GHULAM MUSTAFA Versus A.C./COLLECTOR
The instant appeal, Criminal Appeal No. 85 of 1981 and Criminal Revision No. 6 of 1982, which are being decided by means of this consolidated judgment, emerge from the judgment dated 14‑11‑1981 pronounced by Ch. Muhammad Rafiq, the then learned Additional Sessions Judge‑I, Bahawalnagar, who had convicted Muhammad Din alias Mammi, the appellant, and Muhammad Hayat appellant under section 302/34 of the P.P.C. and had awarded them life imprisonment each and a fine of Rs. 5,000 each or to suffer six months' R.I. each in default thereof. The fine, if recovered, was directed to be paid to the heirs of the deceased by way of compensation. Both the appellants were also convicted under section 325/34 of the P.P.C. and were ordered to suffer five years' R.I. each and a fine of Rs. 1,000 each or to suffer one month's R.I. each. Muhammad Sadiq son of Wali Muhammad, Waris son of Karmu, Noor Nabi, Mammi son of Ameer Khan, Barkat Nawab sons of Ameer Khan and Waris son of Ghulam Muhammad were, however, acquitted. The criminal revision has been moved against the acquittal of the aforementioned acquitted accused.
2. The facts of the instant case, in brief, are that Qadir Bakhsh, the complainant, lived in Sahiwal City whereas his brother Ghulam Oadir was a resident of Village Kat Bhagwan Singh in District Bahawalnagar. Qadir Bakhsh, the complainant, had come to see his brother in his village and was staying there for the last 15 or 16 days prior to this incident. On 25‑8‑1978 at about 10‑00 p.m., Qadir Bakhsh, the complainant, his brother Ghulam Qadir, Zulfiqar and Abdul Jabbar sons of Ghulam Qadir were returning home after saying their Traveeh prayers when they were waylaid by the appellants and their accomplices, who have been acquitted. Muhammad Din alias Mammi son of Khan Muhammad and Muhammad Hayat, the appellants, were armed with a hatchet each whereas the others had Sotas. On their attack, the complainant party rushed to their houses but they were chased and Muhammad Hayat gave a hatchet blow on the right wrist of the complainant. Muhammad Sadiq, Waris and Noor Nabi gave Soti blows on his legs etc. Ghulam Qadir was given hatchet blows by Mammi, and Waris, Barkat and Nawab gave Danda blows to Ghulam Qadir. They also injured Abdul Jabbar and Zulfiqar, the nephews of the complainant. The incident was seen by Rashid and Afzal. The appellants and their companions dragged Ghulanz Qadir towards their houses and then they threw him in his house. Ghulam Qadir became unconscious and all the accused surrounded their Haveli so that nobody could go to the police station. At about Sehri time, the complainant scaled over the wall and came out and narrated this incident to Shah Muhammad at Chistian and then lodged the F.I.R. Exh. P.A. on 26‑8‑1978 at 10‑OS a.m. in the hospital. which was recorded by Taj Muhammad A.S.I. P.W.9. The form I FIR Exh. PA./1 was recorded by Wali Muhammad Head Constable P.W.4.
3. The police went to the spot and collected the blood‑stained earth and prepared the injury statements in respect of the injured persons. Ghulam Qadir died in the hospital on 27‑8‑1978 at 2‑15 a.m. and the offence under section 307 was converted into one under section 302 of the P.P.C.
4. Dr. W.BA. Bhatti, Medical Officer, Civil Hospital Fort Abbas P.W.10. who was posted at D.H.Q. Hospital, Bahawalnagar, on 2.6‑8‑1978 had examined Ghulam Qadir and had found the following injuries on his person:‑
(1) Contused wound 2" x 1/4" obliquely on the middle part of head and on the frontal.
(2) Contused wound 3/4 " x 1/4" x scalp deep on the left side of top of vertex,
(3) Contusion 1" x 1" on the right temporal region of heal.
(4) Contusion 3/4" x 1/2" alongwith the right ankle joint.
5. The same injuries were observed by this doctor at the time of autopsy and it was opined that all the injuries were caused by blunt weapon and injures Nos. 1 and 3 were sufficient to cause death in the ordinary course of nature. He has stated that the time, which elapsed between the injuries and death, was within 12 to 16 hours. But he corrected himself and has stated that this time could be within 24 to 28 hours, and he had wrongly given in the autopsy report that the time between the death and post‑mortem was 12 to 16 hours. When cross-?examined, he has stated that he had replied to the query Exh. P.R./1 at 9‑30 a.m. on 26‑8‑1978 i.e. before the lodging of the F.I.R. He conceded the fact that, on 27‑8‑1978, two blank forms in my Register of medico‑legal reports were available but he had used the plain papers for enumerating the injuries of the injured persons. He does not remember that in the year 1978, the departmental inquiries were conducted against him nor could he say as to how many inquiries had he faced uptill then. It appears that he has suppressed the factum of departmental inquiries made against him.
