MUHAMMAD AFZAL ZULLAH, J.-By his judgment, dated 11th December, 1968, the learned Additional Sessions Judge, Sahiwal, has convicted Khan, aged 26 years, for an offence under section 302, P. P.
C., and sentenced him to death for the murder of Rehman son of Sardool of Chak No. 29/2-R, District Sahiwal, on 14th October 1967, before sunrise time. The convict has appealed and the reference for confirmation of death sentence is also before us. Both the matters are being disposed of by this judgment:
2. The prosecution case, as disclosed in the F. I. R. Exh. P. A., is that about 6/7 months before the occurrence, Sardool (P. W. 8), the father of the deceased, took on lease one square of land in Chak No. 28/2-R from Army Remount Department. Majhi P. W. 7 who is a Canal Mistri, subsequently joined Sardool in this lease, to the extent of half-share, apparently for the reason that by this partnership there would be two pairs of bullocks for a cultivation. Majhi instead of himself joining in cultivation, sent Khan appellant along with a pair of bullocks to work jointly with Sardool on the land. Two or three days before the occurrence, the munji (paddy) crop was reaped and collected in a thrashing-- floor. Some remaining munji was also cut but was not brought to the thrashing-floor and was made into a dheri (heap), presumably within the field. Majhi and Sardool P. Ws. Divided the above-mentioned munji amongst themselves and Majhi took away his own snare to his house.
One day before the occurrence at about 4 p m., Khan appellant complained to Sardool and Rehman deceased about his share of munji, to which Sardool replied that he was only working on behalf of 1tlajhi and that the latter having obtained his share he should make the complaint to him (Majhi) On this the appellant remarked that according to this arrangement he was left only in the position of a servant,whereupon Rehman deceased commented that the appellant was no more than a servant. This enraged the appellant. It all happened in the field. At night time, the appellant after having taken his meal went to the thrashing-floor to sleep there for the protection of monji.
Early in the morning before sunrise, Rehman deceased took two pairs of bullocks for ploughing the lairs. His father Sardool and Khadim Hussain P. W. 10, a resident of another village who had come to Sardool for taking away a bullock, followed Rehman deceased. Rehman having reached the thrashing-floor sat on a heap of munji and started smoking a huqqa. Khan appellant was coming from the side of a kha! (water course) after washing his hands. Having reached near the deceased, he abused him and told him about the incident of the previous evening and, at the same time, started causing blows to him with a hatchet which he was carrying at that time. The appellant caused many injuries to the deceased on his head, chest, neck and hands and when the handle of the hatchet broke into two pieces, the appellant gave some blows with the broken handle to the deceased. Sardool and Khadim Hussain P. Ws. Reached the spot, Jaimal P. W. 9, a resident of another village who, after making ready his plough, was having a round of his cotton field, also reached the spot. All three of them saw the occurrence. The ;appellant ran towards the eastern side and could not be caught. Rehman expired at the spot. On the alarm, many people reached.
Leaving Amir and Shamir at the spot, Sardool went to Police Station Okara which is at a distance of four miles and lodged the F. I. R. Exh. P. A. At 9-15 a. m.
Ch. Gulzar Hussain, S. I. P. W. 12 reached the spot on 14th October 1967. Same blood-stained paddy straws. Were taken into possession from the spot. The hatchet. Exh. P. 1 and the broken part of its handle Exh. P. 2, vide memo. Exh. P.
1. After preparing the injury statement and the inquest report, he despatched the dead body for post-mortem examina--tion. The appellant was arrested on 15th October 1969 and blood-stained shirt Exh. P. 6 and chadar Exh. 7 were removed from his person vide memo. Exh. P. H. The site plan Exh. P. E was subsequently prepared by Muhammad Hussain Patwari P. W.
11. All the above articles were found to have been stained with human blood.
3. At the trial, Sardool, Jaimal and Khadim Hussin Ws, were produced as eye-witnesses. Except for the circumstances and facts noted hereinafter in respect of their evidence, they have generally supported the prosecution case which has been stated above. The recoveries are supported by Noor Muhammad P. W. 6 and the Investigating Officer. Khadim Hussain P. W. 10 also stated that he thumb-marked the recovery memos. Exh. P. B. And P. C. But he has not deposed to the factum of recovery.
