P L D 1983 Lahore 682 (PLP)

Haq Nawaz (36) son of Ahmad, Umar Hayat alias Umra (25) son of Bahadar and Bahadar (45) son of Ahmad, Caste Bhojoana, resident of Village Kuriana, Police Station, Sadar, Jhang were tried by the learned Additional Sessions Judge, Jhang under sections 302/34, P. P. C. for causing the murders of Muhammad Sarwar and Mst. Pathaoi deceased on 11-9-1977 at about sotewelu in the area of Village Kuriana with sticks. The learned trial Judge vide his judgment dated 3-3-1980 convicted the appellants and sentenced them to life imprisonment and to a fine of Rs. 5,000 each or in default of its payment to undergo further R. I. for two years. The appellants have challenged their conviction and sentences through the present appeal.

2. Briefly stated the prosecution case as set forth in the F. I. R. lodged by Allah Ditta (C. W. 1) is that on the night of occurrence at about 11 p.m. he alongwith Muhammad Sharif (not examined) was on his way to his house and when he reached Chah Khiwa, he heard a noise and saw the present appellants causing stick blows to Mst. Pathani deceased. Muhammad Sarwar deceased ran out from the sugar-cane field whereupon the appellants chased him and gave stick blows to him as a result of which both Muhammad Sarwar and Mst. Pathani died instantaneously. The motive for the offence was that Sarwar deceased was maintaining illicit intimacy with Mst. Pathani deceased and bad abducted her a year before the occurrence but she was restored back due to the intervention of the respectables but Sarwar deceased continued to meet her. On the night of occurrence both of them were present in the sugar-cane field while the present accused learnt about the same who in furtherance of their common intention killed them. The matter was reported to the police by Allah Ditta (C. W. 1) on 12-9-1977. After recording the F. I. R. Exh. C. A., S. I., Muhammad Amir Nawaz (C. W. 7) reached the spot, prepared the injury statements of Sarwar and Mst. Pathani deceased Eahs. C. L. and C. M. respectively. He prepared the inquest reports Exhs. C. L/I and C. M./1 pertaining to Sarwar and Mst. Pathani deceased respectively and despatched their dead bodies for post-mortem examination. He collected the bloodstained earth from the spot and took it into possession vide memo. Exbs. C. B. and C. D. respectively. He also took into possession blood-stained clothes of the deceased after their post-mortem examinations.

3. On 13-9-1977, be arrested Umar Hayat and Babadar accused. Umar Hayat while in police custody led to the recovery of blood-stained .stick P. 2 from his residential Kotha. It was made into a sealed par -el through memo. Exh. C. F. Bahadar accused while in Police custody got recovered stick P. 3 from his house. It was also made into a sealed parcel vide memo. Exh. C. G.

4. Haq Nawaz accused was arrested on 18-9-1977. He led to the recovery of blood stained stick P. 1 from his house which was made into a sealed parcel vide memo Exh. C. E. Allah Ditta son of Himayun and Allah Ditta Lambardar attested the recovery memos. After completing the investigation, the police challaned the appellants.

5. Abdul Aziz son of Nawab Khan filed a private complaint under section 302, P. P. C. read with sections 34 and 109, P. P. C. against the present appellants and Sharif son of Nawaz. The complaint case as also the case based on the police challan were sent up to the Sessions Court for trial. All the witnesses whom the complainant wanted to produce were examined as prosecution witnesses and the other witnesses who had been cited 'as prosecution witnesses in the police report under section 173, Cr. P. C. were examined as Court witnesses. The trial Court had adopted this procedure in view of the judgment of the Supreme Court reported as Nur Elahi v. The Stat etc. (PLD1966SC708).

