1976 P Cr (PLP)

KAMAL MUSTAFA BOKHARY, J.‑Pir Bakhsh (aged 40 years), Ghulam Rasul Kanian (33 years) sons of Dodah, their relations Ghulam Rasul son of Jamal (31 years), Shah Bakhsh (36 years) and Bajhi (36 years) were tried for the murder of Ahmad Bakhsh. Mr. Ghulam Rasul Mahar, Sessions Judge, D. G. Khan convicted them under section 302/149, P. P. C. and sentenced each of them to death subject to confirmation by this Court, vide his judgment and order passed on 16‑9‑1974. All of them were further convicted under section 148, P. P. C. and were sentenced to undergo vigorous imprisonment for two years each. Each of them were also sentenced ‑to pay a fine of Rs. 500 each for compensation to the heirs of the deceased or in default thereof to further undergo R. I. for 6 months. The sentence awarded under section 148, P. P. C. was ordered to run concurrently. The convicts have come up in appeal. This judgment will dispose of the criminal appeal as well as the murder reference. .

2. Briefly, the prosecution case as disclosed in the F. I. R. is that on morning of 6‑8‑1973 Ahmad Bakhsh deceased and Hassan Bakhsh Com plainant P. W. had gone from their village Mohdpur to have a round of their land in the area of mauza Islampur and while they were returning to their house at about degarwela of that day and were passing near the land belonging to Barkat Ali Punjabi in the area of mauza Shahani the appellants came out of ambush, surprised and attacked them. Pir Bakhsh, Shah Bakhsh and Ghulam Rasul son of Jamal were armed with a hatchet each while Ghulam Rasul son of Dodha and Bajhi had a lathi each. The appellants raised a lalkara directed towards Ahmad Bakhsh deceased that he will not be able to escape. Shah Bakhsh appellant delivered the first hatchet blow on the back of the deceased upon which the deceased fell on the ground and the complainant raised hue and cry which attracted Inayat Ali P. W. and Muhammad Ashraf (given up as won over) who witnessed the occurrence. The appellant then kept on causing injuries to the deceased with their respective weapons after the deceased had‑fallen on the ground. Pir Bakhsh appellant threatened the eye‑witnesses who did not intervene due to fear. The appellants then left with their weapons and went towards their houses. Ahmad Bakhsh deceased died of these injuries soon thereafter. Leaving Inayat Ali P. W. and Muhammad Ashraf not examined to guard the dead body, Hassan Bakhsh complainant P. W. then went to the house of Lambardar in Mauza Bokhara and stayed for the night at his house because the Lambardar was not available there and it was on the next day that he left for the Police Station. Dajal and reached their after covering a distance of 12 miles where on his statement the F. I. R. was registered at the police station at 12 noon on 7‑8‑1973. The motive alleged in the F. I. R. is that Ahmad Bakhsh deceased was son of the wife of the complainant from her previous husband and was living with him. One Muhammad Ramzan, who was related with Ahmad Bakhsh deceased, had abducted Mst. Amir, daughter of Pir Bakhsh appel lant and wife of Shah Bakhsh appellant and the appellants declared the deceased and Muhammad Ramzan both as siakar upon which the deceased got restored Mst. Amir and on restoration Mst. Amir was declared as siakar by the appellants about 15 days before the occurrence and thereafter was married to one Nabban son of Jamal in whose house she was living at the time of occurrence. It was stated in the F. I. R. that the deceased and the complainant lived together in Mauza Muhammadpur who had taken some land on tenancy from Ghulam Nabi refugee in the area of Mauza Islampur about one year prior to the occurrence and Pir Bakhsh appellant was also living near that land. It was on account of the grudge of abduction of Mst. Amir by relatives of the deceased that the appellants caused the murder of the deceased in prosecution of their common object. After recording the F. I. R. at the Police Station, Muhammad Anwar (P. W. 1), who was then A. S. I. at Police Station Dajal, visited the spot on 7‑8‑1973 where he prepared injury statement and inquest report of the deceased and sent his dead body to the mortuary for autopsy. He secured blood‑stained earth from the spot, vide memo. Exh. P. G. He also secured last worn clothes of the deceased. He got prepared the site plan. He applied to the Assistant Commissioner, Jampur for getting recorded state ment of the prosecution witnesses on 15‑8‑1973 which application was marked to the Tehsildar, Jampur who eventually recorded the necessary statements under section 164, Cr. P. C. The case was also partly investigated by Muhammad Nawaz Khan (P. W. 12), who was then S. H. O. of the Police Station. He took over investigation of the case from Muhammad Anwar P. W. on 8‑8‑1973. On 12‑8‑1973 he arrested Pir Bakhsh, Shah Bakhsh, Ghulam Rasul Darishak son of Jamal Bajhi and Ghulam Rasul Bazgir alias Kanian son of Dodah appellants. Pir Bakhsh appellant led him to the recovery of blood‑stained hatchet (P. 1) which was secured vide memo. Exh. P. B., Shah Bakhah appellant produced before him a blood‑stained hatchet (P. 2) which was taken into possession, vide memo. Exh. P. C. Ghulam Rasul Darishak son of Jamal also produced a blood‑stained hatchet (P. 3) which was secured vide memo. Exh. P. D. Bajhi appellant also pro duced before him a stick (P. 4) which was secured vide memo. Exh. P. E. ft was not blood‑stained. Ghulam Rasul Bazgir son of Doda appellant produced before him stick (P. 5) which was secured vide memo. Exh. P. F. After completion of investigation police challaned the appellants for trial in Court.

