1976 P Cr (PLP)

5. After recording the F. I. R., Bashir Ahmad Sub‑Inspector reached the spot. He prepared the injury‑statement (Exh. P. M.) and inquest report (Exh. P. L.) of the dead body and despatched it to the mortuary for post‑mortem examination. He took some blood‑stained earth into hi,, possession from the spot and made it into a sealed parcel vide memo. Exh. P. D. He took blood‑stained cot (Exh. P. 2) and blood‑stained pillow (Exh. P. 1) into his possession vide memo. Exh. P. C. On 4th August he arrested the accused persons. On 5th August 1972 Allah Din appellant led to the recovery of blood‑stained hatchet (Exh. P. 3) which was made into a sealed parcel vide memo. Exh. P. D. On the same day Muhammad Ali appellant led to the recovery of blood‑stained hatchet Exh. P. 4 which was taken into possession vide memo. Exh. P. E. After the, investigation, the appellants and the acquitted accused were challaned.

6. On 1st August 1972 at 7‑30 a.m. Dr. Nazir Ahmad Qureshi, Medical Officer, Civil Hospital, Pind Dadan Khan, conducted the autopsy on the dead body of Abdus Salam deceased and found the following injuries on it:‑ (1) Incised wound 4' x 3' x 2‑1/2' on the left side of face and neck running horizontally and cutting the lobule of ear. The lower jaw in‑between the angle and the neck was cut across along with muscles of neck below the mastoid process. (2) Incised wound 3' x 1' x 1‑1/2' on the left side of antero-lateral parts of neck and face. The anterior end of wound was continuous with injury No, 3. (3) Incised wound 4'x 1' x 1` on tire left side of face and neck starting from medial end of injury No. 2 and reaching the left angle of mouth. The muscles of neck and the lower jaw below the angle were cut across under the wound. (4) Incised wound 2 ' x ' x 2' on the antero‑medial side of right half of neck running horizontally. The larynx was cut, across at the level of lower part of thyroid cartilage. The oesophagus was also cut at the same level. The carotid vessels were severed under the wound. (5) Incised wound just below the lower border bf the right jaw 2' x 1 ' x skin deep. (6) Incised wound 5' x 1 x 2' on the upper part of front of chest across the mid‑line of body. The medial end of clavicle was cut under the wound near its sterno‑clavicular joint. (7) Five small superficial cuts on the lower part of front of neck and upper part of chest. In the opinion of the doctor, death was due to shock and haemorrhage as a result of injuries Nos. 1 to

6. All the injuries were ante‑mortem, caused by sharp‑edged weapon. Injuries Nos. 1, 3, 4 and 6 were grievous and the rest were simple. Injuries Nos. 1 to 6 were sufficient to cause death in the ordinary course of nature. Probable tune between injuries and death was few minutes to half an hour and shat between death and post‑mortem examination from 24 to 48 hours.

7. To support its case the prosecution examined fifteen witnesses in all, its main stay being the ocular testimony of Bahadur Khan and Allah Yar P. Ws. The prosecution also relied on the motive and recovery of blood‑stained hatchets at the instance of the appellants.

8. The appellants pleaded not guilty to the charge. They admitted their relationship inter se but denied all other allegations and contended that they had been falsely implicated due to enmity and suspicion. Allah Din appellant produced certified copies (Exhs. D. D. and D. E.). of the General Register pertaining to Tehsil Pind Dadan Khan. No other evidence was led in defence.

9. The learned Sessions Judge rejected the motive. He disbelieved the ocular account furnished by Bahadur Khan P. W. He also disbelieved the evidence of Allah Yar P. W. in respect of the acquitted accused. He observed that the evidence in regard to the recoveries made at the instance of the appellants was not reliable. He, however, accepted the evidence of Allah Yar P. W. against the appellants, and on the basis of his statement convicted them under section 302/34 of the Pakistan Penal Code.

