1985 P Cr (PLP)

GULBAZ KHAN, J.‑‑ The case was tried by the learned Sessions Judge, Faisalabad, who vide his judgment, dated 20‑2‑1979, convicted Muhammad Hussain appellant under sections 302 and 307, P. P. C. and Shaukat Ali appellant and Pervez Masih under section 379, P.P.C. Muhammad Hussain was sentenced to death and a fine of Rs.2,000 or in default in payment of fine to undergo rigorous imprisonment for two years under section 302, P.P.C. and rigorous imprisonment for five years under section 307, P.P.C. The fine, if recovered, was ordered to be paid to the heirs of Nawab Din deceased. Shaukat Ali appellant was sentenced to undergo rigorous imprisonment for two years under section 379, P.P.C. The case was referred to this Court for the confirmation of the death sentence of Muhammad Hussain. The appeal and the murder reference are being disposed of together.

2. The present case was registered at Police Station, Gojra, on 16‑11‑1977 at 8‑15 p.m. on the statement of Fazal Hussain (P.W.6). The F.I.R. was recorded by Muhammad Afzal Khan S.H.O. (P.W.10). The occurrence had taken place in the garden of Farrukh Hussain Shah Lambardar situated within the area of Chak No. 353‑J. B. Fazal Hussain complainant and his cousin Nawab Din deceased were residents of Chak No. 423‑J. B., alongwith others had taken the said garden on lease. The deceased and his son Muhammad Boots (P.W.8) resided in the garden. On 16‑11‑1977 at about 6 or 7 p.m. Nawab Din deceased and his son were having a round of the garden. They noticed Shaukat Ali appellant and Pervez Masih co‑accused plucking the oranges. The deceased stopped them who grappled with the deceased. On hearing the noise, Fazal Hussain, Khushi Muhammad and Muhammad Nawaz P.Ws. who were present nearby rushed to the spot. They saw Shaukat Ali appellant and Pervez Masih co‑accused grappling with the deceased. In the meantime, Muhammad Hussain appellant, a brother of Shaukat Ali appellant, came to the spot running armed with a hatchet from the village side. Muhammad Hussain inflicted a hatchet blow to Nawab Din deceased on his head, who fell down. He inflicted another blow to Muhammad Boota P.W. who was standing nearby but luckily Muhammad Boota escaped and the hatchet landed on the head of Pervez Masih while he was holding the deceased alongwith Shaukat Ali appellant. Fazal Hussain raised noise. The appellants and their co‑accused fled away towards the village. Nawab Din deceased expired at the spot immediately. The occurrence was witnessed by Fazal Hussain, Muhammad Boota, Muhammad Nawaz P.Ws. and Khushi Muhammad (not produced).

3. Muhammad Afzal S.H.O. arrested Pervez Masih accused while he (S.H.O.) was on his way to the spot. Pervez Masih was injured and the S.H.O. prepared his injury statement and sent him for medical examination. The S.H.O. reached the spot at 10‑00 p.m. He prepared the injury statement and inquest report and sent the dead body for post‑mortem examination. He collected 26 oranges from the spot. On 17‑11‑1977, Muhammad Hussain and Shaukat Ali appellants were produced before the S.H.O. by Ghias Mahmood. Muhammad Hussain appellant had a blood‑stained hatchet P.5 with him. It was taken into possession and sealed into a parcel. The two appellants were arrested by the S.H.O.

4. Dr. Muhammad Latif conducted post‑mortem examination on the dead body of Nawab Din on 17‑11‑1977 at 11‑00 a.m. He found the following injuries on his person:‑‑ (1) An incised wound 2 x x bone deep situated on the right parietal region of the head near middle line. (2) A contusion 1" x on the front of the chest right side below the right nipple. Right parietal bone was fractured traversely and fracture line was reaching upto temporal bone. The brain and membranes were congested. Small amount of blood was present on the right side below the membranes. Sixth right rib was fractured. Pleura was injured at the side of the fractured rib. Stomach was full with food material. The doctor opined that the death was due to shock and haemorrhage resulting from both the injuries. Injury No.1 was sufficient to cause death in the ordinary course of nature. It was the result of sharp‑edged weapon. Injury No.2 was caused by a blunt weapon. The time between injuries and death was half an hour and between death and post‑mortem 12 to 20 hours.