6. The accused pleaded not guilty to the charge and claimed not to be tried. The case as set up in the complaint filed by Abdul Aziz is that his son Muhammad Sarwar deceased contracted marriage with Mst. Pathani, daughter of Ahmad in July, 1976 against the wishes of her relatives and both of them started living in the house of Sarwar deceased. About a year before the occurrence Sarwar decesaed patched up and after resolving the matter with the. parents of Mst. Pathani started living a happy married life. After sometime, Mst. Pathani deceased went to see her parents and she was forcibly detained by them. The accused who are related inter se bore a grudge against Sarwar deceased. Haq Nawaz appellant is the real brother of Mst. Patbani deceased, Umar Hayat appellant is her uncle and Bahadar appellant is son of the paternal aunt of Mst. Pathani. Sharif (acquitted accused of the complaint case) is alleged to be a friend of Haq Nawaz appellant. According to the facts as mentioned in the complaint Sharif accused visited Sarwar deceased at about sotewela and had a talk with him in the presence of Abdul Hamid Khan (P. W. 3) and Muhammad Tufail (P. W. 4). Sarwar deceased accompanied Sharif afore-mentioned and on the inquiry of Abdul Hamid (P. W. 3) told him that be was proceeding to the house of Sharif in connection with some urgent matter.` After sometime Abdul Hamid and Muhammad Tufail P. Ws. beard alarm from the sugar-cane field. On reaching there they saw Haq Nawaz, Umar Hayat and Bahadar accused be labouring Sarwar deceased with sticks in the watercourse. Sharif (acquitted accused) was also standing at some distance from them. Muhammad Sharif son of Imam Din P. W. (not produced) also .reached there. The witnesses tried to rescue Sarwar deceased but the accused threatened them. After belabouring Sarwar deceased the accused left towards their well sbouting Lalkaras that they bad taught a lesson to Sarwar of contracting marriage with Mst. Pathani against their wishes. Muhammad Sarwar succumbed to the injuries after about half an hour. The accused thereafter gave beating to Mst. Pathani. The P. Ws. meptioned above were attracted to the spot by the Shrieks of Mst. Pathani and thus witnessed the occurrence. After about an hour of the first occurrence the accused lifted Mst. Pathani in an injured condition and threw her dead body near the dead body of Sarwar. According to the complainant Abdul Hamid P. W. reported the matter to the police who reached the spot after sometime. The police arrested all the appellants but let off Sharif accused. The occurrence took place on 11-9-1977 whereas the complaint Exh. P. G. was filed on 29-7-1978, explaining the delay in filing the complaint. Abdul Aziz (P. W. 5) stated that he came to know about 8!9 months after the occurrence when the accused had applied for bail that Abdul Hamid, Muhammad Tufail and Abdul Ghafoor P. Ws. have not been cited as eye-witnesses by the police and some other persons had been cited and further,that Sharif accused had not been challaned upon which he filed the private complaint.

5. The ocular account in the complaint .case was furnished by Abdul Hamid (P. W. 3), Muhammad .Tufail (P. W. 4) and Abdul Aziz (P. W. 5). Hafiz Muhammad Hussain (P. W. 2) proved the factum of marriage between Sarwar deceased. and Mst. Pathani deceased at Faisalabad on 26-7-1976.

6. Dr. Abdul Sattar (P. W. 1) conducted the post-mortem examination on the dead body of Muhammad Sarwar deceased on 13-9-1977 and found 11 injuries on his person. In his opinion, the cause of death was shock and haemorrhage. The injuries were ante-mortem and were caused by blunt weapon and were sufficient in the ordinary course of nature to cause death. Duration between injuries and death was about half an hour. Exh. P. A. is the post-mortem examination report. On that very day, the same doctor conducted the post-mortem examitation on the dead body of Mst. Pathani aged 23 years, and found one injury on her person which was caused by blunt weapon and was sufficient in the ordinary course of nature to cause death. It had fractured the skull on the back and was ante-mortem. The duration between the injury and death was about one hour. Exh. P. B. is the attesting copy of the post-mortem report.

7. The complainant gave up Abdul Ghafoor and Muhammad Sharif P. Ws. as having been won over.

8. The witnesses mentioned in the F.

1. R. were examined as Court witnesses. Allah Ditta son of Majhi Khan and Allah Ditta son of Himayun appeared as C. W. 1 and C. W. 2 respectively. Allah Ditta son of Majbi Khan is the maker of the F.1. R. Exh. C. A. Muhammad Sharif son of Imam Din was not produced by the prosecution. .-9. The learned trial Court discarded the evidence of the witnesses of the complaint case, namely, Abdul Hamid (P. W. 3), Muhammad Tufail (P. W. 4) and Abdul Aziz (P. W. 5) being not truthful witnesses. The Court also considered their presence at the spot doubtful. The trial Court further came to the : conclusion that there was inordinate delay of about 10 months in filing the complaint. The trial Court also observed that the conduct of the witnesses created doubt about their presence at the spot and further that they had introduced a lot of improvements in the prosecution case. Their statements were also discarded being full of infirmities. 10. . However, the evidence of Allah Ditta son of Majhi Khan (C. W. 1) and Allah Ditta son of Hamayun (C. W. 2) was considered to be truthful on the ground that they had no motive to falsely implicate the accused. The Court observed that no doubt they had admitted to extend concession to- the accused but after eliminating the patches of concessional statements the truth could be found out. The Court further observed that the prosecution story that both the deceased were done to death by infliction of stick blows by the appellants appeared to be nearer to reality and titled with the attending circumstances. The Court further observed that C. W. 1 and C. W. 2 had supported the prosecution version as set out in the F.

