1987 P Cr (PLP)

P.W. 8 Ghulam Mustufa has deposed that on 6‑9‑1983 he was S.H.O. P.S. Skrand. He received investigation of this case. He examined witnesses Bilawal, Mohammad Ismail, Haji Ghulam Nabi Rahoo and Bakhshan. On 7‑9‑1983 he arrested accused Murid and Manthar under Mashirnama which has been produced as Ex.11. Nothing was recovered from the accused. On 15‑9‑1983 he produced the witnesses before Mukhtiarkar for 164, Cr.P.C. statements. He had verified the Mashirnama of Wardat and inquest report which have been produced as Exs. 9, 10 and

11. After necessary investigation he submitted challan in the Court. In cross -examination he has deposed that he knows Haji Ghulam Nabi Rahoo who is a big Zamindar of locality. He is helpful to police. He had seen the Wardat, and the sugarcane cultivation was upto the man's height. The accused were produced by Haji Ghulam Nabi Rahoo at Sabu Rahoo. Both Mashirs were present there. P.W.9 Dr. Hafeezur Rehman conducted post‑mortem on the dead body of deceased Achar. He started post‑mortem at 7 a.m. and finished it at 9 a.m. on 7‑9‑1983. According to him on external examination he found the following injuries on the person of the deceased:‑ (1) Hard blackish mark 20 c.m. x 8 c.m. on the front and both sides of the neck, with one depressed mark on the left side, two abrasions on the left side, one on the front, one on the chin, 12 on right side and 2 abrasions on the back of the neck. (2) Bruise 7 c.m. x 2 c.m. on the left orbit. (3) Abrasion 2.5 c.m. x 1 c.m. on the back of left forearm. (4) Skin of the penis peeled off and hanging over the gland penis. (5) Squeezing of testicles present with 2 abrasions on both sides. On internal examination he found the following injuries:‑ (1) Second and third vertebrae dislocated. (2) Hard bone fracture. From the external and internal examination of deceased Achar he was of the opinion that the cause of death was due to dislocation of clavicle vertebrae. All injuries were ante‑mortem. This injury was sufficient to cause death. Time between injury and death was instantaneous and between death and post‑mortem was 12 to 18 hours. In cross‑examination he has deposed that he received dead body at 2 p.m. on 6‑9‑1983. He did not remember as to why he did not perform post‑mortem on 6‑9‑1983. In his opinion the injuries were either by rope or by some other item. If the cause of death was asphyxia it shall congest lungs. If the man is strangulated by a rope or hands it shall cause asphyxia. In the present case he had marked the lungs congested. The injuries Nos. 2 and 3 were caused by some hard blunt substance. The penis is tissue organ without any bone. The testicles can be twisted by hand but it cannot be squeezed by hands. The testicles cannot be squeezed or crushed by a normal hand by using force. The 2nd and 3rd vertebrae could be dislocated by a certain jerks. If the death is caused by asphyxia there may normally be other symptoms such as froth from the mouth and nose and protrusion of eye‑balls. He could not say whether the death was caused by a rope or hands but it is a case of strangulation. He could not say whether this strangulation was made by hand or rope. He could not say with certainty whether the injuries Nos. 4 and 5 were caused by means of hand or by some mechanical means. After close of the prosecution case the statements of the appellants were recorded under section 342, Cr.P.C. in which they denied the allegations. Accused Murid has further stated that the P.Ws. have given false evidence. They are all relatives of deceased and they were set up against him by their common Zamindar namely Haji Ghulam Nabi Rahoo. That he was Hari of Ghulam Nabi Rahoo who did not pay him due share of Harap, and he had been demanding his share on which he was annoyed and got him implicated in this case. The co‑accused Manthar also denied the allegations and further stated that his further statement was same as that of co‑accused Murid. The learned trial Judge while relying upon the ocular evidence of complainant, two eye‑witnesses, and medical evidence has convicted the appellants as described above. The present appeal is directed against the said conviction. I have heard Mr. Mohammad Hayat Junejo for the appellants, Mr. Rasheed Tariq Khan for the State, and have also gone through the R.&P. of the case. It has been contended by Mr. Mohammad Hayat Junejo learned counsel for the appellants that the case was false and the present appellants were implicated due to enmity with Haji Ghulam Nabi Rahoo who was an influential man and the complainant party were his Haris. It was further contended that the ocular evidence was interested, contradictory, unreliable and was belied by medical evidence. There was no corroboration from any quarter and the conduct of the witnesses was unnatural. He has further contended that the incident was unwitnessed incident, the F.I.R. was belated, the motive behind murder appears to be sex, under the circumstances the appellants were entitled to acquittal. Mr. Rasheed Tariq Khan learned counsel appearing for the State has contended that there are three eye‑witnesses in the case who have supported the prosecution, and their evidence is further corroborated by the medical evidence. The complainant and P.Ws. had no enmity with the accused and, therefore, the prosecution had proved its case beyond reasonable doubt. I have considered the contentions of the learned counsel. Admittedly, the place of Wardat was surrounded by cultivations, and the houses of Talpurs and Buriras were situated at the distance of 40 to 50 paces from the place of Wardat. The incident is said to have taken place at 2 p.m. when Haris as well as graziers are usually in the fields but none of the persons from the village and the surrounding cultivations has been cited or examined as a witness. The complainant, P.Ws. Bilawal and Bakhshan claim that they were present in the sugarcane cultivation and were busy in cutting the grass but surprisingly enough they did not point out the grass which they had cut and the sickles to the police. The marriage of daughter