HUSSAIN Versus FAIZ MUHAMMAD
For the murder of Abdur Rehman, which took place at about 12‑15 a.m. on the night between 5/6‑6‑1987 in front of the Baithak of Zulfiqar (P.W.10) in village Sultanwala Dakhli, Hanoli sixteen miles from the Police Station Piplan, two persons, namely, Muhammad Aslam and Ghulam Nabi accused were tried. By his judgment dated 11‑7‑1988, the learned Additional Sessions Judge, Mianwali, acquitted Ghulam Nabi accused and convicted Muhammad Aslam, appellant, under section 302 of the P.P.C. and sentenced him to life imprisonment and a fine of Rs.20,000 and in default to suffer R.I. for two years. The appellant was also directed to pay a sum of Rs.30,000 as compensation to the heirs of Abdur Rehman, deceased.
2. After the incident, Abdul Rehman was carried in injured condition to the District Head Quarters Hospital, Mianwali, where he was medically examined by Dr. Mumtaz Khan (P.W.1). He noticed five fire shot injuries on his person, two of them being entry wounds and three of them being exit wounds. The injuries had been caused within a duration of about three hours. The doctor had not noticed any blackening or scorching around the injuries and was unable to tell the distance from which the deceased was fired at. After the death of Abdur Rehman, post‑mortem examination on his dead body was carried out by Dr. Mehr Khan (P.W.2). He also noticed the same injuries.
3. According to the statement before the police (which formed the basis of the formal F.I.R.) which was made by Muhammad Zaman (P.W.11) a real brother of Abdur Rehman, deceased at 10 a.m. on 6‑5‑1987 at Adda Hafiz Wala to Ihsan Karim S.I. (P.W.9), Abdur Rehman, deceased had been employed with Zulfiqar (P.W.10) for a year or so and he had gone to see him in Sultan Wala the previous evening. He, Zulfqiar P.W. and Abdur Rehman, deceased, lay awaken on separate cots, when at about 12‑15 a.m., Muhammad Shari son of Sher Zaman armed with a .12 bore pistol and Yaran armed with a .12 bore gun, both Arain Utradi by caste, residents of Sultan Wala challenged Abdur Rehman, deceased. Yaran fired but the shot missed hitting the deceased; then Muhammad Shafi fired hitting Abdur Rehman, deceased. Thereafter, the two above-named persons, ran away.
4. It was said that a day earlier, Abdur Rehman, deceased had quarrelled with the abovenamed Muhammad Shat and Yaran, for, they were sitting on a pathway meant for the use of women and they had threatened the deceased to see him.
5. Before the S.I. Ihsan Karim a copy of the medico‑legal report of the deceased was also produced.
6. At about 5‑25 a.m. on 6‑5‑1987, Mr. Muhammad Shamim Jahangir, Magistrate 1st Class, Mianwali, recorded what is described as the dying statement of Abdur Rehman, deceased, in the District Head Quarters Hospital, Mianwali. Before recording the statement (Exh.P.T.), the Magistrate obtained the opinion of Dr. Mumtaz Khan (P.W.1) as to his fitness to make the statement. The doctor had in fact remained present when the statement was recorded and the Magistrate had also, after concluding the statement of the deceased, recorded his statement to the effect that the deceased had been in possession of hil senses when he made the statement. Surprisingly however, Dr. Mumtaz Khan, when he appeared as P.W.1, was not examined on this important aspect of the prosecution case. As will be presently seen, the learned trial Judge had rejected and in my view for good reasons, the evidence of Muhammad Zaman and Zulfiqar P.Ws. According to him they had not eye‑witnessed the incident and the only basis of the learned trial Court's finding that it was the appellant who had killed the deceased, was the dying declaration (Exh.P.T.). This is enough to highlight the importance of the evidence of Dr. Mumtaz Khan that the deceased had remained in his senses when his statement was recorded by Mr. Muhammad Shamim Jahangir, Magistrate.
