1976 P Cr (PLP)

MUHAMMAD SIDDIQUE, J.‑The brief facts of the case as alleged by the prosecution are that on 27‑4‑1973, at rotiwela Muhammad Tufail deceased and Abdul Rahman P. W., son of his maternal uncle from the baradri were going towards village Dharek from the behak of the latter. When they reached near the primary school of the village, Sherjang and his son Muhammad Iqbal appellants are alleged to have emerged from behind armed with hatchets and challenged the deceased. Abdul Rahman P. W. out of fear started running away. According to him, each of the present appellants delivered one hatchet blow to the deceased. On receipt of the blows, Muhammad Tufail deceased fell down. At this stage Lal (acquitted co‑accused) who was also coming behind empty‑handed, raised a lalkara that the deceased and his com panions should not be spared. Abdul Rahman P. W. raised alarm whish attracted his maternal nephews Ali Gohar, Karam Dad and Behram Khan P. Ws. to the spot who also claim to have witnessed the occurrence. Ali Gobar and Karam Dad P. Ws. claim to have pelted stones at the present appellants who were hit and injured. The appellants ultimately went towards their behak after receiving injuries with stones. Later on, more people reached the spot. Muhammad Tufail was put on a cot in an injured condition and taken to the police station but he succumbed to his injuries on the way. The dead body was taken to the police station where Abdul Rahman P. W. lodged the F. I. R. (Exh. P. A.) at 2 p.m. on the same day, namely, 27‑4‑1973. After recording the report S. H. O. Muhammad Arshad P. W. prepared the injury statement (Exh. P. J.) and inquest report (Exh. P. K.) of the deceased and sent the dead body to the mortuary for post‑mortem examination. According to this police officer, Sherjang and Muhammad Iqbal appellants also came to the police station the same day and he arrested both of them. Muhammad Iqbal appellant produced before him blood‑stained hatchet (Exh. P. 5) which was taken into possession and sealed into a parcel vide Memo. Exh. P. D. Since both the appellants hart injuries on their person, the Investigating Officer prepared their injury statements. He sent both the appellants to the hospital for medical examination. He then reached the spot, collected the blood‑stained earth and sealed it into a parcel vide Memo. Exh. P. E. He got prepared site plan (Exh. P. C.) by Muhammad Afzal Patwari P. W. He arrested Lai (acquitted co‑accused) on 2g‑4‑1973. After the usual investigation, the police challaned all the three accused persons under section 302/34, P. P. C. They were tried by the Sessions Judge, Campbellpur, who vide the impugned judgment dated 2‑11‑1974. convicted both the present appellants under section 302/34, P. P. C. and sentenced each of them to death subject to confirmation by this Court. Each of the appellants was further sentenced to a fine of Rs. 2,000.00 or in default of the payment thereof to undergo rigorous imprisonment for one year each. Out of the fine, if recovered, a sum of Rs. 3,000.00 was ordered to be paid to the heirs of the deceased as compensation. Lal co‑accused was, however, acquitted by the trial Court. The appellants have challenged their convictions and sentences through the present appeal. The case is also before us under section 374, Cr. P. C. for confirmation of the death sentences awarded to the appellants by the trial Court. This judgment will dispose of the Murder Reference as well as the Criminal Appeal.

2. Dr. F. M. Khan on 28‑4‑1973, at about 7‑15 a.m,, performed the post‑mortem examination on the dead body of Muhammad Tufail and found the following injuries on it :‑ (1) Contused wound 2' x 1 on the posterior lateral on his head 2' behind and upwards from the left ear with fracture of parietal bone adjoining the occipital bone. (2) Incised wound 2 ' x ' x 1 ' on the right, side 2' of the middle of the back of his head with fracture of occipital sutures. (3) Incised wound 3' x ' x 2' on the back of middle portion of his head in the region of the occipital protuberance where a circular flap like piece of occipital bone was cut through 2 in diameter and the lower part of this piece of bone was found attached with the scalp lowermost and at the same time the sharp weapon had cut through the meanings and the posterior end of the cerebellum about 2" was crushed through. (4) The half portion of his left hand little finger was found nipped off and missing, thus the 2nd phalynx bone found fractured whereas soft part sliced through and missing. In the opinion of the doctor all the head injuries were grievous in nature. Death was caused due to shock and haemorrhage. Probable time between injuries and death was immediate and between death and post‑mortem exa mination 19‑20 hours.

