P L D 1996 Lahore 286 (PLP)

ZAHID HUSSAIN BOKHARI, J.‑‑‑Murder Reference No.254 of 1992 Criminal Appeal No. 185 of 1992, filed by Sajad Hussain 38, Criminal Appeal No.201 of 1992 filed by Altaf Hussain and Criminal Appeal No.236 of 1992 filed by Ghulam Hussain 25, arose out of the order and judgment passed by a learned Additional Sessions Judge, Dera Ghazi Khan on 4‑7‑1992 by which he convicted the appellants under section 302/34, P.P.C. and sentenced SaJjad Hussain to death with a fine of Rs. 10,000 and in default of payment ' of fine he has to further undergo S. 1. for six months each on two counts. 'Altaf Hussain and Ghulam Yasin appellants were sentenced to life imprj foriment with a fine of Rs.5,000 on each count and in default of payment of fine they have to further undergo S.I. for six months on each count. The fine if recovered was ordered to be given as compensation to the heirs of the each deceased under section 544‑A, Cr.P.C. Altaf Hussain and Ghulam Yasin‑ appellants were also given benefit of section 382‑B, Cr.P.C.

2. Brief facts of the case are that case F.I.R. No.152 Exh.PH was registered on the statement of Muhammad Ismail P.W.5 on 23-5-1991 recorded by Kafait Hussain, S.I. P.W.8 at 5 a.m. at Police Station Saddar, Dera Ghazi Khan under section 324, P.P.C. and the offence was later on converted from 324, P.P.C. to 302, P.P.C. vide Report No. 5.

3. The story as narrated in Exh.PH is that the complainant and his father Allah Bakhsh were labourer by profession and nearly 12 years prior to the occurrence Sajjad Hussain appellant contracted marriage with his step-maternal aunt Mst. Tasleem Begum/and four daughters were born out of the said wedlock. Sajjad Hussain was in the habit of maltreating Mst. Tasleem Begum and due to said reasons Tasleem Begum had come to the house of the complainant six months ago. Allah Bakhsh father of the complainant according to the wishes of Tasleem Begum filed a suit for dissolution of marriage in the Court and a day prior to the occurrence was the date of hearing in the Court. All the appellants demanded several times to send Tasleem Begum to the house of Sajjad Hussain appellant. On 20th of May 1991, Sajjad Hussain appellant alongwith his co-appellants came to the house of the complainant and insisted to take away Tasleem Begum to his house but the deceased Allah Bakhsh refused to send her alongwith Sajjed Hussain. On this Sajjed Hussain threatened the deceased that if his wife Tasleem Begum is produced in Court on 22nd of May, 1991, it would not be good of the deceased but in spite of this threat Tasleem Begum was produced in the Court on 22-5-1991 and thereafter Tasleem Begum went to the house of her relative Muhammad Yar. In the night between 22/23-5-1991 at 3 a.m. the complainant P.W.5 alongwith Allah Bakhsh and Mst. Wasso mother of the complainant, his brother Muhammad Ibrahim P.W.6 and a relative Ghulam Muhammad, given up P.W. were sleeping in the courtyard of the house situated in Sadiqabad Colony and an electric bulb was lit there. The witnesses got up on barking of the dog and saw that Sajjad Hussain appellant armed with Chhuri, Altaf Hussain with rifle and Ghulam Yasin armed with revolver were standing there. Sajjad Hussain appellant inflicted a Chhuri. blow on the chest of Allah Bakhsh. Altaf Hussain and Ghulam Yasin threatened the witnesses that if any one would interfere they would fire at them. Thereafter Sajjad Hussain also gave successive Chhuri blows on the person of Allah Bakhsh. He fell on the ground. Mst. Wasso intervened and Sajjad Hussain gave a Chhuri blow on the left side of her stomach. She also fell on the ground. They both became unconscious and the accused decamped while raising Lalkara. The occurrence was witnessed by Muhammad Ibrahim and Ghulam Muhammad P. Ws. besides the complainant.

4. The motive behind the occurrence was that Sajjad Hussain alongwith outer appellants launched a murderous attack upon the father and mother of the complainant because they did not allow Tasleem Begum too company Sajjad Hussain and in spite of his forbidding Tasleem Begum was produced in Court against the wishes of Sajjad Hussain appellant.