Dr. Muhammad Asghar P. W. 1 who had performed the post-mortem examination on 15th October 1967 at 11-15 a.m., found the following injuries on the dead body :-
(1) Contused wound 2 -- " x -- " x skin deep on the right side of head, 3.t" from the right ear.
(2) Contused wound 2" x -- " x bone deep on the right side of head 2" above the right ear.
(3) Contused wound 2" x -- " x bone deep on the centre of `' fore-head.
(4) Incised wound 2" x -- " x bone deep on the lateral end of right eye-brew.
(5) Incised wound 1" x -- "x skip deep in front of right ear.,
(6) Incised wound -- " x -- "x cutting of the cartilage lower -part of right ear.
(7) Contused wound -- " x -- " x fracture of nosal bone on the bridge of nose.
(8) Incised wound 1" x -- " x -- " on the right side of face, 1" from the angle of the mouth.
(9) Incised wound 1" x -- " x -- " on the right side of lower lip.
(10) Incised wound 3-- " x -- " x 1" on the right side of neck - just below the mandible.
(11) Incised wound 1-- " x 1" x 2" on the right side of neck 2" below injury No. 10. There was cutting of muscles, blood vessels and the neck bone corresponding to this injury.
(12) Incised wound 2" x -- "x cutting of bone on the back of left hand in its middle.
(13) Incised wound 2" x -- "x skin deep on the outer aspect of left wrist.
(14) Incised wound -- "x -- " x -- "on the back of left fore--arm in its middle.
(15) Incised wound -- " x -- " x bone deep on the left cheek.
Injuries Nos. 1, 2, 3 and 7 had been caused by blunt weapon while others had been caused by sharp-edged weapon. The scalp bone was injured. Servical vertebrae under injury No. I1 were injured and blood vessels of the right side of the neck were cut. The death was due to the external haemorrhage. Injury No. 11 was sufficient to cause death in the ordinary course of nature. The time between injury and death was about 20 to 30 minutes and that between injury and post-mortem was about 48 hours. Some faecal matter was present in intestines Bladder was empty but the stomach was full of undigested rice. Exh. P. J. Is the correct carbon copy of the post-mortem report.
It may be mentioned that in Exh. P. J. On the first page in the column meant for the entry of time of death, the following is mentioned :- "Night between 13-10-67 and 14-10-67."
The plea of the appellant was of denial. He, however, admitted that he was cultivating the land as partner of Majhi along with Sardool; and explained that Majhi had taken away the whole share of the produce 3/4 days prior to the occurrence; and that he had a qvarrel with him (Majhi). About the recovery of clothes, he stated that they were planted on him by the police. About his false implication, he stated that the P. Ws. Are relations and friends of the complainant and that he has been implicated merely on speculative ground as he had gone away. In this connection, it may be mentioned that it was suggested to Sardoot P. W. In cross-examination that when the appellant did not receive his share either from Sardool or from Majhi P. W. He took away his bullocks, etc., and went to his original village Akal Garh.
The learned trial Judge relying on the ocular evidence and also on the recovery of the blood- stained clothes from the person of the appellant, convicted and sentenced him as stated above.
4. Admittedly, the occurrence in this case took place before sunrise time. The police, in the heading portion of F. I. R. Exh. P. A. Mentioned it as "early in the morning". In the contents of Exh. P. A. It is mentioned as "early in the morning before the sunrise". Sardool P. W. 8 mentioned it as "a little before sunrise" in his examination-in-chief; but in cross-examina--tion, he mentioned it as "about morning azaan time". Jaimal P. W. 9, in his examination-in-chief, mentioned it as "morning prayer time"; but in his statement before the committing Magistrate, he had made also a mention of 2 or 2-30 a.m. Khadim Hussain P. W. 10 described it as "early morning". The sunrise on the day of occurrence was at 6 a.m. The occurrence, even according to the eye-witnesses, took place before sunrise. Sardool, in his cross-examination, admitted that he left for the Police Station at about 8 or 9 a.m. The F. I. R. Was recorded at 9-15 a.m. And, according to Sardool P. W. He, for some part of the distance to the Police Station, went on a horse back. According to the statement of the Sub- Inspector also, the distance between the place of occurrence and the Police Station can be travelled in about an hour. According to the statement of Sardool, at the trial, after witnessing the occurrence he left Jaimal and Khadim Hussain P. Ws. At the spot near the dead body and himself proceeded to the Police Station for making a report. In the F. I. R., however, it is mentioned that two other persons, namely Amir and Shamir, were left by him near the dead body. The fact, however, remains that other persons were available to Sardool, immediately on the detection of the crime, to guard the dead body and he could proceed to the Police Station and this is what he has stated to have happened. All these circumstance show that Sardool P. W. Spent about' three hours at the spot and then proceeded to the Police Station. He has not offered any explanation for this delay.
