1994 P Cr (PLP)

Muhammad Saleem: Under section 304, P.P.C. imprisonment for life and a fine of Rs.20,000 or in default thereof two years R.I. Muhammad Siddique: Under section 326, P.P.C. to suffer ten years' RA. and a fine of Rs.10,000 or in default thereof two years' R.I. Ali Muhammad: Under section 325, P.P.C. one year's R.I. and fine of Rs.1,000 or in default thereof six months' S.I: Allah Ditta: Under section 325, P.P.C. Three years' R.I. and a fine of Rs.1,000 or in default thereof one year's R.I. Ghulam Muhammad was himself murdered during the trial and the case against him abated. The convicts have come up in appeal.

2. The occurrence took place in the Haveli of Muhammad Hussain P.W.5 at 8-00 a.m. on 22-7-1988. Qutab Din complainant P.W.6, the father of the deceased lodged the F.I.R. (Exh.P.E.) the same day at 9-30 a.m. with Muhammad Hayat Sub-Inspector (P.W.9).

3. The case given in the B.I.R. was that in the morning the complainant alongwith his son Mukhtar deceased were present in their own Haveli. The deceased went to the Haveli of Muhammad Hussain which was adjacent to have milk. The deceased sat on the cot in the said Haveli facing East while Muhammad Hussain was milking. From the western side from the street, the appellants and their co-accused armed with hatchets and Dangs reached and Ghulam Muhammad who was carrying a gun appeared. Ghulam Muhammad stood at the corner and the others entered the Haveli of Muhammad Hussain. A Saafa was wrapped around the neck of the deceased by Muhammad Hussain accused and then all lifted the deceased and dragged towards their own houses. The complainant alongwith Farzand Ali and Hakim Ali (P.Ws.6 and 7) followed but Ghulam Muhammad fired shot towards them and they stopped due to fear. Mukhtar deceased was carried to the house of Ali Muhammad appellant and Sharif accused and there given hatchet and Sota blows. He died at the spot.

4. The motive given was that 5 years before the present occurrence Ghulam Muhammad, Sharif, Idrees etc. the Kumhars were injured by the deceased, in the case for the injuries, Mukhtar and Muhammad Tufail were challaned but the respectables got effected a compromise.

5. The defence plea was raised in detail by Muhammad Hussain in his statement at the close of the trial which was adopted by others. According to him Mst. Zahida wife of Muhammad Iqbal accused was molested at the house at 5-00 a.m. on the day of occurrence, she raised alarm, ran out of the house and when she was near the house of maternal-uncle Ghulam Muhammad (since murdered), he (Ghulam Muhammad) gave hatchets blow to Mukhtar deceased to rescue Mst. Zahida. Other villagers also reached and gave Sota blows to the deceased. Since Ghulam Muhammad had murdered Mukhtar so he in turn was murdered by Sarwar and Muhammad Tufail, the sons and Qutab Din complainant thereafter and case was registered on 5-2-1990. Sarwar was sentenced to death. He further pleaded that they were innocent, were poor Kumhar of the village and could not afford enmity with Dogars of the village. Mst. Zahida (D.W.2) was also produced in defence.

6. The material evidence against the appellants is the eye-witness account given by Qutab Din complainant and Hakim Ali (P.Ws.6 and 7), Dr. Javaid Hayat Khan (P.W.2) who performed the post-mortem examination and Muhammad Hayat Sub-Inspector (P.W.9), the Investigator.

7. Learned counsel for the appellants contended that the story put forward in the F.I.R. that a concerted attack by the members of an unlawful assembly was mounted had not been believed by the trial Court, the eye witnesses account was contradicted by the medical evidence, the way the injuries were apportioned by the learned trial Judge qua each of the appellants was a guess work and that Ali Muhammad, Muhammad Siddique, Allah Ditta and Ghulam Muhammad had been declared innocent by the police and in any case the defence plea was supported by Mst: Zahida. It was further argued that the appellant family were only Kumhars of the village so could not dare attack a Dogar i.e. the deceased and that the two eye-witnesses were inimical and could not be believed unless corroborated. According to him there was no corroboration.

8. After hearing the learned counsel for the parties and having been taken through the record there seems to be force in the contentions. According to the F.I.R. the occurrence was witnessed by the complainant, his brother Muhammad Tufail, cousin Hakim Ali alongwith Muhammad Hussain and Farzand Ali. Muhammad Tufail has not been produced. Muhammad Hussain in whose Haveli, the occurrence took place appeared as P.W.5 and did not support the prosecution case. According to him it was about 7-00 a.m. when he was milking his buffalo and Mukhtar deceased was sitting on a cot, 5/6 persons reached and dragged him away. He was declared hostile and cross-examined by the learned prosecutor but nothing fruitful came out of it. According to the statement of the doctor there were no sharp-edged injuries (with hatchet) on the head of the deceased, which were specifically ascribed to Muhammad Hussain, Sharif and Muhammad Saleem. As already observed there are neither any dragging mark on the body of the deceased nor any sharp edged injury in the head. It was not mentioned in the F.I.R. that the deceased was injured on the cot or an arm of the cot was broken but so is the version given at the trial by the two eye-witnesses. The fact that previously the Kumhars were injured by the deceased is also not disputed in the statements by the two eye-witnesses. It is also conceded that the deceased was not a man of unblemished type inasmuch as he was involved in many theft cases and even convicted in one or two cases. Ghulam Muhammad was murdered for which the complainant and his sons were involved and so the enmity between the families is also apparent. Thus, the eye-witness account furnished by Qutab Din complainant and his relative Hakim Ali (P.Ws.6 and 7) cannot be believed unless there was corroboration and no corroboration is there on the record.

9. The upshot is that the appeal succeeds, the appellants are granted the benefit of doubt and acquitted. Their conviction and sentence are hereby set E aside. They be set at liberty forthwith if not required to be detained in any other case. N.H.Q./M-1354/L Appeal accepted.