RIAZ AHMAD J. Appellant Irshad aged 18 years, Ghulam Rasul aged 22 years and his brother, namely Muhammad Munir were tried by the learned Additional Sessions Judge at Sialkot on the charge under section 302 read with section 34 PPC for having committed the murder of Ghulam Nabi deceased.
2. Vide judgment dated 16th of April, 1984, the appellants Irshad and Ghulam Rasul were found guiIty on the aforesaid charge. Accordingly, each of them was convicted and sentenced to death, and to pay a fine of Rs. Ten thousand each, or in in defauIt of the payment of fine, to suffer further simple imprisonment for two years. Fine, if recovered, was ordered to be paid to the legal heirs of the deceased. Co-accused Muhammad Munir was acquitted of the said charge.
3. Aggrieved by their conviction and sentences, the appellant Irshad has assailed the same through Criminal Appeal No. 257 of 1988, while the appellant Ghulam Rasul has also filed an appeal (Criminal Appeal No.258/84). Acquittal of Muhammad Munir has also been challenged by the State through Criminal Appeal No.105/84. This judgment shall dispose of all the aforesaid appeals.
4. The unfortunate occurrence resuIting into the death of Ghulam Nabi deceased took place on 15th of May, 1982 at 12:30 p.m. Near a mission High School in village Jamke Cheema situated at a distance of five miles from police station Daska in district Sialkot. The occurrence was reported at the police station Daska, vide FIR Exh. PF lodged by Mushtaq Ahmad PW-7 recorded by Zulfiqar Hussain Shah Sub Inspector SHO on the same day at 1:45 p.m.
5. In brief, the complainant Mushtaq Ahmad PW-7 maker of the first information report stated, that he was a residnet of village Adu Wal, and Habib Ullah Lumberdar was his maternal uncle. On the fateful day, the complainant along with deceased Ghulam Nabi and SuItan Mehmud sons of Habib Ullah and Abdul Ghaffar son of Muhammad Bashir proceeded to mission school Jamke Cheema on a tractor trolly for delivering the sand. While having delivered the sand twice, and when on the third occasion, they were coming to the school, the complainant was driving the tractor, the deceased Ghulam Nabi, SuItan Mehmud and Abdul Ghaffar were sitting on the sand loaded on the trolly. When they reached near the mission school, a tonga reached from behind, in which, the acquitted co-accused Muhammad Munir, his brother appellant Ghulam Rasul alias Sula and appellant Irshad alias Shada were sitting. Muhammad Munir the acquitted co-accused shouted and signalled to stop the tractor, the complainant who was driving the tractor, stopped the same, and when the tonga passed from near the tractor, Muhammad Munir and both the appellants, showered abuses, and threatened to kill the complainant and his companions. Deceased Ghulam Nabi told the appellants and the acquitted co-accused Muhammad Munir, not to abuse, but the appellants went away remarking, that if the complainant visits the area again with the sand, he will not be spared alive. At about 12:30 p.m., when for the fourth time, the complainant and his companions brought the sand on the tractor trolly, and parked the tractor inside the school, in the meanwhile, Muhammad Munir acquitted co-accused and the appellants Ghulam Rasul and Irshad reached there while brandishing Churris. All of them raised Lalkaras that now the complainant and his companions could not go alive. Soon thereafter, all of them launched attack on the deceased Ghulam Nabi. Appellant Ghulam Rasul inflicted a blow with his Churri on the left side above the buttocks of the deceased. After the infliction of the said blow, all of them started dragging the deceased. The complainant and his companions tried to intervene, but the appellants also threatened them with dire consequences. Thus, on account of fear, the complainant and his companions receded. Muhammad Munir the acquitted co-accused and appellant Irshad inflicted blows with their Churris on the buttocks of the deceased, who fainted, and in that state, the appellants dragged the deceased for a distance of 50 yards, and brought him near the Imam Bara, and leaving him there, the appellants and the acquitted co- accused Muhammad Munir while brandishing Churris escaped from the scene of occurrence. Complainant brought the deceased Ghulam Nabi to Civil Hospital Daska, but he succumbed to his injuries in the Hospital.
