SHAMEEM HUSAIN KADRI, J.-Three brothers, namely Yusuf; Ibrahim and Ahmad and their relation Gullan, were tried for the murder of one Nabi Bakhsh and causing injuries to Pir Bakhsh. Khuda Bakhsh, Mst. Sohagia and Mst. Jannat by the learned Sessions Judge, Dera Ghazi Khan, who convicted all of them under sections 302/34, 326/34, 325/34 and 323/34, P. P. C. And sentenced them to life imprisonment, four years' R. I., three years' R. L' and one year R. I. Respectively. All the sentences were ordered to run concurrently. They have appealed against their convictions and sentences to this Court.
2. The prosecution story briefly' stated by Khuda Bakhsh (P. W. 12), father of the deceased in his report (Exh. P. A.), made on 21-4-1966 at 7 a.m. At Police Station Batil, in district D. G. Khan, which was recorded by Ch. Shaukat Ali, S. I. (P. W. 19) is that he along with his sons, his wife and the wives of his sons was sleeping in front of the residential kotha in village Jiani on the night between 20 and 21-4-1966 when on the alarm raised by Mst. Sohagin they got up and saw all the four accused present around the charpai of Nabi Bakhsh. Yusuf had a sword, Ahmad had a hatchet and Ghulam was armed with a stick. Yusuf, Ahmad and Gullan accused caught hold of Nabi Bakhsh and Ibrahim accused cut his nose with a chhuri in his hand. The deceased tried to release himself and ran to save his life towards east but Yusuf accused inflicted sword blow on his head as a result of which he fell and died. The father tried to intervene and received injuries by stick and edge of the sword at the hands of Gullan and Yusuf. All the appellants then caused injuries to Allah Bakhsh, Pir Bakhsh, Mst. Sohagin and Mst. Jannat.
3. Dr. Muhammad Ali (P. W. 1) performed autopsy on the dead body of Nabi Bakhsh on 22-4-1966 at 9 a.m. And found the following injuries :-
(1) The front of 2/3rd of the nose was completely cut including the nasal septum and bone.
(2) A cut 5" x 1-- cutting the temporal and parietal bone completely with protrusion of the brain matter on the right side of head directed obliquely.
There was compound fracture in right parieto-temporal region. Membranes of the brain. Were torn and the portion of the brain matter along with clotted blood on the surface of the brain was protruded. Injury No. 1 was grievous while injury No. 2 was grievous and dangerous. The second injury was sufcient to cause death in the ordinary course of nature. Death in the opinion of the doctor was due to shock and cerebral compression resulting from injury No. 2.
4. Dr. Muhammad Ashraf (P. W. 2) examined Pir Bakhsh on 21-4-1966 and found the following injuries on his person :-
(1) A lacerated wound 1--" x -- skin deep at the front of the head 1" above the right eye-brew.
(2) An incised wound 4" x 1--" x 1" at the dorsum of the right hand: The bones under the wound were cut. Wound was bleeding. It started from right wrist joint and ended at the prominal part of right ring finger.
(3) There was a swelling at the dorsum lateral side of the left arm --" below the left elbow joint.
Injury No. 2 was grievous in nature. Blunt weapon was used for injuries Nos. 1 and 3 and sharp for Injury No. 2.
On the same day this doctor examined Allah Bakhsh and found a lacerated wound 1--" x --" x bone deep at the left side of the forehead 1" above the left eye-brew on his person. The injury was found simple caused .By blunt weapon. Thereafter the doctor examined Khuda Bakhsh and found the.
Following injuries on his person :-
(1) A lacerated wound 1--" x --" bone deep at the right side of the scalp 3" above the right eye- brew.'
(2) A lacerated wound 2" x -- x bone deep at the lateral side of the left eye-brew.
(3) A lacerated wound 1" x --" x --" at the left side of the chin.
(4) A lacerated wound at the inner side of the upper lip. The wound was --" x --' x --". - The upper right canine tooth was missing. The gum was lacerated and clotted blood was adherent at the 'missing place of the canine tooth. The upper right second incisor tooth was shaky. The other teeth were healthy except the to upper moler which were extracted sometime back.
(5) The dorsum of the left-hand was swollen and had abraded bruises on the dorsum side.
(6) The dorsum of the right hand was also swollen.
Injuries Nos. 1, 2, 3 and 6were found simple while injuries Nos. 4 and 5 were grievous. All the injuries according to the doctor were caused by blunt weapon. Dr. Mrs. T. Naeem, W. M. O., District Headquarters Hospital, Dera Ghazi Khan examined Mst. Jannat on 21-4-1966 and found a slightly crescentic wound on the scalp on the right posterior prominance of her head 3--" x --" x bone deep left with probe. The edges of the bone were crushed and the intervening tissues were bluish in colour. The injury was ultimately found simple and blunt weapon was used in causing the same.
