Muhammad Arshad (17), Munawwar Hussain (16), sons of Muhammad Yaqub, and Mushtaq Ahmad (24), son of Ghulam Rasul, Jats by caste, residents of Chak No. 271/R.B., were tried by the learned Additional Sessions Judge, Faisalabad, on the allegations that on the night between 3rd and 4th May 1980 at about 2 a.m. They committed the murder of Yasin alias Naseer deceased, in the area of Chak No. 271/R.B., in furtherance of their common intention. By judgment dated 3rd April, 1983, Munawar Hussain was acquitted while Muhammad Arshad and Mushtaq Ahmad were convicted under section 302/34, P.P.C and sentenced to imprisonment for life and a fine of Rs.10,000 each and in default of payment of fine to undergo rigorous imprisonment for five years each. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation. The convicts have challenged their conviction and sentence through separate appeals which are being disposed of by this judgment.
2. The brief facts of the prosecution case are that on the night between 3rd and 4th May, 1980 Bashir Ahmad complainant, his-uncle Ilam Din and his brothers Nazir Ahmad and Yasin alias Naseer deceased were present at their Dhari situated in Killa No. 11 of Square No. 57. At about 11-30 p.m. Muhammad Arshad and Mushtaq Ahmad accused came there and took the deceased to their Dhari situated in Killa No. 17 of Square No. 59. The complainant were up at about 3 a.m. And found that Yasin alias Naseer deceased was not on his cot, upon which he left for the Dhari of the accused. On reaching there, he saw Mushtaq accused holding the legs of the deceased, Munawar accused holding his hands and Muhammad Arshad accused giving Toka blows on his neck, head and arms. He "tried to entreat" but the accused persons threatened him with dire consequences, upon which he ran towards his Dhari and told Rain Din and Nazir Ahmad, P.Ws., that Yasin alias Naseer had been murdered by the accused persons. They accompanied him to the Dhari of the accused. On the way they saw the accused persons carrying the dead body of the deceased, They tried to follow" them but the accused threw the dead body on a heap of earth in Killa No. 20 of Square No. 57 and fled away.
On the following day, i.e., the 4th of May, 1980, at 10 a.m. Bashir Ahmad complainant reported the occurrence at Police Station Dijkot vide F.I.R. Exh.P.A.
3. Saad Ullah Khan, A.S.I., reached the spot on the same day and despatched the dead body to the mortuary for post-mortem examination. He secured some blood-stained earth from the place of occurrence and made it into a sealed parcel vide memo. Exh.P.C. He took Shirt (Exh.P.11) and Chadar (Exh. P. 12), both blood-stained, from near the dead body and made them into a Sealed parcel vide memo. Exh. P.J. From the place of occurrence he took into his possession blood-stained frame of cot vide memo Exh.P.D. On 6th May, 1980 he arrested the accused persons. Muhammad Arshad accused, while in custody, led to the recovery of key (Exh.P.2) and lack (Exh.P.3) vide memo.
Exh.P.E. He also led to the recovery of Toka (Exh.P.4), Patka (Exh.P.5), Shirt (Exh.P.6) and a pair of shoes (Exh. P.7/1-2) from a Kotha of his Dhari which were made into separate sealed parcels vide memo. Exh.P.F. Munawwar accused, while in custody, led to the recovery of pillow (Exh.P.8) and pair of shoes (Exh. P.9/1-2) vide memo. Exh.P.G. Mushtaq accused, while in custody, led to the recovery of blood-stained Baan (Exh.P.10) from the roof of the Dhari of Arshad accused vide memo. Exh.P.H.
After the investigation, the accused persons were challaned.
4. On 5th May, 1980 Dr. Yusuf Ali, Medical Officer, D.H.Q. Hospital, Faisalabad, conducted the autopsy on the dead body of Yasin alias Naseer deceased and found the following injuries on it:- (1)An incised wound cutting the neck which was held only by skin and muscle at the back at the level of 6th cervical spine.
(2)Two incised wounds each 5 c.m. x 1 c.m. x bone deep on the chin.
(3)An incised wound 3 -- c.m. 1 c.m. x bone deep on the right elbow.
(4)An incised wound 3 c.m. x 1 c.m. x muscle deep above injury No. 1.