3. Dr. Sher Muhammad Kaleem (P. W. 1), conducted post‑mortem examination on the dead body of Ahmad Bakhsh, aged 26 years, son of Qadir Bakhsh, on 8th August 1973, at 12 noon and found 18 injuries in all on his dead body. All injuries were ante‑mortem. Injuries Nos. 1, 2, 3, 4, 15 and 16 were caused by blunt weapon while injuries Nos, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 were caused by sharp‑edged weapon and; injuries Nos. 17 and 18 were caused by pointed type of weapon like spear. All these injuries Nos. 5, 6, 9, 11 and 12 were grievous in nature and the rest were simple. Those injuries were sufficient to cause death in the ordinary course of nature. In the opinion of the doctor death resulted from shock and haemorrhage due to heart and respiratory failure on account of injuries suffered by the deceased. According to 'the doctor death was immediate and the time between death and post‑mortem was 36 to 48 hours. The doctor described the condition of body and stated that the dead body was swollen, skin was peeled off at various places, body was under going degeration, post‑mortem staining was present at back and buttocks while slight rigor mortis was present in lower limbs. On internal examina tion the doctor found that scalp was injured, brain and membrane were intact and were undergoing lique‑faction, lungs and heart were undergoing degeneration and the abdomen was swollen. The stomach contained a small amount of digested food and four smelling gases, small intestine contained faecal matter and foul smelling gases, large intestine contained faecal matter and foul smelling while the bladder was empty and intact. The organs of generation were swollen and were intact while liver, spleen, kidneys and pancreas were undergoing degeneration. In cross‑examination the doctor deposed that the deceased might have taken his last meals from 3 to 6 hours prior to his death. He admitted correct that injuries Nos. 17 and 18 were most probably caused by a pointed end of a spear. He also admitted it correct that blunt injuries Nos. 1, 2, 3, 4, 15 and 16 might have been caused by the wrong side of hatchet and it was more probable that injury No. 6 was inflicted at the time when the deceased was lying down on the ground.

