Find a Lawyer

Criminal Appeal No. 526 of 1984, decided on 24th April, 1986.

‑‑‑S. 302/34‑‑Ocular testimony‑‑Motive, a quarrel over turn of water 8/9 days prior to occurrence, between accused A on one side and complainant and deceased on other‑‑Threat to kill deceased extended‑ Deceased, student of 7th Class used to sleep at cattle shed‑‑Deceased, allegedly taken by accused A in evening prior to occurrence from his house‑‑Early next morning complainant, father of deceased, on going to shed for feeding cattle, finding deceased to have not returned‑ Complainant alongwith witnesses, started for search of deceased‑‑Accused A found absent from his house‑‑Proceeding towards house of accused I heard shrieks of deceased from his cattle‑shed and saw accused A giving blows with hatchet while I holding from legs‑‑Complainant not checking return of his son to cattle‑shed in night in spite of threat to kill extended by accused‑‑Complainant not informing his other sons about disappearance of deceased‑‑Place of occurrence not falling in their way while going to house of accused I‑‑All witnesses, just per chance reaching and seeing occurrence‑‑Actual spot, not visible from saw occurrence‑‑No alarm raised by witnesses or father of deceased nor any attempt .to apprehend accused made Place of occurrence surrounded ,by residential houses on all sides No independent witness from surrounding houses, produced Ocular testimony of witnesses, held, did not inspire confidence‑‑Story was unnatural having no ring of truth and could not, therefore, be accepted with any degree of safety in circumstances‑‑Appeal accepted.

Sanaullah Bajwa for Appellant.

Hafiz Ghulam Bari for the State.

Fayyaz Hussain Kadri for the Complainant.

Arshad and Inayat were convicted by the learned Sessions Judge, Qasur under section 302/ 34, P.P.C. for the murder of Asghar Ali deceased, and sentenced to life imprisonment each with a fine of Rs.5,000 each or in default thereof to undergo further rigorous imprisonment .for one year each. The fine, if realised, was ordered to be paid to the heirs of Asghar Ali, deceased, as compensation. The appeal (Criminal Appeal 526 of 1984) filed by the two convicts against their conviction and sentences and the private revision (Criminal Revision 773 of 1984) filed by Muhammad Siddiq, petitioner, for the enhancement of the sentences of the two convicts, are both now before me for disposal.

2. The prosecution case in brief is that Muhammad Siddique, complainant P.W.7, resided at Basti Thing, Tehsil Chuhian, District Kasur and was a cultivator. His younger son Asghar Ali alias Shaukat deceased, was a student of the 7th Class in Jandwala High School and used to sleep alone in the cattle‑shed in order to study during night time. On 9‑2‑1983 at about 7.00 p.m. Arshad alias Pidni, accused, came to the house of Muhammad Siddique, complainant P.W.7 and took away Asghar Ali, deceased, with him. The complainant thought that the deceased had returned at night and retired to the cattle‑shed and slept there. On 10‑2‑1982 at about 4.00 a.m. the complainant got up and went to the Cattle‑shed in order to serve fodder to his cattle. He found that Asghar Ali, deceased, was not present there. Accordingly, A he became perturbed and made inquiries from the house of Arshad, accused. The latter was not present at his house. The complainant, therefore, took Khuda Bakhsh P.W. 9 and Muhammad Younis (given up P.W.) with himself and started the search for the deceased. He knew that Arshad, Accused, was on visiting terms with Inayat accused. Accordingly, proceeded to the house of Inayat, accused. When they reached near the cattle‑shed of Inayat, accused, they heard shrieks and saw that Arshad, accused, was delivering blows to Asghar Alt, deceased, with a hatchet, while Inayat, accused, was holding him from his legs. On seeing them both the accused ran away towards the house of Zahoor Shah. The P.Ws. then went inside and saw that the deceased had breathed his last. The motive behind the attack was that 8 or 9 days prior to the occurrence, a quarrel had taken place between the complainant and Asghar deceased, on the one hand and Arshad, accused, and his uncles Riaz and Talib, on the other over the turn of water. Riaz and Talib had asked Arshad, accused, as to why he and his brother were not finishing the deceased.

3. Leaving the dead body in the custody of Khuda Bakhah P.W.9 and Younis (given up P.W.), Muhammad Siddique; complainant P.W.7 proceeded to Police Station Chunian, where he lodged F.I.R. Exh.P.J. on 7‑30 p.m. which was recorded by Habib ur Rehman S.I. P.W.10.

