1983 P Cr (PLP)

5. The medical evidence is given by Dr. Abdul Sattar (P. W. 5) of Pir jo‑Goth. It discloses the following injuries on the person of the deceased Mg. Jindul (1) An incised would 4" x f x 3J cutting soft as well as hard part, starting from back of neck between 6th and 7th cervical vertebra leaving only the skin and faecia intact on front of neck. (2) Incised wound 2" x 1" x cutting the muscles extending from upper part of left shoulder joint of the posterior part. (3) Incised wound 2 " cutting the muscles and metacarpal bone on dorsal aspect of right hand. (4) Incised wound 1 J' x f x scalp deep on right side of parital region of bead.

6. The doctor has expressed his opinion that all the above injuries were ante‑mortem and were caused by sharp‑cutting weapon and injury No. 1 was sufficient in the ordinary course of nature to cause death and the death had resulted from shock and haemorrhage produced by the said injuries. Thus the medical evidence leaves no doubt that deceased Mst. Jindul died of the injuries she had suffered. This is not disputed even by the accused appellants.

7. The next point to be considered is whether accused appellants had inflicted the injuries including the fatal injury on the deceased. On this point the prosecution have produced ocular evidence; motive and recoveries of in criminating articles.

8. According to prosecution case the incident was witnessed by com plainant Ahmed Khan (P. W. 1), Sbahbazdino (P. W. 2) and Gulu (P. W. 3). The complainant has described the incident in the following words "Then I alongwith Mst. Jindul, Shahban and Gulu went to the house of Mst. Jindul in village Kholra. While she was looking around her house and the walls which had been damaged by the rains, the three accused present in Court suddenly appeared there and started abusing Mst. Jindul and all the three accused persons caused hatchet injuries to Mst. Jindul on the neck and head. The accused gave Hakal to us not to interfere otherwise we would also be killed. The accused after causing hatchet injuries to Mst. Jindul ran away from the vardat alongwith hatchets. We found that Mst. Jindul had died on account of sustaining hatchet injuries."

