1976 P Cr (PLP)

Noor Muhammad and Chakar returned to Ghulam Hassan (P. W. 11) and informed them of the occurrence. Ghulam Hassan decided to place the matter before the biratheri. At about sunset time, however, P. W. 11 heard a hue and cry while he was sitting in his house. He came out and found that Noor Muhammad, his nephew, was trying to run into his house from the back wall. Ata Muhammad son of Sobha, Kamal son of Ata Muhammad, Ishaq son of Abdullah Khan who were armed with Katis and Noor Ahmad son of Karam Khan armed with a Kulhari had encircled him; Ata Muhammad and Ishaq were inflicting blows with their katis on the abdominal region of Noor Muhammad while Shobha and Kamal were showering blows with their katis on Noor Muhammad's chest. Noor Ahmad stood guard with the hatchet in his hand and did not allow anybody to come near. The noise attracted Chakar and Ibrahim P Ws. 12 and 13 who are both brothers. Noor Muhammad meanwhile fall down on the ground, but all the four assailants ants continued to indict blows upon Mm even when be had fallen down. Noor Muhammad then tried to crag Ata Muhammad into the door of his house. They were challenged by P. W3. 11, 12 and 13 and consequently they ran away leaving the dead body there. Noor Mohammad died at the spot. Ghulam Hussain (P. W. 11) then repaired to Police station Batil where he lodged F. I. R. Exh. PA at 7‑50 p.m. which was taken down by Mushtaq Hussain Shah, Assistant Sub-Inspector Police (P. W. 14). Having record the F. I. R. P. W. 14 reached the spot, prepared the inquest report and injury statement and went through the other formalities of investigation. He arrested Ata Muhammad, Sobha, Kamal and Noor Ahmad accused on the following day. He recovered shirt P. 3 and chaddar P. 4 which were bloodstained, from the person of Kamal accused who also carried injures of his person. He consequently prepared his injury statement Exh. P. L. Since Ata Muhammad was also injured, the A. S. I. prepared his injury statement as well. He recovered blood‑stained Kati P. 1 from a kotha at the instance of Kamal accused and another blood‑stained Kati P. 6 at the instance of Ata Muhammad from another kotha. Sobha accused got blood‑stained Kati P. 7 recovered from a brick-kiln at Chah Dorattawala. Noor Ahmad led to Chah Chattehwala and lard kulhari P. 8 recovered from a kotha there. Having completed the investigation he challaned the accused. At the trial Ata Muhammad claimed that he and his son Kamal were present in the Court of Syed Sabir Hussain, Magistrate First Cuss, in connection with security proceedings against Kamal and returned home after sun set time. He heard an alarm and saw that Noor Muhammad deceased, who had a Kati, and Kamal accused were grappling. The former was trying to injure him while the latter was parrying his blows. Ata Muhammad tried to snatch tire Kati from boor Muhammad and injured palm of his right hand in the bargain. Finding himself helpless, he ran to fetch help and when he returned Kamal told him that he had been able to snatch the kati from Noor Muhammad deceased who had died at his hands. Sobha pleaded innocence. Kamal supported the story givers out by his father, Noor Muhammad, Muhammad Ishaq also professed to know nothing about the matter. The prosecution produced 14 witnesses in all in support of its case with the result already indicated above. Dr. Muhammad Sharif Abbasi appeared as P. W. 1 and testified to having performed the post‑mortem examination on the deal body of Noor Muhammad. He found 41 incised or stab wounds on the dead body. The wounds ranged from 7 to 1/3 in length and from 2 to in width, The doctor was of the view drat injuries Nos. 3 and 13 could be caused with hatchet P, 8 while the others were caused by some cutting weapon. He further found that there were no drag marks on the person of Noor Mohammad deceased at the time of the examination. The evidence of the doctor proves that Noor Muhammad died a violent death at a result of a large number of injuries sustained by him from more than one kind of weapon, one of which could be a hatchet. It also proves that the deceased was not dragged as the prosecution would have us believe. Dr. Saleem Beg Mirza appeared as P. W. 2 and stated that on examining Kamal on 31‑5‑1971 he had