1988 P Cr (PLP)

(l) A lacerated wound 10 c.m. x 3 c.m. with fracture of corresponding bones of skull on posterior aspect of the skull. (2) A lacerated wound 8 c.m. x 3 c.m. deep cutting the blood -vessels and trachea in corresponding area in front of neck, horizontally across the neck 5 c.m. below angle of right mendible. (3) A lacerated wound 12 c.m. x 4 c.m. cutting vessels and trachea in front of neck, 2 c.m. below injury No.2. (4) A bruise 15 c.m. x c.m. in front of left shoulder. (5) A bruise 7 c.m. x c.m. on lateral aspect of left shoulder. (6) A bruise 11 c.m. x c.m. on lateral aspect of right shoulder. (7) A lacerated wound 3 c.m. x 2 c.m. on right scapula region. Although the doctor opined in his statement dated 25‑5‑1985 that injuries on the deceased were the result of blunt weapon, yet on re‑examination on 13‑7‑1985 he stated that a sharp‑edged weapon like hatchet or Vahaula, and the sharp‑edged weapon, the edges of which would have grown blunt due to excessive use, could also have been used for causing the injuries. The witness was re‑examined suo motu by the trial Judge, on having noted that vessels and the trachea in front of neck had been cut. Out of the three eye‑witnesses, i.e. David Masih complainant P.W.2, Sardar Masih P.W.6 and Muhammad Amir Khan P.W.7, David Masih denied to have witnessed the occurrence. He was declared hostile and cross‑examined on behalf of the State. During cross- examination he denied that he had been read out the F.I.R. before he had signed that. On being cross‑examined on behalf of the appellant, he stated that Amir Khan P.W. had become inimical to accused as he (Amir Khan) had been ejected from land by them which he used to cultivate as a tenant. Sardar Khan P.W.6 also did not support the prosecution case, in that all he stated is, that he had reached the spot after the occurrence and had heard from the people present there, that the deceased was murdered by the appellant. He, however, claimed to have witnessed the recovery of Kassi P.5 at the instance of the appellant and of having attested the recovery memo. He did not name anyone out of the persons who had told him about appellant having murdered the deceased. Muhammad Amir Khan P.W.7, however, made statement against the appellant. In that he stated that on being attracted to the spot, as a result of noise, he saw the appellant giving injuries to the deceased. He stated that the appellant had given 3 injuries to the deceased on the head, 2 on the neck and front chest. He also stated that Sardar Masih and David Masih too had reached the spot. He further stated that the appellant had run away from the spot after throwing away the Kassi in a nearby field where wheat was growing. He claimed to have witnessed the recovery of Kassi at 'the pointing out of the appellant, under‑arrest. He denied that he was ever a tenant of father of the appellant or that he had been ejected by the appellant or his father. The S.H.O./Inspector gave the account of the investigation. He also deposed about having got recovered Kassi P.5 from the accused.

4. The appellant during his statement under section 342 of the Code of Criminal Procedure denied the prosecution case and pleaded innocence. He also made statement under section 340 of the Code of Criminal Procedure. In that, he claimed that he had embraced Islam as a result of which Christians of the village had turned against him, and in spite of the fact that he was in Lahore on the day of occurrence he was involved falsely in the case. He stated that he had gone to Lahore to purchase a Hul (plough) and for paying visit to the shrine of Hazrat Data Ganj Bakhsh. He examined in defence Mst. Barkatay, his mother, as D.W.1, and James Masih, his brother, as D.W.2, in support of the plea that he was innocent. Both the D.Ws. supported the plea taken by the appellant that he was falsely involved in the case. Mst. Barkatay D.W. stated that the appellant was in Lahore on the day of occurrence where he had gone to purchase a plough and to pay a visit to the shrine of Data Sahib. James Masih D.W. stated that Amir Khan P.W. had involved the appellant in the case on account of enmity. Both of them supported the plea taken by the appellant that he had embraced Islam. James Masih D.W. stated that he had submitted an application also to the Superintendent of Police that his brother (the appellant) had been involved in the case falsely. Mst. Barkatay D.W. also denied that her daughter Mst. Kathreen deceased was engaged or was to be married to Safdar.

5. Arguments heard. Record perused. The complainant and Sardar Masih P.W.6 have not supported the prosecution case about the ocular account and motive for the occurrence as well. In fact, motive for the occurrence stands rebutted by the statement made by Mst. Barkatay D.W. mother of the deceased. The prosecution case thus rests on the ocular account deposed to by Muhammad Amir Khan P.W.7, the evidence of recovery of Kassi from the appellant and the medical evidence. The ocular account deposed to by Muhammad Amir Khan P.W.7 is contradictory to the medical evidence, in that he categorically stated that he had seen the appellant inflicting 3 injuries on the head of the deceased, but the doctor who had performed autopsy on the dead body, had noted only one injury on the head. His statement that the appellant had run away from the spot throwing the Kassi in, a nearby field of wheat, also makes the prosecution case about the recovery of Kassi at the instance of the appellant 7 days after the occurrence, doubtful, because had he witnessed the appellant throwing the Kassi in the nearby field, he would have picked up the same or at least should have informed of the same to the Investigating Officer, and the Investigating Officer in that case would have taken that Kassi into possession. It would have been no fun for the Investigating Officer to wait for the arrest of the accused and pick up the Kassi after his arrest, even after having come to know immediately on arrival at the scene. that the accused had thrown away the Kassi in the nearby field. Although Muhammad Amir Khan P.W. denied any unhappiness with the appellant, yet David Masih P.W.2 has corroborated the stand taken by the appellant that Amir Khan P.W. had grown inimieal to the appellant. This fact also finds support from the statement of James Masih D.W.2. Muhammad Amir Khan P.W. does not belong to this village. He resides in Mianwali. According to him, he was in the village as he used to cultivate the land of Mst. Surraiya Begum. No proof of cultivation of land by him in the village has been placed on record. His statement is also not in line with the medical evidence. No importance can be placed on his testimony In the circumstances, the case 'against the appellant appears to be doubtful. The conviction cannot be maintained on the sole statement of an eye‑witness particularly when it is contradictory to the medical evidence. This appeal is, therefore, allowed and the appellant is acquitted by way of grant of benefit of doubt. He shall be released forthwith if not required in any other case. S.A./R‑77/L Appeal accepted.