1. A. QUASIM, J.-This appeal is directed against an order of conviction under section 302 of the Pakistan Penal Code passed by the .Additional Sessions Judge, Second Court, Sylhet.
2. The appellant Hekim Ali along with Montaz Ali and Akal Ali were put on trial in the Court of Sessions.
3. The charge against the appellant Hekim Ali was under section 302 of the Pakistan Penal Code for having caused the death of one Osman while the to co-accused were charged under section 324 of the Pakistan Penal Code for having caused hurt by means of sulphi to different persons in the same occurrence. The learned Additional Sessions Judge found all the three accused before him guilty of their respective charges. Thus the appellant Hekim Ali was sentenced to transportation for life, and the to co-accused were each sentenced to undergo rigorous imprisonment for one year.
4. The co-accused Montaz Ali and Akal Ali are not before us and thus the appeal is confined to the order bf conviction passed against Hekim Ali under sec--tion 302 of the Pakistan Penal Code.
5. The learned Additional Sessions Judge held the trial with the help of three assessors all of whom found Hekim Ali guilty of the charge.
6. Briefly stated, the prosecution case runs as follows: The deceased Osman and the appellant Hekim Ali were the in--habitants of village Chalitabari within the Goainghat Police Station in the district of Sylhet. About four years prior to the occurrence P. W. 8 Abdul Hashim, foster son of P. W. 15 Abdul Majid, built his dwelling house on a piece of land which belonged to latter and which was gifted to him for this purpose. The plot where Abdul Hashim built his house has a big area and Majid was one of the 9 co-sharers. One Razzaq (father of accused Montaz) also purchased some land from Abdul Majid within the same plot. By virtue of his purchase Razzaq claimed that he had acquired the entire interest of Abdul Majid and thus his son Montaz, aided by relations, made an attempt to evict P. W. 8 Abdul Hasbim from the land by removing his huts therefrom. With this end in view the appellant Hekim, Montaz, Akal and others raided the house of Abdul Hashim during his absence on the 28th Chaitra 1371 B. S. Corresponding to the 11th April 1965. This raid by the appellant Hekim and others with a view to evict Abdul Hashim was resisted by the deceased Osman and others, Osman having taken the leading part.
7. The occurrence leading to the death of Osman took place on the following day, that is the 12th April 1965 at about 9-30 a.m. In the morning. While Osman-was making straw bundles in his bichhra (some sort of vegetable garden) the appellant Hekim Ali and the co-accused Montaz Ali and Akal Ali suddenly came out from the house of one Asir Mohammad, armed with sulphis went up to his `bichhra', and threw a challenge to the effect that he had frustrated their attempt to evict Abdul Hashim on the previous day and if he bad any courage he could stop them now. But before Osman could give any reply the appellant Hekim Ali struck a sulphi on his chest causing a fatal injury.
8. Osman fell down in his bichhra and died on the spot. P. W. 2 Abdul Khaleque and P. W. 3 Kanchan Mia happened to be close to the place, and they moved forward to save Osman. At this stage Akal sruck his sulphi on the right shoulder of Abdul Khaleque and Montaz caused an injury in a similar manner on the left thigh of Kanchan. Thereafter the appellant Hekim Ali and the co-accused Montaz and Akal went back to the house of Asir Mohammad. A number of persons including the informant Asgar Ali came there and removed the dead. Body of Osman to the house of his uncle Azmat situated to the north of his own house. Thereafter, Asgar Ali went to the police station and lodged F. I. R.
9. The law having been put in motion by Asgar Ali, S. I. Abdul Bari took up investigation. He visited the locality on that very day and held inquest over the dead body of Osman found lying in the house of Azmat. He completed the investigation in due course and submitted a charge-sheet against the appellant Hekim Ali and the co-accused Montaz and Akal on 13-6-65. At the first instance a preliminary enquiry was held by a First Class Magistrate, and on being satisfied that a prima facie case was made against, the accused persons he committed them to the Court of Sessions. Thus the appellant Hekim Ali and the to co-accused were tried by, the learned Additional Sessions Judge, Sylhet with the result already indicated above.
10. While supporting the appeal Mr. Abdul Malek, the learned Advocate for the -appellant has tried to show that the prosecution story does not get support from the circumstances of the case and has tried to make out the following points in particular:
(1) The evidence to prove an occurrence on the previous day in the house of P. W. 8 Hashim is not at all satisfactory and worthy of reliance.
(2) The absence of blood in the `bichhra', of Osman where he is alleged to have been killed and then the alleged removal of his dead body from that place to the house of uncle Azmat are facts which do not fit in with the prosecution case.
