1976 P Cr (PLP)

(7) A contusion mark 1? x 1? on the right side of lower lip right lower jaws fractured. (8) An incised wound 1? x 1/6? into bone deep on the back of left little finger first metacarpophelangeal joint first phallings was fractured (9) 1/2? x 1/4? akin deep on the back of left ring finger first joint. (10) An incised wound ?? x ?? into skin deep on the back, of face left index finger. (11) An abraided contusion 8? x ?? obliquely in front of right chest 1?? above the nipple, second, third, fourth and fifth ribs were fractured. (12) An abraided contusion 4? x ?? x 1?? 1f below and parallel to injury. No.

11. Six seventh ribs were fractured. (13) Three contusions in area of 3? x 2? on the back of left upper arm. (14) A contusion on the back of left forearm 2? x 1?. (15) An abrasion ?? x ?? on the outerside of right shoulder. In his opinion, injuries No. 11 and 12 were sufficient in the ordinary course of nature to cause death. The testimony of the doctor proves that Fateh Muhammad died a violent death as a result of no leas than 15 injuries. Dr. Imtiaz Ahmad examined Muhammad Yusuf (P. W. 10) on 13‑11‑1969 at 3‑30 p.m. and found the following simple injuries on his person :‑ (1) An abrasion 1?? x ?? on the back of right forearm. (2) An abrasion 1? x 1/6? on the back of left forearm. (3) A contusion mark 2? x 1? on the right shoulder. (4) A contusion mark 2? x 1? on the back of left side of chest. It proves that the witness had received injuries on his person within 24 to 40 hours of the examination. Before proceedings further, it would be convenient to state the relation?ship in which the parties stand to each other and the enmity whim exists amongst them as well as the witnesses. Mukhtar Ahmad an., Niamat Ali appellants are the ions of Sher and consequently brothers inter i.e. Hidayat Muhammad Ishaq, Mushtaq Ahmad are the sons of Ismail and consequently brothers. Qadir is the son of Nawab. They are all Jats by caste. Muhammad Hussain (P. W. 6) had fallen out with Mukhtar appellant on account of a dispute arising out of partnership business. Fateh Muhammad deceased had tried to help Muhammad Hussain in this dispute Mukhtar was apprehensive of an attack on his life by Yusuf (P. W. 10) and Majid son of Muhammad Hussain (P. W. 6). On his initiative, the appel?lants started proceedings under section 107/151, Cr. P. C. against Fateh Muhammad deceased. Yusuf (P. W. 10), Muhammad Hussain (P. W. 6), Majid son of Muhammad Hussain, Muhammad Ali (P. W. 8), Ghulam Nabi alias Ghulam Hussain (P. W. 12) as well as against Mukhtar. The case went up to the Court of Raja wluhammad Akram Khan, Magistrate on 17‑11‑1969 and was disposed of on 30‑12‑1969. The report is printed at p. 40 of the Paper‑Book. By this order, Mukhtar, Niamat and Ghulam Qadir appellants were bound down under section

