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Criminal Appeal No. 427 of 1984, decided on 17th December, 1986.

‑‑‑S. 302/34‑‑Evidence, appreciation of‑‑Dispute over possession of Ihata‑‑Deceased occupying Ihata under pretext of purchase from brother‑in‑law of co‑accused (since dead)‑‑Fact of purchase of Ihata by deceased, not required into by Investigating Officer‑‑No revenue record produced‑‑No witness to sale of Ihata cited in calendar of witnesses‑‑Evidence of sale and occupation of Ihata found unsatisfactory‑‑Complainant contradicted by medical evidence as to time of taking food by deceased and his running to distance of 24/25 Karams after receiving stab injuries‑‑Both eye‑witnesses found to be chance witnesses‑‑Conduct of witnesses in not intervening or forbidding accused from committing offence found unnatural‑‑Injured witness neither medically examined nor produced in Court as witness‑‑Most natural witnesses, given up as unnecessary‑‑F. I. R. appearing to have been recorded after preliminary investigation‑‑Recovery of blood‑stained weapons after period of more than four months‑‑Evidence relating to recoveries suffering from material discrepancies‑‑No evidence on record supporting abscondence of accused‑‑Prosecution evidence, held, was brought with serious doubts and possibility of occurrence have gone unwitnessed could not be ruled out in circumstances‑‑Conviction and sentence set aside.

‑‑‑S. 302/34‑‑Weapons of offence, recovery of‑‑Blood‑stained Chhuris recovered from house of accused after about four months of occurrence‑ Evidence of witnesses suffering from material discrepancies‑‑Accused keeping blood‑stained Chhuris in their house for more than four months‑‑Such fact being not believable, recoveries, held, were of no consequence.‑‑[Recovery].

Sh. Nisar Qutab for Appellant.

M. Saleem Shad for the State.

Dates of hearing: 15th and 18th October, 1986.

Muhammad Buta (25) and Ghulam Mustafa (18) sons of Shah Muhammad, residents of Chak No. 306/G.B., District Toba Tek Singh, were tried by the learned Additional Sessions Judge, Toba Tek Singh, on the allegations that on 12th October, 1982 at 6‑30 p.m. they, alongwith their father Shah Muhammad (since dead), committed the murder of Abdul Hameed deceased, in the area of Chak No. 306/G.B., in furtherance of their common intention. By judgment, dated 10th July, 1984 both of them were convicted under section 302/34, P.P.C. and sentenced to imprisonment for life and a fine of Rs.2,000 each or in default in the payment thereof to undergo further rigorous imprisonment for six months each. The fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation. The convicts have appealed.

2. The F.I.R. version is that on 12th October, 1982 Abdul Hameed deceased purchased an Ihata for Rs.400 from Kaka Teli, brother‑in‑law (sister's husband) of Shah Muhammad accused (since dead). The Ihata was adjacent to the house of aforementioned Shah Muhammad. The transaction was oral. On the same day Abdul Hamid deceased tethered his cattle in the said Ihata. At about 6‑30 p.m. Abdul Hamid deceased, his wife Mst. Ghulam Bibi complainant and their son Muhammad Yusuf aged ten years, were present in the Ihata when suddenly Shah Muhammad armed with a stick and Muhammad Buta and Ghulam mustafa appellants armed with Chhuris came there. Shah Muhammad gave a stick blow to Muhammad Yusuf and said how dare they occupy the Ihata of his brother‑in‑law. Abdul Hamid deceased and Mst. Ghulam Bibi raised alarm. Muhammad Buta and Ghulam Mustafa gave one Chhuri blow each to Abdul Hamid in the chest. Abdul Hamid started running but after covering a distance of 24/25 Karams he fell down and expired. On hearing the alarm Muhammad Altaf P.W., Habib‑ur‑Rehman and Eid Muhammad (not produced) who were present nearby, reached the spot Habib‑ur‑Rehman had a lantern with him. They also saw the occurrence. The accused entered their house through its door on the western side. Leaving the dead body with Muhammad Altaf P.W., Mst. Ghulam Bibi proceeded to Police Station Chutiana for making the report. Khan Muhammad, S.H.O., met her near Railway Station Chutiana and she narrated the occurrence to him at 8‑45 p.m. vide her statement Exh.P.A. on the basis of which formal F. I. R . Exh . P . A. /1 was recorded at the police station at 9 p . m .

3. After recording the statement of Mst. Ghulam Bibi, the S.H.O. reached the spot. He prepared the injury statement (Exh. P.G.) and inquest report (Exh. P. H .) of the dead body and despatched it to the mortuary for post‑mortem examination. Then he secured some blood stained earth from the place where dead body was lying and made it into a sealed parcel vide memo. Exh. P.J. He also secured Lathi (Exh. P.7) from the spot vide memo. Exh.P.K. He arrested Shah Muhammad accused on 17th October, 1982. Muhammad Buta and Ghulam Mustafa appellants were not available. They were arrested by Zia Ullah, Sub‑Inspector (P.W. 3) on 15th February, 1983 from Babar Chauk, Faisalabad. On 18th February, 1983 Muhammad Buta accused, while in custody, led to the recovery of blood‑stained Chhuri (Exh. P.1) from his residential room which was made into a sealed parcel vide memo. Exh. P.C. On the same day Ghulam Mustafa accused, while in custody, led to the recovery of blood‑stained Chhuri (Exh. P.2) from his residential room which was made into a sealed parcel vide memo. Exh. P.C. After the investigation, the accused persons were challaned.

