1999 PLP 2389 (MLD)

MUHAMMAD NAWAZ ABBASI, J.

This judgment will propose the disposal of Murder Reference No. 112 of 1994 sent by the learned Additional Sessions Judge, Muzaffargarh, and Criminal Appeal No.336 of 1993 filed by the appellants, namely, Khadim Hussain, Muhammad Bakhsh alias Mamda, Ashiq Hussain, the real brothers, and Muhammad Iqbal Hussain son of Ghulam Qadir against their conviction under section 302/34, P.P.C., by the said learned Additional Sessions Judge through judgment dated 18-12-1993, whereby Khadim Hussain has been sentenced to death and the remaining appellants to imprisonment for life, for the charge of, committing the murder of Muhammad Iqbal son' of Muhammad Raman. The appellants were also directed to pay Rs.15,000 each as compensation to the legal heirs of the deceased.

2. The occurrence in the present case took place near the Havelii of one Ghulam Qadir of Chah Dheranwala in the area of Police Station Qureshi, District. Muzaffargarh. Nazar Hussain P.W.2, thg maternal uncle of Muhammad Iqbal deceased, lodged report of the occurrence through his statement Exh.PA made before Muhammad Sadiq S.I./S.H.O. P.W. 6 at 8-00 p.m. on 6-6-1991 on the basis of which the case was registered within less than one hour of the occurrence through F.I.R. Exh.PA/1 on the same day.

3. The details of the facts in the background given in the complainant Exh.PA is that on 6-6-1991 at about 7-15 p.m. Nazar Hussain complainant and his brother Ghulam Sarwar were proceeding towards Chah Dheranwala. They on reaching the Pace road noticed Muhammad Iqbal deceased coming from northern side who was confronted by Khadim Hussain, Muhammad BalZhsh alias Mamda, Muhammad Iqbal Hussaif armed with Chhuras and Ashiq Hussain appellant empty-handed, near Basti Charhoiwali who having embushed themselves raising Lalkara opened attack upon the deceased. Khadim Hussain and Muhammad Bakhsh appellants allegedly inflicted one Chhura blow each on the chest and neck of the deceased respectively, whereas Muhammad lqbal Hussain is attributed two successive injuries with chhura on the head and ear of the deceased who ran into the Haveli of one Ghulam Qadir situated nearby but Ashiq Hussain appellant pulling the deceased dragged him in the court-yard of the Haveli where he succumbed to the injuries. The motive narrated therein was that 3 days before the occurrence there was exchange of hot words between Ashiq Hussain appellant and Muhammad Iqbal deceased at the shop of Abdul Rehman and in consequence thereof deceased slapped Ashiq Hussain. The matter was, however, patched up for the time being but Ashiq Hussain and Khadim Hussain extended threats for taking revenge of their insult.

4. Muhammad Sadiq S.I./S.H.O. P.W.6 reaching at the spot prepared injury statement (Exh.Pl) and Inquest report (Exh.PJ) of the deceased and despatched the dead body for post-mortem examination. During the spot inspection he secured blood-stained earth through memo. Exh.PB. He' after arresting the accused on 26-6-1991 except Ashiq Hussain who was arrested on 26-7-1991 effected recoveries of the weapons of offence from them. However, the same having not believed by the learned trial Court need not to be described in detail. The Investigating Officer having completed the investigation challenged the appellants to face the trial for the charge of murder.

