' MUHAMMAD FARRUKH MAHMUD, J.--- Mulazim Hussain and Saeed Ahmad were tried by the learned Additional Sessions Judge,. Khanpur in lieu of case F.I.R. No,62 registered at Police Station Islamgarh on 7-6-2002 for offence under section 302/34, P.P.C. For having committed the murder of Abdul Rasheed. Vide judgment, dated 5-11-2003, the learned trial Judge convicted them for offence under section 302(b), P.P.C. Each and sentenced each of them to imprisonment for life.
They were directed to pay Rs, 50,000 each to the legal heirs of the deceased. In default in payment thereof, they were to suffer S.I. For six months each. Aggrieved thereby, the convicts have filed the instant appeal.
2. The facts of the prosecution case per F.I.R. Exh.P.B. Lodged at the instance of Abdul Majeed, complainant/P.W.3, resident of Chak No,191/I-R, are that Rahim Bakhsh, brother of the complainant, was away to. Abu Dhabi. Abdul Rasheed son of Rahim Bakhsh ran a grocery shop at Adda Gulshan Farid and was living with the complainant. The appellant Mulazim Hussain resident of Chak No,87/A lived with his Phopha Manzoor Ahmad, along with his family, near the house of the complainant. A year earlier, Mulazim Hussain complained to the complainant that his nephew Abdul Rasheed had developed illicit relations with his wife Mst. Rukhsana, whereupon the complainant and his nephew explained the position and Mulazim Hussain felt satisfied. On the last night at 11/12-00, the complainant/P.W.3, Muhammad Nawaz P.W.4, Abdul Hameed son of Darvesh and Abdul Rasheed were sitting outside the house and chatting when Mulazim Hussain came there and took Abdul Rasheed along with him for settlement and payment of dues of the shop. After about 1/1-1/2 hours, they heard Abdul Rasheed and Mulazim Hussain talking in loud tones, whereupon the complainant, Muhammad Nawaz and Abdul Hameed rushed to the spot. When they were at a distance of 15/20 paces, they saw in the torch light that Mulazim Hussain armed with hatchet and Saeed armed with Soti were quarrelling with Abdul Rasheed. Within their view, Mulazim Hussain gave a hatchet blow hitting on the right side of neck of Abdul Rasheed, while Saeed Ahmad/appellant gave a Soti blow hitting on his head, whereupon Abdul Rasheed fell on the ground. Then Mulazim Hussain gave hatchet blow on the chest of Abdul Rasheed. Saeed Ahmad gave Soti blows on the legs of Abdul Rasheed. When the complainant party tried to intervene, Mulazim Hussain raised Lalkara that in case they came near, they would be done to death. Then the accused/appellants ran away from the spot saying that they had taught the lesson to Abdul Rasheed of his having illicit intimacy with Mst. Rukhsana. After a short while, Abdul Rasheed succumbed to the injuries at the spot. The complainant along with Muhammad Ramzan Lambardar, while leaving Abdul Hameed and Muhammad Nawaz to guard the dead body, went to the police station and reported the matter.
3. After registration of F.I.R. Exh.P.B. At the instance of the complainant, Abdul Razzaq Shakir, S.- I./P.W.6, along with other police officials, went to the spot. He collected blood-stained earth from the spot, sealed the same into parcel and took the same into possession vide memo. Exh.P.C. And also prepared site plan Exh.P.H. Without scale. After preparing injury statement (Exh.P.J./1) and inquest report (Exh.P.J.), he sent the dead body for post-mortem examination. After post-mortem examination, he took into possession the last-worn clothes of the deceased, i,e, Shalwar P.1 and Kameez P.2 through memo. Exh.P.A. On 17-6-2002 Mulazim Hussain and Saeed Ahmad, accused/ appellants, were arrested. While in custody, on 19-6-2004, Mulazim Hussain led to the recovery of blood-stained hatchet P.6, which was taken into possession vide memo. Exh.P.F. Attested by Muhammad Nawaz/P.W.4 and one Abdul Hameed. On the same day, Mulazim Hussain led to the recovery of his blood-stained clothes (Shalwar P.4 and Kameez P.5) worn by him at the time of occurrence, which were sealed into parcel vide memo. Exh.P.E. Attested by the same witnesses.
