' Muhammad Anwar (40), Muhammad Siddiq (45), Rehmat (55) sons of Muhammad, Safdar (26), Muhammad Hussain (35) sons of Rehmat, their friends Muhammad Ashraf (42) and Muhammad Younus were accused the murder of Bashir Ahmed and for having murderously assaulted Mst. Bibi d Allah Ditta. Muhammad Younus accused absconded and the remaining accused were tried by Mr. Muhammad Afzal Sohail, Additional Sessions Judge, Sheikhupura. Muhammad Anwar and Muhammad Safdar were invicted under section 302/34, P. P. C. And sentenced to imprisonment for and to a fine of Rs. 2,009, each, in default to suffer one year R.
1. Further. HaIf of the fine if realised was ordered to pay as compensation to the heirs of the deceased. The remaining four accused were acquitted. Appeal of the convicts is before me.
2. Three years before the occurrence in this case, Ahmad Din husband of Bashir deceased's sister purchased some land in village Talwara, which was in possession of Siddique, Anwar and Rehmat accused. Since Ahmad Din wanted to take its possession, therefore, the fight ensued between Bashir (deceased), Ahmad Din and Muhammad Ahmad on the one side and Siddique, Anwar, Rehmat and others on the other side. In the occurrence Siddique's legs were fractured and the opposite party was prosecuted, but they were later acquitted, for which they bore a grudge against Bashir deceased and in order to avenge the earlier incident, occurrence in the instant case took place. According to the prosecution at 8-30 a.m., on 31-12-1979 Ata Muhammad (informant) was ploughing his land, nearby his father Bashir (deceased) was smoking Huqqa. Just then Muhammad Anwar, Muhammad Safdar, Rehmat accused armed with Dangs, Muhammad Hussain with a Sangha, Siddique armed with a Takwa, Ashrat with a hatchet and Younus armed with a rifle appeared there from the side of their Dera raising Lalkaras. On seeking them approaching Bashir started running towards his house. The accused overtook him. Muhammad Safdar and Muhammad Anwar gave Dang blows each on his head,Siddique also inflicted a Takwa blow on his head, on which he fell down. Thereafter a hatchet blow was inflicted on his right arm by Ashraf.
Younus continued instigating his companions. Besides Ata Muhammad complainant, the occurrence was also witnessed by Shah Muhammad, Mst. Bibi, Sardar Muhammad, Allah Ditta son of Muhammad Hussain and Allah Ditta son of Badar' Din. They reached the place of occurrence and intervened. Muhammad Hussain accused inflicted a Sangha blow to Mst. Bibi. Muhammad Anwar accused beat up Allah Ditta with a stick. Younus started firing saying that Bashir be lifted and his dead body be thrown in the river. Upon this accused dragged Bashir toward their Dera.
They placed him on the Rehra'and again beat him up in the Rehra. They took him towards Maii Mora Mal. As the witnesses again tried to intervene, Younus fired towards them. Ata Muhammad, Shah Muhammad and Allah Ditta son of Badar Din managed to follow the Rehra and on reaching the area of village Talwara, the accused threw Bashir in the Sarkandas and fled away. Since Bashir had died, Ata Muhammad along-with Shah Muhammad went to Police Station Ferozewala, situated at a distance of 12 miles from the place of occurrence. He made report, Exhs. P. E. To P. W. 8 Muhammad Anwar, A. S. I. At 2-30 p.m. The same day. After registering the case, the A. S. I. Went to the place of occurrence, prepared the necessary documents and sent the dead body for its post- mortem examination.
3. On 1-11.1978 at 11-00 a.m. Dr. M. Majeeb, Medical Officer, D. H. Q. Hospital, Sheikhupura held the autopsy and found the following injuries on the person of the deceased :-
(1) Contused wound, 1" x 1-4 x 1-4 " on right side of head 1/1-2" above the right ear with swelling 2' x 2".
(2) Contused wound, 1-2 x 1-4 x 2 on the left side of head 5' above the left ear.
(3) Swelling 1" x 1 in the centre of head.
(4) Abrasion x on upper part of right scapula.
