NAZIR AHMAD Versus STATE
Nazir Ahmad (50 years), Muhammad Ashraf (45 years), Javaid alias Jeda (18 years), Ghulam Sarwar (22 years) and Muhammad Anwar (19 years) were tried by the learned Additional Sessions Judge, Bahawalpur for the murder of Khushi Muhammad deceased and causing injuries to P.W.8 Muhammad Riaz, and the learned trial Court vide its impugned judgment dated 16-5-1987 had convicted and sentenced Nazir Ahmad and Muhammad Ashraf appellants under section 304, P.P.C. to undergo 8 years' R.I. each and a fine of Rs.5,000 each, in default whereof to suffer further R.I. for 6 months each. They were also directed to pay compensation of Rs.5,000 to the legal heirs of the deceased, in default whereof to suffer S.I. for 6 months each. They were also convicted and sentenced under section 323, P.P.C. to undergo 6 months' R.I. each and were extended the benefit of section 382-B, Cr.P.C. The sentences were directed to run concurrently. The co-accused Javaid alias Jeda, Ghulam Sarwar and Muhammad. Anwar were acquitted. The State has also filed Criminal Appeal No.136 of 1987/BWP against the acquittal of the co-accused and Criminal Revision No.90 of 1987/BWP for enhancement of sentence to the appellants. The criminal appeals and the criminal revision being arisen out of the same judgment, shall be disposed of by this judgment.
2. The prosecution case as unfolded in F.I.R. No.267/86 Exh.P.V. recorded on the statement of Khushi Muhammad deceased by P.W.11 Nasir Mahmood, A.S.I. on 5-9-1986 at Police Station Hasilpur, District Bahawalpur under section 324/34, P.P.C. was to the effect that he was a cultivator and was living in Chak No.187/M and on the day of occurrence i.e. on 5-9-1986 at about 3-00 p.m. he alongwith his grandson P.W.8 Muhammad Riaz was going to his field and reached near the corner of the street. Meanwhile Muhammad Ashraf appellant armed with a hatchet, Ghulam Sarwar, Javaid alias Jeda, Muhammad Anwar (acquitted co-accused) and Nazir Ahmad appellant armed with sticks reached one after the other and started injuring the complainant. Muhammad Ashraf appellant inflicted hatchet blow on his forehead and the co-accused injured the deceased/complainant and P.W.8 Muhammad Riaz with the Sotis. During the occurrence, the accused also received injuries. The motive behind was that the complainant/deceased had stopped the accused to water their buffaloes from the watercourse and had asked them to go to the pond for watering their cattle. On hue and cry P.W. Umer Din (given up), P.W.9 Muhammad Rafique and P.W.10 Muhammad Ashraf reached the spot and rescued the complainant/deceased and P.W.8 Muhammad Riaz from the accused.
3. The accused were challaned and sent up for trial. A charge under sections 148, 302/149 and 307/149, P.P.C. was framed against the accused, to which they denied and claimed trial. The prosecution examined 11 P.Ws. in all to substantiate its case.
4. Appellant Nazir Ahmad when examined under section 342, Cr.P.C.. denied the prosecution evidence against him and also the recovery stick P.4. In answer to the question "Is it correct that you, accused Nazir Ahmad and Ashraf were injured at the hands of witnesses at the time of occurrence? How do you explain the injuries,"? replied:--
"I alongwith Muhammad Ashraf co-accused had offered our prayers in the mosque and were returning to our house. Khushi Muhammad deceased and Riaz P.W. attacked us when Khushi Muhammad was armed with a Dang and Riaz with hatchet. Both of them had inflicted injuries on my person and my co-accused Muhammad Ashraf was also injured. I in my self-defence had inflicted injuries alongwith Muhammad Ashraf co-accused on the person of Khushi Muhammad deceased and Muhammad Riaz, P.W. I had immediately reported the matter to the police at the police station, but since Khushi Muhammad was unconscious and in precarious condition, therefore, the police did not register a case on my behalf. Both of us were also got medically examined by the police alongwith Khushi Muhammad and Riaz. Unfortunately Khushi Muhammad died after long time, whereas we had survived. Khushi Muhammad had not made any statement, but the police had concocted his statement because the prosecution had paid price for. Our co-accused Muhammad Anwar, Sarwar and Javaid were not present at that time of occurrence." and further stated that due to enmity he had been involved. Appellant Muhammad Ashraf when examined under section 342, Cr.P.C. about the prosecution evidence against him and in answer to the question "Is it correct that you accused Nazir Ahmad and Ashraf were injured at the hands of witnesses at the time of occurrence?" How do you explain the injuries" he replied:--
"My explanation is the same as has been offered by my co-accused Nazir Ahmad." The accused/appellant further stated that he was innocent. The appellants neither made statement on oath as envisaged under section 340(2), Cr.P.C. nor produced evidence in defence statement.
