KHUDADAD Versus THE STATE
ABDUL WAHEED, J .‑‑Khudadad, aged 60 years, Ghulam Hassan, aged 55 years, Mehrban, aged 28 years and Muhammad Hafeez, aged 35 years were tried for the murder of Ghulam Dastgir, aged 35 years and murderous assault on Muhammad Sarwar and Ghulam Samdani in furtherance of the common intention of them all by the Sessions Judge, Rawalpindi who vide his judgment, dated 29th of April, 1984 while acquitting Ghulam Hassan, Mehrban and Muhammad Hafeez by giving them benefit of doubt convicted Khudadad under section 302, P.P.C. and sentenced him to death and to pay a fine of Rs.2,000 or in default to undergo R.I. for two years. He was further directed to pay a sum of Rs.5,000 to the heirs of the deceased as compensation or in default to suffer R.I. for a further period of six months. He has filed an appeal against his conviction and sentence. The trial Court also has submitted a reference under section 374, Cr.P.C. for confirmation of the sentence of death.
Muhammad Sarwar, the complainant, also has filed a revision petition against the acquittal of Ghulam Hassan, Mehrban and Muhammad Hafeez. This judgment shall dispose of the appeal, the reference, and the revision petition.
2. Khudadad appellant is the uncle and father‑in‑law of Muhammad Hafeez accused. The wives of Khudadad appellant and Ghulam Hassan accused are first cousins. Ghulam Hassan accused is the father‑in‑law of Mehrban accused.
3. The occurrence took place on 24th of April, 1982 at 6‑00 a.m. in front of the house of Khudadad appellant in village Seham, about 31 miles away from Police Station Cantt. Rawalpindi. It was reported on the same date at 6‑30 a.m. by Muhammad Sarwar P. W . 7 , brother of the deceased, at Police Post Nasirabad less than one mile away from the the vide statement Exh. P.E. recorded by S.I. Amir Afzal P.W.
10. On the basis of this statement, a case under sections 302 and 307 read with section 34, P.P.C. was registered at Police Station Cantt. Rawalpindi on the same date at 7‑35 a.m. vide formal F.I.R. Exh. P.E. recorded by S.I. Bahadur Khan P.W. 5.
4. The prosecution case briefly was that on the day of occurrence at 6‑00 a.m., the deceased left his house situate in village Seham followed by his two brothers namely Muhammad Sarwar P.W. 7 and Ghulam Samdani P.W. (given up at the trial as unnecessary) and Maula Dad P.W. 8, who is the husband of the real sister of their father and brother of Khudadad appellant and Fazal Dad, fatfier of Hafeez accused. When the deceased was passing in front of the house of the appellant, the appellant who was present in the courtyard of the house alongwith Ghulam Hassan, Mehrban and Muhammad Hafeez, accused, shouting that it was the time for avenging the murder of Muhammad Hussain fired at the deceased from his carbine hitting him on the left temporal bone as a result whereof he fell dead. This was seen by Muhammad Sarwar, Maula Dad and Ghulam Samdani P.Ws. When they stepped forward Ghulam Hassan who was armed with a gun exhorted Mehrban and Muhammad Hafeez, who also were carrying carbines, to kill them as well. Both Mehrban and Hafeez thereupon fired at them but they escaped any injury. Ghulam Hassan also loaded his gun but in the hurry it went off hitting Khudadad appellant on his legs.
5. The motive for the crime allegedly was that Muhammad Hussain, brother of the wife of Khudadad appellant, had a fight with the deceased and his brothers namely Ghulam Samdani and Muhammad Afzal. In that fight Muhammad Hussain was killed and the deceased and his brothers sustained injuries. Cross‑cases were registered against both the parties. Subsequently also criminal cases were registered by them against each other. The present occurrence was as a sequel of the earlier incidents.
6. Leaving the dead body at the spot, Muhammad Sarwar P.W. 7 went to Police Post Nasirabad and lodged the report. According to him, while he was proceeding to the police post firing continued from the house of Khudadad appellant.
7. S.I. Amir Afzal P.W. 10 after recording the statement Exh. P.E. of Muhammad Sarwar P.W. 7 proceeded to the spot. On reaching there, he prepared injury statement Exh. P.L. and inquest report Exh. P.M. in respect of the dead body of the deceased and despatched the same to mortuary for post‑mortem examination. He collected blood‑stained earth from the spot and made it into a sealed parcel vide memo. Exh. P.G. He also took into possession from there an empty P. 5 vide memo. Exh. P.H. Wad and pellet were lying there. He took them into possession vide memo. Exh. P.J. On the same date he arrested the appellant and since he was injured, he prepared his injury statement Exh. P.N. and got him medically examined. On 3rd of May, 1982, the appellant while in custody led to the recovery of carbine P. 4 from the orchard of his house and the S.I. sealed it into a parcel vide memo. Exh. P.F. The recovery memo. Exh. P.H. in respect of the empty P. 5 was attested by Maula Dad P.W. 8 and Ghulam Samdani P.W. (given up at the trial as un‑necessary). The recovery memo. Exh. P.F. in respect of the carbine P. 4 was attested by Muhammad Sarwar P.W. 7 and Maula Dad P.W. 8.
