ABDUL SHAKURUL SALAM, J.-This order will dispose of Murder Reference No. 177 of 1976 and Criminal Appeal No. 1140 of 1975 as these are connected matters.
2. Prosecution case in brief is that on 19th May, 1973 in the morning while complainant Attaullah P.
W. 7 was hoeing in his field, his brother Mohammad Ashraf (deceased) came there and sat down to milk the buffalo facing south. Riasat Ali (appellant) came with a hatchet in his hand from the north and attacked Mohammad Ashraf with the hatchet. The later fell down, He was given hatchet blows repeatedly on the face, head and neck by the appellant. The occurrence was witnessed besides the complainant by Mahmood Ali, P. W. 8 and Abdul Salam P. W.
9. The witnesses caught hold of the appellant alongwith the blood-stained hatchet. The injured Mohammad Ashraf died on the spot. The motive was that Mohammad Ashraf was married to Mst. Khurshid Begum daughter of Ahmad Khan three years earlier but Riasat Ali and his parents had wanted the hand of the lady for the appellant and they could not succeed. Then, Mst. Khurshid Begum's younger sister Safia Begum was sought for marriage with the appellant but Mohammad Ashraf was opposing the match. On account of this grievance, the appellant murdered Mohammad Ashraf. The witnesses produced the accused appellant with the blood-stained hatchet before the Police. It was stated by the complainant Ataullah P. W. 7 that they were going to the Police Station for necessary action that "you (S. H. O.) have come. Complainant's statement is Exh. P. A. Which was recorded by Syed Said Mohammad Shah, S. H. O., P. S. Sadar, Gujranwala, P. W.
10. The later arrested the accused appellant and took into possession his blood-stained shirt P. 2 and Chadar P. 3 vide memo. Exh. P. C.
Complainant Attaullah P. W. 7 produced blood-stained hatchet P. I which was taken into possession by the Investigating Officer, P. W. 10 vide Memo. Exh. P. B. And sealed into a parcel. The Investigating Officer. P. W. 10 sent the statement of the complainant Exh. P. A. For registration of the case to the Police Station and formal F. I. R. Exh. PA/1 was recorded by Mohammad Bashir Khan, A. S. I., P. W. 4 at 8.30 a. m. On 19May, 1973. The Investigating Officer, P. W. 10 took into possession blood- stained earth vide recovery memo. P. D., milk pot P. 4 and Khurli P. 5 vide memos. Exhs. P. E. And P. F.
Respectively. He prepared the injury statement and inquest report Exh. P. H., sent the dead-body of Mohammad Ashraf for post-mortem examination to the Civil Hospital, Gujranwala. He carried out the rest of the usual investigation and challaned the accused appellant. The autopsy was carried out by Dr. Mohammad Iqbal P. W. 1 who found the following injuries on the deceased:---
(1) Incised wound 3" x --" x bone deep cutting the right frontal bone on the right side of the forehead near the hair line.
(2) Incised wound 4" x 1" x cutting the bone just below and parallel to injury No. 1.
(3) Incised wound 3" x 1" x on the right ear cutting the right ear through and through and going upward towards the right side of the forehead.
(4) Incised wound 3" x 1" x bone deep below the right ear going downward.
(5) Incised wound 4--" x 3--" x deep starting from the left eye cutting the nose and going towards, the right side of the right cheek.
(6) Incised wound 3--" x -- x 3--" just below the injury No. 5.
(7) Incised wound 2" x --" x 3" starting from the right cheek going to the right and the angle of mandible cutting the upper and lower jaw.
(8) Incised wound 3--" x 1" x bone deep starting from the right side of the upper lip going to the right angle of the mandible cutting the upper jaw.
(9) Incised wound 2" x --" x bone deep starting from the right side of the chin, going along the right side of the lower jaw.
(10) Incised wound 1" x -- x bone deep below the chin.
(11) Incised wound 3--" x 1" x going deep horizontal on the front of the right of the neck cutting the trachia oesophagus muscle blood vessels of the right side of the neck.
(12) Incised wound 3" x 1" x going deep on the front of the right side of the neck below the thyroid cartilage cutting the muscles, blood vessels and all other structure of the right side of the neck.