5. The learned trial Court vide its impugned judgment had convicted and sentenced the appellants and acquitted the co-accused. The prosecution case rests upon motive as stated by deceased/complainant in F.I.R. Exh.P.V. The F.I.R. Exh.P.V.. was treated as dying declaration as the deceased had expired on 14-9-1986 in B.V. Hospital, Bahawalpur. The ocular account was furnished on record by the statements of P.W.8 Muhammad Riaz, P.W.9 Muhammad Rafique and P.W.10 Muhammad Ashraf. The medical account was stated by P.W.1 Dr. Capt. Shabbir Ahmad Goraya and P.W.5 Dr. Capt. Mushtaque Ahmed. The recovery aspect was deposed by P.W.9 Muhammad Rafique and P.W.7 Allah Ditta, Inspector.
6. Deceased Khushi Muhammad in F.I.R. Exh.P.V. stated the motive behind the occurrence i.e. he had restrained the appellants from watering their buffaloes at the Khaal and had asked them to water their buffaloes at the pond. No other P.W. stated about the motive before the trial Court. F.I.R. Exh.P.V. was treated as dying declaration by the trial Court. It is pertinent to mention here that Khushi Muhammad deceased was in senses when he lodged F.I.R. Exh.P.V. at the police station recorded by P.W.11 Nasir Mahmood, A.S.I. and at that moment he was neither under the apprehension of death nor was expecting his immediate death. P.W.8 Muhammad Riaz and P.W.9 Muhammad Rafique were with him as is mentioned in Karwai Police in Exh.P.V. when the deceased lodged said F.I.R. wherein he had stated that Muhammad Ashraf appellant inflicted hatchet blow on his forehead which had been belied by the medical evidence. The deceased had not also explained the particulars of the injuries received by the accused party at the hands of the complainant party as well as the weapons carried by them. P.W.11 Nasir Mahmood, A.S.I. also never expected that Khushi Muhammad shall die thereafter as well as the Doctor also never thought that the deceased shall succumb to his injuries. It is evident from the daily practice that if a person is expecting death or has apprehension to go to the world hereafter, he would not tell a lie, but in the instant matter the case was otherwise. In the circumstances, I hold that neither the motive behind the occurrence was proved nor the F.I.R. Exh.P.V. could be treated as dying declaration.