4. The Investigating Officer then proceeded to the spot, where, after preparing the necessary papers, he sent the dead body for post‑mortem examination. He also collected blood‑stained earth from the spot vide memo. Exh.P.L. and a pair of chappal of Asghar, deceased P.13/1‑2, a pair of Garbi of Inayat, accused P.14/1‑2 and a pair of Desi shoes of Arshad, accused P.15/1‑2, vide memo. Exh.P.M.

5. On 11‑2‑1983 at 11‑00 a.m. Dr. Muhammad Ashraf P.W.2 conducted the post‑mortem examination on the dead body of Asghar Ali, deceased and found fifteen cut wounds on various parts of the body, the majority of which were on the head, face and neck. The skull was fractured into pieces. Vertibra under the neck was cut. Caroted focial and jugular vessels were cut. Death was due to shock and haemorrhage as a result of the injuries individually, which were sufficient in the ordinary course of nature to cause death. Two anal swabs taken by the doctor for detection of semen were not found to be stained with semen. Probable duration of time between injuries and death was immediate and that between death and post‑mortem examination between one to two days.

6. On 14‑2‑1983, both the accused were arrested by Habib‑ur‑Rehman S.I. P.W.10.

7. On 17‑2‑1983, Arshad, accused led to the recovery of blood‑stained hatchet P.4, which was taken into possession, vide memo. Exh.P.F., and his blood‑stained shirt P.5 and Chaddar P.6, which were taken into possession, vide memo. Exh.P.G. The recoveries were witnessed by Bashir P.W.5, Khuda Bakhsh P.W.9, Habib ur Rahman S.I. P.W.10 and Bashir (given up P.W.). On the same day, Inayat, accused, led to the recovery of blood‑stained shirt P.6 and blood‑stained Chaddar P.8, which were taken into possession, vide memo. Exh.P.H., in the presence of Malook P.W.6, Khuda Bakhsh P.W.9. Habib‑ur‑Rehman S.I. P.W.10 and Muhammad Sadiq (given up P.W.). The blood‑stained earth, the blood‑stained hatchet and the blood‑stained clothes of the two accused were found to be stained with human blood. After completing the necessary investigation, the challan against all the accused was sent up.

8. At the trial, the prosecution produced Muhammad Siddique P.W.7 in proof of the motive, the said witness and Khuda Bakhsh P.W.9 to prove the ocular account, Bashir P. W.5, Malook P. W.6, Khuda Bakhsh P.W.9 and Habib‑ur‑Rehman S.I. P.W.10 in support of the recoveries and Dr. Muhammad Ashraf P. W.2 in corroboration of the medical testimony.

9. Both the accused denied the accusations that were levelled against them, including the recoveries alleged to have been effected at their instance they imputed their false involvement to enmity and suspicion.

10. The learned trial Judge rejected the motive, but relying upon the ocular account, the recoveries and the medical testimony, convicted and sentenced the two accused, as stated above.

11. I have heard the arguments of the learned counsel for the appellants, the complainant and the State and have also perused the record. The motive set up in this case has been disbelieved and rightly so and I need not labour further in this matter.

