1999 PLP 428 (MLD)

(12) Multiple abrasion 9 c.m. x 6 c.m. on back of left elbow joint. (13) Multiple bruises 8 x 4 c.m. on left lower forearm. (14) A lacerated wound .8 c.m. x .4 c.m. on back of left ring finger. (15) Multiple bruises with swelling 18 c.m. x 19 c.m. on outer front part of left thigh. (16) Multiple abrasions 12 x 6 c.m. in front of left knee joint. (17) Multiple bruises 6 c.m. x 2 c.m. in front and middle part of left leg. According to the doctor, the probable time that lapsed between the receipt of injuries and death was 12 to 16. hours

5. One of the P.Ws. mentioned in the F.I.R. Muhammad Ali son of Haider Ali was given up as having been won over and constable Muhammad Ameen was given up as being unnecessary.

6. In his statement under section 342, CrY.C., accused Muhammad Amin denied having given beating to Hanif or having led to the recovery of electric wire. Explaining his involvement in this case, he stated that it was due to enmity as prior to this occurrence he had made an application against the deceased for registration of case of theft and on that basis he was arrested and tortured by the police as he had remained under interrogation for about a fortnight. He, however, did not opt to appear as his own witness under section 340(2), Cr.P.C. He further said that he was innocent and would lead evidence in defence, but later on he made a statement on 20-2-1994 that he did not wish to lead any evidence in his defence.

7. Learned counsel for the, appellant argued that the learned trial Judge has convicted the appellant on the basis of same evidence on the basis of which he acquitted three other accused; secondly, the statement of the father of the deceased and his uncle cannot be believed--they being interested persons thirdly, the appellant could not be accused of murder as death of Hanif occurred in the house of the complainant and not in the house of the accused, that the evidence of the P. Ws. is that of interested persons and as such should not have been considered. He, therefore, prayed for acquittal of the accused.

8. Learned counsel for the State stated that the F.I.R. has been corroborated by the P.Ws. as such the appellant was rightly convicted.

9. It is manifest that there are no eye-witnesses to the infliction of injuries on the person of the deceased by the accused mentioned in the F.I.R. The first time when the P.Ws. came to know of the deceased having been injured was when the accused allegedly themselves informed the P.Ws. that Hanif was lying in their house and he be taken. If the statement of the P.Ws. that they went to the house of the accused and brought the injured to their house, is correct, important point to ponder would be whether he was in his senses to make a statement and if that was so whether or not his statement ought to have been got recorded and report to the police ought to have been made immediately thereafter-the complainant party having been informed at 6.00 a.m. of the injured having been given a thrashing. Yet another question is whether the testimony of the P.Ws. that the accused was dragged inside their house while he was on his way to irrigate the fields, was correct and whether it was a normal and natural route for the accused to go to his from? Yet another point to be considered is as to why no medical aid was provided to the injured from 6.00 a.m. to 10.00, a.m. and lastly it was to be seen whether the prosecution has proved by giving satisfactory evidence that the deceased Hanif was intimated to have been injured by the accused themselves to the complainant party at 6.00 a.m., and factually he was removed from the house of the accused to the house of the complainant group (the dead body was not taken to the house of the father of the deceased rather it was taken to the house of Sadiq P.W.).

10. After minutely going through the record of this case, it becomes manifest that: -- (i) in the F.I.R. four accused were nominated; (ii) the learned trial Judge held three of the said accused innocent; (iii) the learned trial Judge acquitted three of the accused on the basis of the same evidence on the basis of which appellant was convicted.

11. The complainant-father of the deceased (P:W.1) even though supported the F.I.R. Exh.PA, yet his testimony does not inspire confidence if seen in the light of the cross-examination. For instance, in the examination-in-chief he said that his son Hanif was coming back from the lands at about 6.00 p.m., to take meal and then left again for irrigating his fields at 10.00 p.m. This was not so recorded in the F.I.R. Again the factum of dragging of the deceased by the accused to their house was not found recorded in the F.I.R. Third important fact that the deceased had told on his way to home that he was dragged by the accused, was also not found recorded. Another important fact admitted by the P.W. was that the house of the accused was situated on the eastern side of the street and the tube-well of Muhammad Ali (where he had to go for irrigation purposes) was towards western side. The second P.W. Muhammad Sadiq Uncle of the deceased also made improvements as his cross-examination reveals. An important fact he admitted in his cross-examination was that Hanif deceased was found senseless when they reached the house of Amin accused. He also had admitted that while going from the house of Muhammad Ali P.W. to Haji Muhammad Ali P.W., the house of the accused does not fall on the way. Yet another fact admitted by this P.W. was that the house of Amin accused was surrounded by Abadi. What was the reason in intimating that the deceased had come from his fields at 6.00 p.m., is beyond one's comprehension as allegedly he had left the house again at 10.00 p.m., for irrigating the fields and it was then that he was allegedly given beating. As a matter of fact, if one goes through the testimony of the doctor, it would reveal that the time that lapsed according to the doctor between the 'receipt of injuries and the death was between 12 to 16 hours. The death occurred at about 10.00 a.m., and if calculated on the basis that 12 hours time had lapsed then the injuries might have been caused at about 10.00 p.m., on the preceding day and if calculated on the basis of 16 hours lapse then the injuries might have been caused at 6.00 p.m., on the preceding day. The question is that if the accused wanted to kill the deceased why should they keep him alive for 8 hours in their house as, as per P. Ws. , he was taken and dragged to their house at 10.00 p.m., and the accused informed the complainant party about his having been given thrashing at 6.00 a.m., on the following morning. If they had intended to kill and nobody knew of his dragging etc., then nobody could stop the accused from killing the deceased. Another significant aspect is that if they had given him thrashing at 10.00 p.m., and they intended to inform the complainant party of this fact of beating why should they keep mum for 8 hours and not inform the complainant party somewhere during the night immediately after giving the beating and should keep him in injured condition for 8 hours in their house. The accused had taken the plea that application was made against the deceased to the police by the appellant regarding to theft and he was arrested and remained under investigation for about a. fortnight and also was tortured, that on account of that application and torture, the accused were implicated falsely. It is significant to note that P.Ws. 1 and 2 both admitted that the deceased was arrested in a theft case about 15 days prior to this occurrence and he was given beating by the police although P. W. 1 stated that he did not know whether the deceased was vomitting blood due to the beating given by the police. P.W.2 also admitted this fact in cross-examination. It is very interesting to observe that the Investigating Officer of this case did not admit this fact and he denied having arrested the deceased in a theft case and having kept him in custody for 15 days. However, the investigating officer admitted that the complainant had filed a writ petition against him but he denied that he had obtained thumb-mark of the complainant on a blank paper in (relation to) that writ petition.