Saeed Ahmad, while in custody, on 19-6-2002, led to the recovery of Soti P.7, which was taken into possession vide memo. Exh.P.G., attested by Muhammad Nawaz/P.W.4 and one Abdul Hameed. On 2-8-2002, the Investigating Officer got prepared scaled site plan Exh.P.H./1 from the Patwari. On 3- 8-2002 torch P.3 was taken into possession vide memo. Exh.P.D., attested by Muhammad Nawaz/P.W.4 and Abdul Hameed. After completion of investigation the accused were sent up to face the trial.
4. To substantiate its version at the trial, the prosecution produced ten witnesses. Ocular account was furnished by Abdul Majeed/P.W.3 and Muhammad Nawaz/P.W.4. In addition to that, Abdul Majeed stated about the motive. Muhammad Nawaz also stated about the recoveries effected from the spot and at the instance of the appellants/accused. Abdul Razzak Shakir, S.-I./P.W.6, stated about the recording of F.I.R. And the investigation of the case. Dr. Rashid Iqbal/P.W.7 conducted post-mortem examination on the dead body of the deceased on 7-6-2002 and found the following injuries on his person:-
(i) An incised wound six c.m. x one c.m. x underline soft tissues ruptured and skull bone fractured.
Brain matter and membrane ruptured on vertex of skull in midline. Bleeding present.
(ii) An incised wound 4 c.m. x 1 c.m. x bone exposed on the frontal region of head in midline.
(iii) A lacerated wound 2 c.m. x 1 c.m. x skin deep on right shoulder.
(iv) A lacerated wound 10 c.m. x 4 c.m. x bone exposed and fractured. The mandible on the right side of neck, . The underlying muscles and blood vessels were ruptured.
' In the opinion of the doctor, the cause of death was haemorrhage and shock due to injuries Nos.1, 2, 3 and 4. All the injuries were ante-mortem. Injuries Nos.1 and 2 were caused by sharp-edged weapon, while injuries Nos.2 and 3 were caused by blunt weapon. All the injuries were sufficient to.Cause death in the ordinary course of nature. The time between injuries and death was within fifteen minutes, while between death and post-mortem examination was within twenty-four hours.
Bashir Ahmad, Patwari/P.W.9, prepared scaled site plan Exh.P.H./1. The rest of the evidence was formal in nature and need not be discussed.
5. Learned counsel for the appellants submits that the story of the prosecution was improbable, that it was a blind murder; that both the P.Ws. Were not present at the time of occurrence; that they, being closely related to the deceased, were interested witnesses and, thus, not reliable; that the ocular account is in conflict with the medical evidence; and that the recovery of torch after one month and eight days was not believable. On these premises, it is urged that the prosecution has failed to prove its .Case against the appellants.
6. Conversely, the learned counsel for the complainant submits that the eye-witnesses are independent and natural witnesses; that they had no previous enmity or ill-will against the appellants to substitute them for the real culprits; that in the circumstances of the case, the F.I.R.
Was promptly lodged; that the recovery of blood-stained hatchet and blood-stained clothes at the instance of the appellant was fully proved. The learned counsel has vehemently contended that the prosecution has been able to fully prove its case against the appellants through motive, ocular account, recoveries and medical evidence. The learned counsel appearing on behalf of the State has supported the impugned judgment.