8. The Chemical Examiner vide his report Exh. P.P. and the Serologist vide his report Exh. P.Q. observed that the earth recovered in this case was stained with human blood. The Examiners of Fire Arms, Forensic Science Laboratory, Lahore reported vide Exh. P.R. that on examination of the empty and country made pistol received by them, it was found that the empty had been fired from the country made pistol.
9. On the basis of the above investigation, the appellant and acquitted co‑accused were challaned under sections 302 and 307 read with section 34, P. P. C.
10. Dr. Abdul Aziz P.W. 1, Medical Officer, District Headquarters Hospital, Rawalpindi conducted the autopsy on the dead body of the deceased on 24th of April, 1982 at 12‑30 noon and observed the following injuries: ‑‑-
(1) A circular wound 3 c.m. in diameter, 2 c.m. above top of left ear, going deep into cranial cavity on probing.
(2) A wound of same description as injury No. 1, 1 c.m. above injury No. 1 in vertical direction. .
(3) A circular wound 3 c.m. in diameter, 4 c.m. in front of injury No. 2, and 3 c.m. above lateral margin of left eye‑brow. On probing, the probe was going deep into cranial cavity.
(4) Left eye was swoollen as compared to the right one.
11. In the opinion of the Medical Officer, the death of the deceased occurred due to haemorrhage and shock as a result of injuries Nos.1, 2 and 3 to the brain which were sufficient to cause death in the ordinary course of nature. All the injuries were ante‑mortem and had been caused by fire‑arm. The probable interval that elapsed between the injuries and death was immediate and between the death and the post‑mortem examination 6 to 7 hours Exh. P.A. is the post‑mortem examination report and PA /1 is the diagram showing the locale of the injuries. In his cross‑examination, he stated that the injuries sustained by‑ the deceased were the result of only one shot.
12. On the same date at 3‑10 p.m. the above Medical Officer medically examined Khudadad appellant and found the following injuries on his person:‑‑---
(1) Contused swelling right hand specially middle and index fingers.
(2) Contused swelling back of right fore‑arm middle part.
(3) A circular wound 3 c. m. in diameter on the middle lateral part of left thigh.
(4) A lacerated wound semi‑circular on the medial side of left thigh in middle part 3 c.m. exit wound.
(5) A lacerated wound 3 c.m. in diameter on the medial side of right thigh in middle part with grazed margin. Wound of entry in line of exit of injury No. 3.
(6) A rounded tender swelling palpable in the middle of back of right thigh.
13. Injuries Nos. 1 and 2 were caused by blunt weapon while injuries Nos. 3 to 4 were caused by fire‑arm. The injuries were kept under observation. Exh. P.B. is the medico‑legal report in respect of the above injuries.
14. The appellant and his acquitted co‑accused were charged under sections 302 and 307 read with section 34, P.P.C. to which they pleaded not guilty. When examined under section 342, Cr.P.C., the appellant denied the prosecution case and the recoveries effected in this case. He disowned the carbine P.4. He raised the following plea: ‑‑
"On the day of occurrence, Mauladad, Ghulam Samdani, Muhammad Sarwar, Ghulam Dastgir and others duly armed with fire arms criminally trespassed into my house indulged in indiscriminate firing, causing me fire‑arm injury. I took shelter in a room of my house, but the accused kept on firing, hitting the walls, doors, and windows of the said room. When the police brought me out of the room in an injured condition, it transpired that Ghulam Dastgir had also been killed which was due to irresponsible and indiscriminate firing of his other party man namely Mauladad, etc. and thus they killed their own man.
The cases cited as motive, had no direct connection with me. A day prior to the occurrence, I had altercation with Mauladad P.W. and in order to avenge the same all the said persons constituted as unlawful assembly, and with the intention of murdering me, made criminal trespass and injured me with fire‑arm. The case has been concocted. The recovery was also planted upon me in order to strengthen the murder case. I have got previous enmity with Mauladad, who is my real brother. I deprived him of the property inherited and he instituted civil litigation and thereafter we were at daggers drawn. Further Mauladad P.W. was married to phupi of the deceased and for that matter he was supporting the P.Ws all the time and because of this background he has deposed against me. There is previous enmity and the witnesses have implicated me falsely due to the same."
