Muhammad Amir (29) and Munir Ahmad (33), sons of Ahmad All, caste Wattu, residents of Mauza- Dalilke, Police Station Arifwala, were tried by the learned Additional Sessions Judge, Sahiwal, on the allegations that on 24th April, 1979 at Degarwela they committed the murder of Wali Muhammad deceased and made murderous assault on Sabir Ali P. Vv. In the area of village Dalilke, in furtherance of their common intention. By judgment, dated 19th May 1980, they were convicted under sections 302 and 323/34, P.P.C. Under section 302/34, P.P.C. They were sentenced to imprisonment for life and a fine of Rs.5,000 each or in default in the payment of fine to undergo further rigorous imprisonment for one, year each. Under section 323/34, P.P.C. They were sentenced to a fine of Rs.500 each and in default in the payment of the same to suffer simple imprisonment for fifteen days each. The fine, if recovered was ordered to be paid to the legal heirs of the deceased as compensation. The convicts have appealed. Muhammad Hussain complainant has filed Criminal Revision No. 616 of 1960 for enhancement of their sentence to death. Both these matters shall be disposed of by this judgment.
2. The brief facts of the prosecution case are that on 24th April, 1979 at about Degarwela Muhammad Hussain complainant, father of Wali Muhammad deceased, was having a round of his wheat crop in Killa No. 5 of Square No. 5 in the area of village Dalilke. He heard alarm and rushed to Killa No. 11 of Square No. 3. In the meantime, Sultan Ahmad P.W., Asghar and Irshad Ahmad (not produced) also reached there. They saw Muhammad Amir and Munir Ahmad appellants giving hatchet blows to Wali Muhammad deceased. On receiving the blows Wali Muhammad fell to the ground. Both the accused also gave hatchet blows with wrong side of the hatchet to Sabir Ali P.W.
Who gave stick blows to both of them in self-defence. After the occurrence, the accused persons fled away from the spot taking away their weapons with them. Wali Muhammad deceased succumbed to his injuries at the spot. The complainant alongwith his companions brought the dead body of Wali Muhammad deceased to his house. Thereafter he proceeded to Police Station Arifwala and reported the occurrence to Muhammad Aslam Hayat, S.H.O. At 7-15 p.m. Vide F.I.R. Exh.
P.D.
The motive for the occurrence was that on the morning of the day of occurrence the goats of the accused persons entered the Ihata of Sabir P.W. And started eating the mustard seed lying there.
Wall Muhammad deceased drove out the goats from there by giving stick blows, upon which Mst.
Aisha, sister of the accused-persons, abused Wali Muhammad deceased who abused her in return. Mst. Aisha advance a threat that she would take revenge for the insult through her brothers.
3. After recording the F.I.R. Muhammad Aslam Hayat, S.H.O proceeded to the house of Muhammad Hussain complainant. He prepared the injury-statement Exh. P.M. And inquest-report Exh. P.N. Of the dead body of Wali Muhammad deceased and despatched it to the mortuary for post-mortem examination. On the following morning he visited the spot and took some blood-stained earth in his possession and made it into a sealed parcel vide memo Exh. P.O. He arrested the accused persons or 27th April 1979. Muhammad Amir accused, while in custody, led to the recovery of blood-stained hatchet, Exh. P.2, from underneath a cot of his residential Kotha which was made into a sealed parcel vide memo Exh. P.K. Thereafter, Munir Ahmad accused, while in custody, led to the recovery of blood-stained hatchet, Exh.P.3, from underneath a box lying in his house. It was made into a sealed parcel vide memo Exh, P.L. The S.H.O. Prepared the injury-statement Exh. P.Q. Of Sabir Ali P. W. And got him medically examined. He also prepared the injure-statements Exh. P.R.
And Exh. P.S. Of Muhammad Amir and Munir Ahmad accused, respectively, and got them medically examined. After the investigation, the accused persons were challaned.
4. On 25th April, 1979 at 10 a.m. Dr. Muhammad Hussain Chaudhry, Medical Officer, Civil Hospital Arifwala (P.W. 8) conducted the autopsy on the dead body of Wali Muhammad and found the following injuries on it:- (1)Incised wound 9 c.m. x 2 c.m. x muscle deep on the front of right shoulder.
(2)Incised wound 10 c.m. x 4 c.m. x muscle deep on the front of right shoulder 2 c.m. Inner to injury No. 1.
(3)Incised wound 16 c.m. x 7 c.m. x cutting the underneath structures, main blood vessels, third cervical vertebrae and clavicle bone on the right side of neck going to the root and upper part of front of right chest. Spinal cord cut under injury No. 3.
