1988 P Cr (PLP)

(4) Contusion 4" x 1 " on the back part of left knee joint. (5) Two contused wounds 1/2" x 1/4", one on the outer part of left lower leg just close to outer malleolous and the other on the lower medial part of the same leg measuring about the same 'wound. There was dislocation of the ankle joint and fracture of bone underneath. (6) A contusion 1 " x 1 on the back of lower right thigh. (7) A contusion 4 " x 1" on the back upper part of right leg just close to the knee joint. (8) A contusion 4 " x 1 " on the outer part of lower side of right leg, haemotoma around it. There was fracture of both the ' bones of leg. (9) Contusion 6" x 3" on the i r part close to the left elbow joint. (10) Multiple scratches in an area of 3" x 2 " on the dorsal side of left hand. (11) Contusion 5 " x 1" on front of right thigh lower part. On dissection three ribs of the right side and two ribs of the left side were found fractured. Pleaura of lower lobe of right lung was ruptured at two places. Stomach was full of semi‑digested food, slight liquid in small intestines and faecal matter in large intestines was found present and the bladder was full of urine. In the opinion of the doctor, death occurred due to fracture of ribs of both sides causing haemorrhage and shock. Injury No.1 was sufficient to cause death in the ordinary course of nature. Injuries Nos. 5 and 8 were declared as grievous and the rest were simple. Duration between injuries and death was 1 to 3 hours.

6. In all nine witnesses were examined at the trial. Mst. Mukhtaran P.W. was given up by the prosecution but she was examined as C.W.

1. The prosecution mainly relied on ocular testimony furnished by first informant Muzaffar (P.W. 6), Umar Hayat (P.W. 7) and Mst. Mukhtaran (C.W. 1), niece of the deceased besides medical evidence given by Dr. Muhammad Mazhar Khan (P.W.3) who opined that the deceased had died of violence. The appellants in their statements recorded under section 342, Cr.P.C., denied the allegations and professed innocence. They did not produce any witness in defence.

7. Learned trial Court believing the ocular testimony and the evidence of motive held the appellants guilty of committing offences of rioting and murder and sentenced them was indicated above but acquitted Iqbal and Muhammad Khan as the role attributed to them as minimal and also because they had no motive against the deceased being not related to Noora who was allegedly slapped by the deceased before the occurrence.

8. Learned counsel, appearing on behalf of the appellants has argued that presence of innumerable injuries on the person of the deceased shows that the assailants accomplished their job at leisure which means that nobody was present at or around the place of occurrence at the relevant time. Further argued that the contents of stomach show that deceased was done to death late at night and not at evening time, as stated by the eye‑witnesses and that this fact stands fortified by statement Ex.DA of Mst. Mukhtaran (C.W. 1) which she had made during the investigation, saying that the occurrence had taken place at 11 p.m. Furthermore, the F.I.R. was delayed for more than 12 hours without any explanation. To the contrary, learned State counsel has supported the conviction and sentence recorded by the trial Court.

9. Ocular testimony comprises Muzaffar, complainant (P.W.6) brother of the deceased, Mst. Mukhtaran (C.W.1) his niece and Umar Hayat his partyman. They have supported the prosecution. Muzaffar (P.W.6) when cross‑examined denied that the deceased was a "Badmash". However, he admitted that he was convicted for having assaulted Allah Bakhsh Patwari; that he was challaned for making assault on Ghulam Rasool, and that he was injured by Awans of village Barren.

10. Umar Hayat (P.W.7), the other eye‑witness, admittedly resided in Wadhuwala, at a distance of 4 Kos (6 miles) from the place of occurrence. He happened to pass near the place of occurrence while going to the house of his sister in Thatti Jalal. He stated that he had no specific work for which he was going to his sister's house on that day, but it was just by chance. He admitted that he alongwith with the deceased and 10 others was challaned for causing injuries to Ghulam Rasool. He denied the suggestion that he was deposing falsely because of his friendship with the deceased.

11. Mst. Mukhtaran (C.W.1) stated that she was staying with her "Phuphi" Mst. Sardaran. On the fateful day, at Digerwela, the deceased and Muzaffar complainant came to the house of her "Phuphi" and took her alongwith them. It was sunset time when they left for their house. They were still two Killas away from the "Jhuggi" of Shera when the five appellants and the acquitted accused suddenly confronted them and attacked the deceased. Iqbal and Muhammad Khan (since acquitted) fell him down and the appellants dealt him Dang blows. She denied having appeared before the inspector of police on 21‑3‑1980 and made statement Ex.DA stating that the deceased had gone to house of Sultan Mahmood Basika on the day of occurrence at a distance of two miles and while returning from at 11 p.m., he was attacked at a deserted place, but it found so recorded in Ex.DA.

12. I have gone through the testimony of the eye‑witnesses carefully. Of course, Muzaffar (P.W.6) and Mst. Mukhtaran (C.W.1) are close relatives of the deceased while Umar Hayat (P.W.7) is his partyman. Relationship alone is not sufficient to discard testimony of a witness but I find that evidence of these witnesses conflicts with medical evidence. The doctor who performed post‑mortem examination found deceased's stomach full of semi‑digested food. According to him, the deceased had taken his last meals about 1‑3 hours before his death. Muzaffar (P.W.6) stated that he alongwith the deceased visited the house of his sister Mst. Sardaran at "Digerwela" for bringing their niece Mat. Mukhtaran (C.W.1) where Mat. Sardaran had served them with 'Kheer'. It is note‑worthy that this part of the story does not find mention in the F.I.R. It was not their case during investigation either. Therefore, the necessary and legitimate inference would be that they had introduced the story of taking Kheer at Degarwela in the house of Mst. Sardaran in order to brig their evidence in line with the medical evidence. This being a deliberate and dishonest attempt on their part has rendered their testimony unworthy of credit. It is well‑settled that for basing conviction on murder charge the evidence must come from independent source and should be of unimpeachable character. The evidence of eye‑witnesses in this case does not in my view conform to the required standard.

13. Furthermore the delay of about more than 12 hours in lodging the FIR in this case is also significant. The eye‑witnesses are closely connected with the deceased, therefore, had they been present at the time of occurrence then the report would have been lodged with the police much earlier than at 6 a.m. the following morning particularly because mechanised transport of deceased's "Bhanja" was available at hand. It is in the evidence that the deceased was a quarrelsome person having enmity with various persons and tribes. He was convicted for causing injuries to certain persons for more than once but was subsequently acquitted on appeal obviously causing annoyance to his opponents. No blood from the alleged place of occurrence was also found. The motive alleged against the appellant is also trivial in nature. The Lathis allegedly recovered from the appellants were also not blood‑stained hence they are of no consequence. Above all, none from the Dhari of Shera situated near the place of occurrence was attracted to the scene and witnessed the occurrence. All these factors, put together indicate that the deceased having been found alone, in the dark hours of the night by his enemies was subjected to prolonged beating and was killed and that his relatives came to know of his death many hours afterward and then the instant case after deliberations was lodged the next day.

14. For what has been stated above I find that the evidence on record being not reliable cannot be made basis for convicting the appellant on a capital charge. In the result this appeal is allowed, conviction and sentence of appellants is hereby set aside and they are acquitted. The appellants are on bail. They are discharged of their bail bonds. S.G.D./S‑225/L Appeal allowed.