9. P. W. Shahbazdino and Gulu have related the incident more or less in the same Language excepting that Gulu has not mentioned the name of Shahbazdino as being one of the persons present at the time of occurrence. The learned counsel for the accused appellant however, contended that it was an un-witnessed incident. According to him presence of the so‑called eye‑witnesses at the place of occurrence is doubtful and none of them appears to have witnessed the incident. Admittedly Mst. Jindul was murdered in Kholra village. Neither complainant nor Shaban belongs to that village. It is admitted by the complainant that he resides 2 miles away from Kholra village and so far Shaban is concerned his statement shows that he hails from the village which is at a distance of 8J miles from Kholra village. Apart from this, their statements as to how they happened to be present at the vardat at the time of occurrence are at variance. The complainant has stated that when Shaban came to inquire whereabouts of Mst. Jindul he told him that she was untraceable for 2/3 days whereupon he accompanied him to village Kholra. However, the evidence of P. W. Shahan does not show that he told the complainant that the deceased was untraceable. According to him he had told the complainant that she had not returned for 5 ‑to 8 days. The statement of third witness Gulu who is resident of Kholra village is entirely different. Unlike complainant and Shahan he states that Mst. Andul had stayed in his house for 8/9 days. Gulu is admittedly son of Mst. Jindul's sister. If she had over‑stayed in the house of Gulu the com plainant and Shaban had no cause for undue apprehension so that they should set out in her search. Even the deceased's own house is situated in that village and, therefore, she was free to have lived as long as she had wished to live there. Accordingly their, statement that they went to Kholra village in search of. the deceased does not appear to be convincing. Again according to Gulu, Ahmed Khan was alone when he came in search of the deceased and it was after the latter's murder that he (Lulu) sent Nabi Bux to fetch Shaban. . Thus, both the complainant and Shahan stand falsified by Gulu in as much as that they had gone together to Kholra village. It appears either Gulu was not present at the time of occurrence or Shahan had not seen the incident or neither of them was available at the place of occurrence. Even presence of. complainant at the vardat is not free from suspicion. As stated above it is his own admission that he resides 1i miles away from the village of occurrence. Apart from being contradicted by Gulu that Shaban was not with him when he visited Kholra village, his admission that not only it was raining on the day of occurrence but also it had rained two days prior and two days subsequent to the incident, creates serious doubts if he and Shahan had really gone to Kholra village in such weather conditions parti cularly when no urgency was involved. There is nothing to show that they were informed of any untoward incident having occurred in respect of the deceased. The complainant is also contradicted by other witnesses as to when the police arrived at the vardat, the dead body was sent to the hospital and the accused were arrested. According to complainant he brought the police to the vardat in the next morning at breakfast time. In the meantime, he has stated, .the police inspector had despatched some police constables to bring the dead‑body to the hospital. As for accused' arrest he asserted that their arrest was effected on the same night at 10.00 p. m. Contrary to complainant's statement Shahan has deposed that police arrived at the vardat in the evening. Shaban has also contradicted complainant by stating that it was not raining on the‑ day of incident. According to Gulu complainant had not come with the police. Unlike complainant he has stated that dead body was removed from the vardat on the next day of incident. The S. H. O. has however, stated that he went to vardat on the same day and he himself had sent the dead‑body to the medical officer Pir-jo‑goth. It is further noticed that the S. H. O's. statement about arrest of the accused is contrary to that of the complainant. As stated above according to complainant the accused were arrested on the same night of incident whereas S. H. O. has said that their attest was effected on the next day i.e. 16‑7‑1978. The witnesses have also contradicted each other as to timing of the recording of their statements. According to Shahan his statement was recorded in the same evening at the police station when complainant and Gulu were also present. Gulu has however, stated that he was called to vardat in the next day morning. Contradicting both, the S. H. O. has said that he recorded the statements of Shaban as well as Gulu at the vardat on the same day o incident. In view of these discrepancies and contradictions it is highly doubtful if the above witnesses had seen the occurrence. Their status does not appear to be better than that of chance witnesses.

10. Even if it be assumed that above eye‑witnesses had seen the incident, the value of their evidence is seriously impaired by the admission of at least two of them namely complainant and Gulu that the faces of the accused were muffled at the time of the incident and they identified them by voice. Even third witness Shaban admits that he saw the accused from distance of 40/50 paces.

11. Moreover the story put up by the eye‑witnesses that they accompanied Mst. Jindul to her house to enable her to assess the damage caused to her house by the recent rains is far from satisfactory. Since it has come on record that she had stayed in the village for 8‑10 days he had lot of opportunity to see the house earlier at her ease. The fact that she did not bother about the house during her entire stay in the village and showed her anxiety1 only after the witnesses had arrived indicates as if she was waiting for their arrival and wanted to see the house in their presence. This is patently doubtful on the face of it. It is also interesting to note that immediately on her arrival in her house in the company of above witnesses, the accused appellants suddenly appeared on the scene as if they knew the deceased's programme of visiting the house in advance.

12. In this connection the learned counsel for the appellants referred me to the reported case of Khuda Bux v. The State (P L D 1980 Kar. 22). In this case the deceased had gone to visit the shrine. As he failed to return even by night time, his father went out in search for him alongwith two others. At about 6‑30 a.m. when the search party reached near the jungle of the shrine they heard cries of "murder‑murder" whereupon they ran towards the direction of cries and saw the appellant inflicting hatchet blows upon the deceased. Commenting on the evidence it was observed "While it would be natural for his relations to be anxious at his no return and consequently to have organized a search for him it is too much of coincidence to expect that the search party would turn up at the place of murder at the exact time when it was about to be committ ed. It looks as if some super‑natural force was trying to hold the hands of the culprits until the witnesses came in sight. The role of supernatural forces in murder matters is not lightly to be assumed in this mundane world."

