1969 PLP 868 (SCMR)

Azim, deceased, was married to Mst. Rani (P. W‑ 3), the daughter of Gul Muhammad, accused. At the time of the occurrence, he was residing in the house‑ of his father‑in‑law along with his wife. Azim's sister Mst. Chutti, was the second wife of this accused. The murder took place on the night between the 26th and 27th May 1955. The prosecution case was that the deceased was killed while asleep on his cot by blows with a hatchet. Mst. Rani and Mst. Chutti were also sleeping in the same courtyard nearby, and, being awakened by the barking of dogs, they were able to see the incident. Gul Muhammad went and informed. Aleem, father of the deceased, at his house and Aleem accompanied him to the spot. He found his son lying wounded and unconscious. It was Gul Muhammad who went to the police station in the company of Aleem and gave the first information report at about 11 a.m. on the 27th May 1955 at the Police Station Ahmedpur. In this report, the story laid was that the informant was wakened by the barking of dogs and then saw one, Kaman, son of Mehar Phulpoto, giving hatchet blows to the deceased while the other person, Bhagio, son of Koro Phulpoto stood near the cot of Gul Muhammad and forbade him from getting up. Two other persons were observed by him, standing near the entrance, but they were not identified. Gul Muhammad raised an alarm which attracted Soomar, his brother, Adhal and Latif to the house and the culprits then made good their escape. Aleem's version is ‑that after he returned from the Police Station where Gul Muhammad had lodged the first information report, he came to the house of the latter and then learnt from Mst. Chutti and Mst. Rani that Gul Muhammad's version was entirely false. According to what Mst. Chutti told him, the four accused were the murderers, including Gul Muhammad and Soomar had held the deceased by the legs, while Khuda Bakhsh and Achar had assaulted him with hatchets, according to her version. Mst. Rani, however, told him that it was Khuda Bakhsh, who had dealt hatchets blows while Achar held him by the legs. Soomar was seen standing at a little distance, empty handed. Gul Muhammad, her own father, was one of these who was awakened by the noise and raised an alarm. He had not participated in the crime. The police, after investigation, pro secuted the four accused. persons instead of the culprits named in the first information report. The learned trial Judge took the view that Mst. Rani had tried to exculpate her own father and that Mst. Chutti's version really represented the truth. He found there was motive for the accused to commit the crime, because Azim deceased was carrying on a sexual intrigue with Mst. Anwar, wife of Bachal and daughter of Nabi Bakhsh, another brother of Gul Muhammad accused. Khuda Bakhsh and Achar are sons of the sister of Gul Muhammad and Soomar accused. The High Court held that "in the circumstances in which the deceased was attacked there was no need for any person to hold the deceased by the legs". Since Mst. Rani had not assigned any active part to Soomar and Gul Muhammad, the learned Judges thought that these two accused persons should be given the benefit of the doubt and acquitted. They were conscious of the fact that Mst. Rani might have tried to favour them, because one was her father and the other was her uncle, but they observed that there was no evidence of previous consultation between Gul Muhammad and Soomar on one side and Khuda Bakhsh and Achar on the other. Despite their finding in the circumstances of the case that it was not necessary for any one to hold the deceased, the learned Judges somewhat inconsistently upheld the conviction of Achar who was assigned that part by Mst. Rani. Gul Muhammad adhered to the story given in the first information report that Kaman and Bhagio, who are sons of Aleem's sister, were the murderers, because they had resented a liaison of the deceased with the wife of one Ishaq. He pleaded that Mst. Chutti used to quarrel with Mst. Pathani, his first wife, and therefore was inimically inclined against him, and his own daughter, Mst. Rani, had partly supported Aleem's version as she was in love with Farid, the brother of the deceased, whom she had married after the occurrence. The other accused persons just denied their participation in the crime. No evidence was called in defence. The medical evidence establishes beyond doubt that the deceased was killed with hatchet blows and the doctor was of the opinion that he must have died instantly on the receipt of the injuries which were located on the head region. Mr. Mahmood Ali, on behalf of the appellants, put forward the suggestion that the prosecution story was entirely wrong and that the deceased was probably killed somewhere in the fields and his dead body was then brought into the house. Apart from the fact that this suggestion would clearly implicate Gul Muhammad in the crime, as such as incident could not have taken place without his connivance the suggestion rests on a very flimsy foundation. Learned counsel relied on the fact that the tracker who was called to examine the foot‑prints at or near the spot had found some blood