SHAMEEM HUSSAIN KADRI, ACTG. C. J.-----Muhammad Ashraf was tried by the learned Sessions Judge, Faisalabad, for the murder of Muhammad Sakhi. He was sentenced to death under section 302, Pakistan Penal Code and was ordered to pay a fine of Rs. 1000 or in default to undergo R. I. For six months by judgment dated 29th April, 1977. It was further ordered that the fine, if realised, shall be paid to the heirs of the deceased.
2. The occurrence is alleged to have taken place on 10th August, 1974, at 8 p. m. In Chak No. 350 G.
B. Within the precincts of Police station, Rajana, situate at a distance of six miles from the place of occurrence. Chanan Din (P. W. 6) whose sister is married to the deceased lodged the F. I. R. (Exh. P.
E.) at 10 p. m. The same day which was recorded-by Saeed Akbar Sub-Inspector (P. W. 9).
3. Dr. Khurshid Ahmad Khan; Medical Officer, Civil Hospital, Jaranwala (P. W. 1) performed autopsy on the dead body of Muhammad Sakhi on 11 August, 1974, at 4 p. m. He found five injuries on his person which were caused by sharp-edged weapon. Most of the injuries were on the neck. There was an incised wound just below the right pinna and a cut on back of chest upper part. The doctor opined that the cause of death was shock and haemorrhage resulting from injuries on outer and right side and on the back of neck. These two injuries were sufficient to cause death individually in the ordinary course of nature. The death was immediate. The stomach contained four ounces of semi---digested food.
4. The first informant took the accused along with the blood-stained hatchet to the police station.
Hatchet (P. 6) was taken .Into possession vide Memo Exh. P. D. On 10th August, 1974, by Saeed Akbar Sub-Inspector (p, W. 9), which was attested by. Naseer Ahmad kP. W. 8) and one Muhammad Shafi, who was not produced at the trial. Saeed Akbar found clothes of the accused besmeared withth blood. He took into possession his shirt (P. 4) and chaddar (P. 5) after removing them from the person of the accused vide memo Exh. P. C. Which was attested by Muhammad Shafi and Naseer Ahmad. The Chemical Examiner vide Exh. P. L. Found the earth, hatchet, shirt and chaddar stained with blood. The result of the Serologist was positive so far as hatchet, shirt and chaddar were concerned. They were stained with human blood. The blood stains on earth were disintegrated and its origin could not be determined.
5. Chanan Din (P.W. 6) narrated the prosecution story to the Sub --Inspector. He was a resident of village Ashaba, Police Station Sadar Jhang. He had gone two days before the occurrence in Chak No. 350 G. B. To meet his deceased brother-in-law Muhammad Sakhi. On the day of occurrence at about 6 p. m. Muhammad Sakhi went out in order to have a round of his cotton crop but did not return till 8 p. m. Since the deceased had enmity in the village the first informant along with Muhammad Siddiq, who was given .Up at the trial, and Muhammad Anwar (P. W. 7) son of the deceased went in search of Muhammad Sakhi. They had hardly reached the mango garden of Wali Muhammad when they heard shrieks of Muhammad Sakhi. Chanan Din, Muhammad Siddiq and Muhammad Anwar ran towards the side from which they had heard the shrieks. On reaching the spot they found Muhammad Sakhi fallen in the Khaal and the accused giving blows on his neck with the hatchet. The accused was caught at the spot along with the weapon of offence.
Muhammad Sakhi expired there and then. The motive for the crime was that Muhammad Akram elder brother of Muhammad Ashraf had injured Mst. Fateh Bibi wife of the deceased 21 months before the occurrence. A case under section 324, P. P. C. Was registered on 16th of April, 1974, at Police Station Rajana. F.
1. R. (Exh. P. G.) was recorded by Moharrir Head Constable Akram Beg (P. W.
3). Copy of this F.
1. R. Was produced by him at, the trial.
6. The eye-witnesses, namely, Chanan Din (P. W. 6) and Muhammad Anwar (P. W. 7) are closely related to the deceased. The former is the brother-in-law while the latter is son of the deceased.
Muhammad Siddiq mentioned in the F. I. R. Is also brother of Chanan Din. The former resides in Mauza Ashaba District Jhang. He had come per chance to see the deceas--ed and his sister. Sister of the deceased was married to Siddiq, who was not produced. Muhammad Siddiq has no land in Chak No. 350 G. B., but he used to work with the deceased on his land. Muhammad Sakhi had two sons Muhammad Anwar and Muhammad Akhtar. Both of them are grown up boys. The land of Wali Muhammad father of the accused is situate in the same square. There are material discrepancies in the statements of closely related eye-witnesses. It is strange that despite the fact that the deceased had enmity in the village he was allowed to go for a round of his cotton crop at 6 p. m.
Empty handed and none of his sons or brothers---in-law accompanied him. According to Chanan Din (P. W. 6) the deceased had not 'taken his evening meals when he left his house. It is also strange that these persons, who went in search of the deceased at 8 p. m. Were also empty handed. It is mentioned in the F. I. R. That the witnesses saw the assailant causing injuries but at the trial the first informant stated that when he was running towards the spot he saw the so .Appellant inflicting blows on the deceased. The accused had already caused injuries when they reached the deceased. The appellant was holding the hatchet when Chanan Din caught hold of him. The witness tied him and brought the appellant to the village school from where they boarded a tonga.