13. The above observations are applicable with full force to the pro secution story relating to the murder of deceased Mst. Jindul. In the instant case too the house of the deceased remained closed and deserted for some time in the past because the deceased who was the owner of the house spent most of her time with her brother Shaban living 8 " miles away from the house and rest of the time elsewhere. But on the day of incident as she accompanied by above eye‑witnesses went to the house and opened the same the accused suddenly appeared there and gave her hatchet blows as if they had intuition that she would be arriving at the appointed hour so that they should keep themselves in readiness for launching an attack upon her. It appears the whole story is cooked up and is devoid of any truth.

14. The doubts about the prosecution case grow deeper when it is found that not a single resident of the village where the incident occurred has come forward to support the prosecution story. . The complainant Ahmed Khan has clearly stated in his evidence that although cries were raised but none of the neighbours came to the vardat. It is further admitted by him that adjacent to the house of the deceased situate the houses of different castes including Machhis but none from them responded to the cries. The S. H. O. has also supported this situation by admitting that he had not examined an of the neighbours as their names did not transpire in F. I. R. Thus, it is an admitted position that no independent resident of the locality or even of the village of occurrence has come forward to say anything about the incident either before police or in the Court.

15. Apart from above the eye‑witnesses are related inter se. It is admitted that complainant is married with sister of deceased Mst. Jindul and P. W. Shaban is latter's brother and the deceased was admittedly aunt of P. W. Gulu. As for Muhammad Sidik who has served as Mashir it is admitted that he is Hari of the deceased. As pointed out earlier the appellant have alleged enmity against the complainant. The truth of their allegation is confirmed by complainant himself by his admission that prior to the instant case some other case relating to kidnapping of Mst. Hakim was registered wherein he appeared as complainant and .all the three appellant figured as accused. He further admits that the case is still pending. Beside this he also admits that prior to this case there had been ceases under sec tion 107, Cr. P. C. between him and the accused. Thus, the eye‑witness are not only inter‑related but are also admittedly inimical towards the appellants.

16. The learned counsel for the appellants has placed reliance on Shah Nawaz and 2 others v. The State (P L D 1982 Kar. 281) wherein the eye‑witnesses apart from being related to each other were inimical to accused and were not supported by any other independent witness although the incident bad occurred during broad daylight and about 50/100 persons were attracted to vardat to commo tion and cries. Besides, the testimony of the witnesses was full of contradic tions and discrepancies and the recoveries of blood stained clothes of the accused and alleged crime weapons were found doubtful. In these circum stances the accused were given benefit of doubt and were acquitted. I agree with the learned counsel that the instant case is on all fours with the above reported case.

17. The next case referred to by the learned counsel for appellants is of Umar Hayat v. The State (1971 P Cr. L J 557). In this case even though several persons were examined by Investigation Officer yet not a single witness of the locality was produced in support of the charge. It was held :‑ "It has been held time and again by this Court and the Supreme Court of Pakistan that where there is ocular evidence of interested or inimical witnesses, the evidence on capital charge must come from unimpeach able source or be supported by strong circumstances that might remove any inherent doubt attached to the evidence of such witnesses. In the instant case it is in evidence that there are residential houses and several people were examined by the Investigating Officer but curiously enough not a single witness of the locality was produced to support the charge."

18. In the next case Sikandar v. The State (P L D 1963 S C 17) it was held :‑ "In a case of this nature where natural witnesses were not produced and there is background of enmity the High Court's estimate of the value of these two witnesses appears to us to have been based on correct principle and we accept it."

19. Reliance has also been placed on Najibullah and 2 others v. The State (1973 P Cr. L J 737) wherein it was observed : ‑ "They have also admitted that some persons from the neighbouring houses had come to the scene of occurrence soon afterwards but it is strange that none of them was examined nor even the name of any of them mentioned in the F. I. A. This version of the prosecution case also appears to be doubtful."

