1986 PLP 2633 (MLD)

MUHAMMAD MUNIR KHAN, J.‑‑This Criminal Appeal No. 182 of 1984 and the connected Murder Reference No.104 of 1984 arise from the judgment of‑ learned Additional Sessions Judge, Sahiwal, whereby he, on 28‑5‑1984, while acquitting Sultan, Jam, Mehram, Ameer and Muhammad Iqbal co‑accused, convicted Sajawal (60) under section 302, P.P. C. for causing the death of Ahmad and sentenced him to death and a fine of Rs.5,000 or in default thereof further R.I. for two years. It was directed that the fine if recovered half of the same be paid to the legal heirs of the deceased. It may be noted that Sher co‑accused had died during the trial.

2. The occurrence took place on 28‑5‑1979 at about 'Deegarwela' in a field in the area of Qhak No.131/9‑L, 21 miles away from P.S. Dera Rahim, District Sahiwal. The F.I.R. Exh. P.D. was lodged by Kambeer P. W.7, a relative of the deceased on 29‑5‑1979 at 5‑40 p.m. and was recorded by Muhammad Shafi, Head Constable P.W.2. The case was originally registered under section 307/149/148, P.P.C. but on the death of Ahmad, section 302, P.P.C. was added.

3. Sajawal appellant, Jam and Sultan co‑accused are real brothers. Muhammad Amir, Mehram and Iqbal acquitted co‑accused are real brothers. Sajawal appellant and Amir are first cousin.

4. The motive as alleged by the prosecution was that Kambeer complainant had taken 9 Acres of agricultural land on lease for two years for Rs.7,200. from Muhammad Amir, Mehram, Iqbal, Anw6: and Sajawal sons of Sadaullah. The lease money was paid in cash. After sometime, Muhammad Amir P.W. and others asked the complainant to release the land to which he did not agree, hence this occurrence.

5. As. far the main occurrence, it has been stated that at the eventful time, Kambeer complainant, Ahmad deceased, Amir P. W.8, Muhammad Arfi P.W.10, Nawaz and Falak Sher (both not produced) were present in Square No.46/47 in Chak No.104/9‑L, which was in their possession as lessee from Amir, Mehram and Iqbal acquitted co‑accused when Sajawal appellant alongwith his acquitted accused, all armed with Sotas reached the spot and asked Kambeer P.W. to vacate the land. The latter told them that he had obtained the land on lease on payment of lease price and therefore, will retain in the possession. The appellant and his co‑accused then untied the animals of the complainant party and made them run away. This led to exchange of filthy abuses between the parties and the accused opened attack on complainant and others. Sajawal inflicted Sota blow on the head of Ahmad who fell down. Mehram acquitted accused gave Sota blow on the hand of Amir P.W. Amir acquitted accused inflicted Sota blow on the leg of Amir P. W. Jam acquitted accused gave Sota blow to Muhammad Arif P.W.10. The' complainant party also inflicted injuries to Amir and Mehram acquitted accused in self‑defence. The alarm attracted Nawaz, Falak Sher, Naika and Zaman (all not produced). They also saw the occurrence. The appellant then ran away taking the weapons with them. Ahmad was removed to D.H.Q. Hospital, Sahiwal by Kambeer P.W.7, Amir P.W.8, Muhammad Arif P.W.10, Mirza P.W.15 and others. He was admitted in the hospital where he succumbed to the injuries on 10‑6‑1979.

5. On 28‑5‑1979 at 9‑30 p.m., Dr. Gulzar Muhammad Dogar P.W.1, medically examined Ahmad when he was alive and found one lacerated wound on his head. The injury was caused by blunt weapon within 24 hours of the examination. The injured was semi conscious at that time.

6. On the death of Ahmad, the same doctor conducted post‑mortem examination on his dead body on 10‑6‑1979 at 4‑00 p.m. and found following injury:‑‑ "A freshly healed scare 1 " on the head, right parietal aminance posterior part in front of right parietal aminance." On internal examination, the doctor found that there was 4" x 3" area of scalp red in colour due to blood over the posterior part of right parietal bone and right temporal bone. Dark red blood was collected under the skull bone in the meninges, under the meninges and in the brain matter. Stomach was healthy and contained two ounces of brown watery fluid. In his opinion, the death had occurred due to intra cranial haemorrhage and shock. The injury was sufficient to cause death in the ordinary course of nature. The injury was inflicted by blunt weapon: The time between injury and death was 12/13 days and between death the post‑mortem examination was 6 to 7 hours.

