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Criminal Appeal No. 31 and Murder Reference No. 15 of 1985/BWP, heard on 28th February, 1987.

‑‑‑Ss. 302, 148 & 149‑‑Dishonest investigation, effect of‑‑Injury statement prepared after death of injured though examined by doctor while alive‑‑All recovery memos. prepared at spot while deceased was still alive showing offence under S. 302, P.P.C.‑‑Daily diary register showing despatch of Zimni No.1 on four different dates and no explanation forthcoming to reconcile it‑‑No entry in despatch register showing despatch of case diaries till after 26 days of occurrence‑‑Case originally registered under S. 302, P.P.C.‑‑Held bogus case diaries had been prepared after death of deceased‑‑Investigation was dishonestly conducted and no implicit reliance could be placed on such investigation.

‑‑‑Ss. 302 & 148/149‑‑Ocular testimony, appreciation of‑‑Eye‑witnesses related to deceased, not mentioning name of complainant as eye witnesses‑‑Complainant claiming to be chance witness as just accompanying deceased‑‑None of witnesses resident of locality but happened to be at spot per chance‑‑Shopkeepers of locality cited as eye witnesses, not produced as won‑over‑‑Witnesses otherwise found to be dishonest making improvements and contradicting their previous statements‑‑Medical evidence running counter to ocular testimony‑‑Accused wearing blood‑stained clothes after even two days of occurrence found not reasonable‑‑Crime empties and weapons recovered from accused, not sent to Forensic Science Laboratory‑‑Prosecution case, held, suffered from serious infirmities which rendered prosecution version, highly doubtful‑‑Conviction and sentence, set aside in circumstances.

Aftab Farrukh for Appellant.

Pervaiz Alamgir for the State.

Dates of hearing: 23rd, 24th and 28th February, 1987.

‑‑Muhammad Aslam (17) son of Ahmad Khan, Mushtaq Ahmad (30) son of Rasool Bakhsh, Abdul Hakeem (65) son of Pari Pia, Khurshid Ahmad (16) son of Abdul Hakeem and Fazal (16) son of Zafar Iqbal, have been convicted by learned Additional Sessions .fudge, Rahimyar Khan on 31‑3‑1985, under sections 302/149, P.P.C., for causing the murder of Ashiq Hussain (25) son of Gul Muhammad. Muhammad Aslam has been sentenced to death while all others have been sentenced to imprisonment for life. All the aforementioned convicts have also been sentenced to fine of Rs.10,000 each or in default one year R.I. They have also been convicted under section 148, P.P.C. and have been sentenced to three years, R.I. and fine of Rs.2,000 each, or in default three months, R.I. It has further been directed that half of the fine. if realized would be paid to the heirs of the deceased.

Vide the same judgment co‑accused Abdul Ghaffar (22) son of Abdul Hakeem and Riaz Ahmad (16) son of Khan Muhammad as also Ahmad Khan (42) son of Barkat Ali and Ghulam Akbar (55) son of Barkat Ali; who were tried under sections 302/149, P.P.C. have been acquitted.

The convicts aforementioned have challenged their convictions and sentences through the present appeal, while the matter also stands referred to us under section 374, Cr.P.C. seeking confirmation of death sentence awarded to Muhammad Aslam appellant. The complainant Muhammad Ramzan has also filed Criminal Revision No. 59 of 1985, for the enhancement of sentence awarded to Mushtaq Ahmad, Fazal, Abdul Hakeem and Khurshid Ahmad. All the three matters shall be disposed of by this judgment.

2. The occurrence in this case took place on 6‑5‑1982, at 8-30 a.m. in the Bazar of village Rukanpur, at a distance of three kilometres from Police Station Rukanpur, District Rahimyar Khan. F.I.R. Exh.P.E. was lodged at the police station on the same day at 9‑00 a.m. by Muhammad Ramzan P.W.9, the maternal uncle of Ashiq Hussain deceased. It was recorded by Muhammad Younus, A.S.I. P.W. 12.

3. Regarding motive it has been alleged that a year prior to the present occurrence, Mst. Shamim Mai P.W. 8 wife of Ashiq Hussain deceased and daughter of Ghulam Rasul P.W. 7 was enticed away by Ahmad Khan, acquitted co‑accused, who kept her as a keep in his house for about four months. Later on Ahmad Khan and Mst. Shamim Mai came to the house of Ghulam Rasul. Ashiq Hussain deceased also came there and gave shoe beating to Ahmad Khan and took away his wife to his house. This caused grievance to Ahmad Khan. A few days prior to the present occurrence, Ahmad Khan asked Ghulam Rasul for the return of Mst. Shamim Mai and held out a threat that if she was not returned she would be made a widow.