118. Cr. P. C. Yusuf (P. W. 10), Muhammad Hussain (P. W. 6) and 5 others were bound down from the other party. The occurrence took place on 11‑11‑1969. Muhammad Ali and Ghulam Hussain P. Ws. 8 and 12 are real brothers. They are the nephews of Muhammad Hussain (P. W. 6). Fateh Muhammad P. W. is the brother of Ghulam Muhammad whose daughter is married to Ghulam Hussain (P. W. 12). Fateh Muhammad is also the maternal uncle of Muhammad Yusuf (P. W. 10), Muhammad Ishaq (P. W. 11) is the nephew of Muhammad Yusuf (P. W. 10), and the son of Fateh Muhammad deceased. Ghulam Hussain (P. W. 12) was also a party in the case under section 107/151, Cr. P. C., against Mukhtar accused and Muhammad Hussain Lambardar. It is, therefore, clear that while the appellants are inter‑related and belong to one faction, P. Ws. 6 to 12 belong to the opposite faction and enmity was ripe between them at the time the incident is said to have taken place. Let us in this light now consider the story written in the F. I. R. Mukhtar Ahmad is said to have sent for Yusuf (P. W. 10) and Muhammad Ali (P. W. 8) to the dera of Muhammad Hussain (P. W. 6) in a panchayat. Is it possible that in the state of enmity narrated above, Mukhtar Ahmad, could have dared to send for Yusuf and Muhammad Ali P. Ws., and more particularly at the dera of Muhammad Hussain. The answer is in the negative. Mukhtar Ahmad is supposed to have said there that he would avenge the insult hurled upon him by Muhammad Yusuf upon Fateh Muhammad, If he had been insulted by Muhammad Hussain (P. W. 10) who was present there, the question of his taking revenge front Patch Muhammad who was not in the picture did not arise. There was an altercation between them and they were separated by the intervention, again by Muhammad Hussain, a person who was equally inimically deposed towards Mukhtar appellant. We are asked to believe that a day before the occurrence, Mukhtar Ahmad appellant again went to his sworn enemy Muhammad Hussain who again sent for Fateh Muhammad and Hussain Bakhsh although the security proceedings between the parties were at that time going on in the Court. The punchayat was also attended by Noor Muhammad (P. W. 9). The two parties again opposed each other and Mukhtar Ahmad left the punchayat saying that he will kill Fateh Muhammad. This is again inexplicable. On the fateful day, when Fateh Muhammad etc. reached near the house of Mukhtar Ahmad they found him and his friends and relations sitting there armed to the teeth. Fateh Muhammad etc. were not armed. The only natural reaction should have been that they should have retraced their steps and run away to their houses because in that state of affairs they were inviting death by going that way and they had been told in no uncertain terms more than once, the last time being the day before, that Mukhtar Ahmad will murder Fateh Muhammad. We are then made to believe that although Mukhtar Ahmad was armed with a gun and about no less than 5 persons of his party were with him, Muhammad Ishaq (P. W. 11) was able to snatch away the gun from Mukhtar Ahmad. If Mukhtar Ahmad was sitting there with the intention of dealing with them, would he be sitting with an unloaded gun? The answer is ostensibly No. Mukhtar Ahmad then picked up a small piece of wood and hit Fateh Muhammad deceased on the head with it. Where?after he was followed by his other friends who are said to have inflicted numerous blows upon the deceased. Yusuf (P. W. 10) was armed with the gun that that he had snatched away from Mukhtar. Would he not in these circumstances use that gun as a dang and try to rescue his brother? We are asked to swallow the story that he remained standing watching, the whole thing helplessly and when he tried to intercede, he was given hatchet injuries on his arms. A gun is certainly longer than a hatchet and there is no reason why Mohammad Ishaq should not have been able to effectively incapticitato Mushtaq appellant in spite of the kulhuri in his hands and there is no reason why he should have permitted him to inflict kulharis blows on his arms. These kulhari blows which terrified him and which made him recede created nothing more than two abrasions and two con?tusion marks so slight in dimensions that it would be ridiculous to assort that a kulhuri when used from its wrong side could cause such minor injuries. When Fateh Muhammad died, Mukhtar put a noose around his neck and dragged the body. There is no mark on the neck in spite of the fact that he had to be dragged for quite a few karams. The only injury on his neck is a swelling with a contusion 3? x 1?? on the right side of the neck upper part. It cannot be the mark of a noose because it was on the upper part of the neck of the right side and secondly, because there was no damage underneath. It has been described as an injury by a blunt weapon by the doctor. The dragging story in the manner it is described is, there?fore, not believable. It is Muhammad Hussain (P. W. 6), Muhammad Ali (P. W. 8) and Muhammad (P. W. 9) all partisans of the complainants and even tic appellants who quietly walked into the haveli of Mukhtar and asked them not to burn the corpse of Fateh Muhammad deceased and suddenly the appellants decided to run away leaving the body there. We are afraid it is too preposterous a story to be clothed with the garb of credibility. No independent evidence has been produced and partisan witnesses formed the mainstay of the case. It is an accepted rule of prudence that Courts should insist upon corroboration. Corroboration there is none except the dangs, kulhari and the piece of wood. The piece of wood P. 4 was stated to be blood‑stained. We have had a careful look at it and bad also shown it to the learned counsel for the prosecution to find if there were any marks on it. We find no trace of anything. It is supposed to have been broken on impact with the face of the deceased. The piece of wood is about 1 J' square in girth and when it struck the face of the deceased as a result of a blow given by a full‑blooded Jat, the result was a contusion mark 3? x 2?? on the left side of face outside the eye. Even if imagination were allow to be stretched to the limit of credulity the resultant injury could not have been as minor as this. The other dangs and hatchet etc. have no blood on them either. They are, therefore, of no help in determining the guilt of those who might have used them. Further the witnesses of recovery are again partisans and cannot be believed. There is, therefore, no corroboration available for the interested and partisan testimony of the P. Ws. 'There is no earthly explanation for the fact that not even one indepen?dent witness has been produced although the occurrence took place in congested bazar. As for the dragging of the body and the threat to burn it is concerned there is not one word in the statement of Muhammad Yusuf (P. W. 10 before the committing Magistrate that anybody gave a lalkara saying that the body should be burnt or even in the F.

1. R. showing that at any stag Mukhtar appellant or anybody else ever uttered a single word indication that they wanted to burn the body. This is just a figment of the imagina?tion and in the absence of any such suggestion one‑ wonders as to why an how did Muhammad Hussain etc. came to beg to them not to burn the body. In these circumstances, we do not find it possible to uphold the Judg?ment of the learned lower Court which we hereby set aside by accepting the appeal and quashing the conviction and sentences of the appellants who have already been directed to be released if they are not wanted in any other case. The Reference under section 374, Cr. P. C. is rejected. Appeal allowed.