MUNIR AHMAD Versus AKHTAR HUSSAIN

KHIZAR HAYAT, J.‑‑- Vide judgment, dated 21‑3‑1988, learned Special Court for Speedy Trials, D.G. Khan, while acquitting Salim, Imam Bakhsh and Mansoor alias Panchhi, convicted Saadat Hayat alias Sada (30) and Latif alias Latifa (24) under section 302/34, P.P.C. for the murder of Ehsan Ullah and sentenced Saadat Hayat to death and Latif to imprisonment for life and a fine of Rs. 25,000 each or in default to undergo 2 years' rigorous imprisonment each. They have been further directed to pay as compensation Rs. 25,000 each to the heirs of the deceased or in default to undergo 6 months' rigorous imprisonment. The convicts have filed separate appeals (Criminal Appeals Nos. 75 and 76 of 1988) challenging their conviction and sentence. The State has filed Criminal Appeal No. 82 of 1988 against acquittal of Salim, Imam Bakhsh and Mansoor alias Panchhi and another Appeal No. 83 of 1988 for enhancing sentence of Latif alias Latifa. All the four appeals are being disposed of by this single judgment as they arise from the same judgment.

2. Prosecution case briefly is that at 7‑30 p.m. on 10‑12‑1986 Sanaullah complainant (P.W.7) with his brother Ehsan Ullah (deceased) went to the house of Imam Bakhsh (since acquitted) situated in Mohallah Chandianwala Layyah city for realizing Rs. 300 from him which was loaned out to him by Ehsanullah (deceased) earlier. Ehsanullah (deceased) called out Imam Bakhsh standing on the road side. Imam Bakhsh came down from his Chobara. The deceased demanded his money from him, who refused to pay, whereupon a quarrel ensued. Meanwhile both appellants, Latif alias Latifa and Saadat Hayat alias Sada armed with knife and Chhuri respectively and Mansoor alias Panchhi and Saleem, both empty‑handed, also descended from the Chobara and encircled Ehsanullah. Imam Bakhsh, Mansoor and Saleem started slapping him. Mansoor alias Panchhi raised Lalkara that Ehsanullah (deceased) had insulted them and should be done to death. At this, Latif alias Latifa gave a knife blow to the deceased which landed on his `Chadda' (inside the thigh) while Saadat alias Sada (appellant) gave Chhuri blow on the left side of his chest. They gave him more blows also. Sana Ullah (complainant), Talib Hussain (P.W.8) and Ahsan Ullah (P.W.9) tried to intervene but they were threatened with dire consequences to stay away. As a result of injuries the deceased fell down and assailants made good their escape. Ehsan Ullah breathed his last in the way while being taken to the hospital in a tonga. Leaving the dead body in the custody of others, Sana Ullah P.W. went for making report to the police and having come across Inspector Ghulam Farid Gishkori (P.W.10) near Layyah Minor lodged report Exh. P.F. with him. The Inspector then sent it to Police Station City Layyah where formal F.I.R. Exh. P.F./1 was drawn up under section 302/34, P.P.C. by M.H.C. Ashraf (P.W.4).

3. The Investigating Officer (P.W.10) then visited Layyah hospital and after preparing injury statement Exh. P.C. and inquest report Exh. P.B. sent the dead body under police escort for post‑mortem examination. He inspected the place of the accused excepting Mansoor were arrested on 14‑12‑1986 while Mansoor w3 arrested on 20‑12‑1986. Blood‑stained shirt (P.8) was removed from the person of Latif alias Latifa (appellant) which was seized under memo. Exh. P.G. He go recovered blood‑stained knife (P.1) which was secured under memo. Exh. P.K. On 18‑12‑1986 Saadat (appellant) got recovered Chhuri (P.2), not stained with blood from his house which was taken into possession under memo. Exh. P.I. All these recoveries were attested by Allah Dad (P.W.5) and Khuda 'Dad Khan (P.W.6). According to the Chemical Examiner and the Serologist's reports Exh. P.L. and P.M. shirt (P.8) and knife (P.1) were found as stained with human blood.

