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Petitioner: RASHID AHMAD VS Respondent: THE STATE
P L D 1993 Lahore 365
]P L D 1993 Lahore 365
Before Ausaf Ali Khan and Mian Abdul,Khaliq, .JJ
RASHID AHMAD and others---AppeUants
versus
THE STATE --- Respondent
Criminal Appeal No.92/BVvT and Murder Reference No.35 of 1991, decided on 1st March, 1993.
(a) Penal Code (XLV of 1860)--
---- S.302/34 --- Appreciation of evidence --- Motive set up by the prosecution had not been proved-- -Eye-witnesses had made dishonest material improvements and their ' testimony did not inspire confidence --- Evidence of premeditation and common object of accused was not available ---Recoveries had no evidentiary value -- Medical evidence was not in consonance with ocular testimony --- Prosecution had suppressed the injuries of accused --- Intentional manipulations and additions had been made in the F.I.R. to bring in line the ocular version and medical evidence --- Accused had admitted the occurrence but in a different manner and his statement in the circumstances had to be accepted in totality and without scrutiny ---Accused were acquitted on benefit of doubt accordingly.
(b) Penal Code (XLV of 1860)---
S. 302/34 --- Injured witness --- Not always correct. that the injured prosecution witness would speak truth.--[Witness]. (c) Criminal Procedure Code (V of 1898)-.
---- S.342 --- Penal, Code (XLV of 1860), S.302/34 --- Statement of accused under S.342, Cr.P-C- -Prosecution evidence having been totally rejected, statement of accused has to be accepted in totality and without scrutiny.
Sardar Ahmad Khan for Appellants. S. M. Rizvi, A.A.-G. for the State. Malik Ghulam Fareed for the Complainant.
Date of hearing: 23rd February, 1993.
JUDGMENT
MIAN ABDUL KHALIQ, J.--Appeflants Rashid Ahmad, Bashir Ahmad and Muhammad Sadiq sons of Abdul Rchman alongwith the acquitted co-accused Rashid Ahmad, Ranjhoo sons of Kammun and Dodha alias Siraj son of Jamal were tried for the murders of Ibrahim and Khadim Hussain by the learned Additional Session Judge, Bahiiwalpur, who convicted and sentenced the appellants vide his judgment dated 17-9-1991 as follows:--
(1) Rashid ' Ahmad s/o Abdul Death on each count with fine of
Rehman under section 302/34 Rs 20,000 on each count,
P.P.C for the murders of in default whereof to suffer R.I. Khadim Hussain and Ibrahim for 4 years on.each count.
(2) Bashir Ahmad and , Life , imprisonment each on each count with a fine of Rs. 15,000 each on each count, 'in default whereof to undergo 3 years' R.I. each on each count. Their sentences were. ordered to run. concurrently.
(3) Muhammad Sadiq under section 302/34
P.P.C for causing death of Khadim
Hussain and Ibrahim.
The fine if realized, fifty per cent. thereof was ordered. to be paid as compensation to the legal heirs of the deceased. The appellants assail the impugned judgment against their conviction and sentence. The connected Murder Reference. No., 35/1991/BVvT along Criminal Appeal No.26/1991/BWP and Criminal Revision No. 29/1992/BWP, both preferred by the State and Criminal Revision No.19/1993/BWP. recently filed by the, complainant shall also be disposed of by this judgment.
