1. G. SAMAR SHAH, J.-The two respondents herein, who according to the record are closely related to each other, were tried by the Sessions Judge, Gujrat, under section 302/34, P. P. C. For the murder of Fazal Hussain (who incidentally was related to respondent Muhammad Anwar as Hamzulf), who found them guilty and sentenced both of them to death and a fine of Rs. 100, or in default R. I. For one month.
2. In the joint appeal filed by them in the High Court, to which reference was also made by the trial Judge under section 374, Cr. P. C., the High Court accepted their appeal and acquitted them with the result that the reference made to it under section 374, Cr. P. C. Was also rejected.
3. Leave against the judgment of the High Court was granted to the appellant by the order of this Court, dated 26-11-1976 on the ground amongst others, as the learned counsel for the appellant was "critical of the apprecia--tion of evidence in the High Court and emphasised that the High Court's judgment suffered from misreading of evidence on vital points". By the same order non- bailable warrants of arrest returnable to the District Magistrate, Gujrat, were issued against the respondents, and we are told that they were accordingly arrested and ever since then are in judicial custody.
4. We have heard Ch. Nazir Ahmad, the learned counsel for the appellant; Sh. Riaz Ahmad, the Assistant Advocate-General, Punjab, but on behalf of respondents 1 and 2 no one appeared. The main thrust of the arguments advanced by the learned counsel for the appellant is that the learned Judges in the High Court were in error to disbelieve the two eye-witnesses, namely, Muhammad Hussain (P. W. 9) and Mst. Aisha (P. W. 10) on the ground that whereas Muhammad Hussain was a chance witness, Mgt. Aisha was an interested witness as she was not only the sister of the deceased but the parties were inimical to each other and consequently her uncorro-- borated testimony could not safely be accepted. He contended that while he was not going to rely -on the recovery evidence, the case against the respondents has been satisfactorily established by the eye-witness account of P. Ws. Muhammad Hussain and Mst. Aisha; the motive and the medical evidence. Sh. Riaz Ahmad, the learned Assistant Advocate-General also supports the contention urged by the learned counsel for the appellant.
5. But before dealing with the main submissions made by Ch. Nazir Ahmad Khan, it would be proper for the better understanding of the case of the prosecution to briefly go over the facts of the case.
6. Now according to the F. I. R. (Exh. P. F.) lodged by late Khawaj Din at the Dinga Police Station, Tehsil Kharian, District Gujrat, deceased Fazal Hussain was done to death by the respondents in his land situated at a distance of 1i furlongs towards the north-east of the village abadi when he was lying on a cot under a keekar tree guarding his grass and the trees growing on his land. Late Khawaj Din was similarly guarding his own trees and grass, sitting at some distance from where the deceased was lying on a cot, when P. W. Muhammad Hussain arrived and sat with him for smoking 'huqa'.
7. In the meanwhile respondents P. W. Mst. Aisha Bibi brought the mid-day meal for Fazal Hussain. But right then the two respondents, armed with hatchets, appeared on the scene and raised a lalkara that Fazal Hussain will not be spared. On hearing the lalkara, Fazal Hussain was about to rise from his cot when the two respondents gave him three hatchet blows on his head with the result that he fell down and thereafter, ignoring the entreaties of P. Ws. Muhammad Hussain and Mst. Aisha not to belabour him further, the two of them gave many more blows to Fazal Hussain and then ran away I towards the village.
8. The motive mentioned in the F. I. R. Was that in the year 1960, respondent Muhammad Anwar had abducted Mst. Nazir Begum, the daughter-in-law of complainant Khawaj Din, as a result of which the parties had fought with each other during the course of which one Muhammad Ashraf, the brother of respondent Muhammad Anwar, was killed. In connection with that case deceased Fazal Hussain and four others were arrested, later tried by the Sessions Judge but they were acquitted.
9. After their acquittal, however, the parties are said to have entered into a compromise to the effect that Mst. Nazir Begum was divorced by her husband who then got married to Muhammad Anwar.
10. Notwithstanding the said compromise, however, respondents are said to have nursed a grudge against the deceased owing to the murder of Muhammad Ashraf and consequently murdered Fazal Hussain in order to avenge themselves.
11. In support of its case the prosecution relied in the trial Court on the eye-witness account furnished by P. Ws. Muhammad Hussain and Mst. Aisha; on motive; recoveries and the medical evidence. In their statements recorded under section 342, Cr. P. C., however, the respondents denied the case of the prosecution, and contended that they had been falsely involved in this case on account of enmity.
