1. Fida Hussain (55), Muhammad Khan (45), Ghulam Haider (32), Muhammad Nawaz (35) Akbar (45) and Rab Nawaz (46) were sent up by Police Station Bhakkar, for trial for offences under section 302/307/148/149/107/34, P.P.C The Sessions Judge, Bhakkar, vide his judgment, dated 31-7-1989 convicted and sentenced Fida Hussain, Muhammad Khan and Ghulam Haider to imprisonment for life each with a fine of Rs.5,000 each, or in default of payment of fine undergo further R.I. For one year each under section 302/34, P.P:C. It was further directed that the fine, if recovered, Rs.10,000 shall be paid to the legal heirs of the deceased as compensation. The convicts were also given the benefit of section 382-B, Cr.P.C. The trial Court, however, gave the benefit of doubt to Muhammad Nawaz, Akbar and Rab Nawaz and acquitted them of the charge. The convicts have appealed.
2. Ghulam Akbar, complainant, has filed a revision wherein he seeks enhancement of sentence of the convicts. Both the matters will be disposed of by this judgment.
2. The prosecution story, in brief, as disclosed in F.I.R. Exh. P.N. Lodged by Ghulam Akbar, was to the effect that on 19-5-1988 at about 6-30 p.m., the first informant with his brothers Abdullah Khan and Haq Nawaz alongwith Nazu were sitting in their Baithak when Fida Hussain, Akbar, sons of Mamun, Rab Nawaz, Muhammad Khan, Ghulam Haider and Muhammad Nawaz while armed with Lathis came there. Muhammad Nawaz raised a Lalkara to Abdullah Khan that how dare he brings a pair of bullocks for breaking of the legs of his dog from his father after disgracing him he would not escape. Fida Hussain gave a Lathi blow, which landed on the head of Abdullah Khan. Muhammad Khan gave a Lathi blow landing on the top of head of Abdullah Khan. Said Abdullah Khan fell down.
3. Thereafter, Muhammad Nawaz gave two Lathi blows, which hit Abdullah Khan. Akbar gave a Lathi blow, which hit on the back of Abdullah Khan. Rab Nawaz's blow landed on the left side of said Abdullah. The first informant with Nazu and Haq Nawaz stepped forward, whereupon Fida Hussain, Akbar and Muhammad Nawaz gave a Lathi blow each to the first informant. Muhammad Nawaz gave a Lathi blow to Haq Nawaz on his back and right shoulder. The commotion attracted Faiz Muhammad, brother of the first informant, and Khadim Hussain who also witnessed the occurrence and rescued the injured from the assailants.
4. The motive for the commission of the offence was that on the same day the first informant with Ghulam Haider and others had gone for rabit-shot. Muhammad Nawaz's horse broke the leg of the dog of the first informant, therefore, Faiz Muhammad, brother of the first informant went to the father of Muhammad Nawaz who gave him a pair of bullocks with the understanding that when Muhammad Nawaz came back he would enquire from him and thereafter whatever decision would be given by the Bradri he shall honour. Said Muhammad Nawaz took this action of Faiz Muhammad as his insult, therefore, committed the murder of his brother, Abdullah Khan alongwith his co-accused.
5. F.I.R. Exh P.N, was lodged by Ghulam Akbar, P.W.6 at Police Station Bhakkar on 19-5-1988 at 10-30 p. m It was recorded by Muhammad Anwar Khan, A.S.1. P.W.9, with regard to an occurrence, which took place at 6-30 p.m. The same day in the Bethak of the complainant at village Bharmi Chiragh Shah, nine miles in Police Station Bhakkar.
6. Muhammad Anwar, A.S.I. P.W.9, drafted the formal F.I.R. Exh. P.N. And prepared injury statement Exh.
7. P.O. Of Ghulam Akbar, P.W. Thereafter he proceeded to the Hospital and prepared injury statements of Abdullah Khan, Nazu and Haq Nawaz vide Exhs P.P., P.Q. And Exh. P.R. Respectively. He also recorded the statements of Haq Nawaz and Nazu under section 161. Cr.P.C. On 20-5-1988 Abdullah Khan expired, therefore, he prepared his inquest report Exh. P.S. And sent the dead body for post- mortem examination. Thereafter, the investigation was taken over by Abid Hussain, Inspector.