6. After recording the FIR, police commenced the investigation, and the deadbody was sent to the mortuary. Dr. Javed Iqbal, Medical Officer Civil Hospital Daska conducted the post mortem examination on the deadbody of the deceased on 15th of May, 1982, and noticed the following injuries.
1) An incised wound 6 x 1/2 x 8 cm deep passing obliquely in between muscles and lying on lower part of left side of back of abdominal wall.
2) An incised wound 1 1/2 x 1 cm oblique and 4 cm deep on back of lower part of left buttock.
3) An incised wound 3 x 1 x 4 cm oblique on back of left buttock near anal cleft.
4) An abrasion 2 1/2 x 1/2 cm on back of rig! Lumber region.
5) Two abrasions 1 1/2 x 1/2 cm each close to each other on back of right elbow.
6) An abrasion 1 1/2 x 1/2 cm on outer aspect of left eyebrow.
Death in the opinion of the doctor had occurred due to severe bleeding and shock as a resuIt of injury No.1,2 and 3, which were collectively sufficient enough to cause the death in the ordinary course of nature. Injuries 1,2 & 3 were opined to have been caused with sharp edged weapon, and the rest with blunt weapon.
7. Appellant Ghulam Rasul absconded, and was thus, declared a proclaimed offender, but was arrested by Faiz Muhammad Inspector PW-6 on 12th December, 1982. Appellant Irshad was arrested by Hasan Akhtar ASI PW-9 on 19th of May, 1982, Muhammad Munir the acquitted co- accused was arrested by Zulfiqar Hussain Shah SHO after 8 days of the occurrence.
8. On 24th of May, 1982 appellant Irshad alias Shada while in police custody, got a blood stained Churri recovered from his house which was lying in a box. The same was taken into possession vide Memo.Exh. PG attested by SuItan Mehmud PW-8 and Abdul Ghaffar PW-11 besides the Investigating Officer Zulfiqar Hussain Shah SHO Police Station Daska.9. Appellant Ghulam Rasul after his arrest, while in police custody, got a Churri recovered which was buried underneath a Shisham tree towards the east of Ada Jamke. The aforesaid Churri was taken into possession vide Memo Exh. PE attested by Mushtaq Ahmad PW-7 and Nazar Muhammad ASI police station Daska.
10. Nothing was recovered at the instance of the acquitted co-accused Muhammad Munir.
11. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Mushtaq Ahmad PW- 7 and his brother SuItan Mehmud PW-8 both real brothers and maternal cousins of the deceased. An other eye-witness, namely, Abdul Ghaffar PW-11 also appeared in the witness box. Besides the ocular testimony, prosecution also placed reliance upon- the corroborative evidence as to the recovery of bloodstained Churri at the instance of Irshad appellant, and also the abscondence of Ghulam Rasul appellant.
112. When examined under section 342 Cr.P.C., the appellants denied the charge. Appellant Irshad stated that all the witnesses were related inter se, and in the past, the complainant and the witnesses had been acting in a group, and were involved in various criminal cases. It was further stated by him, that time, place and manner of occurrence had been suppressed by the prosecution. According to the appellant, everyone in the village Jamke knew that the occurrence had taken place inside the mission high school, where the building was to be constructed, and the occurrence had taken place between 10:00 and 10:30 am, and Ghulain Nabi deceased was killed by unknown persons. It was further stated, that the deceased and his family had been litigating with different people, and thus had many enemies, therefore, the deceased Ghulam Nabi might have been killed by one of such enemies. Appellant Irshad further stated, that he had no motive, grudge or grouse against the deceased.
13. Appellant Ghulam Rasul stated that the deceased was killed by some unknown person who might be the enemy of the complainant and the deceased, and the deceased admittedly had number of enemies.
14. Appellants Irshad and Ghulam Rasul also led the defence evidence. Niamat Masih DW-3, a teacher in the Govt. St. Marry High School Jamke Cheema stated, that he was a teacher in the said school for the last ten years, according to him, the main gate of the school is on the main road known as Mautra Road which is a bazar. The defence witness further stated, that some construction was being raised in the school about 250 yards from the main gate. On the day of occurrence, the school was functioning.' The witness further stated, that the occurrence took place at 10:00 am, and the students told him, that a person injured by Churri blow was lying at the place where the construction was being raised in the school. The witness went to that place, and saw the injured lying with face downward on the ground. According to the witness, the injured told him that two persons had injured him, the injured furhter stated, that he had many enemies, and he could not identify the assailants. According to the witness, many persons had gathered there. The witness further stated, that a tractor was stopped, and the injured was taken to the hospital on the said tractor. According to the wintness, the occurrence did not take place towards the bazar side.