10. After going through the evidence with the help of the learned counsel for the State, we are of the view that it is insufficient to warrant the conviction of the appellants. To support the motive, the prosecution examined Ali Haider complainant and Ghulam Muhammad P. W. Ali Haider com plainant stated that he demanded the hand of Mst. Azizan from her father Hasan Muhammad who agreed to the proposal but the appellants and the acquitted accused opposed it and declared that they would not let it happen. Ghulam Muhammad (P. W. 9) stated that about ten or fifteen days prior to the occurrence, the deceased and Muhammad Ali appellant grappled with each other when he alongwith three girls separated them. He further stated that "Muhammad Ali accused threatened Abdus Salam deceased that he would see as to how he (the deceased) would marry". Besides the solitary statement of Ali Haider complainant there is no other evidence on the record to show that any proposal was put before Hasan father of Abdur Rehman, acquitted accused, for the hand of Mst. Azizan. Ali Haidar complainant is the uncle of the deceased. In cross‑examination he admitted that his wife‑ Mst. Bhag Bhari was previously married to Ghulam Muhammad, maternal uncle of Abdur Rehman acquitted accused. He denied that he bad abducted aforesaid Mst. Bhag Bhari and stated that "Mst. Bhag Bhari's father Lal Khan and her uncle Shah Muhammad had obtained her divorce from Ghulam Muhammad by filing suit for dissolution of marriage" and after that he had married her. He further stated that he had given his niece Mst. Rasool Bibi in marriage to the brother of Mst. Bhag Bhari. In view of this background we are reluctant to believe that Ali Haider could demand the hand of Mst. Azizan from Hasan (sister's husband of afore‑mentioned Ghulam Muhammad) or Hasan had agreed to the proposal. Ghulam Muhammad (P. W. 9) seems to be a partisan of the complainant as he admitted in cross‑examination that he was challaned under section 107, Cr. P. C. alongwith the complainant on many occasions and that Hasan son of Hayat was the head of the opposite‑party in those security proceedings. This patent fact was, however, denied by the complainant. At the trial, Ghulam Muhammad P. W. stated Muhammad Ali appellant had challenged the deceased "that he would see as to how he (the deceased) would marry". He was confronted with his police statement where it was not so recorded. This witness was examined by the police about a fortnight after the occurrence but no explanation was offered for this inordinate delay on the part of the police to examine him, therefore, it is unsafe to rely on his evidence, and the motive alleged by the prosecution remains unsubstantiated.

11. According to the prosecution, the deceased was murdered in his Behak at Sehriwela. Babadur Khan (P. W. 13) and Allah Yar (P. W. 14) gave an ocular account of the occurrence. Bahadur Khan P W. stated that on the night of occurrence at about midnight he woke up for feeding his horse and found that it was missing. He, therefore, set out fn search of the horse and straightaway went to the Haveli of his nephew Muhammad Ayub. He called him aloud and asked him if he had seen the horse. Muhammad Ayub replied that the horse had not come to his Haveli and thereafter both of them went out towards the Behak of the deceased and saw the appellants and the acquitted accused committing the murder of the deceased. In cross‑examination he gave out that his house had a compound‑wall with a gate and the horse had been tied by his son outside tie compound‑wall. He further stated that his house was on the south western side of the village abadi and that of Muhammad Ayub on the Northern side of it avid that the whole village abadi intervened between his house and the house of Muhammad Ayub. He further admitted that his other relatives also resided in the same village. After giving our careful consideration to the evidence of this witness we are of the view that his presence at the spot is doubtful. It is very unusual that a person would tie his horse outside the compound‑wall of his house or would awake at the dead of night to feed his cattle. This witness belongs to village Warah phaphrah. It is in his statement that Dhok Miani and the place of occurrence were towards the north of Warah Phaphra. He did not go to the house of any of his other relatives residing in the same village to enquire about the missing horse but chose to approach Muhammad Ayub whose house was towards the place of occurrence on the northern side of village abadi. We feel that he had invented the story of searching the horse of make himself available near the place of occurrence. He admitted in cross‑examination that he was a tenant of Ali Harder complainant. At the trial, he stated that he did not know if Allah Din appellant had made an application against him, Sher Khan, Muhammad Zairian and Mian Khan sometime before the occurrence alleging that they had killed his camel. He denied having made any such statement before the committing Magistrate. He was confronted with his statement before the committing Magistrate where it was so recorded. In view of these circumstances, we are of the view that he is not a truthful witness and his presence at the spot is extremely doubtful.