4. About the main occurrence it has been stated that on the eventful day, Ashiq Hussain deceased accompanied by Muhammad Ramzan P.W.9, his maternal uncle went to Rukanpur, as Ashiq Hussain had to make certain purchases. As soon as they entered the Bazar, Ashiq Hussain was attacked upon by the appellants. Mushtaq Ahmad and Fazal were armed with hatchets. Abdul Ghaffar and Riaz Ahmad were armed with .12 bore pistols. Abdul Hakeem and Khurshid Ahmad were armed with Sotis while Muhammad Aslam was armed with a big hammer. They emerged from a street. Abdul Ghaffar and Riaz started firing. Mushtaq Ahmad and Fazal inflicted hatchet blows from behind on the left shoulder of the deceased. Abdul Hakeem and Khurshid Ahmad gave Soti blows on his head and back. Thereafter Ashiq Hussain deceased fell down. While in fallen condition Muhammad Aslam inflicted two or three hammer blows with full force on his head. Mushtaq Ahmad caused a hatchet blow on the mouth of Ashiq Hussain. On alarm Ata Muhammad P.W. 11, Allah Bachaya P.W. 10, Abdul Rehman and Rahim Bakhsh shopkeepers (given up as won over) were attracted to the scene of occurrence. Thereafter the assailants left the scene of occurrence. Muhammad Ramzan went to the police station and lodged the report. It is noteworthy that the case was originally registered under sections 307/149/148/109, P.P.C. After the death of Ashiq Hussain on the same day at 1‑20 p.m. in the hospital, the offence was amended as 302/ 149/ 148/ 109, P.P.C.

5. On 6‑5‑1982, at 10‑30 a.m. Ashiq Hussain while in injured condition was medically examined by P.W.5 Dr. Ashiq Hussain Cheema, the then Medical Officer, D.H.Q. Hospital, Rahimyar Khan who found the following injuries on his person:‑‑

(1) One lacerated wound in mid of skull, in triangle, 1" each limb.

(2) One lacerated wound on left side of skull, 3" x 1/2".

(3) Depression of bone on left lateral side of skull, with laceration 1" x 1/4".

(4) One lacerated wound in occiput, 1‑1/2" x 1/4".

(5) One lacerated wound on left cheek, 3/4" x 1/4".

(6) Two incised wounds on the left shoulder, 2" x 1" and 1" x 1/2".

(7) Two incised wounds on lumber region, 1" x 1/4" and 1" x 1/4".

(8) One lacerated wound over upper lip.

Injury No. 3 was dangerous to life. Injuries Nos. 1, 2, 3 and 4 were kept under observation. Injuries Nos. 5, 6, 7 and 8 were declared as simple in nature. It was opined that injuries Nos. 6 and 7 were caused by sharp edged weapon while all other injuries were caused by blunt weapon.

Autopsy on the dead body of Ashiq Hussain was also performed by Dr. Ashiq Hussain Cheema P.W. 5, on 6‑5‑1982 at 5‑00 p.m. The aforementioned eight injuries were noticed at the time of post‑mortem examination also. It was opined by Dr. Cheema that death occurred due to injury No. 3 leading to fracture of skull bone and damage of brain. This injury was sufficient to cause death in normal course of life. He further opined that all the injuries were ante‑mortem. In cross‑examination Dr. Ashiq Hussain Cheema conceded that he did not find any sharp‑edged weapon injury on the face of the deceased and that no blunt weapon injury was found on the lumber region of the deceased.

9. All the accused except Fazal were arrested on 8‑5‑1982 by Ch. Bashir Ahmad, the then S.I./S.H.O. P.W. 13. Fazal was arrested by the same police officer on 11‑5‑1982. Two crime empties P.5 and P.6 were recovered from the spot, from where Riaz Ahmad allegedly fired vide memo. Exh. P.H. on 6‑5‑1982. This memo. has been attested by Saleem Akhtar (given up as won over) Rais Faiz Bakhsh (not produced as being dead) and Muhammad Younas A.S.I. P.W. 12. Two crime empties P.7 and P.8 were recovered vide memo. Exh. P.J. from the spot from where Abdul Ghaffar allegedly fired on 6‑5‑1982. This memo. has been attested by the aforementioned witnesses.

