Mahmoodul Hassan aged 22 years was tried by the Additional Sessions Judge, Faisalabad, for having murdered Muhammad Hanif on 20-1-1987 at 9-00 p.m. At the platform of Railway Station, Jaranwala at a distance of 50 paces from the Railway Police Station, Jaranwala.
Learned trial Judge vide judgment dated 6-12-1988 convicted him under section 302, P.P.C. And sentenced him to imprisonment for life plus to pay a fine of Rs.10,000 in default whereof to undergo R.I. For one year. Half of the fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased.
2. The convict has filed appeal.
3. F.I.R. Exh.P.I./1 was registered at the police station by Muhammad Siddiq S.H.O. (P.W.12) at 9-35 p.m. On the same day, on receipt of statement Exh. P.I. Of Allah Ditta P.W.10 at 9-30 p.m. The same day.
According to F.I.R., the complainant had come to Railway Station Jaranwala alongwith Muhammad Sultan, Muhammad Ibrahim and Muhammad Hanif (deceased) as they were intending to go to Rudiala Road (Railway Station) by Ravi Express train. The train arrived at the station at 9-00 p.m.
Mahmoodul Hassan alias Nila (appellant) alighted from the train. On seeing Muhammad Hanif he raised a Lalkara that `you will not escape today' and fired a shot from the carbine, which hit him (Hanif) at the abdomen. He fell down on the-platform. The appellant ran away. The complainant and his companions failed to catch him.
4. Motive for the occurrence was that Sabir Ali a brother of Muhammad Hanif was murdered 5 months prior to the occurrence, by Mahmoodul Hassan, his brothers and father. All the accused had been arrested except Mahmoodul Hassan. He was absconding. Muhammad Hanif (deceased) was the complainant in that case and he used to pursue the same. He was asked repeatedly by Mahmoodul Hassan and his father Rehmat Ali not to pursue the case, but Muhammad Hanif used to refuse. Mahmoodul Hassan was annoyed due to that. He murdered him to avoid their prosecution.
5. Muhammad Siddiq, S.H.O. After recording the F.I.R. Reached the spot. He sent Muhammad Hanif who was then alive to the Civil Hospital for treatment under the escort of Muhammad Mohsin, A.S.I.
And collected blood from the spot, by rubbing cotton on the blood spots, vide memo. Exh. P.K.
Empty cartridge P.10 lying on the spot was taken into possession by him vide memo. Exh. P.L.
Woollen Chaddar belonging to the appellant, left there, was taken into possession vide memo. Exh.
P.M. Thereafter, he proceeded to the hospital and solicited opinion of the doctor vide Ruqqa Exh. P.H.
About fitness of the injured (Muhammad Hanif) to make a statement. The doctor vide Exh.P.H./1 opined that he was not fit to make a statement. Muhammad Hanif died during the same night. The S.H.O. After reaching the hospital, made arrangements for handing over the dead body to the doctor, for post-mortem on 21-1-1987 after preparing necessary papers.
The appellant was arrested by him on 21-1-1987, from the Waiting Room, Railway Station Jaranwala.
Carbine P.6 alongwith live cartridge P.7 found in possession of the accused at the time of arrest, was taken into possession vide memo. Exh. P.D. The challan was submitted to Court after completion of necessary investigation.
6. Statements of twelve P.Ws. Were recorded at the trial.
Dr. Muhammad Riaz Ali who had medically examined Muhammad Hanif on 20-1-1987 whilst alive, at 9-30 p.m., appeared as P.W.6. He had noted a lacerated wound 5 c.m. x 5 c.m. x cavity deep on left side of the abdomen 5 c.m. From umblicus. The omentum and intestine had come out of the wound. The intestines were injured, there was bleeding from the wound and area around was burnt. There were corresponding holes on the Bunian, shirt and pull-over, and they were torn. The injured was in a state of shock.
The injury, which, was opined to have been caused by a fire-arm, within half an hour, was declared dangerous to life.
7. The same doctor had performed autopsy on the body of Muhammad Hanif at 3-00 p.m. On 21-1- 1987 and had noted the same injury.
On opening, peritoneum, small and large intestines were found injured.
Death was opined to have occurred due to haemorrhage and shock, resulting from the fire-arm injury.
Seven pieces of packing material and one pellet found embeded in vertebral column were removed and sent to the police. The time between the injury and death was opined to be about 4 hours while the time between death and post-mortem was opined to be 14 hours.
He verified the fact that the police had inquired from him on 20-1-1987 about fitness of the injured (deceased) to make a statement vide memo. Exh. P.H. And that he had opined in the negative vide memo. Exh.P.H./1.
During cross-examination he stated that there was only one entry wound, and all pellets had entered the body of the deceased---en mass. He admitted that as 7 wads had been removed from the body of the deceased, the same was indicative of the fact that the fire had been shot from a close range. He stated that as the condition of the injured was serious, he had referred him to be taken to the D.H.Q. Hospital, Faisalabad.
The ocular account was discussed to by Allah Ditta P.W.8 and Sultan P.W.9.