7. I have heard the learned counsel for the parties and have also gone through the entire record of the case.
8. The occurrence took place during the mid of a dark night in a field much away from the houses of the deceased and the P.Ws. Both the P.Ws. Stated that they saw the occurrence from 15/20 paces, i,e, 40/50 feet, while according to rough site plan as well as scaled site plan, the witnesses saw the occurrence from a distance of fifteen Karams, seventy-five feet. The only source of light was a torch which the complainant was holding when he rushed to the spot. The torch was not handed over to the Investigating Officer when the latter reached the spot, rather it was not given to the Investigating Officer throughout the investigation and the same was taken by the, Investigating Officer only after the objection was raised by the Prosecution Branch after the receipt of challan. So, in order to remove the objection, memo. Of recovery of torch was prepared on 3-8-2002, about two months after the occurrence. According to the eye-witnesses, Mulazim Hussain went to the house of deceased at 11/12-00 (during night) when the deceased was sitting along with P.Ws. Outside his house. At that time, Mulazim Hussain appellant was not carrying any weapon with him. Abdul Rasheed, surprisingly, in the existence of motive, left with Mulazim Hussain at the odd hours of night.
He was not stopped by any of the P.Ws., who were closely related to him, nor any of the P.Ws.
Accompanied Abdul Rasheed. However, it was after 1/1-1/2 hours that the witnesses heard the voices of the accused and the deceased who were allegedly quarrelling in loud tones. What happened during that 1/1/1-2 hours remained a mystery? In case the accused intended to murder Abdul Rasheed, they could easily do so much earlier and were not required to wait for 1/1/1-2 hours.
It appears that the story of quarrelling in loud tones has been introduced only to justify the presence of the P.Ws. At the time of occurrence. It is also noteworthy that according to prosecution case, the deceased left with Mulazim Hussain appellant at about 11/12-00 (during night). The occurrence took place after 1/1/1-2 hours and the matter was reported to the police in the morning at 6-45 a.m. The possibility that the interval of 1/1/1-2 hours was introduced to justify the delay in lodging the F.I.R., cannot be ruled out. In the circumstances, it is more likely that the dead body of Abdul Rasheed was seen lying in the field in the early morning and witnesses were not present at the time of occurrence.
9. As far as medical evidence is concerned, it supports the prosecution case to the extent of cause of death but it does not lead to the assailants.
10. The learned counsel for the complainant has laid much stress on the recovery of blood-stained hatchet and blood-stained clothes at the instance of Mulazim Hussain appellant. However, in the existence of following circumstances, no reliance can be placed on the recovery evidence:--
(a) According to Investigating Officer' both the appellants were arrested after ten days of the occurrence, while they were present in Snooker Club along with many other players In other words the appellants, did not go into hiding after the occurrence.
(b) It is opposed to common sense that an accused would keep blood-stained hatchet and blood-stained clothes intact till his arrest so as to hand over the same to the Investigating Officer as souvenir, specially when the accused had ample time to destroy incriminating evidence against them. At least they could easily wash the clothes and blade of the hatchet. Further more, no independent person was associated with the recovery proceedings and prosecution produced Muhammad Nawaz P.W.4 to prove the recoveries, who was also an eye-witness and related to the deceased.
' As regards the recovery of Soti from Saeed Ahmad appellant, no reliance F can be placed on it as corroboratory evidence because the Soti was not blood-stained.
11. Now coming to the motive. According to prosecution case, Mulazim Hussain appellant had complained about the behaviour of Abdul Rasheed deceased about a year prior to the occurrence.
Nothing happened during whole year and according to the prosecution case, Abdul Rasheed accompanied Mulazim Hussain at odd hours of night. This fact by itself takes out the sting of the motive. Even otherwise, motive is a double-edged sword which cuts both ways. In the circumstances of this case, it is more likely that in the background of the motive, appellants were implicated in the case after the recovery of dead body from an open field.
12. The upshot of the whole discussion is that the presence of the eye-witnesses at the time of occurrence is not free from doubt. It is trite law that a single doubt genuinely arising out of the circumstances of the case would be enough to record acquittal of the accused. Hence, while extending benefit of doubt to the appellants, I allow this appeal and set aside the judgment passed by the learned trial Court. The appellants are acquitted of all the charges and would be released forthwith if not required in any other case.