7. In the statement (Exh.P.T.), the deceased stated that he had gone to Sultan Wala 6/7 days earlier. Near the house of Muhammad Shafi (he was father of Zulfiqar P.W.), there was a Government quarter; that quarter was visited by two persons whose names he did not remember. He told them that they should not visit that quarter because the were given to Charas taking. Those two persons had threatened him saying that they would deal with him. Thereafter, he went to the Baithak and slept. At about 12 in the night two persons, one armed with a .12 bore pistol and the other armed with a gun, came and the person with pistol, whose name was `probably' Aslam, fired hitting him in his chest. He raised an alarm but the culprits ran away. He added that he did not know the father's name or caste of the said Aslam; what he knew was that he was Utradi.
8. At the trial Zulfiqar P.W. stated that Muhammad Aslam, appellant and Ghulam Nabi used to visit the Government quarter; that they were given to intoxicants that Abdur Rehman deceased, `dissuaded them to use intoxicants on the public' way because women‑folk often used to pass through that place', that the appellant and his co‑accused were annoyed and threatened him and that on the night of the occurrence they were asleep in front of his Baithak when the appellant armed with a .12 bore pistol and Ghulam Nabi armed with a .12 bore gun reached and fired at the deceased. In cross‑examination, Zulfiqar P.W. admitted that he and Muhammad Zaman P.W. had identified the appellant and his co‑accused at the time of the occurrence. He admitted that he and Muhammad Zaman P.W. had gone to lodge the F.I.R. and had met the A.S.I. Abdul Karim at Adda Harz Wala. He expected the presence of Muhammad Zainan P.W. at the time of the occurrence by admitting that `we sent the message to Muhammad Zaman, he came at Faijarwela and then we went to lodge the complaint at 10‑00 a.m. He also admitted that in the F.I.R. Muhammad Shafi and Yaran had been named as culprits. Muhammad Zaman P.W. said that he heard the gun shot and got up but could not identify the accused. He added that I know the accused present in Court through their faces but I could not know their names. I identified the accused in the light of the lamp. Aslam accused was armed with pistol while Ghulam Nabi was armed with a gun. After the occurrence I had inquired from my injured brother Abdur Rehman that why the accused had inured him then he told me that one person known by Syed is living in nearby Government quarter the accused used to sit there and women‑folk when pass through them they made inconvenience for the women and my brother forbid them to sit on that place due to that grievance the accused made a murderous assault. He denied that in his statement before police he had named Yaran Utradi and Muhammad Shafi as the culprits.
9. The learned trial Judge disbelieved the testimony of Zulfiqar and Muhammad Zaman P.Ws. The latter was ordinary resident of Piplan the incident had occurred in front of his Baithak but as he admitted that he had summoned Muhammad Zaman P.W. and had then accompanied him for lodging the F.I.R., the learned trial Judge was fully justified in rejecting his testimony as also the testimony of Muhammad Zaman P.W. The learned trial Judge also disbelieved the motive part of the prosecution story. As observed above, the sole basis of his finding that it was Muhammad Aslam, appellant, who had killed Abdur Rehman was the statement Exh.P.T. For one, Dr. Mumtaz Khan, who appeared as P.W.1, was not asked to say that he was present when the statement of the deceased was recorded, and that he was in possession of his senses, secondly, in the first part of his statement Exh.P.T. the deceased had said that the names of the persons with whom he had a quarrel, he did not remember. In the second part of the statement, he did mention the name of Muhammad Aslam but he was not sure of that name either. This should be obvious from the sentence in Urdu It was probably on being pressed to give more particulars of that he admitted that he did not know his father's name or caste but added that he was `Utradi'. In order to connect the appellant with the crime, therefore, it was necessary to lead some evidence to the effect that he was Utradi by caste. No such evidence was led. The appellant in his statement under section 342, Cr.P.C. gave his caste as Swan.
10. In this state of evidence, I do not think that even the deceased statement Exh.P.T. furnished a safe basis for the conviction of the appellant. I would, therefore, accept the appeal, set aside the conviction and sentence and acquit the appellant. He shall be released forthwith if not required in any other case.
S.A./M‑1109/L Acquitted.