1988 P Cr (PLP)

SARDAR MUHAMMAD DOGAR, J.‑‑Flit (E x.PA/1) was registered at Police Station Kallur Kot at 8.15 p.m. on 3‑10‑1981, by Muhammad Latif, MHC (PPJ 1), on receipt of statement (Ex.PA) of Ghulam Qasim (PW 3), recorded by Muhammad lqbal, ASI (PW 12) on the same day at 8 p.m. at Bus Stand Kallur Kot, at a distance of about six miles from the place of occurrence and one kilometre from the police station.

2. According to the FIR, the complainant accompanied by his deceased brother Ranjha and his other brother's son Atta Muhammad, had reached near Basti Khadar Dakhli Umerwali, at Degarwela on way back to their home, after having a round of their crops, in Umerwali Dagger Dath, when Sohna came out from behind the Sarkandas armed with a gun. He fired a shot after raising Lalkara to Ranjha that his end has come. Ranjha fell down after being hit. Thereafter, Ghulam Muhammad, Khanna, Ghulam Haider and Saddra, armed with knives appeared from behind cut Kondar lying there raising Lalkaras that you will not be spared today Ghulam Muhammad and Khanna gave one blow each on the chest of Ranjha with the knives. Thereafter, all the four caused injuries to the deceased while raising Lalkaras, on different parts of the body of the deceased, including neck and head. Sohna then brought out a knife from his pocket and started cutting the neck of the deceased. When both of them, i.e. complainant and Atta Muhammad made Hal Boo Boo the accused threatened them that they will be dealt with in the same fashion, if they dared to intervene. The assailants went away raising Lalkaras. The complainant and Atta Muhammad went near Ranjha and found that he had already expired. Leaving Atta Muhammad near the dead body of Ranjha, complainant left for police station after taking his brother Aurangzeb and relations Haji Nawaz Khan and Ghulam Muhammad with him. Motive for the occurrence was that Muhammad Hussain alias Mamma, a real brother of Ghulam Muhammad accused and real maternal uncle of Sohna and Khanna accused was murdered seven years before the occurrence. Ikramul Haq etc, five persons, who were challanged in the case, were acquitted. The accused in this case, however, suspected that Ranjha had murdered Mamma. In this connection mother of Sohna accused and sister of Ghulam Muhammad accused had filed a complaint against Ranjha etc.

3. Muhammad Iqbal, ASI (PW 12) after recording the statement (Ex.PA), reached the spot. He despatched the dead body for post‑mortem examination, after preparing injury statement (Ex.PM) and inquest report Ex.Pii/1, recorded the statements of the PWs and postponed the inspection of spot to next day. On the following day, he collected blood‑stained earth and an empty from the spot, vide memos. Exs.PC and PD, respectively. Ghulam Muhammad while in custody, led to the recovery of knife (P. 6) on 15‑10‑1981, which was taken into possession vide memo. Ex.PH. Ghulam Haider accused while in custody led to the recovery of knife (P.8) on 22‑10‑1981, which was taken into possession vide memo Ex.PK.

4. Nazir Ahmad, SI (PW 14) had also investigated the case. Sohna accused while in his custody led to the recovery of gun (P.2) alongwith three live cartridges on 15‑10‑1981, which were taken into possession vide memo. Ex.PE. He also led to the recovery of knife (P.4), on the same day, which was taken in possession vide memo. Ex.PF. Saddra accused while in his custody got recovered knife (P.7) on 22‑10‑1981, which was taken into possession vide memo. Ex.PJ.

5. Muhammad Khan while in custody of Muhammad Siddique, SI (PW 9) got recovered knife (P.5) on 15‑10‑1981, which was taken into possession vide memo. Ex.PG. After completion of necessary investigation challan was put to Court.

6. Fourteen witnesses were examined at the trial by the prosecution. Positive reports from the offices of the Chemical Examiner, Serologist and that of the Forensic Science Laboratory were also tendered in evidence.

7. The learned Sessions Judge, Bhakkar, who had tried the case, acquitted Ghulam Muhammad, Saddar Din and Ghulam Haidar alias Haidra vide judgment dated 30‑4‑1985. The learned trial Judge vide the same judgment convicted Sohna and Muhammad Khan Khanna under section 302/34, PPC and sentenced Sohna to death and Muhammad Khan alias Khanna to imprisonment for life.

8. The convicts have filed appeal. The learned Sessions Judge has made reference for confirmation of sentence of death awarded to Sohna. The State has filed appeal against the acquittal of Ghulam Muhammad, Saddar Din and Ghulam Haider. As all the matters arise from the same judgment, they are being disposed of by the ensuing judgment.

