MURID HUSSAIN Versus STATE
Appellant Murid Hussain aged 32/33 years and Iqbal Hussain aged 33/34 years were tried by the learned Additional Sessions Judge, Bahawalpur for the murder of Jewna deceased and vide his impugned judgment, dated 29-1-992 were convicted and sentenced under section 302/34, P.P.C. to undergo imprisonment for life each and a fine of Rs.5,000 each, in default whereof to suffer further R.I. for one year each. They were also directed under section 544-A, Cr.P.C. to pay compensation of Rs.2,000 each which if recovered, was ordered to be paid to the legal heirs of the deceased, in default whereof to sufer 6 months' R.I. each. The appellants were also convicted for causing injuries on vital parts of P.Ws. Tulsa and Mangta with an intention to kill them under section 307/34, P.P.C. and sentenced to undergo 3 years' R.I. each and to pay a fine of Rs.5W each, in default whereof to undergo R.I. for four months each. The fine, if realized, was directed to be paid to the injured P.Ws. Tulsa and Mangta in equal shares. The sentences were ordered to run concurrently.
2. The facts of the prosecution case are that P.W.1 Tulsa on 16-6-1991 lodged F.I.R. Exh.PA. at Police Station Ahmadpur Sharqia recorded by Abdul Rehman S.I. (since dead) to the effect that he alongwith his parents and other relatives was residing in Chak Colony No.110/DB and they were labourers and also did jackals hunting and on the previous day of the occurrence i.e. on 15-6-1991 he alongwith his father Jewna deceased and P.W2 Mangta were going for hunting jackals near the sand dunes within the area of Mauza Mehrabwala and when they reached near Qutab Wah Canal, two persons, one of them of long height, thin body blackish colour and the other one of middle stature, blackish colour, accompanied them and stated that they would also hunt with them. The deceased, P.W.2 and the said persons reached near Rasool Cotton Factory and searched for the jackals for hunting and at evening time the said persons went away, but had not stated their names and addresses. In the night P.W.1 alongwith his father deceased Jewna and P.W.2 Mangta slept on the sand dune and at about mid-night two persons reached and on hearing the sound of their footsteps, P.W.1 and P.W.2 were awakened and witnessed that they were armed with hatchets. P.Ws.1 and 2 inquired from them who were they, on which one of them inflicted a hatchet blow on the head of P.W.1 and the other gave a hatchet blow on the left cheek of P.W.2, and then the former also landed a hatchet blow on the left backside of P.W.2, on which Jewna deceased stood up whereupon both the persons caused hatchet blows on the neck of the deceased one by one on the same place. The deceased fell down and succumbed to his injuries. On hue and cry of the P.Ws. the accused/appellants decamped with their hatchets. The motive was that on the. previous night, the P.Ws. and deceased had hunted two jackals and the said two persons had asked them on the sand dunes that both the jackals should be given to them, but the same demand was refused, and they were offered to take one jackal, but both the persons insisted for the two, on which an altercation took place and the said persons felt annoyed and went away. P.W.1 had shown strong suspicion on the said persons who had been roaming with them yesterday, but their names and addresses were not known to the P.Ws. as they were strangers to the area. P.Ws.l and 2 were injured. P.W.1 reached the police station after leaving behind Mangta (P.W.2) and other relatives alongwith Nazir Ahmad, Lamberdar.
3. The appellants were challaned and sent up for trial. A charge under sections 302/34 and 324/34, P.P.C. was framed against them, to which they denied and claimed trial.
