P L D 1963 (W (PLP)

5. The autopsy on the dead body of Muhammad Amin was conducted by Dr. Ghulam Sarwar (P. W. 1) on the 5th October 1961, at 12 noon, and the following injuries were found there on :‑ (1) An incised penetrating wound, 1 " x ", slightly in oblique direction, on the front of the uppermost part, near the armpit. In depth it was directed towards the chest under the skin of the arm, to downward inward and a little down to horizontal direction. Wound entered the chest cavity between the 3rd and 4th ribs at the anterior axillary line. There was 1 " long wound between the third and fourth ribs. The wound cut through the pleura as also the left lung up to 2" deep. (2) An incised penetrating vertical wound, 2 " x 1", on the outer part of the upper‑most part of the front of the right thigh. Wound was directed nearly horizontally cutting the femoral vessel and muscles which also cut the pubic ramus to deep. Internal examination revealed a wound, 1 long in inter-costal muscles between third and fourth left ribs. Left pleura was cut under injury No. 1, the cavity containing 8 ounces of fluid blood. The left lung bore a cut wound, 1 long and 2" deep. Death, in the opinion of the doctor, was due to shock and haemorrhage, caused by injuries Nos. 1 and 2, each one of which was sufficient to cause death in the ordinary course of nature.

6. Dr. Khalid Parvaiz (P. W. 2) medically examined Mst. Fazal Bibi and found the following injury on her person :‑ A swelling, x on the lower side of right eye. The above injury was caused by a blunt weapon and was simple in nature. In cross‑examination the doctor said that the injury could be caused by striking against any hard substance.

7. Direct evidence regarding the commission of the crime is furnished by Mst. Fazal Bibi (P. W. 10), Rashid (P. W. 11) and Abdullah (P. W. 12) in their statements. Ghulam Muhammad (P. W. 9) deposed to the motive. Muhammad Khwaja (P. W. 8) and A. S. I. Hasan Muhammad (P. W. 13) testified to the recovery of blood‑stained spear at the instance of Yusuf appellant.

8. The defence of the appellant was a bare denial. No evidence was called in defence.

9. For the appellant it has been vehemently argued that the conviction is improper inasmuch as it proceeds on the evidence of a solitary witness who was disbelieved by the learned Additional Sessions Judge regarding the part assigned to Nawab Din, co‑accused. There is force in the argument which must prevail. We find that the learned Additional Sessions Judge dismissed the evidence of Mst. Fazal Bibi and Abdullah. He summarised his findings regarding the evidence of these witnesses as under:‑ "Mst. Fazal Bib! (P. W. 10).‑She claims to have been present at the water‑pump where too she had gone with a pail to fetch water. If she had in fact gone to the water- pump, as alleged by her, and while standing there she had witnessed the occurrence from start to finish, she must have narrated the occurrence in the F. I. R. in the first person. But the perusal of the F. I. R. gives an idea otherwise. It reveals a narration objectively. Nowhere in the F. I. R. was it alleged that the maker thereof herself had witnessed the occurrence. She did not allege her presence at the water‑pump with a rider that she had gone there to fetch water. She also did not allege even before the Committing Magistrate that she had gone to the pump to fetch water. Again looking at the swelling of her cheek under the eye with an assertion that it was the result of the blunt side of Yusuf accused's spear striking her cheek while she was attempting to hold back Yusuf accused's blow aimed at the deceased, it would mean that the spear should have been in line with her eye region. I am afraid it was impossible. When one tries to snatch the weapon in the aforesaid manner, in all probability, the person trying to snatch the weapon, gets a rebounding thrust somewhere on the chest or shoulder‑blade region. As a result I hold that Mst. Fazal Bibi had not witnessed the occurrence. She came to the spot after she had been apprised b, Rashid P. W. as to what had happened." "Abdullah (P. W. 12).‑‑He owns no house in the hamlet of occurrence. He cultivates a field about 2 or 3 Killas away from the water‑pump of Hussain Bakhsh. His arrival at the time of occurrence only to drink water smacks of a crude attempt to assert his presence. Since he is a first cousin of Mst. Fazal Bibi, therefore, it does not require much of calcula tion how to multiply 2 by

2. Besides the general tendency that one finds here on the part of the complainant side to implicate the innocent relatives of the guilty, I also find a tendency to bring in relatives as many as can be possible so as to depose P. W. and thus strengthen the prosecution case. Perhaps behind such latter tendency a fear lurks that prosecu tion may not succeed if there is one or two ocular witnesses, who, notwithstanding, are interested in the deceased in one way or the other. Hence I do not believe that P. W. Abdullah had witnessed the occurrence. The perusal of his statement also suggests the same conclusion."

