' Three brothers Imam Bakhsh (35), Amir Muhammad alias Amir Bakhsh (32) and Rahim Bakhsh
(25) are accused of the murder of Ghulam Sadiq father-in-law of their sister Mst. Sabahi. On 18th December, 1973, the Additional Sessions Judge, Muzaffargarh, acquitted them on the murder charge but convicted them under section 325/34, P. P. C., and sentenced them to seven years' R. I.
Each and to a fine of Rs, 1,000 in default to undergo one years' R.
1. Further. Each was ordered to pay Rs, 500 as compensation to the heirs of the deceased, in default they were ordered to suffer six months' R. I. The convicts have come up in appeal.
2. Ghulam Sadiq deceased's son Imam Bakhsh was married to Mst. Sababi, sister of the accused, about 15 years before the occurrence in this case. She had four sons out of the wedlock. About 25 days before the occurrence, her husband died. After his Qu1 ceremony, Mst. Sabahi came over to her parents with her two years old youngest son Wahid Bakhsh. She also brought with her ornaments and clothes leaving behind the other three sons in the house of her father-in-law.
About 3/4 days before the occurrence, her brother Amir Muhammad, accused, went to the house of her father-in-law who was therewith his sons Rahim Bakhsh and Azitn Bakhsh. In their presence, the accused asked them to send his nephew Khuda Bakhsh who was four years of age with him because the child's mother Mst. Sabahi missed him. He refused to send the boy upon which Amir Muhammad abused them and said that he would forcibly take away the boy. They pushed him out of the house and he went away. This was the motive for the crime. According to the prosecution on 26th September, 1972 at about 10/11 a. m. Ghulam Sadiq, deceased, was going on the canal bank towards village Ihsan Pur. Just then, Rahim Bakhsh, informant, Ghulam Muhammad, Raza Hussain and Muhammad Yar were coming on cycle towards the canal. The three accused beat up Ghulam Sadiq with sticks in front of their house. His alarm attracted them. From the pacca road, they rushed to the canal road. On seeing the witnesses approaching, the accused fled away towards their houses. After a short while, Ghulam Sadiq, deceased, died. Rahim Bakhsh, informant, sent information to Muhammad Fazal who came at spot. Later deceased's son Azim Bakhsh and others also reached there. Rahim Bakhsh then went to Police Daira bin Panah situated at a distance of two miles from the pldce of occurrence. He made F. I. R. Exh. P. A. At 1.30 p. m. The same day to P. W.
Muhammad Anwar, A. S.-I., who after registering the case went to the place of occurrence, prepared the necesary documents and sent the deadbody for its post-mortem examination.
1 P. W. 7, Dr. Iqbal Asghar, Medical Officer, Muzaffargarh held the autopsy on 29th September, 1972 and found the following injuries on the dead body of Ghulam Sadiq
(1) An abrasion 2" x lr on the front of left shoulder.
(2) A contused wound 112" x 1/4" skin deep on the back of left forearm, 1" below the elbow.
(3) A contused wound 3/4" x 1/4 x skin deep on the palm of left hand and root of index finger.
(4) A bruise 3" x 1"-on the front of right thigh.
(5) A bruise 3" x I" on the outer side of right thigh, 2" below the level of injury No, 4.
(6) A bruise 2" x 1" on the outer side of the right thigh, 5' above knee joint.
(7) A contused wound 11" x skin deep on the front of right leg, 4' above ankle.
(8) Multiple bruises in area of 7" x 2" on the back of left buttock.
(9) A bruise 5" x 2" on the outer side of left thigh just below the buttock. Femur bone underneath was fractured and there was much bleeding into the muscle.
(10) A bruise 6" x 2" on the back of left thigh, 2" below injury No, 9.
(11) A bruise in area of 8" x 4" on the back of right buttock.
(12) A bruise 6" x 2" on the right side of back over upper part of right scapula.
(13) A bruise 8" x 1" on the back of the right thigh 2" below buttock.
(14) A bruise 2' x 1' on the back of right leg, 3" below knee joint.
' The doctor observed that decomposition had started in abdominal walls, peritonium, mouth, stomach, pancreas, small intestines and large intestines. He found eight ounces of semi-solid food in the stomach. Small intestines contained semi-digested food. There was faecal matter in the large intestines. Death in his opinion was due to shock, multiple injuries and bleeding in the left thigh caused by injury No, 9 which was grievous. The remaining injuries were simple. In his opinion, no one injury caused death individually in the ordinary course of nature. All the injuries collectively and the old age of the deceased were the cause of death. Further in his opinion, time between the injuries and death was about 2/3 hours.
