1985 P Cr (PLP)

Javed lqbal Adam for the State. Dates of hearing: 8th, 27th and 28th February, 1982. Din Muhammad, aged 90 years, was tried with his two sons Nazir, aged 26 years, Nazim, aged 22 years, and Khadim Hussain Gulfaz, aged 26 years, for committing the murder of Abdul Ghafoor and making murderous assault on Abdul Samad in Kills, No. 13, rectangle No. 254 in the area of Islampur, Police Station Dajal, District Dera Ghazi Khan at 7‑00 p.m. on 16‑6‑1977, by the Additional Sessions Judge, Dera Ghazi Khan, who by his order, dated 14‑11‑1979, acquitted Din Muhammad and Nazir but convicted Nazim and Khadim Hussain Gulfaz under section 302/34, P.P.C. and sentenced them to imprisonment for life and a fine of Rs.1,000 .each in default of payment of fine, to undergo simple imprisonment for three months each. Additionally they were convicted under section 326, P.P.C. and directed to undergo three years' R.I. each. The sentences of imprisonment were ordered to run concurrently. The fine, if realised, was directed to be paid in toto to Abdul Samad being the legal heir of Abdul Ghafoor, deceased.

2. Nazim filed Criminal Appeal No. 1340 of 1979 while Khadim Hussain Gulfaz filed Jail Appeal No. 602 of 1980. The complainant in this case filed Revision Petition No. 146 of 1980 for the enhancement of sentence of the aforesaid two appellants. All these matters will be disposed of by this consolidated judgment.

3. The prosecution story as given in the statement Exh.P.C. of Haji Muhammad (P.W.7), father of Abdul Ghafoor, deceased, is that at about noon time, his two sons, namely, Abdul Ghafoor, deceased, and Abdul Samad (P.W.8) were collecting the cut‑bushes in a field jointly owned by them with one Noor Muhammad. He was present in the nearby field alongwith Muhammad Ramzan (P.W.9), Mustafa and Dur Muhammad P.Ws. (not produced), when all of a sudden they heard Lalkaras raised by Nazim and Khadim Hussain Gulfaz, appellants, and their co‑accused Din Muhammad and Nazir (since acquitted). to the effect that they would not let his sons go alive. Hearing Lalkaras, they ran towards that direction and reaching near them, they saw Nazim, appellants, and his brother Nazir (acquitted co‑accused) giving injuries to Abdul Ghafoor, deceased, and Abdul Samad (P.W.8) with their respective hatchets as a result of which they fell down and then Khadim Hussain Gulfaz, appellant, also joined them and all the three gave hatchet blows to Abdul Ghafoor, deceased, who was lying on the ground. When they tried to intervene, the accused persons threatened them with life. They being empty‑handed, stood silent. All the three accused then ran away waving their hatchets.

4. Motive for the said murder was stated to be that a month prior to the occurrence, Nazim, appellant, and one Ranjha had broken into the house of Gut Muhammad Bhani for committing theft when Gut Muhammad Bhani with the help of Abdul Ghafoor, deceased, had succeeded in capturing them on the spot and were later produced before the police which challaned them. Nazim, appellant, on that account, bore a grudge against them and, therefore, he in consultation with his co‑accused had attacked and injured the sons of the complainant. Abdul Ghafoor succumbed to his injuries instantaneously at the spot. Statement Exh. P.C. of Haji Muhammad was recorded by A.S.I. Malik Muhammad Amir (P.W.10) at 7‑00 p.m. in village Changarh where he happened to be present in connection with his patrol duty.

5. A.S.I. Malik Muhammad Amir (P.W.10) having sent the complainant for formal registration of the case, left for the spot and took up the investigation there. He prepared injury statement Exh. P.F. and inquest report Exh. P.G. pertaining to the deceased and despatched the dead body for post‑mortem examination under the escort of Constable Atta Muhammad (P.W.1).