5. Dr. Tanveer Ahmad P.W.8 having conducted post-mortem examination of the deceased traced 8-injuries of the following description on the dead body:-- (1) An incised wound 5 x 1/2 c.m. going deep into left chest cavity on the left nipple extending to midline of chest between 5th and 6th inter costal space on front of left chest. (2) An incised wound 4 x 1/2 c.m. on right back and base of neck going deep upto the muscles of neck clotted blood present in and around the margins of the wounds. (3) Two abrasions about 2 to 3 c. m. each on inner side of right knee joint. (4) Abrasion 5 x 2 c.m. on back of right elbow joint inner side. (5) A small incised wound 2 x 2 c.m. on inner side right hand just nearer to wrist join. (6) A swelling 4 x 6 c.m. on the right tamper parietal junction, of- skull with laceration of 1. x 1 c.m. in the mid of it. (7) A swelling about 2 c.m. diameter just on the Rt side of skull in the mid on occipital regoin. (8) Two abrasions 2.5 c.m. of each on front of left knee joint. The Injuries Nos. 1, 2 and 5 were found to have been caused with sharp-edged weapon whereas the remaining were of blunt weapon. The injury No. l was found fatal to life.

6. The trial Court with the exclusion of evidence of recovery of weapons and motive placing reliance on the ocular account and medical evidence, found the appellant guilty of charge. The eye-witness namely Nazar Hussain complainant P.W.2 is maternal uncle of the deceased whereas Ghulam Sarwar P.W.3 is real brother of the complainant. Nazar Hussain complainant P.W.2 except making some change in his evidence to the extent of attributing the injury on the right hand of the deceased to Muhammad Iqbal Hussain appellant and that of causing of a sota blow on the head of the deceased by Ashiq Hussain appellant inside the Haveli, confirmed the story of F.I.R. as such in his statement at the trial. Ghulam Sarwar P.W.3 deposed that first injury was inflicted by Khadim Hussain with Chhura on left side of the chest of deceased and then Muhammad Bakhsh alias Mamda caused Chhura blow on his neck. Thereafter, Muhammad Iqbal Hussain appellant allegedly caused blows on right hand and ear of the deceased. Ashiq Hussain appellant has been assigned the role of pulling the deceased down on the ground and also causing of an injury on his forehead with sots.

7. Khadim Hussain appellant denying the charge has trade the following statement under section 342, Cr.P.C.:-- Due to political enmity. Rai Mushtaq Ahmad Chairman Union Council Ali Daha and Sardar Nawazish Ali Qandrani belong to Peoples Party. Nawazish Ali Qandrani was a candidate in 1990 Elections. Rai Mushtaq Ahmad supported him. I alongwith my Brathri and co-accused vehemently opposed Nawazish Ali Qandrani in the elections and supported the candidate of Islami Janthori Ittehad, Malik Noor Rabani Khar. Nawazish Ali Qandarni suffered a crushing defeat. The place of occurrence is the house of Ghulam Qadir Gazar which is situated in Basti Gazarwala (Basti Charhoiwali). It is a big Basti and majority of its population belongs to Gazar caste and profession. There are two big shops near the house of Ghulam Qadir Gazar and these shops belong to Ashiq Hussain Qandrani and Ghulam Qadir Qandrani. The whole of the Basti actively supports P.P.P. and Nawazish Ali Qandrani and the leaders of this Basti Gazatwvala, is, above mentioned Ghulam Qadir Gazar, Ashiq Hussain Qandrani and Ghulam Qadir Qandrani, is the active supporters of P.P.P. On 13-10-1989 Khuda Khan and Muhammad Iqbal deceased criminally trespassed into the house of Ghulam Qadir Gazar as Muhammad Iqbal deceased was carrying on illicit relations with the wife of Ghulam Qadir Gazar. Allah Bux son of Ghulam Qadir Gazar and Munir Hussain son of Ahmad Bux Gazar caught hold of Muhammad Iqbal deceased and Khandu Khan. Fight ensued between them as a result of which Khandu Khan, Allah Bux and Munir Hussain were injured while Muhammad Iqbal Gazar deceased unhurt from the house of Ghulam Qadir Khandoo Khan, Allah Bux and Munir Hussain were medically examined for their injuries. Due to the intervention of Sardar Nawazish Ali the matter was not reported to the police. It was particularly mentioned that Nazar Hussain P.W. is maternal-uncle of Muhammad Iqbal deceased and he (Nazar Hussain) got Khandu Khan got medically examined from the hospital. Nazar Hussain P.W., his nephew Muhammad Iqbal deceased and his Brathri are the active supporters of the P.P.P. and Nawazish Ali Qandrani. Sardar Nawazish Ali Qandrani and Rai Mushtaq prevailed upon Abdul Rahim P.W, who on 6-5-1991 in collusion with them fabricated a false case against us. F.I.R. and recovery memos of the weapons of the offence are not in the hand of Muhammad Sadik S.I./S.H.O. All these documents are false Muhammad Iqbal deceased was killed by Ghulatr Qadir Gazar, his sons and his relatives in the house belonging to Ghulam Qadir Gazar. They have been saved by Nawazish Ali and Rai Mushtaq. The Investigating Officer' did not associate them with the investigation of the case at any stage. They have not been examined by the Investigating Officer. There is no evidence whatsoever that Ghulatn Qadir Gazar were not present in the house at the time of occurrence. 1 produce photostat copies of medical certificates of Khandu Khan, Allah Bux and Munir Hussain. The eye-witnesses are false. They had not seen the occurrence. Mark 'A', Mark 'B' and Mark 'C' are the M.L.Rs. of the above injured persons." The remaining appellants also denying the allegations and pleading their innocence made similar statements.

