' Gulbaz Khan, J.-- Ghulam Rasool alias Rangeela appellant was convicted, on 23rd December, 1979 by the learned Additional Sessions Judge, Lahore, under section 302, P.P.C. And sentenced to death and a fine of Rupees One Thousand or in default in payment of fine to undergo rigorous imprisonment for six months. The fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation. The appeal filed by Ghulam Rasool alias Rangeela and the Murder Reference are being disposed of together.
2. ' Before we touch the merits of the case, we would like to observe that the charge was framed against the appellant, on 5th March, 1978 and the case was decided, on 23rd December, 1979. It took the trial Court one year, nine months and twenty-two days in the diposal of the case. No doubt counsel for the appellant 'during the trial contributed towards delay, but there was no justification for keeping the case pending for such a long time. The trial Court was liberal in the matter of granting adjournments. It appears that the trial Court did not keep in mind throughout the trial, the provisions of rule 4 (previously rule 5), Chapter 1, Part A-General, and rules 1 and 2 Part-B, Chapter 24-B, Volume III of the High Court Rules and Orders and instructions issued from time to time vide letter No,2185-Gen./XII-D-11, dated 21st February, 1975.. D.O. Letter No, 695/R.H.C, dated 20th October, 1978 and letter No,11389/R.H.C. (M.I.T.), dated 9th December, 1980, wherein desirability of expeditious disposal of Sessions cases by day to day hearing had been stressed.
3. On 3rd July, 1976, at about 6.00 a.m., Abdul Majid complainant (P.W.2) and his father Abdul Rahim deceased were going to their shop. When they reached near the tomb of Shah Muhammad Ghous, situated at Circular Road, Ghulam Rasool appellant came there armed with Chhuri and attacked all of a sudden. The appellant had given a Lalkara that he would not allow the son and the father to escape and would teach them lesson for constructing the wall. Abdul Majid P.W got aside but the deceased was unable to run away due to old age. The appellant inflicted first blow to the deceased on the head, second blow on the jaw and the third on the chin, with Chhuri. The deceased fell down unconscious. Besides Abdul Majid (P.W.2) the occurrence was also witnessed by Sarwar Baig (P.W.1) and Mukhtar Ahmad (not produced).
4. The motive for the occurrence was stated to be the dispute between the parties over a common wall situated inbetween the shops of the deceased and the appellant. The deceased and his son Abdul Majid used to construct the wall whereas, the appellant used to fell it. On the night preceding the morning of occurrence, the deceased and his son had cons-tructed the common wall.
5. After the occurrence, Abdul Rahim deceased was taken to Mayo Hospital and medically examined by Captain Muhammad Salim Janjua, at 7.00 a.m. Fazal Mahmood A.S.I., Police Post Akbari Gate was on patrol duty, on 3rd July, 1979, alongwith Ghulam Nabi F.C. No,2870, Muhammad Boota F.C. No, 1242 and Arshad Ahmad F.C. No, 4999 and on reaching near the tomb of Shah Muhammad Ghous, learnt about the occurrence. They reached the Emergency Ward, Mayo Hospital. The A.S.I. Enquired from the doctor vide Exh. P.H, if Abdul Rahim was fit to make statement.
The doctor answered the query in the negatiive. The A.S.!. Recorded the statement of Abdul Majid P.W. Exh. P.A. And sent it at the Police Station for the registration of the case. The formal F.I.R. Exh. P.
All was recorded at Police Station Yakki Gate, on the same day, at 7.15 a.m. The case was originally registered under section 307, P.P.C. Abdul Rahim expired, on 5th July, 1976, at 1.40 p.m. On the receipt of information about his death, Muhammad Ashraf Sub-Inspector, Police Post Akbari Gate, reached Mayo Hospital. He prepared inquest report and sent the dead body for post-mortem examination. The offence was changed to section 302, P.P.C. The Sub-Inspector arrested the accused, on 5th July, 1976, from a place near Crown Bus Stand. On 8th July, 1976 the appellant produced blood-stained Chhuri P.4 and blood-stained clothes P.5 and P.6, which were sealed into separate parcels vide memos. Exh. , P.C. And P.D. Respectively. The aforesaid memos, were attested by Muhammad Saeed (P.W.4) and Meraj Din (not produced). The doctor, who conducted post- mortem examination, gave the number of injuries as eight against three given in the medico-legal report. The Sub-Inspector made query vide Exh. P.N. From Dr. Muhammad Salim Janjua about the discrepancies in the injuries and the doctor answered the query at Exh.
