P L D 1967 Karachi 440 (PLP)

AWAN, J.‑This is an appeal under section 417, Cr. P. C. by the State and is directed against the order of acquittal dated 7‑7‑1965, passed by the Sessions Judge. Nawabshah (Mr. Agha Ali Hyder) acquitting the three opponents of an offence punishable under section 302/34 P. P. C. for causing the murders of Mewo and his son Ismail on 3‑7‑64 in the otak of informant Haji Ghulam Muhammad in Deh Khairo Dero Taluka Moro.

2. Relevant facts for the disposal of this appeal are that on 3‑7‑64 these two deceased persons had gone to the village of informant Haji Ghulam Muhammad which is about 7 miles away from their village to inquire about the health of his brother Gulsher who was ailing for about one month prior to the day of incident. They met him at the entrance of his house, inquired about his health and then went back to the otak. It was then about 10 a m. Haji Ghulam Muhammad and his brother Mohib Ali were in the otak along with their guests till mid‑day when these two brothers went to their house which is about 70 paces away from this otak to bring meals for their gusts. While they were returning back along with food they heard cries, threw the food on the way and rushed to the otak. They found the three opponents assaulting Mewo and his son Ismail with hatchets. They tried to intervene but they were given threats. Muhammad Ali, their neighbour, had joined them on the way, and he too had seen this incident. On the alarm raised by them more persons including Allahbachayo, Wali Muhammad and Haji Muhammad had reached the otak but the three opponents ran away before their arrival. Haji Ghulam Muhammad then scent to the village of Mr. Amanullah (he is Chairman of the Union Committee‑and non‑practising lawyer) who resides about one mile away and informed him about this incident. Thereafter Haji Ghulam Muhammad went to Moro Police station which is about 7 miles away, and lodged his report Exh. 10 at 5 p.m.

3. In the meantime the three assailants after leaving the Wardat had reached the village tube-well which is about one block away. Trey started dancing Ho‑Jamalo in the presence of P. W. Khair Muhammad, Pondhi and Mir Muhammad. Opponent Yakhtiar was carrying a broken handle of the hatchet while Umed Ali and Talib had hatchets. On his inquiry Yakhtiar had informed P. W. Khair Muhammad that they were dancing because they had taken revenge by killing Ismail and Mewo in the otak of Haji Ghulam Muhammad. Sometime later Khair Muhammad went to his otak and found 10‑20 persons there. He took his brother P. W. Muhammad Ali out and informed him that while be, Pandhi and Mir Muhammad were at the village tube-well they had found the three opponents dancing Ho‑Jamalo and he was informed that they had taken revenge by killing Mewo and Ismail.

4. Muhammad Tufail, S. H. O. Moro police station, after recording first report, visited the Wardat where he found the two dead bodies of Ismail and Mewo lying in a pool of blood. Mashirnama is Exh.18 while inquest reports are Exhs. 19 and

20. He then made inquiries from Mohibali, Allahbachayo, Haji Wali Muhammad, Muhammad Ali and others. Gulsher was examined by him on the following day. Bhuro mashir produced the three opponents before him at 4 p.m. and each of them produced hatchet and clothes which were found to be stained with blood. These were secured under Mashirnamas Exhs. 22, 23 and

24. Khair Muhammad and some other witnesses were examined by him on 5‑7‑

64. According to the report of the Chemical Examiner (Exh. 30) moat of these articles were found to be stained with human blood. After the com?pletion of these inquiries the three opponents were challaned on 3‑8‑1964.

5. When examined in'‑the two Courts below all the three opponents had pleaded their innocence and had denied all the allegations made against them. Stand taken by them was that they had been falsely implicated due to enmity.

6. The fact that Mewo and his son Ismail were murdered on 3‑7‑64 in the otak of informant Haji Ghulam Muhammad is not open to dispute. Medical evidence shows that Ismail had received 7 injuries which, in the opinion of Dr. Anwarul Haque, were ante‑mortem and appeared to have been caused by a sharp‑cutting weapon like hatchet. Similarly Mewo had received 10 injuries which were ante‑mortem and appeared to have been caused by hatchet. Ocular evidence is also to the effect that they had met their deaths by violence on 3‑7‑

64. This fact is not disputed in defence. We are, therefore, satisfied that Mewo and Ismail had died as a result of injuries received by them on 3‑7‑64.

7. It is evident from the facts stated above that this incident was witnessed by Haji Ghulam Muhammad, Mohib Ali and Muhammad Ali and further that opponent Yakhtiar had made his extra jusicial confession before P. W. Khair Muhammad in the presence of Mir Muhammad and Pandhi. In addition to all this evidence prosecution has also relied upon the evidence, in respect of recoveries of bloodstained hatchets and clothes. Lastly there is the rnotive. The learned Sessions Judge has disbelieved all ibis evidence, rejected the same and passed, the acquittal order.