2. Briefly the prosecution case is that P.W2 Muhammad Siddique on23-10-1990 in Hospital Ahmadpur East made his statement Exh. PA Wore P.W.8 Muhammad Ranizan SJ to the effect that he was resident of Basti Chah Kandaywala Dakhli village Daimwala and about 15116 days earlier, the appellant Rashid Ahmad had a quarrel with Ismail, paternal-uncle of the complainant during talks, and the appellant had slapped his paternal-uncle. The complainant had given 2/3 slaps on the face of Rashid Ahmad, appellant, while the inhabitants of the village patched up the matter. Rashid Ahmad appellant exclaimed that he would take revenge. On the day of occurrence i.e. on 23-10-1990 at Maghrabwela when the complainant went out of his house to the tube-well of Bashir Ahmad Mohajir at a distance of 4 acres for taking bath and after taking bath was coming back to his house and when was at a distance of about one, acre from hi's house, Ranjhoo, Rashid Ahmad (acquittcd co accuscd) armed with
hatchets, Muhammad Sadiq, Rashid Ahmad sons of Abdul Rehman armed with Sotis, Bansi, Dodha (acquitted co-accused) armed with Dang, Saamwall and Bashir Ahmad appellant armed with revolver emerged from the cotton crop of Rasool Bakhsh Bhutta. Ranjhoo (acquitted co-accused) caught hold of the complainant and felled him on the ground, while Rashid Ahmad son of Kammun (acquitted co-accused) with hatchet, Rashid Ahmad, Muhammad Sadiq appellants and Dodha (acquitted co- accused) with Sotis started injuring him. Bashir Ahmad appellant continued standing pointing the revolver. The complainant raised hue and cry, on which the complainant's deceased father Ibrahim and deceased brother Kbadim Hussain reached for rescuing him. Bashir Ahmad appellant while pointing revolver towards them warned them that if they Would comc near, they would not be spared, but Ibrahim and Khadim Hussain deceased without caring for their lives stepped forward to rescue the complainant, on whom Ranjhoo and Rashid Ahmad son of Kammun (acquitted co-accused) inflicted two and one hatchet blows respectively on the head of Ibrahim deceased. Both of them also inflicted blows with Soti Baansi Saamwali on the head of his brother Khadim. Hussain deceased. Then Rashid Ahmad appellant caused blow on Khadim Hussain deceased which landed on the head near the right ear. The third blow was given by Sadiq appellant on the fallen Khadim. Hussain which hit on the inner side of the left thigh. Meanwhile, on hearing the hue and cry P.W.4 Muhammad Murad, P.W.3 Muhammad Shari, residents of the village reached, who while witnessing the co-occurrence saved the complainant and his deceased father and brother and if P.Ws. would not have come, the accused would have killed them. The acquitted co-accused alongwith the appellants after making mutual consultation for killing the complainant, his father and brother had made murderous assault. P.W.3 Muhammad Shafi and P.W.4 Muhammad Murad on a tractor-trolley took the complainant (P.W.2), his deceased brother Kbadim Hussain add deceased father Muhammad Ibrahim in, critical condition to the hospital. The deceased persons were unconscious.
3. P.W.8 Muhammad Ramz.an S.I. after recording statement Exh. PA of P.W.2 Muhammad Siddiq complainant in the hospital sent the same to the police station through Karam Hussain where P.W.1 Muhammad Shafi H.C. 0 371 received the same and on' its basis correctly recorded the F.I.R. Exh.PA/1. P.W.8 after recording statement Exh.PA in the 'hospital prepared injury statements of Khadim Hussain, Ibrahim and Muhammad Siddique Exhs.PH, PI and PJ respectively, recorded the statements of P.Ws, made applications Exh. PK and PL to the Doctor whether injured Ibrahim and Khadim Hussain were fit to make statements and the Doctor h ad opined vide Exhs. PK/1 and PL/1 that the injured were not fit to make statements. P.W.8 searched for the accused and on the next day Khadim Hussain injured died in the hospital. P.W. 8 prepared inquest report Exh. PM and sent the dead body of Khadim Hussain for autopsy. On the same day he came to know that Ibrahim injured had also died in the B.V. Hos'pital, Bahawalpur and his dead body had reached Hospital Ahmadpur East, where he prepared inquest report Exh. PN and despatched the dcad.body for autopsy. P.W.5 Muhammad Ismail, brother of Ibrahim deceased and paternal-uncle of Khadim Hussain deceased stated that he was not available for inspection of place of occurrence. P.W.8 deputed a constable - to 'safeguard the place of occurrence on 24-10-1990 and on 25-10-1990 he reached the locale and secured bloodstained earth from the place where Ibrahim deceased in injured condition fell down vide memo Exh. PB and bloodstained earth Jrom the place where Khadim Hussain deceased in injured condition fell down vide memo. Exh. PC, and made it into two separate sealed parcels in presence of the P.Ws. P.W.8 recorded the statements of P.Ws., deposited the sealed parcels of bloodstained earth with the Mobarrir. On 6-11-1990 P.W. 8 arrested Ranjhoo, Rashid Ahmad, Dodha (acquitted co accused) and appellant - Rashid Ahmad and prepared injury statement of Rashid Ahmad appellant Exh. PR and got him medically examined from the Doctor. Thereafter investigation was taken over by P.W.11. Mian Irfanullah Inspector/SHO P.W.1.1 Mian Irfanullah SHO recorded the statements under section 161, Cr.P.C. and completed the investigation. He had not arrested Bashir Ahmad and Sadiq appellants as they werefound innocent by him during investigation. The appellants alongwith the acquitted co-accused were challaned and sent up for trial. Charges under sections 302/149, 324/149 and 148, P.P.C were framed against them, to which they denied and claimed trial-:"
4. The prosecution examined 13 P.Ws in all to substantiate its case. The prosecution case rests upon motive, ocular evidence, medical testimony and recoveries which shall be discussed one by one vis-a-vis the defence version to arrive at a just and definite conclusion.
