' Inayat (91), Aril (54), Muhammad Sadiq (40), Khalid Hussain (25), Muhammad Malik (30) and Muhammad Ashraf (28) were tried for the murder of Mehmood Khan and for having murderously assaulted Sultan Ali. On 18-9-1980, Khawaja Saeedul Hassan, Additional Sessions Judge, Gujrat, convicted Arif, Muhammad Malik and Khalid Hussain under sections 302/34, P.P.C. Arif was sentenced to imprisonment for life and to a fine of Rs,3,000 in default to undergo two years' R.I. Further. On the same count, Muhammad Malik and Khalid Hussain were sentenced to seven years' R.I. And two years' R.I. With a fine of Rs,3,000 and Rs,1,000 respectively on the same count. Muhammad Malik and Khalid were also sentenced under section 323/34, P.P.C.
To six months' R.I. Out of the fine, if realized, Rs,5,000 were ordered to be paid as compensation to the heirs of the deceased. Their sentences were ordered to run concurrently. The remaining three accused were acquitted.
The convicts have come up in appeal.
2. In the morning on 16-12-1977, Mst. Bahishtan sister of Mehmood Khan (deceased) was coming home from the fields. She saw buffaloes of Ashraf, accused, were damaging the wheat crop of her brother Mehmood Khan.
Mst. Sakina mother of Ashraf, accused, was also near by. Mst. Bahishtan protested to her and drove out the cattle from the fields. Mst. Sakina abused Bahistan. Mehmood Khan complained about it to Arif, accused, a brother-in-law of Mst. Sakina (her husband's brother). There was an altercation between Arif and Mehmood Khan. Mehmood Khan abused Arif who left saying that he would avenge the insult. Later the same day at 9 a.m.
Mehmood Khan and his brother Sultan Ali had come out of their Haveli and as they reached near the house of Ali Ahmad, Arif armed with a sword, Malik armed with a hatchet, Khalid son of Arif, Sadiq son of Inayat, Ashraf armed with sticks and Inayat empty handed, Inayat raised a Lalkara upon which, all accused opened attack.
Mehmood Khan and Sultan tried to run away but Malik inflicted a hatchet blow to Mahmood Khan which hit him on the left shoulder. Khalid and Ashraf inflicted a stick blow on his head. Arif gave a sword blow on his head.
Sadiq inflicted a stick blow on his right leg. Khalid inflicted a stick blow on the nose of Sultan Ali. Sadiq gave a stick blow on his head, he fell down. On the incitement of Inayat, all accused inflicted stick blows to him. The occurrence was witnessed by Boota,, Khan son of Hassan and Mst. Bahishtan. After belabouring the two brothers, accused went away. The injured were carried to Aziz Bhatti Shaheed Civil Hospital, Gujrat where they were examined for their injuries.
3. P.W.1 Dr. Muhammad Rashid Javed, Medical Officer, Aziz Bhatti Shaheed Civil Hospital, Gujrat, on 16-12- 1979 examined Mehmood Khan and found the following injuries on his person:-- "(1) Lacerated wound 1/2" x 1/4" x 1/4" on frontal part of right side of head (scalp).
(2) Incised wound 3" x 1/2" x bone deep. The bone underneath was cut. The injury was on the right side of head and three inches above the right ear.
(3) Contusion 1k" x I" on the upper part of front of right leg.
(4) Contusion 1" x 1" on the top of head.
(5) Incised wound 2" x 1" x 1" on left scapula. Scapula was cut." Injuries Nos. 2 and 5 were caused with a sharp-edged weapon, rest with blunt. Injury No,2 was grievous and dangerous to life. The remaining injuries were simple.
' Following injuries were found on the person of Sultan Ali (injured):-- "(1) Contusion 1/2 x 1/2" on left side of forehead.
(2) Two abrasions 1/4" x 1/4" on the nose.
(3) Contusion 2" x 1" on the left shoulder.
(4) Lacerated wound 3/4" x 1/4" x 1/4" on the left iliac crest.
(5) Abrasion 1/4" x 1/4" x 1/4" on left ring finger.
(6) Lacerated wound 1/4" x 1/4" x 1/4" on the left palm."