Of one Saleem.. According to Chanan Din the police came to the spot in the same tonga and investigated the case. The Thanedar according to the witness again came to the spot two three days after- his first visit. He, however, stated that he did not know as to whether the Thanedar on his second visit called Usman son of Haji Yousuf, Muhammad Hussain son of Sher Muhammad , Khuda Bakhsh son of Hassu and other persons in connection with this murder. He denied that the police had arrested these persons in connection with this murder. Chanan Din stated that he did not know that the parties had compromised in the case which was registered against Muhammad Akram brother of the accused on the report of the deceased 2-- months prior to the occurrence.
He further expressed his ignorance as to whether Muhammad Anwar P. W. Was arrested by the police in connection with the murder of Aslam. This witness admitted that he did not state before the Committing Magistrate that the accused was taken to the police station in the tonga of Saleem. He denied the suggestion that he came to the place of occurrence a day after the murder in the Chak on receiving the information.
7. The testimony of Muhammad Anwar (P. W. 7), who was brought in handcuffs by the police at the trial was recorded by the learned Sessions Judge after his handcuffs were removed. This witness stated that his deceased father owned 4-- killas of land in the Chak while Chanan Din stated that the deceased was owner of 6 acres of land. Muhammad Anwar deposed that Siddiq P. W . Was married to the sister of the deceased and he was residing with his father for the last 5/6 months prior to the occurrence. He was non-proprietor in the Chak and was helping his father in the cultivation. The witness admitted that his father was an employee of Usman. This reflects that he was not cultivating his own land and there was no occasion for him to go for a round: He also admitted that he and his companions Siddique and Chanan Din went out empty --handed at 8 p. m. He deposed that shrieks of this, deceased were hear by him and his companions from a distance of 25 or 30 karams. The accused did not raise any lalkara. He clearly contradicts' Chana Din by saying that when they reached the deceased, the accuse started running. He was captured since he stumbled and fell down. Muhammad Anwar categorically denied Thanedar's any other visit the spot after his first visit. He also expressed his ignorance about the compromise of deceased with Muhammad Akram in the criminal case, alleged motive of the crime.
8. The only recovery witness Naseer Ahmad (P. W. 8) admitted cross-examination that when Chanan Din produced the accused at Police Station Rajana no body else was with them. He was present there per chance since he had come there to effect a compromise in a criminal case of his chak. He further admitted that there were some other persons present at the police station other than the police staff but he did not know their names. Saeed Akbar (P. W. 9) had retired by the time the trial took place, He admitted in cross-examination that he did not remember as to whether Chanan Din produced the accused before him at the police station, and whether any other person was or was not present with them. Besides the police staff there were 2/4 persons present at the police station. He along with the constables, the accused and Chanan Din reached the spot in the tonga. He denied to have visited the spot on any other day subsequently. He stated that so far as he recollects when Chanan Din produced the accused before him he was not tied. The evidence of Naseer Ahmad (P. W. 8) and Saeed Akbar Qureshi.(P. W. 9) contradicts the eye-witnesses on material points.
9. Abdur Rahim (P. W. 5), Patwari Mall, Haiqa Chak No. 257 stated at the trial that he prepared the site plan on 12th November, 1974, at the instance of police and on the pointing out of the P. Ws. It is strange that the site plan was prepared almost three months after the occurrence.
10. The appellant denied the recovery and his guilt. He described his implication on account of his being brother of Akram against whom the deceased had nurtured grudge. Calendar for the year 1974 was sent for and was consulted. On 10th August, 1974, the sunset at Lahore was 18.54 and noon rise on the same day was 22.55. Giving, a margin of about 5/10 minutes for Faisalabad it was clearly pitch dark when the occurrence took place according to the prosecution.
11. Evidence was perused with the help of learned counsel for the appellant and the- State. Their arguments were heard. It is abundantly clear that there are material discrepancies discussed above and it was pitch dark when the occurrence took place. The identification of the assailant is doubtful. Both the eye-witnesses deposed that they heard the shrieks of the deceased but that would not be helpful, for, it could not connect the assailant with the crime. This could be possible had the eye--witnesses deposed that they heard lalkara raised by the assailant. The appellant seems to have been involved on account of suspicion. The motive for the crime, i. e. Beating of Mst.
Fateh Bibi wife of the deceased; regarding which case was registered against Muhammad Akram brother of the appellant does not directly connect him, for, if there could be any malice it could only be with the appellant's brother. There is no reason why the accused should have killed the deceased. There is nothing in evidence that the case was pending. Both the eye-witnesses deposed that they did not know as to whether the compromise had talked place between Akram brother of the appellant and the deceased in the criminal case mentioned above, registered under section 324, P. P. C. The behaviour of the deceased going for a round of the crop empty-handed and the witnesses going in search of the deceased without carrying anything in their hands despite the allegation of existing enmity in the village, looks unnatural Saleem Tongawala was an important witness but he has not been produced. Chanan Din was also a chance witness, since he belongs to a village in Jhang Distt. The possibility of suggestion of defence cannot be ruled out that he had been called in order to make him as eye-witness of the occurrence. Similarly the only recovery witness, Naseer Ahmad (P. W. 8) is also a chance witness and his presence at the Police Station Rajana a 10 p. m. For effecting a compromise in a criminal case also seems to doubtful.
Statement of Chanan Din P. W. Clearly comradicts medic evidence. He stated that .He deceased had left at 6 p. m. Without taking his evening meals while the doctor who performed post-mortem examination mentioned in his report (Exh. P. F.) and also deposed at the trial that t stomach of the deceased contained four ounces of semi-digested too It is thus clear that the occurrence has not taken place at the time allege by the prosecution and none of the eye-witnesses has seen the occurrence The accused is entitled to the benefit of doubt.
12. For the foregoing reasons this appeal is accepted, the conviction and sentence of the appellant are set aside and the accused is acquitted.