.5. The prosecution produced P.W.2 Muhammad Siddique complainant and P.W.5 Muhammad Ismail to prove the motive. P.W.2 while appearing in the trial Court stated that 15/20 days before the occurrence Rashid Ahmad appellant gave slaps to his uncle P.W.4 Muhammad Ismail, who told him about it and 4/5 days after that occurrence- P.W. 2 gave slaps to appellant Rashid Ahmad when he was watering his field. P.W.5 Muhammad Ismail had not stated. anything about the motive in his statement Exh. DC recorded on 24-10-1990 under section 161, Cr.P.C. He stated motive part of his statement for the first time in the trial Court i.e. 10115 days before the murder of deceased persons he demanded money from appellant Rashid Ahmad, which was due from him, who insulted him and gave him slaps. P.W.5 told this fact to P.W.2 who in retaliation gave 2/3 slaps to Rashid Ahmad appellant. P.W.2 while making statement before the trial Court had stated that it was told to him by his uncle P.W.5 and had tried to stretch the motive occurrence near to the eventful day. None from the villagers who allegedly had gathered at the time of slapping Ismail (P.W.5) and by P.W.2 to appellant Rashid Ahmad had been produced. The prosecution has not alleged any motive against the other appellants and the acquitted co-accused. No independent person had been produced by the prosecution to corroborate. P.W.2 on the point of motive. The motive set up by the prosecution for the murder of deceased persons has not been proved on record. P.W.4 Muhammad Murad had stated a different motive that the parties had already a dispute over some money and appellant Rashid Ahmad had to pay Rs.100 to P.W.5 Muhammad Ismail. Appellant Rashid Ahmad gave slaps to P.W.5 and when P.W.2 Muhammad Siddique came to know about it, he had also given slaps to appellant Rashid Ahmad after 4/5 days.
6. The ocular testimony has been produced on record by the prosecution in the shape of statements of P.W.2 Muhammad Siddique, P.W.3 Muhammad Shari, and P.W.4 Muhammad Murad. P.W.2 Muhammad Siddique narrated the facts mentioned by him in his statement Exh.PA on the basis of which F.I.R. Exh.PA/1 was recorded. P.W.3 Muhammad Shari stated that it was sunset when he was present alongwith P.W.4 Muhammad Murad in his cotton crop at a distance of one killa from pacca road towards west side. P.Ws 3 and 4 heard hue and cry and ran towards that side and witnessed the accused persons Rashid Ahmad and Ranjhoo (acquitted co-accused) armed with hatchets, Bashir Ahmad appellant armed with revolver, Rashid Ahmad, Muhaffi mad Sadiq appellants and Dodha (acquitted co-accused) armed with Sotis. Ranjho'0 (acquitted co-accused) gave two hatchet blows to Muhammad Ibrahim deceased, Rashid Ahmad (acquitted co-accused) inflicted one hatchet blow to Muhammad Ibrahim deceased, Dodha alias Siraj Ahmad (acquitted co accused) gave a dang on the head of Khadim. Hussain deceased, Rashid Ahmad appellant gave blow to Khadim Hussain deceased on his temple and Sadiq appellant inflicted a dang blow on the thigh of Khadim Hussain deceased when he fell down. Bashir Ahmad appellant remained present with revolver who did not permit the P.Ws. to come near. Muhammad Siddique complainant (P.W.2) was also there who was also injured. The injured were- unconscious. P.Ws.3 and 4 picked them and took them to the Hospital at Ahmadpur East in a tractor-trolley. P.W.4 Muhammad Murad stated that at a Majhribwela he alongwith P.W.3 Muhammad Shafi was standing in a cotton crop field- at a' distance of one killa from metalled road, heard the noise. He alongwith P W 3 ran towards the noise and witnessed Rashid Ahmed Ranjhoo (acquired co-accused) armed with hatchets, Rashid Ahmad appellant, Dodha (acquitted co accused) and Sadiq appellant armed with Sotis and Bashir Ahmad appellant armed with revolver. The appellants alongwith -the acquitted co-accused were fighting with deceased Muhammad Ibrahim, deceased