' Ghulam Rasool aged 27 years and Muhammad Idress aged 21 years were prosecuted for the murder of Muhammad Yaqoob deceased under section 302/34, P.P.C. They were however, both convicted by learned Additional Sessions Judge, Okara by judgment dated 16-11-1983 under sectio 304(11), P.P.C. And sentenced to ten years' R.I. Plus a fine of Rs,5,000 or in default two years' R.I. Each.
It was further ordered that if the fine is recovered, Rs,6,000 will be paid to the heirs of the deceased.
Both have come up in appeal against their conviction and sentence.
2. The prosecution case in brief, according to the F.I.R., is that some time before the occurrence, Ghulam Rasool accused on the day of his marriage started playing gramophone records on a loudspeaker in high tone. It was objected to by 11am Din, a brother of Muhammad Yaqoob deceased. ,n 11-8-1980, at about 6-30 a.m., Muhammad Yaqoob deceased went to the mosque for morning prayers. When he came out of the mosque, he saw Ghulam Rasool and Muhammad Idrees appellants beating Ghulam Nabi P.W.6, a servant of his brother Ilam Din P.W.5. He rescued Ghulam Nabi from the accused who then ran away from the spot. At this, it is stated in the F.I.R., that Ghulam Rasool and Muhammad Idrees caught Muhammad Yaqoob deceased and struck their heads against his body. In the meanwhile, Ghulam Rasool picked up a Gandhala and inflicted injuries on the head, forehead and neck of Muhammad Yaqoob deceased. The occurrence was witnessed by Riasat All P.W.7, Zulfiqar P.W.8 and Muhammad Riaz (given up P.W.). The deceased who had fallen down on receipt of the injury went unconscious. He was taken to his house where the father of Ghulam Rasool accused came to entreat the complainant party to compromise the matter and not to report the case to police. The Panchayat failed whereafter Muhammad Yaqoob was taken to the hospital and after getting the medico-legal report, the present case was registered on the statement of Riasat All P.W.7 on 13-8-1980, at 3-05 p.m. After registration of the case, the police undertook investigation. The two appellants were arrested on 16-9-1980. On that very day, Ghulam Rasool accused got recovered Gandhala P.4 which was taken in possession vide memo. Exh.P.M. By Mahmood Ahmad S.I. P.W.13 in presence of Muhammad Yousaf and Khadam Hussain P.Ws. (both not examined). This Gandhala was not stained with blood and as such not sent for examination. The accused were challaned after investigation. They were convicted and sentenced as stated above.
3. During the trial, the prosecution examined 13 witnesses in all. Ghulam Nabi P.W.6 is a servant of Ilam Din P.W.5, Riasat All P.W.7 a brother of Muhammad Yaqoob deceased and Zulfiqar Ali P.W.8, a cousin of the deceased, were examined as eye-witnesses. Muhammad Riaz was given up as unnecessry. Ilam Din P.W.5, a brother of the deceased, provided evidence regarding motive for the present occurrence. Dr. Safdar Ali P.W.1 had conducted post-mortem examination on the dead body of Muhammad Yaqoob deceased who had died on 5-3-1981 in the hospital. Dr. Muhammad Siddique P.W.2 had medically examined Muhammad Yaqoob on 12-8-1980 when he was still alive.
He had found the following injuries on his person:-
(1) A swelling 21/2" x 2" on the right side of forehead just above the eye-brow.
(2) A swelling 21" x 2" on the left side of forehead and above hair line of forehead just to left of middle line. The injured was unconscious at the time of examination with a pulse of 88 per minute and temperature 101 degrees F in the axilla.
(3) A swelling 3" x 2" on the middle line of the base of the back of the neck and on the mid-vertebral line of upper dorsal vertebrae and the 7th cervical vertebra. The 7th cervical vertebra and the adjoining dorsal vertebrae project upwards and so, more prominent than the normal.
(4) Multiple, about 6, abrasions, nail marks on front of neck spreaded on 11" x 11" area just below the larynx, horizontally.
(5) The neck as a whole was swollen and contused all around.
(6) A swelling 2" x on the front and under surface of the chin.
(7) A swelling 4" x 3" on front of chest above the level of nipples on middle part of it.
' According to him, the 7th cervical and the adjoining dorsal vertebrae appeared to have been fractured/dislocated. He kept those injuries under observation. According to him, all the injuries had been caused by blunt weapon within about 36 hours. Dr.Shahzad Qamar P.W.12 had attended him as a House Surgeon in the General Hospital, Lahore where Muhammad Yaqoob had been referred on account of the head injuries. He had found Muhammad Yaqoob deeply unconscious.
He also noted bilateral decerebrated response, pupils equal and reacting to light. Muhammad Yaqoob who had regained consciousness and was improving, Aped paralysis of left side and became unable to speak. Dr. Safdar Ali P.W.1 on post-mortem examination had found the scalp and skull having holes on both parietal regions. The membranes and brain were found congested.
Oedema was present in the body. Spinal cord also showed congestion. There were adhesions of spinal cord with dura mater at the level of 7th cervical and first thoracic vertebrae. The spinal cord was found slightly softened. Lungs were also congested. In his opinion, the death was due to concussion of brain, oedema of spinal cord which was sufficient to cuase death in the ordinary course of nature. Mahmood Ahmad S.-I. P.W.13 investigated the case. The other witnesses were of formal nature.
4. Muhammad Idrees appellant denied his presence at the spot in his statement under section 342, Cr.P.C. Ghulam Rasool accused when examined under section 342, Cr.P.C. Denied the charge and pleaded that the occurrence had taken place all of a sudden when he and Muhammad Yaqoob deceased grappled with each other over a dispute relating to the turn of bath. The accused did not produce any evidence in defence.