5. Both the injured were taken to the hospital in injured condition. They were admitted in the hospital and the matter was reported by Muhammad Ismail P.W.5 to the police.

6. Dr. Muhammad Ahmad P.W.9 medically examined Allah Bakhsh on 23-5-1991 at 4-40 p.m. and found the following injuries on his person:- (1) A stab wound 3 c.m. x 1 c.m. going in the chest cavity, 16 c.m. above umbilicus, left to the sternum. (2) A stab wound at lower chest wall, anterior surface 2-1/2 c.m. x 1-1/4 c.m. x 6 c.m. below and lateral to the left nipple, going in the chest cavity. (3) A stab wound 5-i/2 c.m, x 1-1/2 c.m., going into the abdominal cavity, 3-1/2 c.m. from left anterior superior illiac spine, in the left renal area. Intestines were visible through the wound. (4) A stab wound 3 c.m. x 3/4 c.m. at the back of right upper chest in the scapuar region, about 10 c.m. from midline, going in the chest cavity. (5) An incised wound 4 c.m. x 1 c.m. starting from medial aspects of left eye brow to the middle of right eye brow. Bone was visible. (6) An incised wound 3" x 1-1/2" at ventral aspect of lower third of right forearm, muscle deep. (7) An incised wound 1-I/2 c.m. x 1/2 c.m. skin deep at the proximal phalynx of right index finger at palmer surface. All the injuries were caused by sharp-edged weapon. The probable duration of injuries was 2 to 4 hours. Injury Nos. l, 2, 3 and 4 were declared dangerous to life, while injuries Nos. 5, 6 and 7, were declared simple in nature. A carbon copy of M.L.R. Exh.PU was handed over to Muhammad Ismail, son of the injured. On the same day at 4-50 a.m. P.W.9. examined Mst. Wasso wife of Allah Bakhsh aged 30 years and found the following injuries on her person:- A stab wound 2-1/2" x 1-1/2" at left hypchondrium going deep into the abdominal cavity. Intestine was exposed from the wound. There were multiple cuts and perforations of intestine. The wound was oblique. The injury was caused by sharp-edged weapon. The probable duration of injury was 2 to 4 hours. The injury was declared dangerous to life. A carbon copy of MLR was handed over to Muhammad Ismail. Exh.PV was the correct carbon copy of his M.L.R. which was in his hand and bore his signatures. During the cross‑examination the doctor refuted that , he medically examined the injured at 8‑00 a.m.

7. The injured Allah Bakhsh and Mst. Wasso expired in the hospital on by the same day and on 23‑5‑1991 at 5‑00 p.m. Capt. Dr. Ghulam Farid S.M.O., DD.H.Q. Hospital, Dera Ghazi Khan conducted the post‑mortem examination on bthe dead body of Mst. Wasso Mai and found the following injury on her person:‑‑ A stitched incised wound 7" x 1/3" at the left upper abdomen, transverse in direction with two small stitched wounds for drains in the flanks. Leparotomy was done through left upper transverse incision by extending the previous injury by Dr. Jalil Ahmad under G.A. Whole of the abdomen was full of blood and clots. There were four perforation of small intestines and mensantry. There was tear of splenic artery left gastric branch with injury to stomach, spleenectomy was done. There was also bleeding from the retro-peritoneal region. All the bleedings points were secured. The wound was closed in 3 layers after putting in two drains. Abdominal wall with peritoneum was injured with massive bleeding. Haemotoma behind the peritoneum was present. Stomach pancreas, small intestines were injured and repaired. Spleen was absent. Bladder was healthy and empty. Uterus was gravid having 6 to 7 months male foetus. The injury was ante-mortem caused by sharpedged weapon and proved fatal to life. In his opinion the cause of death in this case was haemorrhage, shock and injury to the vital organs due to injury No I which was sufficient to cause death in the ordinary course of nature. Duration between injury and death was 6 to 9 hours and between death and post-mortem was 6 hours and 40 minutes. Exh.PF is the correct carbon copy of his postmortem report which was in his hand and bore his signature. Exh.PF/1 is the diagram showing the seat of injury which was in his hand and with his signature.