Khadim. Hussain and P.W.2. Muhammad Siddique. P.W.4 alongwith P.W.3 Muhammad Shafi tried to intervene and rescue them, but Bashir Ahmad appellant threatened them that if anyone would come near, he would be murdered. Ranjhoo (acquitted co-accused) gave two hatchet blows to Muhammad Ibrahim deceased, Rashid Ahmad (acquitted co-accused) extended one hatchet blow to Muhammad Ibrahim, Rashid Abmad appellant gave soti blow on the head of Khadim. Hussain deceased, Dodha (acquitted co-accused) inflicted blow on the head of Khadim Hussain deceased and Sadiq appellant gave blow on the thigh of Khadim Hussain deceased. P.W.2 complainant Muhammad Siddique also received injuries. Khadim Hussain and Muhammad Ibrahim were unconscious. P.W.2 Muhammad Siddique received less injuries and he was conscious. P.W.4 brought tractor-trolley and took the injured to the Hospital at Ahmadpur East. P.W.3 and P.W.4 were residing at a distance of three squares from the place of .occurrence. No evidence has been led that they had cotton crop field near the place of occurrence. They made dishonest improvements in their statements before the trial Court. In their statements Exhs. DA and DB it is stated that the accused persons were causing injuries to'Khadim Hussain and Ibrahim with Sotis and hatchets,. but while making statements in the trial Court they attributed one hatchet blow to Rashid Ahmad (acquitted co-accused) and two hatchet blows by Ranjhoo (acquitted co- I accused) to Ibrahim deceased and one blow of Sod each by Dodha (acquitted co-amused), Rashid Ahmad appellant and Muhammad Sadiq to Khadim Hussain d,eceased. P.W,2 is an' injured witness. It is not always correct that the injured P.W. would speak truth.. P. W. 2 stated that he gave slaps to Rashid Ahmad appellant who threatened him to take revenge. The appellants and the acquitted co-accused had ambushed themselves on the fateful day of murder, but no, injury wit ' h hatchet or Dang had been caused to him, especially in the circumstances when be was all alone and they had also felled him down. The appellants and the acquitted co-accused had sufficient time to murder him. There is no sharp-edged weapon injury on his person which shows that none of the accused was armed with hatchets. P.Ws.3 and 4 had stated before the trial Court that it was Maghribwela and sun had not yet set, they were. present at a distance of one Killa towards the westside, they heard hue and cry and ran towards that side, and witnessed that Ranjhoo(acquired co-accused) gave two hatchet blows to deceased Muhammad Ibrahim, Rashid Ahmed (acquitted co-accused), gave one blow with hatchet to Ibrahim, Rashid Ahmed appellant, Dodha (acquitted co-accused) and appellant Muhammad Sadiq gave one blow with Sotis each to Khadim Hussain, while appellant Bashir Ahmed armed , with revolver threatened them not to come near. P. Ws. 2, 3, and 4 took the injured to the hospital in tractor-trolley. They claimed, to be present in the Cotton crop field from morning till the occurrence. They were cultivators by profession and during cross-examination when they were asked to tell the square and Killa numbers of their land in which they were standing, they could not tell the Killa number or square number. P.W.3 Muhammad Shafi stated that he had 4 acres of land there. Similar is the case of P.W.4 Muhammad Murad. They were owners of small holdings. It was suggested by the defence to them that they were not -owners of land near the place of occurrence, and being owners of small holdings at least they must have 'known their square number, of their land. Both the witnesses have not even stated the square numbers of their lands. The inference can safely be drawn that they had no land near the spot. It cannot be believed that they did not remember the square numbers whereas P.W.4 had specifically stated date (25-10-1990) when blood-stained earth was secured in his examination-in-chief. His statement was recorded 10 months after the occurrence. If he could remember the date of securing the blood stained earth, why he could not state the square number of the land? P.Ws.3 and 4 have made dishonest improvements in the statements Exhs. DA and DB. 