This lady doctor also examined the same day at 6-30 p.m. Mst. Sohagin and found the following to injuries on her person :-
(1) A horizontal bruise 3--" x 1" just below the middle of the back and pinkish in colour.
(2) A skin laceration 1" x --" on the inner end of the injury No. 1 and on the left side.
Both the injuries were simple in nature and were the result of blow by blunt weapon.
5. On 21-4-1966 Ch. Shaukat Ali, S. I. (P. W. 19) recovered torch (Exh. P. 1), scabbards (Exh. P. 2) and (Exh. P. 3) of the sword and chhuri, lying near the dead body, which were taken into possession vide Memo. Exh: P. D. These recoveries were attested by one Nasir (P. W. 11). On 23-4-1966 Ibrahim accused was produced by Musa Khan (P: W. 10) before the Sub-Inspector and chhuri (Exh. P. 5) was recovered from him which was taken into possession vide Memo. Exh. P. H. The recovery was witnessed by Ghulam Hassan (P. W. 9) and Musa Khan (P. W. 10). The same day Yusuf produced sword (Exh. P. 6) which was taken into possession vide Memo. Exh. P. H. By the same Investigating Officer. Ahmad appellant produced hatchet (Exh. P. 7) which was taken into possession vide Memo.
Exh. P. K. The witnesses of the recovery and the officer recovering the alleged weapons of offence were the same. Recovery of the weapons of offence from the appellants is immaterial because none of them is connected with the crime.
6. Motive for the crime given 'by Nasir (P. W. 11) and Khuda Bakhsh (P. W. 12) is that the deceased was suspected of having liaison with the wife of Yusuf appellant who in the preced--ing month of Ramazan accompanied by Gul Muhammad and Ahmad went to the house of Khuda Bakhsh and demanded compensation according to the Balochi custom from him. Khuda Bakhsh asked Yusuf to take oath on Holy Quran whether he had seen any incriminating circumstance about the, implication of his son with his own eyes. Upon this Yusuf appellant said that his son was a `Kala' and why he should take oath. He, then left in anger. It is alleged that he along with his brothers and relations has avenged. The insult.
7. The prosecution has produced five eye-witnesses in support of the occurrence, namely, Khuda Bakhsh (P. W. 12), father of the deceased ; Pir Bakhsh (P. W. 13) and Allah Bakhsh (P. W. 14) brothers of the deceased ; Mst. Sohagin (P. W. 15) widow and Mst. Jannat (P. W. 16) mother of the deceased.
All of them are alleged to have received injuries at the hands of the assailants. Two witnesses, namely, Mohammad Din (P. W. 17) and Karam (P. W. 18) arrived at the place of murder and on their enquiry they were told that the appellants had committed the crime. They have not seen murderers running away from the spot. Both of them are relations of the complainant party and live at a short distance from the place of murder. The former is a co-sharer in cultivation with Khuda Bakhsh complainant on the land in Band Salar Nokhwala. Mohammad Din is related to Ibrahim accused as his wife and the wife of Ibrahim are sisters. Wife of Ibrahim is also his cousin.
He, however, denied the suggestion that the hand of this girl married to Ibrahim was asked for Hafiz Rasul Bakhsh brother of Karam (P. W. 18), which was refused before she, was married to Ibrahim.
Karam is a cousin of one Sarang, who is married to the sister of Mohammad Din. Mst. Sohagin widow of the deceased is a sister of this witness. His brother Rasul Bakhsh is married to the daughter of Khuda Bakhsh (P. W. l2). He did not state before the-Committing Magistrate that Mst.
Jannat wife of Pir Bakhsh P. W. Was present when he arrived at the place of occurrence. In any case both these witnesses are nearly related with the complainant side and their evidence is not of much credence especially when they neither saw the occurrence nor did they see the accused fleeing from the spot after the commission of the crime. On the other hand statement of` Karam (P.
