1985 PLP 1307 (MLD)

Muhammad Ismail, son of Muhammad Zaman, aged 35, armed with dagger, has been convicted under section 302, P.P.C. for the murder of Sulati, aged 60, and vide judgment, dated 30-6-1983 of Additional Sessions Judge, Sargodha, was sentenced to life imprisonment plus fine of Rs.5,000 or in default to undergo six months, rigorous imprisonment with the direction that if the fine was realized, it should be paid as compensation to the heirs of the deceased. Bakhsha, a cousin of Muhammad Ismail convict, who was empty-handed, was given the benefit of doubt and acquitted. The appeal of Muhammad Ismail convict is being disposed of by this judgment.

2. The occurrence took place on 25-11-1981 at 4 p.m. in a G.T.S. bus near Railway Station Mithalak on Sargodha-Ajnala Road at a distance of 11 Kilometers from Police Station Saddar Sargodha. F.I.R. (Exh. P.A.) was lodged by Allah Yar (P.W.1), nephew of the deceased, and it was recorded by Muhammad Ashiq S.I. (P.W.8) at 6 p.m. at Police Station Saddar Sargodha.

3. The motive for crime as stated in the F.I.R. is that in 1954 Sulati deceased had committed the murder of Muhammad Zaman, father of Muhammad Ismail appeliant, for which he was tried, convicted and sentenced to life imprisonment and that after having served his sentence for about ten veers or so, he had been released. Thus, it is stated that the appellant committed the murder of the deceased in order to avenge the murder of his father, 4. & The prosecution has produced two eye-witnesses of the occurrence, namely, Allah Yar (P.W.1), nephew of the deceased, and Muhammad Shaft (P.W.5), a person who claims to be travelling in the same bus. Besides that Muhammad Hussain (D.W.2), the bus-conductor, had also been produced and Sher Muhammad (C.W.1), driver of the bus, was summoned by the Court to give an eye-witness account of the occurrence. It may be pointed out at this stage that according to learned counsel for the appellant Muhammad Hussain (D.W.2) and Sher Muhammad (C.W.1) exclude the presence of Allah Yar (P.W.1) and Muhammad Shafi (P.W.5) in the bus at the time of the commission of crime.

5. In the F.I.R. the occurrence is reported to have taken place in the following manner: Allah Yar P.W., who is nephew of the deceased, was present in the same bus as the deceased, when suddenly the appellant armed with dagger and accompanied by Bakhsha acquitted co-accused, raised a Lalkara to the effect that they would not spare the deceased and avenge the murder of the father of the appellant on that date. Thereafter Bakhsha, acquitted co-accused, gripped the deceased on the seat and the appellant gave him successive dagger blows which fell on the neck, belly and chest of the deceased. As a result the deceased died on the spot. But the appellant and the acquitted co-accused managed to escape threatening that whosoever came near them, he would meet the same fate. Thereafter leaving Muhammad Shafi P.W. to guard the dead body of the deceased, Allah Yar P.W. proceeded to lodge the report. It is stated in the F.I.R. that when the occurrence took place, the driver of the said bus, namely, Sher Muhammad (C.W.1) stopped the bus. According to learned counsel, the presence in the said bus of Sher Muhammad driver (C.W.1) and Muhammad Husain bus-conductor (D.W.2) is not challenged at any stage try the prosecution.

6. Both the appellant and the acquitted co-accused were arrested on 26-11-1981 by Muhammad Ashiq S.I. (P.W.8). At the instance of Muhammad Ismail appellant was recovered blood-stained dagger (Exh. P.5) which was taken into possession, vide Memo. Exh. P.G., dated 27-11-1981. The attesting witnesses are Sardara (P.W.4), Bati (P.W.7), both closely related to the deceased, and Muhammad Ashiq S.I. (P.W.8). According to the report of the Serologist (Exh.P.N.) the above said dagger was found to be stained with human blood. But learned counsel states that the trial Court, in the instant case, had not relied upon this recovery in the sense that it had not so stated in the judgment, nor had referred to it as a piece of corroboration and that further-more in a case under the Arms Ordinance relating to this recovery against Muhammad Ismail appellant on the same day the trial Judge acquitted the said appellant of the charge under section 13 of the Arms Ordinance and had disbelieved the said recovery. Learned counsel further states that no recovery was effected from Bakhsha, acquitted co-accused, who had been placed in column No. 2, by the police as he had been found innocent in the course of the investigation. 01, the hxsis of this evidence as well as the acquittal of Bakhsha, co-accused, learned counsel has constructed the argument to the effect that the so-called eye-witnesses produced by the prosecution in the instant case, namely, Allah Yar and Muhammad Shafi P.Ws. were not reliable witnesses.

7. Dr. Khawja Muhammad Farooq (P.W.6) conducted the post-mortem examination on the dead body of the deceased on 26-11-1981 at 1 p.m. and found on his person 8 incised wounds on the neck, belly and chest as well as three abrasions in an area of 4 x 3 c.m. on the back of left shoulder. In his opinion death had occurred due to haemorrhage and shock caused by an incised injury on the chest which was sufficient to cause death in the ordinary course of nature. The other incised injuries were collectively responsible for causing death. The first 8 injuries were caused by sharp-edged weapon, whereas the last injury was caused by a blunt weapon. Six of the incised injuries were grievous in nature including the one on the chest which proved fatal, whereas the first and the last injuries were found simple. Time between injuries and death was a few minutes.