8. Messrs Malik Wazir Ghazi and Ch. Pervaiz Aftab learned Advocates for' Muhammad Bakhsh alias Mamda and Ashiq Hussain appellants and Mr Khadim Nadim Malik, Advocate appearing on behalf of Muhammad Iqbal Hussain appellant, challenging the conviction and sentence on the appellants raised the following contentions:-- (i) That according to the story of the F.I.R. Muhammad Iqbal Hussain appellant having armed with Chhura caused two successive blows to the deceased on his head and ear but no incised wound except Injuries Nos 1, 2 and 5 attributed to Khadim Hussain and Muhammad Bakhsh appellants have been traced on the person of the deceased. According to them Injury No.5 on the right hand was not specifically attributed to any of the appellants in the F.I.R. but at the trial the witnesses through dishonest improvement allocated the same to Muhammad lqbal Hussain appellant. (ii) That as per initial version given in the F.I.R. the deceased; upon receiving the injuries run into the Haveli of Ghulam Qadir but at the trial changing the same it was stated that he was dragged into the Haveli by Ashiq Hussain appellant. (iii) That Ashiq Hussain appellant being empty handed was assigned the role of pulling down the deceased in the F.I.R. whereas at the trial he allegedly caused sota blow on the head of the deceased in the courtyard of the Haveli. (iv) That as per statement of Nazar Hussan P.W.2 but was on his way to his well in Chah Dheranwala whereas Ghulam Sarwar P.W.3 stated that he and Nazar Hussain were coming to their house from Chah Dheranwala. The conflicting statement of the two eye-witnesses regarding their claim of presence at the spot made the same reasonably doubtful. (v) That the recovery of dead body from the Haveli of Ghulam Qadir provided a strong circumstances for visualizing the possibility of the correctness of the version of indulgence of the deceased in immoral activities with wife of Ghulam Qadir which resulted into this fateful incident. (vi) That the possibility of the occurrence having taken place during dark hours of night being not ruled out, it was a blind murder and the appellants due to the political rivalry in the local area were substituted for the real culprits, in a blind murder. (vii) That the inmates of the house i.e. Haveli, where the occurrence took place, being the natural witnesses were purposely not associated in the case and produced before the Court who would be the best person to unfold the true story. The learned counsel with reference to some discrepancies and the contradictions in the statements of the eye witnesses contended that presence of the P.Ws., at the spot being not free from doubt, the manner of taking place the occurrence as suggested by the prosecution is not proved. (viii) Taking the case of Ashiq Husiain appellant, individually it was argued that he being empty handed was not assigned the role of causing any injury to the deceased in the F.I.R. and the subsequent improvement of causing injury to the deceased with soti would not be of worth consideration to be made basis for conviction. (ix) Mr. Khadim Nadim Malik, Advocate added that injuries attributed to Muhammad Iqbal Hussain through improved version at trial being not traceable in the medical evidence and mentioned in the F.I.R. except on head and ear, his conviction is not safe in absence of positive proof of his guilt.