(5) Abrasion 1' x 3-4 on the outer side of right elbow.
(6) Bruise 6' x 2' on right arm front side lying vertically.
(7) Contused wound, 1-2x 1-4 x1' on the inner side of right elbow with fracture of lower end of humerus bone.
(8) Bruise 18 x 4" on the back of right forearm and back of right hand, with swelling on the whole of back of right forearm with abrasion, x 1-2 on the back and lower part of right forearm.
(9) Incised wound, 1/1-2' x 1-2" x 1-2 on the inner side of right hand between the thumb and index finger.
(10) The bruise 6" x 5' on the front of right side with swelling lower part.
(11) Contused wound, 1x 1-2x 1-2 on the right knee with swelling carving fracture of condyle of right femurus wound fracture of.
(12) Contused wound, 1" x 4" x 4' in front and centre of right leg.
(13) Fracture of lower end of right leg with swelling.
(14) Incised wound, 4" x 4" x 1" on the outer and lower part of left leg.
(15) Incised wound, 2" x 1-4 " x 1-4 ' on the front of left leg.
(16) Contused wound, x 4" X on the front of left leg with swelling.
(17) Abrasion r x 4' with bruise 4" x 2" with swelling on the front and lower part of left thigh.
(18) Two abrasions 1" x 1" x x 4" on the left elbow.
(19) Abrasion 1" x l' on the back and centre of left forearm.
(20) Abrasion 14" x 4" on the back and middle of left arm.
' In his opinion injuries Nos. 9, 14 and 15 which were caused by sharp-edged weapons were collectively sufficient to cause death in the ordinary course of nature. Death in his opinion was due to shock.
4. P. W. 9 Mujahid Abbas S. H.
0. Police Station Ferozewala arrested the accused. Muhammad Anwar, Muhammad Safdar and Rehmat got recovered their Dangs P. 7, P. 8 and P.
10. These were taken into possession through Memos. Exhs. P. G., P. H. And P. K. Respectively.
Muhammad Hassain led to the recovery of Sangha, P.
9. It was taken into possession vide Exh. P. J. All recovery memos. Were attested by P. W. 9 Mujahid Abbas S. I. Shah Muhammad, P. W. 5 and Din Muhammad (given up). After completing the investigation, the accused were sent up for trial.
5. All accused denied guilt and ascribed the case to enmity. No accused led evidence in defence.
'Relying on motive story and the ocular testimony trial Court found the prosecution case satisfactorily proved against the two accused. It gave the benefit of doubt to the remaining accused, on the ground that the type of injuries attributed to them were not found to have been suffered by the deceased and Mst. Bibi P. W.
6. Criticising trial Court's finding learned counsel for the appellants contended that since the eye- witnesses had exaggerated, therefore, their evidence was not relied upon insofar as the acquitted accused were concerned, no reliance should have been placed on their testimony against the appellants. Iso. Moreover, it was a blind murder which took place in dark and out of enmity and suspicion large number of persons were roped in by the complainant. In support of the submission, it was argued that Mst. Bibi wife of the deceased allegedly interfered and was injured at the time of the attack on her husband, but she was examined by the police on the following day, although the statements of other witnesses were recorded the same day in the evening. It was next contended that the solitary injury suffered by P. W. Mst. Bibi was not only trivial in nature but was also incompatible with the number of accused and the type of weapons used in the attack. In her statement at the trial, she did not mention the location of her injury. Since the medical examination revealed that it was not a sharp-edged weapon injury, therefore, she made an improvement at the trial by saying that she suffered the injury km the wrong side of Sangha, wielded by Muhammad Hussain accused. In her police statement she had not mentioned the use of the wrong side of the Sangha. In support of the submission that P. W. Mst. Bibi was not present at the spot, learned counsel referred to her statement wherein she had state that Muhammad Hussain accused had caused no injury to her husband, but the prosecution case in the F. I. R. Was otherwise i.e. All accused had hit the deceased after he had fallen down. Commenting upon the evidence of Atta Muhammad, informant, it was argued that even his presence at the place of occurrence was doubtful because had he been present there and seen his parents having been beaten, be would have in all probability interfered and in the process suffered some harm but there is not a scratch on him, although he even claimed to have followed the "rehra" in which his father was carried by the accused and was ultimately thrown by them in the Sirkandas. There is force in the submission. I find that during the investigation even the "rehra" was not taken into possession Its recovery could have been on some support to the informant's statement which is not forthcoming. P. W. Shah Muhammad, the third eye-witness, is a resident. Of Thaiwala village situated at a distance of three miles from the place of occurrence. He is a real brother of the deceased. He was also one of the accused in the earlier case relating to the assault on Siddique. Allah Ditta son of Hassan Din was injured in this case, but he was given up by the prosecution. Eye witnesses are not disinterested persons. Under cross-examination they have admitted their previous enmity with the accused, as such their evidence required corroboration from a reliable source which is not there. The occurrence was said to have taken place in broad daylight when other persons were also present but only interested witnesses have been produced by the prosecution, their presence at the place of occurrence was not free from s. Doubt.