4. On 13th October 1982 D Shamshad Hussain Medical Office T.H.Q. Hospital, Toba Tek Singh, conducted the autopsy on the dead body of Abdul Hamid deceased and found the following injuries on it:‑‑

(1) A stab wound 2 c.m. x 1 c.m. x going deep into left chest cavity on front of left side, 6 c.m. below left nipple.

(2) A stab wound 7 c.m. x 3 c.m. x going deep obliquely downward on outer and lower part of right chest.

Death was due to shock and haemorrhage and injury to vital organ, like lung and liver. Both the injuries were individually and collectively sufficient to cause death in the ordinary course of nature.

5. In support of its case the prosecution examined two eye‑witnesses namely, Mst. Ghulam Bibi complainant and Muhammad Altaf (P.W. 11). Habib‑ur‑Rehman, Eid Muhammad and Muhammad Yusuf were also named as eye‑witnesses in the F. I. R. but they were given up by the prosecution as unnecessary. The‑prosecution also relied on the evidence relating to motive, recoveries and abscondence of the accused.

6. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They stated that they were not present at the spot and were falsely implicated due to enmity and party faction in the village. No evidence was led in defence.

7. After examining the evidence on the record, the learned trial Judge came to the conclusion that the ocular evidence was corroborated by the medical evidence, abscondence of the accused, recoveries and reports of the Chemical Examiner and the Serologist. He, therefore, convicted and sentenced both the appellants as mentioned above.

8. Learned counsel for the appellants contended that the F.I.R. was reported at the spot after the preliminary investigation; presence of Mst. Ghulam Bibi and Muhammad Altaf P.Ws. at the spot was not established and there was a serious conflict in the medical and ocular evidence, therefore, the appellants were entitled to acquittal.

Learned State counsel, on the other hand, submitted that the eye‑witnesses had no motive for false implication, therefore, their evidence was rightly accepted by the learned trial Court.

9. According to the prosecution the occurrence took place due to a dispute over the Ihata, which had been purchased by the deceased from one Kaka, a brother‑in‑law of Shah Muhammad accused (since dead). The deceased occupied the Ihata on the day of occurrence, a upon which the appellants and their father Shah Muhammad came there; Shah Muhammad asked the deceased why he had occupied the Ihata of his brother‑in‑law; the deceased told him that he had purchased it from Kaka, upon which Shah Muhammad gave a Soti blow to Muhammad Yusuf son of the deceased, and the appellants gave one Chhuri blow each to the deceased. The evidence led by the prosecution with regard to the sale and occupation of Ihata is unsatisfactory and this important I aspect of the case was not enquired into by the investigating agency. Khan Muhammad Sub‑Inspector admitted that he 'did not inquire from Patwari Halqa or Kanoongo about the relevant record of disputed Ihata' and did not cite any witness relating to sale of disputed Ihata. At the trial Mst. Ghulam Bibi stated that eight or ten days prior to the occurrence her husband had purchased the Ihata from Kaka for a sum of Rs.400. She denied having stated before the police that they had purchased the Ihata on the very day of occurrence. She was confronted with her statement (Exh. P.A.) wherein it was so recorded. She stated that she did not accompany her husband when he purchased the Ihata from aforementioned Kaka. She further stated that the transaction of sale was not reduced into writing. Muhammad Altaf P.W. stated that the sale of the Ihata took place twelve or thirteen days before the occurrence and that he was not present when Abdul Hamid deceased made any payment to aforesaid Kaka. There is thus no evidence on the record to support the prosecution version that the deceased had purchased the Ihata from Kaka.

10. Mst. Ghulam Bibi, widow of the deceased, and Muhammad Altaf P.Ws. supported the prosecution version as detailed in the earlier portion of this judgment. At the time of occurrence Mst. Ghulam Bibi was residing with her children in her residential Ihata and she claims to have come to the Ihata of occurrence 'to fetch milk from the buffalo'. She further stated that she also brought evening meal for her husband in the said Ihata and the occurrence took place 5/10 minutes after her husband had taken his evening meal. Her above statement is belied by the medical evidence according to which the stomach of the deceased was full of semi‑digested food material. The doctor stated that the deceased might have taken food three hours prior to the occurrence.

11. Both the eye‑witnesses stated that after receiving two Chhuri blows in the chest the deceased ran to save his life and after covering a distance of 24/25 Karams he fell down and expired. This version is also contradicted by the medical evidence. The deceased had two stab wounds in the chest and the doctor stated: 'It is impossible that after receiving these injuries one could jump or run' or scale over the wall'.