8. Abid Hussain, Inspector/S.H.O. Police Station Saddar, Bhakkar, received information about the murder oa 20-5-1988 and went to Civil Hospital. Bhakkar. He took over the investigation from Muhammad Anwar, A.S.I.; recorded the statements of injured witnesses and then went to the spot.
9. He took into possession last worn clothes of the deceased vide memo. Exh. P.G. On 2?-5-1988 all the accused appeared before him in the school building of village Bharmi Chiragh Shah. Where he arrested them. Fida Hussain while in custody produced Sota P.1 which he `secured vide memo. Exh.
10. PA. Muhammad Khan produced Sota P.3 which was secured vide memo. Exh. P.C. And Ghulam Haider produced Sota P.5 which was also secured vide memo. Exh. P.E. He got the memos. Attested from Muhammad Bakhsh, P.W.2 and Ahmad Nawaz. Since none of the Sotas were stained with blood, therefore, were not sent to the Chemical Examiner. He got site plans Exh. P.H. And Exh.P.H./1 prepared and gave his notes in red ink thereunder. After necessary,, investigation he challaned the accused.
3. P.W.5 Dr. Nisar Hussain, Medical Officer, D.H.Q. Hospital, Bhakkar on 20-5-1988 at 12-45 a.m., medically examined Ghulam Akbar and found the following injuries:
(1) A swelling 15 c.m. x 10 c.m. On the front of left thigh 5 c.m. Above left knee.
(2) A swelling 15 c.m. x 10 c.m. On right buttock extending up to waist alongwith a contusion 20 c.m. x 2 c.m.
(3) A contusion 12 c.m. x 2 c.m. On the back of chest on right side 13 c.m. Below right shoulder.
11. On X-Ray report he declared all the injuries simple.
12. On the same day he examined Abdullah Khan and found the following injuries:
(1) A lacerated wound 2 c.m. x 1 c.m. On the left side of head 7 c.m. Above left ear.
(2) Multiple abrasions with swelling 8 c.m. x 5 c.m. On the right side of head 5 c.m. Above right ear.
(3) A swelling 8 c.m. x 8 c.m. On the back of head in centre.
(4) A contused swelling in left orbit, eye-ball was red.
(5) A lacerated wound 1/2 c.m. x 1/2 c.m. Skin deep in left temporal area 2 c.m. In front of left ear.
(6) A contusion 10 c.m. x 2 c.m. In left scapular area.
(7) A contusion 6 c.m. x 2 c.m. On the left side of waist 8 c.m. Above left buttock.
13. The patient was unconscious and his B.P. Could not be recorded. Injuries Nos.6 and 7 were declared simple, the rest were kept under observation.
14. On the same day he also medically examined Nazu and found the following injuries:
(1) A lacerated wound 1 c.m. x 1 c.m. Skin deep on left hand dorsum in area of second metacarpal bone.
(2) A contusion 4 c.m. x 2 c.m. With swelling 5 c.m. x 5 c.m. On right hand dorsum in middle.
15. After X-ray report, he declared both the injuries simple.
16. On the same day he examined Haq Nawaz and found the following injuries:- (1)A contusion 30 c.m. x 2 c.m. On the back of chest across verteberal column, 26 c.m. Below root of neck.
17. (2)A contusion 15 c.m. x 2 c.m. In right scapular area.
18. (3)A contusion 5 c.m. x 4 c.m. On inner aspect of left forearm 2 c.m. Above left wrist.
19. He declared all the injuries simple.
20. On 20-5-1988 at 9 a.m. He conducted the post-mortem examination on the dead body of Abdullah Khan and found the same injuries noticed by him earlier. In his opinion the death had occurred because of shock and haemorrhage due to injuries Nos.1, 2 and 3, collectively. Each injury was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused with blunt weapon.