15. Ghulam Hassan and Mehrban, accused, also denied the occurrence and attributed their implication to enmity and relationship with the co‑accused. According to them, they had been declared innocent during the investigation by Inspector Tauqir Hayat: Muhammad Hafeez accused also while denying the prosecution case explained his implication as follows: ‑‑
"Due to my relationship with the accused party and direct enmity with the complainant party, on 2‑5‑1981 I was physically assaulted by Muhammad Sarwar P.W. and his companions. As a result of the same there was commutive fracture of my left arm and left leg. These were plastered and yet the recovery had not taken place on the day of occurrence, I hardly moved about under crutches and therefore, there was no question of my participation in any such occurrence. I was arrested by Tauqir Hayat Inspector and at the time of my arrest, he recorded these facts of my being completely disabled to move about and further he declared me innocent, but the prosecution 8ishonestly withheld the statement of said Inspector who was cited as a witness and was given up by the prosecution for no reason. The prosecution even withheld the important factor that I and co‑accused Ghulam Hassan and Mehrban were arrested by Tauqir Hayat Inspector and did not examine him on the point."
The appellant and his acquitted co‑accused, however, did not adduce any evidence, in support of their plea of innocence.
16. The prosecution at the trial examined ten witnesses who included Muhammad Sarwar P.W. 7 and Maula Dad P.W. 8 who furnished ocular account as well as deposed to the motive and the recoveries and S.I. Amir Afzal, P.W. 10 who investigated the case. The learned trial Court after appraising the evidence while acquitting Ghulam Hassan,. Mehrban and MuhanYmad Hafeez "on the principle of abundant caution convicted and sentenced Khudadad appellant as above.
17. Learned counsel for the appellant (pa's assai"e'il the'conviction and sentence of the appellant contending that the prosecution has failed to prove qny motive for the present occurrence, that the recoveries stated to have been effected iri this case are fake and that the eye‑witnesses, examined in support of the occurrence are not only interested but also biased. Learned counsel for the complainant has argued that the evidence on record is sufficient to convict the acquitted co‑accused also. Learned counsel for the State has supported the impugned judgment.
18., According to the F.I.R. Exh. P.E.1, the motive for the occurrence was the murder of Muhammad Hussain by the deceased and his brothers. However, this motive was diluted by the complainant namely Muhammad Sarwar P. W. 7 himself in his examination‑in‑chief. He stated that Muhammad Hussain, brother of the wife of the appellant, was murdered in the year 1978. His brothers, namely Ghulam Dastgir deceased, Ghulam Samdani P.W. and Muhammad Afzal were challaned for his murder. A cross‑case in respect of the same occurrence was registered at the instance of Ghulam Dastgir deceased. In the year 1981, a compromise was effected between the parties and the accused in both the cases were acquitted. He elaborated in his cross‑examination that he and his brothers namely Ghulam Samdani P.W. and Ghulam Dastgir deceased were having their cattle‑shed on the eastern side of the house of Khudadad appellant and they used to regularly visit the cattle‑shed to look after their cattle: According to him, during the period of ten or twelve months prior to the occurrence, no altercation had taken place between the parties. These admissions indicate that the murder of Muhammad Hussain in the year 1978 was not the motive for the present occurrence. It was suggested to him that a day prior to the occurrence the, appellant had thrown filth in a plot adjoining the plot of Maula Dad on which an altercation had ensued between the two. He repudiated this suggestion. The same suggestion was put to Maula Dad P.W. 8 also in his cross‑ ekamination. He too controverted the same. It is, therefore, evident that motive for the present occurrence is shrouded in mystery.
19. As regards the recoveries the prosecution evidence is discrepant and unworthy of credence S.I. Amir Afzal P.W. 10 said in his examination‑in‑chief that on 24th of April, 1982 when he visited the spot he collected from there crime empty P. 5 and took it into possession vide memo. Exh. P.H. This memo. is attested by Maula Dad and Ghulam Samdani. Ghulam Samdani was given up as unnecessary but Maula Dad deposed to this recovery as P.W.
8. However, there is absolutely no evidence on record that the empty was sealed into a parcel or the same was ever delivered to the Moharrir of the police post or the police station and transmitted to the Forensic Science Laboratory. There is no mention in the F.I.R or the inquest report that an empty was lying near the dead body. Maula Dad P.W. 8 the only witness examined in support of the recovery fumbled in his cross‑examination as to the exact place from where the recovery of the empty was effected. F. C. Nazar Hussain P. W. 4 stated that on 24th of April, 1982 while he was acting as Moharrir of Police Post Nasirabad, S.I. Amir Afzal gave him only one sealed parcel which contained blood‑stained earth. F.C. Mukhtar Ahmad P.W. 2 who was deputed for the transmission of the sealed parcels of this case did not say that any parcel of empty was also entrusted to him. In these circumstances, the recovery of empty is manifestly a contrivance.
