1990 PLP r (PCRLJ)

SARDAR MUHAMMAD DOGAR, J.

Muhammad Yaqub aged 22 years, Ahmi aged 35 years and Noshi aged 28 years were tried by Additional Sessions Judge, Faisalabad, alongwith Shahmand and Fattu, for having murdered Wali Muhammad at 6 p.m. on 30-5-1983, at Pull Rajbah, Dangli, in the area of Chak No.630/GB, at a distance of four miles from Police Station Lundianwala, District Faisalabad. The learned trial Judge convicted Muhammad Yaqub, Ahmi and Noshi under section 302/34, P.P.C. vide judgment dated 28-2-1985, and sentenced Yaqub to death, and Ahmi and Noshi to undergo imprisonment for life each. All three of them were also sentenced to pay a fine of Rs.10,000 each, in default whereof to undergo R.I. for three years each. Half of the fine, on realization, has been directed to be paid as compensation to the heirs of the deceased. The other two, i.e. Shahmand and Fattu were acquitted vide the same judgment.

2. The convicts have filed appeal. The learned trial Judge has made reference for confirmation of sentence of death awarded to Yaqub. The complainant filed revision petition wherein prayer has been made that Shahmand alias Shaman, who has been acquitted inadvertently by the trial Judge instead of Noshi, be summoned and be deemed to have been convicted by the trial Judge and so should be sentenced accordingly. Prayer has also been made for enhancement of the sentence of imprisonment for life and the amounts of fine awarded to the convicts.

3. The revision petition was admitted in so far as it pertained to Shahmand and a notice was issued to him considering the points raised by the learned counsel for the petitioner/complainant and after going through the relevant portions of the impugned judgment to show cause why his acquittal be not set aside.

4. As all the matter arise from the same judgment, they are being disposed of together.

5. F.I.R. in this case was registered at the police station on 30-5-1983 at 9-10 P.M. by Muhammad Hussain M.H.C. (P.W.2) cm the statement of Salabat (P.W.9). According to F.I.R., the deceased was going to see his maternal on the day of occurrence. When he reached Dangli Pull at 6 p.m. Yaqub (appellant) armed with a knife, Shahmand, Ahmi, Noshi, Shamman and Fattu, empty handed, appeared there. Noshi and Fattu raised a Lalkara that Wali Muhammad shall not go alive today. Thereafter, Shamand and Ahmi took her into clasp and Yaqub started inflicting injuries with the knife. Some of the blows fell in the public region also, as a result of which intestines protruded. He also suffered injuries at the head, back, neck, abdomen and legs. The complainant and Rehman (P.W.) accompanied by Waryam (given up P.W.) reached the spot and witnessed the occurrence. They rescued Wali Muhammad beseeching the accused. The deceased was removed to the Civil Hospital Lundianwala in injured condition. Motive for the occurrence mentioned in the F.I.R. is that three months prior to the occurrence, Wali Muhammad had given fist blows to Yaqub and Nausher on their sheep having damaged his crop and that the accused had attacked him for avenging the same.

6. Wali Muhammad died in the hospital at 7-45 a.m. on 1-6-1983. Dr. Muhammad Mu6ir Subhani (P.W.1) sent the information regarding that to the police station vide Ruqqa (Exh. P.B.). Dr. Muhammad Munir Subhani on medical examination of Wali Muhammad (whilst alive) at 1-15 a.m. on 31-5-1983 noted following injuries on his person: (1) An incised penetrating wound 2.5 c.m. x 0.25 c.m. x bone deep at the right side of the forehead 3 c.m. above the right eyebrow. (2) An incised wound, 2.5 c.m. x 0.15 c.m. at the right side of neck. (3) An incised wound, 1 c.m. x 0.15 c.m. x 1.5 c.m. at the left and frontal of chest, 2.5 c.m. above and right side of nipple. (4) An incised wound, 1.5 c.m. x 0.2 c.m. x 1.5 c.m. at the palmer side of wrist of right forearm. (5) An incised wound, 3 c.m. x 0.25 c.m. x 1.5 c.m. at the right wrist 2.5 c.m. below injury No.4. (6) An incised wound, 3 c.m. x 0.25 c.m. at the back of right wrist. (7) An incised wound, 3.5 c.m. x 0.25 c.m. x 4.5 c.m. the peritoneum was cut. The intestines were out and internal haemorrhage had occurred. The point of injury was right lower abdomen (appendix region). (8) A lacerated wound, 4 c.m. x 3 c.m. bone deep, at the left shin lower leg. (9) An incised wound 2 c.m. x 0.15 c.m. at the palmer side of the left hand below the thumb. (10) An incised wound 1 c.m. x 0.15 c.m. at the palmer side of the left hand 4 c.m. away from injury No.9 on the inner side. (11) An incised wound, 2 c.m. x 0.15 c.m. at the back of left forearm in the middle. (12) An incised wound 1.5 c.m. x 0.15 c.m. x 5 c.m. deep at the middle and back of chest. . (13) Two incised wounds of the size of 1.25 c.m. and 1 c.m. at the back of chest 9.5 c.m. above injury No.12. (14) An incised wound, 1.5 c.m. x 0.2 c.m. bone deep at the right gludeal region. (15) An incised wound, 2 c.m. x 4 c.m. below injury No.14. (16) An incised wound 3.5 c.m. x 0.25 c.m. x 2 c.m. at the back of right thigh 3 c.m. below injury No.14.' Injury No.7 was declared grievous. Injuries Nos.l, 3, 8, 12 and 13 were kept under observation. Duration between examination and injuries was opined to be 5 to 8 hours. Except injury No.8, the other injuries were opined to have been caused by a sharp-edged weapon. The same doctor on expiry of Wali Muhammad performed post-mortem examination on 1-6-1983 at 11 a.m. On opening the skull, he found the same fractured. Left lung was also found ruptured. Blood vessels in the peripheral part were also found collapsed. According to his opinion, the death had occurred due to collapse of peripheral vascular, and shock caused by multiple injuries, grievous injury, excessive blood loss, haemorrhagic in the brain with skull fracture, peritoneal infections and rupture of left lung.