6. On 18‑6‑1977, he arrested Nazim, appellant, who produced blood‑stained hatchet P.6 which was taken into possession after making the same into a sealed parcel vide memo. Exh. P.Q. which was attested by Allah Bakhsh (P.W.4) and Aziz Ahmad (P.W.6). Nazim, appellant, at that time was found bearing certain injuries on his person and, therefore, after preparing his injury statement Exh. P.M. he was sent for medical examination. The doctor's report is Exh. P.M/1. He then handed over the investigation to S.I. Malik Umar Hayat (P.W.11) who arrested Khadim Hussain, appellant, on 19‑6‑1977. The appellant produced blood‑stained hatchet P.4 before him which was made into a sealed parcel and seized under memo. Exh. P.D. He also arrested the remaining co‑accused (since acquitted). He got prepared site plan Exh. P.B. in triplicate from Khurshid Ahmad, Patwari (P.W.2). Marginal entries in red ink on these plans were made by him. Besides the three accused persons named in the F.I.R., he arrested Din Muhammad, co‑accused (since acquitted) also and challaned him alongwith other co‑accused to Court.

7. Dr. Abdul Ghani Asim (not appeared) Medical Officer, Tehsil Headquarters Hospital, Jampur, conducted the post‑mortem examination on the dead body of Abdul Ghafoor at 12‑30 p.m. on 17‑6‑1977 and found five incised wounds on his person. In his view, injury No. 1, that is, "An incised wound, 4" x 2" x skull deep horizontal in direction on middle of head" was fatal. All the injuries collectively caused his death. In his opinion, the duration between injuries and death was between 15 and 20 minutes and between death and post‑mortem examination about one day. He also examined Abdul Samad (P.W.8) and observed on his person six incised wounds; four of which were declared as grievous. This doctor did not appear at the trial as he was suspended by his department for some irregularities he had committed during the service. He had left the country and was not available during the trial of this case and, therefore, the trial Court dispensed with his attendance and permitted the prosecution to lead secondary evidence. Mahmood‑ul Hassan, Clerk D.11.0. Officer, D.G. Khan (P.W.5) proved the hand writing and signatures of the doctor.

8. At the trial, the prosecution examined 11 witnesses to prove its case. The defence of the appellants is that of denial simplicitor. When Nazim, appellant, was asked to explain his injuries, he replied that it was a blind murder. The police dishonoured his father and had coerced all of them to make confessions and as a result of beating by the police, he had suffered those injuries. He had produced certified copies of the F.I.Rs. which are Exh. D.F. and Exh. D.G. None of them examined any witness in defence.

9. The prosecution case rests on the eye‑witness account furnished by Haji Muhammad (P.W.7), Abdul Samad (P.W.8) and Muhammad Ramzan (P.W.9); recoveries of blood‑stained weapons of offence sought to be proved through Allah Bakhsh (P.W.4) and Aziz Ahmad (P.W.6) besides the Investigating Officers; evidence of motive furnished by Haji Muhammad (P.W.7) and Abdul Samad (P.W.8); and the medical evidence.

10. I have heard learned counsel for the parties who have taken me through the record as well. Learned counsel for the appellants assailed the conviction of the appellants on various grounds which are discussed hereunder in seriatim.

11. Firstly, the learned counsel contended that the motive part of the story as alleged by the prosecution has not at all been established which must recoil on the genuineness of the whole of the prosecution case. According to the prosecution, two months before the occurrence, Nazim, appellant, and one Ranjha had broken into the house of one Gul Muhammad at night time with the intention to commit theft but were captured by Gul Muhammad and Abdul Ghafoor, deceased, who produced them before the police and were challaned. On account of this, they nourished a grudge against the deceased and his family and in order to avenge the same, the appellants accompanied by the two acquitted accused armed with hatchets had attacked Abdul Ghafoor, deceased, and his brother Abdul Samad when they were busy collecting the cut‑bushes in a field. Nazim, appellant, admitted that he was challaned alongwith Ranjha on the allegation of house‑breaking but he denied that he was captured at the house of Gul Muhammad by Abdul Ghafoor, deceased. He further stated that the said case of hous6‑breaking was concocted against him falsely due to enmity at the instance of one Noor Muhammad, Lambardar, who was his sworn enemy and that he was acquitted in that case. He also produced a copy of the F.I.R. Exh. D.F. which pertains to the case of house‑breaking registered against him and Ranjha to prove that Abdul Ghafoor, deceased, was neither a witness nor the appellant was captured at the house of Gul Muhammad. A plain reading of the F.I.R. Exh. D.F. fully bears out the stand of Nazim, appellant. Abdul Ghafoor, deceased, and Abdul Samad (P.W.8) have not been cited as P.Ws. in that case nor the contents of the said F.I.R. disclose that Nazim, appellant, was captured at the spot much less by Abdul Ghafoor, deceased, or Abdul Samad (P.W.8). The prosecution story regarding the motive, therefore, stands belied by the documentary evidence, that is, F.I.R. Exh. D.F. No doubt that weakness of motive or its complete absence does not necessarily uproot the prosecution case but it has by now been recognised as an established principle of criminal justice that if the prosecution sets up a motive and then fails to prove the same, that causes a dent in the prosecution case.