4. P. W. 9 Saeed Ahmad, S. H.
0.' P. S. Daira Din Panah arrested the accused on 27th September, 1972. The same day, three accused got recovered sticks P. 4 to P. 6 which were taken into possession through memos. Exh. P.
C., Exh. P. D. And Exh. P. E., respectively attested by P. Ws. Malik Qadir Bakhsh and Qadir Bakhsh son of Bhan war besides the investigating officer. After completing the investigation, the accused were sent for trial.
5. During their examinations, all accused denied guilt and ascribed the cases to strained relations with the P. Ws. Who were inter-related. According to them, their sister Mst. Sabahi did not leave the house of her father-in-law after the Qul ceremony, instead, she had come over about 3/4 days before the occurrence. They did not know whether she had brought her ornaments with her. Amir Muhammad, accused, denied having gone to the house of the deceased to fetch the minor son of his sister. Explaining the case against them. He said that since his sister had left the house of her father-in-law, therefore, the cas: was foisted against them. According to Rahim Bakhsh accused, P.
Ws. Rahim Bakhsh and others were compelling Mst. Sabahi to perform Nikah with one of the brothers of her deceased's husband, therefore, out of disgust, she had come over to her parents. He added that on the day of occurrence, he was cultivating his lands at a distance of 3/4 miles away from the place of occurrence and that in fact his brother Imam ,Bakhsh and Amir Bakhsh were arrested a day before his arrest. No accused led evidence in defence.
6. Relying on the motive story, the evidence of the eye-witnesses and that of the recovery of stick from the accused, trial Court considered the prosecution case satisfactorily proved against the accused. Criticizing the finding of the trial Court, learned counsel for the appellants contended that out of the four eye-witnesses, prosecution has produced two namely, P.Ws. Rahim Bakhsh, informant, son of the deceased and P.W. 6 Raza Hussain. Both were related to the deceased. He further argued that their statements were full of exaggerations and improvements which indicated that they had stage-managed their presence at the spot, in fact, they had not seen the occurrence. It was next contended that the informant had a cycle with him and the distance to cover was hardly two miles, he could have made the report at the spot within half an hour.
Moreover according to the medical evidence, deceased died 2/3 hours after the occurrence, but in the F. I. R., it was alleged that he died a little after receiving the injuries. It was also submitted that the evidence of the recovery of sticks from the accused did not connect them with the crime because the sticks were not stained with blood and for a villager to keep sticks in the house was nothing unusual. There is force in the submission. Since the sticks were not blood-stained, their recovery,' therefore, did not connect the accused with the crime.
7. The sole question for 'determination in this appeal would be whether the evidence of the two eye-witnesses could be relied upon. According to P. W. 5 Rabim Bakhsh, informant, who is son of the deceased, he went to village Ihsan Pur with Ghulam Hussain Chani (not produced) for purchasing some articles from there and on their return from Ihsan Pur, they met with P. W. 6 Raza Hussain and Muhammad Yar (not produced) on the way and when the four reached Chah Qurbaniwala near Kishan minor at about 10/11 a. m., they saw the occurrence. It is noteworthy that this witness neither in the F. I. R. Nor in the statement before the Committing Magistrate had mentioned the purpose of visit to village Ihsan Pur in the company of Ghulam Hussain Chani although his presence at the spot is mentioned. This omission would become material because under cross-examination, P. W. 5 Rahim Bakhsh alleged that he had purchased articles worth Rs, 200 on credit on that day from a shopkeeper of Ihsan Pur whose name he could not tell, although, he further admitted that he had been making purchases from this shopkeeper for about a year or two before the occurrence. Under these circumstances for him to have not remembered the name of that shopkeeper was rather suspicious because he also admitted that he purchased the articles on credit. He further added that the articles were entered by the shopkeeper in his accounts book and against the entry witness had affixed his thumb-impression. No such accounts book or entry has been produced to prove that he had gone to Ihsan Pur and made purchases that day. So much so that even Ghulam Hussain Chani has not been produced to support the purpose of their visits to village Ihsan Pur. In this situation, his visit to village Ihsan Pur was a doubtful matter. It may also be mentioned here that accordiug to the informant, his father was on his way to village Ihsan Pur but when the witness left for Ihsan Pur, his father had not disclosed to him that he was also to go to village Ihsan Pur. Obviously, the two could go together but this was not so. On the other hand, there is a suggestion put to the witness under cross-examination that in fact his father was going to take away the minor son from Mst. Sabahi when he was beaten up by Mst. Janat wife of Imam Bakhsh accused and Mst. Sabahi with sticks with which they were thrashing the clothes for cleaning at the minor. It is admitted in evidence that the place of occurrence was situated in front of the house of the accused. Even otherwise, the nature of injuries of the deceased would also suggest that had three able-bodied men beaten him then the injuries would not have been simple.