7. Ghulam Haider, S.I. (P.W.11) who was entrusted with the investigation of the case on 30-5-1983, visited the spot on the same day, and collected blood stained earth from where vide memo. Exh. P.H. He submitted application (Exh. P.E.) to the Medical Officer on 1-6-1983 soliciting opinion if Wali Muhammad was fit to make statement. The doctor expressed opinion that `the patient is not tit for statement'. This opinion was given by the doctor at 6-30 a.m. on 1-6-1983. All the accused were arrested by him (Ghulam Haider, S.I.) on 15-6 1983. On the same day Yaqub led to the recovery of blood-stained knife (P.3). It was taken into possession vide memo. Exh. P.K. The S.I. during cross-examination stated that after having recorded defence evidence, he had declared Shahmand, Ahmi, Noshi and Fattu as innocent. He added that the S.H.O. had also agreed with him after investigation. He also stated that D.S.P. also concurred whit his finding in this regard. In answer to a question about the recovery proceedings of knife at the instance of Yaqub, he stated that the same was effected at 6 a.m. on 15-6-1983 and that the recovery witnesses, i.e. Sher Ali (P.W.8) and Muhammad Yaqub (given up P.W.) had appeared before him voluntarily. He added that the witnesses had met at the place from where he had started for recovery. Sher Ali (P.W.8), when examined by the prosecution to prove the A recovery of knife at the instance of Yaqub (appellant) stated during cross examination that the knife was recovered from Yaqub appellant about 2/3 days after the occurrence. He added that he was summoned by the Police Officer through a constable when the police party was at Adda of Chak No.630/GB. His village was at a distance of 2/3 Killas from there. According to him, the recovery was effected at 10 a.m. He explained that Yaqub appellant resided in the house from where the recovery was effected alongwith his three other brothers.

