(1) Criminal Appeal. No. 41 / 1978, Nat it v. State.
(2) Criminal Appeal No. 176/1978, Akbar v. State.
Five persons including the two appellants were tried for the murder of Taj and murderous assault on Muhammad Niaz (P. W. 8). Mr. Ali Nawaz Chowhan, the learned Additional Sessions Judge, Campbellpur, acquitted Akbar son of Waris, Nazir son of Ali Bahadur and Razzaq of the charges against them, but convicted Akbar son of Khairdi and Nazir son of Amir, the present two appellants, both under section 302/34, P. P. C. And sentenced them each to imprisonment for life and a tine of Rs. 3,000 or in default to suffer R. I. For two years. Nazir was also convicted under section 307, P. P. C.
And was sentenced to imprisonment for a period of five years and to a fine of Rs. 500 or fine if further R. I. For a period of, six months. Rupees 2,500 out of the fine if realised is to be paid as compensation to the heirs of the deceased.
2. According to the story of the prosecution three months before the present occurrence, a theft occurred of the crop of Muhammad Khan (P. W. 9), the father of the deceased and Niaz (P. W. 8) for which the appellants were suspected. Another incident to which the prosecution has referred is the abuses allegedly given to the father of the deceased by Nazir, son of Ali. Bahadur (acquitted), when the father had gone to offer fateha for the death of daughter of Ali Bahadur. According to the prosecution for this reason the appellants and their co-accused nourished a grouse against the deceased and the P. Ws. And were attacked en the fateful day when the deceased and Niaz (P W.
8), the two brothers, were going towards Pindigheb. Niaz P. W. Is also the complainant. He has stated that at about 7-00 a. m. On 27th June, 1975 he and his brother Muhammad Taj deceased were going towards Pindigheb to meet their sister. When they reached near the Dhok of Khairdi, the appellants and their co-accused attacked them and both Taj and he received injuries. Taj died on the spot while Niaz P. W. Survived. The matter was reported to the Police the, same day at 9.00 a. m.
And the injured and the deceased were examined by the doctor.
3. According to the medical evidence, the deceased received four injuries with a sharp-edged weapon including injury No. 2 which proved fatal. Niaz P. W. Received eight injuries. They were all caused by blunt weapon except injury No. 3, a cut wound on the front of the right chest.
4. The appellants have denied their participation in the occurrence, in their statements under section 342, Cr. P. C. During cross-examination, however, suggestions have been made that the P.
Ws. Had made an attack as they wanted to take revenge for the injuries caused to Niaz P. W., in an earlier incident and that they were beaten back by the appellants. In their statements under section 342, Cr. P. C., however, the appellants have made a complete denial.
5. As discussed above, it is obvious that the defence is vacillating between a plea pf total denial and a plea of self-defence. The prosecution, however, cannot take any advantage as it must stand on its own feet. The prosecution also has not come out with clean hands in the present case. As against the story narrated by Niaz P. W., and his father Mohammad Khan P. W., the testimony of C.
W. 1 Falak Sher D. S. P. Is important. It has come on record that the D. S. P. During his investiga--tion had come to the conclusion that Nazir son of Amir Khan, Nazir son of Ali Bahadur and Razzaq were innocent. The D. S. P., however, did not mention their names in column No. 2 and he left it for the Court to decide. It is important, nevertheless, that the D. S. P. While referring to his investigation has stated that the accused persons had offered to settle the matter on oath but this offer was not accepted by the complai--nant. The same question was put to the P. W5 They of course dented the suggestion.
6. The prosecution case rests on the testimony of the eye-witnesses and the evidence of recovery apart from the evidence for motive. The eye--witnesses are only two in number. They are a father and son, Mohammad Khan and Niaz. Mohammad Khan is not injured, although he claims to be present when his two sons were attacked, one of whom died and the other received 8 injuries. Niaz P. W. Is stated to have been injured during the occurrence although the defence has suggested that Niaz was injured in an earlier incident. As far as recoveries are concerned, no recovery has been effected at the instance of Nazir appellant but a blood--stained spear has been recovered at the instance of Akbar appellant. The evidence of motive comes from the eye-witnesses. They have stated that the suspicion regarding the mustard crop was the starting point of the trouble.
7. It may be mentioned that Akbar appellant and the deceased were first cousins. Akbar's father and the father of the deceased were real brothers and apart from the incident regarding the theft of the mustard crop there has been no previous enmity between the parties. The incident at the house of Ali Bahadur where Mohammad Khan P. W. The father of the deceased was abused by Nazir accused (acquitted) has nothing to do with the present appellants and is, therefore, not relevant. Nazir son of Amir Khan appellant is not related to Akbar appellant. Their only connection is that they both belong to the same caste. There is also no evidence of motive against Nazir.
Similarly, no recovery has been effected at the instance of Nazir appellant although he is accused of having used a spear and caused injuries to both the deceased and Niaz P. W. With his spear.