(5)An incised wound 1 c.m. x -- c.m. x skin deep on the right ring finger.
(6)An incised wound 1 c.m. x -- c.m. x skin deep on the right little finger.
(7)An incised wound 2 c.m. x -- c.m. x bone deep on the left ring finger.
(8)An incised wound 1 c.m. x -- c.m. x skin deep on the left middle finger.
(9)An incised wound 5 c.m. x 1 to 10 c.m. x skin deep below the left ear.
(10)Three incised wounds each 1 c.m. x 2 c.m. x bone deep on the back of left side of head.
5. In support of its case, the prosecution examined nine witnesses in all and its mainstay is the testimony of Bashir Ahmad complainant who furnished the ocular account of the occurrence.
6. The accused persons pleaded not guilty to the charge and denied the prosecution allegations against them. Muhammad Arshad accused produced copy of bail order (Exh. D.C.), copy of the report .Of Dr. Muhammad Rashid Chaudhry (Exh.D.D.) and certificate regarding age issued by Headmaster, Government lqbal High School, Chak No. 267/ R.B., Exh. D.E.
7. The learned trial Judge accepted the prosecution evidence against the appellants and convicted and sentenced them as mentioned above. He, however, acquitted Munawwar accused by giving him the benefit of doubt.
8. Learned counsel for the appellants contend that the evidence produced by the prosecution is highly unsatisfactory and not at all sufficient to warrant the conviction. They further submit that the facts and circumstances of the case clearly indicate that it was a blind murder. The learned State counsel, on the other hand, submits that Bashir Ahmad complainant and Nazir Ahmad P.W. Had no motive to falsely implicate the appellants, therefore, the evidence was rightly relied upon by the trial Court.
9. The motive alleged by the prosecution was that six months prior to the occurrence Arshad and Munawwar accused cut a Sheesham tree of the complainant party and an altercation took place between them and the deceased. The deceased slapped Arshad appellant but ultimately the matter was patched up. It is further alleged that Arshad appellant had a suspicion that the deceased was having illicit relations with his sister Mst. Maqsudan. Hidayat Ali (P.W.5) and Bashir Ahmad (P.W.6) supported the prosecution version of the motive. Hidayat Ali P.W. Is al self- condemned liar. In examination-in-chief he stated that his were was 1 the real sister of the father of the accused. In cross-examination he stated that she had three brothers, namely, Makha, Ilam Din and Umar Din. The accused are not the sons of any of the aforementioned three persons. Hidayat Ali P.W. Admitted that aforementioned Umar Din is the father of Bashir Ahmad complainant. He further admitted that his were was not the real sister of the father of the accused and his statement in examination-in-chief was incorrect. Obviously, he introduced relationship of his were with the accused in order to show that he was deposing against his own relatives but his claim was completely exposed in cross-examination. He is not a truthful witness and his statement is not entitled to any credence.
Bashir Ahmad (P.W.6) stated that three months prior to the occurrence Barkat (given up P.W.) and Hidayat P.W. Had informed him about the suspected illicit relations of Mst. Maqsudan with Naseer deceased. This statement, however, does not appear to be correct. If Hidayat P.W. Had laid any such information before the complainant, he would not have omitted to mention the same in the F.I.R. The complainant asserted having stated in the F.I.R. That the accused persons had murdered the deceased due to suspicion of illicit relations with Mst. Maqsudan. He was confronted with the F.I.R. Wherein it was not so recorded. In cross-examination Bashir Ahmad complainant admitted that the accused were having good relations with the deceased prior to the occurrence and they used to visit each other very often. Thus, the evidence produced by the prosecution regarding the motive is highly unsatisfactory. On one hand, it has been alleged that the deceased D was suspected for illicit relations with the sister of Arshad accused and on the other it has been stated that the accused had good relations with the deceased and were on visiting terms. In the circumstances, no reliance can be placed on the evidence relating to motive.
