' Rasoola son of Nibahu (50), Talib son of Rasoola (20), Lal son of Allah Wasaya (25), Muhammada son of Haider (38), Gul Muhammad son of Illahi Bakhsh (35) and Akbar son of Ghulam Rasool (35) have been tried by Sessions Judge, Muzaffargarh who convicted and sentenced ' them under section 148, P.P.C. To imprisonment for life and a fine of Rs,1,000 each or in default of payment of fine to undergo one year's R.I. Each, for having committed the murder of Ahmad Bakhsh aged 35 years on 27-3-1978 in prosecution of the common object of unlawful assembly of which they were the members within the area of village Notak on 27-3-1978. All of them have preferred a joint appeal (Criminal Appeal No,1341/79) against their conviction and sentences. Din Muhammad complainant has also filed a revision petition (Criminal Revision No, 100 of 1980) for enhancement of the sentence of the appellant to death. This order would dispose of both the Criminal Appeal and the Criminal Revision as well.
2. The matter was reported by Din Muhammad (P.W.10) brother of Ahmad Bakhsh deceased to Muhammad Asghar, A.S.I. (P.W.9) at 8-30 p.m. The same day in D.H.Q. Hospital D.G. Khan. According, to Din Muhammad complainant he and his brother Ahmad Bakhsh deceased were returning home at 2 p.m. After making purchases from Basti Malana. When they reached near the tubewell of Rasoola appellant on a thoroughfare there came Rasoola and his son Talib appellants armed with sticks shouting Lalkaras that they would not leave Ahmad Bakhsh to go alive and attacked him.
Ahmad Bakhsh ran towards West to save his life whom they chased.At a distance of two furlongs near the tubewell of Allah Wasaya, Akbar armed with Sarya, Gul Muhammad armed with hatchet and Lal and Muhammad appellants armed with Sotas came from the front side, encircled Ahmad Bakhsh deceased and then all of them started inflicting blows to him. Karim Bakhsh (P.W.11) another brother of the deceased and Matti Bakhsh his sister's son hearing commotion also reached at the spot and witnessed the occurrence. Ahmad Bakhsh at last fell down on receipt of a hatchet blow on his leg given by Gul Muhammad appellant. The witnesses being empty handed kept beseeching the appellants but they did not listen and left the spot only when they saw the deceased had fallen unconscious. The motive of the attack was stated to be the suspected liaison of the deceased with Mst. Khairo wife of Rasoola appellant. Ahmad Bakhsh deceased was removed in an injured condition to the District Headquarter Hospital, D.G. Khan. In view of the precarious condition of Ahmad Bakhsh the Medical Officer sent Rukka Exh. P.L. To S.H.O. City D.G.Khan for taking necessary action. Muhammad Asghar A.S.I. (P.W.9) in response to the said Rukka reached the hospital and inquired from the doctor through application Exh.P.E if Ahmad Bakhsh was fit to make a statement. The doctor reported vide his reply Exh.PE/1 in the negative. He therefore, recorded the statement of Din Muhammad (P.W.10) in the hospital at 8-30 p.m. The A.S.I. Sent his statement Exh.P.A. Alongwith the relevant papers to Police Station Kot Chutta through Ahmad Bakhsh Constable for registration of the case there, since the occurrence related to their territorial jurisdiction. Formal F.I.R. No, Exh. P.A./1 on the basis of Exh.P.A. Was drawn up by-Muhammad Rafiq, Head Constable (P.W.8). Saeedullah Khan A.S.I. (P.W.13) of Police Station Kot Chutta was investigating a case F.I.R. No,30/78 under section 364, P.P.C. In the Ilaqa when he learnt about the registration of this case, at 11 a.m. He rushed to the spot and as it had already become very late, in the night, therefore, he postponed investigation till the following morning.
3. On 28-3-1978, he collected blood-stained earth from the spot and took it into possession after preparing its sealed parcel vide memo. Exh. P.G. He received an information the same day that Ahmad Bakhsh had died in the hospital. He then made for District headquarter Hospital, D.G. Khan.
Reaching there he prepared injury statement Exh. 'P.J. And inquest report Exh.J/1 pertaining to the deceased and handed over the dead body to Muhammad Sadiq Constable (P.W.2) for taking the same to the mortuary for post-mortem examination. On 29-3-1978, Muhammad Sadiq Constable produced before him clothes Exhs. P.1 and P.2 of the deceased which he took into possession vide memo. Exh.P.L.
