1994 PLP 1253 (SCMR)

RUSTAM S. SIDHWA, J.‑‑‑This is an appeal by Allah Ditta appellant against the judgment of a learned Single Judge of the Lahore High Court dated 29‑2‑1984 acquitting Zafar Iqbal and Ghulam Shabbir respondents.

2. Zafar Iqbal and Ghulam Shabbir, present respondents, both cousins inter se, were tried by the learned Sessions Judge, under section 302/34, P.P.C. for causing the murder of Malang Hussain deceased, their co‑villager, during the night between 30‑6‑1979 and 1‑7‑1979 in the area of Village Dul, Police Station Garh Maharaja, District Jhang.

3. The learned trial Judge, vide his judgment dated 24‑5‑1980, convicted both War Iqbal and Ghulam Shabbir respondents under section 302/34, P.P.C. and sentenced each of them to imprisonment for life and a fine of Rs.4,000 or in default two years'. further R.I: It was also directed that the fine, if realised, half of the same would be paid to the legal heirs of the deceased as compensation under section 544‑A, Cr.P.C.

4. The respondents challenged their convictions and sentences through appeal, whereas Khadim Hussain complainant filed a revision petition seeking the enhancement of the sentences of the two respondents. A learned Single Judge of the Lahore High Court by his judgment dated 29‑2‑1984 accepted the appeals of the respondents by acquitting them, but dismissed the revision petition of the complainant. The present appeal is against the said judgment.

5. The F.I.R. account of the prosecution version is that during he night between 30‑6‑1979 and 1‑7‑1979 Malang Hussain deceased as usual slept at his Kiryana shop located in the area of Village Dul on the side of the metalled road leading from Gehlpur Morr to the shrine of Hazrat Sultan Bahoo. On that night Ghulam Ali P.W.7, Mapal P.W.8 and Muhammad Nawaz P.W.9 also slept at the shop with Malang Hussain deceased. At about mid‑night Ghulam Ali P.W.7, Mapal P.W.8 and Muhammad Nawaz P.W.9 w;re awakened by the shrieks of Malang Hussain deceased. They saw Ghulam Shabbir respondent causing Kassi blows on the neck of the deceased while Zafar Iqbal respondent had secured the deceased by pressing both of his hands and sitting on his chest. Ghulam Shabbir respondent gave Kassi blows to Malang on his neck. The witnesses challenged the assailants. Ghulam Ali P.W.7 and Mapal P.W.8 overpowered Ghulam Shabbtr respondent and War Iqbal respondent was caught hold of by Muhammad Nawaz P.W.9. Malang Hussain expired after a shortwhile. Muhammad Nawaz P.W.9 went to Khadim Hussain P.W.10, the father of the deceased, at his home and informed him about the occurrence. The other witnesses also proceeded to the place of Khadim Hussain P.W.10 alongwith the respondents taking the crime weapon with them. They arrived there at about 4‑00 a.m. From the house of Khadim Hussain P.W.10 they proceeded to Police Station Garh Maharaja where on the statement of Khadim Hussain P.W.10 F.I.R. Exh. PH was recorded by Sanaullah SHO/SI, P.W.11.

6. The blood‑stained Kassi P3 was produced by Khadim Hussain P.W.10 before Sanaullah SI P.W.11, who secured the same through recovery memo. Exh. PD on 1‑7‑1979 in the presence of Ghulam Ali and Mapal P.Ws. Blood stained shirt P4 was also recovered from the person of Ghulam Shabbir respondent, vide memo. Exh. PB, in the presence of Ghulam Ali and Mapal P.Ws. Similarly, blood‑stained shirt P4 was also recovered from the person of Ghulam Shabbir respondent, vide memo. Exh.PB, in the presence of Ghulam Ali and Mapal P.Ws. Similarly, blood‑stained vest P5 was recovered from the person of War Iqbal respondent, vide memo. Exh. PF, which too was attested by Ghulam Ali and Mapal. Thereafter, Sanaullah SI P.W.11 accompanied by Khadim 'Hussain, Ghulam Ali and Mapal etc. went to the place of occurrence and after necessary formalities, he despatched the dead body of Malang Hussain deceased to the mortuary for post‑mortem examination.

7. On 1‑7‑1979 at 9‑00 a.m. Dr. Muhammad Siddiq P.W.1 conducted the autopsy on the dead body of Malang Hussain deceased and found an incised wound 15 c.m. x 5 c.m. and another 10 c.m. x 5 c:m. on the left side of the neck. Both the injuries were bone deep. Death was due to shock and haemorrhage on account of these two injuries which were found to be ante‑mortem and sufficient to cause death in the ordinary course of nature. Both the injuries were opined to have been caused by a sharp‑edged weapon. Stomach was found to contain small quantity of undigested food, whilst the urine bladder was found to be empty. In cross‑examination the doctor admitted that wounds caused by weapons like Kassi were inverted and irregular. He admitted that he had not written in the autopsy report that the wounds of the deceased were inverted.