7. Insofar as the time of occurrence was concerned, there also appears to be a doubt about it because deceased's stomach was full of digested food there was faecal matter in the intestines. In all probability the occurrence took place near about mid-night because normally the intestines would hay been cleared by Chhahwela. It is noteworthy that it is in the evidence o P. W. Atta Muhammad that the deceased after having had the breakfast left for the field. Normally digested food is found in the stomach after about four hours. Keeping in view this data, it was doubtful whether the occurrence took place at Chhahwela. On the contrary, it lends support to the sub mission that the occurrence took place at night. There is another aspect of the case which needs consideration i.e. The medical evidence. Although, the doctor has not been produced and secondary evidence was led to prove the post-mortem report which was objected to by the counsel the trial because there was no proper proof whether, the doctor bad the country. The process server who was deputed for the service of the doctor was not produce to prove his report that the doctor had gone abroad, therefore, secondary evidence could not be allowed to prove the post-mortem report, the medical report of Md. Bibi and Allah Ditta. In support of his submissions, rillance was placed on the case Mahammad Shaft etc. v. The State (1). In the of
(1) PLD 1972 Lab. 661 case it was held that non-availability of doctor should have been proved by direct evidence of some person who had to execute summons and without examination of such persons. Court was in error in bringing the document on record. Therefore, the Sessions Judge was directed under section 428, Cr. P. C. To record the statement of the process server about the non-availability of the medical witness. The same principle has been eloboraced in Chainchal Singh v. Emperor (1). In this case, it was held that if a witness is incapable of giving evidence, this fact must be proved strictly.
In a case a party can if he chooses, waive the proof but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence. In the cited case, process server's evidence was that he found the witness ill and unable to move from his house as be was suffering from tuberculosis. This was not considered sufficient to prove that the witness was' incapable of giving evidence because the process server was not the proper person to prove from what disease the witness was suffering, be could only say what someone told him. But that did not mean that in every case, there must be evidence of medical man where excuse is sought on the ground of physical incapacity. There must be many cases in which the facts are such that the incapacity can be proved by a lay man. It, thus, follows that it must be proved to this satisfaction of the Court that a particular witness is out of country or is otherwise incapable of appearing before it. True, in the instant case, the process server was not produced but I find that P. W. 3 Khalid Mehmood, Dispenser, who had worked under Di. Majeeb since 1978 was not only qualified to identity his handwriting but he also had the knowledge of doctor's departure to Libya. He also added that there was no likelihood of doctor's returning back in the near future. It is noteworthy that there did not appear any, dispute about the knowledge of the dispenser regarding the departure of the doctor to Libya because he had not been questioned about it at the trial. However, I need not go deeper into this aspect of the case. Even if the post-mortem and medical reports have been proved by direct evidence of the doctor, it would not have made any difference in this case because the presence of the eye-witnesses is a matter which was not free from doubt. I am, therefore, not satisfied with' the guilt of, the appellants. Giving the benefit of doubt, I acquit them.
(I) A 1 R 1946 P C 1 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.