ASLAM JAVED MINHAS J: Khadim Hussain, appellant along with acquitted co-accused, Anees Ahmad Khan was tried by the learned Addl. Sessions Judge, Jampur, District Rajanpur, in a case bearing FIR No.100/2004, dated 02.05.2004, under Section 302 read with Section 109 PPC registered at Police Station Muhammadpur and vide judgment dated 08.02.2007, he was convicted and sentenced under Section 302(b) PPC to imprisonment for life with a fine of Rs.200,000/- to be paid to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C.
2. The relevant facts for the disposal of this appeal are that Ghulam Farid, PW8 got recorded complaint Ex.PF alleging therein that his brother Allah Ditta was servant of Anees Ahmad accused and few days prior to the occurrence, Anees Ahmad accused got married Mst. Tasleem Mai widow of Mureed Hussain with Allah Ditta (deceased) after payment of Rs.50,000/- to Khadim Hussain, appellant. On 02.05.2004 at about 8 p.m. When Allah Ditta (deceased) was coming back to his house after taking milk from Anees Ahmad while he along with Khameesa, Allah Diwaya and Muhammad Saleem PWs were also coming back to their house behind Allah Ditta and when at about 8.10 p.m. Allah Ditta reached toward south of Rasoolpur Town at some distance, they heard hue and cry of Allah Ditta. All the PWs rushed towards that place and saw that Allah Ditta was running while Khadim Hussain, appellant armed with churri was chasing him and within their sight Khadim Hussain caught hold of Allah Ditta and made consecutive churri blows upon Allah Ditta which hit him on left thigh, belly, left wrist, front side of the chest and left upper forearm, on receiving these injuries Allah Ditta fell on the ground. The PWs tried to apprehend Khadim Hussain but he succeeded to made his escape good. Then they attended Allah Ditta but he had succumbed to the injuries at the spot. The occurrence was committed on the abetment of Anees Ahmad, accused. The motive for the occurrence was alleged the rishta of Mst.Tasleem Mai which was given by both the accused Anees Ahmad and Khadim Hussain to Allah Ditta after taking Rs.50,000/- but now they want to take back Mst.Tasleem Mai without returning the said amount .
3. After registration of the case, the investigation was conducted and thereafter the challan was submitted in the trial court. The learned trial court framed the charge on 19.10.2004 which was denied by the accused persons and they claimed trial.
4. To prove the guilt of the accused, the prosecution examined as many as eleven witnesses during the trial. The complainant, Ghulam Farid appeared as PW8. He was eyewitness of the case and supported the prosecution version as narrated by him in the complaint Exh.PA. PW1 Ahmad Bakhsh, 237/HC kept the sealed parcels of blood stained earth and blood stained dagger in police Malkhana and thereafter handed over the same to Ghulam Shabbir, 197/C for its transmission to the office of Chemical Examiner. PW2 Ghulam Shabbir, 197/C delivered the sealed parcels of blood stained earth and blood stained dagger to the office of Chemical Examiner as mentioned above.
PW3 Muhammad Iqbal Patwari prepared the site plan of the place of occurrence through memo Ex.PA. PW4 Dr.Sultan Mehmood Asim on 03.05.2004 at about 9 a.m. Conducted the post mortem examination on the dead body of Allah Ditta and found nine injuries on his person. In his opinion all the injuries were ante mortem and injuries No.8 & 9 were fatal collectively. PW5 Shabbir Anjum, 537/CII escorted the dead body to mortuary for autopsy. He received the dead body of Allah Ditta and after the post mortem examination the doctor also handed over to him blood stained last worn clothes of the deceased Shalwar P1, Qamiz P2, Vest P3 which he handed over to the I.O. Who took them into possession through memo Ex.PE. PW6 Muhammad Aslam, ASI recorded the formal FIR Ex.PF/1 on 2.5.2004. PW7 Abdul Rahim on 3.5.2004 identified the dead body of Allah Ditta at the time of post mortem examination. PW9 Khameesa another eyewitness stated the same story as narrated by the complainant, PW8. PW10 Asmat Ullah Khan, Inspector deposed about the investigation conducted by him and thereafter submission of the challan to the court of competent jurisdiction.
5. After closure of the prosecution evidence, the statement of the accused/appellant was recorded under section 342 Cr.P.C. He denied the allegations and claimed his innocence and false involvement. In reply to a question "why this case has been registered against you and why the PWs have deposed against you" he stated as under:- "I am innocent. The instant occurrence is a blind murder taken place in night time witnessed by none. However, I have been falsely involved in this case by the complainant party to extort Chatti.