On 26th April 1979 Dr. Captain Nazir Ahmad, Medical Officer, Civil Hospital, Kamir, examined Sabir Ali P.W. And found the following injuries on his person:- (1)A bruise on the right scapular region in the centre which was "2 -- x --".
(2)A bruise 4" x --" on the lower portion of .The back of right side of chest.
(3)A bruise 3 -- x 3/4" on the left scapular region in the centre.
(4)Feeling pain on the back of lumber region.
All the injuries were simple in nature caused by blunt weapon.
On 28th April, 1979 Dr. Muhammad Hussain Chaudhry examined Muhammad Amir appellant and found the following injuries on his person:- (1)Abrasion 2 c.m. x 1 c.m. On the top of right shoulder.
(2)Abrasion 6 c.m. x 1 c.m. Outer middle right upper arm.
(3)Swelling 5 c.m x 5 c.m. On the back of right shoulder.
(4)Bruised area 8 c.m. x 5 c.m. On the right knee and upper part of right leg.
The injuries were simple in nature caused by blunt weapon.
On the same day, the same doctor examined Munir Ahmad Appellant and found the following injuries on his person:- (1)Lacerated wound 3 c.m. x 5 m.m. x scalp deed on the front and left side of head.
(2)Swelling 2 c.m. x 2 c.m. On the back and left side of head.
(3)Lacerated wound 1 c.m. x 5 c.m. x skin deep with bruised area 4 c. m. 4 x 4 cm.
(4)Lacerated wound 3 c.m. x 5 m.m. x skin deep on the back middle left forearm.
(5)Swelling 5 c.m. x 7 c.m. On the back of left shoulder.
(6)Swelling 3 c.m. x 3 c.m. On the back left side of chest at the middle part.
(7)Abrasion 3 c.m. x 5 m.m. On the back right chest middle part.
(8)Lacerated wound 4 c.m. x 5 m.m. x skin deep front of right shoulder.
All the injuries were simple in nature caused by blunt weapon.
5. In support of its case the prosecution examined three eye-- witnesses, namely, Muhammad Hussain, Sultan Ahmad and Sabir Ali. The prosecution also relied on the evidence relating to motive and recovery of blood-stained hatchets at the instance of the appellants.
6. The appellants pleaded not guilty to the charge. Muhammad Amir appellant admitted having caused injuries to the deceased but gave a counter-version of the occurrence as under: "The complainant party suppressed over injuries at first but later on they have sought to explain these injuries under legal advice by making improvements. As a matter of fact Munir Ahmad co- accused was attacked by the deceased and Sabir P.W. Who were armed with sticks when he was in his land in Killa No. 11 of Squara No. 3. 1 was nearby and rushed to his help but I was also attacked.
A minor Machi boy named Muhammad Ahmad, who happened to be present near the spot carrying a hatchet and I seized that hatchet from him and caused the injuries to Wali Muhammad deceased in defence of Munir Ahmad, my co-accused and in my own defence. These facts were brought to the notice of the Additional S.P. Who investigated the case on an application on our behalf that the local police was not investigating the case impartially due to political influences of the complainant party. The Additional S.P. Actually examined this boy Muhammad Ahmad Machi during his investigation, who supported our version that the hatchet was seized from him. The Additional S.P. Concluded that only one hatchet and not two hatchets were used in this case."
When asked whether he had any thing else to say, he made the following statement: - "Actually on the day of occurrence a goat belonging to us went inside the adjoining 'Ihata' of Sabir Ali, P. W. Which has a common wall of our Ihata. Mst. Parveen, sister of Sabir Ali P.W who is married to Wali Muhammad deceased started shouting abuses and Munir Ahmad co-accused went there and remonstrated with her. She abused him as well and he retaliated. Neither Sabir Ali P.W. Nor Wali Muhammad deceased were present there at that time. Subsequently, Wali Muhammad deceased and Sabir P.W.1. Attacked Munir Ahmad- co-accused as submitted above."
Munir Ahmad appellant also made a similar statement.
Sultan Ali Mehmud, Additional Superintendent of Police, Sahiwal was examined in defence. He stated that an application made by the accused party to the S.S.P. Sahiwal was entrusted to him.
He visited the spot and examined Muhammad Ahmad Machi. During investigation he probed into the question regarding the number of hatchets used in the occurrence and recorded his opinion .On this aspect in the zimnis.
7. After examining the evidence on the record, the learned trial Judge accepted the prosecution evidence and on its basis convicted and sentenced the appellants as mentioned above.