4. At the trial prosecution examined 12 witnesses in all. Hasan Bakhsh complainant (P. W. 8) and Inayat Ali (P. W. 10) were examined as eve‑witnesses while the third eye‑wit.3ess named Muhammad Ashraf was given up as won over. The motive was also given by the complainant. The recoveries of weapons of offence of the appellants were proved by Ahmad Khan (P. W. 7) and the Investigating Officer, Muhammad Nawaz, S. H. O. (P. W. 12). The recovery of blood‑stained earth from the spot was proved by the same Inayat Ali (P. W. 10) and another Investigating Officer, Muhammad Anwar A. S. I. (P. W. 11). Other formal witnesses were also examined. They all supported the prosecution case. The statement of the doctor before the Committing Magistrate was transferred to the Sessions record. According to report (Exh. P. N.) of the Serologist the earth recovered from the spot and three hatchets of Pir Bakhsh, Shah Bakhsh and Ghulam Rasul son of the Jamal appellants were stained with human blood.

5. The appellants pleaded not guilty to the charge. When examined under section 342, Cr. P. C. they denied the allegation and the recoveries of weapons of offence alleged to have been made at their instance on produced by them and stated that they had been falsely implicated due to the enmity of Hassan Bakhsh and Ahmad Khan P. W. Shah Bakhsh appel lant also stated that Mst. Amir was not his wife at the time of occurrence and was not living with him. Pir Bakhsh appellant stated that his daughter, Mst. Amir had been abducted by one Gulbahar four years before the occurrence and she was then disposed of by the appellant to one Ghulam Nabi. He also placed on record copies of calendars (Exh. D. A., and D. B.) under section 107/151, Cr. P. C. No other evidence was led in defence by any of the appellant.

6. The learned trial Judge believed the‑ ocular evidence in the testimony of Hassan Bakhsh complainant (P. W. 8) and Inayat Ali (P. W. 10) and found that the same was corroborated by the medical evidence. However, he disbelieved the motive alleged by the prosecution and also disbelieved the recoveries of weapons of offence which he. called as fake ones, The learned counsel for the appellants has urged that the ocular evidence is not worthy of reliance and it is belied by the medical evidence. He has submitted that both the eye‑witnesses are related with the deceased and are inimi cal towards the appellants, both of them are chance witnesses, that Inayat Ali P. W. is a close relative of one Barkat Ali and lived with him in the same house and Barkat Ali was a suspect in this very case. He has also submitted that the ocular evidence could not be relied upon without an independent corroboration which was not for the coming and that it was belied by the medical evidence. Finally he has submitted that there was a delay of 20 hours in the F. I. R. which had not been explained satisfactorily and there was a further delay of 20 hours in taking the dead body for post‑mortem examination which makes the prosecution case doubtful. The learned counsel for the State has urged that convictions and sentences of the appellants be maintained for the cogent reasons given by the learned trial Judge. He has submitted that the appellants are inter se related and are also related with the complainant and the prosecution witnesses had no direct enmity with the appellants and that the testimony of the complainant is corroborated by the medical evidence. According to him Inayat Ali (P. W. 10) made concessional statements and suppressed true facts, therefore, those parts of his concessional statements be eliminated from consideration. We have been taken through the entire evidence which we have read and considered in the light of submissions made by the learned counsel for the parties.