8. The appellant and the acquitted co-accused in their statements before the trial Court totally denied having participated in the occurrence. The appellant disowned the recovery and stated that he had been falsely implicated in this case due to enmity and suspicion. Five D.Ws. were produced on *the defence side. Rehmat Ullah (D.W.1) was produced as he is clerk of G.T.S. and had been produced to show that only one ticket for Ajnala was issued on the fateful day according to the voucher (Exh. D.E.) Muhammad Husain (D.W.2), bus-conductor, was produced. He stated that there was only one passenger for Ajnala on that day in the bus and that was the deceased. According to this witness the deceased was murdered by an unknown single person who managed to escape. There was no one in the bus who knew the deceased or his assailant. Furthermore he stated that the two eye-witnesses produced by 'the prosecution, namely, Allah Yar and Muhammad Shaft P.Ws. were not present in the bus at the time of occurrence. He further stated that he proceeded to the bus-stand and gave written report (Exh.D.F.) about the incident to his Assistant Manager whereupon the Assistant Manager after signing the said report, directed him to proceed to the police station. He made the said report at 4 p.m. on the fateful day and the police directed him to proceed to the spot and that they would follow him. Then there is Muhammad Azam. (D.W.3) M.H.C. He was produced to show that the deceased had other enemies besides the appellant. He had produced sues, document in the form of F.I.R. to show the background of said enmity. Then there is Ata-ul- Mustafa Patwari (D.W.4). He was produced by the defence in order to show that Muhammad Shafi P.W. had wrongly stated that he had earlier known the appellant as well as the acquitted co-accused as he had met them on an earlier occasion at the Dera of one Ata Muhammad in Chak No. 30/N.B. This witness was produced to show that there existed no such Dera of Ata Muhammad in the said Chak according to the revenue record. Lastly Sakhi Muhammad Javaid, Assistant Traffic Manager G.T.S. Sargodha was produced as D.W.5, who corroborated the voucher (Exh. D.E.) as well as the statement of Muhammad Hussain (D.W.2). Finally at the summoning of the trial Court, Sher Muhammad bus driver was produced as C.W.1. According to his statement both the eye-witnesses produced by the prosecution were not present in the bus at the time of the occurrence and that according to him, the deceased was attacked by an unknown assailant who thereafter escaped.

9. I have heard learned counsel for the parties and carefully perused the record. Learned counsel for the appellant states that Allah Yar P.W. is nephew of the deceased and is an interested witness because he is falsely implicating Bakhsha, acquitted co-accused, who was found innocent in the course of investigation by the police and placed in column No.

2. According to learned counsel, he is also an unreliable witness because according to Exh.D.A. placed by the defence on the record, he was found on duty on 25-11-1981 from 6 a.m. to 6 p.m. as guard at National Industrial Bank, Sargodha. In other words, on the day-of occurrence at 4 p.m. he was supposed to be on duty and not travelling in the said bus alongwith the deceased. According to learned counsel Allah Yar P.W. had been produced by the prosecution as relative of the deceased in order to satisfy its purposes whereas he was not even the lodger of the F.I.R. because according to Muhammad Hussain (D.W.2) he was the first person who had approached the police with a report about this incident. It was next argued by learned counsel that Muhammad Shafi P.W. was also falsely implicating Bakhsha, acquitted co-accused and his claim to the effect that he had known the appellant previously was disproved by Ata-ul-Mustafa Patwari (D.W.4). Learned counsel further argued that the name of this witness as not iiientioned in the inquest report as to whether or not he was present near the dead body or identified the deceased at that time. Then finally learned counsel argues that both the other independent eye-witnesses namely, Muhammad Hussain (D.W.Z), bus conductor, and Sher Muhammad (C.W.1) bus driver, had categorically stated that at the time of the occurrence neither Allah Yar P.W. nor Muhammad Shafi P.W. was present on the spot. According to their testimony a single unknown assailant had attacked the deceased and thereafter had escaped and that at that time there was no one present in the bus who could identify as to who the deceased was or as to who his assailant was. On the basis of these arguments learned counsel for the appellant states that it was a case of no evidence as against the appellant and that the appellant had been falsely implicated in the instant case merely on suspicion. Learned counsel also pointed out that the recovery evidence in the instant case was unreliable as' it has already been discussed in the earlier paragraphs. Thus, according to him, there was no cogent evidence to show that the assailant of the deceased was in fact the appellant and not an other enemy of the deceased. Learned counsel for the State is not in position to controvert the stand taken by learned counsel for the appellant. There is another aspect of the case also and that is that the complainant side and the accused side have entered into a compromise.. In support of the compromise affidavits have been placed on record of Allah Yar P.W., nephew of the deceased, as well as of Gehna Khan, brother of the deceased, to the effect that they have forgiven the appellant if he had committed the crime. They both are present in Court and have made statements in support of their affidavits before me. Thus, it is evident that the parties have entered into a compromise. But be that as it may the case is not established against the appellant beyond any shadow of doubt even on merits. In that view of the matter, I set aside the conviction as well as sentence awarded to the appellant as his conviction and sentence were not proper in the circumstances of the case. In the light of the above discussion the appellant is acquitted. His appeal is accepted. He shall be released from jail forthwith if not wanted in any other case. M . Y . H . Appeal accepted.