12. The ocular account in this case is furnished by Muhammad Siddique, complainant P.W. 7 and Khuda Bakhsh P.W.9. Their version of the occurrence already stands recorded in para. 2 above and need not be reproduced. Muhammad Siddique P.W.7 is the father of the deceased Khuda Bakhsh P.W.9 does not appear to be related to the deceased. The only question, therefore, that arises is whether their story can be believed. The story, however, appears difficult to digest. According to Muhammad Siddique P.W.7 Arshad, appellant, came to his house on 9‑2‑1983 at 7‑00 p.m. and took away Asghar Ali, deceased, his son with him. It is surprising that he would permit his son to go with Arshad, appellant considering that eight or nine days prior to the occurrence a quarrel had taken place between them, on the one hand, and Arshad, appellant, and Riaz and Talib, on the other, over the turn of water and Riaz and Talib, asked Arshad, appellant, as to why he and his brother had not finished his son Asghar Ali, deceased. Further according to Muhammad. Siddique P.W.7 his son Asghar Ali, deceased, used to sleep alone in the cattle‑shed at night in order to study. It is difficult to believe that a cattle‑shed was a proper place, which rarely has any light, reserved by the complainant for his deceased son for the said purpose of study. It is the complainant's version that he did not check up at night on 9‑2‑1983 whether his son had come back to his house. It is strange that he did not do so, considering that Arshad, appellant, had held out a threat to his deceased son that he would be finished. It is the case of the complainant that on 10‑2‑1983 at about 4‑00 a.m. he got up and went to his cattle‑shed in order to place fodder before his cattle, when he found that his son Asghar Ali, deceased was not present there. It is not possible to believe that he got up so early at 4‑00 a.m. when sunrise on 9‑2‑1983 was at about 7.15 a.m. and the call of Azan would be at 6‑00 a.m. According to the complainant, he first went to the house of Arshad, appellant, in order to enquire about his son and found that he was not present at his house. He then took Khuda Bakhsh P.W.9 and Muhammad Younis (given up P.W.) early in the morning at about 4.00 a.m. in order to start the search of his deceased son. It is unbelievable that he took these two persons, when he had six sons, of whom three were major, it is surprising that he did not inform any of his sons even about the disappearance of his son before going to the houses of Khuda Bakhsh P.W.9 and Younis (given up P.W.). The complainant's version is that after he secured the services of Khuda Bakhsh P.W.9 and Muhammad Younis (given up P. W.) they searched for his son, but could not trace him and then he immediately realised that as Arshad, appellant Was on visiting terms with Inayat, appellant, therefore, they proceeded to the house of Inayat, appellant, which was four/five Acres from the Basti and that when they were at some distance from the cattle‑shed of the said Inayat, appellant, they heard the shrieks and cries of Asghar Ali, deceased. In the first instance, as admitted by Khuda Bakhsh P.W.9, the place of occurrence does not fall on the way from their village to the house of Inayat, appellant. If this be so, their arrival at the cattle‑shed of Inayat, appellant was only fortuitous. Basically, the cattle‑shed of Inayat, appellant, from where the shrieks of Asghar Ali, deceased, were heard, is actually not that of Inayat, appellant, but of his grandfather Imam Din. In short by some stroke of good fortune, all the witnesses just reached the cattle‑shed of Imam Din, where they fortuitously heard the shrieks of Asghar Ali, deceased. It is next contended by the complainant that no sooner he reached the southern door of the Haveli of the cattle‑shed, they saw the two head injuries delivered by Arahad, appellant to Asghar Ali, deceased, whilst Inayat, appellant, was holding the legs of the deceased. According to the site plan Exh.P.E. and the evidence of Habib‑ur‑Rehman S .I. P.W.10, the deceased received his injuries at a point adjacent to the western wall of the cattle‑shed, which point could not have been seen by the three witnesses from the southern entrance of the Haveli. According to Muhammad Siddique P.W.7, a Diya (lamp) was burning in the room, where the occurrence took place, though one could see the occurrence even without the light of Diya. However, he admitted that the Diya was not taken into possession by the police which the Investigating Officer also conceded. However, Khuda Bakhsh P.W.9 stated that the occurrence took place after Fajar Azan and they saw the occurrence in the light of Din Ki Roshni. According to the eye‑witnesses, neither the deceased nor the two appellants were wearing any Khes, or blanket, or Chaddar, nor was any found in the room where the deceased was found murdered. It is surprising that the deceased and the two appellants were ill clad, considering that it was the cold winter month of February. According to the eye‑witnesses, the two appellants scaled the boundary wall of one Zahoor Shah, which was to the north of the cattle‑shed and decamped. It is surprising that no witness was produced from the house of Zahoor Shah to depose to this fact. According to the eye‑witnesses, they did not raise any alarm nor pursued the appellants. This is rather unnatural and unbecoming conduct, considering that Muhammad Siddique P.W.7 was the father of the deceased and he made no attempt to raise alarm or apprehend the assailants of his own son. The deceased apparently suffered nine injuries on his person. This shows that the occurrence must have taken two to five minutes. The shrieks and the alarm of the deceased would have awoken all the inmates of the surrounding houses. According to the site plan Exh.P.E the Haveli of Imam Din is surrounded on all sides by residential houses. Strangely, no independent witnesses from any of the neighbouring houses was produced nor examined in the case. Taking all circumstances into consideration, the testimony of Muhammad Siddique P.W.7 and Khuda Bakhsh P.W.9 does not inspire confidence. Their story is unnatural and does not have the ring of truth. Their account cannot, therefore, be accepted with any degree of safety. In these circumstances, I would reject the ocular testimony without any reservation.

12. In view of the above position, I need not labour any further on the recoveries or the medical testimony.

13. The upshot of the above discussion is that the appellants are entitled to the benefit of doubt.

14. For the foregoing reasons, the appeal is accepted and the conviction and sentences of Arshad and Inayat, appellants, are set aside. They shall be set at liberty forthwith, if, not required in any other case. Fine, if any recovered from them, shall be refunded to them.

15. There being no merit in Cr. R. 773 of 1984, the same is dismissed in limine.

S.A. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.