Ghulam Rasool (25/26) and Muhammad Iltaf (16/17) were tried by Sessions Judge, Bhakkar, for having murdered Muhammad Ismail on 14-3-1987 at 3-00 p.m. In the fields, in the area of village Dabawali Mauza Panjgrain, at a distance of 12 kilometres from Police Station Darya Khan. Learned trial Judge vide judgment dated 6-7-1988 convicted them under section 302/34, P.P.C. And sentenced each of hem to undergo imprisonment for life plus to pay a fine of Rs.10,000 each, In default whereof to undergo R.I. For one year each. Half of the fine, on realization, has been directed to be paid as compensation to the heirs of the deceased.
The convicts have filed appeal.
2. According to the F.I.R. Exh. P.F., registered at the Police Station on 15-3-1987 at 2-15 p.m. By Abdul Rahman H.C. (P.W.7), the complainant was going to his fields alongwith Sher Muhammad at 3-00 p.m. On 14-3-1987. His father Muhammad Ismail (deceased) accompanied by his sister Mst. Taj Bibi aged 12/13 years were returning home after cutting grass. Ghulam Rasool and Muhammad Iltaf appeared there and started beating Muhammad Ismail with Lathis and fists. On the noise raised by the complainant, they ran away hurling abuses.
Motive behind the occurrence was a dispute about the construction of a wall.
3. After the occurrence, the complainant alongwith Sher Muhammad had taken his father to the Police Station Darya Khan where Rapt No.19 was recorded in the Daily Diary Register on 14-3-1987 by Nazar Muhammad A.S.I. (P.W.6).
After having got recorded the report, the complainant took his father to Civil Hospital, Darya Khan, where he was medically examined by Dr. Rashid Jalil Akhtar (P.W.1) on the same day. On 15-3-1987, the Medical Officer Incharge vide memo. Exh. P.D. Informed the S.H.O. That the condition of Muhammad Ismail had deteriorated, so arrangements may be made for recording his dying declaration. Exh. P.D. Was received at the police station at 2-15 p.m. On receipt of that memo. F.I.R.
Exh. P.F. Was drawn up by Abdul Rahman A.S.I. (P.W.7) under section 307/34, P.P.C. On receiving information, on the same day, vide memo. Exh.P.E. That Muhammad Ismail had expired at 2-25 p.m.
Offence under section 302, P.P.C. Was added.
4. Muhammad Anwar Khan A.S.I. (P.W.12) on being entrusted with the investigation on 15-3-1987, went to Civil Hospital, Darya Khan and despatched the dead body for post-mortem examination after preparing inquest report and injury statement. Thereafter, he inspected the spot and prepared rough site-plan Exh. P.M.
The appellants were arrested by him on 20-3-1987.
Sod P.5 and Soti P.6 got recovered by Ghulam Rasool and Iltaf respectively on 29-3-1987 were taken into possession vide memo Exh. P.I. And P.J. Respectively. Challan was submitted to Court after completion of necessary investigation.
5. Statements of 12 P.Ws. Were recorded at the trial.
Dr. Rashid Jalil Akhtar, who had medically examined the deceased on 14-3-1987, appeared as P.W.1.
He had noted the following injuries on his person :-- (1)A bruise 4 x 3 cm on outer aspect of left upper arm, 14 c.m. Below the left shoulder joint.
(2)The multiple bruise on front of the chest on both sides mainly on lower parts. Respiration of the injured was 24 per minute. Patient was feeling pain on coughing and change of posture.
(3)The injured also complained of pain on whole abdomen. There was no mark of external injury seen on his abdomen. The injured vomited before me at the time of examination. The injured did not pass urine since 2-00 p.m. Pulse was 110 per minute, and blood pressure 70/50 mm. Hg.
Injury No.1 was declared simple while injuries No.2 and 3 were kept under observation. All the injuries were opined to have been caused with a blunt weapon within about six hours.
6. Dr. Rashid Ahmad, who had performed autopsy on 16-3-1987 at 9-00 a.m. Appeared as P.W.3. He noted the following injuries on the body:-- (1)A bruise 4 x 3 c.m. On outer side of left upper arm 14 c.m. Below left shoulder.
