Razi 35, Muhammad Bakhsh 35, Moosa 45 and Kaura 70 were sentenced, vide judgment, dated 27- 9-1984 by learned Additional Sessions Judge, Dera Ghazi Khan for the murder of Khuda Bakhsh 35.
They were sentenced under section 302/34, P.P.C. To imprisonment for life and fine of Rs. 5,000 or in default one year's R.I. Each. They were further directed to pay Rs. 5,000 each as compensation to heirs of the deceased or in default six months' S.I. The appellants were allowed benefit of section 382-B, Cr.P.C.
Razi accused filed Criminal Appeal No. 191 of 1984, Muhammad Bakhsh, Moosa and Kaura accused filed Criminal Appeal No. 218 of 1984 and Karam complainant filed Criminal Revision No. 198 of 1984 for enhancement of the sentence of the accused which was ordered to be heard alongwith the two criminal appeals. These three matters being directed against one judgment, will be disposed of together.
2. The prosecution case, in brief, is that at Pehar day time on 12-8-1983, Karam complainant P.W. 5 alongwith his son Khuda Bakhsh deceased, his brother Chakar P.W. 6 and his sister Mst. Bhambi (not examined), was proceeding to Basti Khadra from his house to inquire about the health of his daughter Mst. Begum. When they reached Dagi Wah in the area of Village Dalana, suddenly, Kaura accused armed with stick and his sons Muhammad Bakhsh and Moosa armed with Wahoolas and Razi accused armed with hatchet came there. Kaura accused shouted a Lalkara whereafter Muhammad Bakhsh and Moosa accused gave one Wahoola blow each from its wrong side on the head of Khuda Bakhsh who fell down. Thereafter, Razi accused with hatchet and Kaura accused with stick gave injuries on the head of Khuda Bakhsh who died at the spot. The accused then left the place of occurrence with their respective weapons.
The motive was stated, to be that Mst. Bakhi, sister of Razi accused was betrothed to Khuda Baksh deceased. This was broken and she was given in marriage to Nabi Bakhsh, a son of Kaura accused.
This resulted in dispute between the parties which was settled after payment of Rs.16,000 to Khuda Bakhsh deceased. The accused, therefore, nursed grudge as to why Khuda Bakhsh had received the said amount.
Karam P.W., leaving the dead body of Khuda Bakhsh in the care of his brother Chakar and his sister Mst. Bhambi, went to Police Station Sadar Dera Ghazi Khan, about 14 miles from the place of occurrence and lodged the F.I.R. Exh. P.D. On the same day, at about 2-00 p.m. Which was recorded by S.I. Hamid Ullah Khan P.W.7.
3. The dead body of Khuda Bakhsh was sent for post-mortem examination which was conducted by Dr. Captain Ghulam Fareed P.W. 4 on 13-8-1983, at 11-00 a.m. On external examination, the Medical Officer found the following injuries on the dead body:- (1)A lacerated wound 2--" x --" x bone deep on the left half of the head 2 above the left ear. The underlying skull bones were fractured.
(2)A lacerated wound 2" x 1/3" x bone deep on the back side of the head almost in the mid-line. The direction of wound was transverse.
(3)A lacerated wound 2" x 1/3" x bone deep on the back side of the right half of the head. The wound was oblique in direction.
(4)A laceration on the pinna of left ear.
(5)An abrasion on the left side of neck just below the left ear.
(6)A lacerated wound 1--" x 1/3" x bone deep at lateral half of left eye brow. The direction of the wound was transverse.
(7)A contusion mark with swelling on the nose and there was evidence of bleeding from the nose.
(8)A bruise 2" x --" on the left deltoid region.
(9)Two bruises each measuring 2" x 1" on the outer aspect of the left thigh and the buttock.
On dissection, the Medical Officer found fracture of left parietal bone. The left parieto-temporal suture was opened and there was a large sub-dural haematoma on the left side of the brain. The stomach was healthy and contained small amount of liquid diet.
