This Criminal Appeal arises from the judgment of learned Additional Sessions Judge, Sabiwal, whereby he on 23-10-1979 convicted Allah Yar, aged 50 years, Munir aged 19-20 years and Muhammad Hanif aged 22 years under section 302/34, P. P. C. For causing the death of Muhammad son of Ramzan and sentenced each to imprisonment for life and fine of Rs. 1,000 each or in default thereof to suffer further R. I. For one year each with the direction that half of the fine when recovered shall be paid to the legal heirs of the deceased as compensation.
2. The occurrence took place at about mid-night near the heap of wheat of the deceased in Killa No. 6 rectangle No. 13, Chah Ramzan Luck of Mauza Harrappa. The F. I. R. Exh. P. J. Was lodged by Allah Ditty P. W. 9, brother of the deceased at 5.00 a.m. On 6-6-1976 at Police Station Harrappa which was recorded by Mulazam Hussain, Head Constable, P. W.
12. The distance between the place of occurrence and the police station is one mile.
3. The motive as alleged by the prosecution is that on the day preceding the night of occurrence Mst. Anwar, sister of Allah Yar, appellant and wife of Muhammad deceased, bad come to the house of her brother Allah Yar on account of quarrel with her husband who took her back forcibly from the house of Allah Yar, appellant, to his own house. It has further been stated that the three appellants went to the house of Muhammad deceased and there ensued quarrel between them and Muhammad deceased, the husband of Mst. Anwar but they were supported by Allah Ditta, P. W. 9, Allah Yar, appellant threatened that he would take the revenge.
4. The prosecution case is that at the fateful time Muhammad deceased was sleeping on a cot near the heap of wheat in his own field when the three appellants inflicted stick blows on his person and thereby caused his death. This occurrence was allegedly seen by Nasir P. W. 10, Rehmat Ullah P.
W. Il who were going towards their heaps of wheat. On seeing these witnesses Munir and Hanif appellants ran away. Allah Yar tried to make good his escaped but was apprehended on the spot.
It has been alleged that the alarm had attracted Allah Ditta P.W.9, Lal and Pehlwan (both not produced). Allah Ditta left for the police station to lodge the report.
5. Since Dr.Z.U. Bhatti, who had conducted the post-mortem exami--nation having gone abroad was not available, therefore the post-mortem examination report Exh. P. I. Was proved by Abdul Sattar, Dispenser, P. W. 8, who was well conversant with the handwriting and signatures of the doctor. The post-mortem examination shows that there were as many as nine injuries on the person of the deceased, all caused by blunt weapons. The frontal bone on the left side was fractured. The left temporal bone was also fractured. The brain was severely injured on the left side.
There was also a fracture on the left side of the frontal bone. In the opinion of the doctor the cause of death was shock and haemorrhage due to severe damage to the brain, due to injuries Nos. I, 3, 5 and 6 which were ante-mortem and sufficient to cause death in the ordinary course of nature. The time bet--ween the injuries and death was instantaneous and between death, and post--mortem was about 18 to 24 hours.
6. Mulazam Hussain, Head Constable P. W. 12, the Investigating Officer, came to the spot and arrested Allah Yar, appellant, who was produced before him on the spot . By Nasir P. W.
10. He got removed the blood-stained Kurta P. 5 from the person of Allah Yar, appellant vide Memo, Exh. P. F.
Attested by Maula Dad P. W. 6 and Amir Khan, (not produced) Nasir P W. 10 also produced sota (not blood-stained) P. 4 of Allah Yar, appellant which was taken into possession vide Memo. Exh. P. E., attested by the same witnesses. Munir appellant was arrested on 6-9-1976. He produced sofa P. 6 (not blood-stained) which was taken into possession vide Memo. Exh. P. G., attested by the same witnesses. Muhammad Hanif appellant was arrested on 14-6-1976 and he got recovered sota P. 3 (nor blood-stained) from his Chappar which was taken into possession vidr Exh. P, C., attested by Maula Dad P. W. 6 and Sher (nor produced). This memo. Was prepared by Ahmad Yar, Sub- Inspector P. W. 5, whereas Exhs. P. F. And P. E. Were prepared by Mulazam Hussain Head Constable P.