PWs are closely related interse and with the deceased and for the said reasons they have falsely deposed against me."
6. The trial culminated into conviction and sentence of the appellant as mentioned above whereas Anees Ahmad Khan was acquitted. The appellant has challenged his conviction and sentence through Criminal Appeal 101 of 2007 as mentioned above.
7. Learned counsel for the appellant argued that it was an unseen occurrence; that on the same evidence co-accused, Anees Ahmad has been acquitted by the learned trial court; that the appellant is innocent, therefore, he is entitled for acquittal.
8. On the other hand the learned Deputy Prosecutor General assisted by the learned counsel for the complainant vehemently opposed this appeal and supported the impugned judgment. They further contended that the medical evidence fully corroborates the ocular account and the learned trial court has already taken lenient view while awarding lesser sentence, therefore, the appellant is not entitled for acquittal.
9. I have heard the learned counsel for the parties and thrashed out the record with their able assistance.
10. Admittedly, according to the statement Ex.PF of the complainant the occurrence took place at 8.10 p.m. On 02.05.2004 and Allah Ditta, deceased died at the spot but according to inquest report Ex.PD the deceased died at 9 p.m., therefore, there is contradiction between the statement of the complainant and the inquest report. According to the PWs the appellant made several churri blows at the deceased but there is nothing on record to show that corresponding holes of churri blows were available on the last worn clothes of the deceased. The complainant, PW8 in the complaint Ex.PF stated that four PWs were present at the spot and all of them witnessed the occurrence but during the trial only Khameesa, PW9 along with complainant appeared whereas the other PWs namely, Allah Diwaya and Muhammad Saleem were given. The complainant, PW8 at one point admitted in his cross-examination that they chased the accused till the distance of about one Bigha but at the other point he stated that they did not try to chase or apprehend the accused rather they attended Allah Ditta who was seriously wounded, therefore, there is a material contradiction in his own statement made before the learned trial court. As per the law laid down in Pathan vs. The State (2015 SCM R 315), benefit of doubt---unnatural conduct of witnesses in not saving the deceased at the time of occurrence---presumption---unseen incident---motive not established-- effect ---accused was alleged to have stabbed the deceased repeatedly with a churri which resulted in the latter's death---Alleged motive for the occurrence was not established.
Deceased had numerous stab wounds on his body. Accused was armed with churri and causing many wounds to the deceased with a churri must have consumed reasonable amount of time.
However, the four witnesses who were all related and friends of the deceased remained silent spectators, and did not react or show any response when the accused was allegedly stabling the deceased. Intervention by close relatives in such a situation was a very natural but in the present case the witnesses neither did anything nor attempted to chase the accused to apprehend him.
Presence of witnesses at the crime spot had become highly doubtful due to their unnatural conduct, therefore, no explicit reliance could be placed on their testimony. Presumption was that deceased was done to death when no one was present to rescue him. Motive for the occurrence was not established in any manner through any documentary evidence or even secondary evidence of reliable nature and the trial court also did not accept the motive of the prosecution.
Since the ocular account was worthy of being discarded, according to the version of the prosecution the accused used a churri in the occurrence but the prosecution recovered a dagger from the accused which otherwise was doubtful and the other pieces of evidence would not be sufficient to carry conviction on the life imprisonment. The appeal was allowed accordingly and accused was acquitted of the charge by extending him benefit of doubt. The doctor, PW4 stated in his post mortem examination report that the duration between the injuries and death was half to one hour whereas the PWs stated that the deceased died at the spot. According to the complaint Ex.PF the deceased was coming back to his house after taking milk from the house of Anees Ahmad but during the investigation no milk pots were taken into possession. According to the FIR the appellant committed the occurrence on the abetment of Anees Ahmad but during the trial the prosecution failed to establish its case against said Anees Ahmad and that is why he was acquitted of the charges. The above stated facts establish that it was an unseen occurrence and the PWs were not present at the time of occurrence. Motive though was alleged but not proved. It is well-settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind, about guilt of an accused, then he will be entitled to such benefit not as a matter of grace or concession, but as of right. Reliance in this respect may be placed on the case Tarip Pervaiz Vs. The State (1995 SCM R 1345).
11. In view of what has been discussed above, Criminal Appeal No.101 of 2007 is allowed, impugned judgment of the learned Addl. Sessions Judge, Jampur dated 08.02.2007 is set aside and appellant, Khadim Hussain is acquitted of the charge. The appellant is present before the Court on bail through suspension of his sentence, hence his bail bonds are discharged.