8. On the same day at 5-30 p.m. the doctor also conducted post-mortem examination on the dead body of Haji Allah Bakhsh and found the following injuries on his person:- (1) An incised wound 2" x 1/3" x bone deep at forehead above the hose, bone was visible. (2) An incised wound 1-1/2" x 1/3" x chest cavity deep at the front of chest, almost in the middle sternum was injured. (3) A stab wound 1-1/2" x 1/3" x chest cavity deep at the left lateral aspect of the chest in its lower half. (4) A stab wound 2-1/4" x 1/3" x peritonial cavity deep at the left renal area. (5) A stab wound 1‑1/4" x 1/3" x bone deep at the left scapular region. (6) An incised wound 3" x 1/2" x ‑bone deep at ventral aspect of right forearm. (7) An incised wound 3/4" x 1/4" x bone deep at the palmer aspect of index finger. (8) A long left para. median incision for laprotomy. Laprotomy was done on 23‑5‑1991 at 8‑00 a.m. The diafragm. was injured which was repaired. Mesentry was also.injured. Chest intubation was done. Chest and chest cavity were injured. Left lung, inliadastinarn was full of blood. Paritoneum, abdomen disphragm, mesentry were injured. The injuries were ante‑mortem and were caused by sharp‑edged weapon. Injuries Nos. 2, 3, 4 and 5 proved fatal life while rest of the injuries were simple in nature. Injury No.8 was surgical incision. In his opinion the cause of death in this case was haemorrhage, shock and injuries to the vital organs due to injuries Nos.', 3, 4, and which were sufficient to cause death in the ordinary course of nature individually as well as collectively. Duration between injuries and death was 6‑9 hours and between death and post‑mortem 7 hours and ten minutes. Exh.PG is the correct carbon copy of post‑mortem report and Exh.PG/1 Js the diagram showing the seats of injuries which were in his hand and bore his signatures. The defence has not cross‑examined this witness in spite of an opportunity given by the Court.

9. Kafait Hussain Inspector, S.H.O., P.W.8. stated that he recorded statement of Muhammad Ismail complainant Exh.PH. After registration of the case he went to the ho~pital and submitted an application Exh.PK to the doctor in order to ascertain if injured Allah Bakhsh was fit to make statement. Similar application Exh.PL was also moved in respect of Mst. Wasso and on both these applications the doctor opined that the injured were not fit to make statements. Thereafter he proceeded to the spot and on the way he learnt that Allah Bakhsh and Mst. Wasso had succumbed to the injuries. He again came to the hospital, prepared injury statement of Allah Bakhsh Exh.PM, his inquest report Exh.PN. Injury statement of Mst. Wasso Exh.PO and her inquest report Exh.PQ were also prepared. The dead bodies were then sent to the mortuary for the purpose of post‑mortem examination through Ghulam Abbas, Constable P.W.l. The last worn clothes of the deceased were produced before the Investigating Officer by the said constable.

10. The S.H.O. arrested Saijad Hussain appellant on 5‑6‑1991 and blood stained Chhuri P5 was recovered on the same day on the pointation of Sajjad Hussain appellant from Koondar bushes situated in Sadiqabad Colony which was sealed into a parcel and was taken into possession vide recovery memo. Exh.PC and the map of place of recovery Exh.PC/1 was also prepared by him. This recovery was witnessed by Muhammad Yar P.W.2 and Muhammad Ismail P.W.5.

11. On 9=6‑1991 this witness arrested Ghulam Yasin and Altaf Hussain appellants and on their personal search revolver P6 alongwith six live cartridges P7/1‑6 and rifle P8 alongwith five live cartridges P9/1‑5 were recovered from the possession of Yasin and Altaf vide memo. Exh.PD and Exh.PE respectively. This recovery was witnessed by Muhammad Yar P.W.2 and Khuda Bakhsh given up P.W. The maps of the place of recovery Exh.PD/l and Exh.PE/1 without scale were also prepared. He also got prepared site plan Exhs.PJ and PJ/2 from Abdur Rauf, Draftsman P.W.7. After completion of the investigation the appellants were challaned to the Court to face trial.

12. In order to pfbve its case the prosecution has produced Ghulam Abbas P.W 1, Muhammad Yar P.W.2, Dr. Capt. Ghularn Farid P.W.3, Fida Hussain P.W. 4, Muhammad Ismail P.W.5, Muhammad Ibrahim P.W.6, Abdur Rauf, Draftsman, P.W.7, Kafait Husain P.W.8 and Dr. Mahmood Ahmad P.W.9. Reports of Chemical Examiner Exh.P.S and report of Serologist Exh.PT were also tendered in evidence.