5. The same doctor had earlier examined Pervez Masih on 17‑11‑1977 at 6 a.m. and found a lacerated wound 1‑3/4" x x bone deep situated on the mid‑line of the head, 41" away from the root of the nose. The injury was kept under observation and X‑Ray was advised. It had been caused by blunt weapon within a period of 12 hours. The injury was later declared simple in nature.

6. Fazal Hussain (P.W.6). Muhammad Nawaz (P.W.7) and Muhammad Buota (P.W.8) were examined as eye‑witnesses. The fourth eye‑witness named, Khushi Muhammad was given up as unnecessary.

7. It was contended by the learned counsel for the appellant that the eye‑witnesses were not present at the spot and they had not witnessed the occurrence. The learned counsel for the appellants made the following submissions:‑ (a) that injury No.2 on the chest of the deceased could not result due to fall as there was fracture of the sixth rib and pleura was also injured at the site of the fractured rib and the said injury was not explained by the complainant in the F.I.R; (b) that the eye‑witnesses did not explain injury No.2 of the deceased in their statements recorded under section 161, Cr.P.C. and had made a crude attempt to explain the said injury by stating that Muhammad Hussain aimed a third blow on the deceased but Muhammad Boota P.W. pushed him by his hand and the blunt side of the hatchet struck on the chest of the deceased and the witnesses were duly confronted with their earlier statements; (c) that the incised wound on the head of the deceased was not the result of sharp‑edged weapon and it had been caused with a blunt weapon and there was no profuse bleeding which would have occurred in case the injury had been caused with a sharp‑edged weapon and little quantity of blood was noticed on the turban and Salooka. Besides it, the turban had no cut mark. The underlying bone had not been cut through and through. The right parietal bone was found fractured which was a clear indication that the injury had been caused with a blunt and not sharp‑edged weapon. It was also pointed out that when a blunt weapon injury is inflicted at a place where there is underlying bone then in some of the cases the edges of the wound would give the shape of clean cut and given impression as if the injury had been caused with a sharp‑edged weapon. The learned counsel referred to Modi's Jurisprudence, 14th Edition, pp. 223 and 224. (d) that the witnesses were interested and there was no independent corroboration; , . (e) that the witnesses made material improvements on their earlier statements; (f) that the witnesses had given unbelievable version of the occurrence; (g) that the manner of production of hatchet by Muhammad Hussain was unnatural; (h) that a false motive had been introduced at the late stage which did not find place in the F.I.R. (i) that although Pervez Masih did not take up to the plea of self defence specifically, it appeared from the evidence on record that the deceased caused injury to Pervez Masih who acted in self‑defence and injured the deceased; (j) that the statement of Pervez Masih could not be used against Muhammad Hussain appellant as it was not an inculpatory statement; (k) that at the best, the case fell under section 304, P.P.C. as exception (4) of section 300, P.P.C. was applicable to the facts of the case.

