1986 P Cr (PLP)

S. 302

Recovery

Carbine

No crime empty recovered nor weapon sent to expert

Accused having chosen to commit crime in dark and later carrying weapon with him during day, highly improbable‑‑Recovery carbine not connected with crime‑‑Accused given benefit of doubt. Messrs Kh. Sultan Ahmad and Hassan Ahmad Khan Kanwar for Appellant. Kh. Muhammad Asghar for A.‑G. for the State. Date of hearing: 20th April, 1980. MAZHARUL HAQ, J.‑‑Abdul Majeed (26) and his brother Zahoor Ahmad (15) were tried for the murder of their co‑villager Abdur Rashid On 28‑10‑1978 Mr. Manzoor Hussain Basta, Additional Sessions Judge Faisalabad convicted Abdul Majeed under section 302, P.P.C. an sentenced him to death and to a fine of Rs. 1,

000. Zahoor Ahmad acquitted. Appeal of the convict and the connected murder reference are before us.

2. Some Government land was allotted to Appellant's father Nawaz and to Abdur Rashid, deceased's father. Since a school building was to be constructed in the village on the Government land, therefore, both parties tried that it be constructed in the land in possession of the other. Ultimately the land in possession of appellant's father was cancelled for constructing the school building. Consequently on 24‑2‑1976 hot words were exchanged between Abdul Majeed accused and Abdur Rashid (deceased). On the following day i.e. 25‑2‑1976 at about 3‑30 a.m. Abdul Rashid went to irrigate his land in Square No. 27 of Chak No. 227, as he diverted the water to his fields Abdul Majeed armed with a carbine, his brother Zahoor Ahmad armed with a stick appears there and raised a Lalkara that he would not be spared. Abdur Rashid took to heels but was chased by the accused. As soon as Abdul Rashid reached Killa No.11 of one Moluliwala, Abdul Majeed fired at him hitting him in the back. Abdur Rashid fell. His brother P.W.9 Munir Ahmad' and P.W.10 Ramzan saw the occurrence as they had also reached there for irrigating their land. On seeing them the accused fled away. Abdur Rashid was carried to Civil Hospital, Samundari where he was examined at 9‑10 a.m. by P.W.13 Dr. Muhammad Riaz, Medical Officer. He found the following injuries on him:‑ (1) A lacerated wound 1‑3/4 x l " on the middle right side of lumber region near mid line. (2) Five lacerated wounds 1/3" x 1/3" each situated in an area of 3" x 3" on front lower part of right side of chest near costal margin. Through Rukka Exh. P.N. doctor informed the police that Abdur Rashid was seriously injured. P.W.12 Ahmad Khan, S.I. P.S. Samundari went to the hospital. He made application Exh. P.N./1 to the doctor and enquired whether Abdur Rashid was fit to make a statement. On his reply in the affirmative the S.I. recorded his statement Exh .P.G. , on the basis of which formal F.I.R. Exh.P.G./1 was registered at Police Station Samundari at 10‑15 a.m. the same day. The S.I. prepared the injury statement Exh.P.O. Since Abdur Rashid suffered dangerous injuries, the S.I. made application Exh. P.D./3 before the Assistant Commissioner, Samundari for recording his statement. By his order Exh.P.D./1 Mr. Ghulam Rasul M.I.C., P.W. 2 was directed to record the statement. After obtaining certificate Exh.P.E. from the doctor that the injured was fit to give a statement, P.W.2 Mr. Ghulam Rasul recorded Abdul Rashid's statement Exh.P.F on 25‑2‑1976. Thereafter the S.I. went to the place of occurrence, collected blood‑stained earth from there. He recorded the statement of witnesses and prepared the necessary documents.

3. On 26‑2‑1976 Abdul Majeed was arrested and on search .12 bore carbine P.1 was recovered from the Dub of his Chadar. It was made into a sealed parcel vide memo. Exh.P.H. attested by P.W. 4 Dil Muhammad, P.W. 12 Muhammad Khan and Abdullah (not produced). Ahmad Khan S.I. arrested Zahoor accused on 1‑3‑1976.

4. On 4‑3‑1976 P.W.1 Mehr Muhammad A.S.I. received information at the police station that Abdur Rashid had died in the hospital at 1‑00 a.m. He went there, prepared the necessary documents and sent the dead body for its post‑mortem examination. The autopsy was held at 4‑30 p.m. the same evening by Dr. Muhammad Ajmal, Medical Officer. D.H.Q. Hospital, Faisalabad. He noted the same two injuries on the dead body which were previously noticed by Dr. Muhammad Riaz when Abdur Rashid was alive. Injury No.2 caused the fracture of 8th and 9th ribs in the front from where one pellet was removed which was made into a sealed phial. Big vessels of right kidney were found ruptured. The abdominal walls were found ruptured under injuries Nos. 1 and

2. Abdominal walls, peritonium and the diaphragm and liver were found ruptured. Between injuries Nos. 1 and 2 a wad was removed which was made into a sealed parcel. Both injuries were sufficient to cause death in the ordinary course of nature. Prosecution case was satisfactorily proved against Abdul Majid. Since Zahoor Ahmad caused no harm to the deceased, his participation was considered doubtful for which he was acquitted.

