Ghulam Muhammad alias Gulla, Ghulam Rasul and Muhammad Ramzan, residents of village Pachani, Police Station, Jhawarian were tried for the murder of Ahmad Yar. Additional Sessions Judge, Sargodha, vide judgment dated 22nd September. 1977, acquitted Muhammad Ramzan but convicted Ghulam Muhammad and Ghulam Rasul under section 302134, P. P. C. And sentenced them to imprison--ment for life. The convicts have filed this appeal against the judgment of the trial Court.
2. Ahmad Yar vas murdered on the night between 2nd and 3rd January 1976, in the area of village Pachani. Which falls within the jurisdiction of Police Station, Jhawarian. First Information Report Exh.
P. D. Was lodged by Ahmad Khan, on 3rd January 1976, at 2-00 a. m., which was recorded by Nazir Ahmad Sub-Inspector.
Ahmad Khan's version was that it was at about 10'0 clock in the night when he; Muhammad Hayat and Muhammad Bashir were present at the dera of Muhammad Hayat. Ahmad Yar also joined the party. At that time, Ahmad Yar had a licensed gun. He was to stay at the house of Allah Bakhsh, whereas Ahmad Khan Muhammad Bashir and Muhammad Hayat were to go to the house of Muhammad Hayat. All of them left the dera of Muhammad Hayat together. When the party reached near the house of Ghulam Muhammad alias Gulla, they saw that he was armed with hatchet, Ghulam Rasul was carrying a sofa and Muhammad Ramzan was empty-handed. On seeing the party, Ghulam Muhammad attacked Ahmad Yar, caught hold of his gun ; whereas Ramzan caught-hold of the deceased. He was carried to a platform in the courtyard of the house of Ghulam. Muhammad, where he (Ghulam Muhammad,) attacked him with the wrong side of the hatchet on the head and then Ghulam Rasul hit hint with the Sota. Thereafter, Ghulam Muhammad and Ghulam Rasul gave him more injuries with their respect--tive weapons. Ghulam Muhammad throughout used the wrong side of the hatchet.
Ahmad Khan, Muhammad Hayat and Muhammad Bashir tried to intervene, but they were threatened. Ahmad Yar ditd at the spot. His dead body was dragged by the accused party into the Kotha situated in the eastern side of the house of Ghulam Muhammad.
3. The Police Officer after recording the report, went to the spot, where he noticed the dead body of Ahmad Yar lying in the eastern kotha of the house of Ghulam Muhammad. The dead body was sent for post-mortem. The officer took into possession some blood-stained earth.
On 7th January. 1976, the appellants were arrested. Ghulam Muhammad led to the recovery of gun P. 3 alone with four cartridges.
On 10th January, 1976, Ghulam Muhammad lea to the recovery of hatchet F. 4 from Bhoosa stack in his cattleshed vide memo. Exh. P H. Ghulam Rasul got recovered bloodstained Sota P. 5 vide memo.
Exh. P. J.
4. Post-mortern was performed by Dr. Ghulam Haider, who noticed 11 injuries on the dead body.
Three were abrasions and eight lacerated wounds. Injury Nos. I and ', which were lacerated wounds 1 ----- x 1/4" scalp deep, on the left side of head and 1" x 1;4" scalp deep, on the upper part of the root of left ear, respectively, were sufficient to cause death in the ordinary course of nature.
Prosecution in order to prove its case relied on the ocular evidence of Ahmad Khan, Muhammad Bashir and Muhammad Hayat, recovery of hatchet and sota and the medical evidence.
6. The appellants denied the allegation of murder. Ghulam Muhammad gave his own version about the incident which resulted in the death of Ahmad Yar. His plea was that of self-defence. 1 shall refer to his statement in extenso later on.
In view of the statement of Ghulam Muhammad, I do not think it necessary to discuss the ocular evidence in detail. Nevertheless as the matter is to be examined in juxta-position, reference to the relevant portion of the ocular testimony is, therefore, necessary.