8. As far as the recovery of a blood-stained spear at the instance of Akbar appellant is concerned it is important to observe that this was effect--ed seven days after the arrest of the appellant. The investigating officer admits that he had been present in the village for two or three days for the purpose of investigation and had not searched for the spear during these two or three days. The place of recovery is also a place which is easily accessable. The investigating officer states that it was chained from outside and not locked. The spear again had not been hidden anywhere in the room. I do not think this evidence is really plausible. It cannot be believed that Akbar appellant who was arrested two days after the occurrence, had taken no step to get rid of this spear or at least to wash A off the stains of blood. A recovery after a lapse of almost a week would in any case be doubtful. I am, therefore, of the view that the evidence for the recovery of the blood-stained spar at the instance of Akbar appellant cannot be relied on.
9. Regarding the ocular testimony, it is an important circumstance to observe that the de-eased and Niaz P. W. Were attacked by the appellants and their co-accused, but their father was spared.
Again it will be quite unnatural to assume that the father stood by and did not try to intervene when two of his sons were being severely injured. Niaz P. W. Has stated that the occurrence had affected their father Mohammad Khan P. W. So much that he was not in a fit condition to lodge the F.I.R. And the F. I. R. Was lodged by Niaz himself. If the father had so much been involved in the welfare of his sons his conduct of not intervening is unnatural, unless this leads to prove that Mohammad Khan was not present when the occurrence took place.
10. Niaz P. W. Has received 8 injuries and presumably these injuries were received during the occurrence. A doubt nevertheless, has crept in on account of the testimony of the doctor who examined him. Dr. Gul--e-Naukhez Ghauri examined Niaz P. W. At 9-45 a. m. On 27th June, 1975 and was of the opinion that the injuries were inflicted within 12 hours. During cross-examination she stated that it was possible that Niaz P. W. Received injuries at 6.00 a. m. On the day of occurrence.
She also stated that it was possible that the injuries were received on the night between 26th June, 1975 and 27th June, 1975 at about 11.00 or 12.00 mid-night. The time of injuries is relevant because a suggestion has been made during cross-examination of the eye-witnesses that there was another occurrence earlier than the present one in which Niaz P. W, may have been injured. Niaz P. W.
Himself had made a statement before the D. S. P. He denied at the trial having stated to the D. S. P.
That at morning time on the day of occurrence, Akbar, appellant armed with a stick attempted to attack him and that he ran away and told the story to his brother. Niaz was confronted with his previous statement Exh. DA, where such a statement was found to be recorded. Niaz could not explain the discrepancy.
11. The prosecution wishes to be believed that the deceased and the P. W. Were ambushed by the appellants and their co-accused when they passed by their house at 7.00 a. m. On 27th June, 1975.
Niaz P. W. On this point makes an important concession for the appellants when he says hat the accused were not acquainted with his programme. If this were so there was no occasion for the preparation involving as many as five persons who could have ambushed the deceased and P.Ws.
At the time of occurrence. This may show that either Niaz P. W. Was not there when Taj was killed, thus leading to the credence of the story of the defence that it was a blind murder or that something else happened which led Niaz P. W. And Taj deceased to the place of occurrence which is only 50 feet from the Dhok of. Akbar appellant and that that fact is being sup--pressed. This is significant because the deceased and Niaz P. W. Had many other alternate paths to take them to Pindigheb and they did not necessarily have to chose the path which led them by the house of their enemies.
12. Going through the judgment of the learned trial. Judge, one is struck with the difficulties which he is experiencing in coming to the true facts of the occurrence. He finds suppression of true facts and I have no reason to disagree with his assessment. He was able to distinguish the case of the three acquitted accused persons, as the recoveries, which could have corroborated the story of the prosecution, were not believed. The learned trial Judge took pains to try and distinguish the case of the appellants from the remaining accused persons, but I am afraid that the case of the appellants suffered from the same defects which were responsible for the acquittal of the remaining three accused persons. The prosecuting in trying to establish the case narrated in the F. I. R. Has tried to till up the gaps in such a way that the entire case becomes doubtful.
13. The learned counsel for the State has urged that there was no previous enmity between the parties and, therefore, there was no reason for the P. Ws. To falsely accuse the appellants for the offence of murder. By the same token it can be argued that if there was no previous enmity, there was also no motive for the appellants to kill Taj and to make a murderous assault on Niaz P. W. The case of Nazir appellant is even stronger. There is no motive at all that may have compelled him to commit a murder. His case might be stronger even than the acquitted persons. Some recoveries had been effected from the acquitted accused persons, but no recovery has been effected from Nazir appellant.
14. The result of the above discussion is that neither the prosecution nor the defence have tried to clarify the issues involved in the case. It was of course the obligation of the prosecution and not of the defence to do so. This makes the entire case for the prosecution doubtful. The story narrated by father and son does not find support from independent sources and it is not possible to sustain a conviction on the basis of the evidence produced. The appeals, both of Akbar and Nazir are, therefore, accepted. The conviction and sentences are set aside and they are acquitted of the charges against them. Nazir appellant is on bail. He is discharged from the bail bond. Akbar appellant is in custody. He shall be set at liberty, if not wanted in any other case.