' This criminal appeal arises from the judgment of learned Additional Sessions Judge at Sahiwal, dated 13th December, 1979, whereby he convicted Sohna and .Rajab appellants under section 304, Part I of the Pakistan Penal Code, for causing the death of Shah Muhammad on 27th June, 1978 at about 7 a.m. In the area of Chah Wasalywala in village Dad Fatiana of Police Station Harrappa and sentenced them to 10 years R.I. Each and a fine of Rs, 1,000 each in default thereof to suffer further R.I. For one year with a direction that if the fine is realized the same shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. And under section 448, P.P.C. For committing house trespass, they were sentenced to 6 months' R.I. Both the sentences were to run concurrently. The F.I.R. Exh. P.E. Was lodged by Habib (P.W.7) brother of the deceased at 11-30 a.m.
On the same day and was recorded by Rao Shah Muhammad S.I. (P.W.11) of Police Station Harrappa. The distance between the place of occurrence and the police station is 7 miles.
2. The prosecution case is that the widow of one Hamad brother of Habib (P.W.7) wanted to raise the intervening wall existing between the houses of the appellants and Shah Muhammad deceased. Rajab appellant is son of Sohna appellant. They did not agree to it and altercation ensued in which Shah Muhammad deceased was given Phaura and Dang blows. Rajab appellant gave Phaura blow on the head of Shah Muhammad deceased followed by a Dang blow by Sohna appellant. Rajab appellant gave one more blow with his Phaura on the head of the deceased which fell him to the ground. The appellants then returned to their house which was in the same lhata.
3. Medical: It appears that both sides received injuries. Shah Muhammad died on the same evening as a result of the injuries. He received three injuries which are as under:-
(1) A lacerated wound 2"xi" x bone deep on the top of left side of head about 5" from left ear.
(2) A swelling 7" x 4" on the left side of front part of head, forehead and eye. The eye was closed and could not be opened.
(3) A swelling 4" x 3" involving whole of the nose and medial part of right eye.
' In the opinion of the doctor the death occurred due to shock and haemorrhage caused by injuries Nos. 1 to 3. All the injuries collectively and injury No, 1 individually were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by blunt weapon. The time that elapsed between injuries and death was about 9-30 hours. The time that elapsed between death and post-mortem examination was about 16 hours.
' On the side of the appellants, Rajab appellant received 6 injuries, all simple in nature; one with sharp-edged weapon on the head. Sohna appellant received one incised wound with sharp- edged weapon on his head and the other with blunt weapon, both simple in nature. Mst. Nooran received 4 injuries with blunt weapon, simple in nature.
4. Investigation: Rao Shah Muhammad S.I. (P.W.11) proceeded to the spot after recording the F.1.R.
Took into possession the blood-stained earth and then proceeded to the D.H.Q. Hospital, Sahiwal and learnt there that Shah Muhammad had died. On 28th June, 1978, he arrested both the accused/appellants and removed blood-stained Chadar P.3 and Kurta P.7 from the person of Sohna appellant. He removed blood-stained Chadar P.4 from the person of Rajab appellant. On 30th June, 1978 Sohna appellant led to the recovery of blood-stained Sota P.5 from his Kotha and Rajab appellant led to the recovery of blood-stained Phaura P.6 from his residential Kotha which were taken into possession vide memo. Exh. P.N. And P.O., respectively. The prosecution examined as many as 11 witnesses. Muhammad Amir and Luqman, the prosecution witnesses of the recovery were examined as Court witnesses. The appellant denied the prosecution case. The plea taken by Rajab appellant is as under:- "My residential house and that of Mst. Jiwan and Mst. Bakhan adjoin each others. There used to be quarrel amongst the womenfolk over the trespass of animals and that of children. On the fateful day our he-goat entered into the lhata of Hamad deceased and spoiled their utensils on which Mst. Jiwan and Mst. Bakhan objected and hurled abuses to which Mst. Nooran, from our side replied. Mst. Bakhan after the exchange of abuses with Mst. Nooran went to the house of Shah Muhammad, deceased, who lived in a separate lhata and complained to him about the abuses and the insult caused to her by Mst. Nooran. On this, Shah Muhammad, deceased and his brother Bahawal came to our house, Shah Muhammad was armed with hatchet while Bahawal had a Sota with him. Both of them attacked Rajab and Mst. Nooran, after abusing them. Shah Muhammad gave a hatchet blow on my head and also gave blow with the wrong side of hatchet on the head of Mst. Nooran. Shah Muhammad and Bahawal again gave further blows to me. Mst. Nooran was also injured by Bahawal and Shah Muhammad, deceased. 1 beseached Shah Muhammad and Bahawal but they did not listen and injured him with their respective weapons, apprehending danger to my life and that of my father and sister I picked up a Phaura lying in front of our house and gave a few blows with it to Shah Muhammad in self-defence. The occurrence took place in front of my house from where the police collected the blood-stained earth. The F.I.R. In the case was recorded after Shah Muhammad had died and a story to implicate us has been fabricated by the complainant with the active connivance of Harrapa Police. This would be evident from the inquest report prepared at the time of death of Shah Muhammad deceased. We were arrested from the hospital, where we were admitted as indoor patients. Shah Muhammad had never lived in the house of Mst. Jiwan and Mst. Bakhan.
"Sohna appellant has adopted the same plea. The appellants examined Zahida Latif, Lady Doctor as D.W.1.