15. With the assistance of the learned counsel for the appellants the complainant and the State, and we have also carefully perused the record.
16. The learned counsel for the appellants condended that the venue of the occurrence was not known, and the ocular account about the exact place where the occurrence had taken place was contradictory. It was next argued, that the evidence as to the dragging of the decaesed towards Bazar stood belied by medical evidence, because no such signs on the deadbody of the deceased were found to establish that the deceased was dragged. It was further contended, that the motive in this .Case was not proved, and whatever the prosecution witnesses stated in this behalf was vague. It was also argued, that the origin of the fight was shrouded in mystery. Learned counsel for the appellants strenuously argued, that recoveries in this case were fake, and particularly, recovery of bloodstained Chhuri at the instance of the appellant Irshad was disbelieved by the learned trial Judge.
17. On behalf of the appellant Ghulain Rasul, the learned counsel almost advanced the same arguments. On his behalf, it was contended, that appellant Ghulam Rasul had inflicted only one injury which did not cause the death. According to the learned counsel, there was no previous enmity, thus, the motive had not been proved as sought to be established by the prosecution, but the prosecution miserably failed to prove it. Hence, the prosecution must suffer.
18. In course of the arguments raised by the learned counsel for the defence, forceful attempt was made to make capital out of the medical evidence to disprove the prosecution version as to the dragging. Out attention was drawn to the deposition of Dr. Javed Iqbal, PW-13, Medical Officer, Civil Hospital, Daska, who during the cross examination stated that abrasions on the body of the deceased were caused by dragging for a few centimeters and if he had been dragged for a distance between 40/50 Karams the deceased was bound to receive the injuries and his clothes would have been torn. In this context, our attention was also drawn to the statement of Mushtaq Ahmed, PW-7 who deposed that the body of the deceased and his face were touching the ground when he was dragged and after a few paces, the deceased had stood up. The scrutiny of the statement of Mushtaq Ahmed PW-7, further reveals that he did not state that for the entire distance i. e. 40/50 Karams, the deceased had been dragged. The cumulative affect of the reading of the depositions of all the eye witnesses reveals that the deceased was being pulled by the accused- persons and during this process, three incised injuries were inflicted upon the left buttock of the deceased. It is thus obvious that if the deceased had been dragged for the entire distance i.e. 40/50 karams from the trolly to the Imam Bara with his face down ward, then the injuries could not have been inflicted on this part of the body. The injuries received by the deceased could have only been inflicted when he would have been in a standing posture and not otherwise. The ocular testimony also reveals that at times, the deceased was dragged and at times, he was pulled in the standing position. After anxious consideration, we are of the view, that the deceased would have been partly dragged and partly pulled and then he must have been in a standing position as deposed to by Mushtaq Ahmed PW-7 and it is not unthinkable that the deceased might have been carried. In this view of the matter, we are of the view that nothing turns upon this aspect of the case and particularly, on account of the absence of the injuries on the person of the deceased to be caused by dragging. All the eye witnesses claimed to have been present near tractor-trolly where the attack ensued and thus, we are of the view, that none of the eye witnesses had any uIterior motive to depose falsely or to take any undue advantage by deposing to this version. To the contrary, as stated above, we are of the view, that the incident had taken place near the tractor- trolly in the school and the deceased had been partly dragged, partly pulled and then carried. It is further pertinent to mention that a tendency is not uncommon in the eye witnesses to exaggerate the version, but the basic question in all criminal cases like the present one is, what is the inherent worth of the statement of the eyewitnesses and as to whether, they had seen the occurrence as claimed. After anxious consideration, we are of the considered opinion, that these eyewitnesses had seen the occurrence because both the complainant side and the accused side belonged to different villages and there is no background of any enmity between the parties and, therefore, in the circumstances of the case, none would come forward to depose falsely on a capital charge.