9. Conversely the learned counsel appearing on behalf of the State argued that there being no background of enmity between the parties, there was no reason with the natural witnesses of the occurrence to substitute the appellants with the actual culprits or to implicate them in a false case and that no material contradiction or discrepancy was traceable to make their evidence shaky. He argued that the specific role of causing injuries with Chhura to the deceased assigned to Muhammad Iqbal Hussain, seeks full corroboration from medical evidence and similarly the blunt weapon injury on the head of deceased attributed to Ashiq Hussain appellant having found by the doctor as such, he was an active party to the crime. He finally argued that the role assigned to Khadim Hussain and Muhammad Bakhsh has proved beyond doubt and the active participation of the remaining appellants namely Muhammad Iqbal Hussain and Ashiq Hussain, is also proved beyond doubt, therefore, all the appellants being equally responsible for commission of offence, do not deserve any leniency in the matter of sentence. 10 We have perused the record and gone through the evidence minutely with the help of the learned counsel for the appellants and also heard them at length.

11. The examination of the evidence of two eye-witnesses undoubtedly revealed some changes in their statements at the trial probably to avoid any conflict with the medical evidence Muhammad Iqbal Hussain appellant has been specifically attributed the role of causing injuries With Chhura on the head and ear of the deceased in the F.I.R. whereas an incised injury on the hand of the deceased not being found mentioned in his name in the first version given in the F.I.R., was also attributed to him at the trial. This is noticeable that the injuries attributed to him in the F.I.R. were not traceable in the evidence of the doctor. Similarly, the role of causing injury to the deceased by Ashiq Hussain appellant with sota was introduced for the first time at the trial. The medical evidence qua Muhammad Iqbal Hussain and Ashiq Hussain appellants running counter to the story of the. F.I.R. the evidence of the P.Ws., to the extent of these two appellants regarding the role allegedly played by them in the occurrence is not proved beyond doubt. The possibility of receiving the blunt weapon injuries by I the deceased as a result of fall on the ground being not ruled out, and the prosecution having not explained the withholding of these injuries in the F.I.R. must suffer for the consequence. The case against Ashiq Hussain and Muhammad Iqbal Hussain appellant being of distinguishable feature and character despite their presence is established through the evidence on the record, the cloudy situation arising favours them for the extension of benefit of doubt. The incised wound on the chest and neck having specifically attributed to Khadim Hussain and Muhammad Bakhsh alias Mamda appellants, the incised wound on the head of deceased could also be at the hands of these appellants. The conflict of the eye-witnesses with medical evidence viz-a-viz the role of Muhammad Iqbal Hussain and Ashiq Hussain being not ignorable, the same must be resolved in favour of them and consequently we extending the benefit of doubt to Ashiq Hussain and Muhammad lqbal Hussain appellants accepted their appeal and set aside their conviction and sentence. They shall be released forthwith from custody if not required to be detained in any other case.

12. The case of Khadim Hussain and Muhammad Bakhsh alias Mamda appellants being distinguishable is dealt separately.

13. The learned counsel for the appellants criticising the conduct of the eye witnesses contended that they showing unnatural conduct of not interfering in the occurrence and to make efforts for rescue of the deceased has made their claim of presence at the spot doubtful. The contention may take attention apparently but in view of the fact that accused extended threats to them before opening the attack on the deceased, they with empty handed were not in a position either to make an attempt to rescue to deceased or to put resistance to the attack made by the appellants. Therefore, the non-interference of the P.Ws., in the occurrence by itself is no reason to exclude their presence at the spot. The P.Ws., being resident of Chah Wassuwala were on this way towards Chah Dheranwala to look after their wheat crop lying at a shorted distance from the place of their residence, therefore, they were the natural witnesses of the occurrence. It being still daylight at 7 p.m. in the month of June the assertion of the learned counsel for the defence that the occurrence having taken place during the dark hours of night, the presence of the witnesses was not possible is repelled.