Had it been a case of the occurrence having been seen by the eye-witnesses, there was no reason for Sardool to have started for the Police Station after such a delay. In absence of any explanation from the prosecution side, the defence version, in that the occurrence took place during the night and was not witnessed by any body, will have to be kept in mind, along with the above circumstance of delay, while examining the evidence in this case.
5. According to the statement made by the doctor, the death took place about 48 hours before the post-mortem examination. According to the calculation, the occurrence might have taken place on 13th October, 1967 or the night of 13th and 14th October 1967. It is true that in the post-mortem examination report Exh. P. J. The time mentioned is "within" 48 hours. The prosecution did not confront the doctor with this entry in the report. In any case, if a margin of about 12 hours is allowed.
6. In the context of the motive disclosed by Majhi and Sardool P.Ws., it was unlikely that the appellant would have slept at the thrashing-floor to guard the paddy lying there. The admitted position is that the reaped paddy had been divided between Majhi and Sardool and that Majhi had taken his share to his house. The paddy lying in the thrasing-floor, therefore, belonged exclusively to Sardool. According to the prosecution evidence, the appellant was present at this division and further that he had objected to the division between Sardool and N7ajhi without any consideration for his share. This would mean that on the night of occurrence, Khan appellant had no interest in protecting the paddy lying to the thrashing-floor ; and if any body was interested in it, he must be either Sardool or his son Rehman. Therefore, from the consideration of the motive part of the prosecution case, the possibility cannot be excluded that on the night of occurrence Rehman deceased might have slept at the thrashing floor for the protection of his paddy.
7. Keeping the circumstances analysed in the three preced--ing paragraphs it becomes very difficult to believe the ocular account that the deceased would have come to the place of occurrence in the morning of 14th October, in the manner described by the eye-witnesses.
Considerable doubt has been created in our mind about the prosecution version and about its account given by the eye-witness. In our view, the occurrence may not have been witnessed by any body. However, we proceed to examine the statements of the three eye-witnesses, with particular attention as to what is contained therein. Sardool P. W. Is the father of the deceased and, according to his own version, is a biased witness against the appellant on account of the division of paddy. He, ,in his examination-in-chief, in the very second sentence categorically stated that Khadim Hussain P. W. Is not related to him. It is unusual for the complainant to make such a statement in his examination-in-chief about another witness and such a statement raises suspicion. However, the matter does not end at that. Khadim Hussain P. W. Clearly admitted in his statement that Sardool is his collateral. Therefore, apart from the circumstance that Sardool told a definite lie on this point, the fact remains that Sardool and Khadim Hussain P. Ws. Being related to each other, have common interest in the case. And if Sardool can be considered as biased and interested witness, Khadim Hussain cannot be excluded from this criticism.
No reason has been shown for Sardool and Khadim Hussain P. Ws. To have followed Rehman deceased to the field, so early in the Morning. This is particularly so, if Rehman deceased took along two pairs of bullock, one for himself and the other (presumably) for Khan appellant. The presence of Khadim Hussain in the house of Sardool and also at the spot is very doubtful. In the F. I. R., it is only mentioned that Khadim Hussain was sitting with Sardool for taking away a bullock. At the trial, Sardool stated that he had borrowed a bullock from Khadim Hussain three days prior to the occurrence, and that Khadim Hussain was in his house since the previous evening because he wanted to take away that bullock. The village of Khadim Hussain is at a distance of about one mile from the house of Sardool. Khadim Hussain P. W. Had stated before the police that Sardool P. W.