7. The ocular account was furnished by P.W.8 Muhammad Riaz, grandson of the deceased, P.W.9 Muhammad Rafique, nephew of the deceased and P.W.10, Muhammad Ashraf, son of the deceased. P.Ws.8, 9 and 10 are closely related to the deceased and P.W.8 Muhammad Riaz was injured during the occurrence and his presence at the relevant time at the spot cannot be doubted, but in the peculiar circumstances of the case, his statement is to be scrutinised and seen i.e. whether it inspires confidence or not. P.W.8 Muhammad Riaz stated that Muhammad Ashraf appellant was armed with a hatchet, whereas Nazir Ahmad with a Soti. Muhammad Ashraf appellant inflicted hatchet blow from blunt side on Khushi Muhammad's forehead, Naiir Ahmad appellant gave stick blow on the head of Khushi Muhammad, who fell on the ground and thereafter the co-accused (since acquitted) inflicted stick blows to the deceased. P.W.8 Muhammad Riaz intervened to rescue his deceased grandfather, whereupon Javaid alias Jeda (acquitted co-accused) gave him blows on his back and left arm's wrist. During cross-examination he stated that all the five accused gave one injury each to the deceased. P.W.9 Muhammad Rafique stated that Muhammad Ashraf appellant gave hatchet blow from its blunt side on the forehead of Khushi Muhammad deceased, Nazir Ahmad appellant gave stick blow on the head of the deceased, Javaid, Anwar and Ghulam Sarwar (acquitted co-accused) also inflicted one injury each to the deceased. Javaid accused also caused two injuries to P.W.8 Muhammad Riaz P.W.10 Muhammad Ashraf son of Khushi. Muhammad deceased armed with stick also came, who gave injuries to Muhammad Ashraf and Nazir Ahmad appellants. P.W.10 Muhammad Ashraf stated that Muhammad Ashraf appellant inflicted hatchet blow on the forehead of Khushi Muhammad deceased. Nazir Ahmad appellant gave him stick blow on his head, who fell on the ground and thereafter the acquitted co-accused Muhammad Anwar, Ghulam Sarwar and Javaid gave one injury each to the deceased. P.W.10 further explaindd that he was carrying a stick with which he gave two injuries to Muhammad Ashraf and Nazir Ahmad appellants. Javaid accused also gave two stick blows to his scan Muhammad Riaz (P-W,8), It is pertinent to mention here that the deceased/complainant in F.I.R. Exh.P.V. stated that during the occurrence the accused had also received injuries at their hands, but he had not specified the injuries given to each accused by the complainant party. P.W.8 and P.W.9 in their statements under section 161, Cr.P.C. stated that Muhammad Ashraf appellant had given hatchet blows to the deceased, whereas before the trial Court they stated that Muhammad Ashraf appellant had given hatchet blows from the blunt side of the hatchet to Khushi Muhammad deceased. They were duly confronted with their statements under section 161, Cr.P.C. P.W.8 had not stated about the receipt of injuries by the appellants at the hands of the complainant party, whereas P.W.9 who was examined a day after by the trial Court improved his statement and stated that Muhammad. Ashraf (P.W.10) had reached the spot and had caused injuries to the appellants. P.W.10 Muhammad Ashraf was also duly confronted with his statement before the police. P.W.10 Muhammad Ashraf during cross?examination stated before the police that Javaid (acquitted co-accused) had inflicted two blows to his son P.W.8 Muhammad Riaz with stick, who was duly confronted with Exh.D.D. P.Ws.8, 9 and 10 are closely related to the deceased. P.W. Umar Din mentioned in F.I.R. Exh.P.V. was not produced by the prosecution and was given up as being unnecessary. He was - the only independent eye-witnesses. The deceased/complainant as well as eye-witnesses P.Ws.8, 9 and 10 had concealed the injuries on the person of the appellants.
8. The medical aspect of the case has been furnished on record by the statements of P.W.1 Dr. Captain Shabbir Ahmad on 5-9-1986 medically examined Khushi Muhammad deceased in injured condition and found the following injuries:--
(1) ??????? A lacerated wound on the upper side of forehead with size 7 c.m. x 3 c.m. x scalp deep and then; was bleeding from the wound.
(2) ??????? A lacerated wound on the middle of scalp with size 8 x 3 c.m. x scalp deep.
(3) ??????? A swelling with contusion mark on the right upper and lower eye-lids with size 3 x 2 c.m. Eye ball was red, congested and vision was blurring.
(4) ??????? A swelling with contusion mark on the right shoulder with size 7 x 6 c.m.
(5) ??????? A swelling with contusion mark on the left shoulder with size 5 x 5 c.m.
The injured was unconscious. His pulse was 120 per minute and blood pressure 100/70 mm HG. His general condition was dangerous to life. The injuries were caused by blunt-edged weapons. The duration of injuries was within 24 hours. X-ray chest NAD and X-rays skull show that there was linier fracture of parietal bone and also fracture of the right scapula.
On the same day P.W.l medically examined P.W.8 Muhammad Riaz and found the following injuries:--
(1) ??????? A swelling with contusion mark on the left fore-arm at lower 1/3 rd part with size 5 x 4-1/2 c.m.
(2) ??????? A swelling with contusion mark on left shoulder with size 4 x 3 c.m. His X-ray of left fore-arm was advised. Vide ML-X-ray report No.207, in his X-ray no abnormality detected.
Both the injuries were simple in nature caused by blunt weapon.
