1983 P Cr (PLP)

Allah Ditta, aged 40 years, son of Saleh, has filed appeal from Jail, against the order dated 29th May, 1980 of Sessions Judge, Gujranwala, whereby the learned Sessions Judge convicted the appellant under sec tion 302, P.P.C. for having committed the murder of his brother-in-law, Allah Ditta son of Malla, at Sargiwela during the night between 26th/27th of February, 1979, in his house situated in Thatha Karim Dad, Police Station Pindi Bhattian. F. I. R. (Exh. P.H.) was recorded by Muhammad Idrees, S.I./S.H.O. (P. W. 9) at 6.30 a.m. on 27th February, 1979 on the statement of Mst. Rajan (P. W. 7), sister of the deceased.

2. The appeal has been filed from Jail. The appellant is not re presented by any counsel so I proceed to decide the appeal with the assistance of the learned counsel for the State.

3. The prosecution case is that Mst. Rajan P.W. who was sleeping in her house, got up at Sargiwela on 27th February, 1979 for urinating. She saw the appellant and his brother Malla (acquitted accused) standing near the cot of her brother, Allah Ditta deceased, who was sleeping under the Dhara. After raising lalkara that they will teach a lesson to Allah Ditta deceased for abducting Mst. Khurshid, the accused launched an attack on the deceased with the weapons they were holding. On the noise raised by Mst. Rajan P. W. her son Ahmad Ali (P. W. 8), Aslam, her nephew, and Nazir Machhi, neighbour of the complainant, also reach ed the spot and witnessed the occurrence. It is the prosecution case that the accused were identified by the witnesses in the light of the electric bulb fixed in the courtyard. The motive for the occurrence was that Allah Ditta appellant who was husband of Mst. Nuran, sister of the deceased and the complainant, had married -Mst. Khurshid, widow of his deceased brother Jalla. The deceased feeling aggrieved that the appellant had taken second wife during the lifetime of his sister, developed illicit relations with Mst. Khurshid and abducted her, a year prior to the occurrence. Mst. Khurshid was, however, returned by the deceased on the intervention of Khan and Waryam, who had asked the deceased to return Mst. Khurshid on the request of the appellant. The complainant's case is that the appellant had felt insulted over the cultivation of illicit relationship by the deceased with the wife of the appellant and her abduction by the deceased later on.

4. Aslam and Nazir P. Ws. who are mentioned as eye-witnesses in the F. I. R. were given up at the trial as having been won over. Mst. Rajan (P. W. 7) and her son Ahmad Ali (P. W. 8) were examined for the eye-witness account. Both of them have briefly stated that they had seen the appellant and his brother Malla giving injuries to the deceased with hatchets in the light of the electric bulb at Sargiwela alongwith Aslam and Nazir P. Ws., who had reached the spot after hearing noise. Mst. Rajan P. W. has also deposed regarding motive. Evidence of recovery of blood-stained hatchet (P.7) on 1st March, 1979 at the pointing out of the appellant had also been led through Muhammad Ashraf (P. W. 6) and Muhammad Idris, S, I. (P. W. 9). Both have corroborated each other while stating that the appellant had after making statement led to the recovery of hatchet (P. W. 7) from his residential house, which was taken into possession vide memo. Exh. P. J. which was also attested by Sohna P. W. (not produced).

5. Ch. Muhammad Sadiq, Medical Officer, who had conducted post-mortem of the deceased appeared as P. W.

2. At the time of post- mortem examination, he noted in all nine injuries on the body of the deceased. According to his opinion the deceased died because of shock and haemorrhage, which resulted due to injuries Nos. 1, 2, 3 and 9, which have been described as under :- (1) Oblique stab wound 12 cm.x 3 cm. on the right part of epigastrium. (2) Oblique stab wound, 6 cm. x 1 cm on left part of epigastrium. Loops of small and large intestines were protruding out from the above-mentioned two injuries. (3) Transverse stab wound, 6 cm. x 2 cm. on back chest right part, 6 cm down to inferior angle of right scapula. (4) Oblique stab wound 3 cm. x 2 cm. on left part of front of abdomen 4 cm. above and out to umbilicus and 2 cm. away of midline of abdomen.