Had brought his bullock 12 or, 13 days before the occurrence. Sardool has explained in his; statement that Khadim Hussain had stayed for the night on his, request because he wanted to return the bullock after levelling his land. This fact is not mentioned in theF. I. R. Khadim Hussain was asked questions about this fact and was confronted with his statement before the committing Magistrate. 13e did not state before the committing Magistrate that Sardool P. W. Had asked him to take away the bullock only after the former had been able to level his land. On the contrary, however, it is mentioned in the F. I. R. That Rehman had taken away the bullocks for ploughing the land and not for levelling it. There is also some difference between these two witnesses about how many pairs of bullocks were taken by Rehman deceased to the fields. According to Sardool, there were two pairs of bullocks, one of Khan appellant and the other of the witness. Brut according to Khadim Hussain P. W. Rehman took three pairs of bullocks, one of the appellant, the other of Khadim Hussain and yet another of Sardool P. W. 1f the statement of Sardool is to be kept in mind, one pair of bullocks was meal not for the appellant and the other for Rehman; and in this context neither Sardool nor Khadim Hussain would have followed Rehman in the early hours of the morning, to the fields.
The conduct of these witnesses at the time of occurrence also is not natural. According to Sardool P. W. The appellant gave 12 or 13 injuries to the deceased with the hatchet, where after the handle of the hatchet broke into two pieces and the appellant ran away. But according to Khadim Hussain, after the breaking of the handle of the hatchet the appellant used the broken handle piece as a sod and caused a few blows with it to the deceased. The inquest report and the injury statement show that at the time these documents were prepared, the only weapon known to have been used for causing the injuries was a hatchet. The same information was conveyed to the doctor. That is why in the post-mortem report also, the column relating to information furnished by police contains the entry "killed by an axe". It appears that it was only after the post-mortem examination that it was revealed that the deceased had some injuries which could only be caused by a blunt weapon. From this, it further appears that the breaking of the handle of the hatchet might have been introduced to fit in with the medical evidence. Be that as it may, the fact remains that the deceased suffered about 15 injuries which must have taken some time for the assailant to cause; and if the eye-witnesses were so nearby as to see the occurrence in the early hours of the morning, at least two being related to the deceased, they should have intervened. But no such effort appears to have been made. Moreover, if the prosecution story is accepted that the handle was broken and subsequently the appellant used only the soti part of the handle, the three eye- witnesses could have very easily intervened and could have defended the deceased. Even if it be assumed that they could not intervene while the appellant was causing the injuries, they could easily apprehend the appellant when he, threw away the broken handle, as well, on the spot.
According o the site plan, the two witnesses, i.e., Sardool and Khadim Hussain reached the spot from the northern side while Jaimal reached from the southern side. At that moment, the appellant being empty handed could have been apprehended by these P. Ws. No such conduct is shown to have been displayed by these witnesses. Khadim Hussain P. W. Went a step further then the father of the deceased in making an improv--ement to fit in with the medical evidence. He stated at the trial that before starting for the fields, early in the morning he and the deceased had taken sweet rice. The witness was confronted with his statements before the police and the committing Magistrate. He had not stated so in those statements Moreover, the fields, according to the Patwari, being only about two squares from the house of the deceased, it was unlikely that he would have taken the rice so early in the morning. The improvement in the statement of Khadim Hussain, as observed earlier, amounts to a clear falsehood and has been introduced to make the prosecution case consistent with the post-mortem examination.
The statement of Jaimal Khan P. W. 9 also suffers from similar infirmities. At the trial, he stated that on the day of occurrence at about morning prayer time, he went to his cotton field "to see his cotton crop" and it is then that he claims to have witnessed the occurrence. He had clearly stated before the committing Magistrate that he left his house at about 2 or 2-30 a.m. In the F. I. R. The presence of Jaimal P. W. Near the place of occurrence is also linked with his plough. Moreover, it is very unlikely that a zamindar would go for a round of his cotton crop so early in the morning when the crop had not even shed the night dew. In any case, the statement of the witness made before the committing Magistrate belies him in respect of his presence at the time of occurrence.