found 7 minor injuries on his person Only two of which had length as well as breadth while the other three had only length but no breadth. He also found that ail these injuries were encrusted. He also examined Ata Muhammad on the same day and found two linear incised wounds 1/4" long on the thumb base of little finger on both of which the crust has already formed. He was of the view that injury No. 1 upon the person of Kamal could not be self suffered or self‑ inflicted. The F. I. R. does not mention any injuries on the person of the accused. Dragging of Noor Muhammad deceased by the accused per‑ins his been positively alleged in the F. I. R., but the doctor has found no drag marks whatsoever on ice Ilahi Bakhsh (P. W. 7), Qadir Bakhsh (P. W. 8) and Syed Mushtaq Hussain Shah (P. W 14) the Sub‑inspector, appeared to prove the recoveries of Kati P. 6 from Ata Muhammad and P. 5 from Kamal. In paragraphs 24, 25 and 26 the learned Sessions Judge has dealt with the recovery evidence and has on the basis of very cogent reason disbelieved the recoveries of these weapons. We have no quarrel with the finding arrived at by hits in this regard and agreeing with him we hold that the recoveries are ill‑founded and were not effected from or at the instance of the appellants. So far as the blood‑stained clothes are concerned, although Ata Muhammad, appellant, is said to have been wearing them, they were, not taken into possession. In any case, since the arrests were made a day after the incident it will be highly preposterous even to suggest that the assailants would have continued to clad themselves in clothes smeared with Noor and thus proclaim to the world that they had committed a murder. The ocular testimony that been provided by Ghulam Hassan (P. W. 11), Chakar (P. W. I) and Ibrahim (P. W. 13). Ghulam Hassan, the complainant, is the husband of Chakar's sister; Chakar and Ibrahim are real brothers, and their ether sister is the widow of the deceased. Admittedly parties are at daggers drawn. Ghulam Hassan (P. W. 11) has admitted in his examination-in‑chief that Noor Muhammad deceased on the one side and Muhammad Ishaq accused on the other were proceeding against under section 107, Cr. P. C. 4/5 days before the occurrence Ata Muhammad, appellant, had male an application to the Superintendent of Police praying that Ghulam Hassan (P. W. 11). Noor Muhammad deceased, Chakar (P. W. 12), Ibrahim (P. W. 1), and Lal Khan (P. W. 9) be bound down to keep the peace. On the basis of this application, the Police proceed ed against brother of Noor Muhammad deceased and Chakkar P. W. on the one hand and Ata Muhammad on the other. On the day of occurrence Allah Diwaya, a servant of Noor Muhammad deceased, on the one hand, and Kamal, on the other, put in bonds of appearance in proceedings under section 107, Cr. P. C. The case of this dispute was admitted to be joint holding served by the well known as Chah Dorattawala. Not only are the witnesses and the complainant party closely related, but there is unimpeachable evidence to prove achieve hostility between the parties. Prudence, therefore, requires that no conviction would based upon the tainted testimony unless it could be corroborated in material particulars. We have already found that the evidence of the so-called recoveries is tarnished and has been rightly disbelieved by the learned Sessions Judge. There is no corroborating evidence on the prosecution side at all. We are now left with the admissions made by the two appellant in their statements. The medical evidence having disproved the theory of dragging and the F. I. R. having not mentioned any of the injuries sustained by the appellants, the version given by the prosecution cannot be believed. In these circumstances, even if we were to accept the statements of the appellants it would make out a case of self‑defence of person and no body would be prepared to say that in doing so they excepted their right. Viewed from whichever angle, therefore the appellants can be saddled with culpability and we have no option but to accept the appeal, ser aside the convictions and sentence and reject the Reference. We have already by a short order directed that they shall be released if they are not required in any other case. Appeal allowed.