5. I have gone through the entire record in this case with the assistance of learned counsel for the appellants and the State. I find that no one of the witnesses has any enmity with the accused.
There A was no previous enmity between the parties except the one stated by Ill am Din P.W. It was stated by him that about 2 1/2 months before the present occurrence, Ghulam Rasool accused had placed a loud speaker at the time of his marriage and started playing obscene songs to which he had objected to the annoyance of Ghulam Rasool accused. The second motive in this occurrence was stated by Riasat Ali P.W.7 when he had seen Yaqoob deceased rescuing Ghulam Nabi P.W.
From the two appellants. This was the immediate motive. Ilam Din P.W.5 has fully supported this motive. He has got no enmity with the accused and I see no reason to disbelieve him on this point.
The learned trial Judge has held that the motive was not proved by the prosecution. I am not prepared to agree with him on this finding because the evidence of motive is provided by an independent witness who himself had gone to Ghulam Rasool accused to ask him not to play obsene records on the loud speaker. In the instant case, this evidence provides corroboration to the ocular evidence. So far as Zulfiqar P.W.8 is concerned, no doubt he was named in the F.I.R. As an eye-witness but his statement under section 161, Cr.P.C. Was recorded on 14-9-1980 i,e, after about one month and three days of the occurrence. He was not a witness of the locality. His house is about 50/60 Karams from the spot and he has made material improvements during his statement in Court. He is a cousin of the deceased and as such I exclude his evidence from consideration.
6. Riasat All P.W.7 is a brother of the deceased. He has narrated the incident in a clear and natural manner. It was argued by the learned counsel that the story put forth by this witness is improbable because if he had been present at the spot, he must have tried to intervene and rescued his brother Muhammad Yaqoob from the accused. He did not do that and as such, was not a reliable witness. It was further argued by the learned counsel that he was a solitary witness in this case and although many residents of the locality had reached the spot at the time of occurrence but Riasat All P.W.7 has not been supported by any of them during the trial. It was next contended that there was delay in lodging of the F.I.R. And for that reason Riasat Ali, a brother of the deceased should not be relied upon. It is correct that this witness is brother of the deceased and the report was lodged after delay of more than two days, but in my opinion, this is not enough, in the facts and circumstances of this case, to disbelieve this witness. Mere relationship is no ground to discard his testimony. He has got no enmity whatsoever to falsely depose against the present appellants. It has not been brought on record if there were any other enemies of the deceased who could have inflicted injuries on his person. In the instant case, Ghulam Rasool accused has admitted the time, place and date of occurrence. He has admitted his own presence and quarrel with the deceased.
This admission of Ghulam Rasool also lends support to Riasat All P.W.7. So far as the delay in lodging of the F.I.R. Is concerned, it will be noted that according to the F.I.R. As well as according to the explanation offered by Riasat All in his statement during the trial, the father of Ghulam Rasool immediately contacted the complainant party for a compromise. A Panchayat was convened which remained in session for two days but did not succeed to bring compromise between them. It was thereafter that the injured was taken to the hospital for treatment and the case was got registered. This explanation, in my view, is satisfactory. In villages, people do try to patch up matters between themselves without having resort to judicial process. As is clear from the evidence, the deceased died on 5-3-1981 i,e, after about seven months of the occurrence. The witnesses might have, at that time, considered that the condition of Muhammad Yaqoob was not serious and for that reason had agreed to enter in negotiations for compromise with the accused party. Thus, the delay in lodging of the F.I.R., in no way, discredited Riasat All P.W.7. The witnesses of the locality as stated in the F.I.R. And as admitted by Riasat All P.W.7 did reach the spot at the time of occurrence. It is a fact that they were not examine during the trial. It is a matter of common knowledge that in such like matters, people generally try to avoid giving evidence for one party or the other. In this view of the matter, the non-examination of those persons is not material specially when the accused has himself admitted his presence and the occurrence. In view of the above discussion I find that Riasat All P.W.7 was present at the relevant time and he witnessed the occurrence. He is an independent witness and requires no corrobration to his ocular evidence in Court. There is the recovery of Gandhala P.4 from Ghulam Rasool accused. It is correct that the same was not stained with human blood but this fact alone will not justify the conclusion of the learned trial Judge that the said recovery was meaningless in this case. According to the F.I.R., theE accused had used Gandhala for inflicting injuries on the person of the deceased. The Medical Officer found seven injuries on Muhammad Yaqoob by blunt weapon. It is correct that the accused has denied this recovery and the two recovery witnesses have also not been examined but there is nothing to disbelieve Mahmood Ahmad P.W.13 who was not seriously cross-examined on this point.
The recovery of Gandhala P.4 from Ghulam Rasool accused also lends support to the statement of Riasat All P.W.7.
7. Ghulam Nabi P.W.6 was not named as an eye-witness in the F.I.R. From a perusal of his examination-in-chief also it appears that he was not an eye-witness of the occurrence. However, he has fully supported the prosecution case regarding the immediate motive of the present case.
He was a servant of Dam Din P.W. a brother of Muhammad Yaqoob deceased but did not have any enmity with the accused. In view of the above I find that the prosecution has succeeded in establishing its case against Ghulam Rasool appellant. So far as Muhammad Idrees accused is concerned, he was empty handed and is said to have caused injuries with his head only. He did not have a direct motive to cause injuries to Muhammad Yaqoob deceased or Ghulam Nabi P.W. I G find that the case against him is not free from doubt. He is given the benefit of doubt and acquitted of the charges.
8. As a result of above discussion the appeal of Ghulam Rasool appellant is dismissed and his conviction and sentence is maintained. If H the fine of Rs,5,000 is recovered, the entire amount will be paid to the heirs of the deceased. He will also be allowed benefit under section 382-B, Cr.P.C. At the time of computation of sentence in prison. s .