GHULAM RASOOL AND 2 OTHERS Versus THE STATE

The legality of the judgment, dated 18-9-1984 pronounced by the learned Additional Sessions Judge II, Bahawalnagar, has been assailed in this appeal who had convicted Ghulam Rasool and Muhammad Bashir appellants under section 302/ 34, P . P . C . for causing the death of Muhammad Amir in furtherance of their common intention, and sentenced them to life imprisonment each. Both of them have been fined Rs.2,000 each or to suffer one year's R.I. in default thereof. They have been directed to pay Rs.3,000 each by way of compensation to the legal heirs of the deceased as envisaged under section 544-A, Cr.P.C. or to suffer six months' R.I. each, in default of the payment of compensation. Muhammad Siddiq appellant was found guilty under section 325, P.P.C. for voluntarily causing grievous hurt to Shah Muhammad with a Sota and was ordered to suffer R.I. for one year and to pay a fine of Rs.1,000. In default of the payment of fine, he was ordered to undergo three months' R.I. He was also directed to pay Rs.2,000 by way of compensation to Shah Muhammad, injured P.W., or in default thereof to undergo three months' R.I.

2. The brief facts of this case are that Maula Bakhsh, who was a land owner of Chak No.41/3-R died before the year 1974. The mother of Ghulam Rasool appellant was married to Maula Bakhsh whom he divorced and then she contracted a second marriage with Shah Muhammad P.W. Maula Bakhsh was the real paternal-uncle of Muhammad Amir deceased. There was civil litigation between Ghulam Rasool and Muhammad Amir and others regarding the estate of Maula Bakhsh and its inheritance. They were deadly against each other and were having civil and criminal litigation inter se. On 25-6-'1979, Ghulam Rasool appellant is stated to have filed a criminal complaint in the Court of the Magistrate Haroonabad against Muhammad Amir, his brothers and sisters. Muhammad Amir came to Haroonabad in order to know the date of hearing in the criminal Court at Haroonabad. Ghulam Rasool appellant was sitting by the side of Muhammad Rafiq, Advocate, in the Court room. Muhammad Amir asked Ghulam Rasool appellant as to why he had involved them in a criminal case whereupon Ghulam Rasool responded that he had not done anything so far and Muhammad Amir would see what is being done in future. Muhammad Amir advised Ch. Muhammad Rafiq, Advocate, to confine himself to his professional engagements and should not intermeddle in their private affairs. Ch. Muhammad Rafiq, Advocate, and Ghulam Rasool felt enraged and threatened that they would deal with them within a span of 2 or 3 days.

3. On 27-6-1979 at bout 6-30 a.m. Muhammad Amir, Shah Muhammad and Sher Muhammad proceeded towards Chak No. 104/6-R in order to condole the death of Muhammad Ibrahim there. When they reached at a sand-dune located between Chak No.105/6-R and Chak No.106/6-R, Ghulam Rasool, Muhammad Bashir, Muhammad Siddiq and Muhammad Arif ambushed them. Ghulam Rasool and Bashir appellants gave Sota blows or, the head of Muhammad Amir who fell down. Muhammad Siddiq and Muhammad Arif gave Sota blows to Muhammad Amir who was lying prostrate in front of them. Shah Muhammad wanted to save Muhammad Amir and Muhammad Arif and Muhammad Siddiq beat him. On their alarm, Fateh Muhammad of Chak No.107/6-R and Muhammad Rafiq of Chak No. 41/3-R came there and the assailants ran away. Ch. Muhammad Rafiq, advocate, is stated to have conspired to kill Muhammad Amir and he was also implicated in this case. Ghulam Muhammad had gone to the hospital with. Muhammad Amir and he dictated the report to the police at Police Station Faqirwali. The police went to the hospital and prepared the injury statement of Muhammad Amir, who was not found fit to make a statement. Muhammad Amir expired on the same day at 5-10 p.m. The appellants were arrested on 29-6-1979 and Sotas P.4 to P.6 were recovered from them which were not stained with blood. The autopsy on the dead body of Muhammad Amir was conducted by Dr. Hafiz Abdul Wahid, who had earlier examined him and had found the following injuries on his dead body:-

(1) One oblique red bruise mark at the outer aspect of left thigh 6 c.m. x 2 c.m.

(2) One oblique red bruise mark at the back of left thigh 6 c.m. x 1 c. m.

(3) One V shape lacerated wound at the left side of the head 3 c.m. above the upper border of. forehead. The limbs of wound being 4 c.m. x 1 c.m. and 3 c.m. x 1 c.m. x scalp deep.

(4) One ill defined swelling at the right side of the head in an area of almost 6 x 7 c. m.

4. This medical expert has opined that injuries Nos. 3 and 4 were sufficient to cause the death of Muhammad Amir in the ordinary course of nature.

5. One the same day, at about 11-00 a.m. he had examined Shah Muhammad P.W. and had found the following injuries on his person:---

(1) One swelling at the back and outer side of right hand in an area cf 4 c.m. x 5 c.m. with redness and pain over this. X-ray was advised.

(2) On swelling in an area of 8 c.m. x 9 c.m. at the back aspect of left hand. The movement at the fingers of both hands are restricted. X-ray was also advised for this.

Dislocation of the left thumb carpo-phalangeal joint was found. Injury No.2 was declared grievous whereas injury No.1 was simple in nature. He has ruled out the possibility of the injuries of Shah Muhammad having been inflicted by a friendly hand.

6. After the completion of the investigation, the challan of the appellants was submitted. As a sequel to the impugned trial, the appellants were awarded the afore-mentioned punishment. Muhammad Rafiq Gill, Advocate, was acquitted whereas Muhammad Arif died and the case abated against him.

