' Maula Bakhsh alias Mauli son -of Muhammad Jan caste Gujar (40) and Muhammad Yousaf son of Muhammad Ameen caste Awan (30) were tried by Additional Sessions Judge, Rawalpindi,' for having committed in furtherence of their common intention the murder of Noor Muhammad aged 45/46 years. Learned trial Court vide its judgment, dated 25-1-1986 convicted both of them under section 325/34, P.P.C. And sentenced them to suffer 7 years' R.I., each and to pay fine of Rs,10,000/- each or in default of payment of fine to undergo S.I., for 6 months each, and out of the fine, if recovered, half of its was ordered to be paid to the heirs of the deceased. Benefit of the provision of Section 382-B, Cr.P.C., was also extended to them. Feeling aggrieved of this order, both the convicts have filed the instant appeal.
2. The occurrence took place on the night between 9/10-12-1984 in village Koat Kohlian at a distance of 8 miles from Police Station Sangjani, district Rawalpindi. The matter was reported by Mst. Matloob Begum (PW. 9) wife of the brother of the deceased, on the following day, at 5.45 p.m., at the police station thrcugh F.I.R. Ex. PG recorded by S. I. Fazal Hussain Shah (PW .13).
3. Mst. Matloob Begum, complainant (PW. 9) is wife of Karam . Elahi. This Karam Elahi had two brothers, namely, Noor Muhammad (deceased) and Dadoo P.W. (not produced). Karam Elahi married second wife, namely, Mst. Maqbool Jan about 20/25 years before the occurrence and out of this wedlock were born three daughters and four sons, the eldest of daughter being Mst. Pukhraj.
Noor Muhammad (deceased) has two sons, namely, Muhammad Shafiq (PW.12) and Muhammad Siddiq P.W. (not produced) while Dadoo has a son, namely, Tariq (PW. 10). Mst. Matloob Begum (PW.
9) wife of Karam Elahi lived in the house of the deceased at Koat Kohlian, while deceased's sons Muhammad Shafiq and Muhammad Siddiq lived in Dhoke Gujran where they had set up their shop.
4. Motive for the offence was stated to be that Maula Bakhsh, appellant, wanted that Mst. Pukhraj daughter of Karam Elahi (from the second wife Mst. Maqbool Jan) be married to Muhammad Shafiq (PW. 12) son of Noor Muhammad (deceased) but Noor Muhammad did not like the match and refused to marry his son with Mst. Pukhraj. This was allegedly resented by Maula Bakhsh appellant which culminated in this murder.
5. The prosecution story as disclosed at the trial by the complainant was that on the fateful night at about Isha prayers time Noor Muhammad (deceased) was sitting in his courtyard in the company of Mst. Matloob Begum complainant, his brother Dadoo P.W. (not produced) and Tariq son of Dadoo (PW. 10), when Muhammad Yousaf appellant came there and took Noor Muhammad (deceased) with him saying that he was called by Maula Bakhsh appellant at his Baithak. A little thereafter Dadoo and Tariq also left for their home. At about mid-night Maula Bakhsh appellant came to the deceased's house and having abused and slapped Mst. Matloob Begum told her that he had murdered Noor Muhammad and, therefore she should go and bring him. At this she ran to the house of Dadoo (brother of the deceased) and informed him about it Then Dadoo and his son Tariq (PW. 10) went to Maula Bakhsh appellant (to enquire about Noor Muhammad) who told them that he does not know about him. While returning they. Met Khalil Musalli in the street who informed them that Noor Muhammad in injured condition had reached his house and was present there.
Both Dadoo and Tariq then went to Khalil Musalli's house and brought Noor Muhammad home from there by lending him support. Noor Muhammad allegedly told them on their enquiry that he was beaten by Maula Bakhsh and Muhammad Yousaf appellants with sticks and then pushed out of the house because he had refused to marry Mst. Pukhraj with his son Shafiq. Next morning, PWs Abdul Razik son of Abdul Ghani, Abdul Razzak son of Karam Dad and Dadoo were taking Noor Muhammad to hospital for treatment when Maula Bakhsh appellant having stopped them in the way again gave fist and kick blows to Noor Muhammad and ordered them to bring him to his (appellant's) house where he shall give treatment and injection to him. They brought him back and again at Peshiwela his sons Siddiq and Shafiq and Abdul Razik son of Abdul Ghani took him towards Civil Hospital, Rawlapindi for treatment but he died in the way near Chur harpal and then they put the dead body in a Suzuki van and took it to the police station where Mst. Matloob Begum lodged the report.
6. S.I. Fazal Hussain (PW. 13) having recorded the F.I.R. Ex.PG prepared injury statement Ex. PH and inquest report Ex. PJ and sent the dead body of Noor Muhammad for post-mortem examination under police escort. On the following day (11-12-1984) he went to the spot and removed blood from the floor of Baithak of Maula Bakhsh, appellant, and also secured pillow cover P.4 which bore few stains of blood from the Baithak vide recovery memos. Ex.PB and Ex.PE respectively. On 12-12-1984, he arrested Muhammad Yousaf appellant and on 23-12-1984 he arrested Maula Bakhsh appellant who on that very day while in custody led the police to his Baithak and from there blood-stained Danda P.5 was recovered at his pointation which was secured under memo Ex.PM attested by Muhammad Sadiq (PW. 7) and Muhammad Siddiq P.W. (not produced).