' All injuries were caused by blunt weapons. Injuries Nos.2 and 3 were kept under observation and advised X- ray. On 23-1-1978 Dr. Solmn F. Elahi reported that Sultan Ali has not appeared for X-ray.
4. After obtaining the medico-legal reports, Muhammad Boota went to Police Station, Jalalpur Ratan, situated at a distance of 21 miles from the place of occurrence. He made report Exh. P.D. To P.W.2 Muhammad Nazif Moharrir/A.S.I., who registerd the case. P .W.10 Sardar Khan, A .S.1, investigated the case. He took into possession blood-stained clothes of Mehmood Khan which were produced before him by Muhammad Boota (informant). He thereafer went to the place of occurrence and took into possession blood-stained earth. On the following day, at the spot, the A.S.I. Received information that Mehmood Khan had died. He then went to Civil Hospital, Gujrat, prepared the necessary documents, sent the dead body for its post-mortem examination and recorded the statement of Sultan Ali.
5. On 18-12-1977 at 10-30 a.m. P.W.6 Dr. Riaz Ahmad Chaudhary, Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat held the autopsy on the dead body of Mehmood Khan and found the same injuries on it.
' There was sharp-edged weapon cut on the head and the bone underneath was cut. There was a haemotoma round the wound. Right frontal, right parital and right temporal bone were fractured. A slight haemotoma was found under injury No,3. Brain matter and Meninges were lacertated and congested. There was clotted blood underneath injury No,5 which was caused by a sharp-edged weapon. It was 1" deep cutting the scapula. Stomr h contained semi digested food. Small and large intestine were slightly congested. Death in his opinion was due to shock and haemorrhage caused by injury No,1 which was sufficient to cause death in the ordinary course of nature.
6. On 19-12-1977, Inayat, Malik, Ashraf, Sadiq and Khalid accused appeared before the A.S.I. At the spot. He arrested them. On 23-12-1977, Arif, accused was arrested. On 24-12-1977 Malik got recovered bloodstained hatchet P.5 from his house. It was taken into possession vide memo. Exh. P.M. Khalid got recovered Sota P.6 from his house. It was taken into possession vide memo. Exh. P.N. Sadiq got recovered Sota P.7 from his house through memo. Exh. P.O. Ashraf got recovered his stick P.8 from his house vide memo Exh. P.Q. The four recoveries were attested by P.W.9 Nawab and Ashraf (given up). On 30-12-1977, Arif, accused, led to the recovery of blood-stained sword P.4 from his cattleshed. It was taken into possession through memo. Exh. P.K.
Attested by P.W.5 Muhammad Boota and P.W.9 Nawab Khan. Except Sultan Ali's statement, the Investigating Officer recorded the statments of other eye-witnesses on 16-12-1977. Sultan Ali's statement was recorded by him on 17-12-1977. After completing the investigation, the accused were sent up for trial.
7. All accused denied guilt. They asserted that there could be no question of damaging because the deceased and his brother did not own any field near the village. Explaining the case against him, Inayat made the following statement:- "I have been falsely involved in the case due to enmity as my real uncles Sardar Khan and Muhammad Ashraf murdered Mst. Rabia Bibi the mother of Muhammad Boota P.W. Moreover, his maternal-uncle Ahmad and Rehmat real brother of his father-in-law were also murdered by my uncles above mentioned. This Muhammad Boota P.W. Is the son of the real paternal-aunt of Sultan All P.W. And Mahmood deceased. Ahmad mentioned above was the real uncle of Mahmood deceased and Sultan All P.W. Sultan Ali, P.W. And Mahmood deceased were involved in many theft cases and had a number of enemies. The father of Khan Muhammad P.W. (not produced) was challaned for the murder of Hakam All the father of Sardar Khan and Muhammad Ashraf my uncles mentioned above. It is due to this long-standing enmity that I have been falsely involved in this case. The other accused Arif and Sadiq are my real sons and Malik, Khalid and Ashraf are my grandsons. We are the only adult male members of our family. The real first cousin of Nawab P.W. Namely Mst. Sardar Begum was abducted by my son Bashir. Moreover, this Nawab is the tenant of Boota P.W. Muhammad Ashraf P.W. Is the husband of Mst. Bahishtan P.W. Who is the real sister of Mahmood deceased and Sultan All P.W. Muhammad Ashraf and Sardar Khan my uncles had abandoned the village due to the fear of the complainant party after selling their land prior to this occurrence. I am 90 years old and cannot participate in such like occurrences nor do a grandfather involves his whole family, in such a case. We are the only adult male members present in the village who are involved in this case."