4. The prosecution examined 12 P.Ws. in all to substantiate its case. P.W.1 Tulsa is the complainant who corroborated the contents of the F.I.R. Exh.PA. P.W.2 Mangta stated that he alongwith P.W.1 and the deceased went for hunting jackals and both the appellants joined them in the hunting. They remained busy in hunting till evening and hunted two jackals. The appellants demanded the hunted jackals, on which the P.Ws. and the deceased agreed to give one jackal and refused to hand over the other, which resulted in the altercation and the appellants left the place in angry mood. The deceased and P.Ws.1 and 2 after taking meals went to sleep on the sand dune. At about mid night they got up on hearing sound of footsteps and witnessed the appellants armed with hatchets. Murid Hussain appellant initiated attack and inflicted a hatchet blow on his left cheek and appellant lqbal Hussain gave hatchet blow on right side of his back. On his hue and cry Jewna deceased got up when the appellant Murid Hussain inflicted hatchet blow on his neck followed by Iqbal appellant who too gave hatchet blow on the neck of Jewna deceased, who succumbed to his injuries at the spot. The appellants decamped with their hatchets from the locale. He further stated that he had identified the appellants alongwith P.W.1 in the moonlit night. P.W.3 Molia joined the investigation of the present case and in his presence lqbal Hussain appellant while in police custody led to the recovery of blood-stained hatchet P.4 from his residential Jhunpari (hut), which was secured by P.W.12 Muhammad Siddique, Inspector/S.H.O. vide memo. Exh.P.D. attested by him. On the same day appellant Murid Hussain while in police custody led to the recovery of blood stained hatchet P.5 from his residential Jhunpari (hut), secured by P.W.12 S.H.O. vide memo. Exh.P.E. attested by him. P.W.4 Rama stated that after 2/3 days of the occurrence he alongwith Rajob P.W. (given up) left for having a clue of the accused near the place of occurrence, where they were told by some persons about the accused. P.W.4 and Rajob P.W. (given up) met the accused who made confession and stated that they alongwith the deceased and P.Ws.1 and 2 went for jackal hunting and had hunted two jackals and demanded both the jackals from the complainant party, who gave one to them but refused to deliver the other. There was exchange of hot words. The appellants further revealed that at about mid-night they armed with hatchets had caused injuries to P.Ws.1 and 2 and the deceased. The appellants had further asked P.W.4 and Rajob P.W. (given up) to arrange pardon for them. P.W.5 Muhammad Nawaz Constable delivered the two sealed parcels of crime hatchets in the office of the Chemical Examiner, Lahore intact. P.W.6 Ghulam Shabbir Patwari prepared site plan Exhs.P.F. and P.F./1 on the direction of the police, and on the pointation of the P.Ws. P.W.7 Manzoor Ahmad H.C. on 3-8-1991 was the Incharge of Judicial Lock-up, Ahmadpur East and on the same day the Police of City Ahmadpur East sent the accused to jail with muffled faces. No other person was allowed to see or meet the accused/appellants so long as they remained in jail lock-up. On the next day P.W.8 Mr. Ashiq Muhammad, M.I.C. reached and P.W.7 handed over the accused with muffled faces to him who held the identification parade. P.W.8 Mr. Ashiq Muhammad, M.I.C. on 4-8 1991 received application Exh.P.G. from the Assistant Commissioner for arranging identification parade of the accused. He went to the judicial lock-up and supervised the identification parade of the accused and in his presence P.Ws.1 and 2 had identified the appellants. P.W.9 Ghulam Mustafa, Constable on 30-6-1991 delivered the sealed parcel containing blood-stained earth in the office of the Chemical Examiner, Lahore intact. P.W.10 Azhar Javaid H.C. while working as M.H.C. at Police Station, Ahmadpur East on 16-6-1991 received one sealed parcel containing blood-stained earth from P.W.12 Muhammad Siddique S.H.O. and on 28-6-1991 handed over the same to P.W.9 Ghulam Mustafa, Con;;able for onward transmission to the office of the Chemical Examiner, Lahore. He further stated that on 2-8-1991 the appellants Murid Hussam and lqbal Hussain were confined in police lock-up with muffled faces and nobody was allowed to see or meet them so long as they remained in the lock-up. On 6-8-1991, the S.H.O. (P.W.12) handed him over two sealed parcels containing crime hatchets for keeping the same in Malkhana. On 24-8-1991, he delivered the above-said articles to P.W.5 Muhammad Nawaz for their onward delivery to the office of Chemical Examiner, Lahore.
5. On 16-6-1991 P.W.11 Dr. Mulazim Hussain medically examined Tulsa (P.W.1) and found the following injuries on his person:--
"An incised wound of about 7 c.m. x 2 c.m. x bone deep in the middle of the head. The shape was elliptical, the direction was oblique. The bone was cut accordingly on right and left partietal parts of the skull. According to X-ray of skull No.605-06. Exh.P.W.ll/A there was fracture of vault of the skull. So, injury No.l was declared grievous, inflicted by sharp-edged weapon. The probable duration of injury was about 13 to 14 hours. Exh.P.J. is the copy of M.L.R "
On the same day, P.W.11 examined Mangta and found the following injuries on this person:--
(1) An incised wound about 8 c.m. x 4 c.m. x 5 c.m. deep bone. The bone was cut on the left maxilla of the face. The muscles were cut uniformally. The facial nerve was also cut.
(2) An incised wound of about 8 c.m. x 3 c.m. x 4 c.m. on left part of the back.
According to the X-ray report there was fracture of left maxilla. So, injury No.l was declared grievous and injury No.2 as simple. All the injuries were infected by a sharp-edged weapon. The probable duration of injury was about 13 to 14 hours. Exh.P.K is the copy of M.L.R.