(3) Osman's brother Tota (P. W. 16) also received an injury but this fact appears to have purposely been suppressed by the prosecution.
(4) There are material discrepancies in the evidence of the alleged eye-witnesses to the occurrence and in view of the circumstances of the case, it would not at all be safe to rely on such evidence and uphold the conviction.
11. Before we enter into a discussion of these points, it 'would be better if we narrate the topography of the alleged place of occurrence and some other connected matter. The Investigation Officer (P. W.
12. 17) has prepared a sketch map of the locality marked Exh. 2, and Exh. 1(1) is an index to the map.
13. The letters B, C, D, E, F, G, H and I in the map indicate several houses on the western bank of a river indicated by the letter J. The letter A indicates a particular spot in front of the house indicated by the letter D. If we try to understand the case map prepared by the Investigation Officer with reference to the deposition of the informant Asgar Ali (P. W. 1) it would appear that the letter D indicates the house of the deceased Osman. The letter C indicates the house of his father Moniruddin (P. W. 7), the letter B indicates the house of Asir Mohammad, the letter E indicates the house of P. W. 2 Abdul Khaleque, the letter F indicates the house of one Momraj, the letter G indicates the house of Azmat, where the Investigation Officer found the dead body of Osman, the letter H indicates the house of P. W. 15 Majid and the letter I with an open space between H and I indicates house of P. W. 8 Hashim: Mr. B. N. Chowdhury the learned Advocate appearing on behalf of the State has argued that as a matter of fact the letters D, E, F and G are the huts of the same homestead and in support of his argument he has referred to the deposition of P. W. 1 Asgar Ali the informant. Asgar Ali states that to the north of the Osman's dwelling but is the dwelling but of Khaleque and to the north of that but is the but of Momraj and further north the dwelling but of Azmat. But in cross-examination Asgar Ali states that he and others carried the dead body of Osman to the courtyard of Azmat's house as there is no space in Osman's hut, due to the erosion of the river. If Azmat had an independent courtyard it is obvious that he lived in a separate house. It appears, therefore, that Asgar Ali meant a house when he used the word hut. It may also he pointed out that according to the index prepared by the Investigating Officer these letters indicate houses and not huts of the same homestead. P. W. 8 Abdul Hashim is, admittedly, the foster son of P. W. 15 Abdul Majid. His deposition shows that Abdul Majid made a gift of his land to him and he built his dwelling house thereupon some years prior to the occurrence and subsequently Abdul Majid executed a kabala in his favour.
14. This kabala (Exh. X) appears to have been executed on 22-10-64: Exhs. A and B are to other kabalas which were executed by Abdul Majid in, favour of Razzak father of the accused Montaz on 22-9-64 and 22-10-64 respectively. Abdul Majid's testimony is to, the effect that one of these kabalas is a false document but we are not concerned with this point in the present case. It appears that Razzak claimed that by virtue of these to kabalas he had purchased the entire share of Abdul Majid in the particular plot and this claim appears to lie the main source of trouble because, according to the prosecution case, Hekim, Montaz and others tried to evict Abdul Hashim from his house on the basis of these kabalds.
15. Admittedly, there have been litigations between the parties. Razzak father of the accused Montaz 'brought a case under section 107 of the Code of Criminal Procedure against some of the P. Ws. And also a paddy cutting case under section 379, P. P. C. On the other hand P. W. 8 Abdul Hashim brought a case under section 107 of the Code of Criminal Procedure against some of the members of the other party and P. W. 15 Abdul Majid brought a case of cheating and forgery against Razzak and others.
16. The parties are not strangers but relations. It is admitted by one of the witnesses that Mosaddar son of Razzak has married the sister of the deceased Osman. Similarly, it appears from the evidence on record that the sister of P. W. 8 Abdul Hashim has been married to P. W. 5 Mortuz, a brother of the deceased Osman. P. W. 2 Abdul Khaleque, P. W. 5 Mortuz and P. W. 16 Tota are the brothers of the deceased Osman, P. W. 3 Kanchan and P. W. 4 Kasim are his cousins, P. W. 6 Azmat is his uncle and P. W. 7 Moniruddin is his father. Thus briefly speaking the matter was among relations where existed bitterness and enmity on account of litigations and transfers of land by Abdul Majid to Abdul Hashim and Razzak.
17. The above-mentioned facts may be considered as the back--ground and now we come to the main points. It is obvious that the alleged occurrence of murder of 12-4-65 is the direct result of the alleged earlier occurrence on the previous day. The witnesses on this point are P. W. 1 Asgar Ali P. W.