9. Dr. Rashid Ahmad, who had performed autopsy on the dead body of Ranjha appeared as PW‑

5. He had noted in all 24 injuries on the body of the deceased, fifteen of which were incised wounds on different parts of the body including chest, five stab wounds, some of which were also on the chest, three abrasions and one fire‑arm injuries on the abdomen, with blackening around the seat on injury. According to the opinion of the doctor, death was due to injuries to the viscere (small intestines, right kidney, both lungs, liver and structure of neck) and heamorrhage, due to injury Nos.10, 12, 15, 16 and 18, which were opined to be sufficient to cause death in the ordinary course of nature. Probable time between death and injuries was opined to be five minutes and between death and post‑mortem 16 to 18 hours. During cross‑examination, the doctor conceded that originally he had given time between death and post‑mortem examination to be 14 to 16 hours.

10. The ocular account was deposed to by Ghulam Qasim complainant (PW 3), Atta Muhammad (PW 4) and Muhammad Ilyas (PW 6). Ghulam Qasim re‑narrated the facts given by him in the FIi

3. In addition, he stated that he had failed to name Ilyas as an eye‑witnesses in the FIR, because of murder of his brother. During cross‑examination, he admitted that Ghulam Qadir father of Saddra and Ghulam Haider accused had taken possession of some of their land some time back. In answer to another question, he stated that house of Ilyas PW was at a distance of 70/75 karams from the spot and there were 50/60 other houses adjacent to the house of Ilyas. He stated that none of the inmates of those houses had come to the scene at the time of occurrence. In fact, he did not state if anybody else had come to the scene of crime even after the occurrence. He stated that the deceased writhed with pain when blows were being given to him and that they and the deceased had raised hue and cry. He denied the suggestions that the deceased had been surprised by his son (deceased) Makhna in compromising position with his (Makhna's) wife or that Makhna had threatened his father. The suggestion that Ranjha had many enemies and he had been done to death by some unknown person during night and that he had been called from Kallur Kot, were also denied by him. Atta Muhammad (PW 4) corroborated the statement made by PW‑

3. During cross‑examination, he stated that they had inimical relations‑with the accused for the last eight years. He admitted that he owned a house near Railway Station Kallur Kot, which was at a distance of nine miles from Umarwali. In answer to another question, he stated that many persons had seen them in the fields, which included their tenants. He specifically gave the names of six persons in that connection. He stated that, "Ilyas had also come near the dead body, as we did and before Qasim left for the police station. According to him the sun had set 1 hours after the occurrence. Muhammad Ilyas, who corroborated the statements made by PWs 3 and 4, stated that Sohna had asked his other co‑accused to stay back when he had cut the throat of the deceased. In answer to another question, he stated that he was not present at the spot when the police had arrived there. Muhammad Iqbal, ASI (PW 12), who was the first police officer to visit the spot stated in cross‑examination that when he had prepared the inquest report, no eye‑witnesses was present except the complainant and that he had not examined any eye‑witnesses except the complainant before preparing the inquest report. In answer to another question, he stated, "I know that before the inquest report is prepared the witnesses who are familiar with the case must be examined under section 174, Cr.P.C." Evidence of weapons of offence from various accused was deposed to by Mehrban (PW 7), Amanullah (PW 8), Muhammad Siddique SI (PW 9), Muhammad Iqbal ASI (PW 12) and Nazir Ahmad, SI (PW 14). Muhammad Yunus Constable who had transmitted sealed parcels to the offices of the Chemical Examiner and the Forensic Science Laboratory had appeared as P.W.

11. According to him, the first parcel handed over to him for transmission to the office of the Forensic Science Laboratory on 18‑10‑1981 alongwith other parcels for the office of the Chemical Examiner were deposited by him in the relevant offices on 19‑10‑1981. He stated that the parcel pertaining to gun was handed over to him on 11‑11‑1981, which he had delivered in the office of the Forensic Science Laboratory on 12-11‑1981.

11. The convict appellants as well as the respondents in the State appeal during their statements under section 342, Cr.P.C, denied the prosecution case as a whole. They denied the alleged recoveries, pleaded innocence and took up the plea of false involvement due to enmity with the complainants.