3. The same doctor on 27‑4‑1973 at about 6‑30 p. m. medically examined Sherjang appellant and found the following injuries on his person ;‑ (1) Contused lacerated wound 1 ' x 1/3' skin deep (skull bone visible) on the right half of his forehead 2/3' above the right eye‑brow with marks of profused bleeding and blood clots; there was fracture of skull bone underneath the wounds. (2) Contused lacerated wound 1/3' x ' (skin deep skull bone visible under the wound) with marks of profused bleeding and blood clots covered the wound. (3) Contused lacerated wound 1' x 1/3' skin deep (skull bone visible) under the wound on the back lower part of his head 1' to the right of middle line, marks of profused bleeding and blood clots present. (4) Contusion mark 2' x 1' on the right chest, with reddish blue colour and swelling of the right eye. (5) Abrasion mark ' x 1/3' on the lower half of nose. (6) Contusion mark 3' x ' x 1' on the back of left shoulder slightly oblique much transverse in direction. (7) Contusion mark 2 ' x 1' on the back of chest, lower part transverse in direction in the region of 10th and 11th left ribs. (8) Abrasion mark 2/3' x ' in front of upper outer part of chest left side. (9) Contusion mark 1 x ' on the back upper part of left thigh. (10) Contusion mark 3 ' x 1' on the outer part of the right upper arm. Injury No. 1 was grievous, while the rest were simple in nature, caused by a blunt weapon within about 8‑9 hours.

4. The same doctor on the same day about 7‑30 p. m. medically examined Muhammad Iqbal appellant and found the following injuries on his person :‑ (1) Contused lacerated wound 2' x 1/3' skin deep on the right frontal bone 2' to the right of middle line 1 above the hairy line, vertical in direction with marks of profused bleeding and blood clots covering the wound. (2) Contused lacerated wound 1' x 1/3' skin deep (skull bone visible) with marks of profused bleeding and blood clots were present. (3) Contused wound 1' x 1/3' skin deep on the back lower part of head across the middle line with marks of profused bleeding and blood clots. (4) Abrasion marks of the outer and back of right elbow joint. (5) Contusion mark 1 " x 1' on the back, middle portion of right forearm reddish in colour, transverse in direction. (6) Contusion mark 3' x 1' on the outer aspect, of left shoulder reddish in colour and transverse in direction. (7) Contusion mark 2' x 1' on the outer aspect, upper part of left upper arm reddish in colour. (8) Abrasion mark 1 x ' on the back upper outer part of chest right side. All the injuries were simple in nature within the duration of 9‑10 hours.

5. The appellants when examined under section 342, Cr. P. C. denied the prosecution allegations. Sherjang appellant admitted that Muhammad Iqbal appellant was his son, while Lai (acquitted co‑accused) was brother of his wife and that his mother and that of Lal were sisters. When asked whether during the occurrence Karam Dad and Ali Gohar P. Ws. injured him and Muhammad Iqbal appellant with stones, he stated as under: ‑ "No. As a matter of fact, on the day of occurrence at about rotiwela, sheep and goats of Abdul Rahman P. W. and Muhammad Tufail deceased trespassed into my land and damaged the crop. I drove them towards the cattle‑pound. On my way, the deceased along with Abdul Rahman P. W. and his nephews Sher Ahmad and Daud attacked me and my son with sticks to forcibly snatch the animals. On our, resistance, they caused us injuries. Accused Muhammad Iqbal gave a few hatchet injuries to the deceased in private defence of both of us. But they succeeded in snatching away the animals. I and Iqbal went to the P. S. before the complainant party to lodge report and narrated the incident to the police but they did not register a case. They made us sit there. On the arrival of the com plainant party they recorded the F. I. R. against us and arrested us." When asked why this case was brought against him and why the P. Ws. deposed against him he stated as under:‑ "The prosecution have concocted a false version to conceal their own aggression and the P. Ws, have falsely deposed due to their mutual relationship. Only P. W. Abdul Rahman was present at the time of incident." Muhammad Iqbal appellant also made a similar statement. When asked to explain injuries found on his person, he stated as under before the com mitting Magistrate :‑ "Sheep and goats of the deceased and Abdul Rahman P. W. had damaged crop of my father who was driving them to the cattle‑pound but on the way he was attacked by deceased, Abdul Rahman P. W. and their relatives Sher Ahmad and Daud with deadly weapons so as to snatch goats and sheep. On resistance they attacked and injured my father and myself and I reacted in self‑defence by causing a few blows to the deceased." Before the trial Court when asked whether during the occurrence Karam Dad and Ali Gohar P. Ws. had injured him and his father Sherjang with stones he stated as under:‑ "No. We tried to take to the cattle‑pound the sheep and goats of the deceased and P. W. Abdul Rahman. They and the nephews of the deceased, Daud and Sher Ahmad, attacked and injured us with sticks in a bid to forcibly snatch the animals. I acted in private defence of myself and my father and delivered hatchet blows to the deceased. Only. Abdul Rahman was present at the time of occurrence." He admitted that he produced the hatchet in support of his true version. He further stated that the prosecution had concocted false version to conceal their own their aggression and the P. Ws, had falsely deposed due to mutual relationship. He denied the presence of Lal (acquitted co accused) on the spot at the time of occurrence. However, no evidence in defence was produced by them.