All the injuries had been caused by blunt weapon. Injury No. 1 was grievous and fatal to life. The remaining injuries were of simple nature. The death was due to intra-cranial haemorrhage, external haemorrhage, shock and injury to the brain due to injury No. 1 which was sufficient in ordinary course of nature to cause death. The duration between injuries and death was 3 to 4 hours and duration between death and post-mortem was 24 to 36 hours.
4. The Investigating Officer during spot inspection took in possession blood-stained earth from the place of occurrence, vide memo. Exh.P.E. On 12-8-1983.
The accused-appellants were arrested on 28-8-1983. At that time, Moosa accused produced Wahoola P.4, vide memo. Exh.P.F., Muhammad Bakhsh accused produced Wahoola P.5, vide memo.
Exh. P.G., and Kaura accused produced Sots P.6, vide memo. Exh.P.H. Before S.I. Hamid Ullah P.W. 7 in the presence of Karam P.W. 5 and Chakar P.W.
6. These three weapons were not stained with blood.
No crime weapon was recovered from Razi accused.
The accused were challaned after completion of the investigation.
5. The prosecution, in support of its case, examined seven witnesses in all, Karam P.W. 5 and Chakar P.W. 6 were examined as eye-witnesses. These two witnesses also supported the recoveries of crime weapons from three accused. Mst. Bhambi another eye-witness, was given up as unnecessary. The medical evidence was furnished by Dr. Captain Ghulam Fareed P.W. 4 as given in detail above. The case was investigated by S.I. Hamid Ullah P. W.
7. The evidence of the rest of the witnesses was of formal nature.
The accused when examined during the trial, denied the charge and pleaded innocence. They denied recoveries of incriminating weapons from them. Razi accused examined Muhammad Nawaz Khan D.S.P. D.W.1 in his defence who stated that he had verified the investigation and had found Razi accused innocent. The other accused did not produce any evidence in defence.
The learned trial Judge held that the recovery of three crime weapons P. 4 to P. 6 was fake and, therefore, not believed. He convicted the four appellants by placing reliance on the evidence of motive and the eye-witnesses.
6. I have gone through the evidence on record with the assistance of the learned counsel appearing on behalf of the parties.
It was contended on behalf of the appellants that them was an unexplained delay in lodging of the F.I.R. Which seems to have been recorded after some preliminary enquiries. I have considered this contention and find the same as without any basis. It was contended that the injury statement Exh.
P. C. /1 did not contain the names of the accused in its title; that in the title of the inquest report, the number of F.I.R. Was not recorded; and that according to Ghulam Qadir Head. Constable P.W. 3, no case diary of this case was received in Police Station till 16-8-1983. I have gone through these documents. It is correct that the injury statement Exh. P.C./1 does not contain names of the accused but the number of the F.I.R. And the section under which the case was registered, is clearly given in this document. The omission to mention the names of the accused in the title is not material nor was it necessary that the names should have been recorded in the injury statement. I have gone through the inquest report Exh. P.C./2. The number of F.I.R. Is, no doubt, not mentioned in the title/heading of this document but in the narration of facts the number of the F.I.R. Has been clearly mentioned. The fact that the case diaries of the case were not received in Police Station till 16-8- 1983 would not mean that the F.I.R. Was lodged after delay or some preliminary enquiry. Whenever an F.I.R. Is lodged at the Police Station, simultaneously an entry is made in the daily diary of the Police Station which is sent to the Head Office without fail after every 24 hours. The said daily diary was not summoned by the accused for cross-examination nor any question regarding the said entry was put either to Ghulam Qadir P.W. 3 or to the Investigating Officer during trial. A presumption will have to be raised that in the normal course of business an entry must have been made in the daily diary of the Police Station regarding registration of the case at 2-00 p.m. On 12- 8-1983. I am satisfied that there was no delay in lodging of the F.I.R. Nor was the same recorded after any preliminary enquiry Secondly, it was contended that the medical evidence did not support the prosecution case. It was pointed out that according to the F.I.R. And the statements of the two eye-witnesses, Khuda Bakhsh died immediately after the occurrence or within half an hour of the receipt of injuries. On the other hand, the Medical Officer stated that the time between injuries and death was about 4 to 6 hours. It was further pointed out that the time between death - and