(13) Incised wound 2" x --" x --" on the back of the neck. Scalp was injured.
Skull was cut at two places under injuries Nos, 1 and 2.
Vertebrae First cervicle vertebra, was under injuries Nos. 5 and 6.
Membranes were also injured. Brain was injured at two places under injuries Nos. 1 and 2.
Spinal Cord was injured under injuries No. 5 and 6.
Mouth, Pharynx and Oesophagus were also cut.
Other organs of the body was found to be healthy and normal.
All the injuries were by sharp-edged weapon (Heavy and ante mortem) Injuries Nos. 1, 2, 5, 6, 7, 8, 11 and 12, were grevious and dangerous to life and the other were simple.
Death in my opinion in this; case was due to shock and haemorrhage as a result of Injuries Nos. 1, 2, 5, 6, 7, 8, 11 and 12 These injuries were sufficient to cause death in ordinary course of nature. The time between injuries and death was immediate. Time between the death and post-mortem was between 12-16 hours". At the trial, the complainant Attaullah appeared as P. W.
7. He supported the prosecution story as given above. He admitted that he and the deceased were brothers and their wives were sisters. After the demise of the ladies' father, he and his deceased brother were cultivating the land inherited by their wives, He also gave the relationship of the witnesses. For a clearer understanding the pedigree-table is as follows;- KASSI Ladhan Hakim Labhath WadhayaAllah Jawaya Mohammad Khan Din Ghulam Qadir_______|_______ Salam Mahmood Ali P. W. 9P. W.
8. Attaullah Mohammad P. W. 7 Ashraf deceased From the above it would be seen that the eye-witnesses are closely related to the deceased. The complainant P. W. 7 is real brother and the other two P. Ws. 8 and 9 are close cousins of the deceased. The complainant also admitted that "the accused has only one hand." Further that "the deceased was aged about 25 years and was a well built man." As regards the actual occurrence, he stated that on receipt of the injury "the deceased fell with the left side of his face touching the ground, When the accused inflicted first injury I ran towards him. I was hoeing the field with a kassi, I did not take the kassi while running towards the accused. Abdul Salam P. W. 9 ran from the south western side. All three of us ran towards the accused. We reached almost simultaneously.
Mehmood P. W. Ran from the northern side .... After the occurrence about 70/80 persons reached the spot. The whole village gathered there on the arrival of the Police. The occurrence took place after about an hour of the sunrise. Police party met us after about 2-- hours. Again said after about half an hour .... Police recorded my statement on the road." Mehmood Ali P. W. 8 supported the complainant in main particulars. He however, stated that" my residential house is about a mile from the place of occurrence,." Abdul Salam P. W. 9 supporting the prosecution evidence also stated that "my house is one mile from the spot." He, further, stated that "my house is 3/5 acres from the house of Attaullah." Thus both the complainant and this witness have residential houses at a distance of one mile from the place of occurrence. So was the position of Mehmood Ali P. W. 8, as stated above Abdul alam P. W. 9, further, stated that ---I was at a distance of 15 karams from Attaullah P. W. When the occurrence started. Ashraf deceased was about 15/ 16 karams from me.
Attaullah was hoeing his land to towards the south of Ashraf. I saw the accused for the first time when he was at a distance of about one or two karams from the deceased. The hatchet in his hand was visible. I ran to the place of occurrence and reached in about 5 seconds after he received the hatchet blows. On seeing us approaching him the accused did not inflict any further blow and started running". The accused appellant pleaded not guilty, denied the allegations against him and attributed the depositions of the P. Ws. Against him to enmity He led no defence.
3. The learned trial Court observed that "no doubt the complainant is the real brother of the deceased and the other two p. Ws. Are also distant kinders" (meaning thereby distant relations- dis--tant kindreds are in third category of heirs under Muslim Law of Inheritance). "However, there is nothing to suggest that they had any cause or motive for falsely implicating an innocent person and substituting him for the real assailant". He rejected the defence plea that the accused appellant "had only one hand and as such could not have caused the injuries on the deceased with a great force" by observing that "the accused is a man of normal built and there is nothing to suggest that he was not capable of using the hatchet with one hand. It is not difficult to inflict blows with a hatchet by holding it in one hand, A normal human being definitely has the power and capability to use a hatchet with one hand." Relying on the ocular evidence supported by the circumstantial evidence as "buttressed up by the medical evidence", the learned Additional Sessions Judge, Gujranwala found the accused appellant guilty under section 302, P. P. C. And sentenced him to death subject to confirmation by this Court and also a fine of Rs. 5,000, in default 5 years' R. I. Out of the fine, Rs. 4,000 to be paid to the widow of the deceased under section 544-A, Cr. P. C. This is vide order dated 1st November, 1975.