6. The appellant took up the plea of false involvement. He denied that the deceased had developed illicit relations with Mst. Khurshid, his second wife, or that be had abducted her. In answer to the question why this case against him, he stated :- Mst. Nooran sister of Mst. Rajan complainant was married to me. On the death of my brother Jalla, I married his widow Mst. Khurshid and this caused annoyance to Mst. Rajan who wanted me to divorce her sister Mst. Nuran but I was not agreeable to this proposal. Some time prior to the occurrence, Mst. Rajan P. W. took her sister Mst. Nuran to her house. It is for this reason that she got me and my brother falsely implicated in this case.

7. I have gone through the evidence and have considered the argu ments advanced by the learned counsel for the State.

8. During trial suggestions put to Mst. Rajan (P. W. 7), on behalf of the appellant, that the deceased had illicit relations with Mst. Nasreen a girl belonging to Bhatti tribe, who was married in village Pindi Buta Singh, that no electric bulb was on, at the time of occurrence and that the occurrence remained unwitnessed and they had seen in the morning the deceased lying murdered, were denied. Similar suggestions M Ahmad Ali P. W. were also denied by him. The suggestion that Mst. Khurshid was not abducted by the deceased was also denied by P. W.

7. Ahmad Ali P. W., who is son of the complainant, has, however, not made any state ment regarding the motive part of the prosecution story.

9. The admitted facts are, that Mst. Rajan (P. W. 7) is real sister of the deceased, Ahmad Ali P. W. is her son, Muhammad Ashraf (P. W. 6), attesting witness of the alleged recovery of blood-stained hatchet (P. 7), at the pointing out of the appellant, is son of first cousin of the deceased and Mst. Nuran, sister of the complainant and of the deceased, was married to the appellant, who had later married Mst. Khurshid, widow of his brother. It is also the prosecution case that the complainant and the deceased had felt aggrieved over the marriage of the appellant with Mst. Khurshid and the deceased had gone to the extent of abducting her after cultivating illicit relations with her to avenge the second marriage by the appellant. Although the prosecution allegation of abduction of Mst. Khurshid by the deceased is denied by the appellant but the fact remains that the parties had developed strained relations. It is not difficult to hold that .. ........this motive would cut both ways. If this can be alleged, as the motive for the appellant to have murdered the deceased, it can also be considered as a motive for false implication of the appellant. In view of this I do not think that the motive story can lead to any corroboration to the prosecution case. The eye-witness account as noted above, is coming from related, interested and inimical witnesses, which requires some independent corroboration. For their corroboration, the prosecution can fall upon the medical evidence and the evidence of alleged recovery of blood-stained hatchet (P. 7). According to the opinion of the doctor the deceased had suffered four stab wounds, which were the cause of death. The doctor has stated that the stab wounds could have been caused by a sharp-pointing weapon with cutting edge or edges. The eye-witnesses have categorically stated that the appellant or for that matter his acquitted co accused were armed with hatchets and had caused the injuries with hatchets. This account stands contradicted by the medical evidence. Obviously, the medical evidence not only does not lead any corrobora tion to the eye-witness account but contradicts the same. The claim of the eye-witnesses that they had identified the appellant in the light of the electric bulb is also doubtful for the reason that the prosecution bas not been able to establish beyond reasonable doubt that any bulb was affixed at the point stated by P. Ws. The Sub-Inspector did not mention the existence of the bulb in his inspection note. There is no mention of the existence of bulb in the site plan either. It has been stated clearly by Mst. Rajah P. W. that it was a dark and cloudy night and without the electric bulb the assailants could not been identified. Muhammad Ashraf, the recovery witness, is also related to the deceased. He does not belong to the village wherefrom the alleged recovery of hatchet was effected. His testimony cannot be placed on a higher level than that of a chance witness and as such cannot be relied upon as an independent corroboration of the eye-witness account. In this view of the matter, no implicit reliance can be placed on the evidence of prosecution. The prosecution has failed to prove the case as against the appellant beyond reasonable shadow of doubts. The appellant is, therefore, acquitted on the basis of benefit of doubt. He shall] be released forthwith if not required in any other case.