5. In order to bring home the guilt of the appellants, the prosecution relied upon the following categories of evidence.
' Ocular evidence, supported by:
(1) Mst. Bakhan (P.W.8) widow of Hamad brother of the deceased.
(2) Farid (P.W.9) maternal-uncle of the deceased. Recoveries: ' From Rajab appellant: On 30th June, 1978, he got recovered blood-staied Phaura from his Kotha P.6 vide memo. Exh. P.O. And blood-stained Chadar P.4 vide memo. Exh. P.M. On 29th June, 1978, attested by Noora (P.W.10), Sultan (given up) and Rao Shah Muhammad, S.I. (P.W.11).
' From Sohna, appellant: He got recovered on the same day blood-stained Sota P.5 which was taken into possession vide memo. Exh. P.M. Attested by the same witnesses.
(ii) The police also got removed blood-stained Chadar P.3 and Kurta P.7 from the person of Sohna appellant on 29th June, 1978 vide memo. Exh. P.L. Attested by the same witnesses.
' Ghoman (P.W.6) was produced by the prosecution to show that the injuries suffered by the appellant were not caused during the occurrence but were self-suffered. It should be noted that this witness has been disbelieved by the learned trial Court in para. 16 of its judgment.
6. I have heard the learned counsel for the parties and have gone through the record of the case with care. The learned counsel for the appellants has contended that the ocular evidence is not reliable, the occurrence did not take place in the manner as alleged by the prosecution and that there is reasonable possibility of the defence versions being true. After hearing L.C. And going through the record, I have come to the conclusion that the ocular evidence is not reliable and it is doubtful as to whether the occurrence, in fact, had taken place in a manner as alleged by the prosecution for the following reasons:-
(i) According to the eye-witnesses, the occurrence took place in the lhata of Shah Muhammad deceased, whereas, Muhammad Ameer (C.W.1) and Luqman (C.W.2) the attesting witnesses of Exh.
P.P., the recovery memo. Of blood-stained earth from the place of occurrence, have belied the eye- witnesses and stated that the blood-stained earth was taken into possession by the Investigating Officer from a place at a distance of one Karam from the front side of the Kotha of Sohna appellant and not from in front of the house of the deceased.
(ii) The eye-witnesses have failed to explain the injuries found on the person of the appellants and Mst. Nooran and they denied the suggession that the appellants had received injuries at the hands of the complainant party. It-is to be noted that the prosecution attempted to create false evidence by producing Ghoman (P.W.6) to convince the Court that the appellants had caused injuries to each other after the occurrence. The leaned trial Court has rightly disbelieved Ghoman (P.W.6). The eye-witnesses have deliberately suppressed the injuries suffered by the appellants during the occurrence and on this short ground their evidence is liable to be rejected. The trend of their statements has created an impression that they have given the evidence with a motive other than that of telling the truth and are, therefore, not reliable witnesses.
(iii) The inquest report Exh. P.J. Was prepared in the Civil Hospital, Sahiwal at 7-30 p.m. By Maqbool Ahmad A.S.I. (P.W.4). He has admitted that the inquest report was attested by Farid (P.W.9). He states that none of the witnesses told him at the time of the preparation of the inquest report that they were the eye-witnesses of the occurrence. It should be noted that the details of the occurrence are not given in column No, 3 pertaining to the brief facts of the case. Shah Muhammad S.I. States that he reached Hospital at 4-30 p.m. And stayed there uptil 6 p.m. And he did not prepare the inquest report of the deceased who had died at 3-30 p.m. And before his arrival A.S.I. Maqbool Ahmad had already prepared the inquest report Exh. P.J. And Din Muhammad Constable had delivered the same to him at 4 p.m. The inquest report shows that the same was prepared at 7-30 p.m. And not before 4 p.m. As stated by the Sub-Inspector. This would show that the Investigating Officer has given a false evidence and tried to explain the omission of the details of the occurrence in the inquest report. The trend of the statement of the Investigating Officer gives rise to an irresistible conclusion that, in fact, the F.I.R. Had not been written before the preparation of the inquest report. The witnesses are not injured, therefore, there is no circumstantial certainty of their presence at the time of occurrence and the omission of the names of the accused persons, the names of the eye-witnesses, and the details of the occurrence in the inquest report show that the eye-witnesses were, in fact, not present at the place of occurrence and not seen the occurrence.
7. For the foregoing reasons I am of the opinion that it would be in accordance with the safe administration of criminal' justice if the evidence of the eye-witnensses is excluded from consideration.
' Now I take up the evidence as to the recovery of the clothes and weapons of offence. So far as the recovery of the clothes is concerned I find that the clothes were not sent to the Chemical Examiner.
Therefore, the mere removal of the clothes of the accused persons is not an incriminating piece of evidence. So far as the evidence of the recovery of the blood-stained weapons of offence is concerned, I am of the opinion that in the instant case, where the accused/appellants have taken up the plea of self-defence and have admitted their presence recovery of the weapon of offence is altogether immaterial, because in the instant case the main question for consideration is the manner in which the occurrence did take place.
Since I have disbelieved the ocular evidence in toto, the plea of the defence need not be appreciated and it is to be accepted as a whole.
8. The upshot of the above discussion is that the prosecution has railed to prove its case beyond reasonable doubts. The statements of the appellants are accepted as a whole. The conviction of the appellants is set aside and they are acquitted. They shall be released forthwith if not required in any other case.