7. Dr. Nasir Mahmood (PW. 3) who conducted post-mortem examination on the dead body of Noor Muhammad on 11-12-1984 at 10 a.m., found the following injuries on it:-
(1) Abraded contusion right side of head on parietal region 2 cm x 2 cm.
(2) Contused swelling in the occipital region.
(3) Abraded contusion on the right side of forehead.
(4) Abraded contusion and swelling of nose.
(5) Abrasion on right cheek.
(6) Incised wound on the right upper arm 1.5 c.m. x 0.5 c.m.
(7) Incised wound on the right forearm 11 c.m. x b.5 c.m.
(8) Abrasion on the left upper arm.
(9) Abrasion on front of chest.
' According to the doctor, under injuries Nos.1 and 2 skin tissues and muscles were bruised and the scalp was contused. On opening the skull the meninges were found contused and bruised under injuries Nos.1 and 2. The brain cavity- was containing frank blood. Blood vessels were ruptured.
Excepting injuries Nos.6 and 7 which were caused with sharp-edged weapon the rest were the result of blunt weapon. Under injuries Nos.3 to 8 nothing was significant while under injury No,9 skin, tissues and muscles were bruised. The rest of the organs were found healthy. In the opinion of the doctor, the death had occurred due to shock and haemorrhage caused by injuries Nos.1 and 2 which were sufficient in the ordinary course of nature to cause the death. Duration between injuries and death was 24 hours and between death and post-mortem within 18 hours. The doctor admitted that except injuries Nos.1, 6 and 7 he had not noted the dimension of any other injury. He admitted that even slightest injury to meninges would cause severe shock to the injured. In the instant case meninges were seriously injured resulting in immediate unconsciouness, loss of memory and loss of power of speech. He also admitted that the possibility of the injuries by the deceased having been suffered as a result of headlong fall on the ground could not be ruled out.
8. At the trial, prosecution in support of its case produced as many as 14 witnesses. Of them Mst.
Matloob Begum (PW.9) and Tariq (PW. 10) stated about the motive as well as about Yousaf, appellant's having taken away the deceased with him saying that the deceased was wanted by Maula Bakhsh appellant at his Baithak. Razik (PW. 11) stated about the second part of the occurrence that when the deceased was being taken next morning to the hospital for treatment.
Maula Bakhsh appellant having stopped them in the way gave fist and kick blows to the deceased.
Mst. Matloob Begum and Tariq PWs further deposed that the, deceased had told them that he was beaten by Maula Bakhsh and Yousaf appellants with sticks and then pushed out of their house.
Sadiq (PW. 7) who is the son of sister of the deceased stated about the recovery of blood-stained pillow P.4 and some drops blood from the floor of Baithak of Maula Bakhsh appellant and also about the recovery of blood-stained Danda P.5 from the appellant's Baithak. The evidence of remaining witnesses is of formal nature.
9. The appellants when examined under section 342 Cr.P.C., denied the allegations. Maula Bakhsh specifically denied the motive as well as the recoveries. Maula Bakhsh while replying the question, why this case against you, stated that the instant case was concocted against him by Aslam and Muslim, big Zamindars of the Ilaqa who are his staunch enemies. According to him the deceased was found lying dead and thereafter these PWs who are their tenants were put up against him. He also produced certified copies of certain documents, namely, F.I.R. Dated 9-10-1977 Ex. DJ, F.I.R.
No,27, dated 8-9-1983 Ex.DK, F.I.R. No,28, dated 9-9-1983 Ex.DL, F.I.R. No,70 dated 23-7-1980 Ex.D.M., besides his written statement Ex.DN and affidavit of Gulab Ex.DO to show his party faction with aforesaid Muslim and Aslam and that he had to appear against them on 11-12-1984 as witness in the Court of Session. Muhammad Yousaf appellant stated that his uncle Muhammad Din appeared as witness in an Arms Act case against said Aslam and, therefore, he has been falsely involved in this case. He produced copy of challan Ex. DB and statement of his uncle Muhammad Din made in the said case as Ex.DH. Both of them declined to make statement on oath and also did not examine any witness in defence.
10. Learned trial Court on consideration of the material on record accepted the prosecution case as narrated by Mst. Matloob Begum (PW. 9), Tariq (PW. 10) and Razik (PW. 11) and held the appellants responsible for causing injuries to the deceased. However, the trial Court held that from the circumstances the intention to kill on the part of appellants or that they had knowledge that by giving this beating the deceased shall be killed was negatived in view of the injuries found on the person of the deceased because if the appellants wanted to kill him there was no hurdle in the their way to do so in the. Baithak of Maula Bakhsh appellant and consequently the learned trial Court convicted them under section 325/34, P.P.C. Instead of 302/34, P.P.C. And sentenced them as indicated above.