12. From the above facts, it becomes vivid that the Investigating Officer of this case was suppressing the facts admitted by the father of the deceased P.W.1 and uncle P.W.2. Why the father of the deceased-complainant of this case had filed writ petition against the police official/Investigating Officer, is dormant. Nevertheless, it becomes apparent that the Investigating Officer was not honest in his deposition before the learned trial Judge.

13. Learned counsel for the appellant relied on Tariq Khan v. The State (1997 SCMR 254) to support his contention that where some of the accused were acquitted in a case on the basis of the prosecution evidence and one of them was convicted, the conviction was set aside.

14. The contention of the learned counsel for the appellant that the learned Judge acquitted three of the accused on the basis of the same evidence on the basis of which he acquitted the appellant, is no doubt correct. This fact coupled with the fact that no reason has been given as to why the injured was not taken for medical treatment nor any reason given as to why the report was not made to the police immediately after the receipt of intimation of injuries and the injured having been taken to their residence so that dying declaration could be recorded requires minute examination. It is also, as per above discussion, clear that one of the P.Ws. (P.W.2) admitted that the injured was senseless and if that was so how could he make statement about his dragging in their house by the accused or having been tortured, was also not understandable.

15. Learned trial Judge appears to have drawn his conclusion on the ground that the complainant had stated in the F.I.R. that illicit intimacy between Salamat Bibi (one of the accused), wife of Amin accused and Hanif deceased was talked of the town even though the learned trial Judge did take notice of the testimony of P.Ws. regarding their admission that Ameen accused had made application to police against deceased for the later having committed theft and thereafter, his having been arrested, interrogated and having undergone pangs of police torture for about a fortnight prior to the death of deceased. But simultaneously the learned trial Judge appears to have drawn the conclusion that since deceased had illicit intimacy with the wife of the accused Amin, Salamat Bibi who is also one of the accused having caused injuries to the deceased, for the last three years and his father having also restrained him from that sinister activity, had entered the house of Amin, accused-appellant at 10.00 p.m., (to continue his illicit intimacy with accused Salamat Bibi). The final view of the learned trial Judge is recorded as under:- "For what has been discussed above, I am of the considered view that regarding alleged involvement of Pehlwan s/o Rehmat Ali, Mst. Salamat Bibi w/o Ameen, accused, and Rehmat Ali s/o Allah Ditta, accused, prosecution version does not appear inspiring, and their involvement. appears because pehlawn is brother of Ameen, accused, Mst. Salamat Bibi, is wife of Ameen, accused and Rehmat Ali, is father of Ameen accused. Even otherwise, when Ameen, accused, who is of robust health, himself, could give sound beating with electric wire to Hanif, deceased there could be no occasion for these three accused, who are otherwise of weaker constitution, to think of beating to Muhammad Hanif, deceased. Therefore, Pehlwan, Mst. Salamat Bibi and Rehamt Ali, accused are acquitted by giving them benefit of doubt". The learned trial Judge, therefore, held the appellant-accused guilty of Qatl-e- Amad of Hanif deceased and convicted him under section 302-C, P.P.C., to ten years R.I. J

6. After having gone through the record of this case minutely as well as having perused the rulings cited by the learned counsel for the appellant more especially Tariq Khan v. State; (1997 SCMR 254), I come to the conclusion that there is considerable force in the arguments advanced by the learned counsel for the appellant that the prosecution has failed to establish the guilt of the accused Amin for his having committed Qatl-e-Amad of Hanif deceased, on account of the following factors inter alia:- (i) the F.I.R. mentions name of four persons who had allegedly killed Hanif; (ii) the learned trial Judge having acquitted three of the accused on the basis of the evidence produced by the prosecution and having convicted the appellant on the basis of the same evidence; (iii) the testimony of the P.Ws. 1 and 2 is not of the character that be considered as truthful under the circumstances discussed above-they having made improvements; and lastly (iv) the testimony of the Investigating Officer of this case having been found to be not trustworthy--he having suppressed important facts which were admitted by P.Ws. in relation to the arrest, interrogation and detention of Hanif deceased on complaint of accused Amin regarding theft and he having detained him for 15 days.

17. I, therefore, accept the appeal, set aside the conviction and sentence awarded to the appellant and acquit him of the charge of Qatl-e-Amad by giving him benefit of doubt. He is on bail and is absolved of the liability of bail bonds. N.H.Q./A-168/L Appeal accepted