12. Haji Muhammad, complainant, allegedly reported the incident to A.S.I. Malik Muhammad Amir (P.W.10) in village Changarh at about 7‑00 p.m. and made before him his statement Exh.P.C. on the basis of which formal F.I.R. Exh. P.C/1 was recorded by Muharrir H.C. Ghulam Qadir (P.W.3). Learned counsel argued that the F.I.R. Exh. P.C. is not a genuine document. He maintained that it was recorded after consultations and deliberations by the complainant party in collusion with the police officials. Haji Muhammad (P.W.7) has conceded during the cross‑examination that his statement was recorded at the place of occurrence after the Investigating Officer had inspected the dead body and then his thumb‑impression was obtained thereon at that time. It thus leaves me in no manner of doubt that statement Exh. P.C. of Haji Muhammad was drafted at the spot. In these circumstances, it could be fairly inferred that after having seen the injuries of the deceased and the injured P.W. and after deliberating with the complainant party and their confederates, story as it best suited to the complainant party was drawn up. The F.I.R. cannot, therefore, be termed as a document containing unalloyed truth. Rather it entertains grave doubts about the genuineness of the prosecution story.

13. There are three eye‑witnesses in this case, namely, Haji Muhammad (P.W.7) father of the deceased, Muhammad Ramzan (P.W.9) uncle of the deceased and Abdul Samad (P.W.8) brother of the deceased who was also injured during the occurrence. Haji Muhammad (P.W.7) stated that on hearing the alarm, he rushed towards the site and when he reached there, he saw the accused persons leaving the spot and his two sons were lying injured on the ground. Similarly, Muhammad Ramzan (P.W.9) stated that he was returning after making certain purchases from Fazilpur and at a distance of 2/3 Acres from the spot he heard the alarm and ran towards that side. Reaching there, he saw Abdul Ghafoor, deceased, lying on the ground in an injured condition while Abdul Samad P.W. was under attack. He conceded that he had gone to Fazilpur to purchase certain articles which were available at Islampur also but he chose to go to Fazilpur, situated at a distance of about 8/9 miles from his residence to save in all one or two Annas in the total purchases, he had made on that day.