Blood‑stained clothes viz. Shalwar P.9 and shirt P.10 were got removed from the person of Mushtaq Ahmad appellant on 8‑5‑1982, vide memo. Exh. P.K. prepared by Basher Ahmad S.I./S.H.O. and attested by Saleem Akhtar, given up as won over and Rais Faiz Bakhsh, not produced as having died.

On 11‑5‑1982, blood‑stained Sota P.11 was recovered at the instance of Abdul Hakeem appellant vide memo. Exh. P.L., attested by Saleem Akhtar and Rais Faiz Baklzsh aforesaid who have not been produced and Bashir Ahmad S.I. P.W. 13.

On the same day i.e. 11‑5‑1982, Abdul Ghaffar, led to the recovery of .12 bore pistol P.12 from the residential room of his house vide memo. Ex. P.M. prepared by Bashir Ahmad S.I. P.W. 13, which has been attested by Saleem Akhtar and Rais Faiz Bakhsh (not produced).

Blood‑stained Sota P. 13 was got recovered by Khurshid Ahmad appellant from his house vide memo. Exh. P.N. on 11‑5‑1982. The witnesses are the same.

Blood‑stained hatchet P.14 was got recovered by Mushtaq Ahmad appellant from the residential room of his house on the same day vide memo. Exh. P.O., attested by the same witnesses.

On the same day Riaz Ahmad appellant led to the recovery of .12 bore pistol P. 15 from the residential room of his house vide memo. Ex.P.Q., attested by the same witnesses.

Blood‑stained big hammer P.16 was got recovered by Muhammad Aslam appellant on the same day vide memo. Ex. P.R. in the presence of the same witnesses.

Muhammad Fazal appellant led to the recovery of blood‑stained hatchet P.17 from his residential room on 16‑5‑1982 vide memo. Exh. P.S. in the presence of the same witnesses.

As per reports Exhs. P.V. and P.X. of the Chemical Examiner and the Serologist, respectively, the aforementioned blood‑stained Sotas, hammer and hatchet are stained with human blood.

10. At the trial Ghulam Rasul P.W. 7 and Mst. Shamim Mai P.W.8, deposed about the alleged motive, while Muhammad Ramzan P.W.9, Allah Bachaya P.W. 10 and Ata Muhammad P.W. 11 testified as eye‑witnesses to furnish the ocular account of the prosecution case.

11. The plea of the appellants at the trial was that of denial simpliciter. They claimed that the deceased was womanizer and had many enemies. He was attacked by unidentified assailants. The matter was reported to the police by the shopkeepers whose shops were located around the place of occurrence and thereafter the police summoned the relatives of the deceased and cooked up a false story.

Mushtaq Ahmad appellant examined in his defence D.W.1 Muhammad Anwar Hussain, D.W. 2 Ahmad Ali, brother of Hakam Ali deceased petition‑writer and D.W.3 Ghulam Hussain, stamp‑vendor. Documents Exs. D.F., D.G. and G.H. have also been produced in defence.

Muhammad Anwar Hussain D.W. 1 deposed that on 7‑12‑1982, he attested the affidavit Ex. D.E. sworn before him by Allah Bachaya P.W. 10. Ahmad Ali D.W. 2 stated that he identified the handwriting of his deceased brother Hakim Ali petition‑writer and that affidavit Exh. D.E. was in the handwriting of his deceased brother. Ghulam Hussain D.W. 3 disclosed that on 7‑12‑1982, Allah Bachaya P.W. 10 purchased stamp‑paper Exh.D.E. for purpose of affidavit from this witness.

As per contents of affidavit Exh. D.E., Allah Bachaya P.W. 10 has sworn an affidavit oh 7‑12‑1982 to the effect that on no occasion Ahmad Khan and Ghulam Akbar acquitted accused held out any threat to Ghulam Rasul P.W. in the presence of this witness and that he (Allah Bachaya) was not present on the spot at the time of occurrence and that he did not witness the occurrence. He also disclosed in the affidavit Exh. D.E. that after the death and even after the post‑mortem of Ashiq Hussain deceased, he and Muhammad Ramzan were taken by the police to the police station where the case was registered.

Exs. DR, D.G., D.H. apd D.H./1 are birth certificates regarding the ages of Riaz, Khurshid Ahmad, Muhammad Aslam and Fazal accused respectively.