8. Learned counsel for the appellants contended that all the eye-witnesses are interested; the prosecution version is highly improbable and the defence version finds corroboration from the facts and the circumstances of the case. He vehemently contended that, in fact, the occurrence had taken place in the field of the appellants and the dead body was purposely, removed from there by the complainant party so that a place favourable to the prosecution could be subsequently shown as the venue of occurrence.
Learned counsel for the complainant, on the other hand, maintained that the prosecution evidence was rightly relied upon by the trial Court. He submitted that there was no mitigating circumstance in favour of the appellants therefore, lenient view in the matter of sentence was not called for. The learned State counsel supported the judgment of the trial Court.
9. Muhammad Hussain complainant is the father of the deceased, Sultan Ahmad P.W. Is the real brother of the complainant and father-in---law of the deceased. Sabir Ali P.W. Is the son of Sultan Ahmad P.W. Given up P'W. Asghar was nephew and son-in-law of the complainant given up P. W.
Irshad Ahmad was the real maternal-uncle of the deceased. Muhammad Amir and Muhammad Munir appellants are also closely related to the complainant party. They are sons of the real brother of the complainant. The evidence on the record, however, shows that the relations between the parties were strained. Mst. Ume-Kalsoom, sister of given up P.W. Irshad Ahmad and maternal- aunt of the deceased, was betrothed with Munir Ahmad appellant and Mst. Ahmad sister of the appellants was betrothed with Irshad P.W. But both the engagements were broken. Sultan Ahmad P.W. Admitted that his two Kanals of land situate in southern part of Kills No. 11 of Square land No. 3 was in possession of the accused. This his a to his share in the process of consolidation 5-7 years prior to appearance in Court but the accused did not deliver Its possession hill These facts amply show that relations between the parties were with and in that view of the matter the evidence of the alleged-eye-witnesses would require corroboration from an independent and unimpeachable source.
10. The motive alleged by the prosecution was that the goats of the appellants entered the house of Sabir Ali P. W. And started eating mustard seed lying there. Wali Muhammad deceased drove out the goats from the house by giving stick blows. In the meantime, Mst. Aisha, sister of the accused persons, arrived there and abused the deceased who abused her in return. Mst. Aisha advanced a threat that she would take revenge of her insult through her brothers. The accused-- persons also admit that that their goat entered the Ihata of Sabir Ali P.W. Their case, however is that at that time Mst. Parveen, sister of Sabir Ali P. W. And were of the deceased, hurled abuses and Munir Ahmad appellant remonstrated with her; she abused him and he also retaliated. According to defence Sabir Ali P.W. And Wali Muhammad deceased were not present there at that time.
Aforementioned incident took place in the house of Sabir Ali P.W. He stated that at that time he was taking his meals He was confronted with statement Exh. D.B. Wherein there was no mention of taking of meals. He further stated that Mst. Aisha had advanced a threat that she will take revenge of her insult through her brothers. He was confronted with his statement before the police wherein it was not so recorded. Sabir Ali P.W. Is a highly interested witness and has made a material improvement at the trial saying that Mst Aisha had threatened that she would take revenge of her insult through her brothers. His uncorroborated solitary statement on the question of motive cannot be relied upon to hold that the earlier incident had taken place in the manner alleged by the prosecution. The only thing that can be said with certainty about the morning incident is that the goat goats of the accused persons had entered into the Ihata of Sabir Ali P.W. And there was a quarrel between the parties. It was, however, a petty matter which could hardly constitute a motive for committing the murder. Even Muhammad Hussain complainant admitted that he did not make any effort to patch up the matter as it was of no significance.
11. There are two versions of the occurrence, one narrated by the prosecution and the other by the defence. The only question that requires consideration in this case is as to which version is plausible The case of the prosecution is that the occurrence took place in the field of Sultan Ahmad P. W. Where Wali Muhammad deceased and Sabir Ali P.W. Had gone for cutting the fodder.
According to the prosecution both the accused-persons armed with hatchets, went to that field and caused injuries, to Wali Muhammad and Sabir Ali P.W. As a result of which Wali Muhammad died at the spot.
The defence version is that Wali Muhammad deceased and Sabir Ali P.W. Attacked Munir Ahmad accused in his field and his brother Muhammad Amir appellant rushed to help him. He took the hatchet from a boy, namely, Muhammad Ahmad, who happened to be near the place of occurrence and caused injuries to Wali Muhammad deceased to save his brother and himself.
It is evident that the question regarding the venue of occurrence is of vital importance in this case.
