1989 PLP 4149 (MLD)

Date of hearing: 28th May, 1989. By this revision petition under Section 439 of the Cr.P.C. Noor, complainant calls in question the judgment of the learned Additional Sessions Judge, Jhang, dated 11‑6‑1978, whereby he acquitted Shera, respondent, of the murder of Hamayon.

2. Hamayon died a violent death on the night between 25th and 26th of September, 1976 at Chah Mooli Wala Dakhli Qaim Bharwana. The incident was reported to the police by the petitioner, a real brother of Hamayon at the police station at 10.30 a.m. on 26‑9‑1976, the distance between the place of incident and the police station being 11 miles.

3. On the dead body of Hamayon were found three incised wounds, two on the neck and one on the forehead. One of them had cut the throat between the chin and hyoid bone.

4. The accused Shera was married to Saban, a sister of Noor, petitioner, and Hamayon deceased. As the marriage did not produce a male child for about 15 years, the accused married another woman Mst. Fateh. The accused was otherwise also related to the complainant party. Mst. Moondan, the wife of Hamayon deceased, was a grand‑daughter of Ismail, a brother of Shera accused. After the accused married Mst. Fateh, Mst. Saban had started living with her brothers at their Dhari in village Qaim Bharwana. The deceased had married Mst. Moondan four or five years before this occurrence. There was no child of the marriage and Mst. Moondan was also living away from the deceased, with her parents. The prosecution case was that the accused wanted the deceased to divorce Mst. Moondan but the deceased would not agree. On the night between 25th and 26th of September, 1976, the complainant and Hamayon deceased were sleeping at their Behk when the accused went there armed with a Toka and struck three Toka blows to the deceased. A lantern was burning and was hanging on a nearby Bair tree. Ghulam and Jhanda were attracted by the alarm raised by the deceased and the petitioner and they also saw the incident taking place.

5. The accused was arrested on 1‑10‑1976, it was said that he had led to the recovery of a blood‑stained Toka P3 from bushes on that day.

6. The prosecution case mainly rested upon the testimony of Noor, Ghulam and Jhanda and as the learned counsel for the petitioner rightly observed, the question is whether their testimony inspired confidence. Learned counsel for the petitioner argued that Noor and Ghulam PWs were related to the accused‑and there was no reason for them to falsely implicate him. According to him, Jhanda was a completely independent and disinterested witness. Learned counsel for the State on the other hand thought that the case against the respondent was doubtful and that the learned trial Judge had rightly given benefit of doubt to him.

7. Noor, petitioner, (PW6), as noticed above, was a real brother of the deceased; Ghulam (PW7) was a resident of Allah Yar Jhoota, which was at a distance of about 3‑1/2 miles from the place of occurrence. He had stayed for the night at the Behk of the complainant as a guest. He was a maternal cousin of the deceased. Jhanda (PW 8) was not related to the parties. He, however, admitted that he and the complainant jointly owned a tubewell. Jhanda PW said that he was irrigating his fields with tubewell water when he heard the alarm; at that, time, he was at a distance of one Kila from the place of incident. It was a pitch dark night; he did not carry any lantern or torch. When he heard the alarm, he, was carrying a Kassi but on hearing the alarm, he threw the Kassi and rushed to the spot. The land which he claimed to be irrigating at the time of occurrence was; not owned by him; it belonged to one Fida Hussain and according to Jhanda, he had obtained it in exchange from Fida Hussain. He too was, thus, a chance witness. No evidence was led to prove that the land, he was irrigating had been obtained by him in exchange; he admitted that there was no mutation of exchange in his favour

8. There are other circumstances which appear to militate against the presence of Noor, Ghulam and Jhanda PWs at the time of occurrence. The first is that Noor, petitioner, and Ghulam PW did not intervene to save the deceased. The accused was allegedly armed with a Toka. Ordinarily, something like a Dang or Danda is always readily available to the villagers in their fields. Jhanda PW, as noticed above, had a Kassi with him and as human nature constitutes evidence in every case, ordinarily he would have, on hearing the alarm, rushed to the spot I, carrying his Kassi. For the alarm meant danger and the instinct of self‑preservation should have dictated the carrying of the Kassi by Jhanda PW to the I spot of occurrence. 1n short if as many as three persons were present and had seen the occurrence taking place, the accused would not have escaped and would have been caught at the spot. As it is, nobody, it appears, had even attempted to prevent the accused from running away. There is then the unexplained delay in the making of the First Information Report. The incident occurred at mid‑night and the report was made at 10.30 a.m. There was a Pacca road at a distance of hardly two squares from the place of occurrence and buses plied day and night between that spot and the police station. This also gives rise to the inference that the incident was not witnessed by anybody, that the murder came to light in the morning and it was then at about 7.00 a.m. that Noor, petitioner, started for the police station.

9. For these reasons, I do not think that any interference with the acquittal of the respondent, Shera, is called for. The petition is dismissed. The respondent/accused is present in police custody. He shall be released forthwith unless required in any other case. SA./N‑263/L Petition dismissed.