4. Learned counsel for the appellant has vehemently contended that it is an admitted fact that the appellant has only one hand and with one hand he could not have inflicted so many hatchet blows as the post-mortem report shows viz. 13 incised wounds and that if the witnesses were close by, as they say, they could not have let the appellant inflict so many injuries on the deceased who was their close relation without intervention. It is, next, contended that the eye--witnesses are closely related to the deceased. They have already got the land of the appellants cousins by marrying them and want to grab the land coming to the appellant.
5. Learned counsel for the State has submitted that it is not a physical impossibility that a person with one hand may wield a hatchet and cause so many injuries as the deceased carried. As regards the eye-witnesses being related to the deceased, the learned counsel has contended that that by itself is not sufficient to discard their testimony, especially when they had got hold of the accused appellant on the spot and produced him with his blood-stained clothes and hatchet before the Police Officer and the F. I. R. Was recorded without delay carrying the names of the witnesses and the manner of occurrence.
6. After hearing the learned counsel for the parties and perusing the record with their assistance, we find that the three eye-witnesses, namely, Attaullah, P. W. 7, Mahmood Ali, P. W. 8 and Abdul Salam P. W. 9, are closely related to the deceased, the first being brother and the last two close cousins. Their residential houses are a mile away from the place of occurrence. Explanation of their being near the place of occurrence is that Ataullah P. W. 7, had slept the previous night at the Chah, Abdul Salam P. W. 9, had come to collect the lease money of Rs. 300 from Ataullah P. W. 7, to whom he had given his land on lease, and that Mahmood Ali, P. W. 8, was coming from Kotwala and going towards his own well. Tenuous as the explanation is, they were, according to them, quite close to the place of occurrence. According to the complainant Ataullah P. W. 7, "I saw him (the appellant) from a distance of about 1-2 karams from Ashraf (deceased) and about a bigha from me". The witness was, according to him, hoeing his land with a Kassi when he saw the occurrence, although he said that he did not take his Kassi when ran towards the accused appellant. P, W. 8, Mahmood Ali "was at a distance of 14 karams from the accused when he first saw the later. P. W. 9, Abdul Salam "saw the accused for the first time when he was at a distance of about one or two karams from the deceased." He "ran to the place of occurrence and reached in about 5 seconds after he (the deceased) received the hatchet blows". From this evidence, it would follow that the witnesses were close by and could reach in minutes or seconds. Now, we have to keep in view that the accused appellant has only one hand. The hatchet P. 3 is quite heavy, we have seen. Could the appellant wield the hatchet and inflict as many as 13 incised wounds without being interrupted by the witnesses closely related to the deceased and being quite near as to reach the place within seconds? Then, all the injuries on the deceased are on the head, face and neck. Would the deceased, who was a young man of 25 years and well built, as deposed to by his brother, the complainant P. W. 7, have not tried to ward of the attack or save his head and face or run away, especially when his near relatives were close by and the assailant was a single handed man? It appears, in the circumstances, that the witnesses were not nearby and the deceased was inflicted the injuries when he was not up and about but was likely to be asleep. The later inference would be supportable from the post-mortem report Exh. P K wherein is recorded against column "Stomach and its contents" -- "2 ounces of semi digested fluid present", against column "Large intestines and their contents" --"containing faecal matter", and against column "bladder"--"full of urine". -- Contents of stomach, intestines and bladder would show that the deceased had not eased himself before his death. Now it is common knowledge that an ordinary cultivator, as the deceased was, going in the morning through the fields would normally ease himself before starting his job and most probable it is that he would have urinated soon after waking up especially when he was in the fields and was about to start his work. So, it would appear that the deceased had been done to death before he had got up and gone about the normal routine of life. Further, post-mortem examination was conducted on 19th May, 1973 at 5-00 p. m. The duration between post-mortem examination and death was "12 to 16 hours". On the aforesaid date, the time of rising of the sun at Lahore was. 5.12 per Jantary 1973. The place of occurrence is situated in the District of Gujranwala.
