1968 SCMR 53 (PLP)

FAZLE-AKBAR, J.-This is an appeal by special leave from the judgment of the High Court of West Pakistan, Lahore Bench, by which conviction of respondents Fazal Elahi and Sultan Sarang under section 302/34, P. P. C. for the murder of Major Mahammad Ashraf, was set aside alto they were acquitted. Respondent No. 2, Sultan Sarang, is the son of respondent No. 1, Fazal Elahi. They are relations and next door neighbours of Major Muhammad Ashraf in the village Dera Rajgan within Police Station Mandra in the District of Rawalpindi. They were tried by the Additional Sessions Judge, Rawalpindi under section 302/34, P. P. C. for the murder of Major Muhammad Ashraf. The Sessions Judge relying on the evidence of eye-witnesses convicted them under section 302/34, P. P. C. and sentenced Sultan Sarang to death and Fazal Elahi to transportation for life. On appeal and reference, the High Court reversed the decision of the Sessions Judge and acquitted them. The prosecution case briefly was as follows. Major Muhammad Ashraf was returning to his honk at about 9-30 a.m. on the 31st October 1964, and when he reached behind the house of Fazal Elahi, which was 22/23 yards from his house, Fazal Elahi along with his son Sultan Sarang, emerged from his baithak caught hold of the Major from behind and his son Sultan Sarang gave him two blows with a hatchet on his head and he fell down on the ground. The assailants then re-entered their baithak and disappeared. The incident was said to have been witnessed by Major Abdur Rahman, Subedar Ghulam Hussain and Abdur Rauf who were sitting on a cot with Muhammad Daud, a cousin of Major Muhammad Ashraf, behind the Major's house. They rushed to the spot and removed the injured in an unconscious state to his dera. Muhammad Daud then with the help of Babar Iqbal, Muhammad Amir and others, left for the hospital with the injured, but the latter succumbed to his injuries on the way. They then carried the deceased to the Police Station Mandra and Muhammad Daud lodged the first information report at 4-30 p.m. The motive alleged for the crime was that two days prior to the incident Major Muhammad Ashraf had odjected to Fazal Elahi's placing dried fodder on the path leading to the village well and this had led to exchange of abuses. The police came next morning and after necessary investi gation, arrested Fazal Elahi from his house. After two days, i.e., on 3-11-64, Sultan Sarang was arrested from his unit. On 8-11-64 the Police at the instance of Sultan Sarang recovered a blood-stained hatchet from a khad. As the blood had disintegrated, the Serologist could not trace its origin. The post-mortem examination of the deceased revealed that he had one incised wound 5" x 1/2" on the front of the skull and another incised wound 3 " x 1/3'''' over the left eye and an abrasion on the left knee joint. According to the Doctor, death was due to the skull injury. The defence of the accused was a plea of false implication out of enmity. It was further suggested to the prosecution witnesses in cross-examination that the deceased had been killed by some of his relations at night, that the dead body was recovered next morning from the fields and that on suspicion the accused were falsely implicate4 in this case, The prosecution relied on the direct testimony of Major Abdur Rahman, Abdur Rauf, Ghulam Hussain and Muhammad Daud. They fully supported the prosecution story. The Additional Sessions Judge relying on their evidence convicted both the accused. On appeal, the learned Judges of the High Court, however, came to the conclusion that appraisement of the evidence of the eye-witnesses was not based upon true comprehension of all the circumstances appearing in the case. They gave various reasons for doubting the presence of the appellant at the time of occurrence and hence they acquitted them. Among the eye-witnesses, Major Abdur Rahman, Ghulam Hussain and Abdur Rauf belong to a different village. Major Abdur Rahman, Abdur Rauf and Major Muhammad Ashraf deceased were members of a Basic Democracy. According to Major Abdur Rahman and Abdur Rauf, they had gone that morning to the house of Major Muhammad Ashraf to discuss matters relating to the shortage of water and digging a water tank and Subedar Ghulam Hussain who had no particular business with the deceased had accompanied Major Abdur Rahman at his request. Further, as soon as Muhammad Daud started for the Police Station, they left for their village. The learned Judges of the High Court have given the following reasons for doubting the presence of the eye-witness at the time of occurrence -- (i) that Major Abdur Rahman and Abdur Rauf did not state before the police or committing Court, the nature of business which took them to the house of the deceased ; (ii) that their conduct was extremely unnatural because (a) they did not take any step to secure the culprit and (b) that instead of accompanying the injured to the hospital or to the police station they left for their village ; (iii) that their statements were recorded by the police on the next day ; (iv) that the motive for giving evidence on behalf of the prosecution was also not lacking ; (v) that in view of the medical evidence the defence suggestion that the occurrence took place at the previous night, could not be ruled out. The learned Judges also pointed out that the evidence with regard to the recovery of the hatchet at the instance of Sultan Sarang was not free from doubt because according to the statements of some of the witnesses before the police or in the committing Court, this recovery was a result of the disclosure made by Sultan Sarang on the 8th November whereas before the trial Judge their story was that this disclosure was made by him on the night of 7th November. The learned Judges therefore being of the opinion that the case against the appellants was not free from doubt of a general character, acquitted them. The learned counsel for the appellant has contended that the evidence of the eye-witnesses which is in all essential points consistent, was sufficient by itself to establish the charge against the accused and the High Court was therefore, not justified in doubting the evidence of the independent eye-witnesses. When scrutinized against the record and the proved circumstances, the difficulties which the learned Judges of the high Court found in accepting the evidence of the' eye-witnesses, could not be regarded as unsubstantial. It will suffice to say that when the evidence of these witnesses is read in relation to all the fact and circumstances, it conveys a distinct impression of artificiality. We may further point out that the alleged occurrence took place at about 9 a.m. but the first information report was lodged at 4-30 p.m. at the police station which was about 4k miles from the village. This delay was, however not explained by the complainant Muhammad Daud in the first information report. His explanation before the trial Judge was that "It took us several hours to reach the police station because we had to rest number of times in the way and also several villagers delayed us on the way out of sympathy". It is needless to say that this explanation cannot be considered at all satisfactory. We may also mention that according to the doctor, the probable time between the occurrence and death was about 15 to 20 minutes. Baber Iqbal and Muhammad Amir, who accom panied the injured, belong to different village, and hence they must have reached the house of the deceased after sometime and that when they left the village, most probably the Major was dead. It is also significant that there is no mention in the first report about the attempt to remove the injured to the hospital. The story of Major Abdul-Rahman, Abdur Rauf and Ghulam Hussain was that as soon as Muhammad Daud left with Major Muhammad Ashraf for the police station, they went away to their village. The complainant Daud also does not say in his examination-in-chief about the attempted removal of the injured to the hospital. It seems that the story of the hospital was subsequently introduced to explain the delay in lodging the first information report. Furthermore, there are various material discrepancies between the evidence of the eye-witnesses and their statements before the police or in the committing Court. After carefully considering the whole evidence on record, we have reached the conclusion that the acquittal of the respondents Fazal Elahi and Sultan Sarang was not manifestly against the weight of evidence or that it involved miscarriage of justice. We are, therefore, of the opinion that the case against the said respondents as a whole was not free from reasonable doubt and therefore their acquittal by the High Court was correct, We accordingly dismiss this appeal. Appeal dismissed.