According to the prosecution, after seeing the deceased in the thrashing --floor, the appellant came there. Before that he was washing his hands at a water course. But according to Jaimal Khan P. W. The appellant was cleaning a kikar stick with a hatchet before the occurrence and when he proceeded towards the thrashing-floor. This witness stated at the trial that the appellant came from the eastern direction and after the occurrence ran away in the same direction. But in his statement before the committing Magistrate, he had stated that the appellant had run towards the southern side. He improved his statement at the trial and introduced the eastern side so as to avoid any criticism that if the appellant had run towards the southern side, he would have been confronted by the witness himself. This witness belongs to another village which is about a mile and a half from the place of occurrence. He gave no other purpose for his presence at the spot, except for a round of his cotton crop and for that purpose he stated that he was there for about 10 to 15 minutes before the occurrence. The reason for his presence at the spot at either time, whether at 2/2-30 a.m. Or at any other early hours of the morning, is not convincing. He gave the number of blows inflicted by the appellant as 22/23. In spite of that, he admitted that none of the witnesses tried to intervene or apprehend the appellant. His reason for not doing so is that they "remained busy with the deceased". This is most unusual explanation. When the appellant was giving blows to the deceased, there was no occasion for the witnesses to have remained busy with the deceased.
Sardool P. W. Stated that the appellant reached near the place where the deceased was smoking huqqa and started giving hatchet blows to him. Jaimal P.W., however introduced an improvement to the effect that before the attack, there was an altercation and thereafter the appellant attached the deceased.
8. For all the above reasons and also for the circumstances discussed in paragraphs 4, 5 and 6, we have come to the conclusion that the statements made by the eye-witnesses do not inspire confidence and the possibility cannot at all be excluded that these persons did not witness the occurrence.
The learned counsel appearing for the State very vehemently argued that Jaimal Khan P. W. Is not shown to be related to the deceased; therefore, his statement should be treated as that of an independent witness and should be relied upon. From the above discussion; it is very clear that the presence of Jaimal Khan P. W. Near the spot is only coincidental and that too appears to be very improbable. Not only this, there are inherent defects in his statement, particularly when compared with the prosecution case as disclosed in the F. I. R. And as disclosed in the statements of the other two eye-witnesses. This shows that he did not witness the occurrence. It is true that when the statement of a witness inspires confidence and is free of any doubt, it may be relied upon even if the witness is interested in the party in whose behalf he appeared to make the statement. But the converse will not be true. That is, if a witness is not interested but his statement suffers from inherent defects and appears to be improbable or false, the only fact that he is a disinterested witness will not make him a witness of truth. The criterion being that in either case, it is the statement itself which has to be weighed; and unless it comes up to the well known standards of credibility, it will not be accepted as true in spite of the fact that it has been made by a disinterested witness. The argument of the learned counsel for the State is clearly misconceived and we repel the same. Thus there being no reliable evidence against the appellant; and there being a very strong probability that the occurrence took place during the night when it was not witnessed by any body; and due to the possibility being there that the defence plea may be correct, the appellant is entitled to the benefit of doubt.
9. In view of the above findings, the recovery of the blood--stained clothes from the person of the appellant becomes unimportant. Conviction cannot be based on this evidence alone. It cannot be used as corroboration of the statements of the eye-witnesses because, as stated earlier, it is doubtful if those witnesses saw the occurrence or made true statements. Moreover, the only witness produced in support of the recovery, apart from the Sub-Inspector, is Noor Muhammad P.
W.
6. He admitted that he belonged to a Basti which is about 5 or 6 miles from the place of occurrence. He had gone to the village of one Raja Bashir and had stayed there for the night, with the purpose of purchasing a buffalo. He learnt about the murder and came to the spot. He was unable to say whether Raja Bashir had also gone to the place of occurrence. Accord--ing to him, there were many other persons present when the police arrived. He was unable to deny that there was a Lambardar or a B. D. Member present amongst those persons.
Though he claimed to have visited the village off and on, yet he stayed there for the first time during the night preceding the occurrence. He did not know the names of the persons whom he visited in the village. In fact he did not know the name of any villager of that place. He admitted to have remained with the police till the next day. His statement before the committing Magistrate, with which he was confronted, shows that the clothes of the appellant were taken into possession on the following day of the taking into possession of the clothes of the deceased. He also stated that the clothes of the deceased were taken into possession on the following day of the murder.
According to this statement, the recovery from the appellant must have taken place on the 16th of October while, according to the Investigating Officer (P. W. 12), the recovery took place on 15th October 1967. For all these reasons, the statement of Noor Muhammad cannot be accepted as true.
Thus the circumstance with regard to the human blood-stains having been found on the- clothes of the appellant cannot be used against him.
10. The result of the above discussion is that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. Giving him the benefit of doubt, we set aside his conviction accept his appeal and acquit him.