MUHAMMAD BASHIR Versus THE STATE
This is an appeal against the judgment, dated 25-6-1992 passed by Syed Sakhi Hussain Bukhari, learned Additional Sessions Judge, Gujranwala whereby he convicted the appellant, Muhammad Bashir under section 302, P.P.C. for the murder of Murid Hussain and sentenced him to life imprisonment and a fine of Rs.20,000 or in default to undergo two years' R.I. and a compensation of Rs.50,000 to legal heirs of the deceased or in default to undergo six months' S.I.
2. The prosecution story as given in the F.I.R. (Exh.P.D./1) registered by Muhammad Azam P.W.4 (on 27-9-1992 at 8-00 p.m.) ort the complaint (Exh.P.D.) of Khyzer Hayat P.W.8 brother of deceased Murid Hussain, is that about 3/4 days prior to the alleged occurrence there was a quarrel between the children of Murid Hussain, deceased and Muhammad Bashir, appellant. The matter was however, patched up on the intervention of the village folks. On 26-9-1990, at about 6-00 a.m. Murid Hussain was going back after the morning walk and the complainant was having a talk with Sultan Asghar and Munir Ahmad. Messrs Muhammad Bashir, Ihsan Ahmad and Khadim Hussain were also sitting at a nearby shop when they saw Murid Hussain coming. They raised a Lalkara that he will be taught a lesson for the quarrel between the children. Thereupon Khadim Hussain, caught hold of Murid Hussain by his testicles and Ihsan Ahmad clasped him whereafter Muhammad Bashir, appellant who was armed with a Seru, gave a blow on the head of Murid Hussain and he fell down. In the falling condition, he was given two more blows one on the shoulder and the other on his abdomen. The complainant and others intervened and the accused decamped. It was further alleged that the appellant and his co-accused wanted to kill his brother, Murid Hussain. Murid Hussain, deceased was hospitalized where he succumbed to the injuries on 1-10-1990.
2. Dr. Syed Mudassar Hussain, P.W.11 conducted the post-mortem examination on 2-10-1990 and found the following injuries on his person:--
(1) Injury No. l corresponds to injury No. l of medico-legal certificate. It was scabbed wound 3 c.m. x 2.5 c.m. on left parietal region of head 4 c.m. to the left of mid line.
(2) Scabbed wound 10 c.m. x 0.5 c.m. on right side of abdominal wall in front 20 c.m. below the right nipple. Injury No.2 corresponds to injury No.2 of M.L.C.
(3) Scabbed wound on front of right shoulder 2 c.m. x 0.5 c.m. 8 c.m. medial to right shoulder top.
According to the doctor, injury No. l which lended an extensive damage on skull was sufficient to cause death in the ordinary course of nature.
3. The case was investigated by P.W.10 Imtiaz Ahmad, who arrested the appellant on 15-10-1990 and the same day, he led to the recovery of Seru P.4 which was taken into possession vide memo. Exh.P.C.
4. During the trial, the prosecution examined eleven witnesses including the doctor and the Investigating Officer.
5. The accused when examined under section 342, Cr.P.C. admitted the occurrence but gave his own version which is to the following effect:--
"On the day of occurrence early in the morning I was smoking Huqa in front of the shop of Mistri Hayat where Mureed Hussain deceased also reached and tried to smoke Huqa by taking the pipe in his hand. He called me bad names due to putting the pipe in my mouth and making it dirty. I paid him in the same coin and he started grappling with me. During grappling the deceased struck against a wooden pillar of the Chapper nearby as a result of which a Pacca brick fell from the roof of the Chapper on the head of the deceased. He sustained injury and fell on the ground. I was present all alone at that time. Later on, the complainant and other relatives of the deceased concocted a false version in connivance of the police on the following day and falsely involved us in this case. "
6. P.W.8 Khyzer Hayat made a statement consistent with Exh.D./1. P.W.9, Munir Ahmad corroborated the statement of P.W.8. He is brother in law of the complainant. The other witnesses cited in the F.I.R. were however, given up as unnecessary.
7. In support of this appeal, learned counsel for the appellant, has raised the following pleas:--
(i) that it is a case of no motive and the learned trial Court has rightly disbelieved the same.
(ii) that it was a sudden affair and there was no element of premeditation to warrant conviction under section 302, P.P.C.
(iii) that it was an un witnessed occurrence.
(iv) that all the witnesses are interested and there is no independent corroboration, and
(v) that the medical evidence indicates that the injuries sustained could not have been caused by a Seru.
8. Learned counsel for the State on the other hand, admits that there is no element of premeditation; that the evidence on record indicates that it was a sudden affair; that motive has been disbelieved. However, according to him, as the alleged occurrence stands admitted by the appellant, the offence would fall within the ambit of section 304 Part I, P.P.C. and not in section 302, P.P.C.
9. I have heard learned counsel for the parties and have also gone through the evidence on record.
10. Admittedly, there is no tenable evidence on record qua motive part of the prosecution story and the same was rightly disbelieved by the learned trial Court. Even the evidence of recovery was disbelieved and this findings not open to exception. Corning to the ocular account furnished by P.W.8, Khyzer Hayat and P.W.9 Muhammad Munir, I find that both these witnesses are closely related with the deceased. One is brother and the other is brother-in-law of the deceased, P.W.9 is admittedly not a resident of the locality where the occurrence took place. In fact, it is in evidence that he lived at a place which is nine miles away from the place where the occurrence took place. P.W.8's house was also at a distance of 40 Karams. Hence, both these witnesses are chance witnesses. The evidence of chance witnesses who are also related witnesses have to be taken A with extreme caution. Having disbelieved them qua the co-accused, who stand acquitted, an independent corroboration was imperative to extend some credence to them. This independent corroboration, I am afraid, is lacking. The F.I.R. was lodged with a delay of 36 hours although the police station is at a distance of three furlongs from the place of alleged occurrence. This delay has not been explained satisfactorily. There is evidence on record that the Police Officer visited the spot immediately after the occurrence but despite that the matter was not reported to the police.
11. In the presence of the afore-referred weak type of prosecution evidence, not worthy of credit, the statement of the appellant has to be believed in toto but the question which calls for determination is as to what offence, if any, is committed. The appellant in his statement under section 342, Cr.P.C. has stated that there was an exchange of abuses and some grappling with Murid Hussain, deceased and in that process, Murid Hussain, deceased struck against a wooden pillar of the Chappar which fell down and a Pacca brick fell down from the roof of Chappar which hit the deceased on the head. This version finds corroboration from the medical evidence inasmuch as P.W.8. Shaukat Ali, in his cross examination admitted that injury No. 1 can be a result of hitting of a brick falling from a considerable height.
12. In cases where prosecution evidence is disbelieved and the accused admitting the occurrence takes up a definite plea, the Honourable Supreme Court has laid down certain principles in terms of which the said statement is to be considered. In Ashiq Hussain v. The State PLD 1994 SC 879 it was observed:--
Cases of one version or of two versions---Rules/Principles for appreciation of evidence laid down by the Supreme Court."
Supreme Court has laid down rules/principles for the appreciation of evidence in criminal cases of one version or of two versions to the effect that; the proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., the statement under section 340(2), Cr.P.C. and the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C., is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only."
13. For what has been discussed above, I am inclined to accept the version of the appellant, set aside the impugned judgment and acquit the appellant. He shall be released forthwith unless detained in any other case.
N.H.Q./M-2608/L Appeal accepted.