1971 P Cr (PLP)

ATAULLAH SAJJAD, J.‑This order will dispose of Criminal Appeal No. 115 and Murder Reference No. 48 of 1969.

2. The appellant was convicted under section 302 of the Pakistan Penal Code and sentenced to death by Mr. Ihsanul Haq, Additional Sessions Judge, Lahore at Sahiwal, for the murder of Ashiq Muhammad in the Behak of Nazar Muhammad (P. W. 9) in village Mopalkey, Police Station Chuchak, District Sahiwal. The occurrence took place on 29th of June 1968, at dhali ratwela which according to the estimate of the learned Additional Sessions Judge was about 2 o'clock in the night.

3. The prosecution story in brief is this. The appellant is the son of Sardara from one Mst. Chiraghan. She had been divorced by her first husband. About seven months after the marriage of Mst. Chiraghan with Sardara, Sher Muhammad (P. W. 11) was born. It is stated that Sardara disowned Sher Muhammad as his son because of this premature birth and treated him as a Pichhlag. Ten years prior to the occurrence Sardara had turned out Sher Muhammad from his house and had asked Muhammad Ali appellant to kill Sher Muhammad so that he may not claim any share in his property after his death. Sher Muhammad took his residence in village Mopalkey and on the night of the occurrence he was sleeping at the behak of Nazar Muhammad (P. W. 9). Nazar Muhammad (P. W. 9) and his first cousin Ata Muhammad (P. W. 10) were sleeping on separate cots‑whereas Ashiq Muhammad deceased a brother of Nazar Muhammad and Sher Muhammad.(P. W. 11) were sleeping on one cot. Sometime after midnight the witnesses heard a groan and woke up. . They saw Muhammad Ali appellant armed with a toka and giving a blow to Ashiq deceased. He was over powered at the spot and Ata Muhammad snatched the toka P. 1 from hire. Ashiq deceased died there and then. Maney Khan (P. W. 12). Inayatullah and Hussain Bhatti came to the spot. The appellant confessed before them that he had actually come to murder Sher Muhammad his brother but by mistake committed the murder of Ashiq.

5. Nazar Muhammad P. W. then left for the police station along with Maney Khan for lodging the F. I. R. They happened to meet S.

1. Riaz Ahmad (P. W. 13) near the bridge of Mopalkey canal at a distance of one and a half miles from the place of occurrence. The Sub‑Inspector took down the statement Exh. P. A. of Nazar Muhammad and finished. it at about 6 a.m. on the morning of 29th June 1968. He sent the statement of the complainant for formal registration as an F.I. R. to Police Station Chuchak. He then proceeded to the spot and prepared the injury statement and the inquest report of the deceased. The weapon of offence toka P. 1 was. produced by Ata Muhammad at the spot and was taken into possession and sealed into a, parcel vide Memo Exh. P. B. The appellant was found present at the spot pinioned with a safa. He was arrested at the spot and blood‑stained chaddar P. 5 which he was wearing at that time was taken into possession and sealed into a parcel. The cot P. 6 and gadda P. 7 which were found to be blood‑stained were also taken into possession. The garments of Sher Muhammad (P. W. 11) who is said to have been sleeping with Ashiq deceased were also found to be stained with blood and the Investigating Officer took into possession shirt P: 2 and chaddar P. 3 of Slier Muhammad The blood‑stained earth, the toka, the chadar of the accused. and the shirt and chaddar of Sher Muhammad were sent for chemical examination and the Serologist found that all these articles were stained with human blood. The Sub‑Inspector completed the inquest report at 10 or 11 a.m. and the dead body was thereafter sent for post‑mortem examination to Okara which is at 6 distance of about 28 miles from the spot.

6. The post‑mortem, examination was performed by Dr. Muhammad Asghar (P. W. 1) who found one incised wound 9' x 3 ' x 3' on the left side of neck extending to the right side of the chest upper part. There was cutting of neck blood vessels. Trachea cesophagus medial end of neck clavicle and the wound were found cut under this wound. There was another wound 4" x 3" x 2 " on the top of left shoulder and the head of the bone was cut. Injury No. 1 was sufficient according to the doctor in the normal course of nature to cause death.