' The remaining accused also said that they have been falsely roped in due to long-standing enmity. No accused produced defence.
8. Relying on the solitary statement of injured P.W. Sultan All and the evidence of recoveries, trial Court came to the conclusion that the prosecution case was satisfactorily proved against the three appellants. It gave the benefit of doubt to the rest. It may be mentioned at the outset that the sentences awarded under section 392, P.P.C. To Khalid and Malik are obviously illegal. This error betrays trial Court's lack of elementary knowledge of criminal law.
9. Criticizing the finding, the learned counsel for the appellants contended that most of the eye-witnesses had been disbelieved and all eye-witnesses had been found to be interested. Sultan All had been relied upon only on the ground that he was an injured eye-witness. The evidence of recoveries was relied upon but this evidence too was given by the interested witnesses. Boota, informant, who had been disbelieved by the trial Court has been relied upon in so far as the recoveries from the accused were concerned. Keeping the interested nature of evidence in the absence of corrboration from an independent source, no reliance could have been placed on the statement of P.W. Sultan Ali.
10. I have considered the matter. The injured were first taken to the hospital and after obtaining medico-legal certificates, it was then that the case was registered. On their way from the place of occurrence to the hospital, police station fell on the way but the report was made after having obtained the medico-legal reports. It not only delayed the A F.I.R. But also forded an opportunity to the informant and the eyewitnesses to bring their statements in conformity with the medico-legal reports. In so far as the motive was concerned, neither the draftsman nor the Investigating Officer noted any damage to the crop, although, it was claimed by Boota and Mst. Bahishtan that there was a damage of about 2 Marlas. The prosecution case is that the land belonged to the deceased but it transpired that it belonged to one Jhanda Khan. None of the witnesses claimed that it was on tenancy with the deceased. Moreover, 21 Kanals of land being the small area would its owner give it on lease; it would not be profitable to both. Under the circumstances, the motive story was unsatisfactory. The next question for consideration would be whether reliance could be placed upon the testimony of the eye-witnesses.
Admittedly, the occurrence took place on the land of Ali Ahmad from within whose Dhari the accused were said to have emerged. Neither Ali Ahmad nor those who lived opposite and around the place of occurrence were eye-witnesses. The only eye-witnesses relied upon by the prosecution were admittedly interested. Boota was maternal-cousin of the deceased, Mst. Bahishtan was his sister; whereas Sultan Ali was his real brother. P.W.
Khan Muhammad was not produced. Under cross-examination Muhammad Boota admitted that Mst. Bahishtan was married in village Kotal situated at a distance of one mile from the place of occurrence but he asserted that Mst. Bahishtan and her husband lived in his village ever since their marriage, though, her husband owned no land in the village, he was employed in the Army. This circumstance was rather peculiar that though Mst.
Bahishtan's husband had no land in the village yet his family lived there. According to Mst. Bahishtan, her husband had reached the hospital on their telegram from Sialkot. He attested the recovery memos. Pertaining to the recoveries of hatchet P.5 from Malik and sticks of Khalid, Ashraf and Sadiq but he was given up. It is noteworthy that the address of Ashraf in the memos. Is given as "Sakna Kotla Soyan Hal Kot Ranjha". This indicates that Ashraf and his family which includes his wife Mst. Bahishtan would normally be permanent resident of Kotla Soyan. Keeping in view the fact that prosecution failed to prove that they had any interest in the crop which was alleged to have been damaged coupled with the fact that two addresses were given in the recovery memos. Attested by Bahishtan's husband, indicated that she had come there later like her husband.