post-mortem was 24 to 36 hours and as such, the occurrence must have taken place during dark hours of the morning. I have considered this contention, in the light of the statement of the Medical Officer. It is correct that in the F.I.R. It was stated by Karam P.W. That Khuda Bakhsh died at the spot after receipt of the injuries on his person. It is not stated therein that he died immediately after receipt of injuries. In their evidence during the trial, it was stated by the witnesses that Khuda Bakhsh went unconscious and died after about half an hour. I am of the view that firstly, the time given by the Medical Officer was only an estimated time. Secondly, Karam P.W. Was aged 65 years and Chakar P.W. Was aged 70 years. They finding Khuda Bakhsh deceased unconscious might have, on account of their old age, thought him dead and as such, it was recorded in the F.I.R. That he died at the place of occurrence. I, therefore, do not find any disparity in the medical evidence and the ocular account in this case. The Medical Officer stated the time between the death and post-mortem as 24 to 36 hours. The post-mortem was conducted at 11-00 a.m. On the next day of the occurrence. If 24 hours are taken to be the intervening period, then this means that the occurrence took place at about 11-00 a.m. On 12-8-1983. This again is only an estimated time. The eye-witnesses have stated that the occurrence took place at about Pehar day time which would mean about 9-00 p.m. It was pointed out that the Medical Officer stated that the dead body was received by him on 13-8-1983, at about 11-00 a. m. The learned counsel argued that the delay in receipt of the dead body is material which affects the merits of this case. I do not find any delay in despatch of the dead body by the police from the place of occurrence. The F.I.R. Was recorded at 2-00 p.m. The Investigating Officer reached the spot a short-while thereafter. It must have taken some time to despatch the dead body for post-mortem examination. It is in evidence that the Medical Officer was approached late in the evening for post-mortem examination but it being night time, the examination was conducted next day. In my view, this point does not, in any way, affect the merits of this case. The occurrence took place on 12-8-1983 and the post-mortem was conducted at the mortuary, about 14 miles from the place of occurrence next day. There was no delay in despatch of the dead body.
Thirdly, it was contended that the eye-witnesses were not only chance witnesses but interested to give evidence in this case. I have carefully gone through .The evidence of the two eye-witnesses.
They are both related to the deceased. Karam and Chakar P.Ws. Are both brothers inter se. Karam P.W. Is father of Khuda Bakhsh deceased. Mst. Bhambi, given up P.W., was sister of Karam P.W. It is admitted by these witnesses that there was some litigation between them and the accused since about 1/2 year of the present occurrence. They are, therefore, interested witnesses. I am, however, not prepared to accept the contention that they were chance witnesses. It is in evidence that Mst.
Begum a daughter of Karam P.W., was sick in Basti Khaira where they were proceeding to inquire about her health. A day prior to the occurrence another son of Kaura accused had gone to Basti Khaira. He had brought the news of the sickness of his sister and it was, therefore, natural for the witnesses and the deceased to go and inquire about her health. It was argued that in the F.I.R. As well as in the statement under section 161, Cr.P.C., Jan Muhammad was described as the husband of Mst. Begum but during trial Haji Muhammad was named as husband of Mst. Begum. It was, therefore, argued that Mat. Begum was not residing in Basti Khaira. I find this contention as without any substance. Haji Muhammad was husband of Mat. Begum. It appears that the Investigating Officer did not correctly understand the name of the husband of Mst. Begum firstly, while recording the F.I.R. And secondly, while recording the statement of Chakar P.W. This discrepancy has no bearing on the merits of this case. It was argued that firstly, if these witnesses had been present at the spot, they must have interfered to rescue Khuda Bakhsh deceased; and secondly, that if they had been present there, they must have removed Khuda Bakhsh from the place of occurrence for treatment or for report to the police. I am not impressed by these arguments. As stated above, the two eye-witnesses were aged persons. The thirst eye-witness was a female. It was, therefore, not possible for them to intervene or to remove Khuda Bakhsh immediately from the place of occurrence. There is, therefore, no improbability in the statements of these witnesses nor it can be said that for these reasons it should be held that they were not present at the place of occurrence.
