The appellant, Kallu Khan aged 40 years, eras convicted of an offence under section 302 of the Pakistan Penal Code by the 'Additional sessions Judge at Kasur for causing the death of Muhammad Sharif, deceased, and was sentenced to suffer imprisonment for life and to pay a fine of Rs. 2,000 or in default thereof, to suffer further rigorous imprisonment for a period of six months.
Together with him one Khushi Muhammad was also tried on the same charge but he was acquitted by the learned Additional Sessions Judge. The appellant has filed this appeal against his conviction and sentence.
2. The appellant as well as the deceased belonged to village Olakh Hithar. There was a dispute between them over some agricultural land which the appellant claimed to be the property of his wife, namely, Mst. Fatima. At the time of the occurrence a suit was pending between the parties.
This suit had been brought by Mst. Fatima. The Court which was seized of the matter had made an interim order restraining the deceased and his brother from interfering with her possession.
However that may be, the prosecution alleged that this land was under the cultivation of the deceased and his two brothers and the appellant wanted the deceased and his brothers to vacate the land. The deceased and his brothers were not prepared to concede the claim of Mst. Fatima to the ownership of the land and for that reason they declined to surrender the possession in favour of the appellant.
3. It was further alleged by the prosecution that on 28th August, 1975, at about 3 p.m., the deceased and his brother Muhammad Boota (P. W. 7) were repairing the watts of the fields which had been damaged on account of rains. They were working in two different fields which were three killas apart. Suddenly, the appellant and Khushi Muhammad came there. The appellant was carrying a dang while Khushi Muhammad had a pistol with him. As soon as they reached the spot the appellant raised a lalkara and gave a dang blow on the head of the deceased. Muhammad Boota (P. W. 7) ran to rescue his brother, Khushi Muhammad fired at him but missed. The appellant and Khushi Muhammad then ran away. When Muhammad Boota (P. W. 7) got near the deceased he found that the latter was in an unconscious state and bleeding by the nose and mouth.
4. With the help of a number of persons Muhammad Boota (P. W. 7) took the deceased on a cot to Police Station, Khudian which was at a distance of five miles from the spot. They reached the police station at 6-45 p.m. Where Muhammad Boota (P. W. 7) lodged the F. I. R. (Exh. P. D). The deceased was then taken to the Civil Hospital at Kasur. He died before reaching the hospital.
5. The post-mortem examination of the deceased was performed by Dr. Zafar 1qbal Chaudhry (P.
W. 4). The deceased had a swelling, 3" x 3" on the top of the head, slightly right of the middle line.
Under the swelling the right and left parietal bones had been fractured and the sutures opened. In the opinion of the doctor this injury was sufficient in the ordinary course of nature to cause death and that the deceased had died within a few hours of the attack on his person.
6. The appellant pleaded not guilty to the charge against him. He denied that he was responsible for causing the death of the deceased. He stated that the land where the occurrence took place belonged to his wife and she was in cultivating possession of the same. The complainant party wanted to take over its possession by all means and with this object in view it had falsely implicated him in this case. In his defence he produced some documents including copies of khasra girdawari and jamabandi. He did not lead any other evidence in his defence.
7. The case of the prosecution rests entirely upon the ocular tes--timony which was furnished by Muhammad Boota (P. W. 7) and Khair Din (P. W. 8). One Nawab was also cited in the F. I. R. As eye- witness but he was given up on the ground that he had been won-over. Muhammad Boota (P. W.
7) claimed that he was present together with his brother at the scene of occurrence when the attack on the deceased took place. Khair Din (P. W. 8) who was also related to the deceased deposed that at the relevant time he was passing by the scene of occurrence on his way back to the village. Both these witnesses alleged that they had seen the appellant giving a dang blow on the lead of the deceased.
8. As stated earlier, a civil suit was pending between Mst. Fatima, wife of the appellant and the family of the deceased when the occurrence took place. A few months prior to the occurrence the appellant had cut down a sheesham tree from land in dispute. This was resented by the deceased and his family. On account of the civil suit and the cutting down of the tree by the appellant enmity had developed between the family of the deceased on the one band and the appellant on the other hand. This was admitted by Muhammad Boota (P. W. 7) in his cross--examination. It is to be noticed that a son of Khair Din (P. W. 8) was married to a cousin of the deceased. This would appear so from the testimony of Siddique (P. W. 61, a real brother of the deceased. 1t was not disputed that Khair Din (P. W. 8) belonged to the brotherhood of the deceased. The appellant belonged to a different caste altogether. In the circumstances neither of the two eye-witnesses can be described as either independent or disinterested.
9. However that may be, the main question for consideration is if the two eye-witnesses were in fact present at the time of the attack on the deceased. It appears from the statement of Muhammad Boota (P. W. 7) that he was no longer living in the village but had shifted to Lahore. It had been raining on the day of occurrence. As already stated he claimed that at the relevant time he had gone together with the deceased to repair the watts of their fields which had been damaged by the rain. The site plan (Exh. P. C.) shows that the deceased was attacked in field No. 2777 while at that time Muhammad Boota (P. W. 7) was present in field No. 2770. According to the jamabandi for the year 1974-76 (Exh. D. C.), both these fields were owned by Mst. Fatima and according to khasra girdawari (Exh. D. B.) these fields had been under her personal cultivation in kharif 1975, that is, the crop season in which the occurrence took place. It seems unlikely that Muhammad Boota (P. W. 7) would come all the way from Lahore to join his brother on a rainy day which the day of occurrence was and proceed to repair the watts of fields which were cultivated by someone else, particularly when there was a restraining order from the Civil Court directing them not to interfere with the possession of the owner thereof. In order to get over this inherent improbability with regard to his explanation for his presence at the spot Muhammad Boota (P. W.
