1976 P Cr (PLP)

MUHAMMAD HALEEM, J.-The State has appealed against the acquittal of Muhammad and Abdul Aziz who were tried for the murder of Gul Hassan under section 302 read with section 34, P. P. C. but acquitted by the Sessions Judge, Sanghar vide judgment dated 2nd October 1972. According to the prosecution case the incident occurred in front of the hotel of Fateh Muhammad near Sarhari Railway Station at 4-45 p. m. on 22nd of June 1970. Some time earlier the father of the deceased had brought meals for the deceased who worked as cooly at the Railway Station. The deceased told him to wait at the hotel of Muhammad Altaf where he would come after finishing his work. The deceased arrived there at about 4-30 p. m. and took his meals. He then left the hotel to return to his work at the Railway Station and as he got out he was belaboured by the respondents who caused him hatchet blows as a result of which the deceased fell down. Safar, Muhammad Altaf, Fateh Muhammad, Abdul Karim and Moula Bux, who were at the hotel gave hakals and tried to catch them but they managed to escape. The motive was said to be that about 6 or 7 days prior to the incident the deceased had given blows to their uncle Ghulam Hussan and it was due to that grievance that they had caused hatchet blows to him. Safar hastened to O. P. Sarhari where he lodged the first information report at 5 p. m. which was recorded in the station diary by Ghulam Muhammad A. S. I. and later sent to Police Station Shahpur Chakar for being incorporated in the section 154 book.

2. The A. S. I. then repaired to the vardat where he saw the deceased lying unconscious on the road between the hotels of Muhammad Altaf and Muhammad Hassan. He secured blood-stained earth from there vide Exh. ! 7 and sent the deceased, who was unconscious, to the District Hospital Sanghar for examination and treatment. He then recorded the statements of Muhammad Altaf, Fateh Muhammad, Abdul Karim, Moula Bux, Zardad and others. On the next day he arrested the respondents. From tire person of Muhammad, he secured blood-stained shirt and a loin cloth vide mashirnama Exh.

12. He also produced a blood-stained hatchet which was lying under a hedge near his house; and it was secured vide mashirnama, Exh.

13. From the person of Abdul Aziz a blood-stained shirt and a loin cloth was secured vide mashirnama Exh.

14. He also produced a hatchet which was lying under the bags in his house and it was secured vide mashirnama Exh.

15. The earth and the incriminating articles were sent for chemical analysis which were all reported to be stained with human blood.

3. The deceased expired at 10-40 p. m. at the hospital. Dr. Faiz Muhammad performed autopsy on the dead body and noticed the following injuries: (1) Incised wound 4" x " x brain deep on the left parietal region. (2) Incised wound x 1/6" x skin deep at the manubrium sterni. (3) Incised wound 3" x 1/6" x bone deep at the centre of sterni. (4) Incised wound " x 1/5" x muscle deep at right inguinal region. In his opinion injury No. 1 was sufficient to cause death in the ordinary course of nature while the others were simple in nature and that they were caused by a sharp cutting weapon such as hatchet.

4. The respondents denied the prosecution case and so also the recoveries at their instance. Respondent Muhammad pleaded that the witnesses are "inter-related" and "inter-connected" and that he was falsely implicated in the case at the instance of Ramzan and Muhammad Alam. Against Muhammad Alam he also alleged that he wanted to grab his share of the land. Abdul Aziz pleaded that in the dispute between Muhammad Alam and Muhammad, he was on the side of Muhammad and it was, therefore, that he was involved in the crime.