8. The blood‑stained earth recovered from the spot, the blood‑stained Kassi P3 produced before the police, the shirt P4 of Ghulam Shabbir respondent and vest P5 of Zafar Iqbal respondent were, all found to be stained with human blood.

9. The learned trial Judge convicted both the respondents on the basis of motive, the ocular account, the recoveries and the medical testimony.

10. The learned Single Judge of the Lahore High Court rejected the motive as a. figment of imagination without any reality. As regards the ocular account, the learned Judge held that the presence of the witnesses at the spot during the night of occurrence appeared to be change and otherwise highly improbable. They were also found to be either related to the deceased or their partisan. The learned Judge also found that two of them had declined to affirm on the Holy Qur'an that they had been present at the place of occurrence, hats witnessed the crime and overpowered the respondents. As regards the production of the two respondents before Sanaullah SI P.W.11 on 1‑7‑1979. early in the morning at 4‑00 a.m. the learned judge found that the Roznamcha Report No.14 did not disclose that the respondents were being produced at the police station. Since in column N o.3 of the inquest report the date and time of learning about the occurrence of death was recorded 'as 1‑7‑1979 at 6‑00 a.m., which time Sanaullah SI P.W.11 explained to be a clerical error, the learned Judge found the production of the respondents before the said police officer of doubtful import. As a result of the said analysis, the learned Judge gave the benefit of doubt to the two respondents and acquitted them.

11. We have been taken through the material evidence in the case and we have also heard the arguments of the learned counsel for the parties. The main question that arises is whether the three eye‑witnesses namely, Ghulam Ali P.W.7, Mapal P.W.8 and Muhammad Nawaz P.W.9 were present at the spot at the time of occurrence and saw the murder being committed by the respondents. The time of occurrence is stated to be about mid‑night between 30‑6‑1979 and 1‑7‑1979. The doctor who conducted the autopsy on Malang Hussain deceased found a small quantity of undigested food in his stomach. The deceased was shopkeeper. Had he taken his evening meals at about sunset, i.e. 7‑3C` p.m. on 1‑7‑1979. he would have been done to death at about 9‑30 p.m. Had he closed his shop between 8 and 9 p.m. and then taken his meals, he was done to death at about 10‑11 p.m. There is, therefore, some disparity in the time of occurrence as given by the eye‑witnesses as against that which is deducible from the medical testimony. Ghulam Ali P.W.7 and Mapal P.W.8 claimed that they had come to the place of occurrence in order to purchase a bullock from Khadim Hussain P.W.10. They had discussed the matter with Khadim Hussain P.W.10 and were to test the bullock the next morning. Both these witnesses claimed that they were partners in the business of purchase and sale of cattle. Khadim Hussain P.W.10 admitted that he was sleeping at his Bahek on the night of occurrence. It is not understandable why these two witnesses slept for the night at the shop of Malang Hussain deceased and not at the Bahek of Khadim Hussain P.W.10 from whom they intended to purchase the bullock. Muhammad Nawaz P.W.9 claimed to be present at the time when Ghulam Ali and Mapal P.Ws., on the one side, and Khadim Hussain P.W., on the other, discussed the sale of the bullock and decided to spend the night at the shop of the deceased. The fact that his own house was at a distance of only two squares from the place of occurrence did not justify his spending the night at the shop of the deceased. Ghulam Ali P.W. refused to take oath on the Holy Qur'an to affirm the fact that he had witnessed the occurrence and had apprehended the respondents at the spot. Likewise, Mapal P.W.8 refused to take the same oath on the reasoning that he was already under oath to state the truth. Ghulam Ali P.W.7 'stated that both the respondents were secured by them by tying their hands with Rumals, whereas Mapal P.W.8 stated that they secured them by tying their hands with two turbans. Both affirmed. that the respondents meekly permitted themselves to be apprehended and did not try to run away at all. It is not believable that the three eye‑witnesses who lived within a range of three miles, did not find the need to repair to their own homes at night, but stayed at the shop of the deceased and not at the Bahek of Khadim Hussain P.W.10. Muhammad Nawav P.W.9 is a cousin of Khadim Hussain P.W.M. Ghulam Ali P.W.7 admitted that he was a relative. of Muhammad Nawaz P.W.9 and Khadim Hussain P.W.10. Mapal P.W.8 is a partner and friend of Ghulam Ali P.W.7. The finding of the learned Single Judge that the said three witnesses were interested and chance witnesses and their presence on the fateful night at the shop of the deceased appeared to be highly improbable, appears to be based on a proper appraisal of the evidence on the record, the surrounding circumstances and inferences that can fairly be drawn therefrom. If the said testimony is discarded, the fact that the respondents were apprehended at the spot with blood‑stained clothes and blood‑stained Kassi also falls to the ground.

12. Taking all the circumstances into consideration, we do not see any good grounds for interfering in the case. There being no merit in this appeal, the same is dismissed. N.H.O/A‑1121/S Appeal dismissed.