According to Ahmad Khan complainant, Ghulam Muhammad at first attacked Ahmad Yar, caught hold of his gun, then Ramzan held him in his grip. He carried the deceased to the platform in the house of Ghulam Muhammad where he was injured with hatchet from the wrong side and by Ghulam Rasul with Sota.
Almost identical are the statements of the remaining two eye--witnesses. Nevertheless, Muhammad Bash:r in his examination-in--chief said that Ghulam Muhammad snatched the gun from Ahmad Yar. Then Ramzan dragged the deceased and all the three accused dragged the deceased to the house of Gulla. Even Muhammad Hayat said that it was Ghulam Muhammad who snatched the gun from the deceased and then Ramzan caught hold of him.
Muhammad Bashir admitted that he was an accused in a cross-case registered on the report of Ghulam Muhammad accused. Muhammad Hayat admitted that the daughter of his nephew Ayub was married to the son of Allah Bakhsh P. W.
7. The prosecution story was that Ahmad Yar was carrying a gun and cartridges. The eye-witnesses unanimously deposed that the gun was snatched and after that it remained- lying on the ground throughout the occurrence. This is not only unnatural but is otherwise absurd because a person carrying a gun would neither easily part with it nor would it be possible to snatch the gun from him so `comfortably' as deposed by the witnesses.
Muhammad Bashir no doubt was inimical, because a case had been registered against him.
Muhammad Hayat was relative of the deceased. As such he is also interested.
Here I would like to refer to the statement of Ghulam Muhammad which is to the following effect:- ---A few days before the present occurrence Ahmad Yar deceased and Allah Bakhsh alias Bakha and Ahmad Yar Khokhar accused in the cross-case demanded from me that I should provide fodder and Rs. 500 to the deceased to enable him to purchase fodder from others for his cattle but I refused. The deceased was desperade and had demanded fodder and cash from me as Jagga Tax. Allah Bakhsh alias Bakha, Ahmad Yar, Bashir P. Ws. Umra, Muhammad Afzal Palwari accused in the cross-case were friends of the deceased. They took my refusal as a personal insult and in order to harass the people of the Ilaqa they decided to teach me a lesson and attacked me at about 10 p. m. On 2nd January, 1976, when I was sitting in the western Kotha of my house around fire. My mother Mst. Jallan, my wife, Mst. Alan, Ghulam Rasul and Ramzan accused were also sitting with me. The deceased caught hold of me from my hair dragged me out of the room in the courtyard.
They tried to kill me and were taking me to the Chowk of the village to show their strength. Ghulam Rasul my co-accused caused him some injuries to rescue me. In the meanwhile the deceased aimed his gun at me and was about to fire when I prevented him from doing so by picking up a hatchet from the courtyard and caused him injuries in self-defence. Ghulam Rasul accused also caused him another injury in that process. The deceased persisted in his attempt of firing at me.
His companions ran away and in the meantime people from the village reached there and some of them caused some more injuries to the deceased in the mellee as the gun fell down at the spot. I placed the deceased in my eastern Kotha so that he should not be carried away by his companions and friends to change the venue of occurrence. I informed the Lambardar who sent information to the Police. On the arrival of the Police on the same night I produced gun of the deceased, my own hatchet and Ghulam Rasul accused produced his Sota from the spot but the Police instead of registering the case on my complaint abused me and my co-accused. I stated the true facts before the Police on their first arrival but the Police recorded the recovery of gun, hatchet and Sota by concealing the facts and planted recovery till a later date to involve me in a case under section 13/20/65, A. O. Later on the D. S. P. Was satisfied about the correctness of my version and ordered the registration of cross-case."
8. The Investigating Officer admitted that the very first defence of the appellant at the time of his arrest, was the statement referred to above. It is, therefore, obvious that it is not an afterthought. I have, therefore,' no reason to discard the statement of Ghulam Muhammad.
The recovery of hatchet and Sota in such circumstances is of no consequence.
9. As I have accepted the statement of Ghulam Muhammad, the appeal must succeed. The appellants are accordingly acquitted. They shall be set at liberty forthwith if not required in any other case.