On the same day, P.W.1 medically examined Nazir Ahmad appellant and found two injuries on his person and were declared simple in nature. Injury No.l was caused by sharp-edged weapon and No.2 by blunt weapon.
On the same day P.W.1 also medically examined Muhammad Ashraf appellant and found four injuries simple in nature caused by blunt weapon within the duration of 24 hours.
During cross-examination P.W.1 Dr. Captain Shabbir Ahmad stated that all the four injured persons were brought to the hospital by the same constable on the same date. All the head injuries were not dangerous to life.
9. P.W.5 Dr. Captain Mushtaque Ahmed on 15-9-1986 at 8-00 p.m. conducted autopsy on the dead body of Khushi Muhammad and found the following injuries on his person:--
(1) ??????? A lacerated wound on the forehead extending backward on the right of sagital sature of dimension 7 x 3 c.m. scalp deep showing heeling and underlying bone was found fractured. The fracture line was extending interiorly through the frontal bone, too cribriform plate and posteriorly much beyond the limits of scalp wound. There was subapeunourotic, haemotoma. Both tables of skull were fractured. There was extra dural haemotoma and laceration beneath the correspondence scalp injury.
(2) ??????? A heeling laceration 1" posterior to the posterior end of wound No.l of dimensions 1 x 1 c.m. x scalp deep.
(3) ??????? Both eye lids were echimysed and blackened (shifted bruise).
(4) ??????? Heeled abrasion on the top of right shoulder. and opined that death occurred due to neorogenic shock on account of above?mentioned injuries Nos.l and 2 which insulted the brain. The injuries were ante-mortem and sufficient to cause death in the natural course. The probable time that elapsed between injuries and death was about 7 to 15 days, while between death and post-mortem was within 24 hours. During cross?examination he stated that it was correct that after suffering injury No.l by the deceased, there would have been internal bleeding immediately and obviously it would have affected the brain and also would have compressed the brain. Injuries on the person of the appellants were suppressed by the prosecution.
10. The recovery aspect of the case was stated by P.W.9 Muhammad Rafique who had witnessed the recovery of Soti P.4 blood-stained on 6-10-1986 at the instance of Nazir Ahmad appellant from his house, which was secured by P.W.7 Allah Ditta, Inspector/S.H.O. vide memo. Exh.P.Q., who had prepared the sealed parcel of the same. Muhammad Ashraf appellant led to the recovery of hatchet P.5 which was secured by P.W.7 vide memo. Exh.P.R. attested by P.W.9. It is pertinent to mention here that the appellants were arrested by P.W.7 on 26-9-1936 after 21 days of the occurrence and they led to the recoveries of P.4 and P.5 on the 10th day of their arrest. The recovery of P.4 and P.5 was effected from the houses of Nazir Ahmad and Muhammad Ashraf, appellants respectively. Report of the Chemical Examiner Exh.P.Y. is positive. It is to be mentioned here that the accused were stated to have been arrested after 21 dais of the occurrence and they had concealed P.4 and P.5 at their houses only to get recovered the same, which does not sound to the reason. The recovery aspect of the case has not been proved on the record.
11. The appellants had raised a specific plea of self defence. No doubt one-sided version was given by each party and entire truth was not disclosed by either of them. The prosecution had not given correct version of the occurrence, and while placing case of the prosecution in juxtaposition with the plea raised by the accused, it has to be seen by the Court that whether some possibility of the plea raised by the accused exists. The trial Court had disbelieved the prosecution evidence. The statements made by the P.Ws. had also been found by this Court not confidence inspiring and in such a situation A the statement of the accused are to be believed in totallity. I am of the considered view that the appellants have succeeded in establishing and proving the plea raised by them, which is also spelt out from the evidence on record and circumstances appearing in the case.
12. Pursuant to the above discussion; the appeal filed by the appellants succeeds and they are acquitted of the charge. The appellants are present on 8 bail, their bail bonds are discharged. Connected Criminal Appeal No. 136 of 1987/BWP and Criminal Revision No.90 of 1987/BWP filed by the State have no force and the same are dismissed.
N.H.Q./N-189/L ????????????????????????????????????????????????????????????????????????????????? Appeal accepted