' ABDUL SAMI KHAN, J.---Sultan alias Sulli and Karam alias Kaman appellants were convicted under section 302(b), P.P.C. Read with section 34, P.P.C. By the learned Additional Sessions Judge, Vehari vide judgment dated 28-5-1991 in case F.I.R. No, 244 of 1989, dated 14-8-1989 registered at Police Station Luddan, District Vehari in respect of an offence under section 302, P.P.C. Read with section 34,P.P.C. And were sentenced to life imprisonment each. The appellants were also ordered to pay an amount of Rs,15,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of Falak Sher alias Dulla deceased or in default of payment to further undergo rigorous imprisonment for one year each. The appellants have preferred the instant appeal against their convictions and sentences before this Court
2. Before proceeding further in this appeal it is significant to point out here that during the pendency of this appeal Karam alias Kama appellant had died, therefore, the appeal to his extent stands abated. It is further worth-mentioning that during pendency of instant appeal sentence of present appellant was suspended on 4-7-1994 where after he disappeared subsequently and his concession of bail was withdrawn on 10-6-2003 and process against sureties were issued under section 514, Cr.P.C. And record of this case was ordered to be consigned. Furthermore on 12-4-2010 through criminal petition file of instant appeal was restored.
3. The prosecution story set forth in the F.I.R. Is that Falak Sher alias Dulla had taken a mangoes garden belonging to Summanda Malang situated near shrine of Ghulam Shah within the area of Police Station Luddan, District Vehari on lease and used to reside in a residential room adjacent to that garden. During the intervening night between, 13-8-1989 and 14-8-1989 Muhammad Shafi (P.W.7), Muhammad Bukhsh (P. W .8) and Muhammad Hussain (given up) had come to Falak Sher alias Dulla for settling some matrimonial affairs. On the night of occurrence they stayed there and slept on separate cost. At about 3-00 a.m. They awoken by the barking of dogs and in the torch- light they had seen Sultan alias Sullah, armed with a hatchet and Karam alias Kaman, armed with a hatchet proceeding towards the cot of Falak Sher alias Dulla. Sultan alias Sullah was seen standing on the left whereas Karam alias Kaman was seen by them standing on the right side of cot on which Falak Sher alias Dulla was sleeping. It was within the sight of above said three persons that Sultan alias Sulla had caused two hatchet blows to Falak Sher alias Dulla hitting him on the back of the right ear and on the right side of the neck and Karam alias Kaman had also inflicted two hatchet blows which Falak Sher alias Dullah sustained on. The back of the head and on the right side of the neck. All the three persons tried to catch hold the assailants but they had been kept away due to the threats of the assailants with warning to be dealt with the same treatment if come forward. Thereafter both the assailants escaped from the scene of the crime along with their respective weapons. Falak Sher alias Dulla succumbed to his injuries and died at the spot. The motive behind the occurrence, stated by the complainant, was that both the assailants were suspecting that Falak Sher alias Dulla was having illicit liaison with Mst. Irshad Bibi wife of Manzoor caste Daultana resident of village Khan Garh Islam and it was due to that reason they had done Falak Sher alias Dulla to death. The accused nourished, grudge in their mind and committed the murder of Falak Sher alais Dulla deceased. Leaving the deadbody in the care of Muhammad Bakhsh and Muhammad Hussain P. Ws. The complainant proceeded to the Police Station for reporting the incident. Upon the statement of the complainant formal F.I.R. Was registered against the appellants. The investigation was conducted by Muhammad Azam, A.S.-I. (P.W.9). He prepared inquest report Exh.P-D and injury statement of Falak Sher, Ex. P.C, visited the place of occurrence at 5-00 a.m. On the same day, collected blood-stained earth from the spot vide recovery memo Exh.P-H as well as blood stained cot (P-5), recorded statements under section 161, Cr.P.C. Of the witnesses, on 16-8-1989 arrested both the appellants, on 19-8-1989 Sultan alias Sulli got recovered the weapons of offence, i.e, blood-stained hatchet (P-7) from inside his residential kotha, took the same into possession vide recovery memo Exh.P-J, on the same day the Investigating Officer also recovered blood-stained hatchet (P-8) from Karam alais Kaman (since died), took it into possession vide recovery memo: Exh.P.K., and after completing the investigation the Investigating Officer submitted report under section 173, in the learned trial Court. On 8-4-1991 the appellants were charge-sheeted under section 302, P.P.C. Read with section 34, P.P.C. To face a trial.