12. The learned trial Judge believed the evidence furnished by P. Ws. Muhammad Hussain and Mst.
13. Aisba Bibi holding that whereas Muhammad Hussain was an independent witness, the presence of Mst. Aisha on the scene of occurrence was entirely natural and consequently there was no reason to disbelieve her. He also believed the evidence as to the motive, and relying on the evidence of recoveries, namely, the blood-stained hatchets recovered at the pointing out of the respondents, convicted them and sentenced them as aforesaid.
14. The learned Judges in the High Court, however, disagreed with the view taken by the learned trial Judge mainly on the ground that he had failed to scrutinize the evidence of the prosecution carefully. The view taken by them was that Muhammad Hussain was not only a partisan, but a chance witness; that Mst. Aisha Bibi had not seen the occurrence; that the motive relied upon by the prosecution was too remote and far-fetched; and that the recoveries of weapons at the pointing out of respondents were not free from doubt, and so could not be relied upon. Having recorded these findings, the learned Judges fell satisfied that the prosecution case was doubtful and consequently acquitted the respondents as aforesaid.
15. Coming now to the contention urged by Ch. Nazir Ahmad Khan, the learned counsel for the appellant, it is true that P. Ws. Muhammad Hussain and Mst. Aisha both claimed to have seen the occurrence but by going through their evidence, in juxtaposition with the medical evidence on record, their claim seems to be doubtful. To begin with they have admitted that between the place of occurrence and the village abadi there existed no obstruc--tion in the form of trees, high- hedges or undulated ground so as to obscure from view any one coming from the side of the village. In this vie of the matter, it is rather difficult to believe that the two respondents arrived at the scene of occurrence wholly unnoticed by late Khawaj Din as well as P. W. Muhammad Hussain or for that matter Mst. Aiaba who was still at some distance from the cot of Fazal Hussain. The manner in which the two respondents are said to have attacked Fazal Hussain is also not convincing. It is in the evidence of Muhammad Hussain and Mst. Aisha that when the respondents arrived at the scene they raised a lalkara, that Fazal Hussain will not be spared; that on hearing the lalkara, Fazal A Hussain was about to rise from his cot when Anwar respondent gave him hatchet blow on the back side of his head; thereafter Rehmat respondent gave him another hatchet blow on his head followed by Anwar respondent who again gave him a third blow on the head and only thereafter Faza Hussain fell down on the ground. The medical evidence would show that the said three injuries suffered by Fazal Hussain on his head were not only incised in nature but measured 3" x 1' (with bone cut through and through); 2' x -- x -- (occipital region); and 3" x 2' x bone deep. It should, therefore, be obvious that each one of the said injuries would be sufficient to knock out any healthy and normal person. And consequently the claim of Muhammad Hussain and Mst. Aisha that Fazal Hussain finally fell down after having received the said three injuries on his head cannot be believed.
16. In so far as Muhammad Hussain is concerned, we respectfully agree with the view taken by the High Court that he was not only a chance witness, but had his own reason to depose against the respondents. It is in hi evidence that his own land was situated on the other side of the village, and further that he owned no land anywhere near the scene of occurrence. It is true that in his re- examination by the Public Prosecutor, he alleged that h happened to be present with late Khawaj Din because he was returning from village Dhok where he had gone to see his niece. But evidently this effort on the part of the Public Prosecutor was futile because in none of his previous statements, recorded under section 161, Cr. P. C. Or 164, Cr. P. C., Muhammad Hussain had made any mention of the fact that on his way back from village Dhok, he sat with Khawaj Din for a chat and smoking 'huqa'. Furthermore, he admitted in cross-examination that for the abduction of one Mst.
17. Noor Begum he bad been tried in a Court and one Sardar Khan, the father-in-law of the brother of respondent Anwar, named Muhammad Azam, had appeared against him as a witness for the prosecution.
18. Mst. Aisha's evidence has been disbelieved by the High Court because of the admitted blood feud between the parties owing to the fact that 13/14 years prior to the present occurrence respondent Anwar had abducted Mst. Nazir Begum, sister-in-law of deceased Fazal Hussain, as a result of which the parties had fought with each other during the course of which the brother of respondent Anwar named Muhammad Ashraf was killed. The High Court was, therefore, of the view that "If the appellants or Muhammad Anwar appellant in particular had not accepted the said compromise, they might have not waited for so many years in order to take revenge. Besides that, it is not understandable as to how the two appellants could be so suddenly instigated or provocated by the tenants of the mother of Muhammad Anwar appellant that they should come armed with hatchets from the side of the village to the place where the deceased was lying on a cot and after raising a lalkara to have murdered him in order to avenge the death of Shera. In our considered opinion, therefore, the motive as set up by the prosecution, also does no appear to connect the appellants with the commission of crime as it is not a convincing motive". Respectfully, this conclusion seems to be convincing If the respondents had waited 13/14 years to avenge the death of Muhammad ~Ashraf (the brother of respondent Anwar), it is inconceivable that they would take the life of late Fazat Hussain in broad daylight and that too in the presence of the witnesses.