4. The prosecution in support of its case produced ten witnesses in all. Muhammad Afzal P.W.1 had identified the dead body of Abdullah. Muhammad Bakhsh, P.W.2 had witnessed the recovery of Sotas at the instance of the appellants. He had duly signed the memo. Ghulam Nabi F.C. P.W.3 had escorted the dead body to the mortuary. Ghulam Siddique, Draftsman, P.W.4 had prepared site pans Exh. P.H. And Exh.P.H./1 on the pointation of the witnesses. The doctor who had examined the injured and conducted the post-mortem examination, had appeared as P.W.5 The ocular account was furnished by Ghulam Akbar, Haq Nawaz and Faiz Muhammad P.W s. 6, 7 and 8, respectively.
21. The case was investigated by Muhammad Anwar A.S.I. And thereafter Abid Hussain,, S.H.O. P.W.9 and 10, respectively.
22. The accused were examined by the Court at the conclusion of the prosecution,, evidence. All of them denied the prosecution allegations and pleaded innocence. Muhammad Khan, appellant, and Muhammad Nawaz, acquitted accused, however, made a detailed statement. Muhammad Khan in answer to a question stated that on the fateful day there was a hare-hunt, where different people joined. He with Muhammad Nawaz, acquitted accused, had also joined the same. Ghulam Akbar, complainant also took part in it. During hunt, the dog of Ghulam Akbar got injured. When the hunt was over. Ghuiam Akbar said that his dog was missing, therefore, a search was conducted and the dog was found lying near a bush in an injured condition. At that stage Ghulam Akbar claimed that the dog had, been injured by the horse,, of Muhammad Nawaz, accused. Ghulam Akbar, thereafter, abandoned the hunt and went away carrying his dog.
23. After the hunt, Muhammad Nawaz, accused, invited him for tea as his house fell on the way. When they went inside, they heard a commotion. They found Ghulam Akbar complainant with his brothers Haq Nawaz and Abdullah with Nazu present inside the house of Muhammad Nawaz accused. They saw father of Muhammad Nawaz lying on the ground and Abdullah Khan was sitting on his chest and the others had removed a pair of bullocks. It was done to take revenge for the injury suffered by the complainant's dog. At that time no male member was present there except for the women. On seeing the incident, Muhammad Nawaz lost self-control and under grave and sudden provocation and also in the defence of his father stepped forward to rescue his father, whereupon all, except Abdullah, pounced upon him. Muhammad Khan also stepped forward and was engaged by the P.W s. In the fight. Therefore, Muhammad Nawaz in order to rescue his father gave stick blows to Abdullah. They also injured the other witnesses. He further stated that after the incident he with Muhammad Nawaz rushed to the police station to report the matter but the police refused to register a case. Thereafter, S.H.O. Abid Hussain came, who associated them with the investigation without registering a case at their instance. Thereafter, a case against them at the instance of the complainant was registered.
5. It was contended,, by learned counsel for the appellants that the case against the appellants was not proved at all. Submitted that the F.I.R. Was got registered after preliminary investigation, therefore, could not be relied upon. Submitted that the motive was not proved. Contended that neither the dog was got examined from a Veterinary doctor nor a case to that effect was registered by the police, which would prove beyond any doubt that the motive, as set up by the prosecution, was false. Contended that even otherwise, the story that Faiz Muhammad alone had gone to the house of Muhammad Nawaz is unbelievable. Argued that neither the dog nor the bullocks were recovered by the Investigating Officer, and, in such circumstances, the motive could not be proved. It was argued that the venue of occurrence could not be established by the prosecution because no blood-stained earth was secured from the spot, especially when the witnesses unanimously stated that on receiving the injuries, Abdullah deceased fell down and blood oozed out of his wounds. Contended that the ocular account was full of infirmities and discrepancies, therefore, may not be relied upon. Contended that if, at all, there was motive, it was against Faiz Muhammad, yet he was left alive, and Abdullah who had nothing to do with the taking of the bullocks was done to death. The contentions,, were opposed by learned counsel for the State as well as for the complainant. According to them, the appellants were named in the F.I.R. And the prosecution had proved the case against them through ocular account.