(2)Multiple bruises on front of the chest on both sides on its lower part.
(3)A bluish coloured bruise 12 x 9 c.m. On left side of the abdomen.
(4)A bluish coloured bruise 10 x 8 c.m. On right side of the abdomen.
During internal examination, he had noted a rupture measuring 10 x 9 c.m. On the lower part of the stomach. Right lobe and spleen were found fractured. 9th rib was also found fractured.
Death was opined to have occurred due to shock and haemorrhage resulting from rupture of stomach, spleen and liver due to injuries No.3 and 4. Probable time between the injuries and death was opined to be about 24 hours while the time between death and post-mortem was opined to be about 18 hours.
7. Ocular account was deposed to by Muhammad Yaqoob (P.W.10) and Sher Muhammad (P.W.11).
Muhammad Yaqoob while repeating the facts given in the report lodged by him gave detail of the injuries inflicted by the appellants. In that, he stated that Ghulam Rasool had given a Soti blow on the left side of the flank and left arm while Altaf had given a Soti blow on the right side of the chest apart from the fist and kick blows given by both of them on the chest, abdomen and testies. While narrating the motive for the occurrence, he clarified that his father had constructed a wall in between their house and the house of Ghulam Rasool accused two days before the occurrence over which a quarrel had taken place between his father and Ghulam Rasool. During cross- examination, he stated that P.W. Sher Muhammad, Gulzar Hussain, Muhammad Afzal, Mst. Gaami and Allah Ditta were his cousins while Taj Bibi P.W. Was his sister. He was confronted with his statement before the police where he was not found to have given the details of the injuries inflicted by each of the accused. He admitted that he had witnessed the occurrence from a distance of 43 karams. He stated that they had removed the deceased on a cot to the metalled road from where they had taken him on a bus to the police station. He denied the suggestion that the deceased had walked to the metalled road. He also admitted that father of Ghulam Rasool had cultivated grams in a field near the place of occurrence.
According to him, the grass (which his father was bringing) was on a camelback and so had not fallen on the ground. He admitted that in the report lodged before at---the police station he had named Iltaf Hussain son of Ghulam Yasin. However, he clarified that he had mistakenly given the name of the father of Iltaf as Ghulam Yasin. He expressed ignorance about the father of Iltaf Hussain having divorced his mother and her having married another person at Darya Khan. He denied the suggestion that his father was grazing the camel in the grams fields of father of Ghulam Rasool whereupon Ghulam Rasool had abused him and threatened him and that his father for escape had driven the camel and had fallen down and suffered injuries.
8. Sher Muhammad (P.W.11) corroborated the statement made by Muhammad Yaqoob in so far as it pertained to the occurrence. During cross---examination, he stated that his statement was recorded by the police one day after the occurrence. He stated that the deceased was not having sickle with him nor was he in possession of cut grass. According to him, the grass was loaded on the camelback.
Both the witnesses denied the suggestion that they had not witnessed the occurrence.
9. Muhammad Anwar Khan A.S.I., who had investigated the case, arrested the accused and submitted challan against them after recovery of Sotis at their instance, appeared as P.W. 12 and deposed those facts. During cross-examination, he admitted that nothing was taken into possession from the spot. He denied the suggestion that Ghulam Rasool after arrest had stated that the deceased used to destroy their crop by grazing camel and that on the day of occurrence also, he was doing the same. He also denied the suggestion that he had substituted Iltaf son of Nazar Hussain for Iltaf son of Ghulam Yasin named in the F.I.R. Or that Iltaf son of Ghulam Yasin was the real culprit.
10. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence.
Ghulam Rasool appellant stated as follows in answer to the question, "Have you anything else to say?":-- "I am innocent. On the day of occurrence I was going to my house alongwith Muhammad Iltaf son of Ghulam Yasin then I suddenly saw Ismail deceased present in the grams and Aussu crop sown by my father. He was grazing the camel in our field and was thus destroying it. This hurt me so I shouted at him and ran to drive his camel out of the field. When he saw me he made his camel run to the west and he fell down from the back of the camel and received injuries. Afterwards he walked to the house alongwith the camel and later on they fabricated the case to implicate us:"
Muhammad Iltaf stated as follows in answer to the same question:-- "I am innocent. I am 14/15 years of age. My father Nazar had divorced my mother during my infancy, so she left Dabbawali alongwith me and began to live at Darya Khan. I have been living with my mother since then. I have been implicated falsely at the instance of Sheikh Ghulam Hassan who is inimical to my mother's family."