7. The prosecution has examined Hassan Bakhsh complainant and Inayat Ali as eye‑witnesses while the 3rd eye‑witness Muhammad Ashraf was given up as won‑over. According to the complainant the deceased was son of the wife from the previous husband locally called pachlag son. The complainant along with the deceased had taken about one square of land on tenancy from Ghulam Nabi refugee about 6 months prior to the occurrence and the tenancy was to last for one year. On the day of occurrence the complainant and the deceased had gone from their village Muhammadpur to have a round of their afore‑mentioned land taken on tenancy from Ghulam Nabi refugee in the area of village Islampur and at about degarwela of the day both of them were returning from there to their houses and when they were in the land belonging to one Inayat Ali in the area of Mauza Shahani the appellants emerged from the nearby sugarcane field and attacked the deceased, The complainant is related with the deceased and also related with Pir Bakhsh and Bajhi appellants but litigation is going on between him and Bajhi appellant about some other land and it is in evidence that the complainant is inimical towards the appellant who are related Inter se. He is a chance witness. No Khasra Girdawari was produc ed to prove that the complainant was a tenant of the land of Ghulam Nabi refugee which was otherwise situated at a distance of 4 miles from the place of residence the complainant village Muhammadpur. He did not know who lead cultivated the land in Mauza Islampur before him and after he stopped cultivating it. According to him jawar was cultivated by the complainant in that land twice but he admitted that there was no entry of cultivation to his name in the Khasra Girdawari admitted in which entry was rather in the name of the landlord. He also admitted in cross‑examination that it was Gaulam Nabi refugee owner of the said land, who paid the abiana for that land. There is no material on record for coming to the conclusion that the complainant or the deceased had cultivation in the land belonging to Ghulam Nabi refugee in the area of village Islampur. The purpose of visit by the complainant was given as taking a round of that land and no other purpose was givers by the complainant which kept him busy on that land from the morning till degarwela of the day. The presence of the complainant at the spot at tine time of occurrence is doubtful. His subsequent conduct further creates suspicion about his presence, After the' occurrence he did not recorded to the Police Station but deposed that he went to house of Lamberdar of Mauza Shahani who lived in village Bokhara and who was not Lambardar of his own village Muhammadpur. He did not find the Lambadar at his house yet stayed at his house in his absence for the reason that the rain had started which obstructed him to proceed to the police station. He deposed that he left the house of Lambardar of village Shahani in Mauza Bokhara on the morning of next day, that is on 7‑8‑1973, and reached the Police Station, Dajal, after covering 12 miles on‑foot where on his statement F. I. R. at 12 noon on 7‑8‑197.5 was lodged. Again it is in evidence that the police reached the spot at degarwela on 7‑8‑1973 yet the post mortem examination was conducted by the doctor at Jampur on 8‑8‑1973 at 12 noon. All these and other circumstances on record confirm that Hassan Bakhsh complainant did not see the occurrence. The only other eye‑witness examined by the prosecution is Inayat Ali (P. W. 10) who supported the prosecution case in his examination‑in‑chief but made more than one con cessions favourable to the appellants in his cross‑examination whereby he became unworthy of any reliance. He is related with Barkat Ali in whose land the occurrence took place and this witness admitted as correct that Barkat Ali was joined in the investigation as a suspect. His testimony does not corroborate that of the complainant. No conviction can be based on the uncorroborated testimony of the solitary eye‑witnesses, Hassan Bakhsh complainant who was related with the deceased, was inimical toward the appellants and whose presence at the spot at the tame of occurrence is doubtful. No other independent corroboration is forthcoming in the case. The learned trial Judge rightly disbelieved the recoveries of weapons affected at the instance of the appellants or produced by them and also rightly discarded the motive alleged by the prosecution and we agree with his finding on both these points. The medical evidence alone cannot form the basis for conviction of the appellants. Even the medical evidence shows that the injuries Nos. 17 and 18 were caused by sharp‑pointed weapon which has not placed in the hands of any of the appellants. The condition of the dead body described by the doctor at the time of post‑marten, examination creates doubt that the deceased did not die at the time alleged by the prosecution and for that reason also it cannot be safely determined that the complainant witnessed the occurrence. The prosecution case is not free from doubt. It is in evidence that the deceased had other enemies and was a thief. It appears that it was a case of an unseen murder and the appellants were implicated on account of suspicion and enmity. On the evidence on record and in the circumstance of the case the prosecution has failed to prove guilt of the appellants beyond reasonable doubt.

8. As a result of above discussion, we accept the appeal to set aside the convictions and sentences passed by the trial Court against all the appellants and acquit them of all charges. The death sentences of the appellants are not confirmed. Appeal allowed.