7. The accused at the trial stated that Seer Muhammad P. W. was his uterine brother and had no right to inherit from his father Sardara. He, therefore, said that he had no motive to kill Sher Muhammad. He also denied the recoveries of hatchet and blood‑stained chaddar and said that he was falsely implicated at the instance of Sher Muhammad who wanted to have his land. We also find a suggestion in the cross‑examination of Ata Muhammad and Sher Muhammad P. Ws. that the deceased was unmarried and had illicit relation with the wife of Sher Muhammad.

8. The evidence of motive in this case is provided by the testimony of Ali Muhammad, (P. W.8) and Nazar Muhammad (P. W. 9) respectively the father and the brother of the deceased. According to the above two witnesses Sardara the father of the appellant and Sher Muhammad P. W. had told them that Sher Muhammad was his Pichhlag and not his real son and that he did not warn Sher Muhammad to inherit him. Nazar Muhammad further stated that Sardara had asked, the appellant to do away with Sher Muhammad if he wanted to be the sole heir of his father: 'There is no material on this record to show as to what was the property owned by Sardaya and what was the immediate cause which prompted the appellant to commit the crime ten years after the exile of his brother from his home. According to the cross‑examination of Nazar Muhammad, Sardara had made the above disclaimer regarding the paternity of Sher Muhammad and had incited the appellant to kill him at the time he turned out the latter from his home which was ten years before the occurrence. Nazar Muhammad had not attributed the above statement to Sardara in his statements before the police and the committing Magistrate. It is also not clear as to what were the occasion and place where Sardara made this declaration openly in the presence of Nazar Muhammad. Sher Muhammad left the house of his father ten years before the occurrence and there, is not an iota of evidence on the record to show that he bad any aggressive designs against the father or the brother or that he had' any intention to claim the property. The best thing for the father would have been to gift away the entire property to the appellant instead of asking him to commit the murder of Sher Muhammad as stated by Nazar Muhammad P. W. We are, therefore, not satisfied that the appellant had any strong motive to kill Sher Muhammad and had by mistake committed the murder of Ashiq deceased.

9. The occurrence according to the F.I. R. took place at dhali ratwela and the learned Additional Sessions Judge has estimated this time at 2 o'clock in the night. The witnesses were awakened by a shriek raised by the deceased and they saw the appellant inflicting one blow on the deceased. The locale of the injury which was caused in their presence has not been described by any witness. We have seen above that the injury on the back was so extensive that it would have been impossible for the victim to have raised any shriek. If the second injury on the shoulder had been given first then the deceased would not have only uttered a shriek but would have got up and raised a hue any cry. In that case it would not have been possible for the appellant to give the second blow because he would have been apprehended before he could repeat a blow. According to memo. Exh. P. F. the blood stained firth was taken from Killa No. 8 of Square No. 70 which belongs to Rafiq (P. W. 7). This is the place which was being used as a Behak on the night of the occurrence and where the occurrence is said to have taken place. Rafiq stated that he had given land measuring about 3 killas in Square No. 70 to Nazar Muhammad P. W. for cultiva tion. He admitted that one Amir was his previous tenant in this land. When questioned whet‑ Amir had been ejected after issuance of a notice the witness replied in affirmative. He, however, in the same breath changed his position and said that Amir had vacated the land willingly on his demand without any notice. On the basis of this contradictory statement a positive inference cannot be drawn that Amir who was admittedly the tenant of this land had voluntarily vacated the land and the same land was being used as a Behak by Nazar Muhammad and his relatives. It is, therefore, doubtful whether the alleged eye witnesses were present at the spot or were awakened in the manner narrated by them. The confusion alleged to have been made before the three eye‑witnesses can also be ruled out on this ground.

