RIAZ HUSSAIN Versus STATE
The appellants alongwith two others, namely, Mir Dad and Nazir, the acquitted co‑accused, were tried by the learned Additional Sessions Judge, Gujranwala, for the murder of their co‑villager Ghulam Hussain and attempted murder of Muhammad Mansha P.W. and also for disappearance of the evidence, in the furtherance of their common intention, on 6‑4‑1986 in the area of village Aminpur Syedan, District Gujranwala. On the conclusion of the trial, the learned Judge vide his judgment, dated 23‑1‑1988, after acquitting Mir Dad and Nazir of all the charges on benefit of doubt, convicted Riaz Hussain and Barkat Ali appellants under section 302/34, P.P.C. and sentenced each of them to imprisonment for life and a fine of Rs.2,000 each or in default to further undergo 1 year's R.I. each. They were also directed to pay compensation of Rs.10,000 each to the legal heirs of the deceased or in default to further undergo 6 months' R.I. each.
2. The prosecution story in brief was that Riaz Hussain appellant was suspecting Ghulam Hussain (deceased) for having illicit relation with his sister Mst. Nasim Bibi, who was the paternal‑niece of his three co‑accused. In this background, on 6‑4‑1986 at 6‑30 a.m., when Ghulam Hussain (deceased) was coming back from his Dera to his house at Village Aminpur Syedan and reached near the school building situated on the outskirts of the village, the appellants arid their acquitted co‑accused suddenly intercepted him. Mir Dad co‑accused, who was armed with .12 bore gun, was the first to fire at him, hitting him on the right flank, as a result of which he fell down. When he was lying on the ground, Riaz Hussain appellant fired at him after placing the nozzle of his carbine on his belly. Then Barkat Ali appellant attacked him with a Chhuri, causing him an injury on the right side of his temple. Mansha P.W., who was the foster brother of Ghulam Hussain (deceased), tried to intervene but he was fired at by Nazir acquitted accused. He was, however, not hit. The victim died on the spot and the assailants dragged his body to their Behk at a short distant from the place of occurrence.
3. Mst. Naziran Bibi complainant, the widow of Ghulam Hussain (deceased), left for the Police Station (Saddar) Gujranwala for lodging the report but she came across S.I. Muhammad Aslam on the way at about 9‑30 a.m. near Village Chobargi where she lodged the report Exh.P.B. with him, alleging the abovementioned facts therein. S.I. Muhammad Aslam, after sending her statement to the police station for the registration of the case, proceeded to the spot. Reaching there, he found the dead body of Ghulam Hussain lying at the Behk of the accused party. After preparing the injury statement (Exh.PA.) and inquest report (Exh.P.B.), he despatched it to the mortuary for post‑mortem examination. He carried out the inspection of the spot situated near the school building and picked up blood?stained earth from there. He recorded the statement of the witnesses and searched for the accused but could not locate them. On 3‑5‑1986 he arrested Barkat appellant, besides Nazir and Mir Dad acquitted co‑accused, from Village Aminpur Seydan. On the same day Riaz Hussain appellant was produced before him at the police station by a respectable and he arrested him as well.
4. On 11‑5‑1986 Riaz appellant, while in police custody, led to the recovery of carbine (P.4) alongwith an empty (P.5) from his cattleshed. On the same day Barkat appellant, while in police custody, got recovered Chhuri (P.6) from his cattleshed. Both these weapons were seized and sealed by the Investigating Officer. He got prepared the site plan (Exh.PA.) and duplicate (Exh.PA./1) from the draftsman. In this way he completed the investigation and submitted the challan to the Court concerned after placing Nazir and Mirdad, the acquitted co‑accused, in. Column No.2 thereof as, in his opinion, they were innocent, but they too were later summoned by the‑ trial Court to join trial alongwith the appellants.
5. On the commencement of the trial, the appellants and their acquitted co‑accused were charged for .the murder of Ghulam Hussain (under section 302/34, P.P.C.) and attempted murder of Muhammad Munsha P.W. (under section 307/34, P.P.C.) in furtherance of their common intention, for the disappearance of evidence by removing the dead body from the spot to their Behk (under section 201, P.P.C). They pleaded not guilty and the prosecution led evidence against them by producing as many as 10 witnesses. .
6. Prominent among those were Mst. Naziran Bibi complainant (P.W.6) and Muhammad Mansha (P.W.7), who gave the eye‑witness account; Dr. Haji Atta‑ul‑Mustafa (P.W.9), who gave the details of post‑mortem examination and S.I. Muhammad Aslam (P.W.10), who explained various stages of investigation. Rest of the witnesses were formal or otherwise not very important to be mentioned here.
