By his judgment dated the 10th October, 1978 the learned Additional Sessions Judge, Sialkot, convicted Ghulam Nabi Shah son of Nadar Shah, aged 85 years, Rahmat, aged 45 years, and Ibrahim, aged 50 years, sons of Ali Muhammad, residents of village Dhadhora. Police Station, Qila Sobha Singh, Tehsil Pasrur, District Sialkot, under section 302 read with section 34 of the Pakistan Penal Code for committing the murder of their co-villager, Faryad Hussain, aged 40 years, on the 2nd September, 1973, in furtherance of their common intention to the field of one Muhammad Shafi, near the dera of the deceased, in the area of village Dhadhora, at a distance of five miles from Police Post, Nidoke and 15 miles from Police Station, Qila Sobha Singh, and sentenced them to imprisonment for life each. He further convicted them under section 382/34 of the Pakistan Penal Code for commission of theft of goats of the deceased from his dera just after fatally injuring the deceased and sentenced them to rigorous imprisonment for seven years each. Both the sentences were directed to run concurrently.
2. Muhammad Ali, son of Ali Muhammad, and Muhammad Hussain, son of Ibrahim, who were tried along with the convicts, were given benefit of doubt and acquitted by the learned trial judge.
3. Ghulam Nabi Shah has preferred the instant appeal against the judgment of the learned trial Judge. Rehmat and Ibrahim have filed separate appeal (Criminal Appeal No. 1115 of 1978) against the impugned judgment. Both the appeals will be disposed of by this judgment.
4. Trespassing of goats of the deceased into the swank crop of Ghulam Nabi Shah appellant, whose land adjoined that of the deceased, sparked of the trouble resulting in fatal attack which is said to have been launched by the appellants and their acquitted co-accused upon the deceased.
As described in the first information report, on the 1st September, 1973, Ghulam Nabi Shah took hold of two goats of the deceased which were responsible for spoiling his swank crop and got them impounded in the cattle pound at Nidoke. The deceased paid the penalty and got them released The next day the goats again trespassed into the crop of Ghulam Nabi Shah who tried to take them to the cattle pound but the deceased brought them back to his dera where he tethered them. At about 4-GO p. m., that day the deceased went to divert his tube-well water to paddy crop when the appellants and their acquitted co-accused came to his dera. Ghulam Nabi Shah and Rahmat were empty-handed. Ibrahim carried a hatchet, Muhammad Ali and Muhammad Hussain were armed with a chhuri each. Rahmat entered the room of the tube-well, took up the single-barrelled licensed gun of the deceased and proceeded to untether the goats. In the meantime, the deceased came there and forbade Rahmat to untether the goats. Thereupon Ghulam Nabi Shah gave a lalkara and said that the deceased should be killed. The other four accused pounced upon the deceased who started running. The four accused gave him a chase, caught hold of him and felled him in the nearby field of Muhammad Shafi. Ibrahim gave hatchet blows on both the legs of the deceased. Muhammad Hussain administered chhuri blows which fell on the outer side of his left knee. Muhammad Ali was about to strike a chhuri but the deceased caught hold of it in his left.
Hand which was consequently injured. Rahmat struck gun on various parts of the body of the deceased and catching hold of his testicles pulled them. The deceased continued imploring the appellants to spare him. Mst. Safia, were of the deceased, P. W. 9, Ashiq Hussain, P. W. 10, and his brother, Faiz Hussain, who came by chance, tried to intervene to rescue the deceased but Ghulam Nabi Shah raised a lalkara and gave warning that no body should come forward. Therefore Mst.
Safia Ashiq Hussain and Faiz Hussain did not move to rescue the deceased. The assailants thought the deceased to be dead though he was unconscious and untethering the goats from his dera went away. They also took away along with them the gun of the deceased. The deceased expired at about 8-00 p. m.
5. As stated in the first information report the matter could not be reported to the Police as Mst.
Safia, Ashiq Hussain and Faiz Hussain apprehended danger of life at the hands of the assailants.
After the relatives of the deceased arrived the next day Mst. Safia, accompanied by Ashiq Hussain, repaired to the Police Station but come across Abdul Ghafoor, Assistant Sub-Inspector of Police, Police Post, Nidoki, P. W. 13, on the bank of Bado Mallhi rajbah near village Dharag Miana and narrated him the occurrence. Abdul Ghafoor took down her statement, Exh. P. A., at 2-30 p. m., on the 3September, 1973. On its basis the formal first information report, Exh. P. A.-1, was registered at Police Station, Qila Sobha Singh at 5-00 p. m., that day.
6. On the 5September, 1973, Muhammad Ashraf Sub---Inspector of Police and Station House Officer, Police Station, Qila Sobha Singh, P. W. 14, raided the house of Ghulam Nabi Shah appellant and recovered therefrom the gun of the deceased, broken into pieces, Exh. P. 7/1-5, and two empty cartridges, Exh. P. 7/6-7, which he took in his possession vide memorandum, Exh. P. E., which was attested by, besides others, Ashiq Hussain, P. W.
10. Ghulam Nabi Shah was arrested by Muhammad Ashraf P. W. 14, on the 7September, 1973.
7. Rahmat and Ibrahim, appellants, as also Muhammad Ali and Muhammad Hussain, acquitted accused, were arrested by Muhammad Ashraf. P. W. 14, on the 11th September, 1973. Ibrahim, appellant, led to the recovery of the hatchet, Exh. P. 8, from his house on the 14th September, 1973, and the same was taken possession of by Muhammad Ashraf vide memorandum. Exh. P. J., which bears the attestation of Baqar Hussain, P. W. 12, and F3iz Hussain.