14. The medical evidence disclosing the time of occurrence in between 4-00 p.m. to 10-00 p.m. confirmed the time of occurrence given by the P.Ws. and there being no contradiction regarding the time, the place of occurrence, and the role assigned to these appellants, the evidence of the eye-witnesses on the basis of minor contradictions, discrepancies or slight changes cannot be discredited Much labour has been put to create dent in the ocular account on the basis of site plan Exh.PH raising contention that according to the changed version, the occurrence took place near the thrashing floor outside the Haveli and the dead body was dragged inside the Haveli but no trail of blood having found, the deceased definitely done to death in the Courtyard, from where the dead body was found. The perusal of the site plan does 'not indicate any material contradiction of the nature to disbelieve the story and even if something material could be traced, the site plan being not a a substantive evidence cannot be used to contradict or disbelieve the ocular account. Undoubtedly site plan .is prepared at the pointation of the P.Ws., yet it cannot be awarded the status of definite evidence prepared with no omission or mistake. Therefore, the discrepancies pointed out by the learned counsel for the appellants with reference to the site plan having no adverse effect to the prosecution case or beneficial to the deceased are not to be given any importance. It has been strongly agitated that the conflict in statements of eye-witnesses regarding the direction of their reaching at the place of occurrence has made the story of their witnessing the occurrence doubtful. The direction of travelling of the witness either from heir houses towards Chah Dheranwala or from Chah Dheranwala towards-their houses, the place of occurrence falling near the Haveli of Ghulam Qadir situated between the two places the claim of their witnessing the occurrence is not refutable for the above said discrepancy. The defence having not challenged the cultivation of land on lease by the P.Ws., at Chah Dheranwala, and the availability of wheat crop at the said land, in the harvesting season the attendance of the land wheat crop by the witnesses at the evening time was natural. The P.Ws., having no previous enmity against the appellant or' motive to drag them in a false case are truthful witnesses. The appellant except putting the suggestions and making bare statement under section 342, Cr.P.C. have not been able to bring on record anything in their favour either through the prosecute evidence or in defence to substantiate the plea of substitution. The possibility of addition of an innocent person is not ruled out but the substantiation of an innocent person with a real culprit is not possible. Therefore, this is not believable that the P.Ws:, at the instance of a third person would make bargain of the life of the deceased and involve innocent person in the charge of murder. The appellants did not take any step at any stage during the investigation or at the trial to bring any material in support of their version on the record. Therefore, visualising the situation in the light of evidence and attending circumstances no other inference except the guilt of the appellants can be drawn in the given facts.

15. The alleged motive of exchanged of hot words between the deceased and Muhammad Bakhsh appellant having not proved by the prosecution was not believed by the. trial Court. There being no other reason or enmity between the parties and actual cause of occurrence being not known, the motive is shrouded in mystery and in view of the fact that a single injury is attributed to Khadim Hussain the quantum of sentence qua him needs consideration.

16. In view of what has been said above the appeal to the extent of Khadim Hussain and Muhammad Bakhsh alias Mamda appellants fails, which is dismissed with conversion of the sentence of death of Khadim Hussain into life imprisonment. The sentence of life imprisonment of Muhammad BAhsh alias Mamda appellant is maintained. The compensation awarded by the trial Court to them is also maintained. The murder reference is answered in the negative. The appeal of Muhammad Iqbal Hussain and Ashiq Hussain is allowed. H.B.T./K-78/L Order accordingly.