20. S.I. Amir Afzal P.W. 10 further deposed that on 3rd of May, 1982, the appellant while in custody led to the recovery of carbine P. 4 from the courtyard of his house and he made it into a sealed parcel vide memo. Exh. P.F. Muhammad Sarwar and Maula Dad are the attesting witnesses of this recovery memo. Both of them supported the recovery as P.W. 7 and P.W. 8 respectively. It was suggested to S.I. Amir Afzal P.W. 10 in his cross‑examination that the carbine was in fact in his possession on 24th of April, 1982 on which date he delivered the same to the Moharrir. He denied the suggestion. However, his denial was falsified by F.C. Allah Yar P.W. 3 who stated that the sealed parcel of carbine was given to him for safe custody in the Malkhana by the S.I. on 24th of April, 1982. He made this statement in his examination‑in‑chief. No attempt was made by the Public Prosecutor for rectification of the mistake in respect of the date if the F.C. had in fact stumbled to a mistake or was dishonestly making a concession in favour of the appellant and his co‑accused it implies that the statements of the S.I. and Muhammad Sarwar P.W. 7 and Maula Dad P.W. 8 in support of the recovery of carbine on 3‑5‑1982 are not true. Besides, S.I. Amir Afzal P.W. 10 admitted in his cross‑examination that at the time of the recovery of the carbine, four persons namely Fazal Karim, Muhammad Afzal, Ghulam Muhammad and Muhammad Saleem who were the residents of the village of the parties and had no relationship or connection with either party were present alongwith Rashid, a resident of Tarnol. They were independent persons. The failure to make any one of them as an attesting witness of the recovery loudly speaks of either the mala fide of the S.I. or his gross‑negligence. For all these reasons, the recovery of the carbine also is rendered unreliable.
21. As mentioned above, the ocular account was furnished by Muhammad Sarwar P.W. 7 and Maula Dad P.W.
8. They deposed to the occurrence as given in the F.I.R. However, the ambient circumstances gravely recoil on their `veracity. Although for about ten or twelve months prior to the occurrence, no altercation had taken place between the parties as stated by Muhammad Sarwar P.W. 7 in his cross‑examination, yet they were not maintaining cordial relations. Maula Dad P.W. and the appellant, though brothers, remained locked in civil litigation over the shops which were left by their father. Maula Dad was more inclined towards the complainant party because the sister of the father of the deceased was married to him. In the year 1963, Nawab, uncle of the deceased, was assaulted and Ghulam Hassan acquitted accused and three others were challaned in that case. The case ended in conviction. On 2nd of May, 1981 also a case under sections 325/147/148, P.P.C. was registered at Police Station Cantt. Rawalpindi at the instance of Fazal Dad, brother of the appellant and father of Muhammad Hafeez, acquitted co‑accused against Muhammad Sarwar P.W. 7 and others for causing injuries to Hafeez. Mst. Maqsooma, wife of the appellant, was one of the prosecution witnesses in that case. All these facts smack of bias of the eye‑witnesses against the appellant and his acquitted co‑accused. In view of the bias, their testimony could not inspire confidence unless corroborated by independent unimpeachable evidence which is, wanting in this case.
22. It is true that the appellant at the time of his arrest was found injured. On his medical examination, he was found having two injuries by blunt weapon and four by fire‑arm. Nevertheless, this fact alone cannot vouchsafe his culpability. The prosecution case is that he was injured accidentally when the gun of Ghulam Hassan, one of the acquitted co‑accused, went off in hurry although he intended to fire at the complainant party. The plea of the appellant is that on the day of occurrence, the deceased and the eye‑witnesses armed with fire‑arms criminally trespassed into his house and indulged in indiscriminate firing as a result whereof he sustained fire‑arm injuries. He has led no evidence. Despite that the plea gets some support from the fact that when S.I. Amir Afzal P.W. 10 visited the spot he, according to his cross‑examination, found wads and pellets lying in the verandah of the house of the appellant. He even admitted having correctly recorded in his inspection note that in the verandah, guaze of the room and on the walls of the said room of the house of the appellant, there were marks of pellets and bullets.
23. For the above reasons, we do not feel persuaded to place any reliance on the ocular account also.
24. Since the prosecution failed to prove its case in all respects beyond reasonable doubt, the appellant also was entitled to benefit of doubt and consequential acquittal. In the result, we accept the appeal of the appellant and setting aside his conviction and sentence acquit him. He shall be released forthwith, if not wanted in any other case.
25. The death sentence awarded to him is not confirmed.
26. The criminal revision filed .by Muhammad Sarwar against the acquittal of Ghulam Hassan, Mehrban and Muhammad Hafeez is dismissed.
S.A./K‑73/L Appeal accepted.