20. The learned counsel for the appellants has also referred to Muhammad Sharif v. Attaur Rehman and 3 others (1972 S C M R 144) wherein it was held :‑ "It is the prosecution case that large number of persons had collected at the place of occurrence and they were kept at bay by the accused person firing at them indiscriminately. The failure on the part of the prosecution to produce single disinterested witness is a point that goes against the prosecution. In the absence, therefore, of any corroboration of the evidence of the said eye‑witnesses, it was not safe to place implicit reliance on their evidence."

21. As for motive it would be noted that all what the eye‑witnesses have stated is that there had been dispute between the deceased and the accused over some land. They have not elaborated their statement as to where the land is located and what actually was the bone of contention between the parties. Thus, the motive as deposed to by the eye‑witnesses is too vague to provide any excuse for commission of the crime. No importance can p attached to such evidence. It hardly lends any support to the prosecution case. On motive the learned counsel for the appellant has relied on Habibullah and others v. The State (P L D 1969 S C 127). The Supreme Court was pleased to observe as under :‑ "In ordinary human conduct where killing takes place by design, it is not without a motive, strong or weak. This is not to say that murders are not committed wantonly without any motive, whatsoever. Motiveless murders do occur owing to mad or reckless acts of inhuman nature. Sometimes a motive lies mysteriously bidden in the mind of the killer with no means to dig it out on the surface. But it may be stated as a rule of prudence in judging human conduct that where a motive is alleged by the prosecution which is found to be false, it becomes all the more necessary to scrutinize the credentials of the witnesses who by their evidence direct or indirect speak about the guilt of accused person on the premises of a false motive. In the present case the alleged motive being absent and found to be untrue the Courts have been very much on their guard to accept the story of the prosecution of which the motive was an important constituent and which depended for its acceptance on the statement of a single witness who supported that story including the motive."

22. The last piece of evidence relied upon by the prosecution is recovery of blood‑stained articles from accused. According to S. H. O. the accused were arrested in the otak of Lal Bux. However, Lal Bux has not been produced in evidence to show in what circumstances their arrest was effected in his otak. It is in evidence of S. H. O. that accused appellants in course of their interrogation volunteered to produce the blood‑stained articles and each one of them by turn led the police to his house and produced blood‑stained hatchet, blood‑stained shirt and blood‑stained loin cloth. These recoveries, according to the S. H. O., were made in presence of Mashir Muhammad Sidik and Darya Khan. It would appear that Muhammad Sidik has not supported the prosecution case with regard to the said recoveries. He has denied that any of the blood‑stained articles were produced by the accused. According to him the incriminating articles were secured by the S. H. O. from the otak of Lal Bux and were sealed at the Police Station. Although the mashir was declared hostile by the Law Officer incharge of the prosecution case and with permission of the' Court was cross‑examined he was unable to elicit anything from him to show that he had given obliging statement in favour of the accused/appellants. On the contrary it appears from the evidence of complainant that Muhammad Sidik was hari of the deceased. In view of this relationship it was not expected that he would oblige the accused. Therefore, I see no justification to hold this witness as false witness only because he did not support the prosecution case. The other Mashir Darya Khan was killed after the incident of this case and as such he could not be produced in evidence. In the circumstances of the case pointed out in the foregoing paras. it is not safe to believe the word of S. H. O. in respect of the recoveries of the incriminating articles. Thus, the prosecution have failed to prove the recoveries of the incriminating articles from possession of the accused.

23. The upshot of the above discussion is that the prosecution have miserably failed to bring guilt home to the accused beyond reasonable doubt the benefit of which must go to the accused. Accordingly the appeal was accepted and the accused appellants were acquitted by short order dated 10‑1 I‑1982. The appellants being on bail, their bail bonds were ordered to be cancelled. Appeal accepted.