8. Before we discuss the merits of the case brief reference to general principles which art always taken into consideration while dealing with an acquittal appeal appears necessary. We must keep in mind the basic decision of the Privy Council reported in A I R 1934 P C 227 (2) in this connection. This finding has been followed with approval by our Supreme Court thereafter. In deciding an appeal against acquittal what is to be borne in mind is.‑ (1) The view of the trial Judge as to the credibility of the witnesses. (2) The presumption of innocence in favour of an Accused, a presumption certainly not weakened by the fact that he ha4 been acquitted at his trial‑ (3) Right of an accused person to the benefit of and, doubt. (4) The slowness of appellate Court in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. It has been observed by the Supreme Court in an unreported case (Criminal Appeal No. 27/61) that: "It is true that an acquittal order passed by a trial Judge who has seen the demeanour in the witness box should not be lightly set aside. As bas been said by the Privy Council the presumption of innocence is by no means weakened by the acquittal:"

9. The fact that the Wardat is in the otak of Haji Ghulam Muhammad is not open to dispute. Blood was found there and so also the dead bodies of Mewo and his son Ismail. Wardat is not disputed in defence. This fact shows the two deceased persons had come to the otak on that day when they were murdered. Prosecution case is that the two deceased persons had come to this village on that day to inquire about the health of Gulsher who was lying ill for about one month. This evidence further shows that they had a moment's meeting with Gulsher and thereafter they had waited in the otak of Haji Ghulam Muhammad from 10 a. m. till mid‑day, when they were done to death. First report Exh. 10 recites that these two deceased persons are caste‑fellows of the informant Haji Ghulam Muhammad and they are on friendly terms with Gulsher, and lastly, that they visited each other on ceremonial occasions. But, we find that both Haji Ghulam Muhammad and his brother Mohib Ali have contradicted each other with regard to the place where they had met Gulsher. This is a discrepancy which cannot be ignored. It is therefore not established that deceased had come to enquire about the health of Gulsher. He has not been examined in any Court. Their evidence further shows that the two deceased persons had taken no food till mid‑day when these two brothers went to their house which is about 70 paces away to bring food. Apparently th9re was no necessity for the two brothers to bring this food. P. W. Mohib Ali is shown to be 70 years old. Evidence on record shows that no food or utensils were found near the otak. Mashirnama of Wardat Exh. 18 does not recite that food or utensils were found any where Bhuro mashie Exh. 17 was cross‑examined on this point and he had definitely stated that they had not seen any utensils or bread near about the Wardat. Thus their absence from the otak is not established. Another factor which must be noticed at this stage is that according to the medical evidence large quantity of semi‑digested food was found in the stomachs of these two deceased. Their village is about 7 miles away from the Wardat where they had reached at about 10 a.m. It is not explained how this semi‑digested food was found in their stomach. We also find that these two brothers are not corro?borated by any other evidence. Amanullah who is a non-?practising lawyer and also Chairman of the local Union Committee was informed about this incident even before Haji Ghulam Muhammad had gone to lodge report with police. He was summoned in the trial Court but he was given up. Similarly Allahbachayo, Wali Muhammad and Haji Muhammad who had responded on hearing the alarm have not been examined. Prosecution has also not satisfactorily proved the absence of Haji Ghulam Muhammad and his brother Mohib Ali from the otak when the assault commenced. Three persons, Allahbachayo, Wali Muhammad and Haji Muhammad have not been examined and no explanation is given for it. Similarly Amanullah has not been examined. Thus there remains the evidence of those two brothers only.

10. Next piece of evidence is the extra‑judicial confession made by Yakhtiar before Khair Muhammad. Apparently this story appears to be ridiculous. We cannot believe this for a moment that the three culprits could do this sort of dancing at such a short distance from the Wardat and soon after the incident and give out that they had taken revenge by murdering these two persons. Apart from this improbability in the prose?cution story, we find that this Khair Muhammad had not informed about this confession to any of the 20 persons whom he had found in the otak but had called his brother Muhammad Ali out and informed him only about it. Lastly, the evidence on record shows that he was examined by Police two days after the incident. For all these reasons he was rightly disbelieved by the learned Sessions Judge.

11. Another piece of evidence is the recoveries. It is the case of the prosecution that it was Bhuro who had produced the three persons (opponents) before the police. Admittedly he is neither the nekmard of the opponents nor their Zamindar. There is nothing to suggest that he was asked by the police for assistance in securing the assailants. His evidence shows that be learnt about this incident at about 4 p.m. and then went to the Wardat. Police arrived there at about 6 p m. and thereafter he returned to his village. According to him all the three opponent; appeared before him and he produced them before the police. This story, on the face of it, appears to be fantastic, ridiculous and cannot be believed.

12. Lastly, some motive is alleged by the prosecution. The material and important witnesses is Syed Ali Shah who had intervened to settle the dispute between the parties, but it is strange to find that he has not been examined the prosecution case, on this point, is that opponents had trespassed into the house of Abdullah who is said to be father‑in‑law of P. W. Darya Khan. After alarm was raised by the inmates of the house the three opponents are alleged to have run away. This incident tock place about 5 months before the present incident. It is further alleged that two months earlier the two deceased persons had retaliated by trespassing into the house of opponent Yakhtiar. P. W. Darya Khan Exh. 25 alone has deposed about these facts but his evidence does not show that he had any personal knowledge of it. Apart from this fact the material witnesses Syed Ali Shah and Abdullah have not been examined. For all these reasons this evidence was rightly rejected by the trial Court.

13. It is apparent from all the discussion that the findings given by the trial Court do not appear to be perverse. Prosecu?tion has failed to prove the guilt of these three opponents beyond reasonable doubt.

14. For all these reasons we dismiss the appeal. K.B.A. Appeal dismissed.