1971 PLP 65 (SCMR)

MUHAMMAD YAQUB ALI, J.‑This petition calls in question the order of the High Court by which the convictions and sen tences of transportation for life awarded to the six respondents under section 302/149, P. P. C. by the Additional Sessions Judge, Khairpur, were, on appeal, set aside by the High Court. It was alleged that on 26‑5‑1966 Sahibdino, deceased, was at about 4 p.m. returning to his village after paying a visit to Wadero Ali Murad, P. W. 10, when the respondents armed with hatchets and lathis attacked him near his house and after causing him several injuries dragged him for a distance of two furlongs to a nearby forest and left him there. Allahdino and Allahwarayo, two wajtakkar witnesses, saw the occurrence and informed Abdul Wahab, P. W. petitioner herein, brother of the deceased who lodged a report with the Police at a distance of only six miles as late as at 3‑30 a.m. on the following morning. The deceased was found in an injured condition by the Incharge Police, Outpost Agra, on the next day and sent to the Civil Hospital where his dying declaration was recorded in the presence of Abdul Wahab. While the remaining respondents put up a plea of denial, Ismail, respondent, alleged that the deceased had come to the forest to steal his goats whereupon he challenged the deceased who, in return, threatened to kill him with the hatchet he was carrying. Apprehending danger to his life, he gave the deceased, a hatchet blow which struck him on the arm. Though the trial Judge relied on the oral account given by the two eye‑witnesses, the learned Judges in the High Court on a proper treatment of their testimony considered it of a doubtful nature. They also did not rely on the dying declaration as the averment made in it that all the six persons had caused him injuries was belied by the medical evidence which disclosed that the deceased had suffered only a hatchet blow and five lacerations. If three persons with hatchets and the other three with lathis had given him a concerted beating as alleged in the dying declaration, they would not have left him alive. The F. I. R. was also belated for which no explanation was given by Wahab. As to the recovery of a blood‑stained hatchet at the instance of Ismail, respondent, the learned Judges con sidered it consistent with the plea of self‑defence which found support from the evidence. Ali Murad, P. W. 10, deposed that a hatchet was found lying near the deceased in the forest. The presence of this hatchet was completely suppressed by Wahab as well as by the Investigating Officer. The learned Advocate‑General who appears for the State opposes the prayer for leave to appeal. He points out more than one circumstance which belie the prosecution case. We are agreement with the learned counsel. Firstly, if the two eye witnesses were present they would have informed Wahab that the accused person had dragged his brother to the forest and he would have, with the help of his relatives, taken him to the hospital a once rather than to leave him unattended in the forest and go to the police post for lodging the report which too was, as seen, a belated act. Secondly, the object of dragging the deceased to the forest after causing him injuries could be none other than making the evidence of the crime to disappear. However, he was left behind without causing him any more injuries to depose against his assailants which militates against the prosecution case. As pointed out by the Advocate‑General it was strange that no one other than the two wajtakkar witnesses saw the occurrence though the deceased was attacked near his house. It appears that none had seen the incident and it was late at night that Wahab, P. W. and others discovered the deceased lying in an injured condition in the forest. The respondents were named on account of the admitted enmity between the parties. This view is consistent with the delay in the lodging of the F. I. R. The order of acquittal is, in the circumstances of the case, thus quite well founded. The petition for leave to appeal is dis missed. Petition dismissed.