13. The appellants when examined under section 342, Cr.P.C denied the commission of offence and did not appear under section 340(2), Cr.P.C. in disproof of the allegation levelled against them. The appellants also denied the recovery of any weapon of offence at their pointation. Sajjad Hussain appellant replying to question 10, "Why case against him and why the P.Ws. have deposed against" replied that he had been named falsely in the case. He had been involved due to enmity and suspicion. No one had seen the occurrence. Same was the stand of other appellant.

14. Learned counsel for the appellants contended that it was an witnessed occurrence, F.I.R. was lodged after preliminary investigation and the appellants have been fa)sely involved on account of suspicion.

15. On the other hand learned State Counsel argued that the F.I.R. was lodged promptly. The accused have been nominated with their specific role and they have the motive to launch attack. He further contended that the prosecution has proved its case against the appellants beyond reasonable doubt.

16. We have heard the learned counsel for the parties and have gone through the record. 17.. The material witnesses in this case are P.W.5 Muhammad Ismail and P.W.6 Muhammad Ibrahim who have narrated almost the same facts which are given in the F.I.R. In the cross‑examination Muhammad Ismail P.W. admitted that he did aut intijim we police icgarding the wicats extended by the appellants prior to the occurrence. He further stated that the appellants came to their house anti extcudea Litiumb tv his father Allah Bakhsh at about 2 to 2‑30 p.m. and at that time Allah Bakhsh alone was in the house. P.W.6 Muhammad Ibrahim in his examination‑in‑chief stated nothing about the motive or the threats given by the appellants. The motive part of the prosecution could have been proved satisfactorily by Tasleem Begum who was neither cited as a witness nor was produced in Court. Complainant has not been corroborated by any witness on the point of motive. Resultantly we hold that prosecution has failed to prove the motive against the appellants to commit the present murder.

18. Admittedly it was night occurrence. Duting the cross‑examination it transpired that Tasleein Begum wai present in the house and she was not forcibly taken away by the appellant. According to the prosecution she was the only bone of contention between the deceased and the appellants. So much so that she was not caused injuries by the appellants. Had the occurrence been committed by the appellants, they would have either caused injuries to Tasleein Begurn or had forcibly taken her away from the house of the deceased.

19. It was admitted by P.W.5 that SaJjad Hussain had filed a complaint in the Court of District Magistrate, Dera Ghazi Khan against Allah Bakhsh deceased, in which he prayed for the restoration of his wife Tasleem Begum and Tasleern Beguin was produced in the Court in response to the complaint. In that, complaint Sajjad Hussain appellant levelled a charge of adultery against the complainant with Tasleem Begum. He also levelled a charge of running a brothel house against the complainant. Had the complainant been present at the time of occurrence, the main target would have been the complainant and not the deceased or his mother. According to the complainant and Muhammad Ibrahim P.W., they remained present in the house throughout the occurrence. They did not raise any noise. The appellants were three in number and two were armed with fire‑arms but none attacked the complainant. This did not appeal us. Mere non‑sending of Tasleem Begurn with appellant Sahad Hussain is of lesser gravity than the allegation of illicit relations of the complainant with Tasleem, Begurn. Absence of injuries on the person of complainant or his brother Ibrahim P.W., cast doubt about their presence at the time and place of occurrence. The conduct of thz eye‑witnesses at the time of occurrence was also unnatural. The presence of these P.Ws. at the time of occurrence is not proved beyond reasonable doubt.