10. Then we have the clear admission of the father .of the deceased, namely, Ali Muhammad (P. W. 8) and Hakim Ali (P: W. 2) the uncle of the deceased that they went to the spot at Nimazwela. Nazar Muhammad admitted that he did not send any body to his father after the occurrence. Ali Muhammad stated that he was attracted to the spot by the noise that a murder had been. committed. He does not state as to who was raising this noise. His house is at a distance of three to four squares from the place of occurrence. The house of Hakim Ali is nearby. Hakim Ali does not state at all as to how he was attracted to the spot. He stated that when he reached the spot he saw Ali Muhammad already present there. He further stated that he also saw Maney Khan and Nazar Muhammad P. Ws. at the spot. He does not at all mention that Nazar Muhammad and Maney Khan had left the spot to lodge the F. I. R. It is unlikely that two brothers who had their houses adjacent to each other would not have awakened simultaneously on hearing the raula that a murder had been committed. In any case, it is entirely unnatural that Nazar Muhammad after seeing the occurrence would not send word to his father that his son had been done to death. His own version is that before his father arrived at the spot he had already left for the police station to lodge the report with Maney Khan P. W. He had admitted before the Committing Magistrate that he and Maney Khan had left the spot for police station at about, sunrise. This would show that the father of the deceased had not been informed of the occurrence till about sunrise although admittedly about a dozen of other persons had collected at the spot. It is also not dear how Maney Khan and his companions were attracted to the spot. Maney Khan states that at about 2 o'clock in the night he heard the cries "killed" "killed" from the Behak of Nazar Muhammad (P. W. 9). He went there and saw that Ashiq had been murdered and Muhammad Ali appellant was in the custody of Nazar Muhammad and Sher Muhammad P. Ws, Inayatullah who was cited as a prosecution witness was with him and Hussain was already there. The house of this witness is also at a distance of three or four squares from the place of occurrence. If he could be attracted earlier at 2 o'clock in the night by the noise coming from the Behak, how is it possible that the father and the uncle of the deceased could not be aroused toy such noise. It clearly shows that there was no noise at 2 o'clock and that the‑Witnesses came to know of the death of the deceased at about sunrise.

11. It was stated by Ali Muhammad, the father of the deceased that the: police arrived‑ at the spot .at about 6 or 7 a.m. and recorded the statement of Nazar Muhammad at the spot. The learned trial Judge observed that this did not make any difference as the case against the appellant‑ had been proved by other evidence. We do not agree with him. Where F. I. R. has been proved to have been recorded at the spot after pre liminary investigation the whole prosecution case is affected by this circumstance. The' learned Additional' Sessions Judge was perhaps deeply convinced about the presence of the eye‑witnesses at the place by occurrence and it is on account of, this belief that he appears to have resolved all doubts in favour of the prosecution.

12. There were clear circumstances in this case which suggested, that the prosecution bad been guilty of padding. The post‑mortem examination wasp, performed or. 30th of June 1968, at 8‑25 a.m. According to the Sub‑Inspector he had completed the inquest report at 11 a.m. on 29‑6‑68 and the dead body was despatched thereafter for post‑mortem examination. The witnesses do not agree how the dead body was carried to Okara. Hakim Ali (P. W. 2) stated that the dead body was carried on a cot to the metalled road which is at a distance of two or three miles from the village and they reached, there at 4 p.m. He admitted that they started with the dead body at 10 or 11 a.m. It is impossible to believe that the march with the dead body was so tardy that it took five hours for its carriers to cover two or three miles. This witness then stated that they waited for the bus as also for the people to join from the village who wanted to see the face of the deceased: He first said that some people had come to see the face but then changed his statement and said that they did not come in spite of the long wait. He admitted that he and his companions reached the Okara Hospital with the deceased body between 11 and 12 at night. The story regarding the carriage of the dead body was given by Muhammad Riaz Head Constable (P. W. 3) differently. He stated that they left with the dead body at about 11 noon and proceeded from the spot with it on a bullock cart. As they were not able to get a bus on the metalled road they proceeded to Okara with the cart and after traversing all the journey in the cart they reached Okara at about mid‑night. . Ali Muhammad (P. W. 8) the father of the deceased said that the dead body was taken on a charpoy to Chuchak Police Station and from there it was taken in a lorry to Okara. He further contradicted his brother by saying that they did not halt anywhere in order to wait for the people who wanted to see the face of the dead man.