19. We have also examined the defence plea to the effect that the occurrence had taken place at a different place and on a different time and by two unknown assailants. To substantiate this plea, besides the statement under section 342 Cr.P.C, the defence witnesses were also examined.
Niamat Masih DW 3, a teacher of the Mission High School, Haji Ghulam Muhammad DW 4, a shop- keeper running a shop at a distance of 60 yards away from the school and Mukhtar Ahmed DW 5, a tractor driver, who had allegedly carried the deceased to the Daska Hospital, were examined. Both Niamat Masih DW 3 and Haji Ghulam Muhammad DW 4 deposed that the incident had taken place in which Ghulam Nabi was murdered, but both deposed that they had reached at the place of occurrence near the deceased when the assailants had fled away after causing injuries. Both these defence witnesses and also Mukhtar Ahmed, DW 5, the tractor driver also stated that the deceased had told that he had many enemies and some of them had caused him injuries. A careful appraisal of this testimony establishes it as improbable, unnatural and untrue. To illustrate it, it may be stated here that Niamat Masih DW 3, claimed that many masons and labourers were working near the tractor trolly where the deceased was lying injured but the hollowness of the version becomes evident from the fact that the witnesses did not take care to inquire from any mason or labourer as to the identity of the culprits. On the other hand, the version given by Niamat Masih, DW 3, stands belied by the assertion of Ghulam Muhammad DW 4 who deposed that no labourer or mason was present where the deceased was lying injured. We are not prepared to believe that the deceased would not have told or identified his enemies if he had been killed by such persons. The site plan and the spot from where the blood-stained earth was taken into possession also establishes that the incident had taken place inside the school. But the deceasd was partly pulled, dragged and carried, that is why, the dead-body was found near Imam Bara outside the school.
20. After anxious consideration, we are of the view that the eye witnesses had seen the occurrence and as already stated above, there is no motive on the part of the eye witnesses to falsely involve the appellants because both the complainant and the accused sides belong to different villages.
The complainant side belongs to Adhuwal village whereas; the accused side belongs to Jamkey village with no background of enmity between both sides at all. In our view at the time of relevant trip of the tra.'tor-trolly with sand, which was being followed by a Tonga boarded by the appellants, some unpleasantness had .Occurred. However, on account of not giving way for Tonga to pass or on account of sand falling into the eyes of the appellant. In our view, it must be a trivial affair which cannot be discerned from the record resuIting into the incident. It is also not known as to how the fight originated, rather, it can be safely assumed that the same is shrouded in mystery. In this view of the matter, we are of the view, that it will not be safe for the administration of justice to exact the extreme penaIty of death from the appellants. It was not a premeditated murder and there being no background of enmity. The ends of justice would be met, if lesser penaIty is awarded to the appellants. ResuItantly, the appeals Hied by Irshad and Ghulam Rasool, appellants, are hereby dismissed with the modification in sentence. The death sentences awarded to them are not confirmed and instead thereof, the appellants would suffer life imprisonment. The sentence of fine is maintained. On account of the motive not known in this case, we direct that the appellants shall be entitled to the benefit under section 382 (b) of the Criminal Procedure Code.
21. Adverting to the Criminal Appeal 105 of 1984 filed by the State, assailing the acquittal of Munir, we are of the vieiw that the acquittal is based upon cogent reasons and no foundation exists on the record to depart from the same. In this behalf, the deposition of Rana AItaf Majeed, ASP, Rawalpindi, who appeared as DW 6 is relevant. The said defence witness stated that he and Zulfikar S.H.O., Police Station Daska had investigated the case and the S.H.O., Daska could not find any incriminating evidence against Munir respondent. Under the instructions of the DIG, the witness had also investigated the case and was satisfied that the complainant side had failed to produce any cogent evidence before him as to the involvement of Munir rspondent. The respondent Munir had produced defence witness to support his ali bi which is believed by the learned trial Judge because he had also the advantage of examining and watching the demeanour of defence witness. The finding arrived at by the learned trial Judge while considering the ali bi of the respondent Munir, is neither perverse nor foolish so as to warrant interference by this Court. Accordingly, the State appeal filed to assail the acquittal of Munir respondent is also dismissed.