On the same day P.W.11 Dr. Mulazim Hussain also conducted autopsy on the dead body of the Jewna and found the following injury;--
"Incised wound of about 6 x 2-1/2 x 4 c.m. bone deep. Elliptical in shape on external side and back of right part of the neck. The third and fourth cervical vertebrae were also cut accordingly. The right carotid blood vessels were cut."
Spinal cord was cut in the area of third and fourth vertebrae. In the opinion of the doctor, injury No-1 was caused by sharp-edged weapon, and was ante mortem and sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injury and death was about 5 minutes and between death and post-mortem examination was within 16 hours. Exh.P.L. is the copy of post-mortem report.
6. P.W.12 Muhammad Siddique, Inspector/S.H.O. had identified the handwriting and signatures of Abdul Rahman, S.I. i.e. the F.I.R. Exh.PA. recorded by the S.I. on the statement of Tulsa (P.W.1) which bears his signature. P.W.12 stated that Abdul Rehman, S.I. who died in an accident had worked under him. Abdul Rehman, S.I. also secured last-worn clothes of the deceased P.1 to P.3 vide memo. Exh.P.C. which was prepared in the handwriting of the said S.I. and bore his signatures. According to P.W.12, Abdul Rahman, S.I. also took possession of blood-stained earth from the venue of occurrence and made it into a sealed parcel vide memo. Exh.P.B. ,in his hand and signed by him. Likewise, the inquest report Exh.P.M. and injury statement Exh.P.MM were also prepared by the said S.I. and bore his signatures. On 19-6-1991 P.W.12 took over the remaining investigation of this case and also recorded statements of the witnesses. On 2-8-1991 he arrested accused Murid Hussain and Iqbal Hussain and got judicial remand as identification parade was to be held for them. Accordingly, on 4-8-1991, he presented an application before Muhammad Ashiq, Magistrate marked by the Assistant Commissioner, Ahmadpur East to hold identification parade of the accused and on the same day identification parade was held in the judicial lock-up and the witnesses correctly identified the appellants. On 5-8-1991, he again obtained remand of the appellants. On 6-8-1991, appellant Iqbal Hussain led to the recovery of crime hatchet P.4 from his residential Jhuggi lying in pigeon house (Derba). He made it into a sealed parcel and secured the same vide memo. Exh.P.D. On the same day appellant Murid Hussain led to the recovery of crime hatchet P.5 from his residential Jhuggi lying with southern wall of pigeon house (Derba), made it into a sealed parcel and secured by him vide memo. Exh.P.E. Both the memos. were attested by the P.Ws. After completion of the investigation he had challaned the appellants and sent them up for trial.
7. The appellants when examined under section 342, Cr.P.C. denied the prosecution evidence against them and also the recoveries of incriminating articles at their instance. Appellant Murid Hussain also made statement on oath as envisaged under section 340(2), Cr.P.C., but both the appellants had not produced any evidence in defence. Appellant Murid Hussain stated that his co-accused Iqbal Hussain was his cousin. They were Muslims and their parents made both ends meat by begging. About six months ago, Abdul Rahman, S.I: (since dead) alongwith another Faqir came and took them from their house to the police station. He and his co-accused had no connection with the occurrence and the said S.I. detained them in a room adjacent to the police station. P.Ws.l, 2, 4 and Rajob P.W. (given up) had been visiting the police station and also meeting them, who had repeatedly asked the S.I. that they were not the accused persons. The S.I. had demanded Rs.40,000 which they refused. He further denied that they had made any extra judicial confession. He also stated that they had not caused injuries to the P.Ws. nor committed murder of the deceased, and the case had been fabricated against them. They had been shown to the P.Ws. and at the time of identification parade they lodged a protest in this behalf. He also claimed that he alongwith the co appellant Iqbal Hussain had not led to the recovery of incriminating articles.
8. I have heard the learned counsel for the parties and have perused the record. The motive behind the occurrence is that the appellants alongwith the deceased and P.Ws.l and 2 had hunted two jackals and had demanded both the jackals, but the complainant party refused, on which an altercation took place and in the night, the appellants had done to death the deceased and also caused injuries to P.Ws.l and 2. P.W.1 stated about the motive in the F.I.R. Exh.PA. as well as P.W.1 and P.W.2 in their statements before the trial Court. P.W.2 has corroborated the statement of P.W.1.
