 1983, at 7,00 a.m., and noticed an oblique incised wound 12 cm x 2 cm cutting through and through head bones and right coreoral hemisphere on the right side of head alongwith a cut through and through on the upper part of external ear. Interior end of the wound was 5 ? cm above the outer end of right eyebrow and 8 ? cm away of midline of head in its posterior end.
On internal examination bones underneath the site of injuries were found fractured and coagulated blood was found present. The other organs of the body were healthy.
In the opinion of the medical officer death occurred due to shock and haemorrhage resulting from head injury which had been caused with sharp‑edged weapon, was ante‑mortem, fatal and sufficient to cause death in the ordinary course of nature. According to him death took place immediately after infliction of the injury. He estimated time between death and post‑mortem examination to be from 24 to 48 hours. Exh. PA is the copy of the post‑mortem examination report and Exh. PA is the diagrammatic sketch showing the location of injuries.
10. The appellants denied the commission of crime attributed to them. They gave a lie to the prosecution allegations that they had illicit intimacy with the sisters of each other. They did not admit recoveries of the sota and hatchet at their instance. Riaz Hussain Shah stated that Khurshid Hussain Shah, complainant wanted to marry his sister even before her marriage with Zahoor Hussain Shah and that he had opposed her marriage with the complainant. He added that Zahoor Hussain Shah had been murdered by some unknown persons during the night, that he had come to know of his murder in the morning and had gone to the house of the deceased where he had been caught‑hold by Khurshid Hussain Shah and others. He blamed Khurshid Hussain Shah for having taken his sister to his house against her will and for falsely involving him in the case in order to achieve his evil design.
11. Mumtaz Hussain pleaded his innocence and said that he lived in Basti Shahalam which was 36 miles away from the place of occurrence. According to him he had been implicated on surmise and guess. The appellants did not produce any evidence in defence though they made statements on oath.
12. The learned counsel for the appellants contended that it was a case of unwitnessed occurrence, that none, much less 'Shabbir Hussain, P.W 8, and Khurshid Hussain Shah, P.W 9, had seen the assailants killing the deceased. They pointed out that nothing prevented 1 the complainant from promptly reporting the matter to the police but the first information report. was lodged no fewer than ten hours after the occurrence though the police station was hardly 14 miles away. The late reporting of occurrence to the police has been satisfactorily explained by the prosecution.
13. The learned counsel drew attention to the fact that the brother of the deceased and his family members resided at the dera where the deceased lived and was done to death but none from them appeared to say that Riaz Hussain Shah had been caught at the spot or that the appellants were in any way responsible for causing the death of the deceased. The learned counsel maintained that Shabbir Hussain Shah and Khurshid Hussain Shah were just chance witnesses and, therefore, their testimony could not be accepted at face value. They pointed out that no independent witness or any other resident of village came forward to support the prosecution case.
14. The learned counsel attached significance to the statement of Muhammad Walayat, P.W 6, who lived in the village‑and who deposed that he had heard the occurrence first by sunrise and so had reached the spot soon thereafter. Pir Kamal is a small village and if a murder had taken place the news thereof would have spread throughout the village like wild fire and everybody would have come to know of what had happened and thereafter proceeded to the dera of the deceased. Muhammad Walayat's deposition that he learnt the occurrence by sun rise lends support to the contention of the learned counsel for the appellants that none had seen or come to know of the murder of the deceased during night and it was by sun rise time that the people found the deceased having been done to death. All these factors cast grave shadow of doubt on the authenticity of the testimony of the prosecution witnesses bearing out the murder of the deceased by the appellants. The appellants cannot be held guilty, with an exact degree of certitude, of committing murder of the deceased. Consequently the appeals are accepted, the conviction of the appellants and sentenced passed upon them are set aside and they are acquitted. They shall be set at liberty forthwith if they are not required to be detained in any other case.
S.A./R‑55/L ???????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.