1982 P Cr (PLP)

P. W. 4 : Dildar Bakhsh Patwari. He prepared the site plan Exh. p. C. and Exh. P. C./I. P. W. 5 : Allah Wasaya. He identified the dead body. P. W. 6 : Sultan Muhammad. He supported the recoveries of chhuras P. 6 and P. 7, from the appellants. P. W. 7 ; Wahid Bakhsh son of Lal, P. W. 8 Wahid Bakhsh son of Mithu and P. W. 9, Mst. Aziman are the eye‑witnesses. P. W. 10 : Muhammad Shafz. He investigated the case.

8. The appellants in their statements, recorded under section 342, Cr. P. C., denied all the incriminating circumstances. They stated that they have been involved on account of enmity. They produced Rafi Ahmad Pervez S. P. as D. W. 1 who stated that he found Wahid Bakhsh and Ashiq co‑accused innocent in his investigation.

9. In order to bring home the guilt to the appellants, the prosecution relied upon the following categories of evidence (1) Ocular (i) Supported by Wahid Bakhsh P. W. 7 brother of the deceased. (ii) Wahid Bakhsh son of Mithu P. W.

8. He is brother of Mst. Aziman P. W. 9. (iii) P. W. 9 Mst. Aziman. She is the wife of Lal brother of the deceased. It is to be noted that the two witnesses namely, Ahmad Bakhsh brother of the deceased and Mst. Hayatan a relative of the deceased have been given up. (2) Recovery (i) From Muhammad appellant On 29th May, 1976, be got recovered blood‑stained chhura P. 6 from his kotha which was taken into possession vide memo. Exh. P. F. supported by Sultan Muhammad P. W. 6. , (ii) From Allah Ditta appellant He on the same day and before the same witnesses got recovered blood‑stained chhurra P. 7 which was taken into possession vide memo. Exh. P: G.

10. The learned counsel for the appellants contends that the prosecu tion has failed to prove its case beyond reasonable doubts ; that the ocular evidence is not dependable ; that the recoveries are fake. On the other hand, the learned counsel for the State has defended the judgment of the learned trial Court. He submits that there is sufficient reliable evidence to connect the accused appellants with the commission of an offence punish able under section 302, P. P. C.

11. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record carefully. I find that the ocular evidence is the cornerstone of the prosecution case. The eye witnesses had implicated four persons in this case. Wahid Bakhsh and his son Ashiq, the two co‑accused were attributed the part that they .had caught hold of the deceased at the time of occurrence to facilitate his murder. They however, have been acquitted. This would show that they at least are not wholly dependable witnesses. Therefore, their evidence .is to be appreciated with care and caution. Mst. Aziman P. W. 9, had not seen the infliction of the injuries by the appellants. She stated that she had seen the appellants running away but her statement Exh. D. A. recorded under section 161, Cr. P. C. shows that she did not make such statement before the police and at the trial she improved upon her earlier statement. P. W. 8 Wahid Bakhsh. He fails to inspire confidence in a reasonable and prudent mind. He is admittedly related to the deceased. He lives at a distance of 4 squares from the place of occurrence. The reason given by him for his stay at night in the house of the deceased does not appeal to reasons. He is not a natural witness. It would, therefore, be safe to exclude his evidence from consideration. P. W. 7 Wabid Bakhsh son of Lal. So far as this witness is concerned, no implicit reliance can be placed on him. He is not injured. Therefore, there is no circumstantial guarantee of his presence at the spot at the time of occurrence. He implicated 4 persons out of whom two have been acquitted. His evidence is not in conformity with the medical evidence. According to him Allah Ditta appellant was present on the southern side of the cot while Muhammad appellant was present on its northern side and they were inflicting chhura blows to the deceased. The injury statement and the inquest report show, that there were two injuries and (DONN ZAGHAM MILEY HOEY THEY). There were two cuts on the pillow on its one side and both cuts were in one line. Whereas, Dr. Mian Muhammad Afzal P. W. 1 had stated that there were three injuries which were close to each other and in one line on the neck. The doctor opined that it was possible that all the three injuries were caused to the deceased by the same hand and with same weapon. According to him out of three injuries, one was fatal and the two simple as follows (1) A cut wound 1" x x near the left end of injury No. 1. (2) A cut wound x x below injury No.

2. It appears to be doubtful whether these trivial injuries were, in fact, caused by the enemy band. It is not probable that two persons standing on different sides of the cot of the deceased could have inflicted the injuries as found on the person of the deceased. It is pertinent to note that the pillow is not cut on the other side. In these reasons it can be safely observed that the medical evidence is not in conformity with the ocular account and, therefore, it is doubtful whether this witness was present and bad actually seen the occurrence. The claim of this witness that he saw the actual infliction of the blows cannot be believed in the circumstances of this case, because the time spent in the infliction of three injuries by the two appellants would have been so short that the injuries might have been inflicted before the arrival of this witness. The fatal injury being on the neck and inflicted on the deceased when he was asleep, it is also doubtful whether the deceased would have raised any shriek sufficient to awaken the witnesses. Wahid Bakhsh P. W. 8 deposed that when be got up two blows were given in his presence but there was no shriek. This would show that the shriek if any was raised on the infliction of the first blow and the doctor has stated that on receipt of this injury the deceased if he was asleep it was difficult for him to raise cry and even if he remained alive for some time after receiving this injury he could not raise alarm. This witness stated that Amir Bakhsh his nephew had brought a suit for the restitution of conjugal rights against Mst. Zohra, the sister‑in‑law of the appellants and that he bad appeared as a witness in that suit on behalf of Amir Bakhsh.

12. For these reasons I am of the opinion that the conviction cannot be safely sustained on the statement of this witness unless it is corroborated. Now I take up the recoveries. The investigating officer says that the appellants were arrested on 25th May, 1976, but the recoveries were effected after four days of their arrest, i. e. 29th May, 1976. Pehlwan, a witness of the recovery was given up. Sultan Mahmood Lamberdar P. W. 6, is closely related to the complainant party because Faiz Bakhsh nephew of Wahid Bakhsh, complainant, is the son‑in‑law of this witness. His father is also maternal‑uncle of Allah Ditta appellant the husband of the sister of his son‑in‑law Faiz Bux. He admitted that he accompanied the police from the Police Station to the place of recovery. He stated "I had gone to the police for some work on that day which I cannot now detail. I am a Lamberdar and usually go to the police station for different works of ilaqa". Since this witness is closely related to the complainant party and accompanied the police from the Police Station for effecting the recoveries it would be safe to discard his evidence. The evidence of the " recovery, thus, having been discarded cannot be used to corroborate the ocular evidence. The upshot of the above discussion is that there are no satisfac tory bases whatsoever for upholding the conviction of the appellants. They are given the benefit of doubt and are acquitted. They shall be released forthwith if not required in any other case. The appeal is accepted. Appeal allowed.