6. On 29‑8‑1978, Muhammad Din alias Mammi appellant got recovered blood‑stained hatchet P.3 which was made into a sealed parcel vide memo, Exh. P.E. On the same day, Muhammad Hayat appellant got recovered his hatchet P.4 which was not stained with blood and it was taken into possession vide memo. Exh. P.F. and no parcel was made. On the same day, Waris son of Karmu, Waris Ali son of Ghulam Muhammad, Muhammad Sadiq, Noor Nabi and Nawab got recovered their sotis which were taken into possession vide memos. Exh. P.G., Exh. P.H., Exh. P.J., Exh. P.K, and Exh. P.L. respectively, Mammi son of Ameer Khan and Barkat son of Ameer Khan were, however. declared innocent by the police. The Chemical Examiner and the Serologist gave positive reports Exh. P.V and Exh. P.K, respectively regarding the blood‑stained earth and the blood stains on the hatchet P.3. After the completion of the investigation, the challan of the appellants and their accomplices was submitted and, as a sequel to the impugned trial, the appellants were awarded the aforementioned punishment.
7. Qadir Bakhsh, the complainant, appeared in the witness‑box as P.W.1, and has narrated that Muhammad Din alias Mammi and Hayat had given blows from the wrong side of the hatchet and Hayat had hit his left forearm whereas Mammi son of Ameer khan and his brother Barkat gave Sota blows to his brother Ghulam Qadir, who fell down and became unconscious. He has, however, stated that Mammi son of Khan Muhammad appellant had opened the attack with his hatchet from its wrong side on his brother on his head and then Nawab and Waris son of Ghulam Muhammad had given Sota blows to his brother on the right side of the head of the deceased. He has added that Hayat had given blows Abdul Jabbar and Noor Nabi, Sadiq and Waris gave Sota blows to Abdul Jabbar and Zulfiqar P.Ws. He has depicted the motive for the commission of this crime that the accused had suspected that he and his brother Ghulam Qadir were assisting the Kharls with whom Hayat and others had a dispute and two or three days before this occurrence, they were actually threatened with dire consequences. He has stated that Mammi, Barkat and Nawab accused are the sons of Ameer Khan and Amir Khan is cousin of Hayat appellant. Waris son of Ghulam Muhammad is the son‑in‑law of Hayat whereas Mammi appellant and Sadiq accused are his cousins. Waris and Noor Nabi are the sons of a cousin of Hayat appellant whereas Sadiq, Mammi son of Khan Muhammad are the maternal‑cousins of Noor Nabi and his brother Waris. When cross‑examined, he has stated that he used to stay for four or five days each time he visited his brother and has not explained as to why he spent 15 or 16 days before this occurrence. He has conceded the fact that they passed by Police Station Takht Mahal on their way to Bahawalnagar but none of them contacted the police. He has stated that Muhammad Din alias Mammi appellant had given two hatchet blows to his brother Ghulam Qadir and he did not make a mention of wrong side of the hatchet in the F.I.R. He has deposed that Nawab, Waris, Mammi son of Ameer Khan and Barkat had given one or two blows each to the deceased. He has added that his nephews Jabbar and Zulfiqar had received four or five blows each and Abdul Jabbar had received hatchet blow from the wrong side He did not state this fact before the police.
8. Abdul Jabbar P.W.2, who is the son of the deceased, has corroborated the fact that they were attacked and injured. He has testified that Muhammad Din alias Mammi had opened the attack with his hatchet on his father and had given two blows and then Nawab, Waris, Mammi and Barkat had given blows to his father. He has stated that Zulfiqar was given blows by Sadiq, Waris and Noor Nabi accused and Afzal and Rashid witnessed this occurrence. When cross-?examined, he has explained that two or three blows might have been given to his father by Nawab and Waris had given 2‑3 blows to his father and these blows were given on the legs and arms. He has admitted to have been stated before the police that Waris and Nawab had given blows to the deceased on the head. But the location of these injuries was not found mention in the copy of the statement Exh. D.C. He did rot state before the police that Zulfiqar was also injured not could he count she blows given to his father Ghulam Qadir by Waris, Nawab and Sadiq. He has, however, stated that Zulfiqar had sustained twelve injuries at the hands of the assailants and he received not less than six or seven injuries at the hands of Waris, Noor Nabi and Sadiq. His statement is replete with confrontations which he made before the police. He had stated before the Magistrate that they had taken their father to the hospital at Sehriwela by bus and did not inform the police of Police Station Takht Mahal on their way to the hospital.
9. Zulfiqar P.W.7 has lent support to the prosecution case by stating that Mammi son of Khan Muhammad had given hatchet blows to his father and Waris had also given sota blows to the deceased whereas Hayat appellant had given a hatchet blow to his uncle and he was also beaten by Sadiq, Noor Nabi and Waris, According to him, he was given blows by Waris and Bakhsh whereas his brother was given blows by Hayat appellant and he did not remember the other assailants of Abdul Jabbar, his brother. Rashid and Afzal had witnessed this incident. He has stated that, at the instance of the police, he did not name Mammi son of Ameer Khan and his brother Barkat as assailants before the Magistrate and he had named the seven accused before the Magistrate at the instance of the police. He did not state before the police that Waris son of Karmu had also given a Sota blow to him but, at the trial, he made this statement.