Ghulam Rasool, in the first instance, opted to adduce evidence in defence but later declined to do so. Iltaf did not choose to lead evidence in defence.
11. I have considered the contentions of the learned counsel for the parties in the light of the evidence noted above.
Except the dispute of wall that occurred between the deceased and Ghulam Rasool appellant, there was no other difference or annoyance between the parries prior to the occurrence. The said dispute allegedly had also taken place two days before the occurrence. Muhammad Iltaf, even according to the complainant, had nothing to do with that dispute. No evidence was led at the trial that he was in any way related or connected with his co-appellant. He was 16/17 years at the time of trial, which took place a year after the occurrence. He had no personal axe to grind. No specific allegation was made against him in the F.I.R. For having caused a particular injury. It was not denied that his father had divorced his mother and his mother had taken up residence in Darya Khan after marriage with someone else. His stance, therefore, that he was not residing in this village and was living with his mother in Darya Khan cannot be brushed aside so easily. The statements of both the witnesses about his participation in the occurrence do not find corroboration from any other evidence on record. It may be noted that while Yaqoob P.W.10 was son of the deceased, Sher Muhammad P.W.11 was first cousin of the complainant and so a nephew of the deceased. The uncorroborated testimony of both these witnesses against Iltaf, the circumstances noted above, in my view, does not prove beyond reasonable shadows of doubt his participation in the occurrence. His appeal is, therefore, allowed and he is acquitted. He shall be released forthwith, if not required in any other case.
12. Although Ghulam Rasool denied that he had quarrelled with the deceased over the construction of a wall by him yet he did not deny that he was around the place of occurrence when the deceased suffered injuries. His stance at the trial was that the deceased was grazing camel in their grams crop and he had abused him and threatened him as a result of which he had driven his camel while riding the camel and had fallen from the same and suffered injuries.
13. The injuries found on the person of the deceased and the damage of the internal organs not6d by the doctor, who had performed autopsy, could not have resulted by a fall From a camel. The deceased could have got his arm or leg fractured by fall. He might have even got his neck broken but he could not have suffered injuries on the chest and abdomen resulting in rupture of the stomach, spleen and liver. As such, the damage to these organs could only have occurred as a result of external injuries or thrashing. The ocular account against him, therefore, of having caused injuries to the deceased cannot be thrown away because the same of only finds support from the evidence of motive for the occurrence but also gets strengthened in view of the stand taken by him--that he was around the place of occurrence. It is also worth noting that except the dispute of wall, which the appellant denied, the witnesses were not inimical against him for any other reason.
As such, in my view, the prosecution has succeeded in proving the charge against the appellant of having infected injuries to the deceased, which resulted in his death.
14. Apart from the fact that it is the prosecution's own case that the deceased was not only inflicted injuries with Sota but was also given kick and fist blows the nature of injuries found on his person also shows that he might have been beaten by kicks and fists. Had Ghulam Rasool any intention of committing murder, he would not have chosen to start beating the deceased with fists and kicks, while being armed with a Sota. Moreover, he would have chosen at least someone of the vital parts i.e. Head, face, neck etc.
15. Keeping all the facts in view, I do not feet convinced that he could be held liable for having intentionally committing the murder of Ismail. His conviction and sentence under section 302, P.P.C.
Is set aside. He is instead convicted under section 304(I), P.P.C. And sentenced to undergo R.I. For ten years plus to pay a fine bf Rs.3,000 in default whereof to undergo R.I. For one year. Whole of the fine, on recovery, shall be paid, as compensation, to the heirs of the deceased. Benefit of the provisions of section 382-B, Cr.P.C. ,shall also be extended to the appellant., revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.