11. I have heard learned counsel for the appellants as well as for the State and also perused the record.
12. About the motive part of the story, it is observed that Maula Bakhsh appellant is Gujjar by cast while the deceased was Awan. The appellant had no relationship whatsoever with Mst. Pukhraj or for that matter with Shafiq son of the deceased. There is nothing on record that Karam Elahi real father of Pukhraj was not alive. It is therefore not understood as to why should Maula Bakhsh worry for the marriage of Pukhraj, a lady of a different tribe and whose father was also alive, therefore, the question of proposing Pukhraj's marriage by him with Shafiq or for that matter denial on the part of Shafiq's father Noor Muhammad would not arise. It is pertinent to note that none of the witnesses have stated that this offer was made by Maula Bakhsh or declined by the deceased in their presence. So, there is not an iota of admissible evidence on record to prove the motive. I am, therefore, constrained to reject the motive part of story in the circumstances narrated above.
13. Admittedly, there is no eye-witness of the occurrence that the two appellants gave Danda blows to the deceased in the Baithak of Maula Bakhsh appellant and then pushed him out. Khalil Musalli from whose house the deceased being injured state was recovered and removed to his house by Tariq (PW. 10) and his father Dadoo who has not entered the witness-box also has not appeared.
So, there is no evidence to prove that the two appellants had beaten the deceased with sticks in the Baithak of the appellant except the -statement of the appellant himself which he allegedly made before Mst. Matloob Begum, complainant, by way of extra-judicial confession which is hard to believe. However, the prosecution has tried to fill in this gap by providing the evidence of dying declaration of the deceased and the removal of blood-stained pillow and a few stains of blood from the floor of Baithak of Maula Bakhsh appellant. As for the recovery of blood-stained pillow and stains of blood from the floor of Baithak is concerned, they have been got proved through Sadiq (PW.7) son of sister of the deceased. According to the investigating officer, a few stains of blood were found there whereas the other witnesses state that when the deceased was taken by them on shoulder to their house from the house of Khalil Musalli their clothes were also got stained with blood. This means that there had been profused bleeding from the wounds of the deceased but it does not appear to be so as only a few drops of blood were found in, the Baithak of Maula Bakhsh appellant which can be managed. Again, I would not believe that the deceased was beaten by placing him on the cot and a pillow P.4 under his head. So, this evidence is a clear concoction.
Regarding recovery of Danda P.5, it may be stated that according to the investigating officer at the time of its recovery the Baithak was locked and it was unlocked with a key by the wife of Maula Bakhsh appellant whereas Sadiq P.W. Stated that the room was not locked. This glaring discrepancy in the evidence of the two witnesses makes the recovery doubtful, which is also belated one.
14. Coming now to the oral dying declaration allegedly made by the deceased before the complainant and Tariq (PW. 10) and his father Dadoo (not produced) when brought home from the place of Khalil Musalli. According to them the deceased told them on their enquiry that Maula Bakhsh and Yousaf appellants had given him beating with Dandas in the Baithak of Maula Bakhsh and then threw him outside the Baithak through the window because he had refused to marry his son Shafiq with Mst. Pukhraj but strangely enough this fact does not find mention in the F.I.R. Lodged by Mst. Matloob Begum. The record shows that this part of the statement was extracted from the witness by the Public Prosecutor by reminding her to state this fact by dropping a clear hint to her.
Therefore, this dying statement is not believable being afterthought and further its being against the medical evidence which shows that possibility could not be ruled out that as a result of the injury to the brain the deceased became unconscious and also lost his memory as well as power of speech.
15. The story that the deceased was taken from his house at 9 p.m., on the fateful night by Muhammad Yousaf appellant on the pretext that he was being called by Maula Bakhsh appellant does not inspire confidence. The witnesses on this point also have contradicted each other. The complainant says that the deceased had refused to go but Muhammad Yousaf appellant had taken him forcibly whereas Tariq PW does not say that any force was used. Furthermore, this part of story is conspicuously missing from F.I.R. Ex.PG.
16. Above all the delay in this case has rendered the case highly doubtful. The doctor says. That the deceased died within 24 hours of the receipt of injuries. The deceased according to the complainant and also Shafiq P.W.12, (the son of the deceased) had died at Peshiwela, at Chur Harpal while on their way to hospital. I think, nobody was around the deceased when he was alive at mid-night immediately after the occurrence. Had it been so then there would not have been so much delay in transporting him to the hospital. It appears to me that prosecution in order to cover this delay has introduced the story that while the deceased was being taken to the hospital in the morning they were stopped by the appellant and, therefore, they took him at Peshiwela, but he died in the way.
17. For all these reasons the evidence on record is not sufficient and safe to sustain the conviction and sentence awarded to the appellants. In the result, I would accept this appeal, set aside the conviction and sentence of the appellants and acquit them. They shall be released forthwith. If not wanted in any other case.