14. Admittedly, all the eye‑witnesses are the kith and kin of the deceased. Their evidence cannot be brushed aside only on the ground of their being relations of the deceased. However, it certainly calls for a cautious scrutiny before it could be accepted as sufficient to base conviction of the appellants. The evidence of Haji Muhammad (P.W.7) and Muhammad Ramzan (P.W.9) lack a ring of truth around it. A cursory glance on their evidence as pointed out earlier suggests that they were not present at the time of occurrence. However, presence of Abdul Samad (P.W.8) cannot be denied as he bears the hall marks of the occurrence on his person. His evidence when subjected to close scrutiny did not come upto the mark. Din Muhammad, a 90 years old and fragile person (father of Nazim, appellant), though not named in the F.I.R. was involved in this case subsequently, who was tried and ultimately acquitted. He stated that two months before the occurrence, his brother Abdul Ghafoor, deceased, had given shoe beating to Nazim, appellant, at the time he had broken into the house of Gul Muhammad in the company of Ranjha. As discussed earlier, this story did not find mention in the relevant F.I.R. which has been produced by the appellant and has been exhibited as D.F. The witness further claimed that he alongwith Abdul Ghafoor, deceased, were busy in collecting Khaat (uprooted bushes) in a field jointly owned by one Noor Muhammad and his aunt Mst. Hawwa where the attack was launched on them by the appellants. His father Haji Muhammad stated in the F.I.R. that the place of occurrence was jointly owned by him and Noor Muhammad. Khurshid Ahmad, Patwari (P.W.2), contrary to their stand, stated that the said field was not owned by Haji Muhammad or his sons jointly with Noor Muhammad. It appears that Abdul Samad made deliberate shift by saying that the field of occurrence was owned by his aunt jointly with Noor Muhammad to make us believe that he and his brother Abdul Ghafoor, deceased, happened to be present at the time of occurrence in Killa No. 13, rectangle No. 254, on a genuine and rightful purpose. The fact remains that the place of occurrence did not belong to them and, therefore, they could not be expected to have gone there. His attempt to reconcile his statement with that of the Patwari shows his cleverness. Again, he had tried to explain the injuries on the person of Nazim by saying that .in order to save his brother he had dealt blows to Nazim. The fact that Nazim, appellant, was assaulted in retaliation or in self‑defence by any of the persons of the complainant party does not find mention in the F.I.R. Therefore, this is also an embetlishment. It may be seen that in the F.I.R., Din Muhammad (acquitted co‑accused) was not at all named, in any connection whatsoever. Later, the prosecution witnesses improved their case to involve him and ascribed a role to him as well, that is, that he had taken Abdul Samad (P.W.8) in his Chatta (grip) during the occurrence. This allegation on the face of it, looks to be absurd because it is unimaginable that a 90 years' old man would go in the company of his young sons to launch attack on the complainant party, who apparently was not capable of taking Abdul Samad in his grip. Such an old person's going to the battlefield is impossible. His going there means to land himself not only in trouble but in death knell because such a fragile man in a moment of danger would not be able to run for saving his life even Abdul Samad (P.W.8) insists that Din Muhammad (acquitted co‑accused) was present at the spot and that he clasped him. It appears to me that he, like other witnesses, had tried to involve the innocent old man for putting the accused party to utmost grief and also with an intention that no male member of the family should be left cut of jail to manage the domestic affairs or look after the children and the ladies. Deliberate attempt to involve this old man in this case puts me on the alert and not to place implicit reliance on their testimony. Learned lower Court has also disbelieved this witness qua two accused persons. In these circumstances, there is no guarantee that whatever he deposed qua the appellants, was true.

15. There now remains only the evidence of recovery of weapons of offence. Khadim Hussain Gulfaz, appellant, had allegedly produced blood‑stained hatchet P.4 before Malik Umar Hayat, S.I. (P.W.11) which was seized by him after making the same into a sealed parcel on 19‑6‑1977 vide memo. Exh. P.D. Likewise, Nazim, appellant, had produced blood stained hatchet P. 6 before Malik Muhammad Amir, A.S.I. (P.W.10), which was made into a sealed parcel on 18‑6‑1977 vide memo. Exh. P.Q. The recovery witnesses from the public were admittedly closet relations of the complainant. Allah Bakhsh (P.W.4) has admitted to be the brother‑in‑law of Haji Muhammad, complainant, and father‑in‑law of Abdul Samad (P.W.8). Their evidence hardly needs any comment that they were interested in the prosecution of the appellants. Since I have discarded the ocular evidence, this tainted evidence of recovery cannot be of any avail to the prosecution.

16. The upshot of the above discussion is that the evidence available on the record falls short of bringing home the charges under sections 302/34 and 326/34, P.P.C. to the appellants satisfactorily, beyond reasonable doubt. Consequently, the appeals (Criminal Appeal No. 1340 of 1979 and Jail Appeal No. 602 of 1980) filed by the appellants succeed. The appellants are acquitted of the charges under section 302/326/34, P.P.C. They should be released forthwith, if not required in any other case.

17. As the appeals have succeeded, the revision (Criminal Revision No. 146 of 1980) filed by the complainant for enhancement of sentence of the aforesaid appellants automatically fails. M. A. K. Appeal accepted