1989 PLP 29 (SCMR)

JAVID IQBAL, J.‑‑This appeal by special leave has been filed by Muhammad Races, Muhammad Khan and Saghir Ahmad appellants who alongwith two others namely Ahmad Khan and Ghulam Rasul were tried by the Sessions Judge Jhelum under sections 302/307/148/149 P.P.C. read with section 109, P.P.C., and he vide his judgment dated 10, May, 1981 acquitted Ahmad Khan and Ghulam Rasul and convicted Saghir Ahmad appellant under section 307, P.P.C. only for making murderous assault on Muhammad Ansar respondent and sentenced him to seven years' R.I. plus fine. However, he convicted Muhammad Raees and Muhammad Khan appellants under sections 302/ 34, P.P.C. for causing the murder of Muhammad Azad deceased and sentenced Muhammad Raees appellant to death plus fine and Muhammad Khan appellant to life imprisonment plus lime. The appeal of Muhammad Races, Muhammad Khan and Saghir Ahmad appellants was dismissed by a Division Bench of the Lahore High Court Rawalpindi Bench, and the conviction as well as the sentence awarded to the appellants were upheld vide judgment dated 6 May, 1984. Leave to appeal was granted in this case on the ground as to whether the appraisement of evidence by the Courts below in this case conformed to the well established principles for dispensation of criminal justice. Muhammad Raees appellant was stated to be armed with a knife whereas Saghir Ahmad appellant was stated to he armed with a Chhuri Muhammad Khan appellant was stated to be empty handed in the F.I.R. but subsequently in the complaint case filed by Muhammad Ansar respondent he was stated to be armed with a stick. The occurrence took place on 11 June, 1980 at 7‑30 p.m. within the area of village Bhamhar near Haveli of Ghulam Rasul acquitted co‑accused and at a distance of 17 miles from Police Station Sadar Jhelum. The statement of Khawaja Khan PW6 which formed the basis of the F.I.R was recorded at 7‑40 p.m. on the same day at village Khurd by Farrakh Hussain SI PW8 and the F.I.R. was registered subsequently at the Police Station Sadar Jhelum on the same day at 9 p.m. According to the F.I.R. Khawaja Khan PW while gong towards the village mosque at about 7 p.m. heard some noise from one side of the mosque. He rushed to the place of occurrence and saw Muhammad Races appellant armed with a knife, Saghir Ahmad appellant armed with a Chhuri and his brother Muhammad Khan appellant empty handed launching attack on his sister's son Muhammad Azad deceased. Within his view Muhammad Races appellant gave two knife blows on the back of Muhammad Azad deceased, Saghir Ahmad appellant gave two Chhuri blows to Muhammad Ansar respondent one on the abdomen and the other on the left arm‑pit. Both of them fell down after receiving the injuries. Khawaja Khan PW advanced forward in order to rescue them but the three appellants threatened him as well as two other eve‑witnesses who had reached the spot namely Karimullah (not produced) and Muhammad Aslam PW

7. Thereafter the appellants ran to the house of Muhammad Khan and after entering the house bolted the door from inside. Muhammad Azad died on the spot whereas Muhammad Ansar respondent became semi‑conscious. The motive for the occurrence as stated in the F.I.R. was that Muhammad Races appellant was a candidate for nomination as a postmaster for the new branch post office sanctioned for the village. The deceased and Muhammad Ansar respondent had opposed and tried that some literate person belonging to the village should be appointed to perform these duties. As a result of their efforts one Sakhi Muhammad a tailor of the village was entrusted with the duties of postmaster by the authorities. On this Muhammad Races appellant felt aggrieved and threatened the deceased as well as Muhammad Ansar respondent that he would take the revenge. It was also stated in the F.I.R. that the three appellants were in the patronization ?sirprasti? of Ahmad Khan and Ghulam Rasul acquitted co‑accused as a result of which they had picked up courage to attack the complainant side. At this stage the medical evidence may he noted. The Post‑mortem examination on the dead body of the deceased revealed that he had two incised wounds on the left side of back, one contusion 4" x 2" on the left side of back and one abrasion 1/4" x 1/4" on the left side of back. The two incised injuries had been caused by sharp‑edged weapon and had damaged the lungs. These injuries had proved fatal but the remaining two injuries had been caused by a blunt weapon and were simple in nature. So far its Muhammad Ansar respondent is concerned, he a one incised wound on the left