12. The learned counsel representing the State, as usual, supported the judgment under appeal and maintained that this is a broad daylight occurrence which was reported to the police promptly and, therefore, the question of substitution did not arise.

13. The learned counsel representing the appellants, however; submitted that case against the appellants, was concocted and the prosecution has utterly failed to establish its allegations against the appellants beyond reasonable doubt. In support of this submission, it has been contended:‑

(a) that the motive as set up has not been proved. The investigation in the case is dishonest on the face of records. In all the memos. which were allegedly prepared before the death of the deceased, the offence has been shown as 302, P.P.C. Even in case of the injury statement Exh.P.C. which has been claimed to have been prepared when the deceased was alive in injured condition and was sent to the hospital for medical examination, he has been shown to have already died and reference has been made to his dead body;

(b) that the shop‑keepers whose shops are located near the place of occurrence have been given up and instead close relatives of the deceased who are residents of far‑off places have been produced as eye‑witnesses;

(c) that presence of Muhammad Ramzan, the first informant has not been mentioned by Allah Bachaya and Ata Muhammad P.Ws. in their statements recorded under section 161, Cr.P.C.

(d) that the medical evidence contradicts the statements of the eye -witnesses;

(e) that witnesses of recoveries have been given up. Statements of Investigating Officers who have been proved to be dishonest during the investigation of this case cannot be believed in this behalf; and

(f) recovery of hatchet from Fazal appellant has been shown to have been effected on 16‑5‑1982, but the same hatchet has been shown to have been deposited in the Malkhana on 11‑5‑1982. No explanation regarding this contradiction could be offered.

14. In this case P.W.7 Ghulam Rasul, father‑in‑law of the deceased and P.W.8 Mst. Shamim Mai, his widow, have been examined about the motive. Admittedly, the statements of these two P.Ws. under section 161, Cr.P.C. were recorded by the Investigating Officer, twenty‑five days after the occurrence. It has been stated by Ghulam Rasul that his daughter Mst. Shamim Mai who was married to the deceased was abducted by Ahmad Khan, acquitted accused, about 8/9 months prior to the occurrence and that after about three/four months of her abduction she came to the house of this witness where the deceased gave shoe‑beating to Ahmad Khan and took away his wife to his house. Mst. Shamim Mai also made similar deposition. Both these witnesses stated that daughter of Ahmad Khan was married to Farooq son of Ghulam Rasul and brother of Mst. Shamim Mai. Admittedly, Mst. Shamim Mai testified an affidavit Ex.D.C. on 21‑8‑1981 before an Oath Commissioner at Hyderabad. In the said affidavit it has been disclosed by her that when her relations with her husband and in laws became strained she was retained by her parents in their house, but as they were afraid of her in‑laws, they kept her for some time in the house of Ahmad Khan acquitted accused. During her stay in Ahmad Khan's house she was compelled by Ahmad Khan, Ghulam Akbar and others that she should obtain divorce from her husband 'and contract marriage with Ahmad Khan. She further disclosed in her affidavit that her husband was able to obtain her custody and since then she was residing in her husband's house.

In the light of the contents of the affidavit, the testimonies of Ghulam Rasul and Mst. Sliamim Mai and the prosecution version, as disclosed in the F.I.R. Ex. P.E., that Ahmad Khan had abducted Mst. Shamim Mai and that when she came to her parents house alongwith Ahmad Khan, a few months prior to the occurrence, her husband Ashiq Hussain gave shoe‑beating to Ahmad Khan is contradicted.

15. As already observed, the contents of Ex.P.C. suggest that the injury statement was prepared after the death of Ashiq Hussain deceased, but Muhammad Younus A.S.I. (P.W.12) testified that he went to the place of occurrence after recording the F.I.R. Exh.P.E. and found Ashiq Hussain deceased in injured condition. He prepared his injury statement Ex.P.C. and sent him for medical examination to D.H.Q. Hospital, Rahimyar Khan. Similarly, this witness is the author of memos. Ex.P.F. (recovery of blood‑stained earth), Ex.P.G. (collection of money from the pocket of the deceased), Ex.P.H. (recovery of cartridges from the spot) and Ex.P.J. (recovery of crime empties from the spot). He has disclosed that all these memos. were prepared when Ashiq Hussain was still alive, but he had admitted that in all these recovery memos. offence is mentioned as 302, P.P.C. P.W. 2 Muhammad Ali, Head Constable who was cross‑examined with reference to daily diary register admitted that Zimni No. 1 prepared by S.H.O. Bashir Ahmad .is shown to have been despatched on 8‑5‑1982, 9‑‑5‑1982, 10‑5‑1982 and 11‑5‑1982. He admitted that he had no explanation as to how one Zimni is shown to have been despatched on four different dates. According; to the despatch register, there is no entry with regard to the despatch of the case‑diaries relating to this case up to 31‑ 5‑ 1982, although the case‑diaries relating to other cases have been mentioned in it. He admitted it as correct that case diary No. 1 relating to this case has been shown to have been despatched on 8th, 9th, 10th ands 11th May, 1982 and that each entry has been made at the end of the table of case‑diary. He further admitted that originally the case was registered under section 302, P.P.C.

