' The propriety and the legality of the judgment, dated 12-1-1986 pronounced by the learned Additional Sessions Judge, Rahimyar Khan, has been questioned in this appeal, who had convicted Nazar Hussain, Mukhtiar Hussain, Khadim Hussain, Ghulam Hussain and Muhammad Sharif under section 302/149 of the P.P.C. And had directed them to suffer life imprisonment each. They were also fined Rs,2,000 each or in default thereof to suffer one year's R.I. Each. They were ordered to pay Rs,1,000 each as compensation or to suffer six months' R.I. Each in default thereof. All these appellants except Abdul Khaliq were convicted under section 148 of the P.P.C. And were awarded two years' rigorous imprisonment each. Abdul Khaliq appellant was convicted under section 364, P.P.C. And was ordered to suffer ten years' R.I. And a fine of Rs,2,000 or to suffer R.I. For one year in default thereof. He was directed to pay Rs,1,000 by way of compensation to the heirs of the deceased or in default thereof to suffer six months' R.I.
2. The facts, as gleaned from the F.I.R., in substance, are that Ghulam Fareed, the father of Ghulam Qadir complainant, was a tracker. Abdul Khaliq approached him on 9-9-1984 and told him that he was being called by the Punchayat at the Dera of Ashiq Muhammad. Ghulam Fareed told the complainant and one Abdul Rashid, who happens to be the son-in-law of Ghulam Fareed, to accompany him to Basti Balla Jhullan for an important piece of work. Ghulam Fareed sat on the rear seat of the bicycle of Abdul Khaliq whereas Ghulam Qadir and Abdul Rashid rode on another bicycle. When they reached at Minchin Bund near Village Shahbazpur Sharqi, Abdul Khaliq called his accomplices and said that their victim had arrived and they should deal with him. The other appellants, who were armed with Soti each, raised Lalkara that Ghulam Fareed should be taught a lesson of tracing their tracks. Ghulam Fareed was beaten by Sotis by all the appellants except Abdul Khaliq and he received a number of blows and got fractured his legs and arms. The appellants threatened Ghulam Qadir and Abdul Rashid with dire consequences. In the meantime Abdul Razzaq PW also came there who was cutting fodder nearby and witnessed this occurrence.
The injured was being transported by a wagon towards the police station when they met the Police Officer in Village Khichhi Muhammad Khan at about 10-30 a.m. Who was present there in connection with the investigation of a Hudood case. Ghulam Qadir dictated the F.I.R. To Fazal Ahmad ASI PW.5 at Khichhi Muhammad Khan. The police went to the spot and Ghulam Fareed was sent to the Hospital where he expired at about 11-30 a.m. On the same day. Ghulam Fareed injured was examined by Dr. Gulzar Muhammad Khan PW.8, who found the following injuries on his person:-
(1) A contusion 4 c.m. x 3 c.m. On the middle third portion of right fore-arm. There was abnormal mobility, pain swelling and loss of function. Both bones were fractured.
(2) A lacerated wound 3-1/2 c.m. x 1/2 c.m. x muscle deep on the web between the index finger and thumb of right hand.
(3) A contused wound 3 c.m. x 1/2 c.m. x bone deep on the left forearm. There was abnormal mobility, pain, swelling and loss of function. Both the bones were fractured.
(4) A contused wound 1 c.m. x 1/2 c.m. x bone deep with a contusion 4 c.m. x 2 c.m. On the medial aspect of the left leg over the lower third portion. There was abnormal mobility, loss of function, swelling and pain. Both the bones were fractured. The vessels were injured.
(5) A contused wound 1 c.m. x 1/2 c.m. x skin deep on the upper third portion of the left leg.
(6) A contused wound 3 c.m. x 1/2 c.m. x muscle deep on the middle third portion of right leg on medial side.
(7) A contused wound 2 c.m. x 2 c.m. x muscle deep on the middle third portion of right leg 2 csn.
Above and medial to injury No,6.
(8) A lacerated wound 1-1/2 c.m. x 1/2 c.m. x muscle deep on the middle third portion of right left over the shin.
(9) A contusion 3 c.m. x 2 c.m. On the lower third portion of the right leg. There was abnormal mobility, loss of function and swelling. Both the bones were fractured.
(10) A lacerated wound 2 c.m. x 1 c.m. x muscle deep communicating to the bone and the vessels were injured, on the right leg over lower third portion 1/2 c.m. Lateral to injury No,9
3. The same injuries were found at the time of autopsy. Dr. Gulzar Muhammad Khan P.W.8 has opined that injuries No,1 to 10, which were caused by a blunt weapon, were collectively sufficient to cause death in the ordinary course of nature. He has, however, stated that it was possible that the occurrence could have taken place between 12 O'clock in the night and 4-00 a.m. The column pertaining to the number and date of police docket was found blank. He did not mention the name of any relative or friend in the relevant column as the case was brought by the police.