Allah Ditta P.W. After repeating the facts given by him in the F.I.R. Admitted during cross- examination that Zafar Iqbal brother of the accused was murdered in the village on the same night and Ali Sher, Latif and Liaquat relatives of Hanif deceased were challaned in that case. He gave out that his sister was married to Jabir a brother of the deceased, who was murdered by Shera etc. And Muhammad Hanif used to pursue that case. According to him, Shera was sentenced to imprisonment for life while the others were acquitted. He denied the suggestion that the acquitted accused had threatened Muhammad Hanif deceased with dire consequences.
He admitted that his sister after becoming widow on the murder of Jabir, had married the deceased. He gave out that his step-sister had been married to another brother of the deceased.
He claimed that the accused after having fired at the deceased had emptied the carbine and reloaded the same throwing the empty on the spot. According to him the deceased used to keep his identity card with him.
9. Sultan P.W.9 corroborated the statement made by Allah Ditta P.W.8. He admitted that mother of Allah Ditta P.W. And mother of were of the deceased, was his sister.
Both the witnesses, during cross-examination stated that they had come to Jaranwala at 2-30/3- t10 p.m. In connection with some piece of work and had remained there till they met the deceased at 8-00 p.m. In the Bazar. According to both of them, they had come to the railway station to board the train after having accepted the invitation of the deceased to accompany him to his village.
Both of them admitted that they had neither taken the injured to the hospital nor had accompanied the Police Officer who had taken him (the injured) to the hospital.
P.W.9 categorically admitted that right hand of the accused was not in working condition as the same had been crushed in a machine. Such fact was admitted by P.W.8 as well. Both the witnesses admitted that neither they nor anyone else had produced the tickets, before the Investigating Officer. It was admitted by them that no ticket was recovered from the deceased as well. P.W.8 stated that the persons other than named as eye-witnesses were also with them at the time of occurrence and he had mentioned their names also while lodging the F.I.R. But the Police Officer had not recorded their names. According to the statement of P.W.9, during cross-examination, he and Hakam Ali, Ibrahim, Muhammad Umar and Muhammad Hussain Kashmiri were accompanying the deceased at the time of occurrence, to go with him to his village. P.W.9 stated that there were 14-15 passengers at the platform at the time of arrival of train while 10-15 persons had alighted from the train.
10. Muhammad Mohsin, A.S.I. Who had recorded statement Exh. P.I. Of Allah Ditta appeared as P.W.10. He claimed that he had taken the deceased in injured condition, to Jaranwala Hospital and had taken him from there to D.H.Q. Hospital, Faisalabad, on the recommendation of the Medical Officer. During cross-examination he admitted that Anwar Constable had also reached the spot when he had gone there. He claimed that information of presence of the accused in the Waiting Room (Mussafir Khana) on 21-1-1987 to the S.H.O. Was given by him and that he was arrested in his presence, and the carbine was also recovered in his presence. He denied the suggestion that he had not correctly recorded the F.I.R. And that the appellant had not been arrested from the Waiting Room.
11. Muhammad Siddiq, S.H.O. Who had investigated the case and submitted challan after arrest of the appellant, appeared as P.W.12. During cross---examination he stated that he had permitted the P.Ws. To go home after having recorded their statements at the Railway Station. He stated that he had gone to the hospital on the same night to record the statement of Muhammad Hanif and reached there at 11-30 p.m. According to him, only Muhammad Hussain P.W. Had accompanied him. He denied that he had taken the P.Ws. To the police station or detained them there. He denied the suggestion that none of the P.Ws. Was present at the spot and that on having found the deceased in injured condition, he had got the deceased removed in injured state, to the hospital and had come to know of his particulars from his identity card. He denied the suggestion that he had fabricated a false case. He stated that according to his investigation, Muhammad Ibrahim and Sultan P.Ws. Had come to the spot from the Railway Compartment after hearing fire shots and that it was the deceased, who had told that the accused had fired at him.
12. Muhammad Anwar, Constable who appeared as P.W.4 claimed that the injured had been removed to Jaranwala Hospital by him for treatment and that from there he had taken him to the D.H.Q. Hospital, Faisalabad, on the asking of the doctor. He also stated that he had taken the dead body for post-mortem examination. During cross-examination he stated that he had taken the injured to the hospital from the police station. He expressed inability to state as to who had brought him to the police station. According to him the injured was not in senses when he had been brought to the police station.
13. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He denied that he was arrested at Jaranwala Railway Station or that carbine was recovered from him. He stated as follows in answer to the question `why this case against you and why the P.Ws. Have deposed against you?':-- "I have been falsely implicated in this case because of enmity with the complainant party. I have not committed the murder of Hanif deceased. My right hand is crippled, deformed and not in working condition. I am unable to fire with any heavy weapon like a carbine. I was present in my village in order to perform the burial ceremony of my brother Zafar Iqbal who was murdered on the same night and was arrested therefrom by the police in the evening of 21-1-1987. All the P.Ws. Are inter-related and have deposed against me due to enmity."