12. We have heard the arguments of the learned counsel for the parties at length and gone through the evidence and the impugned judgment. Ghulam Qasim (PW 3) is admittedly real brother of the deceased while Atta Muhammad (PW 4) is the son of real brother of the deceased as well as the complainant. Name of Muhammad Ilyas (PW 6) was not mentioned in the FIR and first time his name was mentioned by the complainant, after the despatch of dead body, in the supplementary statement said to have been made by him before the police officer after 11.30. p.m. on 3‑10‑1981. The explanation advanced by the learned counsel appearing for the State that the complainant might have failed to notice the presence of Ilyas PW from a distance of 50 karams wherefrom he witnessed the occurrence, according to PW‑

4. The reason being that same PW also stated, that Ilyas had reached near the dead body of the deceased in the presence of Ghulam Qasim, before the latter had left for the police station. If Ilyas was there at that moment, as stated by Atta Muhammad, Ghulam Qasim could not have failed to notice his presence, because as that moment apart from the dead body, they were the only persons present there. The explanation given by the complainant that he had failed to give the name of Ilyas, as his brother had been murdered, is also not impressive, in that he has specifically stated in the FIR that:‑ He also stated in the FIR as under:‑ He has candidly given the name of Atta Muhammad being there and of having left him to guard the dead body. While stating this fact, he could not have forgotten mentioning Ilyas, if he had been there.

13. Muhammad Ilyas PW himself also stated in cross‑examination that he was not at the spot when the police had arrived there and he had come to the spot being summoned by the police. Had he been there, he would not have left the spot leaving Atta Muhammad alone with the dead body in a secluded place. In the circumstances, we have no doubt that Ilyas had no witnessed the occurrence and his name had been introduced later to strengthen the case of the prosecution.

14. There is material on record which lends support to the argument of the learned counsel for the appellants as well as respondents in the State appeal that even the complainant and Atta Muhammad PW had also not, witnessed the occurrence and that it was an unwitnessed occurrence. Reference in this connection can be made to the statement 'of Muhammad Iqbal, ASI, during cross‑examination, that no eye‑witness was present when he had reached the spot. We cannot believe that if Atta Muhammad had witnessed the crime and had he been at the spot, he would have left the dead body of his uncle unattended in a lonely place, where anything untowards could have happened, as it was a secluded place and darkness had set in. In fact, the presence of PW‑3 as well as PW‑4 both at the time of occurrence seems to be highly doubtful. Apart from the reasons noted above, creating doubt about the presence of Atta Muhammad at the spot, the other important aspect which makes the presence of both the witnesses at the spot highly doubtful, is, that had they been there, the assailants might not have murdered the deceased so brutally, even if these witnesses had not dared to intervene, they could have at least tried to get the help of persons residing only 70 karams away from the place of occurrence. (It has been stated by Atta Muhammad PW during cross‑examination that there were 50/60 houses near the house of Ilyas, which was at a distance of 70 karams). The number of injuries show that the occurrence would not have ended in few minutes. Twenty‑four injuries in all were inflicted. There were incised wounds, stab wounds and abrasions as well, beside the gunshot. It must have taken some time to the assailants to cause those injuries. The deceased himself must, as a natural reaction would have resisted and so some time must have been consumed in the infliction of injuries by the assailants, and above all, the attack, according to the prosecution, was opened by a shot fired by one of the accused. The shot naturally would have given quite a loud sound to attract persons from nearby and if the statement of PW‑4 is correct that they had met many persons including the tenants in the fields, some of them should have come to the place of occurrence and P.Ws 3 and 4 would have noted them and named them as witnesses. According to the Jantri of 1981, the sun set time on 3‑10‑1981 was 17.48. The occurrence, according to the prosecution, had taken place one and a half hours before that which means, the occurrence took place at about 16.15. If the occurrence had taken place at the said time, the statement of the complainant would not have been recorded by the ASI at 8 p.m. The complainant would have reached the police station much before 8 p.m. because according to PWs 3 and 4 both the complainant (PW 3) had started for the police station few minutes after the occurrence. He would not have taken more than one and a half hours to cover the distance of six miles even on foot. Had he reached earlier, the occurrence would have been reported earlier. The recording of the statement at 8 p.m. shows that the occurrence had not taken place at the time alleged by the prosecution . This fact finds support from the admission made by Dr. Rashid Ahmad (PW 5) during cross‑examination that had originally written "within approximately 14 to 16 hours" in the column, 'probable time that elapsed between death and post7mortem'. The occurrence per this opinion would have taken place between 6‑45 p.m. to 8‑45 p.m. i.e. quite after some time after sunset.

16. For all the reasons noted above, doubts have arisen in our mind about the occurrence having been witnessed by PWs. 3,4 and

6. The evidence of wedding of gun recovered from Sohna with the empty said to have been recovered from the spot, also is of not much consequence, as empty was not sent to the Expert till three days after the gun had been obtained. The evidence of recovery of knives, which although does not seem to be sound, even if believed, cannot advance the case of the prosecution, in view of the conclusion arrived at about the presence of the eye‑witnesses at the spot. The appeal filed by the convicts is, therefore, allowed and their convictions and sentences are set aside. The appeal filed by the State against the acquittal of the respondents also fails, in view of the reasons noted above. S.A./S‑149/L Appellants acquitted.