10. Bashir Ahmad complainant is the only eye-witness of the occurrence. He stated that on the fateful night at 11-30 p.m. He and his brothers Nazir Ahmad, Naseer deceased, and his uncle Ilam Din were present at their Dhari when Arshad and Mushtaq accused came there; they took the deceased to their Dhari situated in Killa 116.17 of Square No. 59; thereafter he and his companions fell asleep, at about 3 a.m. He were up and found that the deceased was not present on his cot whereupon he left for the Dhari of the accused and saw Arshad accused giving Toka blows to the deceased while Mushtaq and Munawwar accused were holding his legs and hands. The complainant further stated that the accused threatened him with dire consequences, whereupon he ran towards his Dhari and informed Nazir Ahmad P.W. And Ilam Din (not produced) that Naseer had been murdered by the accused; they accompanied him to the Dhari of the accused who had thrown the dead body on a heap of earth in Killa No. 20 of Square No. 57.
The story narrated by the complainant is highly unnatural and improbable. It is the prosecution's own case that the deceased was suspected of illicit relations with the sister of Arshad accused. If that was so, the deceased was not at all expected to accompany him at that odd hour of the night.
Bashir Ahmad complainant too would not have permitted the deceased to accompany the accused because according to his own showing he had been informed about the illicit relations three months earlier. Again, it looks very strange that after the departure of the deceased with Muhammad Arshad and Mushtaq Ahmad accused, his brothers and uncle got asleep without waiting for his return. It is also very strange that when the complainant were up at 3 a.m. And found that the deceased was not present on his cot, he did not apprise his brothers and uncle of the situation and went to the Dhari of the accused all alone. According to the F.I.R., the deceased was taken away by the accused at 11 p.m. And the occurrence took place at the Dhari of the accused at 2 a.m. In the presence of the complainant. It is astonishing that the accused started causing injuries to the deceased only when the complainant had arrived at their Dhari. This version is unbelievable. If the accused had really taken away the deceased with intent that he may be murdered, nothing could prevent them from doing so before the arrival of the complainant. It is unbelievable that they would defer their plan till the arrival of the complainant so that he may become an eye-witness against them.
11. The statement of Bashir Ahmad complainant does not find support from the medical evidence.
According to him, Mushtaq accused w holding the legs of the deceased, acquitted accused Munawwar w holding his hands and Arshad accused was giving him Toka blow Injuries Nos.5 to 8 were on the fingers of the right and left hands the deceased which indicate that both the hands were free and suffered these injuries while warding of the attack.
12. The facts and circumstances of the case indicate that it was unwitnessed occurrence.
According to the prosecution, the occurrence took place at 2 a.m. And the F.I.R. Was lodged on the following date at 10 a.m. At the police station situated at a distance of six miles. I the F. I. R., the complainant did not offer any explanation for the delay Hidayat Ali (P.W.5) who is co-villager and close relation of the deceased stated that on the night of occurrence he was sleeping in his house and he came to know about the occurrence after sunrise. Bashir Ahmad complainant stated that villagers came to him for condolence after the sunrise. If the complainant had seen the occurrence at 2 a.m. an4 raised hue and cry, as alleged, a large number of villagers would have gathered at the spot during the night, but the evidence on the record shows that even a very close relative learnt about the occurrence or the following morning.
Bashir Ahmad complainant and his brother Nazir stated that the accused persons had thrown the dead body in Killa No.20 of Square No. 57. This field belongs to the complainant-party. There was no reason for the accused to carry the dead body to the land of the complainant-party. They could conveniently throw it anywhere. It is important to note that the dead body was lying naked. Blood- stained shirt and Chadar of the deceased were lying near it. In view of the facts and circumstances detailed above, the possibility of the deceased having been murdered by some unknown assailants during the night, cannot be ruled out.
13. Hidayat Ali P.W. 5 and Saad Ullah Khan, A.S.I. (P.W.9) supported the recoveries from Arshad and Mushtaq accused. While discussing the evidence regarding motive, it has already been observed that Hidayat Ali P.W. Is a liar. The Investigating Officer admitted that he did not join any independent person in the recovery proceedings. Hidyat Ali P.W. Admitted that Chaukidar, Lambardar and Councillors of the village were asked by the Thanedar to join the recovery proceedings. It appears that independent witnesses were available but they were not associated in the recovery proceedings. In the circumstances, no reliance can be placed on the evidence relating to the recovery.
14. For all the foregoing reasons, I feel inclined to the view that the case of the prosecution is fraught with serious doubts. I, therefore allow the appeals, 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. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.