5. The prosecution case rests on the ocular testimony of Safar, Muhammad Altaf, and Fateh Muhammad and the recoveries of incriminating articles at the instance of the respondents. As for Safar, he is the father of the deceased but the other two witnesses are hotel keepers and no relationship has come on record or any enmity to make them interested. They are, therefore, natural and disinterested witnesses. The incident occurred in the broad day light very close to the hotel of Fateh Muhammad within the view of the three witnesses and the report of the incident was lodged within 15 minutes, in which the names of the respondents were disclosed. Hardly there was any time for consultation or manipulation. It has also come on record that the respondents and the deceased are related. Coming to the evidence of Safar, he has fully supported the prosecution case. At the trial he, however, admitted in cross-examination that his son had compromised with Ghulam Hussain. Be that as it may, nothing will turn on this admission, for motive, is always speculative and in spite of the compromise, the respondents could have harboured a grudge. Again, in cross-examination, he has admitted that the F. I. R. was written at the vardat which could be out of some confusion, and we do not see what can emerge from this admission when it is an admitted fact that it was only after the report was recorded that the A. S. I. went to the vardat to investigate the case. At the same time Ghulam Muhammad A. S. I. has also denied having recorded the F. I. R. It is no body's case that the police came on its own and therefore this admission appears to us to be absurd on the face of it and in no manner helps the two respondents. Again it was suggested to him that he had given out the name of the respondents at the instance of Muhammad Alain with whom respondent Muhammad had a dispute bait while admitting the presence of Muhammad Alam, he denied having given the names of the respondents at his instance. We fail to see why there world be any suspicion in the mind of Safar it he knew the respondents land saw them committing murder in broad day light and ought it be said that this suggestion was made merely to give air impression that he was tenable to see the incident so as to have identified the respondents. This suggestion, in our view, carries no value in this context we would also like to refer to the evidence of Muhammad Alam in his cross-examination he admitted that Safar had consulted him before lodging the report and that he bad given out the names of the respondents on suspicion as he did not see the respondents committing the murder. This admission on the face of it is absurd for Muhammad Alam was not in the picture when the incident occurred or when the report was lodged. Therefore, Safar could not have consulted him in regard to the names of the persons who could be implicated on suspicion. On the face of it Muhammad Alam has obliged the respondents and his admission has no substance. At the same time we may point out that he has also admitted enmity with Muhammad over two acres of land. While on the one hand he is trying to show that he is not on good terms with the respondents who are his relations and on the other he is obliging them which conduct on the face of it is highly suspicious and is not worthy of credit. There is no other weakness in the evidence of Safar and we have no reason to doubt his presence. We would accordingly accept his evidence.

6. The next eyewitness is Muhammad Altaf. He is a hotel keeper and his hotel is opposite to that of Fateh Muhammad near the Railway Station. He has fully supported the prosecution case and there is no feature in his evidence which could render his presence or identity of the respondents doubtful. Again nothing was suggested to him to show enmity towards the respondents. His name also transpires in the F.I. R. We have no reason to doubt his evidence,. The third eyewitness is Fateh Muhammad. He is a hotel keeper. His name also transpires in the F. I. R. and he has supported the prosecution case. There is nothing in his examination‑in‑chief to show that he did not know the respondents. However, in his cross‑examination a suggestion was put to him to show that he was called to the Police Station the next day for picking out the respondents with a view to give an impression that they were not known to him personally. Factually it was not so as the A. S. I. had not called him and possibly because such an admission was made to weaken his evidence qua the identity of the respondents, but we do not see why such a course would have been adopted if he knew the respondents. However, nothing will turn on such innocuous admission. His evidence fully implicates both the respondents.

7. As for the recoveries of the incriminating articles, Muhammad Alam has supported the recoveries but again obliged the respondents by saying that the incriminating articles were not blood‑stained. He, however, admitted that the mashirnama was signed by him and it was correct. The A. S. I. who was responsible for effecting recoveries, has stated that the incriminating articles were bloodstained and we have no reason to doubt that they were not so. From the stand of the mashir in his cross‑examination, the admission as to the absence of the blood marks is not without reason, for there is ample material to hold that he was bent on to oblige the respondents by making baseless admissions. There is no other weakness in the evidence of recoveries of the incriminating articles, which we are inclined to accept. The incrimina ting articles were bloodstained as seas reported by the chemical analyser. The incriminating articles duly corroborate the participation of the two res pondents in the crime. Accordingly, the prosecution case is proved against them beyond reasonable doubt.

8. The trial Court has not correctly appraised the ocular testimony. It has described the two independent witnesses, Muhammad Altaf and Fateh Muhammad as partial, for which there is no justification on record. There is no reason for rejecting the evidence of Safar and for giving any weight to his admissions which have no realistic basis. As for the recoveries, the trial Court has not accepted them. While dealing with the evidence of the mashir, it has held that "he has refused to admit the contents of the various mashir namas that he had signed", which is incorrect. While deposing to the recoveries, he has merely stated that the articles were not bloodstained. He admits having signed the mashirnama and also the fact that they are correct but states that they were not read over to him. This witness, as observed earlier had obliged the respondents in many ways and this was another obliging admission. In our view, there is, therefore, no weakness in the evidence of recoveries of the incriminating articles, and the trial Court has taken an unreasonable view on the evidence which has led to miscarriage of justice.

9. We would accordingly reverse the acquittal and convict them under section 302 read with section 34, P. P. C. As for the sentence, we are reluctant to impose the death penalty for the reason that only one injury was fatal while the three others were simple in nature and it is not known as to who caused it. We would, therefore, sentence them to transportation for life and to pay a fine of Rs. 500 and or in default to further suffer six months rigorous imprisonment. The fine, if realised, will he paid to the complainant Safar. While accepting the State's appeal we would direct that the respondents should be taken into custody and remanded to jail for serving the sentence. Appeal allowed.