13. The learned counsel for the appellant on the basis of the above facts argued that the case was fabricated by the police at the spot and that the late despatch of the dead body which admittedly reached Okara some where at midnight clearly shows that till late in the night on that day the prosecution were not sure of their case. The F. I. R. was admittedly drawn at the place of occurrence and the dead body was not despatched because the prosecution first wanted to build up a case and then incorporated the same in the inquest report before sending the dead body for post‑mortem examination. The unexplained delay with which the dead body reached Okara clearly lends force to this argument. The conflicting statements of the three witnessed referred to above clearly show that the dead body was not despatched at 11 a.m. from the spot and it was much later when it was sent for post‑mortem examination after building up case. This circumstance should be enough for rejecting the whole of the prosecution case. It is not possible to say with any amount of certainty that the appellant was caught red‑handed at the spot by the witnesses as they claim. There are however other reasons to come to that finding. In the first instance if the appellant had been caught red‑handed at the spot he could have been taken to the police station. This was not done. Secondly the witnesses, materially differed as to the fact whether the hands of the appellant were tied with safa at the time when he was arrested. According to Nazar Muhammad P. W. the appellant was pinioned in the first instance but on the arrival of Maney Khan etc. his hands were untied and he remained in this condition till the arrival of the police. Ata Muhammad (P. W. 10) and Sub‑Inspector Riaz Ahmad (P. W. 13) however stated that the hands of the appellant were tied at the time of his arrest. Maney Khan P. W. had stated before the committing Magistrate that the appellant had been held up by his arms by the witnesses. He did not mention the fact that the hand of the appellant been tied with a safa when he reached the spot. Incidentally, the Sub‑Inspector had not taken into possession the safa with which the appellant is said to have been tied. Actually, his position before the go committing Magistrate was that the appellant was not pinioned when he reached the spot. The learned trial Judge thought that these were minor discrepancies but he did not examine these discrepancies in the context of the whole evidence and the fact that the F. I. R. was drawn at the spot. Seen in the light of the above circumstances these discrepancies assume great importance and in our view raise grave doubt as to the correctness of the claim of the prosecution that the appellant was caught at the spot.

14. We also feel that there was no necessity for Sher Muhammad P. W. to sleep at the Behak which Nazar Muhammad P. W. claims to have occupied. According to ‑the evidence Rafiq (P. W. 7) and Ali Muhammad (P. W. 8) he was cultivating the land of one Shamman Wajhera. It has not been brought on record that Shamman Wajhera had no land which could be used as his Behak. It is also unlikely that Sher Muhammad should be sleeping for a whole month with Ashiq deceased on one cot. We do not think that Nazar Muhammad or his deceased brother were so resourcelss that they could not provide a spare cot for Sher Muhammad.

15. Last but not the least is the fact that the blood‑stained bedding and the cutting from the blood‑stained charpoy were not sent for chemical examination. It is a necessary link in the chain of prosecution case in order to prove that the occurrence took place. while the deceased was lying on a cot which was admittedly blood‑stained. This omission also operates to the deteriment of the prosecution.

16. We need not say anything about the other recoveries in this case as we have found that the investigation suffers from pedding and that the eye‑witnesses were not the witnesses of truth.

17. We, therefore, find that the case against the appellant is highly doubtful. We give him the benefit of doubt and set aside his conviction and sentence. We do not confirm the sentence of death passed on him. The murder reference is answered accordingly. We have already issued a short order directing the release of the appellant. Appeal allowed.