18. 2, Abdul Khaleque and P. W. 5 Shah Mortuz Ali. Asgar Ali states that the appellant Hekim and co- accused Montaz and Akal and others went to the house of Abdul Hashim to dismantle the hut. He has not however, stated in the F. I. R. That ' the appellant Hekim and Akal accompanied Montaz. On this occasion. Asgar Ali (P. W. 1) states that one Gafur also saw this occurrence but the latter has not been examined on the plea of old age which does not appear to be. Convincing. Abdul Khaleque (P. W. 2) did not see the occurrence on the previous day personally. According to his deposition, he only heard of it from the deceased Osman. Shah Mortuz Ali (P. W. 5) states that he saw the occurrence. Of the previous day but admits that he did not narrate this occurrence in the Court of committing Magistrate and to the Police. He, however, adds that he did not mention this fact earlier because he was not questioned. But the occurrence of the previous day is so intimately connected, with the alleged occurrence of murder that a witness who claims to have seen both the occurrences can hardly wait for a question to be put about the earlier occasion. P. W. 15 Abdul Majid has not stated anything about the occurrence of the previous day in his examination-in--- chief, but in his cross-examination he states: "I was present at home when the accused party wanted to dispossess Hashim from his homestead on the 28th Chaitra 1371. On that day they went unarmed."
19. Asgar Ali (P. W. 1) has, however, stated that the accused party went to dispossess Abdul Hashim with lathis in hand but Abdul Majid would like us to believe that these persons went for such an unholy at empty-handed. According to the prosecution case the intention was to evict Hashim, to dismantle his but and to obtain possession of the land, and for such a purpose the attack would naturally be made not only with lathis in hand but also with some implements to dismantle the hut.
20. Apart from this the statement made by Abdul Majid as quoted above, does not indicate that he personally saw the occurrence on the previous day.
21. The evidence of P. W. 8 Abdul Hashim is very relevant on the question under discussion. It appears from his testimony that he was absent on 11-4-65 (the date of the alleged occurrence of the previous day because he had gone to the police station in connection with his case under section 107, Cr. P. C. Connected with the homestead. His statement further shows that he left the police station at 11 p.m. At night and reached the village in the morning when the occurrence had' just taken place. His evidence further shows that he was escorted from the police station to the village by to constables. These statements do not get any support from the testimony of Sub-Inspector of Police Abdul Bari who had deposed as P: W. 17 and who investigated the case. It may also be noted here that the police station is only 8 miles away from the place of occurrence. If Hashim had really any business in the police station he would have naturally timed his visit in such a manner that he might return before the night set in. Then again the testimony of Sub-inspector of Police M. A. Bari (P. W. 17) shows that Hashim's case under section 107, Cr. P. C. Was received from the. S. D. O.'s Office only on 11-4-65 and thus it is difficult to understand as to how Hashim could get this information and reach the police station on the same day unless we believe that he had some sort of intuition. Thus keeping in view the circumstances of the case Hashim's absence from the village on 11-4-65 does not appear to be a true allegation. This being the nature of the evidence the contention that the prosecu--tion has failed to prove the alleged occurrence of the previous day cannot be said to be without any basis and foundation. As a matter of fact the evidence is to unsatisfactory to come to the conclusion that an occurrence as alleged by the prosecution really took place on the previous day.
22. The occurrence leading to the murder of the deceased Osman is alleged to have taken place in his house but the Investigating Officer (P. W. 17) found his dead body in his uncle's house (P. W. 6). The Investigating Officer did not, seize any blood-- stained earth or any blood-stained material from any place in or near the house of the deceased Osman. The prosecution has tried to explain this by saying, firstly that very little blood fell from the injury of the deceased Osman and secondly that whatever blood fell it was wiped out by the movement of persons. The post-mortem examination of the deceased Osman was held by P. W. 18 Dr. S. K. Guha. He found only one injury which he described as follows:-- "One punctured wound 3/4" x 1/3" penetrating into the left chest cavity placed on left side of chest in front just -- above the left nipple directed, backwards and inwards.
23. Dissection: On dissection of the injury it was found to pierce through left third intercostal space, then entering into left chest lung near its anterior border at its lower part, then piercing through mediastinal wall and pericardium pierced into the root of aota cutting its anterior wall for about its 1/4".