12. The next witness Allah Yar (P. W. 14) stated that on the night of occurrence at about Sehriwela he was going to plough his land situate near the place of occurrence when he saw the appellants and the acquitted accused committing the murder of Abdus Salam deceased. The learned Sessions Judge disbelieved this witness in respect of the acquitted accused. He observed that he was not truthful on the participation of Rehm Ali and Saif Ali accused and his statement was not correct in regard to Rehm Ali. In cross‑examination, Allah Yar P. W. admitted that he was employed as a school‑teacher in primary school, Warah Phaphra and that his son Ahmad Yar was also a school‑teacher. He further admitted that his son Abdul ‑‑ Khaliq was a cultivator and he and his sons resided in the same house. One fails to understand why this witness thought of ploughing the land at odd hours of night when one of his sons who was a cultivator by profession, was available for doing this job. The learned Sessions Judge disbelieved him in respect of the acquitted accused on the ground that he made contradictory statements before the committing Magistrate and at the trial and his evidence was in conflict with the medical evidence. At the trial he stated that Abdur Rehman acquitted accused gave one spear blow on the throat of the deceased and the other on his forehead and that both the blows were given with in full force. According to the medical, evidence, there was no injury on the forehead of the deceased. There were seven injuries on his person and the doctor had stated that injuries No. 7 could be caused by a hatchet while injury No. 7 could be caused by a. knife or a balam. This injury was described as "Five small superficial cuts on the lower part of front of neck and upper part of chest". According to the doctor, this injury was superficial and had no length, breadth or width. The doctor further stated that if a balam or a knife Eras struck even with some force the result would not be a superficial cut. In view of this conflict in the statement of the witness and the medical evidence, the learned Sessions Judge acquitted Abdur Rehman accused This reason was also available in respect of Muhammad Ali appellant. At the trial, Allah Yar P. W. stated that the blow given by Muhammad Ali appellant had landed on the neck of the deceased and not on tae forehead. He denied having stated before the Committing Magistrate gnat "the blows of Muhammad Ali hit the deceased on the forehead." He was confronted with his statement before the Committing Magistrate where it was so recorded. On the right side of the neck and on the forehead. The deceased had seven injuries in all and five persons were implicated out of whom three were found innocent by the learned trial Court. The evidence of Allah Yar P. W. has not received credence from the trial Court with regard to the participation of three co‑accused of the appellants, therefore, it cannot be accepted in regard to the two appellants unless corroborated by probabilities and other reliable evidence which is lacking in this case. It is in the statement of the doctor that the stomach of the deceased was healthy and contained about two ounces of semi‑solid diet. In cross‑examination he gave out that "the state of semi‑solid diet would be in the stomach after a few minutes of the intake of the food." It appears that the deceased was done to death soon after he had taken his night meals, and not at Sehriwela as alleged by the prosecution, therefore, the possibility of the murder having been discovered in the morning cannot be excluded in this case.

13. For all the foregoing reasons, we feel inclined to the view that the prosecution has failed to prove its case against the appellants and they are entitled to acquittal. We, therefore, accept this appeal, set aside the C conviction and sentence of the appellants and acquit them of the charge. They shall be set at liberty forthwith if not required to be detained in any other case. The death sentence of Muhammad All appellant is not confirmed. Appeal accepted.