P. D The appellant was challaned after investigation.
6. Captain Muhammad Salim Janjua, medically examined Abdul Rahim, on 3rd July, 1976 at 7.00 a.m. And found the following injuries on his person:--
(1) An incised wound 21" x i" on top of head.
(2) An incised wound 2" x V near the first wound on the top of head; and
(3) An incised wound 3/14" x *" on right cheek.
' The doctor advised X-ray of facial bones. The injuries were kept under observation which were caused with sharp-edged weapon within the duration of two hours.
7. Dr. Tahir Anis, conducted autopsy on the dead body of Abdul Rahim, on 6th July, 1976, at 11.30 a.m.
And found the following injuries:-
(1) Stitched partly healed wound 3/4" long extending horizontally over middle of chin.
(2) Stitched wound over right maxillas 3/14" long vertically oblique.
(3) Stitched wound i" long over lower left forehead horizontal.
(4) Stitched wound 2" long left parietal region.
(5) Stitched wound 2" long left parietal region parallel to and one inch inner to injury No,4.
(6) Stitched wound 3/4" long back of left parietal region.
(7) Stitched wound 3/4" long back left parietal region. Half inch inner and parallel to injury No,6.
(8) Stitched wound 3/4" long back of right parietal region.
(9) Partly stitched wound inner lower right leg. (Venesection surgical incision).
Left temporal and plrietal bones showed fractural lines extending into small part of right parietal bone also. Under-surface of scalp was ecchymosed. Membranes and brain were congested and compressed, due to extra-dural clots. Fractur2 line extended to left middle and interior cranial fossa. In the opinion of the doctor all the injuries were ante-mortem and appeared to have Deer inflicted with sharp-edged Weapon. Injuries Nos. 4 to 8 were sufficient to cause death in the ordinary course of nature. Death occurred due to coma, brain contusion and compression.
8. Besides the doctor, the prosecution examined thirteen witnesses. The Court also examined Ghulam Nabi F.C. As Court witness. The accused produced Umar Hayat F.C. No,414 and Muhammad Ramzan, Verification Clerk Cash Remittance Section, Cash Office, P.W.R., Lahore in defence. He also produced documents D.J, D.K. D.L, D.M, D.N, D.0, D.P and D . Q .
9. Sarwar Baig (P.W.1) and Abdul Majid (F.W.2) gave the eye account of the occurrence. They supported the prosecution version. The third eye-witness, namely, Mukhtar Ahmad was given up as having been won over.
10. Muhammad Saeed (P.W.4) and Muhammad Ashraf Sub-Inspector (P.W.12) made statements with regard to the recoveries of blood-stained Chhuri and blood-stained clothes of the appellant.
' The trial Court discarded the evidence of blood-stained Chhuri and blood-stained clothes produced by the appellant for the reason that Muhammad Saeed (P.W.4) was a hostile witness and besides it, the report of Serologist was also not tendered in evidence.
11. The most important question for determination was as to whether or not Abdul Majid complainant and Sarwar Baig P.W. Had witnessed the occurrence. Abdul Majid complainant admitted that security proceedings were taken up between him, Yousuf and Habibullah on one side and the appellant on the other side. He denied the suggestion that he called the appellant as Rangeela having the face like a horse and it resulted into a quarrel between them and consequently security proceedings were taken up. Hamido n Sub-Inspector (P.W.8) stated in Court that it was correct that Ghulam Rasool complained to him that Abdul Majid P.W. Had called him bad names and told him that he had a face like that of a horse and that he was addicted to food taken by the donkeys. He had taken up the security proceedings between the appellant on one side and Abdul Majid and others on the other side. Abdul Majid also admitted during cross-examination that he addressed his worker that he acted like Rangeela and the accused took it ill and then a quarrel ensued and the police put him and the appellent behind the bars. He further admitted that he had called his worker as the one with the face of a horse. He also stated that the Thanedar might have recorded when security proceedings were taken that Rangeela was addicted to food which the donkeys used to take. He made it clear during his statement that the appellant was his enemy and so was he. Hamiduddin Sub-Inspector deposed that the deceased was not a party to security proceedings. He further deposed that it was nowhere recorded in the security proceedings that the parties had any dispute over the construction of the common wall. From the evidence brought on the record, it stood established that the appellant had no malice against the deceased and the real dispute was between Abdul Majid complainant and the appellant, not over the wall but due to the fact that Abdul Majid called the appellant as Rangeela having a face like a horse who was addicted to food taken by the donkeys. In case Abdul Majid had been present at the spot, he would have been the victim and not his father.
