1988 P Cr (PLP)

KAMAL MUSTAFA BOKHARI, J.‑‑Muhammad Sharif, aged about 23 years, son of Muhammad was tried for the murder of his elder brother, Naseer, aged about 36/37 years. The learned Sessions Judge, Sahiwal convicted him under section 302, P.P.C. and sentenced him to death subject to confirmation by this Court, vide his judgment and order passed on 4‑10‑1975. The convict filed appeal against his conviction and sentence while the learned trial Judge sent reference for confirmation of his death sentence. This judgment will dispose of both the matters.

2. The occurrence in this case is alleged to have taken place on 24‑9‑1974 at about 10 or 11 p.m. in the house of the deceased in the Abadi of Chak No.38/4‑L, District Sahiwal and the F.I.R. was registered on 25‑9‑1974 at 7 a.m. at the Police Station Shahbhor which was 13 miles away from there, on the statement of Baqar Ali, Lambardar (P.W.7) and it was recorded by Muhammad Shafi A.S.I. (P.W.8). The motive alleged in the F.I.R. was dispute between the brothers, the appellant and the deceased, over distribution of house hold goods left by their late father because the deceased who was elder brother of the appellant had refused to give share to the appellant about three days before the present occurrence. According to the statement of Baqar Ali, Lambardar complainant P.W. he was returning from his land on 24‑9‑1974 at about 10 or 11 p.m. to his house and passed the house of Naseer deceased when the complainant heard alarm which attracted him to the spot. In the meantime Bashir Ahmad, Muhammad Fazil, Ghulam Muhammad and Sujawar Ali (all given up by the prosecution as won over) who were residents of the same village also reached there. There was a light of lantern in the courtyard of Naseer deceased in which light Baqar Ali complainant P.W. and the aforementioned given up witnesses saw that the appellant gave two hatchet blows to his real brother named Naseer and then tried to escape. When the complainant and aforementioned witnesses threatened the appellant to stop the appellant warned them not to approach him but in spite of that the complainant and the aforementioned given up witnesses plucked courage and apprehended the appellant. Then they went up to Naseer deceased and found him dead. The complainant and the given up witnesses then asked the appellant as to why he had caused the murder of his real brother when the appellant told them that he had done so because the deceased had refused to distribute the household effects left ‑by their father all of which were in possession of the deceased and when the deceased was sleeping on a Charpai in his courtyard the appellant caused his murder by delivering two hatchet blows on the left side of the neck of the deceased. The complainant and the given up witnesses also snatched the blood‑stained hatchet from the appellant. The parents of the deceased and the appellant had previously died and both of them were living in adjacent houses. Leaving the appellant at the spot in the custody of Ghulam Muhammad, Muhammad Fazil, Sujawar Ali (given up witnesses) and other persons to look after the dead body Baqar Ali, Lambardar, P.W. went to the police station as aforementioned where on his statement formal. F .I . R . was registered.

3. After recording the F.I.R. at the police station Muhammad Shafi A.S.I. (P.W.8) reached the spot at 10‑30 a.m. where he inspected the spot and the dead body of Naseer deceased which was found lying on a cot in his courtyard and after preparing the inquest report he despatched the dead body for autopsy. Then the Investigation officer secured blood‑stained earth from the spot, also took into possession lantern which was stated to be burning at the time the deceased was murdered, further secured the cot, Khesi and pillow all of which were stained with blood on which the deceased was lying dead. The appellant was found present by him at the spot having been previously apprehended by the prosecution witnesses who produced the appellant before the Investigating Officer when the latter got removed blood‑stained shirt and. blood‑stained Shalwar and a blood‑stained pair of Havai Chappal from the person of the appellant and secured the same. The appellant was arrested by the Investigating Officer on 25‑9‑1974. Ghulam Muhammad (given up as won over) produced before the Investigating Officer the blood‑stained hatchet with which the appellant was alleged to have caused the murder which was secured vide memo. Exh.P.E. After completion of investigation the appellant was challaned for trial in Court. In cross‑examination at the trial the Investigating Officer deposed that there was no Abadi around the house of the appellant and the deceased, there was no house adjoining the Bhaini of the appellant and the deceased and that Ghulam Muhammad had told the Investigating Officer that he had snatched the hatchet from the appellant.

4. Dr. Muhammad Iqbal conducted post‑mortem examination on the dead body of Naseer deceased, aged about 36/37 years, on 26‑9‑1974 at 9 a.m. when he found three incised wounds as under:‑ (1) Incised wound 4" x 1 deep upto the cervical vertebra on the left side of the neck " below left ear cutting underneath the muscles of the neck the left jaw bone large blood vessles of the neck and second cervical vertebra on its left side deep. (2) Two incised wounds 1 " x " skin deep on the left side of the neck 1" below the injury No.1. (3) Incised wound 1" x 1/8" skin deep in the lower part of the left side of the neck, on opening the cranium all the organs 1. e. memberanes, brain and spinal cord were slightly decomposed. On internal examination the doctor also found that both the lungs were slightly decomposed and congested, the heart was slightly decomposed and empty and that rest of the organs were slightly decomposed. On opening of abdomen the doctor found that the stomach was slightly decomposed and was half full of semi‑digested food, the small intestine was slightly decomposed which contained small amount of semi digested food, the large intestine was slightly decomposed, upper part was empty and the lower part was full of faecal matter while the bladder was slightly decomposed and contained 4 ounces of urine. The rest of the organs were also slightly decomposed. In the opinion of the doctor, Naseer had died of shock and haemorrhage. All the injuries of the deceased were anti‑mortem caused by sharp‑edged weapon but injury No.1 was sufficient to cause death in the ordinary course of nature while rest of the injuries were declared by him to be simple in nature. He gave the duration between the injuries and death was within few minutes but the time between the death and post‑mortem was given by him as about 36 hours. That statement of the doctor was transferred to the Sessions record and at the trial his supplementary statement was also recorded in which he deposed that dead body of the deceased was brought to the hospital on 25‑9‑1974 at 10 p.m. while the autopsy was conducted on the next day. In cross‑examination the doctor deposed at the trial that according to his report the deceased had taken food two or four hours before his death.