Admittedly, Sardar and Ashraf uncles of Inayat accused were accused of the murder of Mst. Rabia and her brother Ahmad. Said Mst. Rabia was the mother of Muhammad Boota. This double murder proved previous enmity between informant and the accused who are closely related to each other. Arif and Sadiq are sons of Inayat. Khalid and Malik are sons of Arif. Undoubtedly, the relationsD between the complainant party and the accused were strained on account of previous murders. Since P.W.7 Sultan Ali bore injuries on his person, therefore, trial Court placed reliance on him. True, he has suffered injuries but this alone cannot be a criterian for believing all that her had said. It may be mentioned at the outset that according to the medical evidence, his six injuries were caused by blunt weapon. The two abrasions on the nose and a contusion on the left shoulder were kept under observation and he was directed to get them X-rayed but as reported on 23-1-1978, he did not appear before the radiologist for X-ray. Had there been any bony injury, he would have said so at the trial. Under these circumstances, his avoiding to get the injuries X-rayed clearly indicated that all his injuries were simple in nature. A reading of his medical report gives an impression that these injuries were not of serious nature.
According to the prosecution, the assailants were armed with sword, hatchet and sticks. Neither a hatchet nor sword was used against him. In the F.I.R., first injury inflicted to him was a stick blow by Khalid on his nose.
Sadiq gave the second blow on his head and after he fell, all accused gave him stick blows. Since three of them Khalid, Sadiq and Ashraf were said to be armed with sticks, it would thus follow that they inflicted the remaining four injuries to him. Under cross-examination, he stated that Ashraf gave a stick blow to him on his head but in his statement before the police, he had not mentioned whether Ashraf gave a stick blow on his head, therein, he said, that after having received injuries at the hands of Sadiq and Khalid, he fell down. The witness denied having said so before the police. A reading of his cross-examination indicates that as he was being contradicted with his statement before the police regarding his injuries he said that on the receipt of injury on the head, he felt giddy and therafter did not know which of the accused inflicted injuries to him. But in his examination-in- chief, he said that after having received injuries at the hands of Ashraf on the head, he fell down and thereafter he was given stick blows by Khalid, Ashraf and Sadiq. No doubt when a concentrated attack is made, it is very difficult for a witness to give particulars of injuries as inflicted. But under the circumstances of this case, at least the witness would know who gave the head injury to him after which he felt giddy. Moreover, only three accused who had sticks with them were his assailants. It was, therefore, not difficult for him to explain the details of attack on him which comprised only six injuries. Keeping in view the nature of his injuries and the fact that it is not the prosecution case that Sultan Ali had become unconscious, his presence at the spot to my mind was doubtful. His injuries not being serious are of the type which could be self inflicted. Moreover, there is enmity background between the parties. Although, the report was said to be made at 2 p.m. And the A.S.I. Claimed to have gone to the spot, strangely enough, he did not go to the hospital where the injured were said to be present. On the contrary, he reached there later on 17-12-1983 on receipt of the information that Mehmood Khan had died and it was therafter he recorded the statement of Sultan All P.W. But in his cross-examination, the A.S.I. Took up the position that the F.I.R. Was recorded at 2 p.m. When he was not present at the police station. He reached there at 3 p.m. And from there, he went straight to the hospital. It is noteworthy that he recorded the statement of Sultan Ali P.W. On the following day. It seems that injury statement of P.W. Sultan Ali was not prepared because it does not find mention in the statement of the Investigating Officer nor it is on the file. This circumstance also creates a doubt about Sultan Ali's presence at the place of occurrence on 16-12- 1983. As such the statement of Sultan Ali would be at par with that of Mst. Bahishtan and Boota.
11. The only two weapons which were said to be stained with human blood were hatchet of Malik P.5 and sword of Arif P.4. The sword was got recovered by Ashraf from within the roof of his cattleshed and hatchet had been concealed by Malik underneath the Charpai in his residential Kotha. In the recovery memos. Of these two weapons, the Investigating Officer had mentioned that the weapons had been concealed by the accused at the aforementioned places. If the accused were to conceal the weapons, then it would be improbable that they would let the blood remain on them, particularly, when they had enough time to wash it away. Keeping these circumstances, in view it is not necessary to dilate on the evidence of Nawab who attested the recoveries.
Suffice it to say that he is an inimical witness inasmuch as that Sardaran his cousin was abducted by Bashir a brother of Arif accused.
12. For the foregoing reasons, I am of the view that the prosecution case is not free from doubt. Giving the benefit of doubt to the appellants,I accept the appeal, set aside their convictions and sentences and acquit them of the charges. They shall be released forthwith, if not required, in any other case.