1988 P Cr (PLP)

MUHAMMAD SHARIF, J.‑‑This criminal appeal and the criminal revision, which are being disposed of by means of this single judgment, arise out of the judgment dated 20‑2‑1980 pronounced by Ch. Abdul Majeed, the then learned Sessions Judge, Bahawalpur, who had convicted the appellants under section 302/34 PPC for causing the death of Ghulam Mustafa, in furtherance of their Common intention, and had awarded them life imprisonment each. They were also fined Rs.2,000 each or to suffer three months' R.I. in default thereof. Each appellant was ordered to pay Rs.2,000 by way of compensation or in default thereof to suffer three months' R.I. as envisaged under section 544‑A Cr.P.C. The criminal revision is intended for the enhancement of sentence. Abdul Haleem, the alleged accomplice of the appellants was acquitted. The facts of this case, as embodied in the F.I.R. in substance, are that Sher Mohammad, the complainant, inherited 121 Acres of land in Chak No.89/D.B. in the year 1965. He purchased three Acres and one Kanal of land from his real paternal uncle Fateh Muhammad and a little later Khushi Muhammad his first cousin, also sold 61 Acres of land in favour of Sher Muhammad, the complainant, and Noor Mohammad Headman. Ata Muhammad, happens to be another first cousin of the complainant, and his wife Mst. Bashiran held 61 Acres of land which was jointly acquired by the complainant and Noor Mohammad Headman on lease about five years prior to this occurrence. The lease money was Rs.7,000 and the period of lease was for ten years. They were in possession of the said land as lessees since the last five years when on behalf of Mst. Bashiran, wife of Ata Muhammad, Abdul Haleem, the acquitted accused, the attorney of Mst. Bashiran, got half square of land for cultivation as a tenant. Ata Mohammad attorned to the complainant for two years and then Abdul Haleem persuaded Muhammad Yaqoob and Khadim Hussain appellants to take illegal possession of the same. On the instigation of Abdul Haleem, both the appellants took an unauthorized possession of the land of the complainant and did not pay the share of the produce to them. The complainant and his cousin Ghulam Mustafa had been asking the appellants, Abdul Haleem and Ata Mohammad to relinquish the possession of their land but they refused. Civil litigation was pending between both the parties regarding the said land. The appellants and Abdul Haleem nursed a grievance regarding the civil litigation.

3. On 27‑8‑1977 just before sun‑set, Ghulam Mustafa son of Sher Mohammad complainant had cut fodder from his land and was present near the fodder cutting machine when the appellants and Abdul Haleem reached there and over powered Ghulam Mustafa, a student of 10th class. All the three persons felled Ghulam Mustafa on the ground and sat on his body. Khadim Hussain and Muhammad Yaqoob pressed the throat of Ghulam Mustafa and Abdul Haleem held his legs. At that time, Sher Mohammad complainant was coming towards his land from the village and he saw this occurrence from a distance of two Acres where he heard the alarm of his son. Muhammad Hanif and Lal Din were present in their fields nearby and both of them witnessed this occurrence. They ran towards Ghulam Mustafa so that he could be extricated from the clutches of the appellants and when they neared the spot, the appellants ran away and Ghulam Mustafa died on the spot.

4. The F.I.R. was lodged by Sher Mohammad PW‑5, the father of Ghulam Mustafa deceased, at about 9‑0 p.m. which was recorded by Muhammad Saleem Akhtar PW‑

10. The appellants and Abdul Haleem were arrested on 28‑7‑1977 and nothing was recovered from them. The police had got the case cancelled by the Ilaqa Magistrate and the accused were discharged. But on a subsequent investigation, the challan of the appellants and Abdul Haleem was submitted. Abdul Haleem was acquitted whereas, as a result of the impugned trial, the appellants were awarded the aforementioned punishment.

5. Sher Mohammad PW‑5, who is the father of the deceased, has narrated the incident as stated in the F.I.R. with a variation that Yaqoob accused was sitting on the chest of Ghulam Mustafa and Khadim Hussain accused was pressing his neck. He has been confronted with his statement made in the F.I.R. and the variation is there. He posed ignorance about the fact whether Yaqoob, while sitting on the chest of the deceased, was pressing his neck or was beating him nor could he state whether Khadim Hussain had gagged the mouth of the deceased or he was pressing the neck of the deceased. In the site‑plan, the name of the complainant is not there.

6. Muhammad Hanif PW‑6 has stated that Khadim Hussain accused had placed his hands on the mouth of Ghulam Mustafa and was pressing his neck whereas Yaqoob accused was sitting on the chest of Ghulam Mustafa and they had reached the spot and seen this occurrence. He has admitted that Noor Mohammad, his father, is a partner of Sher Mohammad complainant in land and Sharif happens to be his brother. He has added that Mst. Hanifan, the wife of his brother Sharif, got registered a case against Yaqoob accused. In his earlier statement, the copy of which is Ex. D.A., he had stated that both the appellants were sitting on Ghulam Mustafa deceased whereas, before the police, he made a statement that Khadim Hussain had placed his hands on the mouth of Ghulam Mustafa. This statement was confronted and it was not found so recorded in Ex.D.A. He has deposed that the police had recorded‑ the F.I.R. on the spot and his statement was also recorded there.

7. Lal Din PW‑7 has testified that he was irrigating his land which is adjacent to the land of the complainant and, after hearing an alarm, he rushed to the spot and saw that Abdul Haleem was holding the legs of Ghulam Mustafa deceased and Yaqoob accused was sitting on his chest and Khadim had closed the mouth of the deceased with his hands and was also pressing his neck. He had not made this statement before the police and his a statement made before the police had been confronted with. He has admitted that he was a prosecution witness in the case initiated against Yaqoob accused at the instance of Mst. Hanifan. In this manner, none of the ocular witnesses is an independent witness.

8. Dr. Fazal Haq PW‑1 had conducted the autopsy on the dead body of Ghulam Mustafa and he could not find any mark of violence or any sign on the neck of the deceased. He referred the case to the Chemical Examiner and, after his report he made a subsequent report on 19‑10‑1977 after about two months that the death had occurred on account of suffocation. He has stated that he stood an inquiry regarding his report.

9. In this case, the F.I.R. is stated to have been recorded on the spot and the fair presumption is that the F.I.R. was recorded after preliminary investigation. The F.I.R. has lost its evidentiary value in this case. All the ocular witnesses are either interested or related to the deceased and their statements made before the police) vary with their statements made at the trial. We little believe the statements of the ocular witnesses. The medical evidence is of no avail to the prosecution case because no marks of violence or signs of throttling were visible on the neck of the deceased. No ligature mark was found on his neck. Had Ghulam Mustafa, who was a young man of 20 years, been throttled to death, he must have struggled to, save his life but on the spot no sign of struggle was found.

10. As regards the motive for the commission of this crime, the appellants were in an unauthorised p6ssession of the land of the complainant and the motive to harm the appellants was with the complainant and his son and the appellants had no motive to kill Ghulam Mustafa specially when the litigation was pending for about three years before this incident and during that period no untoward incident had taken place. The police had also got cancelled this case through the agency of the Magistrate and once got them discharged.

11. In the circumstances, the prosecution case has not been substantiated and we, therefore, accept this appeal and set aside the conviction and sentence ordered against the appellants and acquit them. The appellants may be set at liberty forthwith if not required to be detained in any other case. The revision petition for the enhancement of punishment stands dismissed on account of the acquitted of both the appellants. M.Y.H./K‑84/L Appeal allowed.