7. To be a little more precise; Dr. Haji Atta‑ul‑Mustafa (P.W.9) noticed the following injuries on the dead body of Ghulam Hussain during the course of post‑mortem examination carried out by him on 7‑4‑1986 at 9‑15 a.m.:‑‑
(1) Lacerated wound 2 c.m. x 1/2 c.m. x scalp deep on the right side of temporal region.
(2) A lacerated wound 1‑1/2 c.m. x 1/2 c.m. scalp deep on right side of head 1 c.m. from injury No.2.
(3) A lacerated wound 2 c.m. x 1/2 c.m. x scalp deep on right side of head 1 c.m. from injury No.2.
(4) A lacerated wound 1/2 c.m. x 1/2 c.m. on top of head.
(5) Fire‑arm lacerated entry wound 2 c.m. x 2 c.m. x going deep in the epigastric region with margins black and inverted.
(6) Fire‑arm lacerated entry wound 2 c.m. x 2 c.m. x going deep in the epigastric region half c.m. from injury No.5 on left lateral side.
(7) An incised wound 3 c.m. x 1 c.m. x going deep on right side of abdomen in the right by pochondrium 6 c.m. from ambilicus.
(8) Fire‑arm lacerated exit wound 2‑1/2 c.m. x 2‑1/2 cm. going deep on back of right chest lower part with inverted margins.
(9) Abrasion 1 c.m. x 1 c.m. x muscle deep on the back of left wrist joint.
(10) Abrasion 3 c.m. x 1 c.m. on left knee joint.
(11) Abrasion 1 c.m. x 1 c.m. on right knee joint.
(12) Abrasion 1 c.m. x 1 c.m. on left buttock.
(13) Abrasion 1 c.m. x 1 c.m. on right buttock.
8. On dissection he found the walls and ribs Nos.7, 8, 9, 10 and 11, besides inferior venocava under injuries Nos.5 and 6 injured, while plurae and right lung injured under injury No.5. He noticed walls of abdomen injured under injuries Nos.5, 6 and 7, peritoneum injured under injuries Nos.6 and 7 and stomach injured under injury No.5. Ribs Nos.7, 8, 9 and 10 stood fractured. All the injuries, according to him, were ante‑mortem and death occurred due to injuries Nos.5, 6, 7 and 8, which were sufficient to cause death in the ordinary course of nature, individually as well as collectively. On exploration he found cardboard and 9 pellets from the lower part of the chest under skin under injury No.6. The time between the receipt of injuries and death was immediate, and between the death and post‑mortem examination was within 36 hours. He proved post‑mortem report (Exh.P.F.) and diagram of injuries (Exh.P.F./1).
9. The abovementioned two eye‑witnesses, while giving the ocular account, supported the prosecution version in all material respects. Their testimony will be subjected to detail appraisal in due course, where necessary.
10. On the completion of the prosecution evidence, the appellant and their acquitted co‑accused, in their respective statements recorded under section 342, Cr.P.C., denying all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implications, professed innocence. They also recorded their statements under section 340, Cr.P.C. as their own witnesses. They, however, admitted their inter se relationship and being tenants of Altaf Hussain who had contested local council election against Ghulam Hussain (deceased) and they having supported the former. They led no evidence in defence.
11. On the conclusion of the trial, the appellants, namely, Riaz Hussain and Barkat Ali were convicted and sentenced in, the manner aforesaid, while their co‑accused namely Mir Dad and Nazir were acquitted on benefit of doubt. Aggrieved by these findings, the appellant came up in appeal to this Court.
12. It was argued on behalf of the appellants that both the eye‑witnesses were related to the deceased inasmuch as Mst. Naziran Bibi complainant was his wife and Muhammad Mansha P.W. was his foster brother and since they were interested witnesses, their testimony could not be relied upon without independent corroboration, which was altogether lacking in this case. According to the learned counsel, there was no occasion for Mst. Naziran Bibi complainant to have gone to her land for fetching milk when during her cross-examination she admitted that the land belonging to her husband was on lease and as such she was not present at the time of occurrence and made a false statement. He contended that Munsha P.W. tried to pose himself as an independent witness and denied the fact of his being the foster brother of the deceased but this fact was admitted by Liaqat Ali P.W., who testified that Ghulam. Hussain (deceased) had been brought up by the mother of Muhammad Munsha P.W. He urged that the motive alleged in the F.I.R, was varied at the trial by Mst. Naziran Bibi complainant and this fact rebounded on the veracity of the entire prosecution case. He argued that in the inspection note the Investigating Officer did not indicate the trail of blood which could be there if the dead body had really been dragged by the assailants from near the school building to the Behk of the accused. Finally, he urged that there were material variations between the medical evidence and the ocular account inasmuch as in the former the stab injury was located on the abdomen, while the eye‑witnesses stated that it was on the temple of the deceased, and this fact falsified the claim of the eye‑witnesses that they were present at the time of the occurrence and saw it.