8. Doctor Abdul Jabbar Akhtar, Medical Officer, Allama Iqbal Memorial Hospital, Sialkot, P. W. 11, conducted autopsy on the dead body of the deceased on the 14th September, 1973, at 7-45 a. m., and found the following injuries:--
(1) Bluish contusion on whole of lower lip.
(2) Bluish contusion 3 in numbers,--rd th th
(1) 1" x --" on the left side of second inter-costal space. ,
(2) 2" x 2--" on the left side of chest at the 4th and 5th inter-- costal space.
(3) 3" x 1--" under left side of abdomen.
(3) Contused wound 2" x --" on the posterior aspect of right elbow joint.
(4) Abrasion --" x 1" on the posterior aspect of left elbow joint.
(5) Contused wound 1--" x --" on the palmar aspect of left hand.
(6) Contused wound 1--" x --' on the interior aspect of left thigh in the lower 1/3rd.
(7) 3 contused wound in the area of 7" x 1--" on the interior aspect of left leg.
(8) Three contused wounds on the area of 6" x 1----- on the anterior aspect of right leg.
(9) Abrasion 3" x 1/6" on the lateral aspect of right foot.
Left side of the thorax was congested and swollen in the area of 1--- x 1----- on the inter-costal space. Left lung was congested. Heart was found congested and shrunk. Death in the opinion of the Medical officer occurred due to shock and haemorrhage as a result of injury No, 2 which was sufficient in the ordinary course of nature to cause death. Time that elapsed between infliction of injuries and occurrence of death, according to his estimation, was about half an hour and between death and post-mortem examination 48 hour. Exhibit P. H. Is the copy of the post-mortem examination report and Exh. P. H./1 is the diagrammatic sketch indicating location of injuries.
9. The appellants and their co-accused denied point blank any sort of participation in the commission of crime, Ghulam Nabi Shah and Ibrahim disowned recoveries of gun and hatchet Pleading their innocence they stated that they had been falsely implicated. They did not choose to produce any evidence in defence.
10. The learned trial Judge believed the incident of trespassing of goats of the deceased into the swa nk crop of Ghulam Nabi Shah and held that Ghulam Nabi Shah had a motive to launch attack upon and do away with the deceased He believed the prosecution evidence in so far as it implicates the appellants As no injury caused with a chhuri could be found on the dead body of the deceased, the learned Judge considered the participation of Muhammad Ali and Muhammad Hussain, who were said to have been armed with chhuris, to be doubtful. Accordingly he gave them benefit of doubt and acquitted them. Nevertheless, finding the appellants guilty he convicted and sentenced them as indicated in the beginning of tills Judgment.
11. The learned counsel for the appellants has drawn attention to certain aspects of the case which, as he stated, did not receive proper appreciation at the hands of the learned trial Court. Even the learned counsel appearing on behalf of the State had to concede that inordinate delay in reporting the matter to the police had not been satisfactorily explained by the prosecution .There could be possibly no justification for withholding reporting of the incident to the police for no fewer than 21 hours when the Police post was hardly five miles away. Both the eye--witnesses, namely, Mst. Safia P. W. 9, and Ashiq Hussain P. W. 10, cannot be said to be independent as they were related to the deceased. Mst. Safia is the were and Ashiq Hussain is the brother of sister's husband of the deceased although the litter refused to admit his relation--ship with the deceased. Ashiq Hussain is just a chance witness. No other independent witnesses of the locality where the occurrence took place `vas produced by the prosecution to bear testimony to the occurrence. Even the evidence, of the eye-witnesses does not senchronize with the medical evidence inasmuch as they deposed Mohammad Ali and Muhammad Hussain, acquitted accused, were armed with chhuris, that Muhammad Hussain administered a chhuri blow on cite left knee, of the deceased and that the hand of the deceased was injured when he caught hold of the chhuri which Muhammad Ali was about to strike him. No injury said to have been caused by chhuri was found on the dead body of the deceased as a result of the post-mortem examination. Even no sign of hatchet blow allegedly given by Ibrahim was noticed on the legs of the deceased. None of the eye-witnesses attributed to any one of the accused the role of causing specific fatal injury No. 2 to the deceased. The medical evidence, incompatible as it is with the alleged actions of the accused described by the eye- witnesses, casts a grave shadow of doubt on the authenticity of the testimony of these witnesses.
12. It is difficult to accept the genuineness of the recoveries of broken pieces of gun, Exh. P. 5, and cartridges from the house of Ghulam Nabi Shah in his absence and hatchet, Exh. P. 8, which was of course not blood-stained, at the instance of Ibrahim appellant. The two witnesses of the recovery of gun and hatchet, Ashiq Hussain, P. W. 10, and Baqir Hussain, P. W.
12. Besides being otherwise interested, did not reside at the respective places from where the recoveries were effected. No inhabitant of the locality was associated with the recovery proceedings. There fore, these recoveries do not advance the prosecution case.
13. In view of what has been stated above, it is difficult to say that the charge is proved against the appellants beyond doubt. Consequently they cannot be held guilty, of commission of murder of the deceased. The appeals are, therefore, accepted, the conviction of the appellants and the sentences passed upon them are set aside and they are acquitted. They are on bail. They are discharged of the obligations attending to the bail bonds executed by them.