7. In this case, the ocular account of this incident has been furnished by Ghulam Muhammad P.W.8 who is maternal-uncle of Muhammad Amir deceased. He has stated that there was a dispute about the inheritance of Maula Bakhsh between Ghulam Rasool and the deceased, his brothers and sisters. He has endorsed his statement made in the F.I.R. and has given the account of injuries on the persons of Muhammad Amir and Shah Muhammad by the appellants. He has conceded the fact that he was a history-sheeter and was involved in a case of bribery on the allegation that he had accepted Rs.l0,OC0 as bribe from Ali Muhammad in the name of S.H.O. Police Station Faqirwali which was not given to the latter Police Officer. He was convicted but was exonerated in appeal by the High Court. He has also admitted that there was a case regarding the bribe money of Rs.1,500 which were taken in the name of a Civil Judge by this witness. Ghulam Muhammad P.W. is, therefore, a man of shady antecedents and is not reliable.

8. Shah Muhammad P.W.9 has stated that Ghulam Rasool and Bashir accused had given Dang blows on the head of Muhammad Amir, who fell down and then he was injured by Arif and Siddiq on his legs. He has stated that he was injured by Siddiq and Arif accused, Shah Muhammad is an injured witness but it may be noted that he is the real maternal-uncle of Abdul Razzaq C.W. who is the nephew and son-in-law of Ghulam Muhammad complainant. In this manner, he is related to Ghulam Muhammad. It may also be noted that he has received', two injuries on the outer and back side of both his hands which makes his presence at the scene of the crime doubtful.

9. Ra iq P.W.10 has supported the prosecution case but happens to be a tenant of Ghulam Muhammad complainant and his testimony is, therefore, not reliable.

10. Muhammad Younas P.W.13 has stated that Dangs P.4 to P.6 were recovered from Arif, Ghulam Rasool and Bashir accused in his presence which were taken into possession by the police.

11, Rao Abdul Khaliq S.I. (P.W.15) has stated that he had recorded Rapt No. 11 on 27-6-1979 for an offence under sections 307/34 and 109, P.P.C. and had received the information that Muhammad Amir injured, who was unconscious had died in the Civil Hospital, Haroonabad and in view of the death of Muhammad Amir offence under section 302, P.P.C. was added. He has conceded the fact that Abdur Razzaq P.W. got recorded the first Rapt of this incident. He has also admitted that Exh . D . A . is missing from the police file and had not intentionally misplaced the same from the police file. It is alleged against this Police Officer that he had substituted mark 'A' the statement of Abdur Razzaq for Exh. D. A.

12. Abdur Razzaq, who was believed to be an eye-witness of this incident, was examined as a Court witness. He has stated that he got dictated the Rapt at the police station in connection of this case and the accused led to the recovery of weapons of offence in his presence vide memos. Exh.P.L., Exh.P.M. and Exh.P.N. which bear his signatures. He has stated that he was not an eye-witness. He is a headman of village Chak No.41/3-R and, therefore, stated to have gone to the police station and recorded the Rapt. He has stated that Muhammad Amir deceased was the real brother of his second wife Mst. Mariam and Ghulam Muhammad P.W. happens to be his maternal uncle and the father of his first wife Mst. Manzooran. Shah Muhammad happens to be his real uncle whereas Muhammad Yousaf P.W. is his nephew and son-in-law. He does not know the father's name of Ghulam Rasool accused and has stated that Ghulam Rasool got inherited the property of Maula Bakhsh as his son.

13. In their statements under section 342, Cr.P.C. the appellants denied their participation in this crime and pleaded innocence.

14. In this case, Abdur Razzaq had got dictated the Rapt Exh.P.Q. which should have been treated as the F.I.R. The police, on this information, went to the hospital and appears to have made preliminary investigation and recorded the statement of Ghulam Muhammad, which was treated as the F.I.R. by them. In Ghulam Siddique v. Station' House Officer, Saddar, Dera Ghazi Khan and 8 others P L D 1979 Lah. 263, it has been held that the primary purpose of the F.I.R. is to inform about the commission of cognizable offence which the Police Officer is empowered to investigate and the information with regard to the occurrence coming out later in point of time can be taken down as statement of a person before the police under section 161, Cr.P.C. In the manner, the F.I.R. lodged by Ghulam Muhammad has lost its value. It may be noted that Muhammad Ashraf son of Muhammad Amir deceased had lodged a complaint that Ghulam Muhammad and others got his father murdered through Rehmat, a proclaimed offender. His complaint was dismissed but it has been stated therein that Rehmat, the proclaimed offender, would be tried when arrested. In this manner, there are two versions of this incident and the possible version which goes in favour of the accused should be accepted.

15. The civil litigation between the parties ended in a compromise, as is evident from Exh.D.F. There is no documentary proof that any criminal litigation was pending between. Ghulam Rasool and Muhammad Amir. The motive for the commission of this crime has, therefore, not been proved. The ocular testimony of the witnesses in this case is of sub-standard type. The Sotas recovered from the appellants were not stained with blood and the recovery does not serve as a good substitute for a corroboratory evidence. The report lodged by Ghulam Muhammad cannot be treated as the first information report which appears to have been recorded after preliminary investigation. In the circumstances, I extend the benefit of doubt to the appellants and acquit them of the charge framed against them under sections 302/34, P. P. C. and 307/34, P. P. C. They may be set at liberty forthwith if not required to be detained in any other case.

M.Y.H./G-130/L Appeal allowed.