1987 P Cr (PLP)

Date of hearing: 21st February, 1987. Briefly stated the facts of this case are as follows:‑‑ About 10/12 years earlier Khushi Muhammad deceased married Mst. Shahnaz Akhtar. She was the daughter of Muhammad Din who had about 12 Acres land in Baig Chak, District Gujranwala. After the death of Muhammad Din this property devolved upon Mst. Shahnaz Akhtar and Riasat Ali the only son of Muhammad Din. About 10 years earlier Riasat Ali by producing another woman before Revenue Authorities got the land of Shahnaz Akhtar mutated in his name. A suit was consequently filed by Khushi Muhammad against Riasat Ali, in which decree to the extent of 5‑ 1/2 acres was passed in favour of Mst. Shahnaz Akhtar. The said land was under cultivation of Ghulam Haider and Ali Muhammad as tenants. However, after decree Khushi Muhammad obtained possession of the said land from them. He was cultivating the same himself since about 2 years before this occurrence. About one month before the present occurrence, Khushi Muhammad had gone to village Baig Chak for cutting of wheat crop. On 7‑ 6‑ 1983 Inayat Ullah complainant was informed by Inayat Ullah son of Sardar that on the previous night at about 8/9 p.m. his brother Khushi Muhammad was murdered by some unknown persons in the wheat field about one mile towards North‑West of Baig Chak. On receipt of this information lnayat Ullah complainant son of Ghulam Muhammad went to the spot alongwith Muhammad Ashraf and Muhammad Bashir. He found the dead body of his brother Khushi Muhammad lying there. He, leaving the dead body in the care of Ashraf and Bashir, went to police station Qilla Deedar Singh, District Gujranwala about six miles from the place of occurrence and lodged F.I.R. Exh. P.C. on 7‑6‑1983 at 6‑30 a.m. recorded by S.I. Mian Khan P.W. 13.

2. The Investigating Officer S.1 Mian Khan P.W. 13 after registration of the case undertook investigation. The dead body of Khushi Muhammad aged about 45 years was sent for post‑mortem examination which was conducted by P.W. 8 Dr. Shahnawaz at 3‑15 p.m. on 7‑6‑1983. On external examination the Medical Officer found "an incised wound 9 c.m. x c.m. x cutting the bone obliquely on the left cheek started from middle part of left ear towards the left angle of mouth ending at 5 c.m. before the angle". There was fracture of base of skull and temporal bone cutting left mastoid process, left side of mendable upper part. The injury had been caused by sharp‑edged weapon and was of grievous nature. The death was due to shock and haemorrhage as a result of this injury which was sufficient, in the ordinary course of nature, to cause death. The time between injury and death was sudden and post‑mortem was conducted after about 12 to 24 hours of death.

3. S.I. Mian Khan P.W. 13 during inspection of the spot on 7‑6‑1983 collected blood‑stained earth from the place of occurrence vide memo. Exh. P.G. Muhammad Abbas 18, Riasat Ali 35 and Muhammad Javed 19, the three accused after some investigation were arrested on 16‑6‑1983. Riasat Ali accused at the time of his arrest was found wearing blood‑stained Shalwar P. 6 and blood‑stained Kurta P. 7 which were taken into possession vide memo. Exh. P.E. by S.I. Mian Khan P.W. 13 in presence of Muhammad Nawaz P.W. 7 and Inayat Ullah son of Sultan P.W. not examined.

4. On 16‑6‑1983 Riasat Ali accused while in police custody led to the recovery of the blood‑stained Kulhari P. 5 from his Dhera which was taken in possession vide Memo. Exh. P.D. by S.I. Mian Khan P.W.13 in presence of Muhammad Nawaz P.W. 7 and Inayat Ullah son of Sultan P.W. not examined. On the same day at the time of arrest, the person of Muhammad Abbas accused was searched. Purse P. 4 belonging to Khushi Muhammad deceased was recovered from pocket of his shirt. Purse P. 4, Shirt P. 9 and Shalwar P.8 of Ghulam Abbas accused, both blood‑stained, were taken in possession vide memo. Exh. PL by S.I. Mian Khan P.W. 13 in presence of same witnesses. The blood‑stained hatchet and clothes of the two accused were found stained with human blood vide report of Chemical Examiner P.M. and that of Serologist Exh. P.Q. The three accused were challaned.