axilla on the outer region of the chest, a linear abrasion 4" long on the left side of abdomen and another linear abrasion on the right side "of the back The 1tirst injury was declared grievous after X‑ray report and it was caused by a sharp edged weapon whereas the remaining two injuries had been caused by a blunt weapon and were declared simple. Not satisfied with the police 'investigation Muhammad Ansar respondent who was himself injured in the course of the occurrence and was an eye‑witness filed a complaint in which the version given was not exactly in line with the F.I.R. in the complaint besides the three appellants named in the F.I.R. Ahmad Khan and Ghulam Rasul acquitted co‑accused whose names had appeared in the F.I.R. as patrons of the three appellants, were mentioned as accused persons who were present on the spot at the, time of the occurrence. In the complaint it was stated that the deceased alongwith Muhammad Ansar respondent had proceeded towards the mosque for taking bath. When the deceased and Muhammad Ansar respondent reached near the Baithak of Ghulam Rasul acquitted co‑accused they saw Ghulam Rasul and Ahmad Khan acquitted co‑accused empty handed Muhammad Khan appellant armed with a Soti, Saghir Ahmad appellant armed with a Chhuri and Muhammad Races appellant armed with a knife present in the courtyard of the Baithak. Ghulam Rasul and Ahmad Khan acquitted co‑accused exhorted the three appellants that they should not spare the deceased and Muhammad Ansar respondent and that if they were to finish them, Ghulam Rasul and Ahmad Khan acquitted co‑accused would look after the case against them. On this the three appellants launched the attack. The deceased and Muhammad Ansar respondent ran away in order to save their lives but they were chased by the accused party. Muhammad Khan appellant gave two Soti blows on the back of the deceased whereas Muhammad Races appellant gave two knife blows on his back. As a result the deceased fell down and died on the spot. Thereafter, Saghir Ahmad appellant gave three Chhuri blows to Muhammad Ansar respondent. On the alarm raised by Muhammad Ansar respondent Muhammad Aslam PW7, Karimullah (not produced) and Khawaja Khan PW6 arrived at the spot and witnessed the occurrence. The accused party ran away raising Lalkaras. About the motive it was stated in the complaint that Muhammad Races appellant wanted to take over as postmaster of the newly created branch post office in the village and the other members of the accused party were his helpers. However the deceased and Muhammad Ansar respondent opposed his appointment. As a result hot words had been exchanged between Muhammad Races appellant and the deceased. It was further stated in the complaint that the police officer had not recorded the statement of Khawaja Khan PW correctly while registering the case and that he had conducted the investigation in a partial manner. The complaint was filed before the Illaqa Magistrate who sent it for trial before the Sessions Judge Jhelum. Consequently the Sessions Judge tried the challan case and the complaint case simultaneously and delivered a consolidated judgment on 10 March, 1981 as has been mentioned above. It may be pointed out that Saghir Ahmad and Muhammad Khan appellants are real brothers and they are stated to be friends of Muhammad Races appellant as well as his supporters. The prosecution has produced three eye‑witnesses of the occurrence namely Muhammad Ansar respondent as PW5 who himself was injured in the course of the occurrence, Khawaja Khan PW6 maternal uncle of the deceased and Muhammad Aslam PW7 also related to the deceased. Karimullah was cited in both the challan case and the complaint case as an eye‑witness but he has not been produced. The motive given in the complaint case and the challan case is more or less identical. There is only one recovery in this case and that is from Muhammad Races appellant at whose instance human bloodstained knife P4 was recovered. The attesting witnesses of this recovery besides the Investigating Officer arc Khawaja Khan and Muhammad Aslam PWs both eye‑witnesses and closely related to the deceased. The recovery was relied upon by the trial Court but has not been considered reliable by the High Court. The main argument of the learned counsel for the appellant is that the version given in the F.I.R. is different from the version of the occurrence given in the complainant filed by Muhammad Ansar respondent. It was submitted that in the F.I.R. Khawaja Khan PW had only mentioned the three appellants as accused persons although he had stated therein