of P.W. Bilawal was fixed on the night following the day of incident and according to him some guests had already arrived: in such circumstances his presence in the sugarcane cultivation for cutting grass appears to be doubtful. P.W. Bakhshan was a labourer and according to him he used to do `Taghari' labour with masons at Sakrand and other places, and it is a common knowledge that this type of labourers have to work from morning to evening. He even did not know whether the said sugarcane was cultivated by some Hari or was cultivated by Haji Ghulam Nabi himself, under the circumstances his presence at Wardat was doubtful. Even the conduct of complainant and P.Ws. was unnatural. They remained satisfied with giving Hakals to the accused but they did not raise cries nor they tried to chase and catch the accused. The accused were two in number and there was no allegation that they were armed with any weapon, while the complainant and P.Ws. were three in number. Their houses were also very close to the place of Wardat, and, therefore, had they raised cries and chased the accused, they could conveniently attract people of the village and surrounding cultivations, and catch hold of the accused. Moreover, there is a delay in lodging the F.I.R. in the present case which goes a long way to show that the incident was an unwitnessed incident. According to complainant and P.Ws. the incident took place at about 1‑30 or 2‑00 p.m. and the report was lodged at 6‑15 p.m., the distance between the Wardat and the police station was 6 miles. In the F.I.R. the case of the complainant was that he first went to the village of Haji Ghulam Nabi Rahoo, informed him about the facts of the incident, who directed him to go and lodge the report. But in Court his case was that he went to the village of Haji Ghulam Nabi Rahoo but he was not available there, and, therefore. he had to wait for him. This explanation has been given dishonestly with a view to overcome the question of delay which was very important in the present case. The bus stand was at the distance of 4/5 Survey numbers from the Wardat and the buses used to leave for Sakrand from Sabu Rahoo after short intervals and, therefore, the complainant could have reached police station Sakrand within one hour at the most, even after informing Haji Ghulam Nabi Rahoo as stated in the F.I.R. as he was residing at the distance of 4/5 Survey numbers from bus stand and the distance between Wardat and P.S. Sakrand was 6 miles. The evidence of Dr. Hafeezur Rehman shows that the dead body was brought to him at 2‑00 p.m. and, therefore, incident must have taken place few hours before 2‑00 p.m., and the F.I.R. was lodged much after the dead body was taken to Taluka Headquarter hospital Sakrand. Even Mashir Ramzan has stated that police came to Wardat at 1‑30 or 2‑00 p.m. Even the inquest report Ex.10 does not show the names of the accused although it was prepared at 7‑5 p.m. Under these circumstances it is difficult to believe that the complainant and P.Ws. Bakhshan and Bilawal had witnessed the incident and they had seen the accused committing murder of the deceased. The circumstances clearly go a long way to show that the incident was unwitnessed incident. The accused have alleged enmity with Haji Ghulam Nabi Rahoo who was admittedly a Zamindar and he was an important witness in the case, as according to the complainant he had immediately gone to his village and apprised him of the facts of the incident, but surprisingly enough he was not examined by the prosecution nor any reason was given for giving him up. Perhaps he was withheld by the prosecution for the oblique motive as otherwise the accused might have cross‑examined him on the point of enmity. The injuries on the person of deceased do suggest that the motive for the murder of Achar could be some sexual dispute. As far as the question of delay was concerned, in the case of Raham Ali and 3 others v. The State 1976 P Cr. L J 17 it was held by a Division Bench of this Court:‑ "Wasting of one hour at Wardat, although the names of the accused were known to the complainant, was considered as a doubtful feature. It was further observed that it was, therefore, not possible to resist the inference that some suspicion was being entertained about the identity of the appellants:" In another case Nura v. The State P L D 1966 Lah. 383, it was held:‑ "Penal Code S. 302‑‑Murder committed at 3‑30 or 4‑00 p.m. but F.I.R. lodged at police station (5 miles away) at 9‑45 p.m., delay, held inordinate, possibility of charge being false not ruled out:" As regards contention of Mr. Rashid Tariq Khan, Advocate that the witnesses had no enmity with the accused and, therefore, their evidence is sufficient for conviction 1 am afraid the contention is misconceived and untenable. In Pir Mohammad Khan and two others P L D 1970 Kar. 399, it was held by a Division Bench of this Court that:‑ "Simply because the witness has no enmity and appears to be independent, does not necessarily mean that what he states is not untrue. Indeed the absence of malice is a factor which assumes importance in assessing the credit of the witness and places him in a favourable position but by no means it is the sole criterion. The truth or falsity of the statement of the witness largely depends upon the circumstances which provide the guideline. To accept the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and .is worthy of belief:" So far medical evidence is concerned it can only show cause of death and nothing beyond it. In the present case as already pointed out the medical evidence instead of supporting the prosecution case has contradicted it. In view of the above discussion I am of the considered view that the prosecution had failed to prove its case beyond reasonable doubt, and, therefore, I allow this appeal, set aside the conviction and sentence of the appellants, and acquit them. They shall be released forthwith if not required in any other case. This appeal was allowed by me on 10‑3‑1987 by a short order, and these are reasons for the same. M.Y.H./M‑2M/K Appeal accepted.