5. The accused during the trial denied the charge and pleaded innocence. They denied incriminating recoveries. They did not produce any evidence in defence. The learned Additional Sessions Judge Gujranwala placed reliance on the evidence of motive. Incriminating recoveries, extra judicial confession, and Wajtakar witnesses and vide impugned judgment dated 17‑10‑1984 sentenced Muhammad Abbas and Riasat Ali accused to imprisonment for life and fine of Rs.5,000 or in default two years' R.I. under section 302/34, P.P.C. It was ordered that half of the fine, if recovered, will be paid as compensation to the heirs of Khushi Muhammad deceased. Muhammad Javed accused was acquitted by the same judgment. Muhammad Abbas accused filed Criminal Appeal No. 577 of 1984 to challenge his conviction and sentence Riasat Ali accused filed Criminal Appeal No. 33‑J of 1985 through Jail to challenge his conviction and sentence. Both the appeals, being directed against one judgment will be disposed of together. I have carefully gone through the evidence on record. The evidence on motive, during the trial was furnished by P.W. 3 Inayat Ullah son of Ghulam Muhammad a real brother of Khushi Muhammad. It was stated by P.W. 3 Inayat Ullah son of Ghulam Muhammad that when he went to the place of occurrence he found Muhammad Arif, Muhammad Shafi, Muhammad Inayat Khan son of Sardar Khan and Ghulam Rasul P.W. present there: that these P.Ws told him the names of the assailants and he was already in the know of murderers of Khushi Muhammad deceased; that his statement was recorded at the police station, that the police immediately left the police station for the spot and that after thorough interrogation at the spot, his statement was recorded which he thumb marked. This admission by Inayat Ullah P.W. 3 indicates that the F.I.R. was recorded by the police after some preliminary investigations. It also proves that P.W. 3 Inayat Ullah came to know the names of the assailants of his brother at the spot but in spite of that he did not disclose their names while reporting the matter vide F.I.R. Exh. P.C. In cross‑examination he stated that he was not aware as to when Shahnaz and her brother Riasat Ali accused inherited the land of their father. He however, admitted that his brother got back the land through civil suit about 4/5 years before this occurrence. He further admitted that Khushi Muhammad some time used to stay in his house and some time in the said village. He stated that Khushi Muhammad himself used to cultivate the land in Baig Chak. It is, therefore. clear from the statement of this witness that the alleged property dispute was finally settled about 4/5 years before this occurrence and that the said land was in self‑cultivation of Khushi Muhammad. No occurrence is stated to have taken place between Riasat Ali accused and Khushi Muhammad deceased during all this period. It is also in evidence of this witness that Mst. Shahnaz before marriage with Khushi Muhammad deceased was married to another, person from whom she got divorce. It was stated by him that the expenses of the divorce litigation were borne by them whereafter Khushi Muhammad married Shahnaz. He further stated that no regular Barat was taken to the house of Shahnaz by Khushi Muhammad and that he had not seen Riasat accused participating in the said Nikah ceremony. This means that Mst. Shahnaz was enticed by Khushi Muhammad from the house of her previous husband. She got divorce and then married Khushi Muhammad to the annoyance of her previous husband. Khushi Muhammad, therefore, had other enemies, as well. The motive set up by the prosecution is far‑fetched. The copy of the judgment of Civil Court or the copies of the Revenue Record have also not been produced in evidence during the trial. In my view the prosecution has failed to prove motive against the accused. The incriminating recoveries from Riasat Ali and Muhammad Abbas appellants were witnessed by Muhammad Nawaz P.W.

