MAZHARLL HAQ, J.-Jahangeer (28) and his brother Munir (20) Ch. Inayatullah. Cheerna, Additional Sessions Judge-II, were tried by Sahiwal, for the murder of their co-villager Shahamand alias Shamman. On 11-2-1980 Jeahangeer was convicted under section 302, P. P. C. And sentenced to death. He was also fined Rs. 2,000 in default of payment of fine to undergo one year's R.I. Further.
The fine, if realized, was ordered to be paid as compensation to the heirs of the deceased. His brother Munir accused was, however, acquitted of the charges. The appeal of convict and the connected murder reference are before us.
2. Jahangeer and his brother Munir were employed by Ghulam Rasool (informant). About two years before the occurrence in this case; later the informant also employed Shamman deceased. The accused used to shirk work, whereas Shamman was honest and efficient. Ghulam Rasool often asked the accused to work hard, but they did not improve. He, therefore, asked Shamman to keep an eye on them and check their work. Two days before the occurrence in this case, Shamman reported to Ghulam Rasool, his employer, that Munir and Jahangeer did not work; upon this Ghulam Rasool pulled them up. Since Shamman bad reported against them, therefore, they bore a grudge against him, and in the presence of Ghulam Rasool (informant) they threatened to teach Shamman a lesson. According to the prosecution, on 19-10-1976 at 7.30 p.m. It was the turn of water of Ghulam Rasool. He took the accused and Shamman with him to the watercourse and diverted the water to his fields. He instructed them to be on guard during the night and himself returned to his behni. At about 3 a.m. He heard an alarm. He came out of the behni and proceeded towards the land of P. W. Muhammad Sharif and saw Munir, Jahangeer grappling with Shamman. The two accused declared that they would not spare him. The alarm also attracted P. Ws. Ali Muhammad and Shammi who also reached the spot. Muhammad Jahangeer attacked Shamman on the left side of his head with a kassi which felled Shamman; thereafter he was given two stick blows. P. Ws.
Ali Muhammad, Sbami and the informant rushed to rescue Shamman but the two accused ran away. The witnesses chased them but they made good their escape. Shamman died at the spot.
Leaving his dead body there, P. W. 7 Ghulam Rasool went to the Police Station, Dipalpur, situated at a distance of six miles from the place of occurrence. He made report Exh. P. A. To P. W. 3 Ilam Din, Head Constable at 5 a.m. On 19-10-1976. After registering `the case, the Head Constable went to the place of occurrence, prepared the necessary documents and seat the dead body for its post- mortem. He collected blood-stained earth from the spot through Memo: Exh. P. C. Attested by P. W.
8 Ali Muhammad and Zahoor Ahmad, (given up as unnecessary), besides the investigating officer.
He also recorded the statements of the witnesses.
3. P. W. 9 Dr. Dilbar Hussain, Medical Officer, Dipalpur, on 19-10-1976 at 3 p.m. Held the autopsy on the dead body of Shamman and found the following three injuries on it : -.
(1) Incised wound --'' x 1/6'' x bone deep on and below the right side of the chin.
(2) Incised wound 8 x 1--'' x bone cut on the left side of bead starting --from --'' above the left ear and going backwards cutting the brain which was lying out of the wound.
(3) Contused wound --'' x 1/6" x skin deep below the right side of the lower mandible and lower jaw was fractured.
The scalp, the skull and the membrances of the brain were cut, under injury No. 2. Injuries Nos.1 and 3 below the chin and right side of the mandible were leading to fracture of the lower mandible. The stomach was empty, the intestines contained faecal matter. There were two ounces of urine in the bladder. In doctor's opinion Shamman died of shock and haemorrhage caused by Injury No. 2 on the head which was sufficient cause death in the ordinary course of nature. Injury No. 3 was caused by a blunt weapon, whereas the remaining injuries were caused by a sharpedged weapon.
4. P. W. 6 Muhammad Rashid, Constable, was entrusted with the non-bailable warrants of Munir and Jahangeer who could not be traced. On the report of the Constable he was entrusted with the proclamations (Exhs. P. W. 6/A and P. W. 6/B). Thus proceedings under sections 87 and 88, Cr. P. C.
Were carried out against the accused. After completing the proclamation proceedings the constable submitted his report Exh. P. W. 6/C and P. W. 6JD and the accused were declared absconders. P. W. 5 Muhammad Zulfiqar, S. I. Also partly investigated this case. The accused were later arrested and tried.
5. In their examination under section 342, Cr. P. C. They denied guilt and ascribed the case to enmity. According to them, during the days of the occurrence, they were not in the service of the informant and had left his service much earlier. They also showed lack of knowledge about the murder of Shamman. Explaining the case against him, Jahangeer made the following statement :- "Due to the enmity with the P. Ws. He added that Ghulam Rasool p. W. Had given some money to me to his brother. He turned us out. We being poor could not make the payment of money. The deceased was murdered by some unknown persons at night time which was not seen by anybody.