4. To prove its case the prosecution examined as many as 9 witnesses. The ocular account in this case has been furnished by Muhammad Shafi complainant (P.W.7) and Muhammad Bakhsh (P.W.8). Both of them have also stated about the motive. The medical evidence was furnished by Dr. Muhammad Hussain Sajid, M.
0. District Headquarter Hospital, Vehari (P.W.4) who conducted post-mortem examination of Falak Sher alias DuIla deceased. The doctor had found the following injuries on his person:--
(1) "An incised wound encircling the whole neck except a tag of skin on the left side of neck, which was attaching the head with trunk. On dissection of this injury trachea esophagus, vertebral column, spinal cord and great vessels, nerves of the neck on both sides had been found cut .
(2) An incised wound on right side of head about 1 c.m above right ear. 13 c.m x 3 c.m this injury had cut skull bone. Meninges, brain matter was coming out from this injury.
(3) An incised wound on right side and back of head 2 cm. Above injury No,
2. It cut the skull bone and it was 16 x 2 c.m. Brain matter was coming out.
(4) An incised wound 10 c.m. x 3 c.m. On right cheek. Parallel to right mandible. It had cut mandible bone.
(5) An incised wound 5 c.m x 2 c.m. On right upper chest. It had cut the first costochondrol junction and first rib.
(6) An abrasion 17 c.m. x 5 c.m. At medial side of right arm. 7 c.m. From below tip right shoulder joint.
(7) An abrasion 2 c.m x 1 cm. Behind left knee joint."
' According to the doctor injuries Nos. 1 to 5 had been caused by sharp-edged weapon whereas injuries Nos. 6 and 7 by blunt weapon and all the injuries were ante-mortem. The cause of death was opined by the doctor to be shock and haemorrhage due to injuries Nos. 1 to 4. The time elapsed between injury and death was immediate and between death and post-mortem examination was about twelve hours.
5. The appellant in his statement under section 342, Cr.P.C. Denied all the allegations levelled against him by the prosecution and professed his innocence. While answering the question "why this case against you and why the P. Ws. Have deposed against you", he stated that it was a blind murder and he had been roped in this, case due to party faction. The appellant opted not to, appear as his own witness under section 340(2) Cr.P.C. But he produced Liaqat Ali as DW1 and Muhammad Bakhsh as DW2. After-conclusion of the trial the appellant was convicted and sentenced as mentioned above.
6. Learned counsel for the appellant submits that motive of the occurrence has not been proved in this case because the prosecution had not produced Mst. Irshad Bibi with whom the deceased alleged to have illicit relations. Even Manzoor Ahmad, husband of Mst. Irshad Bibi was also not produced before the learned trial Court. The alleged eye-witnesses Muhammad Shafi (P.W.7) is real brother of the deceased and Muhammad Bakhsh (P.W.8) is his close relative, therefore, the ocular account furnished in this case by. Interesting and chance witnesses because both of the eye-witnesses were not resident of the locality where the occurrence had taken place. Both the eye-witnesses had failed to give plausible explanation of their presence at the place of occurrence at the time of incident in their statements before the learned trial Court. Submits that it was a night time occurrence and no source of light has been mentioned by the complainant except identification of the culprits through 'torch. Submits that identification through torch has always been considered as doubtful by the apex courts of the country. Submits that there are glaring contradictions in ocular as well as medical evidence because according to the ocular account Sultan alias Sulla inflicted two injuries with hatchet on the backside of the right ear and on the right side of neck whereas his co-convict (since died) Kamran alias Kama inflicted two hatchet blows to the deceased Falak Sher alias Dulla hitting him on the back of head and right side of neck but according to the Post-mortem Examination Report the deceased received total seven injuries.
