This judgment will dispose of Criminal Appeal No, 335/2002 and crl. Revision No, 277 of 2002 directed against the judgment dated 26.2.2002 passed by the learned Addl: Sessions Judge, Chunnian, District Kasur, whereby he convicted the appellants u/S. 302(b) PPC and sentenced them to undergo life imprisonment and with further direction to pay compensation of Rs, 20,000/- each under Section 544-A Cr.P.C. or in default thereof six months S.I. more. Benefit of Section 382-B Cr.P.C. was also granted to them. Two co-accused namely. Muhammad Tufail and Arshad were acquitted by him through the impugned judgment.
2. The facts of the instant case in brief as narrated by the complainant in the FIR are that on the night of occurrence at about 3.30 a.m. the complainant alongwith. Allah Bakhsh his maternal cousin were watering the fields. The complainant was watching the chilly crop while Allah Bakhsh was laying on the southern 'watt' of the field. The accused Sabir Ali armed with a dagger, Muhammad Tufail armed with a gun 12 bore double barrel, Ahmad Yar and Zulfiqar Ali armed with wooden clubs and Arshad alias Mithu empty handed came there from the village side. Seeing them the complainant hid himself in the chilly crop. The accused came running and over powered the said Allah Bakhsh. Zulfiqar accused held him from his legs while Ahmad Yar and Mithu caught his arms. The accused Sabir Ali gave the blow of his dagger on the neck of Allah Bakhsh who expired at the spot. On raising hue and cry by the complainant the accused fled away. The motive behind this occurrence was that in 1988 Mukhtar Ahmad father of the accused Sabir Ali had been murdered for which the present deceased Allah Bakhsh, the complainant and others nine in all, were challaned. They were convicted for the murder of Mukhtar Ahmad but were acquitted subsequently by the Hon'ble High Court.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Ahmad Ali S.I. alongwith his subordinates proceeded to the spot. He prepared the injury statement Ex.P.H and inquest report Ex. P.G. He also secured the blood stained earth vide memo Ex. P.E. Last worn clothes of the deceased were also received by him vide memo Ex. P.A. Then the investigation of the instant case was transferred to Muhammad Siddique S.I. who on 7.7.2000 arrested Arshad, Muhammad Tufail, Ahmad Yar and Sabir accused. On 17.7.2000 dagger of Muhammad Sabir and sotas belonging to Ahmad Yar and Zulfiqar Ali were produced by Muhammad Sarwar which were taken into possession vide memo Ex. P.B., Ex. P.C. and Ex. P.D. respectively. Ultimately he completed the investigation and challanged all the accused mentioned above.
4. The prosecution in order to prove its case has produced as many as 11 witnesses including Doctor, Ios, eye-witnesses and other relevant and formal witnesses. After giving up some pws and tendering in evidence FIR Ex. P.F/I, report of the office of Chemical Examiner, Lahore Ex. P.M and report Ex. P.N concerning, blood stained dagger, closed the prosecution evidence. Thereafter, statements of the accused were recorded u/S. 342 Cr.P.C. in which they pleaded their innocence.
Learned trial Court after taking into consideration the evidence produced by the prosecution and hearing the arguments advanced by both the parties convicted and sentenced the appellants as mentioned above and acquitted two co-accused. Hence the instant appeal.
5. Learned counsel for the appellants in support of this appeal submits that case against the appellants is totally false and they have been falsely roped in this case. It was an un-witnessed occurrence. Ocular account does not corroborate with the medical evidence, that the recovery of dagger and sotas can not advance the prosecution case, that no case against the appellants is made out and they are entitled to acquittal, that the Moharrar who kept the dagger with him was not produced by the prosecution.
6. Learned counsel for the state on the other hand submits that Sabir Ali had the motive to kill the deceased because his father was murdered and the deceased and other were convicted in that murder case by the learned trial Court but acquitted by this Court, that ocular account is corroborated by the medical evidence, that Both Ahmad Yar and Zulfigar had held the deceased from his arms and legs. They have facilitated the murder of the deceased. Lastly,' he submits that sentence awarded to the appellants may very kindly be enhanced.
