P (PLP)

JUDGMENT.‑This is a jail appeal by Said Muhammad against his conviction under section 302 Penal Code and sentence of death passed on him by the Sessions Judge, Poonch. The record of the case is also before us for reporting on the confirmation of the death sentence. We have heard the 'Assistant Advocate- General for the Government and Pirsada Abdul Hamid, Advocate engaged at. State expense as a counsel for the accused. We have also gone through the record of the case very carefully with the assistance of both the lawyers. After fully weighing the lengthy arguments addressed to us by Pirzada Abdul Hamid who had taken lot of pains in studying the file of the case thoroughly, and considering the reply of the Assistant Advocate‑General which was brief and straight forward, we are of opinion that the conviction of the appellant cannot be sustained on the evidence as it stands on the record. Of the three eye‑witnesses of the occurrence two, namely, Mst. Moti Begum P. W. 2 and Hassan Muhammad P. W. 3 were the widow and son of the deceased. The story given by these two witnesses differed in material details from that given by the third witness, Fateh Muhammad P. W.

4. Mst. Moti Begum and her son Hassan Muhammad stated that there was a dispute between the appellant and the deceased over a house. The appellant wanted the deceased to give possession of the house but the latter refused to do so unless the appellant give him the quantity of flour supplied to the persons employed in building it. On the day of ‑the occurrence the appellant taking advantage of the absence of the‑deceased threw away a charpoy belonging to the latter. When the deceased returned to the house he was told that his charpoy had been thrown away by the appellant. In the meantime, the appellant also happened to come and gave blows one on the ear and the other on the neck of the deceased with a sharp side of the hatchet carried by him. The deceased and the appellant then grappled with each other. In the course of the struggle the appellant whipped out a knife and thrust it into the breast of the deceased. The deceased succumbed to this injury and died immediately. At the time of the occurrence no other person excepting the eye‑witnesses was present. Fateh Muham mad mentioned that in his presence the appellant threw away a charpoy belonging to the deceased and when deceased brought that charpoy the appellant gave him a kulhari blow which struck the latter on the neck. This was done when the appellant was being pushed away. The deceased then picked up a stick and hit the appellant with it on the head. The appellant was severely hit and blood began to flow from his head. The deceased then gave the appellant two stick blows on the neck. On receiving these blows the appellant knelt down somewhat. The deceased thereafter felled down the appellant and sat over his back. The appellant while in this state brought out a knife from his pocket and thrust it into the Abdomen of the deceased. It is conceded by the Assistant Advocate‑General that the story told by Mst. Moti Begum and her son is not a true one and they intentionally omitted certain details favourably to the appellant but he contends that there is nothing on the file to rule out the story mentioned by the third witness. It is urged by the learned counsel for the appellant that the story told by the third witness is also not reliable because it is at variance with the facts set forth in the First Information Report proved to have been made by Fazal Hussain P. W.

1. In the First Information. Report it was mentioned that the appellant was accompanied by three persons namely, Muhammad Hussain, Fateh Muhammad‑ P. W. and one Rustom Ali when he threw away a charpoy belonging to the deceased and that when the appellant was overpowered by the deceased, Muhammad Hussain gave the appellant a knife for thrusting it into the abdomen of the deceased, and releasing himself thereby. The Assistant Advocate‑General has argued that Fazal Hussain who gave the First Information Report was not an eye‑witness of the occurrence and it appears that he mentioned certain wrong facts. The argument would have been plausible if Fazal Hussain had been cross‑examined on this point, but it was not done. If we take the First Information‑Report as having been made correctly then the conclusion would be that the police tutored the witnesses in order to throw liability for the crime on the appellant in such a manner as to deprive him of the right of private defence. Anyhow this is clear that none of the eye‑witnesses has spoken the truth, the whole truth and nothing but the truth. This being the case we are unable to decide how the occurrence took place and the benefit of doubt must go to the appellant. The Medical evidence in this case is full of defects and can not be reconciled. Autopsy on the body of the deceased was made on the 7th May, 1948. The Doctor noted that the deceased had injuries on the forehead and the back side of the head besides a knife wound, The .Doctor further opined that the injuries were of two days duration only. The evidence indicates that the deceased did not receive any injury on the forehead and that all the injuries were received by him on the 3rd May, 1948, the date when the occurrence took place. In the circumstances the arguments advanced by the learned counsel for the appellant that it is not proved that the post‑mortem examination referred ton the evidence of the Doctor was conducted on the body of the deceased cannot be easily brushed aside. The Doctor's evidence thus conflicts with the other evidence produced in the case. This difference must also help the appellant. The dead body was not identified before post‑mortem examination. This defect undermines the foundation of the prosecution story. The knife and the hatchet alleged to have been used in causing injuries to the deceased were handed over to the police by Rustom Ali. It is not clear on the record how Rustom Ali got these articles. This is also a lacuna in the evidence and its benefit mint go to the appellant. It is in evidence that the appellant was kneeling down and the deceased was sitting on top of him when the stabbing incident occurred. If this was the case it does not sound common sense that the appellant and not any other person was responsible for stabbing the deceased. The appellant denied that he had caused any injury to the deceased which resulted in the death of the latter. On the other hand he stated that the deceased overpowered him and the person present at the scene of offence caused injuries to the of ceased in order to release him. The statement of the appellant does not look very reasonable but we are constrained to accept it in the face of the weak evidence produced on the side of the prosecution. For the above reasons we are of opinion that the appellant can not be reasonably held responsible for the fatal injury suffered by the deceased. We accordingly accept the appeal, set aside the conviction and sentence of the appellant and acquit him. The appellant who is in jail is ordered to be released forthwith. K. M A. Appeal accepted.