that the three appellants had the patronage of Ahmad Khan and Ghulam Rasul acquitted co‑accused. In other words he had not mentioned that they were present at the time of the occurrence and were instigating the three appellants to commit the crime or that they would save them afterwards. However it was submitted that in complaint about the same occurrence which was filed by Muhammad Ansar respondent about two months later on 17 August, 1980 the said Ahmad Khan and Ghulam Rasul acquitted co‑accused were stated to be present at the time of the occurrence and had been instigating the appellants to attack the complainant side. On the basis of this material discrepancy in the two versions it was argued that no reliance could be placed on the ocular testimony which was interested and partisan. It was next submitted that according to the version given in the F.I.R. Muhammad Khan appellant was described as empty handed but according to the complaint he was stated to be armed with a stick who had used it by giving two blows on the back of the deceased. The argument is that he was ascribed this role in the complaint only because two blunt weapon simple injuries were found on the person of the deceased on his post‑mortem examination conducted on 12 June, 1980. It was further argued that Khawaja Khan and Muhammad Aslam PWs' testimony regarding the recovery of human blood‑stained knife at the instance of Muhammad Races appellant had been rejected by the High Court. They were therefore not worthy of reliance as eye‑witnesses. We considered the arguments of the learned counsel for the appellants and also perused the record. Admittedly the occurrence had taken place at 7 p.m. within the village abadi and the first report about the same made by Khawaja Khan P.W. was recorded at 7‑40 p.m. while he was on his way to the police station at village Khurd, the police station Sadar Jhelum being at a distance of 17 miles from the place of occurrence where the formal F.I.R. was registered on the same day at 9 p.m. Thus it is evident that the F.I.R. was promptly lodged and this definitely is first report respecting the occurrence. In this account Ahmad Khan and Ghulam Rasul are not stated to be present at the time of the occurrence or instigating the three appellants. They were, therefore, rightly given the benefit of doubt by the trial Court and acquitted. Again according to this account Muhammad Khan appellant was stated to be empty handed and no part had been ascribed to him so far as the occurrence was concerned. A perusal of the F.I.R. indicates that he was only present there and did not participate in the occurrence in any manner. The complaint in this case was admittedly filed after the medical evidence had revealed that there were two blunt weapon injuries also on the back of the deceased. It is therefore probable that in the complaint he was made to hold a stick and ascribed the part for having caused two injuries with the same on the back of the deceased, and that this might have been an after‑thought as argued by the learned counsel for the appellants, but so far as the part ascribed to Muhammad Races and Saghir Ahmad appellants is concerned the account of the eye‑witnesses in the challan case and the complaint case is consistent as it is supported by the medical evidence as well as the motive version. Even if we were to discard the recovery evidence as unreliable, according to the ocular testimony Muhammad Races appellant gave two injuries with his knife on the back of the deceased which led to his death whereas Saghir Ahmad appellant caused injuries with his Chhuri to Muhammad Ansar respondent. In the background of the motive version as well as the medical evidence there is no reason to discard the ocular testimony so far as it relates to the parts ascribed to Muhammad Races and Saghir Ahmad appellants. In the light of the above discussion the conviction as well as sentence awarded to Muhammad Races appellant under section 302, P.P.C. and to Saghir Ahmad appellant under section 307, P.P.C. are maintained and their appeal is hereby dismissed. But so far as Muhammad Khan appellant is concerned in our view his conviction and sentence under section 302/34, P.P.C. were not proper in the circumstances of the case. He should have been given the benefit of doubt and acquitted. We order accordingly. His conviction and sentence are hereby set aside and his appeal is accepted. He shall be released from jail forthwith if not wanted in any other case. MA.K./M‑631 /S???????????????????????????????????????????????????????????????????????????????? Order accordingly.