12. Both the eye‑witnesses are chance‑witnesses of the occurrence. At the time of occurrence Mst. Ghulam Bibi was expected to be at her residential house. Her statement that she had taken the evening meal for her husband in the Ihata of occurrence, does not ring true. The medical evidence contradicts her statement that the occurrence took place 5/10 minutes after her husband had taken the evening meals. Muhammad Altaf P.W. was residing in a house adjacent to the residential Ihata of the deceased. He claims to have seen the occurrence when he was coming back after urinating. He stated that his shirt got blood‑stained and Mst. Ghulam Bibi also made a similar statement, but no blood‑stained shirt was produced before the police Mst. Ghulam Bibi further stated that Altaf P.W., Eida and Habib (not produced) neither physically intervened nor forbade the accused from giving blows to the deceased. This conduct is highly unnatural. According to Mst. Ghulam Bibi, the eye‑witnesses were attracted to the spot on her alarm and the alarm was raised when Shah Muhammad accused (since dead) gave a Sota blow to Yusuf P.W. (not produced). It is important to note that Yusuf P.W. was neither medically examined nor produced as a prosecution witness. The assailant/assailants could not have taken more than a moment to decamp after causing two injuries to the deceased. Mst. Ghulam Bibi stated that P.Ws (eye‑witnesses) were at a distance of 4/5 Karams when accused ran away after inflicting the blows. The possibility cannot be ruled out that the assailant /assailants straightaway attacked the deceased and decamped before any body could be attracted to the alarm. The residential houses of the deceased (complainant's husband) and Altaf P.W. are not shown in the site plan. House of Habib‑ur‑Rehman P.W. is adjacent to the Ihata in which the occurrence took place and is shown in the site plan. House of Eid Muhammad P.W. is also nearby. Only one house intervenes between the. Ihata of occurrence and his house. Both of them were very natural witnesses of the occurrence but unfortunately they were given up as unnecessary.

13. In this case the F.I.R. appears to have been recorded after the preliminary investigation and this circumstance further weakens the prosecution case. The statement (Exh. P.A.) of Mst. Ghulam Bibi is shown to have been recorded near Railway Station Chutiana. When F.I.R. is not recorded at the police station, the ordinary presumption is that it was recorded at the spot after the preliminary investigation. There is sufficient material on the record to show that the statement (Exh. P.A.) was not recorded near the railway station as alleged by the prosecution. Mst. Ghulam Bibi stated that she went to the police station but was informed by a person outside the police station that the Sub‑Inspector was not there as he had gone to the railway station and thereupon she went to the railway station in the company of the Lambardar and did not think it proper to go to the police station. She further stated that she returned to the place of occurrence on foot while the police came there on a wagon and that Shah Muhammad accused was also present at the spot at that time. The Investigating Officer gave an altogether different version. He stated that Mst. Ghulam Bibi went to the place of occurrence with him on the same wagon. He further stated that on reaching the spot he did not find Shah Muhammad accused and on 17‑10‑1985 he conducted a raid and apprehended him from his house.

14. The prosecution relied on the evidence relating to recovery of blood‑stained Chhuris at the instance of the appellants but these recoveries are of no consequence. The occurrence took place on 12th October, 1982 and Chhuris were allegedly recovered on 18th February, 1983. It is not believable that the accused persons would keep the blood‑stained Chhuris in their house for a period of more than four months. Even otherwise, the evidence relating to the recoveries suffers from material discrepancies. Bashir Ahmad (P.W. 2) and Zia Ullah Sub‑Inspector (P.W. 3) supported these recoveries. Bashir Ahmad stated that at the time of recoveries the wives of Buta appellant and Shah Muhammad accused (since dead) were not present, the rooms were locked, the locks were broken by the police and after the recoveries the broken locks were attached to the door. Zia Ullah Sub‑Inspector stated that at the time of recovery wife of Shah Muhammad accused (since dead) was residing in the same Ihata. He denied the suggestion that the rooms were locked and he had broken the locks.

15. According to the prosecution the appellants were declared proclaimed offenders and were arrested on 15th February, 1983. Khan Muhammad Sub‑Inspector stated that he made application (Exh. P.L.) "for proclaiming Muhammad Buta and Ghulam Mustafa accused as P.O." (proclaimed offenders). In fact, through Exh. P.L., he had requested that the statement of Ghulam Hussain constable be recorded under section 164, Cr.P.C. Aforesaid constable who was allegedly deputed for execution of warrants on the appellants was never examined as a witness. Thus, there is no evidence on the record to support the abscondence of the appellants.

16. After giving my careful consideration to the entire prosecution evidence and the arguments addressed by the learned counsel for the parties, I feel inclined to the view that the prosecution version is fraught with serious doubts and possibility of occurrence having gone' unwitnessed cannot be ruled out. I, therefore, accept this appeal, set, aside the conviction and sentence of the appellants and acquit them of the charge. They shall be set at liberty forthwith if not required to be detained in any other case.

S. A./M‑2/L Appeal accepted.

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