1987 P Cr (PLP)

Date of hearing: 28th September, 1983. This criminal appeal arises from the judgment of the learned Sessions Judge, Bahawalpur, whereby he on 15-5-1982 while acquitting Muhammad Musa and Piran Ditta co-accused, convicted Imam Bakhsh, appellant, under section 302, P.P.C. for causing the death of Muhammad Yousuf Shah and sentenced him to imprisonment for life and a fine of Rs.2,000 in default thereof further R.I. for three months. The appellant was, also directed to pay Rs.2,000 to the heirs of the deceased as compensation under section 544-A, Cr.P.C, in default thereof to suffer three months' R.I.

2. The occurrence took place on 19-9-1981 at about 7-00 a.m. in the area of Chak 9-B.C. of Police Station Sadar, Bahawalpur. The F.I.R. Exh.P.J was lodged by Mst. Mehr Bibi P.W.12 at the police station and was recorded by P.W.13 Rehmat Ullah, S.I. on the same day at 8-15 a.m. The distance between the place of occurrence and the police station is three miles.

3. The motive as alleged by the prosecution is that 8/9 months prior to the occurrence Muhammad Yousaf Shah deceased, had abducted Mst. Zebu, wife of the appellant and as such the appellant was annoyed with him.

4. The prosecution case briefly is that the appellant alongwith Muhammad Musa and Piran Ditta co-accused in furtherance of their common intention caused the death of Muhammad Yousaf Shah. It has been alleged that at the time of occurrence the petitioner armed with hatchet and the co-accused armed with Sotas caused injuries on the person of the deceased. Muhammad Yousaf Shah died on the spot.

5. Dr. Muhammad Akhtar Khan P.W. 1 performed post-mortem examination on the dead body of Muhammad Yousuf Shah, deceased and fund 12 injuries on his person. Out of these injuries 6 were caused by sharp-edged weapon and the rest with blunt weapon. In the opinion of the doctor the death was caused by injuries Nos. l, 2, 5, 6, 7, 8 and 9 which were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was within half an hour and between the death and post-mortem was within 30 hours. The appellant was arrested on 23-9-1981. On 28-9-1981 he allegedly got recovered the blood-stained hatchet P.4 from his house which was taken into possession vide Exh.P.E. The Serologist's report Exh.P.O. indicates that hatchet P.4 was stained with human blood.

6. In order to prove its case the prosecution examined as many as 15 witnesses. Khan Muhammad P.W.9, Imam Bakhsh P.W.10, Bahar Shah, P.W.11 and Mehr Bibi P.W.12, were produced to give ocular account of the occurrence. The other 2 witnesses Allah Rakha and Amir Shah cited as eye-witnesses in the F.I.R. were however, given up as having been won-over. Muhammad Hanif, P.W.6, Ghulam Muhammad P.W.7 and Muhammad Hussain, S.I. P.W.8 were examined to prove the recoveries. The evidence of the remaining witnesses is more or less of formal nature. The appellant when examined under section 342, Cr.P.C. denied all the incriminating circumstances and raised the plea of false implication on the ground that before the occurrence he had lodged F.I.R. under section 10/11 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 and got the deceased and Muhammad Hanif, P.W.6, arrested in that case. He, however, did not lead any evidence in defence.

7. Learned counsel for the appellant submits that the prosecution has failed to prove the case beyond reasonable doubt, that Khan Muhammad P.W.9, Imam Bakhsh P.W.10 and Bahar Shah P.W.11 refused to support the prosecution case, that the alleged recovery of hatchet P.4 from the appellant has been disbelieved by the trial Court in para. 14 of its judgment and that as for the 4th eye-witness namely Mst. Mehr Bibi P.W.12 , the trial Court has observed that she had not seen the occurrence. As against this the learned counsel for the State has defended the judgment of the trial Court. He states that there is sufficient evidence on record in the shape of dying declaration made by the deceased before Imam Bakhsh P. W. and the Wajtakkar evidence Supported by Khan Muhammad P.W. to connect the appellant with the commission of the crime.

8. I have considered the arguments advanced by the learned counsel for the parties with care and have examined the record. I find that the three eye-witnesses namely Khan Muhammad, Imam Bakhsh and Bahar Shah have not supported the prosecution case. Khan Muhammad and', Imam Bakhsh rather stated that Mst. Mehr Bibi the complaint, had not witnessed the occurrence; that the presence of Mst. Mehr Bibi on the spot at the time of the occurrence has been disbelieved by the trial Court, that the evidence of the recovery of the blood-stained hatchet P.4 from the appellant has also been excluded from consideration by the trial Court and that the trial Court and has based conviction on the evidence of Imam Bakhsh P.W. with regard to the dying declaration made before him by the deceased, corroborated by motive and the evidence of Wajtakkar given by Khan Muhammad P.W. The question which needs determination is as to whether the evidence relied upon by the trial Court is reliable and sufficient to hold the appellant guilty of the murder of Muhammad Yousaf Shah, deceased. Having given anxious consideration I have not been able to persuade myself to agree with the learned Sessions Judge that the evidence relied upon by him connects the accused with the murder of the deceased. As for motive it is well-established that it is a double-edged weapon and cuts both ways and which way it actually cuts depends upon the peculiar circumstances of each case. Since in the case in hand the appellant had lodged a case against the deceased and Muhammad Hanif P.W. and got them arrested, the benefit in the circumstances, has to be given to the accused and not to the prosecution. As for dying declaration supported by Imam Bakhsh P.W.1 find that Imam Bakhsh was declared hostile. The trend of his statement shows that he gave evidence with motive other than that of telling the truth and as such no implicit reliance has been placed on him. So far as Wajtakkar evidence given by Khan Muhammad is concerned I find that Khan Muhammad's statement in this respect has been misread and that he does not claim to have seen the appellant running away with hatchet in his hand. No doubt Imam Bakhsh P. W. has stated that he had seen the appellant running away with hatchet in his hand but this statement per see is not sufficient to connect the appellant with the murder of the deceased and does not exclude the hypothesis of his innocence. Even otherwise the witness does not appear to be truthful. He was also declared hostile and cross-examined by the prosecution.

9. For what has been stated above I am of the opinion that there being no satisfactory basis for upholding the conviction of the appellant recorded by the trial Court, the same has to be set aside. Giving him the benefit of doubt, the appellant, is acquitted of the charge. He shall be released forthwith, if not required in any other case. The appeal is accepted. H. A. K. /384/L Acquittal ordered.