Submits that the prosecution has failed to prove its case without any reasonable doubt and benefit of doubt is always given to the accused/appellant. The learned counsel for the appellant relied upon 2010 PCr.LJ 1551, 2011 PCr.LJ 363, 2010 PCr.LJ 1156 and 2010 SCM R 566.
7. On the other hand learned Deputy Prosecutor-General contends that the appellant is nominated in the promptly lodged F.I.R. With specific allegation of inflicting hatchet blows on the person of the deceased and the medical evidence in this regard fully corroborates the ocular account furnished by P.W.7 and P.W.8. Submits that there is a direct evidence of two prosecution witnesses who have got no enmity with the appellant to falsely implicate him in a case of this nature. Submits that the place of occurrence is admitted and P. Ws. Amply established their presence at the place of occurrence. Submits that recovery of hatchet was effected from the appellant and there is no contradiction in the evidence of the eyewitnesses. Further submits that torch was also taken into possession so the identification of the appellant at the place of occurrence at the relevant time was not doubtful. Submits that the appellant had already been dealt with by the learned trial Court leniently. It is a brutal murder and the eye-witnesses had got no enmity with the deceased so the substitution in this case is a rear phenomenon.
8. Arguments heard. Record perused.
9. I have given my anxious considerations to the arguments advanced by the learned counsel for the appellant and that of the learned Deputy Prosecutor-General and have gone through the relevant case-law with all care and caution. According to the prosecution's case it was a night time occurrence took place at 3-60 a.m. The alleged eye-witnesses Muhammad Shafi complainant (P.W.7) and Muhammad Bakhsh (P.W.8) are not residents of the area where the occurrence had taken place, therefore, they were treated as chance witnesses. Although they had taken stance that to settle some family dispute they had come to deceased on the fateful night yet no reason whatsoever about that the disputed had been brought on the record. Thus, the so- called reason advanced by them for their presence at the place of occurrence at the relevant night had not been established through any independent source during their evidence furnished by them before the learned trial Court. Even law is quite settled on the point that the testimony of chance witness require strong independent corroboration.
10. Motive in this case as alleged by the prosecution is that both the culprits suspect that the deceased was carrying illicit liaison with Mst. Irshad Bibi one of the relative of the appellant party. It is very strange that neither Mst. Irshad Bibi nor her husband Manzoor Ahmad had been produced by the prosecution to substantiate motive part of the prosecution story. Therefore, I am of the considered opinion that mere a bald assertion regarding motive is not sufficient to provide support to the ocular account because strong evidence is required to substantiate the motive set up by the prosecution in this case. Even otherwise it is settled law that once a motive has been alleged by the prosecution it was none else but the prosecution which has to prove motive and any adverse case would of course provide hard occasion to the prosecution to suffer for it. Thus, motive in this case is not proved and remained unable to provide support to the ocular account.
11. According to the prosecution's own case when both the eye-witnesses P.W.7 and P.W.8 awoke by the noise of barking dogs they saw four persons standing near the cot of Falak Sher alias Dulla to whom the eye-witnesses allegedly identified in the light of torch. It is impossible rather unusual that in the light of torch the eyewitnesses not only identified four person but they also noted the injuries inflicted by them on different parts of the body of the deceased in a dark night. Even according to the site-plan the alleged eye-witnesses claimed to have witnessed the occurrence from a distance of about twenty feet which is not possible and that too in the light of torch. It is also significant to point out here that the noise of barking dogs only awoke the eye-witnesses but the same did not attract the deceased at all. So, all these peculiar features of this case show that the so-called eye-witnesses were not present at the place of occurrence on the fateful night and they were later on procured by the prosecution to create ocular account in this case. The prosecution could not establish their presence at the spot from the facts and feature of this case. Another peculiar feature of this case is that the owner of the mango garden where the occurrence took place namely Summand Malang was never produced by the prosecution.