4. Dr. Fateh Muhammad (P.W.1) who conducted autopsy on the dead body of Ehsan Ullah (deceased) on 11‑12‑1986 at 10 a.m., noted following injuries on it:‑

(1) An incised wound (stab) 2 c.m. x 1 c.m. going deed into the left chest cavity 7 c.m. from anterior axillary margin and 4 c.m. from left nipple, Correspondent cut marks preset on jacket and shirt. Total length of the wound was 10 c.m.

(2) Stab wound (incised) 1‑1/2 c.m. x c.m. x muscle deep on the right upper arm on the back vertical in direction. Correspondent cut hole present on the shirt.

(3) Stab (incised) 1‑1/2 c.m.x 1/2 c.m. x skin deep on left upper arm 15 c.m. below the top of left shoulder on outer aspect corresponding cut/holes present on shirt.

(4) A stab wound (incised) 2 c.m. x 1 c.m. into going deep upward on the left upper most part of the left thigh on the inner side gong deep 8 c.m. approximately into the muscle 2‑1/2 c.m. away from left scrotum.

(5) An incised wound 1‑1/2 c.m. x 1/2 c.m. x skin deep on the left eyebrow parallel to eyebrow.

Left chest was full of blood clotted and unclotted, left lung was injured. Stomach was empty and small intestine contained faecal matter and gases. In the opinion of the doctor, all the injuries were ante‑mortem and caused by sharp pointed weapon. Death of the deceased had occurred due to shock and haemorrhage immediately after receipt of injuries and injury No. 1 was sufficient to cause death in the ordinary course of nature and that the post‑mortem examination was done about 12 to 16 hours after death.

Muhammad Latif alias Latifa appellant was medically examined by Dr. Zafar Iqbal (C.W.1) on 14‑12‑1986 at 7‑30 p.m. and found three injuries i.e. abrasions on the left arm, on the middle finger and ring finger of left hand of 3 to 5 days duration.

5. At the trial the prosecution relied on ocular testimony furnished by Sanaullah (P.W.7), Talib Hussain (P.W.8) and Ehsanullah (P.W.9); incriminating recoveries deposed to by Allah Dad (P.W.5) and Khuda Dad (P.W.6) and the evidence of doctors (P.W.1 and C.W.1) whereby injuries of the deceased and Latif appellant are proved.

6. All the accused including the appellants in their statements under section 342, Cr.P.C. denied to have participated in the occurrence. They also denied the recovery of weapon and blood‑stained clothes from them and explained that since Sanaullah and Ehsanullah P.Ws. are close relation and Talib Hussain P.W a business partner of the deceased, therefore, they are partisan and unreliable. They have not produced defence evidence.

7. Learned trial Court acquitted Imam Bakhsh, Saleem and Mansoor accused who were said to be empty‑handed at the tune of occurrence and convicted Saadat Hayat and Latif appellants and sentenced them as indicated above, hence this appeal.

8. Learned counsel for the appellants has submitted that the motive set up by the prosecution has not been proved; that the eye‑witnesses are chance witnesses and interested, therefore, their testimony cannot be safely relied upon without corroborative evidence which is lacking; that the ocular testimony is not confidence inspiring and merits to be rejected and that the deceased was of bad character having many enemies who was perhaps done to death by unknown assailants. Learned State counsel has defended the impugned judgment.

9. Main stay of the prosecution is the evidence of Sanaullah (P.W.7), Talib Hussian (P.W.8) and Ehsanullah (P.W.9), the eye‑witnesses. Sanaullah P.W. is real brother and Ehsanullah P.W. a near relative of the deceased while Talib Hussain P.W. is his business partner. Talib Hussain lived at Kot Sultan about 12 miles away from the spot and Ehsanullah lived at a distance of about 1‑1/2 miles from the spot.

