MIAN BURHANUDDIN KHAN, J. Arif Hussain, aged 19/20, Muhammad Ashraf, aged 40, Abid Hussain, aged 20 and Asghar A.I, aged 60, accused, were tried by the Sessions Judge, Gujranwala for committing the murder of their co-villager Ibrar Hussain on 11-7-1978 at about 4-00 p.m. In village Ibbenwali within the limits of Police Station, Saddar, Wazirabad District Gujranwala. Except Asghar A.I accused, the three accused namely Arif Hussain, Muhammad Ashraf and Abid Hussain were convicted under section 302/34 and sentenced to death subject to confirmation by the High Court and a fine of Rs. 5,000 each or in default to undergo R.
1. For a period of 2 years R. I. Each. The convicts filed appeal against their conviction and sentences; and their death sentences also came up for confirmation before the learned Judges of the High Court who, vide their judgment dated 16- 3-1980 dismissed their appeal and confirmed the death sentences of the three convicts. They sought leave to appeal calling in question the judgment of the Lahore High Court, through Criminal Appeal No. 58/1981. Criminal Appeal No. 59/1981 by Subey Shah is against the acquittal of Abid Hussain and Asghar A.I. Leave was granted by this Court vide its order dated 10-6-1981. This order will, therefore, dispose of both the aforesaid appeals.
2. Prosecution case as stated before the trial Court is that the acquitted accused Asghar A.I, who is father of Arif Hussain, accused appellant, step--father of Muhammad Ashraf accused, and paternal uncle of Abid Hussain, was on inimical terms with Subey Shah, complainant father of the deceased in this case, on account of complaint over the consolidation proceedings against Asghar A.I who was a Patwari during that time. Subsequently Ibrar Hussain deceased was involved in a criminal ease on the charge of stabbing Muhammad Ashraf accused, appellant, but during the pendency of this case a compromise was effected between the parties.
3. On 11-7-1978 at about 4-00 p.m. Ibrar Hussain, who was a teacher in a school and was on leave to his village, had taken his buffaloes for grazing. While returning he passed by the haveli of the accused appellant who were present. Asghar A.I shouted a lalkara on which Muhammad Ashraf, armed with a chhuri Abid Hussain, with a flick knife and Arif Hussain with a dagger, came out and attacked Ibrar Hussain deceased with their respective weapons. The deceased ran for his life but the accused chased him and overtook him in 'he nearby dried up village pond. Muhammad Ashraf caught hold of him while the other two Abid Hussain and Arif Hussain inflicted a number of blows to the deceased who fell to the ground. The accused, lifted Ibrar Hussain, who was badly injured, and cock him t o their haveli and threw him inside and thereafter they decamped.
4. The occurrence was witnessed by Subey Shah, Mukhtar Ahmad father and brother of deceased, and Ghulam Muhammad, who were attracted to the spot on the alarm raised by the deceased.
Since they were empty handed they did' not dare to intervene or to rescue the deceased. They,' however, beseeched the accused to. Spare the life of Ibrar Hussain deceased.
5. Subey Shah then proceeded to lodge the report. On the way he met, near bus stand Gakhar, Nazir Ahmad A. S. I. Incharge of Police Post, Gakhar, and lodged report Exh. P. C. Which was sent to the Police Station, Wazirabad for registration of a case. A. S. I. Nazir Ahmad, accompanied by the complainant Subey Shah and Ghulam Muhammad, reached the spot and started investigation. He sent the dead body to mortuary for post--mortem examination, after preparing the injuries statement and the inquest report. Ghulam Muhammad, P. W. 3, Subey Shah P. W. 4, and Mukhtar Ahmad, P. W. 5 gave ocular of the occurrence at the trial.
6. The first named witness Ghulam Muhammad, P. W. 3 stated at the trial that he was present at the shop of Fazal Elahi Shah in the village when he heard an alarm from the side of the spot; saw Muhammad Ashraf holding deceased Ibrar Hussain in his grasp in a dried up pond. Abid Hussain was holding a knife and Arif Hussain accused was armed with a dagger and both started giving blows to the deceased at the behest of Asghar A.I, the acquittal accused. As a result of the stab injuries the deceased fell down but while lying on the ground he was dealt some more chhuri blows on his buttocks, back and back of the legs, and all the time Asghar A.I has been exhorting his co- accused to finish the deceased. Thereafter, they carried the deceased inside their haveli and threw him near the eastern door of the haveli; that Subey Shah and the witness himself went inside the haveli where he found the deceased in the agonies of death. Mukhtar Ahmad who bad also witnessed the occurrence, was left with the dead body while Ghulam Muhammad and Subey Shah, P. W's proceeded to the Police Station for lodging a report and they met the Thanedar on the way in Gakhar town where a report was made by Subey Shah. Subey Shah and Mukhtar Ahmad also made a similar narration of the case resulting in the death of Ibrar Hussain. As already mentioned, Subey Shah is the father and Mukhtar Ahmad, P. W. 5 is real brother of the deceased.
7. Ghulam Muhammad, P. W. 3 has claimed himself to be a dis--interested witness. In cross- examination, however, he admitted that in his village factions between Rajputs and Jats, Syeds were divided. Some sided with the Jats, while the others, with the Rajputs; and that he (the witness) was involved in a murder case and that Asghar A.I, acquitted accused, had got him falsely implicated in that case.