drops at some distance from the house in a field. The deceased must have bled profusely from his wounds as appears from the inquest report and the medical evidence. If the man had been killed in the fields, there ought to have been a pool of blood there but there existed a few drops such as were observed by the witnesses. It was nobody's case in the Courts below that Azim was murdered outside the house. It is clear that even Gul Muhammad's version places the venue of the occurrence inside the house. The case rally hinges on the testimony of the eye‑witnesses, rust. Chutti (P. W. 2) and Mst. Rani (P. W. 3). Unfortunately there is a serious discrepancy in their statements. Mr. Mahmood Ali has attacked the evidence of these two witnesses on the ground that their versions came to light with a good deal of delay and, consequently, should be looked‑ at with suspicion. He points out that none of them imparted what she knew to Aleem when he first visited the house of Gul Muhammad and that Mst. Chutti, in particular, did not even inform her mother of the true facts, although she came to the spot earlier than Aleem did so, accord ing to the evidence. These are, no doubt, factors to be considered but they can be explained. The women could not have anticipated that Gul Muhammad would invent a false story to put the prosecution off the scent. They had no knowledge as to what Gul Muhammad had told Aleem when he first came to the spot and they must have presumed that the correct facts had been brought to his notice. Aleem must have stayed only a few minutes at the spot on his first visit, and finding his son unconscious, must have left for the Police Station. He could have no inkling at the time that Gul Muhammad, who was his son‑in‑law also, could have misled him. When 1LIst. Chutti's mother arrived, there must have been lamen tations going on among the women folk and that might have been the reason why Mst. Chutti did not talk to her mother about what happened. Every one must have presumed at that time that Gul Muhammad must have imparted the correct information at Aleem's house. The truth only came to light when Aleem returned from the Thana and questioned his daughter and daughter‑in‑law separately about the details of the incident. In the special circumstances of this case, this could not be describ ed as an unnatural sequence of events. None of the two women witnesses could have had any motive for implicating the two appellants falsely in this crime. The appellants are related to Gul Muhammad, as they are his sister's sons. They would thus be the first cousins of Mst. Rani. The suggestion that Mst. Rani sided with Aleem because she had illicit love for her deceased husband's brother, is far from being established by any evidence. The mere fact that she was married to him some four months after the occurrence, would be quite consistent with the customs prevailing among this class of people and cannot lead to the inference that in her own hus band's lifetime her relations with her husband's brother were of an objectionable character. Mst. Chutti also could be trusted to name the real murderers of her brother and there is no reason why she should have completely exonerated the true culprits and substituted them by the nephews of her own husband. So far as the appellants are concerned, the two women are consistent in saying that they were present at the time of the commission of the offence. With regard to Khuda Bakhsh, they are agreed that he had caused hatchet blows to the deceased. In respect of Achar, however, they differ whether he actually attack ed the deceased or only assisted Khuda Bakhsh in killing him by holding the legs of the deceased. These two appellants were not the inmates of the house and their presence at the spot at that time of the night when the murder was being committed, would indicate that they had come in pursuance of a pre‑conceived plan to kill the deceased. There is force in the contention of the learned Advocate‑General that even if Achar had merely accompanied Khuda Bakhsh carrying a hatchet, as he is said to have done, in order to lend support to Khuda Bakhsh, if necessary, in encompassing the death of Azim, he would be still constructively liable for the murder by virtue of the pro visions of section 34, Pakistan Penal Code. However, we consider that in view of the variations in the statements of the two crucial witnesses as to the exact part played by Achar, it would be safer to give him the benefit of the doubt and to acquit him of the charge of murder. The ocular evidence receives very strong corroboration against Khuda Bakhsh by‑ the recovery of a hatchet at his instance which was proved by an expert evidence to be stained with human blood. This appellant merely denied the recovery and attempted no explanation for this incriminating article being found at his instance. In his case, therefore, we entertain not the least doubt that he was one of the murderers of the deceased. We, therefore, allow the appeal of Achar and set aside his conviction and sentence. He will be released forthwith. We affirm the conviction and sentence of Khuda Bakhsh and dismiss his appeal. Appeal dismissed.