10. Ghulam Muhammad P.W.8 could not identify the Sota of each accused and Taj Muhammad P.W.9, who had investigated this case, has stated that he was informed of this occurrence by Shah Muhammad Bijli, a resident of Chishtian, when he was standing in the gate of the police station. He had received the information about the death of Ghulam Qadir at 7‑00 a.m. after reaching the hospital.
11. The appellants, in their statements under section 342 of the Cr.P.C. had taken the defence that Mst. Hanifan, a niece of Shah Muhammad, had murdered her husband in Basti Bhagwan Singh and a case was registered against her and, in that case, Ameer Khan, the father of Mammi, Barkat and Nawab accused, had deposed against Mst. sHanifan against the wishes of Shah Muhammad Bijli and, on account of this annoyance, Shah Muhammad got involved the sons and relatives of Ameer Khan falsely in this case. The fact that Mst. Hanifan was entangled in a case is evident from the judgment Exh. D.E. and the statement of Ameer Khan Exh. D.H.
12. The learned trial Court has adjudicated that the incident took place during the darkness of the night and the assailants' Sotas could not be identified properly nor their Sotas had been identified by Ghulam Muhammad, the recovery witness, and therefore, they were acquitted. About Muhammad Din alias Mammi and Muhammad Hayat appellants, he was influenced by the fact that the assailants were lying to ambush in the houses of both these appellants and the presumption was that both the appellants had given blows to the deceased and the other injured persons. This presumption does not appear to be correct because anyone of the assailants, who had emerged from the houses of the appellants, could have injured the deceased, his brother and sons and not necessarily the appellants.
13. The medical evidence, in this manner is shaky because the doctor entered the injuries of the injured persons on a plain paper and did not furnish a certificate to the Investigating Officer till 30‑8‑1978. It appears that this witness had faced departmental inquiries and was suppressing the fact. He could not explain as to why the printed form was not used at the first instance in depicting the injuries of the deceased and the injured P.Ws. A number of persons had been injuring the deceased and the injured P.Ws. but, strangely enough, the deceased got four injuries. The complainant received five contused wounds and Zulfiqar and Abdul Jabbar P.Ws. sustained two and one injury respectively. The statements of these witnesses do not tally with the medical evidence in this respect.
14. The learned trial Court has convicted the appellants on the statements of the eye‑witnesses, medical evidence and the recovery of hatchets from them, The ocular witnesses produced in this case are interested and inimical and their statements need utmost care and circumspection and cogent corroboration. Their statements have not been corroborated by the medical evidence. None of the assailants had used the sharper side of the hatchet. It is interesting to note that' the recovery of hatchet P.3 from Muhammad Din alias Mammi appellant has been believed. It appears that, after the medical evidence, the complainant was promoted to say that its reverse side was used because there was no incised wound on the person of the deceased. The recovery of hatchet P.3 appears to have been faked because its blade was blood‑stained which was not used at all. The hatchet P.4 recovered from Muhammad Hayat appellant was not at all blood‑stained and the recovery of hatchets could not connect the appellants with this crime.
15. So far as the motive is concerned, the complainant lived in Sahiwal City and he could not possibly assist the Kharls with whom the appellants had any dispute. There is no explanation on tae file as to what was the dispute between the Kharls and the accused party and in what manner, the complainant and his deceased brother assisted the Kharls. In case, the appellants were to kill, they should have murdered any of the enemies, who belonged to the Kharl tribe and they were not expected to kill Ghulam Qadir, who was simply assisting the Kharls. The motive for the commission of this crime is, therefore; not proved.
16. The incident was reported to the police by Shah Muhammad Bijli and C the instant F.I.R. cannot be taken as the first information report as Shah Muhammad Bijli had given the first information of this incident to the police. Strangely enough, the tonga, which was carrying the injured persons, passed by the police station or the place where, on account of the flood, the police station had been set up and no attempt was made to the lodge the F.I.R. there by any person. The F.I.R. appears to have been made after due deliberation in the hospital at 10‑05 a.m.
17. In the darkness of the night, it could not be identified as to who had given the particular injury. The F.I.R was lodged after due deliberation. The medical evidence does not corroborate the ocular account given by the eye?witnesses. The recovery of the hatchets leads us nowhere. The motive for the commission of this crime has not been established. Even the injuries sustained by the eye‑witnesses are doubtful. Rashid and Afzal, the independent eye‑witnesses ? of this occurrence, have not been examined.
18. In the circumstances, I accept both these appeals and set aside the judgment of the learned trial Court and acquit both the appellants. The appellants were released on bail. They stand discharged of their bail bonds. The criminal revision has got no merit and dismiss the same.
H.B.T./M‑1135/L ??????????????????????????????????????????????????????????????????????????????? Appeal accepted.