8. The ocular account was deposed to by Salabat (P.W.9) and Rehma (P.W.10) Salabat repeated the facts given by him in tine F.I.R. He added that Rehma and Waryam had accompanied Wali Muhammad to the hospital while he had proceeded to the police station for making the report where he made statement (Exh. P.E.) and attested the same. He also claimed to have identified the dead body at the time of post-mortem examination. During cross examination, he denied any relationship with Rehma and Waryam P.Ws. The suggestions put in this regard were rebutted by him. While explaining the presence of Rehma and Waryam P.Ws. near the place of occurrence, he stated that they were cultivating the land of Bahawal son of Bakhtiar, which was situated in Square No.14. According to him, Wali Muhammad before proceeding to see his maternal had first gone to the Mari where from he had come to them in Killa No.20 for feeding his animals. He added that he had sat with them for a short while and then went to see his maternal. He also stated that Rehma and Waryam P.Ws. were sitting with him there at that time. He expressed inability to say whether Rehma and Waryam had come to them before the arrival of the deceased or after his arrival. He denied the suggestion that the place of occurrence was not visible from their Dhari, as some plants of Sarkandas intervened between the two places. In answer to another question, he stated that while running to the spot after hearing alarm of Wali Muhammad they had not picked up any weapon and had l 'one there empty handed. He stated that Wali Muhammad was lying on the groi pd before their arrival at the spot and was given 2/3 injuries by Yaqub appellant ilt that state in their presence. He conceded that many persons, on hearing alarm, f had run to the spot from surround places. He gave the name of one Sanatta cot of them but expressed inability to give the names of others. He stated that I pndianwala was at a distance of 7/8 Killas from the spot, that they had taken V/ali Muhammad to Pucca road on a cot at a distance of two squares from that spot, where he was placed on a trolly and removed to Chak No.4. There he ,vas placed in a wagon and taken to the hospital. He added that from Chak No.4 he had gone to the police station on a tonga accompanied by Lambardar anil Chowkidar of their Chak, while the others (Rehma and Waryam P.Ws. accompanied by 5/7 other persons) had taken Wali Muhammad to the hospital. In answer to another question, he stated that they had reached the police station at about 8-30 a.m. and that the police had reached the spot after registration of t1 r, case and had gone to the hospital on the following day of the occurrence' He admitted that Wali Muhammad deceased had been tried alongwith others artier in a murder case but was acquitted. He denied the suggestion that he had not witnessed the occurrence and had launched a false report after consultations, only, on suspicions. Rehma, who appeared P,W.10, stated that he had reached the spot alongwith Salabat (P.W.9) and Varyam (given up P.W.) on hearing alarm and had witnessed the occurrence corroborated the statement made by Salabat P.W. with regard to the parts placed by the accused individually. He claimed that before the occurrence, he was w irking in the land alongwith Waryam (given up P.W.) in Square No.14. During' cross-examination, he denied any relationship with the complainant and Wall He stated that Waryam and he were cultivating lands separately in Sdi are No.14. He stated that Wali Muhammad was not with him before proceeding jo the spot and passed from a distance of two acres from the place where he w s working. According to him, Wali Muhammad was lying at the spot when they reached there and the accused were 5/7 Karams away from him. In answer to a ;other question, he stated that the police had recorded his statement at about 6 a.m. His claim of having made statement before the police about Salabat I.P.W. having witnessed the occurrence was not found true on being confronted with his statement Exh .DA. The name of Salabat did not find mention there. It i: worth noticing here that the name of Salabat P.W. does not find mention in the site plan (Exh.P.G./1) prepared on 6-6-1983 at the pointing out of the witnesses and in the rough sketch of the place of occurrence (Exh. P.L.) prepared by Ghulam Haider S.I. (P.W.11) on 30-5-1983. The statements of the r,ncaining witnesses more or less are of a formal nature. It is, however, worth noticing here that none of the police witnesses including Muhammad Hussain, II_C. (P.W.2), who was working as Moharrir at the relevant time, stated that Ghulam Haider, S.I. or for that matter any other Police Officer had deposited the parcel pertaining to the recovery of knife at the instance of Yaqub appellant in the Malkhana of the police station.

9. The appellants as well as the acquitted accused during statements under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence.

10. Learned counsel for the appellants, after having taken us through the evidence contended that the prosecution has failed to prove the case against the appellants, that the P.Ws. (9 and 10) do not appear to have witnessed the occurrence and there is enough material on record to destroy their claim of being present at the time of occurrence. He challenged the veracity of recovery of knife at the instance of Yaqub appellant and contended that the same appears to have been planted.

11. Learned counsel for the State/complainant defended the judgment of the trial Court and submitted that although the complainant was real brother of the deceased but he did not try to burden the accused, other than Yaqub, with liability of any particular injury to the deceased and that Rehma P.W. was an independent witness being not connected with the complainant in any manner.

12. Learned counsel for the complainant while arguing the revision petition contended that there are clear observations in the impugned judgment to consider that the acquittal of Shahmand alias Shaman was erroneously ordered instead of Noshi.

13. The evidence of recovery of knife, in our view, is not worth believing. In that, as noted in the earlier part of the judgment, there is contradiction between the two witnesses examined in this regard about the day after which the recovery was effected, the time of recovery and the manner and the place where the witnesses joined the Police Officer before the recovery actually was effected. Sher Ali (P.W.8) while stating time when the recovery was effected, gave the same to be 2/3 days after the occurrence. The appellant Yaqub from whom the recovery was effected had not been even arrested by that time. He, in fact, was arrested some fifteen days after the occurrence.