Unfortunately, soon after the occurrence, the complainant party removed the dead body of the deceased from the place of occurrence. According to Muhammad Hussain complainant, it was removed from the place of occurrence so that the wild animals may not cause harm to it. Sultan Ahmad P.W. Also stated likewise. This explanation, however, does not ring true. Sultan Ahmad P.W.
Admitted that wild animals had never harmed any person on their land. Muhammad Hussain complainant admitted that during the days of occurrence Sultan Ahmad and Irshad Ahmad P.Ws.
Were having licensed guns and he himself had a licensed revolver. Thus the complainant party were in a position to effectively protest the dead body against any real or supposed danger. It is evident that the removal of the dead body from the place of occurrence was not on account of any danger of wild animals. The facts and circumstances indicate it was removed from the spot for other reasons.
According to the prosecution, the occurrence took place in the south-western corner of the northern half of Killa No. 11 of Square No. 3 (point Alif in the site plan). This part of Killa No. 11 was in cultivating possession of Sultan Ahmad P.W. The southern half of this field was in cultivating possession of the accused-persons. Sultan Ahmad D P.W. Admitted that the accused-persons owned two Kanals of land in the southern part of Killa No. 11 and were also in possession of two Kanals of land belonging to him in that part of the said Killa. According to him, Wali Muhammad deceased and Sabir Ali P.W. Were standing in the northern half of Killa No. 11 of Square No. 3 which the accused-- persons came there and attacked them. He asserted having stated before the police that the occurrence had taken place in the northern portion of Killa No. 11 of Square No. 3. He was confronted with his statement where the northern portion was not mentioned. It is important to mention that the memo of recovery of blood-stained earth was attested by Asghar Ali and Irshad Ahmad P.Ws. But none of them was examined. Both of them were given up by the prosecution as unnecessary. According to the prosecution, there was Berseem crop in the field of occurrence and Wali Muhammad deceased and Sabir Ali P. Ws. Had gone there to cut the same but no sickle or blood-stained plants/leaves were taken into possession. The Investigating Officer stated that, he recovered the blood-stained earth from the south-western of Killa No. 11 of Square No. 3. Killa No. 11 taken as a whole; its south-western corner will be in. The southern half which was in possession of the appellants. The Investigating Officer admitted that in his inspection-note there was no mention of the place of occurrence being in northern half of Killa No. 11 of Square No. 3. All these facts, particularly the removal of the dead body by the complainant party, create a serious doubt about the prosecution version regarding the place of occurrence and possibility, of occurrence having taken place in the land of the appellants, cannot l be ruled out.
12. Muhammad Hussain complainant, Sultan Ahmad and Sabir Ali P.Ws supported the prosecution version as detailed in the earlier portion of this judgment. It has already been observed that they had strained relations with the accused-persons. They have given a twisted version of the occurrence and were all along at pains to strengthen the prosecution case by fair or foul means. At the trial Muhammad Hussain complainant stated: "Sabir P.W. In his defence picked up a Soti and gave stick blows to both the accused." In cross-examination he admitted that he did not make any such statement in the F.I.R. In the F.I.R., it was stated that Sabir Ali P. W. Had been defending himself with a stick but there was no mention of the injuries to the accused persons. It appears that the complainant party was in a fix and could not make up its mind whether the injuries of the accused-persons were to be explained or suppressed. The learned counsel drew my attention to the medico-legal reports of the accused-persons which have been recorded on plain papers. Dr. Muhammad Hussain (P.W. 8) who examined them stated that expect their medico-legal reports no other report was recorded on plain paper. He further admitted that blank printed forms were available in the register when he medically examined the accused-persons. Relying on the facts, the learned counsel for the appellants contended with ample justification that the medico-legal reports were got recorded on plain papers so that the same could be destroyed if the situation so demanded.
13. Sultan Ahmad P.W. Stated that he was in Killa No. 11 of square No. 3 when the occurrence took place. He was confronted with his statement before the police wherein there was no mention of Killa or square number. He further stated that Sabir Ali P. W. Picked up a Soti and gave blows to both the accused persons. He was confronted with his statement Exh. D.A. Wherein there was no mention of picking on stick and striking the accused. The accused-persons had direct enmity with this witness as they were in forcible possession of two Kanals of land which fell to his share in the consolidation process 5-7 years before his appearance in Court. Evidence of Muhammad Hussain complainant and Sultan Ahmad P.W. Is, therefore, not worth reliance.