4. On 30-3-1978 Din Muhammad complainant produced before him the last worn clothes of the deceased Exhs. P.3 to Exh. P.6 which were also taken into possession vide memo. Exh. P.M. He arrested Talib, Lal and Muhammada appellants on 4-4-1978 who had produced Lathis Exh.P.7, Exh.P.8 and Exh.P.9 respectively, which were taken into possession vide memo. Exh. P.N., Exh. P.O and Exh.P.Q respectively. Rasoola, Akbar and Gul Muhammad surrendered before the Investigating Officer on 6-4-1978 and produced iron bars Exh.P.10 Sota P.11 and hatchet P.12 respectively which were taken into possession vide memos. Exh. P.R. Exh. P.S and Exh.P.T. Respectively. It may be mentioned that none of the aforesaid weapons of offence were stained with blood. Ghulam Hussain, Patwari P.W.3 prepared the site plans in triplicate Exh. P.B., Exh. P.B./1 and Exh.P.B./2 on 13-3- 1978, in the scale of 40 Karams to an inch. The A.S.I. Also made thereon certain entries with red ink.
After completing the necessary investigation, he put a challan against all the appellants in Court.
5. Dr. Iftikhar Hussain Khosa, Medical Officer (P.W.4) medically examined Ahmad Bakhsh on 27-3- 1978 at 5-45 p.m. When he was alive and found the following injuries on his person:-
(1) Thete was a swelling 3" x 2" on left side of head about 21" from left ear in the middle and anterior part of head.
(2) There was a swelling 3" x 3" on middle top of head slightly towards the left side and about 31" from left ear close to injury No,1.
(3) A lacerated wound on injury No,1, measuring about 11 x 1" was found.
(4) There was a lacerated wound 2" x 1/4" x 1/2" on injury No,2.
(5) There was an incised wound 4" x 1/4" x 1/2" on front of right leg.
(6) There was swelling 4" x 3" on left lower leg including ankle joint.
(7) There was contusion 7" x 2" on middle of back.
(8) There was contusion 3" x 1" on right side of back in lower part.
(9) there was contusion 4" x 1" on back of right shoulder.
(10) There was a small abrasion on back of left index fingure.
(11) There was contusion 3" x 1" on left buttock.
(12) There was swelling 3" x 2" with contusion over it on left upper chest close to arm.
' The deceased expired on 28-3-1978 at about 3 p.m. He conducted autopsy on the dead body of Ahmad Bakhsh on 29-3-1978 at 9 a.m. In the post-mortem report Exh. P.K. He mentioned the following injuries:-
(1) There was a curved stitched wound 7" in length in the form of semi-circle on left side of head 3" from left ear, and the wound was unstitched by me and was found incised in nature.
(2) There was a stitched wound on left side of head 14" in length below injury No, 1 and at a distance of 24" from left ear. The wound was unstitched by me and was found lacerated in nature.
(3) There was a stitched wound on back of head 2" in length slightly towards left side and about 24" from left ear, which was unstitched by me and was found to be lacerated.
(4) There was a stitched wound 1/2" in length on front of right leg which was unstitched by me and was found to be incised.
(5) There was swelling 4" x 3" on left lower leg including ankle joint.
(6) Contusion 7" x 2" on middle of back.
(7) Contusion 3" x 1" on right side of back in lower part.
(8) Contusion 4" x 1" on back of right shoulder.
(9) Small abrasion on back of left index finger.
(10) Contusion 3" x 1" on left buttock.
(11) Swelling 3" x 2" with contusion over it on left upper chest close to arm.
' According to him all the injuries were caused by blunt weapons except injury No,5 which was caused by sharp-edged weapon. Injury No,1 is operation scar. The cause of death was haemorrhage shock and compression of brain. Injuries Nos. 2 and 3 which were found grievous and fatal were found as sufficient to cause death in ordinary course of nature. Probable time between injuries and death was 25 to 30 hours and between death and post-mortem was about 18 hours.
The injuries of the deceased were shown in pictorial diagrams Exh. P.K. /1 and Exh. P.K./2.
6. At the trial, the prosecution examined 13 witnesses in support of its case. The case against the appellants hinges on the ocular account furnished by Din Muhammad P.W.10, Karim Bakhsh P.W.11 and Elahi Bakhsh P.W.12 recoveries of weapons of offence, deposed to by Faiz Muhammad P.W.7 and Saeedullah Khan, A.S.I. (P.W.13), who is also the Investigating Officer.
7. The appellants when examined under section 342, Cr.P.C. By the trial Court made denial simplicitor and professed innocence. They maintained that the P.Ws. Were inimically disposed towards them. They also declined to produce evidence in defence.