5. Criticizing the finding, it was contended that the presence of the two eye‑witnesses at the place of occurrence was doubtful because they had no reason to be present there at that hour being closely related to the deceased have stage managed their presence and out of suspicion they have foisted the case against the appellant and his brother. It was further argued that being a bad character, the deceased may have been done to death by one of his enemies. We have considered the submissions. Both P.Ws. Munir and Ramzan said that at about 3.30 a.m. they proceeded towards Killa No. 11 of Square No. 27 to irrigate the land but it is noteworthy that they owned no land in Square No.

27. In fact P.W. Munir owned no land in the village and was working as a labourer and also did not live with his brother Abdul Rashid. This fact is bone out by the evidence of P.W.7 Ghulam Muhammad, Lumbardar. According to P.W.10 Ramzan, he owned land in Square No. 32 but he could not state the duration and the time of commencement of his turn of water. It was not their position in their police statements that they had gone to assist Abdul Rashid for irrigating the land. On the other hand, a perusal of the copy of the Warabandi Exh.D.C. would reveal that even the deceased did not have his turn of water at the time of occurrence. It may also be added here that according to the prosecution, the two eye witnesses reached the place of occurrence 5/7 minutes after Abdul Rashid had reached there. There was, however, no explanation why the three did not go together to irrigate the land. Moreover, if the two eye‑witnesses had been following the deceased in order to help him in irrigating the land, they would have then carried Kassis with them but this was not their case. These circumstances also show that the eye‑witnesses in all probability had not seen the occurrence. It is further noteworthy that if they had seen the occurrence then there would not have been a delay in making the F.I.R. The occurrence ‑took place at 3‑30 a.m. and Abdul Rashid was carried to the hospital on a Rehra where he reached at 8‑45 a.m. after covering a distance of nine miles. This journey could not have consumed five hours even if they had left the place of occurrence an hour or two after the occurrence. It is noteworthy that the village Abadi is about two Killas away from the place of occurrence as stated by P.W.5 Gulzar Muhammad, Patwari and according to P.W.4 Dil Muhammad a witness of the recovery of the crime weapon, on hearing about the occurrence at 4 a.m. He went there and two three minutes thereafter Abdul Rashid was carried on a Rehra to the hospital. He also claimed to have accompanied him and left the place of occurrence about half an hour before sun rise. These circumstances do indicate that after due deliberation, the matter was reported. In fact none went to the police station for making a report. The F.I.R. in this case was recorded on the statement of the deceased which was recorded by the S.I. who reached the hospital at 9‑30 a.m. on intimation from the doctor. There is no explanation forthcoming as to why none went to the police station although according to the S.I. when he reached the hospital ten to fifteen persons were sitting near Abdul Rashid (deceased).

6. Trial Court rightly came to the conclusion that the motive was not satisfactorily proved in this case. P.W. 9 Munir Ahmad, informant, took up the position in the F. I. R. that either the land of his father or that of Amir Ali appellant's father was to be acquired for the village school. Since Amir Ali's land was chosen for the purpose, therefore, the accused bore a grudge against the complainant party. At the trial, however, the informant took up a different position i.e. it was not the land of his father but it belonged to his uncle Siraj Din which was left out and Amir Ali's land was acquired. Further, that Siddique and Ghulam Rasul were the leaders of those who were instrumental in putting up the proposal that Amir Ali's land should be acquired. Since the informant and his father sided the aforementioned two, therefore, the accused bore a grudge against them. If that was so, then the accused would have had a grudge against Siddique and Ghulam Rasul. We, however, find that the whole story appears to have been put up because P.W.5 Gulzar Muhammad, Patwari, said that the land which had been allotted to the appellants father had been reserved for the school. He claimed some alternate land which was allotted to him and he had no dispute about it with the deceased. It is thus obvious that the motive story was baseless and as such adversely reflected on the prosecution case. It may also be added here that since unsatisfactory motive is also to be found in deceased's statement, therefore, reliable evidence was required to corroborate the dying declaration which in this case isle none. Moreover, we find the deceased's statement recorded by the S.I. Exh.P.G. and the dying declaration Exh.P.F. are almost similar in narration. Both documents gave the caste and parentage of the witnesses and such details which a seriously wounded man would normally not state. On the other hand, we find that the Magistrate stated that he had turned out others from the room when he recorded the dying declaration but P.W.4 Dil Muhammad who admittedly accompanied the injured to the hospital said that the Magistrate recorded the statement of Abdul Rashid (deceased) in the Varandah in the presence of Ramzan and Munir P. Ws. and that the S.I. was also present there.

7. Identification of the accused is another material aspect of the case which requires consideration. The occurrence was said to have taken place at 3‑30 a.m. and on the 25th of February it was the last quarter of the moon which set at 1‑52 a.m. (as is shown in the Calendar of 1976). Thus, at the time of the occurrence there would be no moonlight. As such, it would be highly doubtful that in dark the witnesses identified the accused from the distance that they claimed to have seen the occurrence.

8. The recovery of the carbine P.1 is not connected with the crime in this case. No crime empty was said to have been recovered nor the weapon was sent to the Expert to find out whether the same pas in working order. Moreover, it seemed highly improbable that the accused who chose to commit the crime at dark hour of the night would later be carrying the weapon with him during day. For the foregoing reasons we are not satisfied with the prosecution evidence in this case. Giving the benefit of doubt, to the appellant we accept his appeal, set aside the conviction and sentence and acquit him of the charge. He shall be released forthwith if not required in any other case. S.A. Appal accepted.