7. Dr. Munir‑ud‑din, P.W.18 had medically examined Amir P.W.8 on 29‑5‑1979' and found two abrasions on the lower right upper arm and on the base of left thumb. The injuries were simple and caused by blunt weapon. On the same day he examined Muhammad Arif P.W.10 and found one abrasion and swelling on his left elbow. The injury was caused by blunt weapon and was simple in nature. On the same day, he examined Falak Slier P.W. (not produced) and found two abrasions an his left arm and left thigh which were simple in nature and were caused by blunt weapon. The doctor also examined Muhammad Nawaz (not produced) on the same day and found one abrasion with swelling on the left side of his head which was caused by blunt weapon and was simple in nature.

8. Sajawal appellant was arrested on 31‑5‑1979 by Abul Hassan Shah, S.I. , P . W.16. At the time of his arrest, the appellant produced Sots. Exh.P.I., which was taken into possession vide memo. Exh.P.H. attested by Chiragh P.W.12 and Muhammad P.W.13. The recovery memo. was prepared by Abul Hassan, S.I., P.W.i

6. It may be noted that Sota Exh.P.l was not stained with human blood.

9. To prove its case, prosecution examined 18 witnesses. Kambeer P.W.7,Amir P.W.8, Muhammad Arif P.W.10 and Mirza P.W.15 have given the ocular account of the occurrence. They claim to have seen Sajawal appellant causing fatal injury to Ahmad deceased. They stated that the appellant and his acquitted accused had also caused injuries to Amir P.W.8, Muhammad Arif P.W.10, Muhammad Nawaz and Falak Sher P.Ws. (both not produced). Dr. Gulzar Muhammad Dogar P.W.1 has proved the medico‑legal report and post‑mortem examination report of Ahmad deceased. Dr. Munir‑ud‑Din P.W. 18 has proved the medico‑legal reports of the injuries found on the person of the injured P.Ws. Kambeer P.W.7, Muhammad Amir, P.W.8 and Muhammad Arif P.W.10 have also deposed about the alleged motive of the appellant to commit the crime. Muhammad Manshe P.W.6 deposed about the recovery of Sotas from Muhammad Iqbal acquitted accused. Chiragh P.W.12 and Muhammad P.W.13 stated that Sajawal appellant, Sultan, Mehram, acquitted accused, Sher (since dead) and Jam co‑accused had produced Sotas before Abul Hassan Shah, S.I., P.W.16, which were taken into possession vide memoranda Exh.P.H.. P. I., P.J., P. K. and P.L., respectively. Abdul Razzaq S.I, P.W.17 had partly investigated the case. He stated that Muhammad lqbal acquitted accused had led to the recovery of Sota which was taken into possession by him vide memo. Exh.P.D. The rest of the evidence is of formal nature.

10. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He stated that the complainant party had a fight with Abdullah (given up P.W.) and his men. The complainant party requested him and the co‑accused to become P.Ws. in that case. Since he and the co‑accused had refused to do so, therefore, they have falsely been involved in this case. It may be noted that the co -accused including Mehram and Amir have denied presence and participation in the occurrence. Sajawal appellant produced two witnesses in defence. Mian Mazhar Ali Advocate, D.W.1 stated that he had attested affidavit Exh.D.J. of Mirza P.W.15 on the identification of Munshi Muhammad Tufail, Clerk of Ch. Mehmood Saeed, Advocate. Munshi Muhammad Tufail D.W.2 was Clerk of Ch. Mehmood Saeed, Advocate. He stated that he had identified Mirza P. W. before Oath Commissioner at the time of the attestation of affidavit Exh.D.J. The witness stated that Mirza P.W. had thumb‑marked the document Exh.D.J. in his presence.

11. The learned trial Court gave benefit of doubt to Amir and 4 other co‑accused and acquitted them and while believing the ocular evidence against Sajawal, has convicted and sentenced as stated above.