8. Learned counsel appearing for the appellants contended that the eye-witness account has been furnished by the witnesses who are related inter se and are also the close relations of the deceased having enmity with the appellants; no independent corroborative evidence is forthcoming, the recoveries are worthless which have also been disbelieved by the lower Court and the motive part of the story is also not believable because it has been narrated by an eye-witness whose evidence, even as an eye-witness merits to be thrown away. It is an admitted proposition of law that a witness cannot corroborate his own evidence, that being so, if Din Muhammad is disbelieved as an eye-witness of the occurrence, there would be no justification to believe him on the point of motive.
9. Learned counsel appearing for the State as well as the counsel appearing on behalf of the complainant have contended that the ocular account furnished by the P.Ws. Should be believed as it stands corroborated by the medical evidence. They frankly conceded that the evidence of recoveries and of no motive,is of no consequence in this case inasmuch as the recovery weapons are not stained with blood. The recoveries have no intrinsic value also for the added reasons that the recovery witness, Faiz Muhammad (P.W.7) is the maternal-cousin of the deceased. In view of the concession of the counsel for the State and the complainant, the reovery evidence is ruled out of consideration.
9. I now proceed to analyse the evidence of the eye-witnesss which is the principal item rather the only evidence in this case which need be considered for the just decision of this case.
10. Din Muhammad complainant (P.W.10) and Karim Bakhsh (P.W.11) are admittedly the real brothers of Ahmad Bakhsh deceased whereas Elahi Bakhsh (P.W.12) is his maternal-nephew and a son-in-law of Din Muhammad complainant. They supported the prosecution case alright but they are so closely related that their evidence must be scrutinized with care and caution. The first point which should be seen is, as to whether the witnesses could reasonably be expected to be present at the scene of offence at the relevant time.
11. The complainant claimed that he and his deceased brother Ahmad Bakhsh had gone to Basti Malana for making certain purchases and on their return journey they were passing near the tubewell of Rasoola appellant when they were challenged. To save his life. Ahmad Bakhsh ran towards west. He was chased by Ras000la and his son Talib appellants. When they reached near the well of Allah Wassaya (not a witness in the case) the other four appellants namely, Akbar, Gul Muhammad, Muhammada and Lal came armed from the front side. They encircled the deceased and beat him to unconsciousness. On hearing alarm the only persons who arrived at the scene were their own kith and kin namely, Karim Bakhsh (P.W.11) a real brother and Ellahi Bakhsh (P.W.12) the maternal-nephew of the deceased.
12. The prosecution wants the Court to believe that the deceased was chased by the two appellants namely, Rasoola and his son Talib who were followed by the three eye-witnesses and all of them ran through the crops yet trampling or smothering of the wheat plants or other crops had not taken place. It was not so found by the Investigating Officer during the site inspection. It is not believable that when Ahmad Bakhsh was running for life he chose to run on Banna taking strict care to avoid and save the crops from being damaged.
13. The presence of the witnesses at the spot also does not appear to be true. Admittedly the place of occurrence is situated at a distance of 3/4 miles from the house of Karim Bakhsh and Din Muhammad P.Ws. Another eye-witness, Elahi Bakhsh is the maternal-nephew of the deceased who lived at Chah Dhoriwala. In between the place of occurrence and his residence another Chah intervened which would mean that at least five square distance 'must be there. However, Din Muhammad admitted that Elahi Bakhsh P.W. Lived 1-2 miles away from the spot. According to Elahi Bakhsh P.W., he was busy pulling Sinjee grass from the fields of his uncle at the relevant time, when Karim Bakhsh P.W. Happened to pass near him and sat with him to inquire about each other's welfare. Both of them conceded that they met each other per chance and that Elahi Bakhsh did not have any cultivation of his own at or around the place of occurrence. Again the place where they were allegedly sitting was differently described by each of them. According to Elahi Bakhsh P.W. He was sitting with Karim Bakhsh at a distance of about 11 Acres wherefrom hearing alarm they went to see the occurrence. Karim Bakhsh P.W. Gave the distance of that place as 4 Acres. The prosecution should have proved by producing revenue record that Ramzan an uncle (if any) of Elahi Bakhsh P.W. Owned land or had cultivation near the place of occurrence, wherefrom Elahi Bakhsh was pulling the grass. But this has not been done. Again the place of their presence was not shown to draftsman nor was it indicated in the site plan. Elahi Bakhsh P.W. Made an abortive attempt to show himself a resident of Chah Dhoriwala, a nearby place to the spot. He denied to be residing at Chah Sabqiwala, where Din Muhammad and Karim Bakhsh P.Ws. Resided. To his dismay he was confronted with his statement before the police, wherein his address was described as "Chah Sabqiwala" which was admittedly at a distance of 3/4 Killas. At a distance of about one or one and a half Acres from the spot, there are Abadis called Chah Pathaniwala and Wasayawala, but none from those places was attracted to the place of occurrence to see the murder in spite of the fact that the witnesses continued 'raising alarm upto a distance of two furlongs, when the appellants were allegedly chasing the deceased.