24. In view of this description of the injury it has been argued by the learned Advocate for the State that the haemorrhage was internal -and, thus there was no profuse bleeding outside. But when the prosecution says that the blood was wiped out by the movement of the people it is admitted that, sufficient blood fell on the spot and besides this P. W. 2 Khaleque and P. W. 3 Kanchan were also injured and Kanchan states that he bleeded profusely. Thus keeping in view the circumstances of the case we are compelled to believe that sufficient blood must have fallen at the alleged place of occurrence, that is, the bichhra, of the deceased Osman. The allegation that the blood was wiped out by the movement of the people before the arrival of the investigating Officer at night does not appear to be probable because the bichhra (vegetable garden) was a part of the house of the deceased Osman and was not a public path way. Thus only the inmates and close relations must have gone in and come out of the house of Osman and obviously they must have avoided to pass over human blood. Besides this, it should have been the anxiety of the complainant party to preserve this conspicuous mark of occurrence in the bichhra of Osman and not to destroy it by careless walking. It may also be noted here that the investigating Officer did not find, as his deposition shows, any mark of struggle or violence in the biehhra. Thus the absence of blood or any mark of struggle or violence in the bichhra of Osman is a matter which speaks loudly to show that the occurrence leading to the death of Osman did not take place there. Connected with this matter is the pertinent fact that the dead body of Osman was found by the Investigating Officer in the house of P. W. 6 Azmat. The P. Ws. Have stated that after the occurrence the dead body of Osman was carried to the house of his uncle Azmat because there n, J was no space in the house of Osman on account of the erosion by the river. The river, is, however, situated on the eastern side of the house and the bichhra, appears to be on the western side.
25. Then again the allegation is that at the relevant the Osman was making straw bundles a fact which indicates that there was sufficient space in the bichhra. Thus the explanation for removing the dead body from the bichhra to the house of Azmat is not at all convincing.
26. P. W. 14 Abdul Haque is a tendered witness but he was cross-examined by the defence. He states that he saw an injury on the body of Tota. This Tota is admittedly, the brother of the deceased Osman and he has deposed in the Court of Sessions as P. W.
16. He was not, however, examined in the Court of the committing Magistrate. It appears from the testimony of the Investigating Officer that he found an injury on the person of Tota and had him examined by the doctor who held the post-mortem examination on the dead body of Osman and who examined the injuries of Khaleqtie and Kanchan.
27. Dr. S. K. Guha (P. W: 18) found one simple and superficial injury on the left thigh of Tota. Tota himself states that at the the of the occurrence he was in his paddy field and while he was returning home after the occurrence the accused Hekim Ali assaulted on the cheek (not the thigh) with a pointed split bamboo on the western side of Asir Mohammad's house. There was, however, hardly any occasion for causing such an unprovoked injury. Hekim had already, according to the prosecution case killed Osman and it was not natural on his part to keep himself in the open to cause such injury to Tota who came there rather accidentally. Thus it appears to us that the injury to Tota is a matter which is connected with the occurrence itself and is not independent of it. It would be obvious, therefore, that the prosecution has tried to suppress the true facts.
28. Let us examine now, briefly, the direct evidence to prove the alleged occurrence of murder on 12-4-
65. P. Ws. 1 to 6, namely, Asgar Ali, Abdul Khaleque, Kanchan Mia, Abdul Kashem, Shah Mortuz Ali and Azmat Ali are alleged to be eye-.Witnesses to the occurrence. Asgar Ali (P. W. 1) states that he and other P. Ws. Saw the actual occurrence, that is, the killing of Osman. In his cross-examination he states that he and others saw the accused coming from the house of Asir Mohammad with sulphis. He then states that they all stood about 40 cubits away from the house of Osman. P. W. 5 Shah Mortuz Ali states in his cross-examination that he was standing by the side of his but and Asgar Ali (P. W. 1) and others were standing in the courtyard of Azmat at the the of occurrence.