14. There is enough material on record to hold that the F.I.R. in this case was not recorded as claimed by the Investigating Officer. According to the record, the F.I.R. was recorded at 9-10 p.m. on the day of occurrence i.e. 30-5-1983. It is on record that the deceased had been taken to the hospital for examination at 1 a.m. during the same night, i.e. 30/31-5-1983. Salabat complainant while giving account of the occurrence stated that he alongwith other P.Ws. and some persons had lifted the deceased in injured condition from the spot to the Pucca road on a cot wherefrom he was taken upto Chak No.4 on a trolly; therefrom he was taken in a wagon to Lundianwala Hospital. He gave out that from Chak No.4, he proceeded to the police station while the others including P.Ws. took the injured to the hospital. The hospital and the police station both are situated at Lundianwala town. The injured was taken from Chak No.4 to Lundianwala on a wagon. He could, therefore, not have reached the police, station four hours prior to the arrival of the injured in the hospital, on a Tonga, and lodged the F.I.R. The recording of F.I.R. therefore, at 9-10 p.m. on the same day, i.e. four hours before the arrival of the injured in the hospital, is unbelievable. The timing recorded in the F.I.R. appears to be incorrect on other account also. In that, Salabat P.W. during cross-examination stated that they had reached the police station at about 8-30 a.m. and that the police had reached the spot after registration of case and gone to the hospital on the following day of the occurrence. If the complainant had gone to the police station on the following morning of the evening of the occurrence, how could the F.I.R. have been recorded same evening?

15. The Investigating Officer had submitted application (Exh. P.W.) to the doctor at the hospital for soliciting opinion, whether Wali Muhammad was fit to make a statement on 1-6-1983. Had the case been registered on 30-5-1983 at 9-10 p.m. the Police Officer would have gone to the hospital either on the same night or at some time on the following day i.e. 31-5-1983. All these facts lend support to the contention of the learned counsel for the appellants that the F.I.R. in this case was not recorded as' claimed by the prosecution and it was recorded after consultations and deliberations with ante dating the same.

16. The contention that Salabat and Rehma P.Ws. had not witnessed the occurrence and were later introduced as eye-witnesses also finds support from the record. The justification given for the presence of Rehma and Waryam P.Ws. near about the place of occurrence, for being tenants of Bahwal of the land he owned in Square No.14 stands demolished by the statement of Muhammad Amin Shah, Revenue Patwari (P.W.6), who categorically stated that Rehma and Waryam had not cultivated any land from Squares Nos.14 and

15. The two witnesses, i.e. Salabat and Rehma contradicted each other about B the manner and the place from where the deceased had proceeded to his maternal when he was attacked on way. In that regard, Salabat stated that Wali Muhammad had started at Degarwela to see his maternal-relatives and that before proceeding he had fed his animal at his Dhari and had stayed with him for a shortwhile, where Rehma and Waryam had also sat with them. This sequence of the events was denied clearly by Rehma, who stated that Wali Muhammad had passed from distance of two acres from them while going to his maternal. He categorically stated that Wali Muhammad had not sat with him, where he was working. There is also contradiction about the state in which both of them saw the accused when they reached the spot. In that regard Salabat stated that when they had reached the spot, Yaqub had given 2/3 blows in their presence and then all had run away, while Rehma stated that the deceased was lying on the ground while the accused were standing 7/8 Karams away from the deceased when they reached. The presence of Salabat P.W. at the spot also stands disproved through documentary evidence. In that regard reference can be made to statement (Exh. DA.) of Rehma, where he was not found to have stated about Salabat having witnessed the occurrence. The name of Salabat P.W. also does not find mention in the rough sketch plan (Exh. P.L.) prepared by Ghulam Haider, S.I. (P.W.11), on visit to the spot on 30-S-1983. His name is also not mentioned in the site plan (Exh.P.G./1) prepared by Muhammad Amin Shah, Patwari (P.W.6) on 6-6-1983.

17. The ocular account furnished by these two witnesses is also contradicted in a way by the medical evidence. In that, their stance is that the deceased was inflicted injuries by Yaqub when 'he had been taken into clasp by two accused. According to the injuries noted by the doctor, the deceased had suffered two injuries on the palmer side of the left hand, one injury on the palmer side of the right forearm, two injuries clearly give a -picture that the deceased had been making efforts to ward off the blows. Had he been taken into custody before infliction of injuries, he could not have put up that resistance.

18. Apart from the contradictions in the ocular account and the obvious shortcomings in their testimonies, their statements, even otherwise, do not inspire confidence and the same cannot be safely relied upon to maintain conviction on a capital charge.

19. The evidence of motive, even if believed, cannot lead to conviction. All that can be said, about that, is, that the complainant might have entertained strong suspicions against the appellants having committed the occurrence.

20. For all the reasons noted above, this appeal is allowed and the appellants are acquitted.

21. In view of our above-noted findings, the revision petition fails and is hereby dismissed. SA./M-2048/L Appeal accepted.