1. R. in the examination-in-chief and that their presence had also been admitted by the defence counsel in the cross-examination. The witnesses to the recovery of weapons of offence from the accused did not support the prosecution and denied to have witnesses the recoveries. The trial Court, however, observed that it did not make any difference because the ocular evidence of C. W. 2 coupled with the motive and the medical evidence were sufficient to bring home the guilt to the accused beyond all reasonable doubt.

11. I have considered the reasoning advanced by the learned trial Court in convicting that appellant. According to the learned trial Court the ocular evidence coupled with the motive and the medical evidence had brought home the guilt to the accused beyond all reasonable doubt. I am at a loss to understand as to how the trial Court has come to this conclusion. Both Allah Ditta son of Majhi Khan (C. W. 1) and Allah Ditta son of Hamayun (C. W. 2) who appeared as eye-witnesses did not support the prosecution and stated in the cross-examination that it was a pitch dark and the accused had muted their faces and they identified them from their heights and statures. They further gave out that Mst. Pathani deceased was married to one Shamir whose house was situate near the place of occurrence and Shamir bad well-built and stout brothers and that they could not rule the possibility that the assailants might be the brothers of said Shamir. Allah Ditta (C. W. 2) went further to state that the two deceased were naked at the relevant time and the waist cloth of Mst. Pathani was lying near her dead body. These witnesses were. also the attesting witnesses of recoveries of weapons of offence from the accused and they denied if anything was recovered from the accused in their presence.

12. No doubt, the - trial Court is permitted to sift grain from the chaff on the overall appreciation of the entire evidence but in doing so it cannot ignore the material part of the evidence going against the prosecution. Lives and liberties of accused cannot be imperilled on. mere conjectures and suspicions and the decision must rest upon legal proof based on legal testimony. The rule that the Courts may draw its own inference and may not be deterred from the incompleteness of the tale given by each party is not applicable to this case where both the eye-witnesses and the recovery witnesses have turned hostile and have not supported the prosecution. The conclusion to be arrived at should have some nexus with the evidence and not based on mere speculations. .

13. It is well-settled and undeniable proposition that finally the burden lies upon the prosecution to prove each ingredient of the offence charged i.e., to support each ingredient by such evidence as would justify action by a prudent man. The Court must take into account. all the facts and circumstances appearing on the entire record. The cardinal principle of the criminal law as at present administered that the benefit of every doubt arising on any material point must go to the accused has not been followed in this case. No implicit reliance can be placed on the testimony of a witness giving inconsistent versions at different stages 4t is no doubt true that witness need not to be disbelieved merely because a part of his version is false but in the present case it is not really a question of falsus in unos falsus. The question is whether the witness can safely be believed have recognised the assailant when in the cross-examination they stated that it was a pitch dark and the accused had muffled their faces and it was b their stature that they recognised them. There can thus be no doubt that the eye-witnesses are basically dishonest and they gave evidence with a motive other than stating the truth. The doubts effecting the testimony of the prosecution witnesses cannot be resolved in favour of the prosecution unless such resolution is possible with reference to the other credible evidence o established circumstances. There is absolutely no evidence on the record except the one furnished by the so-called eye-witnesses.

14. Giving the case my anxious consideration, I have reached the conclusion, that in judging the evidence of Allah Ditto . son of Majhi Khan (C. W. 1) and Allah Ditta son of Hamayun (C. W. 2) which suffered from grave doubts and improbabilities the learned Additional Sessions Judge has pot acted in conformity with the judicial standard for the appreciation of such testimony on .a murder charge. It was a fit case where the benefit o doubt ought to have been extended to the appellants. I would, therefore, a accept this appeal and set aside the conviction and sentence of the appellants. The appellants who are present in Court are acquitted and set at liberty and are discharged from their bail bonds. M.A.K. Appeal allowed.