' This criminal appeal arises from the judgment of learned Additional Sessions Judge, Vehari, whereby, he on 21-6-1980 convicted Jumma and Muhammad Nawaz appellants under section 302/34, P.P.C. for causing the death of Abdul Rehman and sentenced them to imprisonment for life and a fine of Rs, 500 each. In default thereof to further R.I. for 3 months.
2.The occurrence took place on the night between 14/15-6-1977 at 4-00 a.m. in a field outside the house of the deceased situated in village Gujjar. The F.I.R. Exh. P.D. is the statement of Muhammad Ramzan P.W.5 recorded by Ghulam Jailer S.I. on the same day at 8-00 a.m. at Pull Alampur. The statement Exh. P.D. was sent to Police Station for the formal registration of the case. The distance between police station and the place of occurrence is 10 miles.
3.The motive as alleged by the prosecution is that the appellants suspected that Abdul Rehman deceased was having illicit relations with his wife Mst. Rehmat.
4. The prosecution case is that at the eventful time, the deceased, Sadiq and Nawaz P.Ws were sleeping in a field out side the house when the appellants came there. Nawaz appellanecaught hold of, the legs of the deceased while Jumma appellant inflicted Kassi blows on his person. The shreik raised by the deceased attracted Muhammad Ramzan P.W.5, Sadiq P.W.6 and Muhammad Nawaz to the spot who found Nawaz appellant holding the legs of Abdul Rehman and Jumma appellant giving Kassi blows on the face, head, chest and back of the deceased. After having inflicted injuries to the deceased, the accused made good their escape.
5. Dr. Safdar Ali P.W.1 conducted post-mortem examination on the dead body of Abdul Rehman and found following injuries on his person.
(1) An incised gaping wound 4" x 14" brain deep with cut fracture of the occipital bone of the skull on the right side of the head and right ear, right ear was also cut including the skull, membranes and brain, direction was oblique.
(2) An incised wound 3" x 1" x bone deep on the upper lip, in the mouth front teeth and upper jaw bone was cut and fractured. Wound was 1/4" below the nose, hemorrhage was present.
(3) An incised wound 5" x 1/2" x bone deep on the left side of lower jaw and chin. Bone was cut and fractured, direction was oblique.
(4) An incised wound 44" x 1/2" x skin deep on the front of neck right side, oblique in direction, 24" above the right clavicle.
(5) An incised wound 44" x 3/4" x muscle deep on the back of neck, right side, transverse in direction.
(6) An incised wound 74" x 1/2" x skin deep on the back right chest below injury No,5.
(7) An incised wound 34" x 1/4" x skin deep on the back of right shoulder.
(8) An incised wound 3" x 1/2" x skin deep, 3/4" outer side of injury No,7.
(9) An incised wound 6" x 1" x muscles and vessels deep on the right side of neck and chest, obliquely above the right clavicle, blood vessels and muscles of right side of neck are cut.
(10) Abrasion 14" x 1/2" on the front of right chest 1" below injury No,9.
(11) A contusion 1" x 1/2" on the front of right chest 14" away from injury No,10.
(12) A contusion mark 1" x 1/2" front of left chest, middle of left clavicle.
' All the wounds contained blood.
' The stomach contained 10 of digested food material. The urinary bladder contained 14 oz. of urine.
' In his opinion, the death was due to injuries Nos. 1 & 9 which caused shock and hemorrhage.
Injuries Nos. 2 & 3 were grievous and the rest were simple. Injuries Nos. 10, 11 & 12 were caused by blunt weapon and others with sharp-edged weapon. Injuries Nos. 1 & 9 were sufficient to cause death in the ordinary course of nature. The death was immediate.
6. The appellants were arrested on 15-6-1977 by Ghulam Jaffar Si., P.W.7 who removed blood- stained Dhoti Exh. P.3 and blood-stained Kurta Exh. P.4 from the person of Jumma appellant and blood-stained Kurta from the person of Muhammad Nawaz appellant vide memoranda Exh. P.C. & P.H. respectively attested by Muhammad Ramzan P.W. 5 and Sadiq Muhammad P.W.6. On the same day Ghulam Jaffar Si. was led to the recovery of blood-stained Kassi Exh. P.6 which was taken into possession vide memo. Exh. P attested by the same witnesses. The Serologist Report Exh. P.Q. reveals that the clothes and the Kassi were stained with human blood.