7. I have heard the learned counsel for the parties. The occurrence in this case has taken place on 18.4.2000 at 3.30 a.m. Five accused persons namely Sabir Ali, Ahmad Yar, Zulfigar Ali, Muhammad Tufail and Muhammad Arshad alias Mithu were named in the FIR by the complainant Muhammad Hussain. Muhammad Tufail and Arshad alias Mithu were acquitted by the learned trial Court while Sabir Ali, Ahmad Yar and Zulfigar Ali were convicted u/S. 302 (b) PPC and were sentenced to undergo life imprisonment. The allegation against Muhammad Arshad the acquitted co-accused was that he had held the deceased from his arms while Muhammad Tufail acquitted co-accused, who was armed with 12 bore gun caught the legs of the deceased. They both have been acquitted by the learned trial Court. The appeal filed by the complainant against their acquittal was dismissed by a D.B of this Court on 25.9.2002. The story of the prosecution is that Ahmad Yar held the arms while Tufail acquitted co-accused held the legs of the deceased and Sabir Ali gave a dagger blow on the neck of the deceased. On the same evidence Muhammad Arshad alias Mithu has been acquitted which has been used against Ahmad Yar the convicted accused. There is no other injury except the injury on the neck of the deceased in the shape of abrasion, contusion or lacerated one. It is un-imaginable that when a young person is taken in the grip by the accused persons he will not resist. This is most unnatural. In order to reach at a just conclusion I would like to mention-the injury along-with dissection and opinion which are reproduced below: Injury. Incised gaping wound 26 x 10 cm. There is gap between chin and thyroid cartilage which is 6 c.m. blood clots were present. Skull was not expelled.
Dissection.
Thyroid cartilage is cut between 5th and 6th cervical verte-brae at inter vertebral. All major vessels were cut in the neck. Trachea was cut above the thyroid cartilage. Skull was holding with trunk just with a skin tag. Esophagus was cut. In front of neck thyroid cartilage was cut and all major vessels were cut. Stomach was containing 2 to 3 fluid ounces semi digested food. Liver was normal. In the bladder there was scanty urine. All genital were well developed.
Opinion.
In my opinion death occurred due to injury to throat leading to cutting of major blood vessels and nerves in neck resulting in neuron vascular shock. Injury was anti mortal. This injury was sufficient to cause death within ordinary course of time. Time between injury and death instantaneously. Time between death and post-mortem was 12 hours. The P.M.R. Ex. P.K is the correct carbon copy of diagram Ex. P.K./1, both are in my hands and bears my signatures. The dead body was handed over to the police accompany clothes and police papers.
8. A bare perusal of the injury wound show that it was 26 x 10 cin. The damage caused due to the said injury on the face of it proves that the same cannot be caused with a dagger having 6(1/3) blade and 11/2" width. In my opinion this injury has been caused by a heavy sharp edged weapon like Toka, Kassi etc. The post-mortem report also shows skull was holding with trunk just With a skin tag. According to the prosecution case one of the acquitted Muhammad Tufail was armed with 12 bore gun and it was very easy for him to kill the deceased or to kill Muhammad Hussain complainant who was allegedly present at the spot. The occurrence had taken place at 3.30 a.m. when there was full dark. No source of light has been mentioned in the FIR nor in the rough site- plan. Ex. P.J and Ex. P.J/1 prepared by the Draftsman, so the identification of the accused was difficult. The matter was not reported in the P.S. but at Moakkal road near Railway Station Basti Qutab Shah. The story given in the FIR does not seems to be plausible and natural. As far as recovery of dagger and sotas on the pointation of the appellants are concerned, those were also affected according to law because same were not made on the pointation of the appellants but those were brought from the houses of the appellants by one Sarwar PW according to the prosecution case.
9. After having heard the learned counsel for the parties and also going through the record, this Court is not satisfied with the prosecution story. Presence of the eye-witnesses at the spot is doubtful so while granting benefit of doubt, I accept this; appeal and set aside the conviction and sentence awarded to the appellants by the learned trial Court. The appellants are ordered to be released forthwith if they are not required in any other case.