12. As far as question of recovery is concerned the prosecution has alleged that the appellant had got recovered hatchet (P-7) which was taken into possession through memo Exh.PJ on 19-8-1989.
Admittedly no private witness from the locality had been joined with the recovery proceedings, thus, provisions of section 103, Cr.P.C. Have severally been violated. Resultantly, the recovery in this case cannot be believed.
13. Now adverting to the medical evidence furnished in this case, according to the eye-witness account the appellant Sultan alias Sallu inflicted two hatchet blows, one on the back of the right ear and the other on the right side of neck of the deceased. Co-convict Kamran alias Kama (since died) had also inflicted two hatchet blows, one on the back of the head and the other on the right side of neck but according to the P.W.4 Dr. Muhammad Hussain Sajid, Medical Officer, Rural Headquarter Hospital, Luddan who conducted the post-mortem examination has found five incised wounds and two abrasions on the person of the deceased, therefore, it has been observed that there is material contradiction in the ocular account and the medical evidence. Injury No, 5 on the right upper chest is not attributed to anybody. So the medical evidence is also not in apt with the ocular account furnished by the alleged eye-witnesses.
14. According to the post-mortem examination the doctor opined that the time between death and post-mortem examination is twelve hours which does not correspond with the ocular account as according to the eye-witnesses the occurrence took place at 3-00 a.m. So the possibility cannot be ruled out that the deceased was done to death in the early hours of night between 13/14-8-1989. It has also been observed by this Court that according to the post-mortem examination the stomach of the deceased contained semi-digestive food and it is improbable that at 3-00 a.m. In the morning the stomach contained semi-digestive food because it is common practice in the villages that the people used to take meals in the early hours of night, i.e, at about evening time.
According to the contents of the stomach of the deceased an inference could be drawn that he might had taken his meal at about 5/6-00 p.m. On the fateful night and later on he was done to death at about 9-00 p.m. In the night. According to the prosecution's own case the occurrence took place at 3-00 a.m. On 14-8-1989 whereas the matter was reported to the police at 7-00 a.m. In the morning and the Police Station was just three miles away from the place of occurrence. So the possibility cannot be ruled out that the F.I.R. Was got registered after due deliberations and consultations, especially after procuring evidence/eye-witness account against the appellant.
15. The learned trial Court also recorded the evidence of two Defence Witnesses namely Liaquat Ali as DW1 and Muhammad Bakhsh as DW2. According to the testimony of DWI, Liaquat Ali, he was Chairman of Union Council, Luddan and Member of Peace Committee. He deposed that on the day of occurrence at about 6-00 a.m. He saw Ch. Azam, A.S.-I. Standing on the entrance of Police Station and on his query, the above said Muhammad Azam, A.S.-I. Told that a murder had taken place so he took A.S.-I. Muhammad Azam in his presence. Muhammad Shafi complainant was brought to Police Station by police constable. This DW is respectable person and he has no axe to grind against complainant party so his testimony cannot be ruled out of consideration. The other person Muhammad Bakhsh (DW2) claims to be guard and his duty was to extend vigilant watch to the mango orchard of Sammanda Malang where the occurrence took place and he categorically stated that orchard was not given to Falak Sher deceased or to somebody else. He further submits that Muhammad Shafi complainant (P.W.7) the alleged eye-witness and Muhammad Bakhsh (P.W.8) were never sleeping nearby the place of occurrence. He further submits that no pet dog was got by him. The evidence produced by the defence through these two independent witnesses is confidence-inspiring and both of them have belied the story carved by the prosecution in the F.I.R. Thus, upon the discussion made in preceding paragraph the prosecution story seems to this Court to be highly doubtful and it is settled law that benefit of doubt always extended in favour of the accused/ appellant being favourite child of the prosecution.
16. An irresistible and inescapable result of the above discussion is that the prosecution has miserably failed to prove its case against the appellant Sultan alias Sulla beyond any reasonable doubt. This appeal is accepted and the appellant is acquitted of the charge by extending benefit of doubt to him. He shall be released forthwith from the jail, if not required in any other criminal case.