'They stated that they were at a distance of 4 acres but before the trial Court they gave distance as one acre and had shortened the distance from the spot given by them before the police. In Exhs.DA and DB they stated that they intervened and rescued the injured from the accused persons, whereas at the trial they stated;that they did not intervene and did not try to rescue the injured. In Exhs.DA and DB they stated that all the accused injured P.W.2 Muhammad Siddique, Muhammad Ibrahim and Khadim Hussain deceased persons with Sotis and hatchets, but at the trial they changed the versions and stated that Rashid Ahmad and Ranjhoo sons of - Kammun: (acquitted co accused) gave hatchet blows to Muhammad Ibrahim deceased, and Rashid Ahmed and Muhammad Sadiq sons of Abdul Rehman appellants and Dodha (acquitted co-accused) inflicted Dang blows to khadimHussain deceased. They tried to be more, precise in order to show that they had witnessed the occurrence. They had made dishonest and material improvements. There was no sharp-edged weapon injury on the person of Khadim Hussain deceased and with blunt weapon on Muhammad Ibrahim. They had not stated that they had seen the accused coming out of the cotton field of Ghulam Rasool. There is another attendant circumstance that there would be traffic on pacca road as the next date i.e. 24-10-1990 was the date for the polling for National Assembly. The polling staff, contesting candidates and their supporters certainly would have been occupied in the setting of the polling stations on the evening of 23-10-1990. The supporters of the candidates must have been moving for requesting the people to come to the polls and to cast votes. No other P.W. was attracted to the spot. It was vehemently argued that P.Ws. 3 and 4 had no motive or malice to depose against the accused, but that can help the prosecution for reasons that if there was no motive for false implication. Similarly the accused had also no, motive to murder the deceased persons. P.W.2 is injured witness, but it is not necessary that an injured P.W. always speaks truth. However, his presence is proved. The P.Ws. have attributed direct motive against appellant Rashid Ahmad and according to P.W.2, the accused persons had.-come to murder P.W.2 Muhammad Siddique and two of the accused were allegedly armed with hatchets. The accused persons had fallen him down. No injury was caused to him with sharp-edged weapon. especially when the common object of the accused persons was to murder him. The P.Ws. and the deceased persons were at a distance of 4 acres and he could easily be done to death before the arrival of the deceased persons and 'the witnesses. There is no evidence on record that how the accused came to know that P.W.2 was going for taking bath and had reached there and ambushed themselves. There is no evidence of premeditation and common object of the accused persons. The statements made by P.W.2 and P.W.4 do not inspire confidence.
7. P.W.10 Dr. Sohail Ahmad, on 23-10-1990 at 9-45 p.m. medically examined the deceased Khadirn Hussain when he was alive and found the following injuries:--
(1) A lacerated wound 2-1/2 inches x 1/4 inch on right parietal bone of scalp ,under line bone naked and surrounding muscles are crushed Patient conscious. B/P 100/80 mm HG. Pulse .120 per minute. Pupils semi-dilated reacting light sluggishly. Advised X-ray skull.
(2) A swelling 3 inches x 2 inches on right temporal region of scalp above tight ear. Advised X-ray skull.
(3) A lacerated wound 3 inch x I inch muscle deep on medial aspect of left thigh. Injuries Nos.2 and 1 were kept under observation. Injury No.3 was declared simple.