10. Sanaullah P.W. narrated the story as given in para. 3 above. He stated that he did not physically intervene to rescue his brother nor did he call anybody from the locality to help him for rescuing his brother. He admitted that Saadat Hayat (appellant) had got a case of murder registered against his father Amanullah and that one Shahid Kamal had lodged against him a case under section 307, P.P.C. at Police Station Layyah. He, however, expressed ignorance if other cases of murderous assault had been registered against him and his deceased brother. He also denied that cases for possessing narcotics stand registered against the deceased. But the defence has brought can record four certified copies of different F.I.Rs. (Exhs. P.W.7/C, P.W.7/E, P.W,7/L and P.W.7/A) registered against him under section 307, P.P.C. and in two of these cases the deceased was named as accused with him. In one case it is alleged that the witness and his deceased brother, duly armed with knife and pistol, had trespassed into the house of one Muhammad Yaqoob for committing sodomy with him. Certified copies of two F.I.Rs. Exhs. P.W.7/D and P.W.7/G show that the deceased was challaned under prohibition (Enforcement of Hadd) Order, 1979. Some cases under Arms Ordinance, 1965 also stand registered against him. The witness denied that Talib Hussain is his business partner. The defence has brought on record registered sale‑deed No. 631, dated 15‑4‑1985, showing that the witness and Khalid Hussain brother of Talib Hussain P.W. jointly purchased land and through yet another sale‑deed No. 1342, dated 4‑8‑1985, the witness himself alongwith Talib Hussain jointly purchased land for a sum of Rs. 12,000. He denied the suggestion that tie deceased was fatally injured in a gambling den and his dead body was thrown in hospital premises by unknown persons and that Dr. Zafar Iqbal had informed the police authorities about it on telephone, whereafter the instant case was registered putting up false witnesses.

11. Talib Hussain (P.W.8) stated that he came from village Kot Sultan to Layyah city for meeting a Patwari there. In the way he met Ehsanullah P.W. and while both of them, were passing through the street of Faizabad Mohallah, they heard alarm near the Chaubara of Imam Bakhsh and having gone there they saw Imam Bakhsh; Saleem and Manzoor alias Punchhi slapping the deceased and Latif and Saadat giving a blow each with their weapons in his Chadda (inside the thigh) and left side of chest respectively. They gave more blows also to him and decamped within their view. They removed the deceased to the hospital but he died in the way. Ehsanullah (P.W.9) also made a similar statement. In cross- examination they stated that nobody from the locality was either present or had seen the occurrence and that they did not intervene physically to rescue the deceased due to fear of the accused. They did not raise alarm to summon help of the inhabitants of the locality either. Talib Hussain P.W. admitted that he alongwith Sanaullah P.W. jointly sold Shah Jamal Hotel for a sum of Rs. 80,000 to one Mahboob Hussain.

12. Dr. Zafar Iqbal, Medical Officer, D.H.Q. Hospital Layyah appearing as court‑witness stated that he medically examined Latif alias Latifa accused on 14‑7‑1986 at 7‑30 p.m. and found three blunt weapon injuries on his person, of 3 to 5 days duration. He also stated that on the night between 10/11‑12‑1986 he was on duty in the hospital and that at 8/9 p.m. he found an unclaimed dead body lying in the hospital premises and that he informed the police on telephone about it, whereupon Ghulam Farid Gishkori, Police Inspector, came and took the dead body into possession. Ghulam Farid Gishkori (P.W.10) however, denied it.