12. Learned counsel for the appellant contended that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt in that; there is a delay of 24 hours in lodging the F.I.R.; that the eye‑witnesses are related; that the statements of the eye‑witnesses have not been believed to the extent of 5 acquitted accused; that the eye‑witnesses have given false statements so much so, they suppressed their relationship with deceased and that the injuries found on the person of Muhammad Amir P.W.8 and Muhammad Arif P.W.10 are self‑suffered. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

13. We have attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence produced by the prosecution, the statement of the appellant recorded under section 342, Cr.P.C. and the attending circumstances. We feel persuaded to agree with the learned counsel for the appellant. We find that there is inordinate delay of about 24 hours in lodging the F.I.R. No explanation for this delay has been given in the F.I.R. and before the trial Court by Kambeer P.W.7 and as such the reasonable possibility of the interval having been spent in consultation, deliberations, procuring false witnesses, concocting false story and involving innocent persons, cannot be excluded. This unexplained delay of 24 hours by itself in, however, not sufficient to throw out the prosecution case. It is only a suspicious circumstance which ordinarily puts Court on guard. Having appreciated the evidence bit more carefully we find that there was no direct motive of the appellant to kill the deceased. The prosecution case is that Kambeer complainant had taken the disputed land on lease for two years from Amir end his brother co-accused and that when they asked him to vacate the land he (Kambeer) refused to do so. Had the motive as alleged by the prosecution been correct, then the appellant and the co‑accused would not have spared Kambeer complainant unhurt. The motive alleged by the prosecution does not appeal to reason. Adverting to the most crucial piece of evidence Le. ocular account of occurrence furnished by Kambeer P.W.7, Ameer P.W.8, Muhammad Arif P.W.9 an Mirza P.W.15, we find that Mirza P.W. 15 has already been disbelieved by the trial Court and for good reasons. The presence of Kambee P.W.7 at the time of occurrence appears to be doubtful. In the circumstance of the case, had he been there, he would have certainly been attacked and injured. Since there was no injury on his person, therefore, there is no circumstantial guarantee or judicial certainty of his being present at the time of occurrence. In view of the inordinate delay in lodging the F.I.R., the possibility that he was procured and induced to become the complainant cannot be excluded. Ameer P.W.8I and Muhammad Arif P.W.10, the two injured witnesses are brother and nephew of Kambeer respectively. The Doctor found two abrasions on the right arm and the base of left thumb of Ameer P.W.B. There was one abrasion‑and a swelling on the left elbow of Muhammad Arif P. W.10. The Doctor has stated that there was possibility of these injuries having been suffered by friendly hands. In the peculiar circumstance of this case that the F.I.R. was lodged after about 24 hours of the occurrence and these two eye‑witnesses were not medically examined immediately after the occurrence but were examined on the next date, the possibility that the injuries might have been suffered by friendly hands cannot be excluded. The nature as well as the location of the injuries also indicates that the injuries most probably were not caused by enemy hand. Had the accused attacked these two witnesses with their Botas the harm done to them would have been more serious. Muhammad Ameer P. W.8 has suppressed his relationship with the deceased. He stated that Ahmad deceased was not related to him., whereas Kambeer complainant has admitted that the deceased was his father's cousin's son. Muhammad Arif P.W.10 has also disowned his statement Exh.P.F. recorded under section 184, Cr.P.C. on 15‑12‑1979 by Magistrate First Class, Sahiwal. It seems to us that these two injured witnesses have given evidence with a motive other than that of telling the truth and as such `they cannot be treated as confidence inspiring witnesses. The statements made by the eye‑witnesses have not been acted upon by the trial Court to the extent of five acquitted co‑accused. The eye‑witnesses do not appear to be dependable. In an case the rule of prudence requires independent corroboration of their statements qua Sajawal appellant. The alleged recovery of Sota P.I. from the appellant is of no consequence because the same was not stained with blood. We do not see anything in evidence and attending circumstances which may satisfy us that the eye‑witnesses have spoken the truth. For all these reasons, we are of the view that the prosecution has also not been able to prove the charge against Sajawal appellant, beyond reasonable, doubt.

14. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the appellant. he is given benefit of doubt and acquitted of the charge. He shall be released forthwith if not required to be detained in some other case. The death sentence is not confirmed. S.A.