14. I have gone through the evidence and have considered the contentions raised by learned counsel for the parties.
The occurrence had taken place on 20th of January at 9-30 p.m. At the railway station. The natural witnesses of the occurrence could have been either the persons who were accompanying the victim or the persons who were there to board the train or the persons who had alighted from the train. None of the persons other than, the ones, who claimed to have accompanied the injured to the railway station, was named as eye-witness nor produced at the trial. None from the passengers who had alighted from the train, or who were to board, was either named to have witnessed the occurrence, or produced at the trial.
15. According to P.W.8 and P.W.9, they had joined the deceased on having met him at 8-00 p.m. In the bazar of Jaranwala where they had come from their village at 2-30/3-00 p.m. Alongwith others.
Both of them neither in their examination-in-chief nor during cross-examination disclosed as to what was the piece of work for which they had come to Jaranwala, accompanied by others They did not bother to disclose as to why they had stayed on in the bazar of Jaranwala till 8-00 p.m. Of a winter night and for what special reasons they had accepted the invitation of Muhammad Hanif deceased to accompany him to his village? They categorically stated that there was no special function in the village of the deceased.
16. The deceased was married to the sister of Allah Ditta P.W. Another sister of Allah Ditta was married to a brother of the deceased. Sultan P.W.9 was maternal-uncle of Allah Ditta as well as were of the deceased. Some of the other persons named to have accompanied the deceased to the railway station after accepting his invitation, were also related to him. None of them accompanied the deceased to Civil Hospital, Jarranwala when he was taken there in injured state.
He was removed to Jaranwala hospital by the police. The police had shifted him from Jarranwala to D.H.Q. Hospital Faisalabad. Although there is contradiction between the statement of Muhammad Mohsin, A.S.I. P.W.11 and Muhammad Anwar, Constable P.W.4 as to who of them had taken the injured to the hospital yet there is consistency in their statements about, none other having accompanied the deceased in injured state to the hospital. Even if it was to be assumed for the sake of argument that they might have stayed back as they had to make statements to the S.H.O. Who had started investigation at the platform, they could have gone to the Civil Hospital thereafter, but none of them did that even. The S.H.O. Clearly stated that none of them had accompanied him to the hospital after he had set them free before going to civil hospital. The only person who accompanied him was Muhammad Hussain Kashmiri who was neither related to the deceased nor appeared at the trial. In fact he was not formally named in the F.I.R. As an eye- witness. The S.H.O. Denied that he had taken the P.Ws. To the police station or detained them there.
None, except, Allah Ditta P.W. Gave any explanation in that regard. The explanation of Allah Ditta P.W. Also does not inspire confidence as according to him he had gone to his village to inform the relatives after being free from the hospital and had thereafter gone to Faisalabad. If he could have shown that much keenness, he could have been more considerate by accompanying the deceased to the hospital or at least deputing someone to accompany him to the hospital.
17. Had any of the relatives, i.e. The P.Ws. Been with the deceased when he was injured, they would not have abstained from going with him to the hospital because he was in such a bad condition that: he would have required looking after by his relatives.
18. The conduct of the P.Ws. Noted above and their inability to explain as to in what circumstances they had remained roaming in the bazar till 8-00 p.m. In a winter night and for what urgent reason they had accepted the invitation to travel m a winter night, to the village of the deceased, leaves no room to doubt that they had made false claim for being in the company of the deceased at the time of occurrence and of having witnessed the occurrence.
19. The prosecution version of the occurrence appears to be improbable from another angle as well. In that, according to the eye-witnesses, the appellant after having fired at the deceased had emptied the carbine and reloaded the same. It was admitted candidly by P.W.9 that right hand of the appellant had been crushed accidentally in a machine and so was not in working condition.
Even if it is granted that the appellant had developed the habit of using his left hand like the right, it will have to be granted that emptying and reloading of a carbine with a single hand, would definitely require some amount of time and effort warranting considerable pause of time too. Had all the persons who claimed to be with the deceased, been around there, they could have easily taken the deceased into custody.
20. The claim of the Investigating Officer that he had arrested the appellant from the Railway Waiting Room, on the following night, i.e. 21-1-1987 also appears to be improbable. The Railway Police Station was only 50-60 paces away from the Waiting Room. The case had been registered there. The appellant would not have come there unless he had the intention to voluntarily appear before the police, which is not the case. The story of the prosecution that the carbine was recovered on the same night and an empty had also been taken into possession from the spot on the night of occurrence stands contradicted by opinion Exh.P.R. From the office of the Forensic Science Laboratory, according to which the Expert expressed inability to opine about the empty having been fired from the carbine.
21. As noted above, it was admitted by the eye-witnesses that a brother of the appellant had been murdered on the night of occurrence. The explanation of the appellant, therefore, that he had been arrested by the police from the village, where he was participating in the funeral ceremony of his brother, seems to be more probable and nearer the truth.
For all the reasons noted above, no doubt is left in my mind that the prosecution has not succeeded beyond reasonable shadows of doubt to prove the case against the appellant. The appeal is, therefore, allowed and the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case. 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.