' Ghulam Nabi F.C. (C.W.) had taken Abdul Rahim, to Mayo Hospital, in an injured condition. Dr. Muhammad Salim Janjua (P.W.13), prepared the medico-legal report Exh. P.Q. He mentioned the name of Ghulam Nabi F.C. In the column meant for the name of relative or friend of the injured. The contention of the learned counsel for the appellant that name of Abdul Majid was inserted subsequently, was not without substance. On the left side of the line drawn on medico-legal report, there was a column for particlars as to further reference to the case. In this column also, the name of Ghulam Nabi P.C. Was recorded. In this column name of Abdul Majid complainant was not mentioned. The doctor towed the line of prosecution that Abdul Majid had also accompanied Abdul Rahim, to the hospital, but it stood belied by the documentary evidence. Fazal Mahmood A.S.I stated that on 3rd July, 1976 he was on patrol duty alongwith Ghulam Nabi F.C. No,2870, Muhammad Boota F.C. And Arshad F.C. And when they reached near the shrine of Shah Muhammad Ghous, they learnt about the occurrence and rushed to the Mayo Hospital. This version was belied by Ghulam Nabi C.W. And Dr. Janjua. During cross-examination, the A.S.I admitted that Ghulam Nabi F.C. Took the deceased to the hospital from the spot. He was quite confused during the cross-examination as to whether Ghulam Nabi F.C. Was with him or accompanied the injured to the hospital. Sometimes, the witness stated that Ghulam Nabi F.C. Was with him and sometimes stated that the Constable had accompanied the injured to the hospital. He was confused for the reason that Ghulam Nabi was not with him but had taken the injured to the hospital. Muhammad Ashraf had admitted during the cross-examination that Ghulam Nabi F.C. Was on guard duty, on 2nd July, 1976 at 11.18 p.m. And was released from the guard duty, on 3rd July, 1976 at 5.00 a.m. He further admitted that Ghulam Nabi F.C. Went on patrol duty in Ilaqa, on 3rd July, 1976, at 5.30 a.m.
Entry No,22 dated 3rd July, 1976, in the Roznamcha clearly proved that Fazal Mahmood A.S.I.
Returned to Police Post at 4.30 a.m. There was no entry to the effect that he again left the Police Post for patrol duty. The various entries made in the Roznamcha proved that it was Ghulam Nabi Constable alone, who left for patrol duty, at 5.30 a.m., on 3rd July, 1976. Ghulam Nabi F.C. While appearing as C.W.1, denied the suggestion that he alongwith Fazal Mahmood A.S.I. Muhammad Boota and Arshad F.Cs. Were patrolling and when reached near the shrine of Shah Muhammad Ghous at Circular Road came to know that a fight had taken place. According to this statement, he was present at Police Post at 6.30 a.m. When a person turned up on bicycle and conveyed the information that a person was lying injured near the tomb of Shah Muhammad Ghous. Ghulam Nabi deposed in Court that he and Naib-Muharrar rushed to the spot where two/three persons were placing the victim on the tonga and thereafter he took the victim to the hospital. He further stated in Court that the doctor handed over the medico-legal report to him after obtaining his signatures. According to Ghulam Nabi F.C. He remained in hospital till 12.00 noon and during these five hours, no one from Police Post came to Mayo Hospital. His statement smashed the prosecution case that Fazal Mahmood A.S.I. Was on patrol duty alongwith Ghulam Nabi F.C. And two other Constables near the shrine of Shah Muhammad Ghous and learnt about the occurrence and thereafter reached Mayo Hospital.