Presence of Sabir Ali P.W. At the spot is admitted by the accused-persons. They, however, do not admit that he suffered injuries during the occurrence: A suggestion was put to him that he appeared before the Investigating Officer after fabricating injuries on his person. It is in evidence that the Investigating Officer arrived in the house of Muhammad Hussain complainant at 9-30 p.m.
Sabir Ali P.W. Admitted that he was present in the house of Muhammad Hussain complainant when the Investigating Officer came there but he did not appear before him at that time nor the Investigating Officer enquired about him. He further stated that he was summoned by Thanedar on the next day in the afternoon but he did not send him for medical examination on that day. He further deposed that he was medically examined on the next day of his statement before the police. The Investigating Officer also admitted that when he reached the house of Muhammad Bussain complainant he was aware that Sabir Ali P.W. Had been injured but he neither summoned him nor prepared his injury statement. He further stated that on reaching the house of Muhammad Hussain complainant he did not record the statements of the eye-witnesses and had started the Investigation at 7 a. m. On the following morning. These facts go a long way to show that the complainant party and the investigating Officer had joined hands and were gaining time to build up a story favourable to the prosecution. The Investigating Officer was aware that Sabir Ali P.W. Had been injured but he did got summon him nor prepared his injury-statement. He admitted that he was aware of the departmental instructions that an Investigating Officer is required to prepare the injury-statement and send the injured for medical examination immediately. Sabir Ali P.W.
Admittedly appeared before the police on the next day in the afternoon. He is a witness of late appearance and this fact alone should be enough to reject his evidence. Sabir Ali P.W. Stated that on 26-4-1979 he was taken in Arifwala Hospital but the doctor was not available and then he was taken to Kamir Hospital where he was medically examined. The Investigating Officer also stated that he sent Sabir Ali P.W. For medical examination to the hospital at Arifwala on 26-4-1979 but the constable verbally reported to him that the doctor was not available there. He further stated that Sabir Ali P.W. Was medically examined by a doctor at Mauza Kamir. It was suggested to Sabir Ali P.W. That he was not taken to Civil Hospital, Arifwala, at all and was got medically examined by a doctor in Mauza Kamir as he was a person of obliging nature. Dr. Muhammad Hussain, Medical Officer, Civil Hospital Arifwala, made a categorical statement that on 26-4-1969 he was present at Arifwala Hospital doing his professional work. This statement should leave no room for doubt that Sabir Ali P.W. Was never taken to Arifwala Hospital and a medico-legal report for him was procured by the Investigating Officer through under hand means.
14. The ocular account furnished by Sabir Ali P.W. Is improbable and unconvincing. In examination- in-chief he stated that he picked up a Soti from a Berseem field and dealt blows to the accused- persons, upon which both of them fled away. He asserted having stated before the police that he had caused injuries to the accused. He was confronted with his statement Exh. D.B. Wherein it was not so recorded. He further stated: "The accused assaulted me after they dealt blows to the deceased and he had fallen on the ground. The accused gave me four blows on my back. The accused did not inflict further injuries to me, however, I had picked up a stick and started my defence". The witness further gave out that he attempted to run away when Wali G Muhammad was assaulted, but the accused encircled him. I have endeavoured to reconstruct the scene narrated by him but it is not possible to believe it. The incident constituting the motive took place in the house of Sabir Ali P.W. He is the son of Sultan Ahmad P.W. Whose two Kanals of land is in forcible possession of the accused for the last 5-7 years. There was, thus, no love lost between him and the accused persons. Both the accused had 12 injuries on their persons, some of which were on the vital parts. If the accused persons armed with hatchets, had encircled and assaulted him after the deceased had: fallen down, they would have smashed his skull and not allowed him to cause them such a large number of injuries. The number of injuries on the accused-persons indicates that the same were caused by more than one person. It was not the performance of one person who happened to pick up an ordinary stick from the field. On the other hand, the deceased had only three injuries which could be caused by one person. After giving my careful attention to the entire evidence and having juxta-posed both the versions, I feel inclined to the view, that the prosecution has not been able to prove its case beyond a reasonable doubt and there is a reasonable possibility of the defence version being true. Munir Ahmad appellant suffered eight injuries out of which two were on his head which is a vital part of the body. In the circumstances, it can safely be inferred that the appellants had a genuine apprehension that at least grievous hurt would be the consequence of the assault on them if the attack was not repelled. I am, therefore, of the view that the right of self-defence was not exceeded.
15. For the foregoing reasons I accept this appeal, set aside the conviction and sentence of the appellants and acquit them of the charge. They shall be set at liberty forthwith if not required to be detained in any other case.
16. Criminal Revision No.616 of 1980 automatically fails and is dismissed.