The learned counsel for the appellants vehemently contended that as admitted by Chakar P.W., his statement was recorded next day of the occurrence and as admitted by Hamid Ullah P.W. 7, Mst.
Bhambi was not present when the police reached the place of occurrence and that she reached there 1-- hours after the arrival of the police. I have considered this contention on behalf of the appellants. A perusal of the inquest report Exh. P.C./2 would show that when the Investigating Officer reached the spot and prepared the inquest report, he mentioned the presence of these two witnesses in If therefore, the Investigating Officer stated during the trial that Mst. Bhambi was not present when he reached the place of occurrence, in my view, it was a misstatement of facts.
Chakar P.W. Also attested the recovery memo. Of the clothes of the deceased by the Medical Officer Exh. P.B. Dated 13-8-1983. He also witnessed the recoveries of crime weapons from the accused. As such, he must have been examined for more than once under section 161, Cr.P.C. The statement of Chakar that he made statement before the police on the next day of the occurrence would not necessarily mean that the said statement pertained to his eye-witnesses account. It was argued that the shoes and turban of the deceased were not taken in possession by the Investigating Officer which means that the deceased had gone to the place of occurrence for some immoral purposes and was killed by some unknown persons. It is in evidence of the two witnesses that the deceased had turban and shoes on his person. It: is possible that the turban might have fallen at the time of occurrence and as is generally noticed, the shoes might have been removed from the body after the death of Khuda Bakhsh. The two being not stained with blood.
Here not required to be necessarily taken in possession. In any case, it was not the fault of the two eye-witnesses. It could, at the most, by lapse on the part of the Investigating Officer. It is correct that Chakar P.W. Was earlier a witness in two cases on behalf of his brother Karam and Khuda Bakhsh deceased. There has been some litigation between the accused and the deceased earlier to this occurrence. The complainant Karam and the deceased also had criminal litigation with some other persons but as stated above, I am of the view that the eye-witnesses though related and interested, were present at the place of occurrence. They have been fully supported by the medical evidence and as such, it could not be said that they were false witnesses.
Fourthly, it was contended that the accused did not have any motive to commit the murder of Khuda Bakhsh. The prosecution case is that Mst. Bakhi a sister of Razi accused, was betrothed to Khuda Bakhsh. She was latter given in marriage to Nabi Bakhsh, a son of Kaura accused. Karam P.W. In cross-examination was suggested that Razi accused has been involved in this case because he had refused to give the hand of this sister to Khuda Bakhsh deceased. This would indicate that in a way, the motive is not denied. However, I am of the view that the deceased having received the sum of Rs.16,000 from Kaura accused and his son Nabi Bakhsh and not from Razi accused, no motive was left for Razi accused to commit the murder of Khuda Bakhsh. The sum of Rs.16,000 was paid by Moosa and Muhammad Bakhsh accused who had threatened to teach him lesson for getting the said money. In my opinion, only Mousa and Muhammad Bakhsh accused had a motive to assault and murder Khuda Bakhsh.
7. On a careful examination of the evidence on record, I am of the view that the prosecution has successfully proved its case against Muhammad Bakhsh and Moosa accused. So far as Razi accused is concerned, he was found innocent by the police. No crime weapon was recovered from him. There was no sharp-edged weapon injury on the person of Khuda Bukhsh deceased. The fatal injury is not attributed to him. He had not paid any money from his own pocket to the deceased and, therefore, did not have a direct motive against him.
Kaura accused is aged 70 years. There is no evidence that he caused fatal injury to the deceased.
He was an old dean and was not supposed to join his two sons in the occurrence. He seems to have been implicated in this case being father of the two other accused. I, as an abundant caution, given benefit of doubt to Razi and Kaura accused and acquit them of the charge. Their appeals are accepted. Their conviction and sentence is set aside. They are acquitted and will be released from prison forthwith, if not required in any other case.
8. As held above, the prosecution has proved its case against Muhammad Bakhsh and Moosa appellants. Their appeal is dismissed. Their conviction and sentence is maintained. They will be given benefit of section 382-B, Cr.P.C.
9. As a result of the above decision in appeal, Criminal Revision No. 198 of 1984 is dismissed in limine.