Ghulam Rasool P. W. Therefore got this case registered against us out of the said grievance of the non-payment of money which we owed to him."
Munir accused supported the statement of his brother. Both accused led no evidence in defence.
6. Relying on the evidence of P. W. 7 Ghula& Rasool and P. W. 8 Ali Muhammad, trial Court came to the conclusion that the prosecution case was satisfactorily proved against Jahangeer, accused. It gave the benefit of doubt to Munir as active part was played by him towards the commission of the crime.
7. Criticizing the findings of the trial Court, learned counsel for the appellant contended that the prosecution has led no evidence about the arrest of the accused. It is only in - the judgment of the trial Court that one finds that the accused were arrested on 12-12-1976. Who arrested them, is not known. There was thus no evidence about their arrest. We may mention here that in the police file it is mentioned that one Mulazim Hussain, A. S. I., arrested Jehangeer on 4-1-1978, and Munir on 5-1- 1978, but this cannot be evidence in the case. It appears that the trial Court did not care to look into the police file, therefore, it did not summon Mulazim Hussain, A.S.I., as a Court witness. Prosecution also relied on the abscondence of the accused as a circumstance against them, therefore, it should have examined the said A. S. I. Since there are other circumstances arising out of the ocular testimony which will prevail, we therefore do not deem it fit to go into the question of admitting evidence regarding abscondence at the appeal stage.
8. Undoubtedly, it was a night occurrence. According to the calendar of the year 1976, on the night of occurrence it was quarter-moon; as such there would not be enough light for the identification of the accused. Out of the four eye-witnesses, prosecution relied on the statements of P. W. 7 Ghulam Rasool (informant) and P. W. 8 Ali Muhammad. P. W. 7 Ghulam Rasool witnessed the occurrence from a distance of 1/2 Killa. Ali Muhammad deposed that he heard the alarm of the deceased when he was at a distance of three Killas from the spot. He claimed to have chased them and said that he could not see them running because of the airkanda plants which intervened. Moreover, Ali Muhammad claimed to be present when the drafts-man visited the spot, but he did not point out the place from where he saw the occurrence. It is noteworthy that in the site-plan the patwari did not mention Ali Muhammad's name although he mentioned the names of P. W. Ghulam Rasool and Shammi (given up) According to the site plan, these two were shown to have witnessed the occurrence from a distance of 100 Karams. On a dark night from this distance, identification was not possible. With regard to the question of identification, reference be made to the case of Amanullah and others v. The State (PLD 1978 Kar. 792). In this case reliance was placed on Dr. Hens Gross's Criminal Investigation, 1934 Edn., p. 185, wherein it was mentioned that "in bright moon light one can recognize a person safely from a distance of 23 to 33 feet at the very brightest period of the full moon at a distance of 36 feet. According to Tidy, best known person cannot be recognized in the clearest moon light beyond the distance of 17 yards. "Colonel Barry is of the view that at a distance greater than 12 yards the statute or outline of figure alone is available, as a means of identification".
In the instant case on the night of occurrence, there was quarter moon; as such there would be much less light than it is on a full moon. In another case Muzaffar v. The State (1975 P Cr. L J 1336), it was held that in the clearest moon light identification from a distance of 71 feet was not possible.
9. There was yet another material aspect of this case which has been overlooked by the trial Court I.e. Delay in making the report. According to the informant, the occurrence took place at 3 p.m., the report was made by him at the police station at 5 p.m. i.e. Two hours after the occurrence. The informant admitted having gone to the police station on his motor--cycle. Normally a distance of six miles on a motor-cycle would be covered within 15 minutes or so, or at the most half an hour.
Obviously, there was a delay of about an hour and a half in making the report of which there was no explanation. In all probability the witnesses came to know about the occurrence in the morning.
This is further supported by the admission made by Ali Muhammad P. W. Who realizing that it was dark at the time of occurrence under cross-examination said that he witnessed the occurrence because day was almost dawning at that time. This improvement made by him did not help the prosecution case at all because according e to it, the time for occurrence was about 3 p.m. The said admission of Ali Muhammad on the contrary indicated that the witnesses were not present at the time of the occurrence and may be they came to know of it when it was dawn. In the end we may also mention that the informant undee cross-examination admitted that the accused's brother had stolen Rs. 3, from the pocket of his brother and in settlement of this theft the accused had agreed to work for him without pay. This incident of theft indicate informant's strained relations with him.
10. For the foregoing analysis of the evidence of this case we are of the view that the prosecution case was highly doubtful and in all probability the accused was named out of suspicion which can never be a substitute for proof. The appeal is, therefore, accepted. Giving the benefit of doubt to the appellant, we acquit him of the charges. He shall be released forthwith if not required in any case.