9. The ocular testimony on record has been furnished by the statements of P.Ws.l and 2. P.W.1 is son of the deceased whereas P.W.2 is the maternal grandfather of P.W.1. P.W.1 has narrated in the F.I.R. Exh.PA. that they had hunted two jackals alongwith the accused/appellants and in the evening time the appellants demanded both the hunted jackals, but their demand was refused and they after altercation had left the place in angry mood and at about mid-night the. appellants returned to them and caused injuries to P.Ws.l and 2 and Jewna deceased who succumbed to his injuries at the spot. It is surprising that whole the day the appellants continued hunting jackals with the P.Ws., but their names were not known to the P.Ws. Moreover, P.W.1 in the F.I.R. Exh.PA. had shown suspicion that the appellants were the same persons who had been hunting with them during the day time, but he had not specifically stated that the accused were the same persons.
10. P.W.4 Rama has stated about the extra-judicial confession made by the appellants before him as well as in presence of P.W. Rajoo (given up). The A P.W. had specifically stated that the appellants had made joint extra judicial confession in their presence, which is inadmissible.
11. P.W3 Molia alongwith Sonya P.W. (given up) had witnessed the recovery of blood-stained hatchets P.4 and P.5 at the instance of Iqbal Hussain and Murid Hussain appellants secured by P.W.12 vide memos. P.D. and P.E. respectively. P.W3 is son of the deceased and had accompanied the police party to the place of recovery from the police station. The huts of the appellants are situated in Mauza Mehrab Wala, where there are 40/50 houses and none of the inhabitants of the locality was joined in the recovery proceedings. It is surprising that the occurrence is alleged to have taken place on the night between 15/16-6-1991. The accused were arrested on 2-8-1991 and had led to the recovery of weapons on 6-8-1991, which were concealed in their Jhunparis. The recovery was effected after 51 days and the appellants were not previously known to P.Ws.l and 2. They were arrested on 2-8-1991 by P.W.12 Muhammad Siddique S.H.O. from their Jhunparis at 2-00 p.m. in presence of P.Ws.l to 4 and thereafter on 3-8-1991 P.W.2 had obtained their judicial remand. The identification parade was held under the supervision of P.W.8 Mr. Ashiq Muhammad Khan, Magistrate 1st Class. P.W.8 reached the lock-up and found P.Ws.1 and 2 already present with the police outside the judicial lock-up of Ahmadpur East. P.W.8 has specifically mentioned in identification parade Exh.P.H. that he had mixed 7 under-trials with the accused at the time of identification parade. He had not recorded the statements of P.W.1 and P.W.2 earlier to the holding of identification parade. The accused remained in the police lock-up for the whole day on 4-8-1991 and on the next day they were sent to the judicial lock-up. P.W.12 has specifically stated in the cross examircation that P.Ws.l to 4 were present at the time of arrest of the appellants. In the circumstances, the identification parade of the appellants held under the supervision of P.W.8 in which P.W.1 and P.W.2 had correctly identified the appellant, has no evidentiary value in the eye of law. P.W.11 Dr. Mulazim Hussain had medically examined P.W.1 and P.W.2 and had conducted autopsy on the dead body of the deceased. He found only one injury on the person of the deceased, whereas P.Ws.l and 2 specifically stated that the appellants had given one injury each to the deceased. P.W.1 stated that the appellants had inflicted two injuries on his head and back, whereas P.W.11 had found one injury on the middle of the head of P.W.1. The medical evidence furnished on record by the statement of P.W.11 is not in consonance with the ocular account stated by P.Ws.l and 2.
12. P.Ws.l and 2 have specifically stated that it was moonlit night, whereas the night of occurrence was the second of lunar month. Two persons had joined P.Ws.l, 2 and the deceased for hunting jackals, but surprisingly they remained busy in hunting the whole day and P.W.1 had not stated in the F.I.R. Exh.PA. which was recorded just after the occurrence that the accused were the same persons who remained with them the whole day for hunting jackals.
13. The learned counsel appearing for the State has stated that P.W.1 and P.W.2 had no animus with the appellants. It does not necessarily mean that what the P.Ws. stated is not untrue. The truth or falsehood of the statements of witnesses largely depends upon the circumstances of each case. It was also contended on behalf of the State that the presence of the injuries on the persons of P.Ws.l and 2 establishes their presence at the relevant time. The mere presence of injuries on the persons of P.Ws.l and 2 does not mean that they had stated the true facts of the case. The ocular testimony furnished by the statements of P.Ws.l and 2 is not in consonance with the medical evidence C as stated by P.W.11. The motive and the recovery as well as the extra-judicial confession are not worthy of credence.
14. Pursuant to the above discussion, I am of the considered view that the prosecution has failed to establish its case beyond doubt against the appellants and giving them benefit of doubt I acquit them of the charge. The appellants are in jail, who shall be released forthwith if not required in any other case.
N.H.Q./M-1214/L Appeal accepted.