13. From the above resume of the prosecution evidence, it is apparent than the occurrence took place in a thickly populated area which in the words of Abdul Khalid Draftsman (P.W.3) is densely populated area and is surrounded by various houses, shops and mosque where the people roam about even at odd hours, yet, not a single person from that locality has come forward to support the prosecution story. The eye‑witnesses have close connections with the deceased. They do not reside at or near the place of occurrence. Their testimony, therefore, I requires closer scrutiny to find if they had really seen the occurrence? Sanaullah (P.W.7) brother of the deceased clamed to have gone in the company of the deceased for realising the money frown Imam Bakhsh (acquitted accused) and when the latter refused to pay et, the occurrence, took place. But there is no reliable evidence showing that Imam Bakhsh had obtained any money from the deceased as loan. Even Sanaullah P.W. stated that the deceased had not advanced the amount to Imam Bakhsh in his presence. It is not, therefore, established that the deceased had gone to the place of occurrence for the purpose of realising debt from Imam Bakhsh. Assuming that it were so then the question arises whether the testimony of the eye‑witnesses relating to main occurrence is trustworthy? The eye‑witnesses stated that due to fear of the accused neither they physically intervened to rescue the deceased nor they had raised alarm calling the residents of locality to help them. This conduct of theirs runs counter to the normal human behaviour. The deceased as well as his brother Sana Ullah (complainant) as is apparent from the record, were of furious character having many enemies. Had Sana Ullah been present there then in no circumstance he would have remained a silent spectator. He would have not only intervened, rather there would have taken place a fierce clash in which both sides would have been injured but it is not so. Talib Hussain P.W. resides 10/11 miles away from the spot. His claim that he came to Layyah for meeting a Patwari is not convincing. He admitted that he returned home without meeting him. He has not stated either as to why he wanted to see the Patwari? We, therefore, have grave doubt about his visit to Layyah at night time. He appears to have been set up as an eye‑witness as he is business partner of the complainant. Similarly, Ahsanullah P.W. who is a close relation of the deceased, too has not given a reasonable explanation for his being present at the place of occurrence at that odd hour. All these facts show that these witnesses were not present at the time of occurrence. We are fortified in holding that it was an unwitnessed occurrence by testimony of Dr. Zafar Iqbal (C.W.1) an absolutely independent and disinterested person, who stated that he had found the dead body (of deceased) lying unattended in the hospital premises and informed the police at 8/9 p.m. on the night of occurrence on telephone and then police came and seized it.

14. The medical evidence also does not support the ocular evidence. According to eye‑witnesses the deceased had fallen down after receiving injuries D Nos. 1 and 4 at the hands of the appellants and it was thereafter that the remaining injuries were caused to him. This seems to be incorrect, because the injuries caused to the deceased after he had fallen, must be much more deeper and graver due to target being motionless but strangely these injuries are only skin deep. This suggests that the injuries other than 1 and 4 were caused during the scuffle, when the deceased was on his feet and he received other injuries particularly No. 1 after he had fallen down. This circumstance belies the eye witnesses.

15. It is worth noting that Latif (appellant) had earlier got a case under section 307, P.P.C. registered against his co‑accused Saadat (appellant), B therefore, there was no possibility of these two persons joining hands to attack or kill the deceased. It is also on record that Saadat has got a case registered under section 307, P.P.C. against Mansoor (since acquitted) as well. Saadat (appellant) as indicated earlier, had got a murder case registered against the father of the deceased and Khizar Khan, uncle of the deceased, had filed 3 suit for damages against the father of Saadai which was ultimately dismissed. Therefore, there is a, n possibility that Saadat (appellant) had been attributed principal role in this case by the complainant due to enmity mentioned above. It is also not wholly improbable that the deceased had been killed and his dead body thrown in the hospital premises by his rival gamblers.

16. For the above reasons we find the evidence on record unreliable and unsafe to hold the appellants guilty for the murder of the deceased beyond reasonable doubt. The conviction recorded by the trial Court is not, therefore, sustainable. Consequently, we allow these appeals, set aside the conviction and sentence of the appellants and acquit them. They shall be released forthwith provided they are not required to be detained in any other case. Criminal Appeals Nos. 82 and 83 of 1988 filed by the State fail automatically and stand dismissed.

SA./S‑349/L Appellants acquitted.