8. Muhammad Boota P.W. is a son while Fazal Hussain, a cousin of the deceased. Khushi Muhammad (not produced), is a uterine brother of the deceased. Muhammad Nawaz P.W. who was resident of Chak No. 426‑J. B. was a partner of the deceased and other witnesses in the lease. Thus, all the witnesses had either relationship or connection with the deceased. It was admitted on the record that Nawab Din and his son Muhammad Boota lived in a Jhuggi in the garden of Farrukh' Hussain Shah. The gardens of Ghias Mahmood and Mansoor Shah were also with witnesses on lease. Khushi Muhammad P.W. lived in the garden of Mansoor Shah while Fazal Hussain and Muhammad Nawaz in the garden of Ghias Mahmood. The garden of Mansoor Shah was or square to the East of garden of Farrukh Hussain Shah. The garden of Ghias Mahmood was to the West of the garden of Farrukh Hussain Shah at a distance of 1 or 1 square. The three witnesses, namely, Fazal Hussain, Muhammad Nawaz and Khushi Muhammad had no occasion to be present in the garden of Farrukh Hussain Shah. In all probability, they were not present at the spot. The witnesses had made any ugly attempt to explain injury No.2 of the deceased by stating that when Muhammad Hussain aimed third blow at the deceased, Muhammad Boota P.W. pushed him by his hand and the blunt side of the hatchet struck at the chest of the deceased. Injury No.2 had been inflicted with such a force that it had fractured the sixth rib and the pleura on the site of the fractured rib was also injured. Injury No.2 could not have resulted in the manner as stated by the eye‑witnesses. The statements of the eye‑witnesses with regard to the injury of Pervez Masih were contradicted by the medical evidence. Fazal Hussain complainant mentioned in the F.I.R. that Muhammad Hussain appellant aimed a second blow at Muhammad Boota who escaped injury and the blow landed on the head of Pervez Masih. It was nowhere recorded in the F.I.R. that Pervez Masih was injured from the blunt side of the hatchet. Pervez 'Masih was medically examined on 17‑11‑1977. During the trial, Fazal Hussain stated in examination‑in‑chief that the hatchet blow given by Muhammad Hussain landed on the head of Pervez Masih. He was contradicted by the medical evidence. Muhammad Nawaz explained the injury of Pervez Masih by stating that the hatchet blow of Muhammad Hussain struck Pervez Masih from the wrong side. Same was the explanation of Muhammad Boota. They made statements to the effect that the hatchet blow landed from the wrong side in order to reconcile with the medical evidence. The turban of the deceased had no cut mark. There did not seem to be profuse bleeding from injury No.1 as the shirt and the Chaddar which the deceased was wearing were not blood‑stained. The turban and the Salooka were slightly stained with blood. The cut on the right parietal bone was not through and through. Rather the right parietal bone was fractured and the fractured line went up to temporal bone. According to Modi's Medical Jurisprudence and Toxicology 20th Edition 1975, p.252, under the heading scalp, it is recorded that a scalp wound by a blunt weapon may resemble an incised wound. Taking all these circumstances into consideration, we agree with the contention of the learned counsel for the appellants that injuries to the deceased had been caused with a blunt weapon. We also agree with the contention of the learned counsel for the appellants that the eye‑witnesses made material improvements in their statements, which made their statements unworthy of credit.

9. The evidence of the recovery of blood‑stained hatchet was not proved beyond doubt. The manner of production of blood‑stained hatchet was unnatural. Ghias Mahmood, an Honorary Magistrate had produced Muhammad Hussain appellant and in his presence Muhammad Hussain appellant had produced blood‑stained hatchet before the police, which he was carrying. The recovery memo. was not attested by Ghias Mahmood Shah, Honorary Magistrate. This has made the recovery doubtful and we are nut prepared to place any reliance on the statements of Asghar Ali and the S.H.O. with regard to the production of blood‑stained hatchet. A motive had been introduced to show that the attack on the deceased was pre‑meditated. Another fact that Muhammad Hussain appellant was sitting under a fruit plant armed with a hatchet was introduced to show that it was a pre‑planned affair. The case as initially set up in the F.I.R‑ was that Muhammad Hussain appellant had reached the spot running armed with hatchet from the village side. The witnesses made material improvements as regards the motive also.

10. The statement of Pervez Masih was exculpatory. It is provided under section 30 of the Evidence Act that when more persons than one are being tried jointly for the same offences, and a confession made by one of such persons affecting himself and souse other of such persons is proved, the Court may take into consideration such confession as against such other persons as well as against the person who makes such confession. It is for the Court to take into consideration the confessional statement against the co‑accused if it is an inculpatory statement. It is not obligatory on the Court to consider such confessional statement. In this case the statement of Pervez Masih was not a confession. Hence the question of considering the said statement against Muhammad Hussain appellant did not arise.

11. After having considered the entire record, we hold that the eye‑witnesses were not present at the spot and they had not seen the occurrence. We accept the appeal, set aside the impugned judgment and acquit the appellants of the charges. Muhammad Hussain appellant is in custody. He shall be set free forthwith if not wanted in some other case. His death sentence is not confirmed. Shaukat Ali appellant is on bail. He is discharged of his bail bonds. S. G. D. Appeal allowed.