7. In order to prove its case, the prosecution examined as many as 8 witnesses out of whom Muhammad Ramzan P.W.5 and Sadiq Muhammad P.W.6 have given the ocular account of the occurrence. They stated that in their view Muhammad Nawaz appellant caught hold of the deceased by his legs and Jumma appellant gave Kassi blows to him resulting in his death. Sadiq Muhammad P.W.6 and Ghulam Jaffar P.W.7 also supported the removal of blood-stained clothes from the person of the appellants and the recovery of blood-stained Kassi from Jumma appellant.
Rest of the evidence is more or less of formal nature.
8. The appellants when examined under section 342, Cr.P.C. denied all the incriminating circumstances. They raised the plea of false implication due to suspicion and enmity. In defence they produced Azim, the father-in-law of the deceased who stated that it was an unseen occurrence and the deceased was found dead in the morning and that he had called Muhammad Ramzan complainant who was living at a distance of 3 squares away. In cross-examination, he stated that the appellants are sons of his sister and that he had not made an application to any quarter that the accused were innocent. He also admitted that the deceased was opposing the act of his second marriage.
9. The learned counsel for the appellants contended that the F.I.R. was lodged after preliminary investigation; that the site plan prepared by the Investigating Officer and the Patwari do not indicate the direction towards which the accused ran away after the occurrence and the place where the accused persons were standing; that the ocular evidence is in conflict with the medical evidence because it does not explain the three injuries caused with blunt weapon to the deceased and that the eye-witnesses are interested, inimical and their evidence suffer from material contradictions.
' On the other hand, the learned counsel for the State supported the judgment of the trial Court.
10. I have considered the arguments advanced by the learned counsel for the parties with care. I find that the F.I.R. was lodged about 4 hours after the occurrence which could not be termed as inordinate delay-in the circumstances of the case. There is nothing on the record to show that the F.I.R. was prepared after preliminary investigation or that it was not a genuine document prepared at the time and place as it purports. The foundation of the case is thus concrete. The omissions pointed out by the learned counsel in the preparation of the site plan are of no legal consequences. Injuries Nos. 10, 11 and 12 caused by blunt weapon are abrasion and contusions 1" x li" which could be caused by fall on the ground. It is in the F.I.R. that on the receipt of the injuries, the deceased fell down from the cot wriggling. The doctor has also opined that these injuries could be caused by blunt side of Kassi. In this view of the matter, I do not see any conflict between the ocular and the medical evidence. No doubt, the eye-witnesses are related to the deceased but mere relationship would not bring them to the category of interested witnesses inasmuch as, there was no enmity, whatsoever, between the witnesses and the appellants. The witnesses have given probable cause of their presence on the spot at the time of occurrence. Their names are mentioned in the F.I.R. The witnesses have stood the test of cross-examination. Except for immaterial discrepancies here and there which are but natural in the statements of truthful witnesses, the learned counsel has failed to find out any major contradiction and material discrepancy in the statements of the eye-witnesses. The statements of the eye-witnesses fit in with the other evidence and inspire confidence. I have been impressed by the straightward manner of the witnesses. The number of the injuries on the person of the deceased beilg 12, they could easily assign the part of infliction of injuries to Muhammad Nawaz appellant as well but they did not do so. The ocular account also stands corroborated by the removal of the clothes from the persons of the appellants and the recovery of blood-stained Kassi from Jumma appellant. I have already believed Sadiq Muhammad P.W.6. I do not see any reason to disbelieve the testimony of Ghulam Jaffar S.I., P.W.12. As for Asim D.W. his evidence merits rejection for more than one reason. He kept mum and did not complain before any authority that the appellants are innocent; that the appellants are his sister's sons and that he has admitted in cross-examination that the accused had been opposing him.
11. Despite believing the prosecution case, the ocular account and the aforesaid recoveries from the appellants, I am inclined to err in acquittal of Muhammad Nawaz appellant, inasmuch as, he was not only empty handed but also the application of section 34, P.P.C. in his case appears to be unsafe. There was hardly any need to catch hold of the legs of the deceased particularly when he was asleep and that Jumma appellant could inflict injuries to the deceased without the help of Muhammad Nawaz appellant. While believing prosecution case, it is as a matter of abundant caution that benefit of doubt is being given to him on the question of common-intention to kill the deceased.
12. The up-shot of the discussion is that there being satisfactory basis to uphold the conviction and sentence of Jumma appellant, the appeal to his extent is dismissed. He would, however, get benefit of the provision of section 382-B, Cr.P.C. While giving benefit of doubt to Muhammad Nawaz appellant, he is acquitted of the charge. He shall be released forthwith if not required in any other case.