13. On the other hand, it was argued on behalf of the State that even if the statement of Mst. Naziran complainant be discarded on account of her relationship with the deceased, the testimony of Muhammad Munsha P.W., the second eye‑witness, did not suffer from any legal infirmity as he was neither related to the deceased nor he had any differences with the accused party and as such his sole testimony was sufficient to sustain the conviction and sentence of the appellants.
14. The prosecution case as put forth by Mst. Naziran Bibi complainant was that in the morning of the day of occurrence she alongwith her son Zulfiqar had gone to their Dera in their land in order to fetch milk and when she accompanied by her son and husband was returning to their house and reached near the school building at the outskirts of the village, the appellants and their acquitted co‑accused suddenly attacked him (her husband) with their respective weapons and killing him on the spot, dragged his dead body to nearby Behk. In her cross‑examination she admitted that the land belonging to her husband was on lease during the days of occurrence. If it was so, then the lessee, whosoever he was, could, in all probability, be in possession of the Dera and the land and there could be no possibility of her husband's keeping buffaloes at the land and her bringing the milk from there. In these circumstances it is doubtful that she had seen the occurrence. During the trial she also gave a twist to the motive as alleged by her in the F.I.R. This fact also reflected unfavourably on her veracity. Therefore, it would be unsafe to rely on her testimony.
15. However, no fault can be found with the deposition of Muhammad Munsha P.W. He was not the blood relation of Ghulam Hussain (deceased) and, at the most, he was foster brother, which fact too he emphatically denied, though hinted it by another witness. In any case, he had no animosity, ill-will or spite against the accused party to depose against them falsely. He was, therefore, an independent witness by all standards and his testimony carries full weight.
16. There is also no force in the next contention of the learned counsel regarding the omission on the part of investigator to mention in the inspection note the fact of the presence of blood between the place of occurrence and the Behk, where the dead body was found and about the presence of which he (Investigating Officer) deposed in his statement. It is an admitted fact that the occurrence took 'place near the school building situated on the outskirts of the village, while the Investigating Officer found the dead body of Ghulam Hussain lying at the Behk of the accused party situated at some distance from the spot. It was, therefore, immaterial; whether the fact of the presence of trail of blood between these points was mentioned in the inspection note or not. The possibility of its presence could not be ruled out and it is possible that the Investigating Officer might have omitted this fact in the inspection note inadvertently. In any case, the appellants cannot derive any benefit out‑of this omission, rather, the fact of the presence of dead body at their Behk served as a corroboration to the prosecution case that after killing or fatally injuring Ghulam Hussain near the school building the accused party dragged his body to their Behk from where it was recovered by the police. They adopted this course either to cause the disappearance of evidence or to change the venue of crime in order to cook up a false defence but could not succeed in their mission.
17. Learned counsel has tried to play up a minor discrepancy between the ocular evidence and the medical one. There is a general tendency on the part of the Courts to consider medical evidence, especially about the location of the injuries noticed at the time of medical examination or autopsy, as a gospel truth, while with the passage of time and creeping in of many malpractices in the working of various departments, to which the Health Department is ‑no C exception, we will have to revise our impression about the authenticity of medical evidence. In this case, there could be a genume mistake on the part of Munsha eye‑witness as well on account of lengthy cross‑examination by the defence counsel, his own power of observation and lapse of memory due to passage of time. In this connection, I would like to place reliance on the observations of the Honourable Supreme Court in the case reported as P L D 1977 SC 557 which are as under:‑‑ ??????????
"The primary consideration in appraising the evidence given by a witness is to determine, why he has offered to testify? Has he seen the occurrence? If so, has the witness a motive to implicate a person, who was not amongst the culprit. If a witness satisfies these two tests, then the Court should watch the general demeanour .of the witness in order to judge the quality of his perception and his faculty‑to recall the past incident. A witness may make contradictory statements on some of the details of the incident in respect of which he is deposing in the Court. The variation may be due to lapse of memory, or a confusion caused in his mind by a relent-ness cross‑examination. Very often a witness gives incorrect statement because he must answer every question regardless of the fact whether he knows the answer to it or not. Mere contradictions, therefore, do not lead to the result that whatever the witnesses had said on salient features of the case and conforms to the other evidence on record is to be thrown over board."
19. For various reasons stated above, there is no substance in this appeal and the same is dismissed
19. The appellants being on bail, a copy of this judgment should be immediately sent to the learned District Magistrate concerned who shall cause their immediate arrest and send them to the prison for serving out their remaining sentence, with all the benefits of section 382‑B, Cr.P.C. under intimation to the Deputy Registrar of this Court.
N.H.Q./R‑138/1.
??????????? Appeal dismissed.