19. The medical evidence on record would seem to furnish a complete and satisfactory answer to the false claim of P. Ws. Muhammad Hussain and Mst. Aisha that they had seen the occurrence. Doctor Abdul Majid, who had performed autopsy on the dead body of Fazal Hussain had found on his person the following injuries:-
(1) An incised wound on the right side of head, parietal region 3' above the ear 3" X 1" x bone cut through and through.
(2) An incised wound on the head back middle (occipital region) 2x -- x --
(3) An incised wound on the left side head back 3" x 2' x bone deep transverse in direction.
(4) An incised wound on the right thumb back at the base 1' x --x bone cut through and through.
(5) An incised wound on the right hand towards the thumb side 2' x --x --oblique in direction.
(6) An incised wound on the right wrist back l -- " x --x -- , bone underneath was cut.
(7) An incised wound on right forearm back middle portion 2 -- x 1/2" x bone cut through and through.
(8) Right humerus bone was fractured with three superficial wound; over it 2" x --x -- each on the front side in the middle an( transverse.
(9) Two abrasions on the left collar bone over the outer third portion 1' X 1 /6' each.
(10) An incised wound 5' x 2" X bone cut through and throug towards the little toe side.
(11) An incised wound 3' X 2 -- x bone cut through and throug on the lower third portion of the right leg lateral aspect.
(12) An incised wound on the right leg below knee joint 4" x 1'bone, chopped off.
(13) An incised wound on the right knee front 4' X 2" X bone cc through and through.
(14) An incised wound on the right thigh back middle portion 4' a 1' x muscle deep.
(15) An incised wound lumber region 3'X 1/2"X 1/2".
(16) An abrasion on the left shoulder blade 4"X 1'.
(17) An incised wound on the left leg lower third portion on the front side 4" X 1' x bone cut through and through.
20. (t8) An incised wound on the thigh in the middle third portion on the front side 4" x 2" x bone cut.
21. On opening the skull of the deceased, he found the bone structure fractured. And on opening the abdomen, he discovered that the stomach of the deceased contained digested food. Large intestines contained faecal matter. Bladder was full of urine.
22. Now by a careful scrutiny of the injuries suffered by the deceased it should be easy to pinpoint the manner in which he was actually attacked. Injuries Nos. 1, 4, 5, 6, 7, 8, 11, 12, 13 and 14 clearly reveal that these were caused to the deceased when he was lying on the cot on his left side. In point of fact this is the only hypothesis on the basis of which the said injuries can be explained as otherwise the injuries suffered on the back of his right thumb, right hand, on the back of his right wrist, on the back of his right forearm on his right humerus bone, on the lateral aspect of the third portion of his right leg, on the right leg below the knee joint, on the right knee and on the right thigh could not have been caused to him in that set pattern if the evidence of P. Ws. Muhammad Hussain and Mst.
23. Aisha is believed that he was felled to the ground only after having received three hatchet injuries at the hands of the respondents. This conclusion would seem to be supported by the fact that two of the injuries suffered by him, namely, injuries No. 9 and 16 were found to be abrasions appearing on his left collar bone and the left shoulder which in the nature of things he came to suffer when he was given the said various injuries on the right side of his body and consequently his left collar bone and the left shoulder came in violent contact with the rope like webbing of the cot on which he was lying. In this view of the medical evidence, of which however, no notice was taken in the High Court, we are satisfied that P. Ws. Muhammad Hussain and Mst. Aisha had not seen the occurrence.
24. The conditions of the stomach of the deceased as well as of his intestines and bladder would also go a long way to support this conclusion. It is true that the digested food found in his stomach can as well be explained on the hypothesis that being the month of August he might have eaten something in the morning. But the presence of faecal matter in his large intestines, a also that his bladder was found to be full of urine, would be difficult, explain. From this state of the internal organs of the deceased the possibility cannot be excluded that the deceased was done to death sometime in the very early hours of the morning when no one was around.
25. It is the case of the prosecution that the deceased when he was done to death at about dopehrwela was guarding his grass and the trees growing on his land. If this be so, then it would seem to have been more necessary for him to guard the same during the dark hours of the night as in the nature of things their being stolen away during the night would be more convenient. It seems to us that having been murdered sometime in the early hours of the morning, when no one is around the two P. Ws. Came forward to foist the blame on the two respondents on account of suspicion, as both of them were not very well disposed towards the respondents.
26. This appeal, therefore, fails and is dismissed. It is, therefore, directed that the respondents shall be released forthwith unless required in some other case. It may be mentioned, however, that by a short order recorded by us on 28-4-1979 we had announced our decision as to the dismissal of this appeal, and these are the detailed reasons in support of the said order.