5. At the trial prosecution examined eight witnesses in all. Baqar Ali, Lambardar (P.W.7) who lodged the F.I.R. alone was examined as eye‑witness. The recoveries of blood‑stained clothes etc. from the person of the appellant, of blood‑stained hatchet of the appellant from Ghulam Muhammad (given up as won over), of lantern anti other recoveries were proved by the Investigating Officer, Muhammad Shafi A.S.I. (P.W.8) alone. The apprehension of the appellant at the spot was proved by the complainant while his arrest was proved by the Investigating Officer. According to the Serologist's report (Exh.P.M.) the earth recovered from the spot, hatchet of the appellant produced by Ghulam Muhammad, Shalwar and shirt of the appellant which were got removed from his person at the time of his arrest were found stained with human blood but the blood had disintegrated on pair of Chappals secured from the appellant.

6. The appellant pleaded not guilty to the charge. When examined under section 342, Cr.P.C. he denied the allegations of the prosecution, further denied that he was over‑powered by the complainant P.W. and the given up P.Ws. and was made to sit ,at the spot when the appellant confessed his guilt, also denied all the recoveries and the motive alleged against him, by the prosecution although he admitted his relationship with the deceased and stated that the deceased was his real brother. In reply to the question why the case against him the appellant stated that he was having old enmity with Baqar Ali complainant P.W. who had falsely got the appellant implicated in this case although some unknown assailant had killed the deceased who was a man of immoral character.

7. We have been taken through the evidence in this case with the assistance of the learned counsel for the parties and have considered it in the light of the submissions made by them. The learned counsel for the appellant argued that the appellant was implicated on suspicion at the instance of Baqar Ali, Lambardar in collusion with the local police, that the recoveries of weapon and clothes were planted on the appellant and that the apprehension of the appellant was shown by the local police to strengthen the prosecution case otherwise the appellant lived in the adjacent house of the deceased being his real brother and was available at the spot at the time of the police reached there.

8. According to the original case of the prosecution as disclosed in the F.I.R. there were five persons in all who witnessed the occurrence which allegedly took place at about 10 or 11 p.m. on 24‑9‑1974 but four of them were not examined by the prosecution for the reason that they had been won over. It was Baqar Ali, Lambardar who had lodged the F.I.R. who alone was examined as eye‑witness, witness of apprehension of the appellant at the spot with the weapon of offence and for recovery of blood‑stained hatchet from the appellant at the spot. It is a common ground that the appellant was younger brother of the deceased. The motive alleged by the prosecution was not established and was not even relied upon by the learned trial Judge. The appellant and his deceased elder brother were living in adjacent houses. The occurrence allegedly took place at 10 or 11 p.m. in the month of Ramazan. Baqar Ali the only eye‑witness examined' by the prosecution claimed that he was returning from his land at that odd hour to his house and while passing the house of the deceased which was situated, on the outer part of Abadi of Chak No. 38/4‑L he saw the occurrence alongwith the four given up witnesses. He appears to be a chance witness. His testimony is not worthy of reliance for maintaining conviction of the appellant in the circumstances of this case. The medical evidence revealed that most of the parts of the dead body had decomposed. Whereas the occurrence is alleged to have taken place at 10 or 11 p.m. on 24‑9‑1974 and the appellant apprehended at the spot the F.I.R. was lodged only on the next morning at about 7 a.m. of 25‑9‑1974 at the police station which was 13 miles away. Baqar Ali the solitary eye‑witness was a Lambardar and evidently was previously known to the appellant. The post‑mortem examination was conducted on 26‑9‑1974 at 9 a.m. according to the medical report as also by the deposition of the doctor when the prosecution tried to get the delay explained from the doctor in al supplementary statement at the trial that the dead body had reached the hospital on 25‑9‑1974 at night time but that fact was not mentioned in the post‑mortem examination report and the doctor was not expected to remember the time of arrival of the dead body in the mortuary. Even otherwise a doctor who conducts the autopsy is not expected to notice the arrival of the dead body in the mortuary. This is an improvement. There are other improvements and discrepancies on material points in the testimony of the only eye‑witness, Baqar Ali, Lambardar before whom the appellant allegedly made extra‑judicial confession. His testimony is not worthy of reliance. The motive was rightly disbelieved and in the absence of any motive it is improbable that a younger brother would cause the murder of his elder brother. The recoveries of blood‑stained clothes from the person of the appellant effected at the time of arrest and of blood‑stained hatchet allegedly' produced by Ghulam Muhammad (given up witness) were proved only' by the Investigating Officer and none else. In the circumstances of the case the prosecution had not proved the guilt of the appellant beyond reasonable doubt and the learned trial Judge was wrong in #basing conviction and sentence of the appellant on the evidence on *4record. We are of the considered view that on the evidence on record in this case it is not safe to maintain the conviction and sentence of the appellant who is entitled to benefit of doubt which is allowed to him.

9. As a result of above discussion the appeal is accepted, the conviction and sentence of the appellant are set aside and the appellant is directed to be set at liberty forthwith if not required in any other case. The death sentence of the appellant is not confirmed. S.A./M‑799/L Appeal accepted.