29. Asgar Ali (P. W. 1) states that he was standing by the side of Khaleque and he further states that he moved for, and only when he heard the cry of Khaleque. He describes the occurrence in a manner as if he witnessed the same from beginning to end and yet he had to wait for a cry from Khaleque to look in the particular direction. P. W. 2 Abdul Khaleque states now that although he was very close to Osman he did not hear the answer given by Osman when challenged by Montaz and others. He however stated to the Investigating Officer that Osman gave a reply and asked the accused party to proceed to the house of Hashim where he would follow them. Abdul Khaleque states that .He cried when his brother had already been stabbed. This does not appear to be a natural conduct because if some persons are close to a victim they would impulsively cry out as soon as they find that some ' other persons are ready to attack him. P. W. 3 Kanchan Mia states that he was in the house of P. W. 6 Azmat Ali when he heard the cry of Khaleque to the effect that his brother had been killed. Asgar's testimony would, however, show that Kanchan was close to him and not in the 'house of Azmat. P. W. 4 Abdul Kashem states that he was standing in his courtyard from where he saw the occurrence, but the testimony of Asgar would show that this witness was standing close to him. P. W. 5 Shah Mortuz Ali states that Kashem was standing in the courtyard of Azmat and he himself was standing by the side of his own hut. P. W. 6 Azmat Ali states that he was sitting on his varenda when he heard a cry and looked towards the bichhra of Osman and found him lying on the back with injury. He goes on to say that Khaleque and Kanchan rushed to that place where the accused Hekim Ali was standing with a sulphi. It is difficult to understand as to why Khaleque and Kanchan rushed to the place when Osman had already fallen on the ground. It is also difficult to understand as to why the accused persons stayed on at that very place after having fulfilled the object of killing Osman.
30. The testimony of the above-noted six witnesses who claim to be eye-witnesses is contradictory on several points and does not get support from the circumstances of the case. P. W. 7 Maniruddin is the father of the deceased Osman. His testimony shows that he heard the cry but he could not come out on account of some pain and ultimately saw the accused persons going back to the house of Asir Mohammad. In his cross-examination he states that on hearing the cry he fell down senseless. If it was actually so then it is difficult to believe that he was conscious enough to be alert and see the retreating accused persons. P. W. 9 Dudu Mia states that at the relevant the he was in the house of P. W. 6 Azmat Ali. He heard a cry and came out and saw the accused Hekim Ali, Montaz and Akal going back with sulphis in their hands. It is rather peculiar that some other witnesses who were in the house of Azmat Ali claim to have seen the occurrence of killing and assault while this man' could see only the retreat of the accused persons. In his cross-examination the witness gets confused when he states that he did not go to the bichhra but he carried the dead body from the bichhra. P. W. 10 Abdul Latif, P. W. 11 Rafiullah and P. W. 12 Abdus Samad claim to have heard the occurrence from Kanchan arid, Khaleque but the latter to do not state expressly that they narrated this occurrence to others. P. W: 13 Shamsul Haque is a tendered witness and so also P. W. 14 Abdul Haque, but the latter. Has been cross-examined by the defence 'as already stated. P.
31. W. 15 Abdul Majid is the owner of the land and the foster father of P. W. 8 Abdul Hashim. His deposition is confined to relationship with Hashim and to the transfer of land to Razzak father of the accused Montaz. Although he is an important witness in the sense that the transfers made by him culminated in this tragedy he was neither examined by the police nor in the Court of the committing Magistrate.
32. It appears that a distant relation of the appellant Hekim Ali filed a complaint in Court in respect of the same occurrence making allegations to the effect that there was a conflict between to parties, one headed by the deceased Osman and the other headed by P. W. 14 Abdul Haque, close to the house of Hashim and Osman lost his life in that conflict. This complaint was forwarded to the Investigating Officer (P. W. 17) and his testimony shows that he did not investigate that matter because it related to the same occurrence which had already been reported much earlier in the police station. We are not concerned here with the truth or otherwise of the allegation made in the petition of complaint.
33. The defence has examined some witnesses to prove that the occurrence was of a very different nature near the house of Hashim and also to show that there was no occurrence on the previous day. The witnesses are, of course, interested persons lout then the defence has no onus to discharge. It was the duty of the prosecution to prove the alleged case of murder beyond reasonable doubt.
34. In view of the discussion made above and on a careful con--sideration of the entire evidence on record and the circumstances of the case we are satisfied that no occurrence took, place on the previous day and that the unfortunate Osman lost his life in an occurrence of a different nature which took place not in his house, but in all probability close to the house of Hashim. It is possible that the appellant Hekim Ali was involved in the matter and it is also possible that he was responsible for the death of Osma n. But this must have happened under very different circumstances. This being the position, we are satisfied that the prosecution has failed to establish the charge of murder against the appellant Hakim Ali beyond reasonable doubt.
35. In view of the above finding we are satisfied that the appel--lant Hekim Ali is entitled to acquittal.
36. Accordingly, we allow the appeal and set aside the order of conviction passed against the appellant by the learned Additional Sessions Judge under section 302 of the Pakistan Penal Code.
37. The appellant be set at liberty forthwith if no wanted in any other connection.
38. NURUL ISLAM, J.-I agree.