15. It is very strange that brothers and a nephew of the deceased resident of far off places reached at the scene but none from those living in the vicinity could hear about or see occurrence.
16. The story of the complainant, that he and his deceased brother had gone to Basti Malana for making certain purchase and that the attack was made on them when they were returning home, is also not free from doubt. Din Muhammad complainant, when asked about the presence of articles which they had purchased from Basti Malana, replied that while his brother was running to save his life he threw away the Gathri and he did not pick it up thereafter. If it was so, then the aforesaid articles must have been found lying at or near the place of occurrence during spot inspection and also some money must have been found by the doctor on the person of the deceased, at the time of ante-mortem or post-mortem examination. The Investigating Officer did not find the same either. Din Muhammad also stated that he did not know if after making the purchase his brother was left with some money or not. All these factors depict the sceptical conduct of the witness and suggest that they had never gone to Basti Malana for making purchases nor were they attacked, when they were returning home.
17. It is in the evidence that the deceased had been warned by Rasoola appellant about three months before the occurrence, not to pass that way because they had suspected liaison of the deceased with Mst. Khairo wife of Rasoola appellant. It is not understood as to why the deceased became in different to those threats and risked to go towards that area. If at all he had any business in Basti Malana he could have easily avoided to pass near the well of Rasoola appellant which admittedly situates near the place of occurrence. The house of the deceased is towards the south-east of the place where he was challenged first but instead of running towards his own house he seemed to have chosen to escape towards the house of the appellants, as indicated in the site plan. This is also improbable that the deceased would run for life towards the house of his enemies i.e,, the appellant instead of his own house.
18. The antecedents of the deceased are chequered. It is admitted by the witnesses that he was challaned in a case under section 324/ 452/34, P.P.C. But was acquitted. In the year 1974 also he was reported against at Police Station Chutta by one Allah Ditta Jalbani for committing an offence under section 324/34, P.P.C. In which case also he was acquitted. These facts prove that the deceased was of aggressive and unruly character and because he was acquitted in a few criminal cases, therefore, the frustrated complainants of those cases might have thought to settle their accounts themselves with him. May be that he was spotted out in the company of some woman in an objectionable position and was done to death.
19. The number of injuries on the person of the deceased is highly incommensurate with number of accused involved. It is not believable that six persons would inflict only 12 injuries each giving two Injuries to the deceased. Gul Muhammad who was armed with a hatchet is said to have given one blow only throughout the occurrence and that too a simple injury on the leg. It does not stand to reason that a person coming armed with a hatchet with an avowed purpose to kill the deceased would rest content by giving a solitary simple injury on his legs. In the circumstances, one cannot help entertaining a suspicion that the prosecution story was drawn up after medical report was obtained and then worked out the number of persons to be involved in the case.
20. Another adverse circumstance which stares in the face of the prosecution is that the complainant-party reported the matter to the police with sufficient rather culpable unexplained delay. It means that they held prolonged deliberations. On their own showing they had passed in front of the Police Station Kot Chutta, while carrying the deceased (then alive) to the hospital, but still none of them dropped there to lodge the report. It may be said that they were in hurry toG take the injured to the hospital to save his life. Question is that how many persons were required for taking the injury to hospital. At that moment admittedly 10/12 persons were accompanying the injured person. In these circumstances only one person out of them could have easily got down from the bus to lodge the report with the police which further cast doubts about the genuineness of the F.I.R.
21. To sum up, the ocular evidence consists of interested witnesses which lacks corroboration; the presence, of eye-witnesses at the spot was per chance, which is open to serious doubts. The story that the complainant and the deceased had gone to Basti Malana for making purchases is highly improbable. The unexplained delay caused in lodging report at the police station has driven the last nail in the coffin.
22. For the foregoing reasons, I hold that the case of the prosecution is replete with doubts and there is no reliable evidence available on the record to support the conviction of the appellants.
23. The result is that the appeal is accepted, the conviction and sentence are set aside and the appellants are acquitted. They shall immediately be released if they are not wanted in any other case. The revision petition for enhancement fails automatically.