' The conduct of Abdul Majid was quite unnatural. His father was being injured and he remained silent spectator. He did not physically intervene or try to catch hold that appellant.
' The statement of Sarwar Baig P.W. Could not be considered for the reason that Abdul Majid P.W.
While making statement in Court, did not mention his name as an eye-witness. Besides, Sarwar Baig was a chance witness. His house was situated at a distance of one and a half miles from the spot. Abdul Majid admitted in cross-examination that he knew Sarwar Baig for the last twelve/thirteen years as the latter used to get his clothes stitched from him. Sarwar Baig had not accompanied the injured to the hospital.
12. The statements of Abdul Majid and Sarwar Baig were contradicted by the medical evidence.
Both these eye-witnesses deposed that the appellant had inflicted Chhuri blows to the deceased.
Dr. Janjua, admitted in cross-examination that the three injuries mentioned in the medico-legal report were on bony prominence. He agreed with the suggestion that according to Medical Jurisprudence by Moodi and Siddique, a lacerated wound on bony prominence would give appearance of an incised wound. The doctor further stated that he did not find any bone cut underneath the injuries. He agreed with the defence suggestion that if the injury is caused with a Chhuri, there shall be a cut on bone. He further agreed that there would be no depression of bone if the injury is caused with a Chhuri. Dr. Tahir Anis, stated that the injuries appeared to have been inflicted with sharp-edged weapon. He did not give positive opinion that the injuries had been inflicted with sharp-edged weapon. He did not find the bone cut under the injuries. He noticed compression of brain and fracture of head. He admitted that such compressions and fractures were likely to occur by a heavy blunt weapon. He further admitted that the depressed fracture was likely to have been caused with blunt weapon and not with sharp-edged weapon. Chhuri P.4 was shown to him in Court and he stated that it was not a heavy weapon and the injuries to the deceased could not have been caused with it. He agreed with the defence suggestion that congestion of brain and extra-dural clots were caused with heavy blunt weapon. From the evidence furnished by the two doctors, it appears that the injuries to the deceased had not been caused with sharp-edged weapon like Chhuri but it had been caused with some heavy blunt weapon.
' From another fact also, it appears that Abdul Majid complainant was not present at the spot. Dr. Janjua noticed three injuries and he described the three injuries as incised wounds and he mentioned the weapon of offence as sharp. After medical examination, the case was registered. In view of the opinion of doctor, Abdul Majid complainant mentioned in the F.I.R. That the appellant had inflicted three Chhuri blows to his father. One on the head the second on the jaw and the third on the chin. But when post-mortem examination. Was conducted, doctor mentioned nine injuries including one surgical incision. The medical evidence would clearly prove that as many as eight injuries had been inflicted to the deceased. In case Abdul Majid and Sarwar Baig had been present at the spot and witnessed the occurrence, they would have stated that the deceased was caused eight injuries.
' For the foregoing reasons we come to the conclusion that Abdul Majid complainant (P.W.2) and Sarwar Baig (P.W.1) had not witnessed the occurrence.
13. The trial Court had placed no .Reliance on the recoveries of blood-lz stained Chhuri and blood- stained clothes produced by the appellant. We have no reason to disagree with its findings. Umar Hayat F.C. (D.W.1) was produced to prove enmity between Muhammad Saeed P.W. And the appellant. We need not discuss his evidence as we are not placing any reliance on the statement of Muhammad Saeed. The second defence witness, named Muhammad Ramzan, Verification Clerk, was produced to prove the alibi of appellant. According to the defence witness the appellant remained on duty on 3rd July, 1976, from 3.30 a.m. To 2.00 p.m. According to the prosecution, the occurrence had taken place at about 6.00 a.m. The defence evidence furnished by Muhammad Ramzan was of no consequence.
14. The upshot of the above discussion is that we accept this appeal, set aside the impugned judgment and acquit the appellant of the charge. He shall be set free forthwith if not required in any other case.
' The death sentence of Ghulam Rasool alias Rangeela is not confirmed. .