16. From the contents of Exhs. P.C., P.G., P.H. and P.J. read in the light of statement of Muhammad Younus A.S.I. P.W.12 and that of Muhammad Ali, Head Constable P.W.2, it appears that bogus case‑diaries have been recorded in this case subsequently after the death of Ashiq Hussain deceased. It can, therefore, be concluded that there has been dishonest investigation in this case and no implicit reliance can be placed on such investigation.

17. Muhammad Younus A.S.I. P.W.12 deposed that he examined Ata Muhammad, Allah Bachaya, Abdul Rehman, and Rahim Bakhsh: who have been shown to be the eye‑witnesses in the case under section 161; Cr.P.C. but they did not mention the name of Muhammad Ramzan complainant in their statements. Muhammad Ramzan is the real maternal uncle of the deceased. He is resident of Dudi Sangi. The occurrence took place at village Rukanpur. He claims his presence at the time of occurrence as per chancre, as according to him, he accompanied the deceased to Rukanpur where the deceased wanted to make certain purchases. Allah Bachaya P.W.10, is the father‑in‑law of the sister of Mst. Shamim Mai, the widow of the deceased, while Ata Muhammad P.W. 11 is the paternal uncle of the deceased. Allah Bachaya is also resident of village Dudi Sangi, while Ata Muhammad is resident of village Tajpur Pirwala. His house is at a distance of two miles from the place of occurrence, according to his own deposition. Allah Bachaya claimed at the) trial that he had gone to Rukanpur far making purchases, but this fact has not been recorded in his statement Exh.D.D. recorded under section 161, Cr.P.C. He has thus made an improvement in this behalf. Two shop keepers of the locality who have also been cited as eye‑witnesses in the) F.I.R. have been given up as won over. Allah Bachaya is otherwise also a dishonest person, inasmuch as earlier he testified an affidavit Exh.D.E. to the effect that he did not witness the occurrence.

Medical evidence also runs counter to the testimonies of the eye witnesses inasmuch as according to the eye‑witnesses, Mushtaq Ahmad caused an injury to the deceased on his face by hatchet, but according to .the medical evidence, no injury caused by sharp‑edged weapon has been found on the face of the deceased. Abdul Hakeem and Khurshid Ahmad allegedly caused injuries with Sotis on the lumber region of the deceased, but as per medical evidence, no injury caused with blunt weapon has been noticed on the lumber region of the deceased. It has been alleged that Muhammad Aslam who was armed with big hammer caused injuries twice or thrice with full force on the head of the deceased. This injury has been described as No. 3 in the medico‑legal report Exh.P.C./1, which reads:‑

"Depression 'of wound on left side of skull with laceration, 1" x 1/2".

Such an injury could be caused even by a dang. An injury with big hammer caused with full force would have created devastating results and the skull would have been completely shattered into pieces.

It also does not sound to reasons that Mushtaq Ahmad would be wearing blood‑stained clothes two days after the occurrence. The crime empties allegedly recovered from the spot and .12 bore pistols recovered from Abdul Ghaffar and Riaz have not been sent to the Forensic Science Laboratory and, therefore, these recoveries are of no consequence.

18. In the light of the analysis of the contentions raised on behalf of the appellants, as detailed above; we find that the prosecution case suffers from serious infirmities which render the prosecution version to be highly doubtful. In this view of the matter, we allow this appeal, set aside the convictions and sentences of the appellants and acquit them. They shall be set at liberty forthwith if not required to be detained in any other case. Death sentence awarded to Muhammad Aslam appellant is, therefore, not confirmed and the revision petition is also dismissed in limine.

S.A. /M‑ 129/L Acquitted.

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