20. Muhammad Ibrahim P.W.6 during cross‑examination stated that police did not record his statement during the investigation. He further stated that he was not interrogated, by the police. The 1.0. stated that he recorded the statements of the P.Ws. under section 161, Cr.P.C. Credibility of this witness is minimispd by this fact alone. The purpose of recording the statement under section 161, Cr.P.C. is to enable the accused person to prepare his defence‑ A Before to start of the trial an accused must know precisely what would be deposed by a witness against him. If a witness denies that he was not interrogated by the police and had not made any statement before the police, would put the Court at caution. It can be presumed that the witness as a matter of fact did not know about the facts of the case and had not seen the occurrence. The Courts always insist recording of the statements of the eye‑witnesses at the earliest during the investigation so that any chance of manipulation or consultation is ruled out. The accused has a right to confront a witness with his statement recorded under section 161, Cr.P.C. When a witness states that he did not make any statement before the police, in reality makes an effort to snatch a valuable right of the accused. This conscious effort of witness creates doubt about his credibility. It can be presumed that such a witness either had not seen the occurrence or had nothing to state before the police soon after the occurrence unless rebutted otherwise from the material on record. Muhammad Ibrahim P.W.6 in our view has purposely stated that he did not make any statement before the police. We hold that this witness is not a witness of truth and his statement cannot be relied upon.

21. According to the prosecution the F.I.R. Exh. PH was lodged on 23‑5‑1991 at 5‑00 a.m. and application Exh.PK and PL seeking permission to record the statements of Allah Bakhsh and Mst. Wasso deceased were moved at 6‑15 a.m. The offence mentioned on the application Exh.PK was 302, P.P.C. and report of the doctor on that application was that injured Allah Bakhsh was not fit to make a statement at 6‑15 a.m. This fact would clearly show that till 6‑15 a.m. Allah Bakhsh was alive. It is astonishing that in Exh.PK, the offence mentioned was 302, P.P.C.. Application Exh.PL was dated 22‑3‑1991 and offence was mentioned as 302, P.P.C. and thereafter by manipulation, the date was changed to 23rd March, 1991 and offence was changed to 324, P.P.C. and further in the certificate of the doctor time mentioned was 5‑45 a.m. on 23‑5‑1991. It will show the slackness and carelessness of the police. Exhs.PK and PL did not contain the name of any accused and the space was kept blank. Injury st ' atement Exh.PM and Exh.PO did not contain the name of any accused person. The brief facts of the case as narrated in the inquest report Exh.PN, do not contain name of any person as accused and the occurrence had not been described in any manner in this document. Similar was the situation of inquest report Exh.PQ of Mst. Wasso. The memo. of possession of blood‑stained earth from the place of occurrence Exh.PB also do not contain the name of the accused. All these facts would show that at the time of preparation of these documents it was not well known to the P.Ws. about the real culprits and details of the occurrence were not formulated by the prosecution till then. The explanation of the Investigating Officer that as the accused were not arrested so he did not mention the name of the accused in those documents, stood refuted by the contents of Exh.PA, the memo, of possession of last worn clothes of the deceased which was prepared on 23‑5‑1991, after post‑mortem examination. In this document the name of the accused was mentioned as Sajjad Hussain and others (three persons). The appellants were arrested on 5‑6‑1991 and 9‑6‑1991 which clearly show that the explanation of the Investigating Officer was a lame excuse. We are of the considered view that prior to preparation of Exh.PA, complainant had not yet decided against whom he wanted to lodge the F.I.R. The F.I.R. was drafted after the post‑mortem ixamination and then th~ names of the accused and their number was described in the Exh.PA. All these facts lead us to the conclusion that the F.I.R. was not lodged at 5‑00 a.m. on 23‑5‑1991 but it was registered after consultation and deliberations.

22. As far the recovery of fire‑arms is concerned, neither they were used at the time of occurrence nor it can be said with certainty that these weapons were actually held by the appellants Altaf Hussain and Ghulam Yasin at the time of occurrence. As far the recovery of Chhuri P5 is concerned that was effected from an open place accessible to all. This recovery is also not free from doubt.

23. The upshot of the above discussion is that the eye‑witnesses are wholly non‑trustworthy, their evidence does not inspire confidence and it would be very unsafe to rely upon the ocular account. The recovery of weapon of offence is also not free from doubt. The investigation of dishonest F.I.R. has been lodged after due deliberation and consultation. The eye‑witnesses were not present at the spot. The occurrence took place during the night and not witnessed by the P.Ws. The contention of the appellant that they were falsely involved on account of suspicion, has much force. The prosecution has not been able to prove its case beyond reasonable doubt, we acquit the appellants from the charges levelled against them. All the three appeals are accepted. They are diiected to be released forthwith if not required in any other case. 25 The death sentence is not confirmed. N.H.Q./S-495/L Appeal accepted.