' Gulzar Hussain Shah son of Ghulam Sarwar caste Syed aged 35 years resident of village Jolyan, district Abbottabad, has been tried and convicted by Additional Sessions Judge, Rawalpindi, for the murder of Muhammad lqbal aged 25 years and sentenced to imprisonment for life and a fine of Rs,5,000 or in default to further undergo 2 years' rigorous imprisonment under section 302, P.P.C.
Vide judgment dated 27-2-1980. It was also directed that fine if realised shall be paid as compensation under section 544-A, Cr.P.C., to the heirs of the deceased. Feeling aggrieved the convict through this appeal has challenged his conviction and sentence.
2. The incident took place on 8-10-1976 at (mid-night) 12-30 a.m. At the Adda of Punjab Hazara Goods Transport in the vicinity of Sarai Kale, at a distance of 2 miles from police post Taxila and 4 miles from police station Sangjani, district Rawalpindi. It was reported by Muhammad Akhtar P.W.8, cousin of Muhammad Iqbal (deceased) vide statement Exh.P.E. Made at police post Taxila at 2 a.m.
(mid-night) recorded by S.I. Muhammad Ashraf P.W.10. On the basis of Exh.P.E., formal F.I.R. Exh.P.E./1 was drawn up by S.I. Javed Iqbal P.W.7 at 2-30 a.m., the same night.
3. The prosecution case briefly as gleaned from the F.I.R. Exh.P.E/1 is that Muhammad Akhtar is running a hotel near the place of occurrence where he was present on 8-10-1976 at about 12-30 (mid-night). At that time, Shaukat P.W.9, maternal-cousin of the deceased and Fateh Sher P.W. (not produced) were also present there taking tea. In the meantime, Muhammad Iqbal (deceased) who used to work as labourer at the truck stand of Punjab Hazara Goods Transport situate at a little distance from the hotel also came there and asked for food. Muhammad Akhtar replied that since it had finished he would prepare it for him. The deceased telling him that after preparing the food it should be sent to him and he himself left for the said Adda. He had hardly covered about 12 yards' distance that he was confronted by Gulzar Hussain Shah, appellant. Both of them quarrelled with each other over some money matter. During the scuffle the appellant allegedly whipped out a Chhuri from the fold of his Shalwar and dealt a blow with it in the abdomen of the deceased as a result of which he fell down and the appellant then decamped from the scene. This occurrence was witnessed by Muhammad Akhtar complainant P.W.8, Shaukat P.W.9 and Fateh Sher P.W. (given up). Muhammad Iqbal was removed in injured state to the nearby truck stand and placed on a cot where he succumbed to the injury. Leaving the dead body under the care of Shaukat and Fateh Sher P.Ws. Muhammad Akhtar repared to Police Post Taxila and lodged report Exh.P.E. There.
4. The motive for the attack is stated to be that about two months before the occurrence the deceased had beaten the appellant. The prosecution produced a copy of report No,9 of the daily diary of Police Station Khanpur, dated 22-7-1976 Exh.P.C. About deceased's injuring appellant. There is yet another report dated 27-7-1976 Exh.P.D. Showing that the appellant alongwith the deceased visited that police station again and lodged this report Exh.P.D. To the effect that they have buried their differences and therefore no further action be taken on the earlier report. Thus immediate motive for the occurrence is stated to be that they quarrelled over some money matter.
5. S.I. Muhammad Ashraf P.W.10 having recorded the report Exh.P.E. Left for the spot reaching there at 2-30 a.m. He prepared inquest report Exh.P.G. And despatched the dead body for post-mortem examination under police escort. The appellant was arrested and while under custody he allegedly got recovered blood-stained Chhuri P.5 from a bank of a Halle which was seized vide memo.
Exh.P.F., witnessed by Muhammad Akhtar P.W.8 and Shaukat P.W.9 besides S.I. Muhammad Ashraf P.W.10. According to Chemical Examiner's report Exh.P.J. And Serologist's report Exh.P.K. The Chhuri was found to be stained with blood of human origin. After completing usual investigation the case was challaned to Court.
6. Dr. Muhammad Siddique, Medidal Officer, D.H.Q. Hospital, Rawalpindi P.W.11 who had condu%ted post-mortem examination on the dead body of Muhammad Iqbal at 4 p.m. On 8-10-1976 notes a transversely oblique stab incised wound 1/2 x 1/2 deep into abdomen slightly on the left from mid line and 14" above the umblicus. Mesentry and abdomenal aorta were found cut through and through and the abdomenal cavity was full with blood and stomach contained six ounces of digested food. According to the doctor the death had occurred due to shock and haemorrhage as a result of injury to the abdomenal aorta which was sufficient to cause death in the ordinary course of nature. Death occurred immediately after receipt of the injury and the post-mortem carried out about 15 hours after the death.
7. At the trial 11 witnesses in support of the prosecution were examined. Of them Muhammad Akhtar P.W.8 and Shaukat P.W.9 provided the ocular evidence. They are also witnesses of recovery of Chhuri P.5 as well as of the motive.
8. At the conclusion of prosecution evidence the appellant in his statement under section 342, Cr.P.C., denied to have murdered the deceased. He also denied the recovery of blood-stained Chhuri from him and filed a written statement Exh.D.A. Explaining his false implication in the case.
He averred therein that the deceased had been done to death by some unknown persons in the dark hours of night and that he had been roped in merely an suspicion.