4. The police went to the spot and collected the blood-stained earth. They recorded the statements of the PWs. On 11-9-1984, the police got removed the blood-stained shirt P.4 from the body of Mukhtiar Hussain appellant which was taken into possession vide memo Exh.P.H.. Similarly on the same day, the bloodstained clothes of Ghulam Hussain, Chaddar P.5 and shirt P.6 were got removed from his body and taken into possession vide memo Exh.P.J. On the same day, the Police obtained the blood-stained shirt P.7 and blood-stained Chaddar P.8 of Muhammad Sharif appellant which were taken into possession vide memo Exh.P.K.
5. On 13-9-1984, Ghulam Hussain appellant got recovered blood-stained Soti P.9 from Village Gui Muhammad Langha. Muhammad Sharif appellant got recovered his blood-stained Soti P.10 and Mukhtiar Hussain got recovered his blood-stained Soti P.11 which were taken into possession by the police. The Chemical Examiner made a positive report which is Exh.P.O. After the completion of the investigation, the challan of all the appellants was submitted and they were awarded the aforementioned punishment.
6. Ghulam Qadir PW.3, who happens to be the son of Ghulam Fareed deceased, has narrated the incident as stated in the F.I.R. When cross-examined, he has explained that his signatures on the F.I.R. Were obtained at the spot and his house was located at a distance of 3 or 4 miles from the Bus-stop of Balla Jhullan. Mauza Khichhi Muhammad Khan, where the report was lodged, is 6 or 7 miles farther from the spot. He has stated that his father did not depose against the appellants in any criminal case. He denied the fact that Mst. Sughran was her relative, who had instituted a suit for dissolution of marriage against her husband and she was now the wife of Nazar Hussain accused.
7. Abdul Razzaq P.W.4 has kept a camel and was cutting fodder in the area of Basti Saleh Muhammad near the Dera of Alla-ud-Din. He was attracted to the spot and saw the appellants giving Soti blows to Ghulam Fareed and Abdul Khaliq appellant had shouted that he had brought their victim. The land of this witness is located at a distance of 5 to 10 acres from the place of occurrence and he was cutting fodder from the land of Jam Alla-ud-Din from his cotton field. He has stated that he had come there incidentally and he did not know the number of blows delivered by each accused and the location of the injuries on the person of Ghulam Fareed. He has added that the appellants did not deliver any blow after the deceased had fallen down. Before the police, he has stated that the deceased was given blows when he had fallen on the ground. Abdul Rashid, an eye-witness, was not examined as being un-necessary.
8. The statements of Ahmad Hassan P.W.12 and Muhammad Yaqoob P.W.13, who had investigated the case, are significant. Ahmad Hassan has stated that it was brought to his notice during the investigation of this case that an abduction case had been registered against Nazar Hussain accused for the abduction of Mst. Sughran, who is the maternal-niece of Ghulam Fareed deceased. He has also added that Ghulam Fareed injured was kept at the Dera of Alla-ud-Din for one and a half hours wherefrom his relatives were called through Rasool Bakhsh Daha. The statement of Alla-ud-Din was, however, not recorded. Muhammad Yaqoob PW.13, after refreshing his memory, has stated that Ghulam Fareed was brought to the Dera of Alla-ud-Din in an injured state and kept there for one and a half hours and the relatives of the injured were not with him at the place of occurrence and they were sent for by Alla-ud-Din through Rasool Bakhsh Daha son of Paloo Daha and his relatives arrived there after one and a half hours. This witness did not affect the recovery of bicycles from the spot.
9. Ghulam Qadir is the real son of the deceased whereas Abdul Razzaq is a chance witness and he does not know the exact location of injuries sustained by the deceased at the hands of the appellants. The Medical Expert has opined that this occurrence could have taken place from mid- night to 4-00 a.m. The Investigating Officers have demolished the prosecution case by stating that the injured was brought to the Dera of Alla-ud-Din where he stayed for one and a half hours and subsequently the relatives of the injured were called from the Village through Rasool Bakhsh Daha.
The absence of the recovery of the bicycles further lends support to the view that the complainant and Abdul Rashid did not accompany Ghulam Fareed deceased when he was taken from his Village. If the statements of the Investigating Officers are believed then the prosecution case stands completely demolished. Otherwise too, there was no necessity of taking Abdul Rashid and Ghulam Qadir with the deceased to Basti Jullan when Abdul Khaliq was not suspected of any foul play.
10. The motive for the commission of this crime has not substantially been proved. It could have been proved that some of the appellants were thieves by profession and they were involved in theft cases and their tracks had been traced by Ghulam Fareed. In that event, Ghulam Fareed must have been cited as a witness in criminal cases against some of the appellants. But the complainant has clarified that his father never appeared as witness in any criminal case against the appellants.
11. The incident took place on 9-9-1984 and the recoveries were effected on 11-9-1984, 13-9-1984 and 15-9-1984. During a span of more than two days the appellants could have destroyed their blood-stained Sotis and could have washed their clothes. It does not appeal to reason that they kept roaming about with their blood-stained clothes and kept the blood-stained Sotis for being recovered by the police.
12. The prosecution version is not in consonance with the medical evidence and the statements of the Investigating Officer. There was an enmity against Nazar Hussain, one of the appellants, on the abduction of Mst. Sughran. The case is not free from doubt and, I, therefore, accept this appeal and acquit all the appellants of the charges framed against them. They shall be set at liberty forthwith if not required to be detained in any other case.