8. Learned counsel for the appellants contended that the case against the three convicts rests on the testimony of three eye-witnesses. Subey Shah, father of the deceased, Mukhtar Ahmad, P. W. 5, brother of the deceased and both have admitted previous enmity with the accused-appellants.
Ghulam Muhammad, P. W. 3 is also a party-man of the complainant as he was involved in a murder case by Asghar A.I the acquitted accused, and, therefore, in this case, corroboration of their evidence is required. He further argued that some blood was found in the dried-up pond and also inside the haveli near the eastern door, thus it supports the defence version that the deceased had liaison with the wife of Muhammad. Ashraf, accused-appellant, and Ibrar Hussain had gone over to the house of the accused where he was attacked and murdered by some of the members of the accused family and that no one had witnessed the occurrence. Supporting his argument the learned counsel referred to the statement of tae Investigating Officer who found some blood in the dried up pond outside the haveli and some blood inside the haveli and he seized the blood from both the spots vide Memo. Exb. P. C. But no trail of blood was found between the dried up pond as indicated by "A" and "C" inside the haveli as per the sketch Exh. P. P. And thus the version given by the prosecution witnesses, of carrying away of the deceased by the accused to their haveli after infliction of injuries is totally belied. A reference to the sketch of the spot would reveal that there is a dried up pond situate at a considerable distance from the haveli of the accused, with main gate at point "F". So, if a person having received as many as 8 stab wounds, he would bleed profusely and in case he is carried from one place to another there would be distinct and obvious trail of blood.
9. We rave examined the evidence in the light of the contentions mad by the learned counsel for the appellants and we find that the prosecution ca is not free from reasonable doubt, firstly because there is no plausible explanation for the absence of the trail of blood from the dried up pond to the haveli of the accused, and, secondly, there appears to be no reason for the accused after having stabbed the deceased to carry him to their haveli and throw him there which would involve them in the commission of offence. This very fact could be a very strong piece of corroborative evidence against them.
10. Ghulam Muhammad, P. W. 3 has admitted that there was a rumour in the village regarding the illicit connection of the deceased Ibrar Hussain with the wife of Muhammad Ashraf, accused- appellant. Legally speaking his statement may not be admissible but Muhammad Ashraf accused himself in his statement record under section 342, Cr. P. C. Has stated:- "Ibrar Hussain deceased had illicit relations with my wife. At the time of occurrence I was not present in my house. However a brother-in---law of mine was residing with me in the haveli of Asghar A.I co---accused and he might have caused injuries to the deceased when he happened to see the deceased prosecuting illicit liaison with my wife. I am innocent."
12. The nature of injuries would also suggest that whoever has done the deceased to death, was full of vengeance to retrieve his honour and dignity. It also does not appeal to reason that father and brother (of deceased) who reached the spot on the alarm of the deceased Ibrar Hussain would come out of their house without arming themselves properly, or on the spot they would not make any attempt to save the life of one of their dear ones. They could have at least picked up stones from the spot and hit the appellants who were admittedly not armed with fire-arms, they could have repelled the attack from a considerable distance.
13. As regards the recovery of weapons of offence we doubt the genuine--ness of this part of the prosecution case. Muhammad Ashraf accused led to the recovery of blood-stained chhuri, hidden in a room of his house wherein a ginning machine was also installed. This recovery was made on 25-7-1978 i.e. 14 days after the occurrence and 11 days after the arrest of the accused. This recovery was made in the presence of Mukhtar Ahmad, P. W. 5 (brother of deceased) and Muhammad Anwar which further makes the `recovery' doubtful. Similarly, recovery of blood-stained clothes of Abid Hussain on 25-7-1978 is also doubtful as it is unbelievable that a person having incriminat-- ing articles in his possession, would not destroy the same, and, on the contrary, would preserve them as souvenir for the police to recover the same later on. Same is true of the recovery of blood- stained clothes of Muhammad Ashraf. The matter is further made doubtful by the statement of the Investigating Officer Muhammad Ashraf. P. W. I1 who, in cross-examination, has stated that:- "The room from which Arif accused got recovered the dagger blood--stained, and blood-stained clothes was lying locked. It was a part of haveli where I was sitting alongwith the accused. A relation of the accused had got the key and opened the door of the room. I did not take into possession the lock and key of the room. I have consulted the, use diary. The fact of locking the door and its having been opened by a key brought a relation of the accused is not mentioned. It is written in the case diary that Arif accused got recovered dagger from an almirah fixed in the northern wall of the room. The almirah was without any shutters. While entering the room one could easily see the dagger and the blood-stained clothes lying therein."
13. He further stated: "The room from which Ashraf accused got recovered the chhuri and the blood-stained clothes was lying open. While entering the room, one could easily see the chhuri and the clothes lying therein after taking a short turn rightwards. These articles were not lying concealed under any other article.
This is correct that house from which Abid accused got recovered flick knife and blood-stained clothes was in joint possession of his parents and other members of his family as well."
The upshot of the above discussion is that the case against the accused is of doubtful nature. The prosecution has failed to bring home the charges to them in the manner required under the law.
Thus we give them the benefit of doubt, allow their appeal No. 58/1981 and acquit Arif Hussain and Muhammad Ashraf of the charge of murder. They should be set at liberty, if not required in any other case.
We find the impugned order against the acquittal of Abid Hussain and Asghar A.I, unexceptionable and find appeal No. 59/1981 filed by Subey Shah is being without merit and accordingly dismiss the same.