9. Learned trial Court on consideration of material on record disbelieved the recovery of Chhuri P.5 from the appellant on the ground that according to prosecution it took place on 20-10-1976 whereas the witnesses clearly stated that the appellant had got Chhuri P.5 recovered on 24-10- 1976. I would say that the learned trial Court rightly disbelieved the recovery. The learned trial Court, however, relying on the Ocular testimony held the appellant guilty for committing the murder of Muhammad Iqbal deceased and awarded lesser penalty for the reason that the attack was preceded by altercation between the deceased and the appellant. Feeling aggrieved the appellant has filed the instant appeal.
10. Learned counsel appearing on behalf of the appellant has argued that the prosecution case is doubtful for numerous reasons, i,e,, there is no motive for the appellant to put the deceased to death; the story of the complainant that the deceased had visited his hotel at mid-night to take the meals or that immediately thereafter the deceased was attacked and killed by the appellant near his hotel is falsified by the medical evidence inasmuch as the doctor who conducted post- mortem examination on the dead body of the deceased had found digested food in his stomach; the eye-witnesses, namely, Muhammad Akhtar P.W.8 and Shaukat P.W.9 belong to village Mirchabad situate at a distance of 4 miles from the place of occurrence whose presence at mid- night at the place of occurrence appears to be odd; and their testimony also is not convincing particularly because their conduct runs counter to the normal human behaviour inasmuch as they being closely related to the deceased did not raise alarm as such learned trial Court has erred in placing reliance on the same. He further argued that it is not established that the occurrence took place in the manner narrated by the prosecution witnesses and particularly the deceased was not attacked and killed at the place near the hotel of Muhammad Akhtar because no blood was found present there. Finally he argued that facts and circumstances of the case if viewed in their real perspective would lead to irresistable conclusion that the deceased who used to sleep during the night at the truck stand of Punjab Hazara Goods Transport was killed while asleep by some unknown person and unwitnessed by anybody. He, therefore, urged that there being no reliable evidence on record connecting the appellant with the crime, he deserves acquittal.
11. As against this, learned counsel appearing on behalf of the State has defended the impugned judgment. According to him the eye-witnesses had given a natural account of the occurrence what they had seen and that the fact that the F.I.R. Was lodged promptly goes long way to prove that the witnesses were present at the relevant time at or around the place of occurrence.
Furthermore, this is a case of solitary accused and there is no possibility of substituting him for anybody else.
12. I have carefully considered the arguments advanced by learned counsel for the parties and also perused the record.
13. It is not disputed that Muhammad Iqbal had died of violence. The main question which falls for determination is whether the occurrence had taken place in the manner narrated by the prosecution witnesses and that whether they had seen the killing with their own eyes as claimed by them. Admittedly, both Muhammad Akhtar and Shaukat, the eye-witnesses, are close relations of the deceased who had their permanent abode in village Mirchabad about 4 miles away from the place of occurrence. It is true that testimony of a witness cannot be discarded merely on account of his relationship with deceased. In a criminal case the first thing to be seen is whether the presence of the witness at the spot is probable and then whether the version given by him fits in with the ambient circumstances of the case or not? It is in evidence that Muhammad Iqbal deceased and Gulzar Hussain Shah appellant and Shaukat P.W.9 used to work at the same truck stand known as Punjab Hazara Goods Transport. It is also in evidence that Shaukat P.W.9 and Fateh Sher P.W. (not produced) used to return home after day's labour. There is nothing on record to show as to why they stayed at the truck stand on that particular day till 12-30 mid-night.
Muhammad Akhtar complainant stated that the deceased used to take his meals regularly at his hotel at evening time and that he used to sleep at the truck stand during the night. He further stated that the deceased did not take his meals in the evening on the day of occurrence and that he visited his hotel at 12-30 a.m. For taking food which was 1) not available. It is not understood that if the deceased had not taken his meals as usual at evening time then how the digested food was found in his stomach at the time of his death. It appears that the complainant has coined it as an excuse for the deceased's visit in order to become an eye-witness of the occurrence.
14. Shaukat and Muhammad Akhtar, both the eye-witnesses have admitted that they saw occurrence silently and did not raise alarm. They conceded that they did not warn the assailant to desist from inflicting injury to the deceased. This, to my mind, is highly unnatural behaviour on the part of these witnesses who are closely related to the deceased. Furthermore Shaukat P.W. Stated that he was present when the police arrived at the spot but he did not inform the Sub-Inspector about his having seen the occurrence with his own eyes. He also stated that Fateh Sher, the other eye-witness (not produced) was examined at 4-00 p.m. On the day of occurrence by the police, that is, after about 14 hours of the occurrence. These facts lead to irresistible conclusion that they were not present at the time of occurrence. Again, no blood was found lying in front of complainant's hotel where according to the prosecution story the deceased was attacked. It further makes the story doubtful that the deceased while returning from the hotel of Muhammad Akhtar P.W. Was attacked, hence there was no chance for Akhtar to see occurrence. The contention of learned counsel that the deceased was done to death while asleep during the night at the truck stand unwitnessed might be true.
15. For all these reasons I am of the view that ocular testimony coming from chance witnesses who are closely related to the deceased does not inspire confidence and as such it is not safe to rely on the same against the appellant on capital charge. In the result, this appeal is allowed, the conviction and sentence of the appellant is set aside and he is aquitted. He be releaed forthwith if not wanted in any other case.