Therefore, there would be not much difference in the rising of the sun. Hence, if the post-mortem examination was conducted at 5-00 p. m. And the death had taken place 12-16 hours earlier, it could be any time before 5-00 a. m. To 1-00 a. m. This would also explain that the contents of stomach, intestines and bladder were there because the deceased had been done to death earlier than the alleged time of occurrence, i.e., after about an hour of sun rise. The evidence discussed about would leave out the testimony of Mohammad Din P. W. 6, who had said that on his enquiry the appellant bad requested him to get pardon because he had done a mistake. On this testimony, the learned Additional Sessions. Judge has not relied upon. In fact, he has not taken this into account when he adjudged the appellant, after recording the narrative, in his paragraphs 11 and 12.
Mohammad Din, P. W. 6, had been sent for by the complainant and he had reached the spot after about 10 minutes of the occurrence. According to the witnesses and especially Mahmood Ali, P. W.
8, Mohammad Din "came from the village. We were taking the accused to the Police Station and met the Police party on road where Ataullah gave a statement". It would, therefore, appear that Mohammad Din P. W. 6, had arrived at the spot before the complainant made his statement Exh. P.
A. But no mention was made either about the statement of the appellant to Mohammad Din or, about the presence of Mohammad Din at the spot. Nor did the Investigating Officer while giving brief facts in the inquest report mentioned anything about the presence of Mohammad Din P. W. 6, or the statement of the appellant made to the said witness. Further, it does not appear that it was put to the accused appellant by the learned Magistrate in examination under section 34?, Cr. P. C.
However, it may be noticed that this was put to the accused in his examination under section 342, Cr. P C. By the learned trial Court to which, of course, the reply was in the negative, In all the circumstances, it appears that the learned trial Court did not rightly rely on the evidence of Mohammad Din, P. W. 6, especially because the accused appellant was not a free man but In the custody of the witnesses and the exact words said to have been used by the appellant were not deposed to by the witness.
7. Analysis of the main evidence made earlier would show that the eye-witnesses were not nearby nor had witnessed the occurrence, otherwise, they would not have allowed the appellant who has only one hand and could hardly wield the heavy hatchet with such force as to inflict 13 incised wounds deep enough without interruption and that the location of the injuries and contents of stomach intestines and bladder make It quite probable that the deceased has boon done to death before he had got up and set of for his daily business. Hero the contention raised by the learned counsel for the State may be attended to as to why should the witnesses depose against the appellant and how can the appellant explain his arrest with blood-stained clothes and hatchet.
Besides that the law Is that If the prosecution fails to establish its case beyond reasonable doubt, that Is the end of the matter and it must fail. The accused need not give any explanation. However, in the present case, the reasons are not far to seek. Two out of the three common causes of violence viz. Zar (money), Zan (woman) and Zamin (land) prevalent in this part of the world were there. Girls with land were the bone of contention between the parties. As regards the arrest of the appellant with blood-stained clothes and hatchet, it may be noticed that the appellant is a handicapped man and has been produced with the aforesaid articles by the eye-witnesses before the Police Officer and themselves are the attesting witnesses. No independent witness of the recoveries or arrest has been produced. If the witnesses cannot be believe in respect of the main occurrence, their testimony regarding recoveries etc, cannot carry any conviction.
8. In view of what has been stated above, the prosecution evidence is not quite in consonance with physical facts and circumstances of the case and the other possibility that the occurrence was unwitnesse4 and earlier in time than alleged, appears to be quite consistent with the facts of the case. It is, of course, elementary law that when there are two possibilities equally plausible, then, the one favourable to the e accused has to have the sway. Therefore, giving the benefit of doubt, the appellant is acquitted. His appeal is accepted. He shall be released forthwith. If not wanted in any other case and the fine already realised shall be refunded to him.. The reference is rejected and death: sentence not confirmed. Thus the two titled matters stand disposed of.