6. In support of its case the prosecution produced Abdul Rahman (P. W. 7). Ali Gohar (P. W. 8)' Karam Dad (P. W. 8) Behram Khan (P. W. 10) as eye‑witness. The prosecution also relied upon the recovery of hatchet (Exh. P. 5) Which was produced by Muhammad Iqbal appellant himself at the time of his arrest. The trial Court believed the statement of Abdul Rahman P. W. as corroborated by the remaining three eye‑witnesses, namely. Ali Gohar, Karam Dad and Behram Khan. The learned Sessions Judge also found the medical evidence to support the ocular account. The motive was also believed by the trial Court. The trial Court, however, rejected the defence version. After believing the prosecution evidence, the learned Sessions judge convicted and sentenced the present appellants as stated above.

7. The learned defence counsel has stated at the Bar that Sherjang appellant died in jail on 24‑6‑1975. He, therefore, did not argue the case on his behalf. Thus, this appeal so far as Sherjang appellant is concerned, stands abated. We are, therefore, left with the case of Muhammad Iqbal appellant alone.

8. As stated above, Muhammad Iqbal appellant in his statement under section 342, Cr. P. C. had admitted that while acting in private defence of himself and his father Sherjang, he delivered hatchet blows to Muhammad Tufail deceased. He thus admits the killing of the deceased, but has claimed right of self‑defence of person. According to the defence, on the day of occurrence sheep and goats of Muhammad Tufail deceased and Abdul Rahman P. W. trespassed into the field of Sherjang (deceased appellant) and damaged the crop. He drove them towards the cattle‑pound. Muhammad Iqbal appellant was also with him. On the way while snatching away their goats and sheep, the appellants on resistance were attacked and injured by Muhammad Tufail deceased and his relatives, namely, Abdul Rahman, Ali Gohar, Karam Dad and Behram Khan P. Ws. It was in this situation that Muhammad Iqbal appellant claims to have inflicted injuries to the deceased in exercise of his right of self‑defence. Since the appellant has admitted the killing of the deceased, but has offered his own version, the first question which calls for consideration is whether the prosecution has proved the guilt of the appellant beyond reasonable doubt and whether the defence version is probable and believable.

9. According to Muhammad Iqbal appellant, he and his father Sherjang (deceased appellant) both themselves went to the police station before the complainant had lodged the F. I. R. They wanted to lodge a report, but the police refused to do so. On the arrival of the complainant party the police recorded the report against the accused and arrested them. S. H. O. Muhammad Arshad (P. W. 11) has admitted that accused Sher Jang and Muhammad Iqbal had themselves reached the police station and no Foot Constable had brought them. He has further admitted that these two accused gave their version, but he did not prepare the F. I. R. on their statement. He has also admitted that he recorded their version in the Zimini. We have ourselves verified this fact and find that the defence version is duly mentioned in the earliest Zimini. It is further admitted. by him that both the accused persons bore injuries on their persons and, therefore, he sent them to the hospital for medical examination. It is also an admitted fact that Muhammad Iqbal appellant produced before the police officer the blood‑stained hatchet (Exh. P. 5) which was taken into possession by him vide Memo. Exh. P. D. Thus, this part of the defence version stands fully established as it is also admitted by the Investigating Officer himself. It is not denied by the prosecution that Sherjang (deceased appellant) received ten injuries, while Muhammad Iqbal appellant received eight injuries during the same occurrence. According to the prosecution, these injuries were caused by pelting stores by Karamdad and Ali Gobar P. Ws. According to them, they threw stores from a short distance of 5/7 yards. The investigating officer has frankly admitted that he did not take into possession blood‑stained stones from the spot as no such stones were found there. The learned State Counsel has not been able to explain why such stones were not found on the spot or otherwise taken into possession if their version was true that the P. Ws. caused these injuries to the accused persons by pelting stones at them. Moreover, we find that some of these injuries were bleeding and, therefore, if they were caused with stones, they should also be stained with blood and in that situation, the recovery of such blood‑stained stones was necessary to establish this fact by the prosecution. Further, it is not denied by the learned State Counsel that some of the injuries found or, the person of these accused were not possible with stones. Injuries Nos. 6 and 10 on the person of Sher Jang (deceased appellant) are described by td doctor as contusion marks 3 ' x 1'. It is not denied that such contusion marks could not be caused by ordinary stones but most probably they could be caused with sticks as suggested by the defence. The doctor has also stated that the injuries of the two accused could be caused with sticks. Another circumstance which has not been explained by the prosecution is that if the P, Ws. caused these injuries to the accused persons by throwing stones from a short distance, why the appellants did not react, to the same. Like ordinary human beings, that appellants who were arms with hatchets and had already practically murdered one person, namely, the deceased, they could attack the P. Ws. with their respective hatchets, especially after receiving one or two blows. If for any reason they did not, like to cause any more injuries, the other course open to them as ordinary human beings was to run away from the spot in order to save themselves. They could not remain standing and receive in all 18 injuries, some of which are on vital parts of their bodies. It may be pointed out that Ali Gohar and Karamdad P. Ws. claim to be empty‑handed. The accused persons, on receipt of one or two injuries, could easily inflict injuries to these P. Ws. without any risk and could save themselves from receiving further injuries. Moreover, these two empty‑handed P. Ws. could not take such a risk, because when the accused had already murdered one of their party‑men, they could also cause injuries to these P. Ws. with hatchets. There was, therefore, no occasion for the accused persons to stay on the post after Muhammad Tufail had fallen down and they could not receive so many injuries. Similarly, the P. Ws. could not remain on the spot after their companion had been murdered by the accused party. In these circumstances we feel that the defence version is more probable as it gets support every from the prosecution side. A perusal of the injuries of Sherjang (deceased appellant) and Muhammad Iqbal appellant indicates that most of these injuries were on the front portion of their bodies and only a few injuries err on the back side. The location of the injuries also indicates that stones were not thrown at them while they were going away, but they received these injuries while facing their assailants. This fact fits in more with the defence version than the prosecution case.