6. 1 have heard the learned counsel and gone through the record. The prosecution in order to establish its case has relied upon the ocular account furnished by Ghulam Akbar, Haq Nawaz and Faiz Muhammad, P.W s. 6, 7 and 8, respectively. Motive for the commission of the occurrence is also relied upon. As far as Ghulam Akbar, P.W., is concerned, no doubt he was injured and bad got the case registered, yet in cross-examination it has come to light that he had tried to improve upon his case from the one set up in the F.I.R. He had tried to change the time of occurrence in his statement before the Court, to which he was duly confronted with the F.I.R. Initially the case of the prosecution was that only two accused had participated in the hunt, yet, in Court he had involved all the six accused with the assertion that they had participated while riding horses. He had tried to show the background of enmity with the appellants by stating that the appellants had asked for his grey- hound, which he refused and was retaliated. This background of enmity was introduced for the first time, therefore, he was duly confronted and could not furnish any answer. He had asserted that he had lodged a report with the police against Nazu for having fractured the leg of his dog, and a case was also registered against Muhammad Nawaz. In fact, neither any report nor any case was got registered with the concerned police. Going through the statement of this witness minutely, there is no doubt left that he has improved upon his earlier version given in the F.I.R. To an extent that no reliance on his statement can be placed. As far as Haq Nawaz and Faiz Muhammad P.W s. 7 and 8, are concerned, they have supported the prosecution version by corroborating the statement of Ghulam Akbar. They were cross-examined at length. In cross-examination, Haq Nawaz was duly confronted when he tried to change the time of occurrence. He stated that at the time of fight pair of bullocks as well as the dog were tethered at the Bethak and the police took the bullocks and the dog :: possession. He further stated that the police on receiving information about the occurrence reached the spot and after questioning them had recorded the F.I.R. Faiz Muhammad P.W. Stated that he participated in the hunt where a dog of Ghulam Akbar, P.W. Was injured by the horse of Muhammad Nawaz. Thereafter this witness went to the house of Muhammad Nawaz, accused, and brought a bullock as compensation from Muhammad Nawaz' s father. Thin witness was cross-examined at length. In cross-examination he was duly confronted, wherein it was established that he had tried to improve upon his statement given before the police under section 161, Cr.P.C. He admitted that he came to the spot, yet none of the assailants tried to injure him though he had brought the bullock, which resulted in the fight. A careful perusal of the statements of the eye-witnesses renders their statements extremely doubtful. Even otherwise, the story as given by the eye-witnesses is not free from doubt. All of them had unanimously deposed that the occurrence took place inside the Bethak of witnesses. At the time of attack the witnesses and the deceased were sitting in the Bethak. The deceased was sitting on a cot where one had to cross the cot on which the witnesses were sitting to reach the deceased, yet they did not make any attempt tc cause any injuries to the witnesses, which is extremely doubtful. Similarly, there is no explanation available on the file why Abdullah deceased was chosen as a victim when he had neither participated in the hunt where the leg of first informant's dog was fractured, nor he had gone to the house of Muhammad Nawaz, accused to get a pair of bullocks as compensation.
24. All the witnesses were unanimous that the deceased on receiving the injuries fell down on the ground and blood oozed out of his injuries, but surprisingly blood-stained,, earth was not taken into possession by the Investigating Officer. When questioned by the defence in cross-examination, he frankly conceded that no blood-stained earth was pointed out to him nor he found any. This leaves no room for doubt that the occurrence had not taken place at the Bethak of the witnesses. It is prosecution's case that the occurrence had taken place because a pair of bullocks was brought by Faiz,, Muhammad P.W. From the father of Muhammad Nawaz as compensation. It is also their case that when the police came, the bullocks were present there, yet the Investigating Officer when questioned stated that he had neither seen the bullocks or the dog at the spot nor were they pointed out by any of the witnesses.
25. For what has been discussed above, it is clear that the prosecution case is not free from doubt at all. Therefore, the appeal is accepted and the judgment of the learned lower Court is set aside. The appellants shall be released forthwith, if not required in any other case. For the same reasons, the revision, seeking enhancement of the sentence is also dismissed.