7. In his examination‑in‑chief during the trial he stated that he had not noticed any blood on hatchet P.

5. The recovery memos Exhs. P.D. and P.E. were, prepared on 16‑6‑ 1983 when the accused were arrested. It does not appeal to reason that the accused would continue wearing blood‑stained clothes; for about 10 days after the occurrence. Secondly, it was admitted by P.W. 3 Inayat Ullah that "Riasat accused was arrested on the same day and his blood‑stained shirt and Shalwar were removed and taken in possession and they were made in sealed parcel". This statement indicates that Riasat accused was arrested on the day of registration of the case on 7‑6‑1983.'C This evidence is in conflict with the statement of P.W. 7 Muhammad Nawaz and the Investigating Officer ST Mian Khan P.W. 13 who stated that the accused were arrested on 16‑6‑1983. P.W. 7 Muhammad Nawaz did, not say a word about the recoveries from Muhammad Abbas accused or, preparation of the recovery memo. Exh. P.D. In my view the incriminating recoveries cannot be used as corroborating evidence against the two appellants. The evidence on extra‑ judicial confession was furnished by P.W.11 Ghulam Rasul and P.W. 12 Inayat Ullah son of Sardar Khan. I have gone through the evidence of these two witnesses. P.W.11 Ghulaln Rasul Member Union Council did not support the prosecution case. He was declared hostile. It was stated by him that none of the accused came to hint to admit their guilt. P.W. 12 Inayat Ullah son of Sardar Khan stated than only Riasat accused came to him at his Dera early in the morning and informed him that his brother‑in‑law Khushi Muhammad had been murdered and that he should help him. It was further stated by this witness that on the same day at Degar Wela Riasat accused again game to his Dera. He told him that he alongwith Jived and Abbas had murdered Khushi Muhammad further saying that he had given Kulhari blow to the deceased. In cross‑examination he stated that he already knew about the murder of Kliushi Muhammad and that he did not inform the police about extra‑judicial confession by Riasat. This witness, in his statement before police with which he was duly confronted did not state that "accused told me that he had murdered his brother‑in‑law Khushi Muhammad". The statement Exh.D.D. was recorded on 8‑6‑1983. Riasat accused allegedly confessed his guilt a day earlier to the recording or his statement under section 161, Cr.P.C. but in spite of that this witness did not produce Riasat Ali accused before the police on 7‑6‑1983 or 8‑6‑1983. In my view the evidence of this witness is not reliable. He has not been corroborated by any other evidence or witness. No reliance can, therefore, be placed on his evidence. The Wajtakar evidence has been furnished by P.W. 4 Nazar, Muhammad P.W. 5, Muhammad Shafi and P.W. 6 Muhammad Mushtaq. It was stated by P.W. 6 Nazar Muhammad that he had seen Riasat armed with hatchet alongwith 2/3 others passing from the canal bridge where he was present alongwith Mushtaq P.W. It was stated by P.W.5 Muhammad Shafi that he had seen Riasat Ali holding Kulhari alongwith 3/4 persons passing from near him. In cross‑examination he admitted that all the persons who passed from the place had muffled their faces. He also admitted that it was' Isha prayer time and that he had weak eye‑sight and that he did not use glasses. P.W. 6 Muhammad Mushtaq stated that he had seen Riasat Ali accused armed with hatchet alongwith 2/3 others passing from the canal bridge. He stated that the companions of Riasat Ali had muffled their faces. The evidence of three witnesses does not in any manner advance the, case of the prosecution. Mere fact that they had seen the accused passing from some place would not mean that they committed the murder of Khushi Muhammad. Their evidence does not connect the accused with the, present occurrence. The evidence of the rest of the witnesses was of formal nature.

5. In my view the prosecution has failed to prove its case against the accused. The two appeals are accepted. The conviction and sentence of Muhammad Abbas and Riasat Ali accused is set aside. They are acquitted. Riasat shall be released from prison forthwith if not required in any other case. Abbas shall be discharged from bail and surety bonds. S.A./G‑46/L Appeal accepted.