Vide X-ray report there was seen fracture of vault of skull. Injuries Nos.1 and 2 were declared grievous and injury No.1 was dangerous to life. All the above mentioned injuries were inflicted by blunt weapon and fresh in nature. , Exh.PT is the copy of M.L.R.
On the same day P.W.10 examined Muhammad Ibrahim deceased in injured condition and found following injuries on his person:--
(1) An incised. wound 3/4 inch x 1/4 inch x bone deep on right temporal region direction antero-posterior 2 inches above right ear. Advised X ray skull.
(2) An incised wound 4 inches x 1/2 inch x bone deep on right fronto parietal region of scalp antero-posteriorly. Advised X-ray skull.
(3) An incised wound 3/4 inch x 1/4 inch x bone deep on occipital region of scalp. Advised X-ray skull. Patient was unconscious and restless. Left eye blackened, pupils semi-dilated reacting light sluggishly. BP 90/60 mm Hg. Pulse 110 per minute. Injuries were kept under observation.
Vide X-ray report No.1780-81 dated 23-10-1990 there was seen- fracture of vault of skull in the interior region in the skagram. Injuries Nos.1 and 3 were
kept under observation and Injury No.2 was declared grievous and dangerous to life. All injuries were inflicted by sharp-edge 'weapon and fresh in nature. Patient was referred to B.V. Hospital, Bahawalpur. Exh.PU is the carbon copy -of the M.L.R.
On the very day the same Doctor P.W.10 medically examined Muhammad Siddique (P.W.2) and found the following injuries on his person:--
(1) A contusion 3 inches x 1 inch on right scapular region.
(2) A contusion 4 inches x 1 inch on left scapular region. (3) A contusion 2 inches x 1 inch on right buttock.
(4) Complains of pain in left arm.
(5) An abrasion 1-1/2 inches long on left leg, interior aspect in middle.
(6) An abrasion 1/2 inch x 1/4 inch on right knee-joint.
(7) A contusion I inch x 1 inch on right leg posterior aspect.
(8) Contusion .1/2 inch x 1/4 inch on right side of nose.
All injuries were inflicted by blunt object, fresh and simple in nature. Exh.PS is the correct carbon copy of the M.L.R.
On 24-104WO at 9-00 a.m. P.W.10 conducted post-mortem examination on the dead body of Khadim Hussain deceased and observed the following injuries:--
(1) A lacerated wound 2-1/2 inches x 1/4 inch antero- posterior on right parcital region of scalp.
(2) A swelling 3 inches x 2 inches on right temporal region of scalp above right ear.
(3) A lacerated wound 3 inches x 1/4 inch muscle deep on medial aspect of left thigh.
All the injuries were ante-mortem hi nature. Muscles of scalp and skull were crushed. Hamatoma underneath the scalp at the side of injuries Nos. I and 2 was present. Right parictal bone of scalp was fractured horizontally. Brain matter leaking out of the fracture line vertebrae, and spinal cord was noimra. In the opinion of the Doctor the cause of death was head injury due to injury No.1 leading to brain damage, shock caused by blunt weapon. The injuries were ante-mortem and were sufficient to cause death in the ordinary course of life. Probable time that clapsed between injuries and death was about 16 hours and between death and post-mortem was about 8 hours. Exh.PV is the copy of P.M.R.
On the same day at 1-00 a.m. P.W. 10 also conducted autopsy on the dead body of Muhammad Ibrahim and observed the following injuries on his person:--
(1) An incised wound 3/4 x 1/4 x inch x bone deep on right temporal region direction antero-posterior 2 inches above right ear.
(2) An incised wound 4 inches x 1/4 inch x bone deep on right fronto parietal region of scalp antero-posteriorly.
(3) An incised wound 3/4 inch x 1/4 inch bone deep on occipital region of scalp.
(4) Left eye blackened (contused).
All the injuries were ante-mortem in nature. Skin and subcutaneous tissue and muscles of scalp and skull were cut at the side of injuries Nos.1, 2 and 3. Depressed fracture of fronto parietal bone at the site of injury No.2 was present. Blood was collected at the site of Injury No.4. Brain matter leaked at the site of fracture during post-mortern examination. In the opinion of…
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