10. According to the prosecution, six months prior to the present occurrence Sherjang (deceased appellant) suspected Ahmad Khan son of Abdul Rahman P. W. for having illicit intimacy with his daughter Tajo and for that there was exchange of abuses between the appellant and said Ahmad Khan. This is alleged to be the motive by the prosecution. If this was the motive alleged by the prosecution, then the accused either should have killed said Ahmad Khan or his father Abdul P. W. who was available on the spot at the relevant time. No motive whatever has been attributed against Muhammad Tufail deceased. The prosecution has failed to bring any material on the record to show any enmity or motive of the accused persons against the deceased. The State Counsel has tried to argue that the daughter of the deceased was first betrothed with the said Ahmad Khan but the marriage took place after the occurrence and, therefore, Sherjang. (deceased appellant) may have a grievance as he may have thought to marry his own daughter with Ahmad Khan after the alleged intimacy became known. We are not impressed by this motive. The prosecution has not established any direct motive against the deceased. In the absence of such a motive, the defence version seems to be probable that the occurrence started, because the sheep and goats of the deceased and Abdul Rahman P. W. had damaged the crop of the accused persons and while they were taking them to the cattle‑pound, the complainant party while snatching away the said animals first exchanged abuses and then started fighting with the accused party which resulted in the death of Muhammad Tufail and injuries to the two accused persons.

11. Another circumstance which goes against the prosecution is the conflict between the medical evidence and the ocular evidence. According to the F. I. R. lodged by Abdul Rahman P. W. and his statement before the trial Court, Sherjang (deceased appellant) and Muhammad Iqbal appel lant caused one injury each to Muhammad Tufail deceased. In other words, according to the ocular evidence, the accused persons inflicted only two injuries with hatchets to the deceased. The doctor,. however, at the time of post‑mortem examination found four injuries on his person. Although in the F. I. R. only two injuries are mentioned, yet subsequently the prosecu tion tried to add another injury making the number as three. However, the fourth injury which was on the little finger of the left hand of the deceased, still remained unexplained. The learned State Counsel has not been able to explain this conflict between the medical evidence and the ocular evidence. Similarly, as mentioned above, some of the injuries on the persons of the accused could not be caused with stones as alleged by the eye‑witnesses. The doctor has indirectly supported the defence suggestion that the injuries of Sherjang and Muhammad Iqbal could be caused with sticks.

12. The occurrence took place near the village Abadi on a thorough fare in broad daylight, but not a single independent and disinterested witness had been produced by the prosecution. It is admitted by the prosecution that many people reached the spot immediately after the occurrence. It is not denied that the alleged eye‑witnesses are closely related to the deceased. The prosecution has not offered any plausible explanation as to why no independent and disinterested witness was not produced in support of its case. Apart from the relationship of the eye‑witnesses, we find that there are material discrepancies and contradictions in their statements.

13. After hearing the counsel for the parties and going through the relevant material available on the record we have reached the conclusion that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. On the other hand, we are clearly of the view that the defence version seems to be more probable and believable. Accordingly, we accept this appeal, set aside the conviction and sentences of the appel lant and acquit him. He shall be set at liberty forthwith if not required in connection with any other case. Appeal allowed.