There is only one grievous injury, that too on his leg. On the other hand, the fact that Mst. Sabahi had left her deceased husband's house with ornaments and clothes would not be a happy situation for the deceased and his sons because her separation from that home would obviously involve complication for the deceased and his son with regard to the share of property of Imam Bakhsh, deceased, which could only be secured if Mst. Sabahi was again married in the same family. It was suggested to P. W. 3 Azim Bakhsh son of the deceased who appeared to prove the motive in this case that his father wanted Mst. Sabahi to marry his son Karim Bakhsh who was a bachelor but she refused. Though, the witness admitted that the brother Karim Bakhsh was a bachelor but he denied the rest of the suggestion put to him. It is common knowledge that in rural society, such like marriages are often arranged to save the land. Keeping in view the fact that Mst.
Sabahi had chosen to leave the house of her deceased's husband, this would cause great concern to the deceased and his family. For that matter, their relations with the accused would be strained.
However, the fact remains that the explanation given, by Rahim Bakhsh, informant, of his presence at the place of occucrence was not free from doubt. It is further noteworthy that Rahim Bakhsh tried to improve upon his statement by saying that they gave water to his father who gained consciousness and told them that the three accused had beaten him. This fact is missing from the F. I. R. It is in the evidence of the doctor that the death occurred 2/3 hours after the receipt of injuries. As such the deceased could have even been alive when the police arrived at the spot. But this was not the prosecution case. According to the informant, after the receipt of injuries, his father died and the accused fled away after a short while. Keeping in view the medical evidence it cannot be ruled out that the occurrence took place between 7/8 a. m. When no one was around. This is further supported by the fact that the doctor found eight ounces of semi-solid food in the stomach and semi-digested food in the small intestine and the faecal matter in the large intestine. This would mean that the meal which he had in the morning was still in the stomach. It is also noteworthy that according to the informant, he did not lose any time at the place of occurrence because according to him after having sent Muhammad Yar to inform his relatives about the incident, he left for the police station. If this was true then the report could have been made well in time and not at 1.30 p.m. The distance was only two miles and the informant went on cycle. There was thus a delay in making the report. This circumstance also creates a doubt about the presence of the witnesses at the alleged time on the occurrence.
8. P. W. Raza Hussain is the second eye-witness in this case who was posted as a Points-Man at the Railway Station Ihsan Pur and on his own showing at 8 a.m. He was relieved of his duty, from where he went to village Ihsan Pur with Muhammad Yar (not produced). Thereafter, they left village Ihsan Pur at 10 a. m. And reached the bus-stand where they met P. W. 5 Rahim Bakhsh and Ghulam Hussain (not produced) and from this point the four proceeded towards home and on the way they saw the occurrence. Under cross-examination, he admitted that in those days, his duty was from 8 p. m. To 8 a. m. In his police statement, he did not mention having spent two hours in village Ihsan Pur with Muhammad Yar (not produced), instead therein he had stated that after his duty at the Railway Station at about 10/11 a. m. He went to Adda Ihsan Pur along-with Muhammad Yar. He was however, confronted with his earlier statement which he had denied having made before the police. It is obvious that the witness is trying to explain the gap of two hours between the expiry of his duty timing and the time of occurrence. Normally, after the night duty, he would be in a burry to reach home instead of going to village Ihsan Pur. It is also noteworthy that the purpose of his visit to village Ihsan Pur is not explained by him. Further I find that he had also stated that the deceased survived for about half an hour or so bill he did not mention whether he said anything. Under these circumstances, his presence at the place of occurrence was doubtful as that of P. W. Rahim Bakhsh. P. ,W. Raza Hussain denied whether he had a sister by the name of Mst. Sakina who was married to Musa. He showed ignorance whether said Musa was the father-in-law of P.W. Azam Bakhsh (son of the deceased) but this fact is admitted by P. W. 6 Rahim Bakhsh. As such it is obvious that P. W. Raza Hussain has tried to conceal his relationship with the deceased and was not a truthful witness. It may also be pointed out at this stage that it is in the evidence of P.W. Raza Hussain that being a Points Man at the Railway Station, he used to live there and on every third day he used to come borne. The investigating officer did not verify whether on that day P. W. Raza Hussain bad obtained station leave from the Station Master.
9. In view of the aforementioned analysis of the evidence, the presence of the two eye-witnesses at the time of occurrence who were even F otherwise interested witnesses was doubtful. Giving the benefit of doub to the appellants, I set aside their conviction and sentence and acquit them of the charges.