W. 12.
7. The appellant when examined under section 342, Cr. P. C. Denied all the incriminating circumstances and took the plea of false implication on account of enmity. Allah Yar when asked as to why the case against him stated "I have been falsely implicated in this case. Allah Ditta P. W.
Is inimical towards me. He got me implicated falsely in the murder case of Sultan and the same were the P. Ws. In the said case who have now appeared in this case. They in order to avenge the murder of Sultan, have implicated me in the case."
8. As for as the arrest on the spot he denied the same and stated that he was arrested from his house. In defence he produced Exh. D. B. Attested copy of the judgment of the learned Sessions Judge, Sahiwal dated 10-4-1956, copies D. C. And D. D. Of the statements of Allah Ditta and Ratallun P. Ws. Dated 10-4-1956.
8-A. To prove its case the prosecution examined as many as 12 witnesses out of whom Nasir P. W.
10 and Rehmat Ullah P. W. 11 have given ocular account of the occurrence: They have stated that they were going to their 'Dheri' of wheat when they saw the appellants giving Wang' blows on the person of Muhammad who was sleeping on a cot near his heap of wheat. Allah Yar was apprehended on the spot whereas Munir and Muhammad Hanif made good their escape. They further stated that Allah Ditta and others were also attracted to the spot. Allah Ditta P. W.9 brother of the deceased has stated that on the fight of occurrence he alongwith his two brothers namely Lal and Pehlwan (not produced) were sleeping in their 'Behk' while Muhammad deceased was sleeping near the 'Dheri' of wheat. It was about mid-night when they heard alarm from the side where the deceased was sleeping. He alongwith his brothers went to the place of occurrence and found Rehmat Ullah and Nasir P. Ws. Having caught hold of Allah Yar, appellant who was having a 'clang' in his hand. The witnesses told him that Allah Yar, Munir and Muhammad Hanif had caused injuries with their sofas to the deceased and that Muhammad Hanif and Munir succeeded to make good their escape. Maula Dad P. W. 6 and Mulazam Hussain P. W. 12 have supported the removal of blood-stained Kurta P. 5 from the person of the deceased as well as the production of 'clang' of Allah Yar by Nasir P. W. The evidence of the rest of the prosecution witnesses is more or less of formal nature.
9. Learned counsel for the appellants has argued that the prosecution has failed to prove its case beyond reasonable doubts inasmuch as the eye-witnesses being closely related are not reliable and in any case the identification of Munir and Muhammad Hanif appellants by the eye-witnesses at the time of occurrence is highly doubtful.
10. As against this the learned counsel for the State has supported the judgment of the trial Court.
According to him the eye-witnesses having no enmity against the appellants, their evidence has been rightly acted upon by the trial Court.
I have appreciated the evidence on record in the light of arguments advanced by the learned counsel for the parties. It is well-settled that it is for the prosecution to prove its case on the strength of its own evidence beyond shades of reasonable doubts. Furthermore since it being case of night occurrence, the evidence as to the identity of the appellants has to assessed and weighed with utmost care and caution. I, therefore, propose to discuss the prosecution case in the light of the guiding principles as laid down by the superior Courts for appreciation of such like cases. The occurrence took place at about mid-night of 5/6th of June, 1976 which was the 7th of the lunar month. The F. I. R. Was lodged at 5-00 a.m. The distance between the police station and the place of occurrence is one mile. The defence has not been able to show that the F. I. R. Was not a genuine document and it was not recorded at the time and place as it purports. The names of all the witnesses are very, much there. This F. I. R. Although not a substantive piece of evidence yet cap be used to corroborate its maker i.e,Allah Ditta P. W.
9. Coming now to the ocular account I find that while supporting the prosecution case Nasir P. W. 10 and Rehmat Ullah P.W.11, the eye-witnesses claim to have seen Allah Yar, Munir and Muhammad Hanif, appellants giving stick blows to the deceased. According to them Munir and Hanif who made good their escape were identified by them in the light of the moon, whereas Allah Yar was apprehended by them on the spot. Their evidence is supported by the statement of Allah Ditta P. W. 9, brother of the deceased who in a straightforward manner has stated that he had simply found the eye-witnesses holding Allah Yar, accused. I have been very much impressed by the statement of Allah Ditta P. W. 9 who could easily claim to have seen the infliction of injuries but he confined himself to that what actually happened in his view. These witnesses were subjected to lengthy cross-examination but nothing adverse could be elicited. They have no enmity whatsoever with the appellants. As for the litigation with regard to the murder of Sultan wherein Allah Yar, appellant, had been challaned I find that Nasir P.