10. This leaves us with the evidence of Rashid, who is a cousin of the deceased. He was not relied upon implicitly by the learned Additional Sessions Judge who considered that, in all probability, Rashid left the spot after Yusuf had inflicted an injury with the spear to the deceased, and when Mst. Fazal Bibi arrived at the spot on learning of the occurrence from Rashid, she found two spear injuries on the person of her son and ascribed one of the injuries to Nawab Din. Adverting to the statement of Rashid, we find that he claimed to have seen both Yusuf and his uncle Nawab Din giving a spear thrust each to the deceased in the presence of Mst. Fazal Bibi and Abdullah. It is also in the statement of this witness that there was no exchange of abuse and no quarrel between the accused and the deceased at that time. According to Rashid, the assailant took out the spear from the nearby cattle- shed and assaulted the deceased. To the contrary, Mst. Fazal Bibi stated that when Yusuf and his uncle objected to the straying of the bullock of the deceased to their manger, the latter retorted whether his bullock had eaten their grain, and then he was attacked by the accused. Abdullah tells a different story. He states that the deceased was attacked by the accused and he started retreating, but he was facing the assailants while retreating and did not try to run away and was speared. This is contrary to the medical evidence. The evidence of Rashid is contradicted in material particulars by Mst. Fazal Bibi and Abdullah. The learned Additional Sessions Judge doubted if Rashid saw the second injury being inflicted by Nawab Din on the person of Muhammad Amin. The learned Additional Sessions Judge observed:- "What I visualise is that when Yusuf accused gave a thrust blow in the chest region of the deceased and when the latter fell down as a result thereof, the kid must have cried and took to heels to inform the deceased's mother. On her arrival the deceased was found lying dead at a place of one or two paces away from where he had first fallen. The accused must have been absent. Seeing that the deceased bore injuries, therefore, it did not require much of imagination to pin down the second injury to Nawab accused. Accordingly I hold that P. W. Rashid did not see the infliction of the second injury and that too by Nawab accused * * * * * * * * * * Since P. W. Rashid, kid as he was, and as they say that a tale grows in the telling, therefore, the kid, while narrating the occurrence to Mst. Fazal Bibi, seems to have been carried away by youthful imagination to state that Nawab had also injured the deceased. I do not believe it." It was not open to the learned Additional Sessions Judge to rely on the same evidence to convict the co‑accused on a capital charge. The credibility of witnesses is not divisible to be believed against one and to be disbelieved against another accused. The more we read the statement of this witness, the more we get convinced that the evidence of Rashid is open to serious doubt, and it would not be safe to maintain the conviction of the appellant on his solitary statement.

11. The recovery of blood‑stained spear at the instance of Yusuf appellant cannot be relied upon to convict the appellant because similar recovery at the instance of the other accused was not considered sufficient by the learned Additional Sessions Judge for the conviction of Nawab Din. When ocular evidence is disbelieved in a criminal case, the recovery of an incriminating article in the nature of weapon of offence does not by itself prove the prosecution case. Similar view was taken in Dhunde v. The Crown (I L R 16 Lah. 995) and the observations of their Lordships in this regard may be reproduced here with advantage:- "The only point remains as to whether the evidence of the recovery from Dhunde's house of a blood‑stained chopper and a blood‑stained chadar is enough by itself to justify the convic tion of Dhunde. We do not think it is. This is circumstantial evidence the value of which is very great when used to corroborate other evidence. It cannot by itself prove the case for the Crown. It is possible to imagine many an occasion where the mere discovery of a blood‑stained weapon or blood stained clothes was due to something other than murder, for instance, concealing a dead body or receiving from the real murderer a blood‑stained weapon in order to hide it and so assist the murderer. It, is impossible to say that the discovery of a blood‑stained article is enough by itself to justify a conviction for murder. This being our view we have to accept the appeal and set aside the conviction and sentence of death."

12. The motive for the murder is also not very convincing It is alleged that Yusuf appellant and Muhammad Amin deceased who happened to be friends simultaneously carried on with one Mst. Hamidan. Eventually Mst. Hamidan was betrothed to the deceased and Yusuf started harbouring a grudge against Muhammad Amin. We find from the statement of Ghulam Muhammad (P. W. 9), father of the deceased, that he is married to Mst. Taji, who is a sister of Mst. Hamidan. How could the deceased be married to Mst. Hamidan when her real sister is married to the father of the deceased. The mother of the deceased who also appeared as a witness stated that it was after the occurrence that she learnt that her husband was negotiating for the hand of Mst. Hamidan in marriage with the deceased. The evidence on this point is far from satisfactory and we are not prepared to rely on the story of motive. The deceased, it seems was a desperado. His father Ghulam Muhammad stated that Muhammad Amin used to go about armed with a spear to vindicate his honour because Yusuf continued making advances to Mst. Hamidan even after her betrothal to the deceased. We are not convinced regarding the story about the motive. In our opinion, the witnesses produced in this case by the prosecution are not worthy of credence. Their evidence was disbelieved against one of the accused and it cannot be accepted against the other in view of what has been pointed out by us. We, therefore, allow the appeal, set aside the conviction and sentence of death passed upon Yusuf and proceed to acquit him. He is in jail and we direct that he shall be set at liberty forthwith provided always that his detention is not necessary in connection with any other matter. K. B. A. Appeal accepted.