7) took up the indefensible position that Mst. Fatima to whom these fields belonged was not the wife of the appellant. He alleged that the father of the owner of the land was Bhopla whereas the wife of the appellant was the daughter of one Lahri, It may be mentioned that in the jamabandi (Exh. D. C.) Mgt. Fatima has been described as the daughter of Bhopla. The appellant has produced a copy of his Nikahnama (Exh. DD). In this copy the name of his wife's father has been recorded as Bhopla. In her suit Mst. Fatima had described herself to be the wife of the appellant. In the circumstances I sin not sure that if at the time of the occurrence the deceased had in fact gone to repair the watts of his fields. This makes the explanation preferred by Muhammad Boota (P. W. 7) for his presence at .The scene of occurrence as somewhat unconvincing.
10. According to the site plan (Exh. P. C.), Muhammad Boota (P. W. 7) was at a distance of 124 karams, that is, more than 200 yards from the scene of occurrence at the relevant time. He was therefore hardly in a position to hear what transpired between the deceased and his assailants just before the occurrence. It is also to be noticed that he alleged that the appellant was accompanied by another person, namely, Khushi Muhammad and that person opened fire at him as he ran towards the deceased to rescue him. This story was rejected by the trial Court which then acquitted Khushi Muhammad. Obviously, the trial Court did not regard him as a truthful witness.
11. The prosecution itself was not sure why the appellant and his companion came to kill the deceased. Muhammad Boota (P. W. 7) asserted that the motive for the occurrence was that the appellant wanted the deceased and his family to vacate the land. Even the lalkara ascribed by him to the appellant just before the attack on the deceased was to the effect : We will tell you now to whom the land belongs. On the other hand his elder brother Siddiq (P. W. 6) was very sure that the attack on the deceased had nothing to do with the dispute over the land but that its cause lay in the cutting down of sheesham tree. It is to be noticed that in the F. I. R. (Exh. P. D.) there is no mention at all of the quarrel about the tree.
12. On his own showing Khair Din (P. W. 8) is a chance witness. From the site plan (Exh. P. C.) it appears that he was at a distance of 130 karams, that is, about one furlong, from the scene of occurrence at the time of the attack on -the deceased. - He was over 55 years of age when the occurrence took place. It is unlikely that he could witness the occurrence from such a long distance particularly when bajra crops were standing in the intervening fields. Realizing this inherent weakness in his testimony he made a somewhat different statement at the trial. He deposed that the appellant and the deceased had an exchange of abuses for more than 15 minutes before the deceased was attacked. This was not the position of Muhammad Boota (P. W. 7) either in his statement at the trial or when he lodged the F. I. R. For his version was that as soon as the appellant and his companion reached the spot the appellant raised a lalkara and immediately thereafter struck the deceased with his dang. If this were indeed so, the occurrence must have been over by the time the alarm reached the ears of Khair Din (P. W. 8) even if he was present at the place where he claimed to be.
13. According to the prosecution the occurrence took place at 3-00 pm and the F. I. R. Was recorded at 6-45 p.m. As mentioned earlier the place of occurrence was at a distance of five miles from the police station. Considering that it was raining on the day of occurrence it would seem that there was no delay in lodging of the F. I. R. Thus the F. I. R. Would appear to be a strong corroborative piece of evidence with regard to the identity of the assailant or assailants of the deceased. The defence seriously disputed the authenticity of the F. I. R. And alleged that it was recorded on the morning following the day of occurrence and the complainant party had enough time to think of a story. Although there is a little evidence in support of the assertion of the defence that the F. I. R.
Was prepared on the day following the day of occurrence yet the conduct of the Sub-inspector during the course of investigation does not appear to be above-board. He had stated that he had left for the scene of occurrence immediately after recording the F. I. R. Yet he did not reach there till the following morning on account of rain. He also stated that he arrested the appellant and his companion on 3rd September, 1975. On both these points he was contradicted by Muhammad Boota (P. W. 7) and Khair Din (P. W. 8). 'According to these witnesses the police reaches the scene of occurrence on the very first night and that during this very night it arrested the appellant and his companion. I see no reason to disbelieve Muhammad Boota (P. W. 7) and Khair Din (P. W. 8). A Considering that the investigating officer was capable of making incorrect statements it will not be safe to rely upon his testimony with regard to time he recorded the F. I. R. In this context it may also be notices that according to Siddiq (P. W. 6) the party carrying the cot of the deceased reached the Police Station at degarwela, that is, an hour or two before the sun-set. Muhammad Boota (P. W.
7) stated that the police reached the spot when it was still day-time. This supports the time given by Siddiq (P. W. 6). Yet I find that the F. I. R. (Exh. P. D.) was not recorded till after sun-set. This does support the contention of the defence that the F. I. R. Was recorded after spot inspection and preliminary investigation. In the circumstances it will not be safe to rely upon it for the purpose of seeking corroboration for the ocular testimony.
14. The above being the state of evidence I am not sure if any of the two eye-witnesses produced by the prosecution was present at the spot at the relevant time. There is no other evidence linking the appellant with the c occurrence. I have therefore no alternate but to give the benefit of doubt to the appellant. Accordingly, I set aside his conviction and sentence and acquit him of the charge against him. He shall be set at liberty forthwith ix not required in any other case.