W. 10 was not an witness in that case. The copy Exh. D. D. Fails to connect Rehmat--ullah P. W. 11 with the person namely Ratallun who was examined as P. W. 10 in that case. Furthermore I find that after that murder the ' parties had compromised and .As a result of the compromise Mst. Anwar, the sister of Allah Yar was married with Muhammad deceased and as such it cannot be said that Allah Ditta, Nasir and Rehmatullah P. Ws. Have deposed falsely against the appellants on account of enmity. I further find that Allah Yar, appellant is the son of the father's sister of Allah Ditta P: W. He is also a maternal uncle of Nasir P. W. 10 and Rehmatullah P. W.
11. Their evidence is in consonance with the probabilities and materially fits in with the circumstances of the case. They have given cogent reasons for their presence near the place of occurrence at the eventful time. The defence has failed to point out material contradictions and discrepancies in their evidence so as to cast a reasonable doubt on their credentials. For all these reasons I am of the view that the statement of these witnesses cannot be excluded from consideration. Since it was a night occurrence when it was 7th of the lunar month, therefore, I am of the view that it would be in accordance with the safest administration of justice in criminal cases that the question of identity of the appellants should be considered with utmost care and caution. After having done so, I am inclined to give benefit of doubt to Muhammad Hanif and Muni as a matter of abandoned caution for the reasons that according to the site plan the eye-witnesses had seen the assailants inflicting injuries on the deceased when they were at a distance of 10 Karams which is equal to 20 yards whereas according to Tiddy the best known persons cannot be identified in .The clearest moon light beyond a distance. Of 17 yard. (Medical Jurisprudence by Modi, 19(3 Edition Page 60). Although the eye- witnesses may be reliable yet chances of honest error in identification from a distance C of 20 yards are very much there and cannot be excluded. To ray mind they shall get the benefit 'of doubt on this ground alone because for benefit of doubt it is not necessary that there should be numerous reasons, if there is one circumstance which creates reasonable doubt in a reasonable and prudent mind that may be sufficient to earn benefit of doubt.
12. As for Allah Yar, appellant, I have already believed the ocular evidence which is further supported by the removal of blood-stained Kurt from his person. Furthermore Allah Yar having been apprehended on the spot the question of his mistaken identity has become redundant. His arrest on the spot is further supported by the Investigating Officer who found him under the private custody when he visited the spot. In state--ment under section 342, Cr. P. C. The appellant stated that he was arrested from his house, but he did not care to adduce any evidence to prove that he was arrested from a place other than the spot. Learned counsel has referred to the statement of Muhammad Bilal Foot Constable P. W. 1 who stated that "I remained associated with the investigation for about 2-3 days. Only the child accused aged 10-11 years, had appeared before the police during this period." I am not impressed by the statement of this formal witness because a tendency has developed with the formal witnesses particularly the F. Cs. To give concession to the defence in cross-examination, even otherwise his statement does not exclude the private arrest of Allah Yar. Learned counsel for the defence who had cross-examined the witnesses did not dare to put a straight question to these witnesses that Allah Yar was not found apprehended on the spot.
Learned counsel has also tried to make capital out of the statement of Muhammad Anwar, P. W. 4 who stated that he had accompanied the Thanedar to the spot but did not see any body arrested at that time. This part of his statement has to be disbelieved for .The reasons given by me to exclude the concessio6-made by Muhammad Bilal Foot Constable P. W. I. For all these reasons I am of the opinion that the prosecution has proved its case against Allah Yar, appellant, beyond reasonable doubts.
13. The upshot of the above discussion is that the appeal to the extent of Allah Yar, appellant is dismissed. The conviction and: sentence awarded to him are maintained.
As for Munir and Muhammad Hanif, following the principle that it is always better to err in acquittal than in conviction, while giving them the benefit of doubt I acquit them of the charge. They shall be set at liberty forthwith, if not required in any other case.