W. 18) specifically eliminates the presence of Mst. Jannat (P. W. 16) wife of Pir Bakhsh from the spot.
8. Mst. Sohagin (P. W. 15) alone mentioned the throwing of torch light by Ghullan at the the of commission of the crime on her. According to her Gullan had thrown torch at the the, but this fact was not mentioned by her in her statement before the police. Mohammad Din (P. W. 17) claims to have had a talk with Mst. Sohagin who' told him about the use of torch, before her father-in-law Khuda Bakhsh left for police station for lodging the F. I. R. It is strange that the murder having taken place in the dark night, if at all any torch was used and found at the spot, why it had, not been so disclosed to the police in the F. I. R. Nasir (P. W. 11), Shaukat Ali S. I. (P. W. 19) and one Din Mohammad were the attesting witnesses of the recovery of the torch (Exh. P. 1) and to scabbards (Exh. P. 2 and Exh. P. 3) of chhuri and the sword alleged to have been found at the spot and recovered by the Sub-Inspector Shaukat Ali (P. W. 19) on 21-4-1966. Din Mohammad has not been produced and Nasir (P. W. 11) has not said a word about these recoveries in his statement. He only deposed about the motive for the crime. We are now left with the statement of Shaukat Ali S. I. So far as these recoveries are concerned. We are afraid we cannot place reliance can his statement especially when he has violated manda--tory provisions -of section 174, Cr. P. C. In not mentioning the weapons of offence in column No. 12 of the Inquest Report although he knew that different weapons like chhuri (knife), hatchet and sword had been used by the assailants. Mere mentioning of sharp- edged weapon the column would; not be) enough. He did not mention in column No. 23 of the Inquest Report the availability of the torch and the scabbards at the place of occurrence when he prepared the said Report. This is clear violation of rule 25,35 of the Police Rules. We are clear in our mind that the Sub-Inspector has conducted dishonest investigation in the case and has tried to introduce torch and the scabbards in order to strengthen the prosecution case against the appellants.
9. The site plan (Exh. P. L.) was prepared by Mohammad Shah Patwari (P. W. 7). He has only shown a beri tree at Point No. 9 in that plan. The learned Sessions Judge during the trial directed him to visit the spot and show the number of trees in the fresh site plan growing at the spot. In compliance with the order, fresh plan Exh. P. L./A was prepared and produced in Court. In this plan he has shown four trees grown at the spot. These are fairly big trees and the branches of each one of them had spread above a man's height. This was so disclosed by him in his statement recorded at the trial.
10. We are now left with the ocular evidence in this case. Admittedly all the eye-witnesses are closely related to the deceased and have received injuries at the the of the crime. They are no doubt natural witnesses. But. The real question for determination would be as to whether they could identify the assailants in the dark night sleeping near the cluster of trees where the visibility would be still poorer. Khuda Bakhsh (P. W. 12) deposed that he was sleeping at a distance of one Karam from the cot of his deceased son Nabi Bakhsh, who was sharing his bed with Mst. Sohagin P.
W. At about midnight. When he woke up on the alarm raised by Alm. Sohagin he saw Yusuf, Ahmad and Gullan appellants holding the deceased and Ibrahim cutting his nose with the knife. Yusuf was armed with sword and Ahmad had hatchet and Ghullan had a stick in their hands. The deceased tried to escape and ran towards East when Yusuf appellant over-reached him and inflicted sword blow on his head whereupon he fell down. This place is shown at Point No. 7 in the plan Exh. P. L. The father ran towards the deceased and received sword blow by Yusuf appellant on his forehead.
Appellant Gullan according to him then gave him four stick blows. The other witnesses,. According to him received injuries at the hands of the appellants. The medical evidence contradicts the statement of this witness because there is no incised wound on the person of Khuda Bakhsh. Blunt weapons were used for all the injuries. Since the injury on the forehead of this witness cannot be attributed to Yusuf appellant, the witness has definitely failed to identify him because according to the prosecution Yusuf alone was armed with sword. When he could not identify his assailant while receiving the alleged injury it is highly improbable that he would have identified Yusuf as the assailant of the deceased who caused injury to the deceased with sword at a far of distance. The other eye-witnesses have named their own assailants and claimed to have seen the entire incident from the beginning to the end. They have given details of their injuries. We ate afraid we cannot accept their version. In the melee it was impossible for them to have known as to who were the assailants especially when the night was dark and there was no source of light. It is not the prosecution case that there was any lamp burning at the spot and there was only one assailant.
The moon rose according to the calendar on that night at about 5-18 a.m. Khuda Bakhsh (P. W. 12) and Allah Bakhsh (P. W. 14) have categorically stated that the accused did not utter any word at the the of commission: of the crime. Therefore, the question of identification by voice is absolutely ruled out even if the assailants are known to them. None has explained as to how the dead body of Yusuf reached, Point No. 9 under the tree exactly in opposite direction and at a far of distance from Point No. 7 where Yusuf received head injury and died according to their deposition. A number of discrepancies were also pointed out in their statements, but we need not go into .That aspect of the case for we are absolutely certain that in the circumstances in which the crime is alleged to have taken place, the identification of the accused was impossible.
11. The motive for the crime according to Nasir (P. W. 11) is that in the month of Ramazan prior to the occurrence he was sitting in the house of Khuda Bakhsh where Yusuf and Ahmad accused accompanied by Gul Mohammad their elation came. Yusuf appellant complained Khuda Bukhsh that his son Nabi. Bakhsh was Siakar' with his wife and that he should pay the customary Chatti (compensation). Khuda Bakhsh told him that if he had seen his wife in a compromising position with his son he should take an oath and he will not abstain from paying com--pensation. He refused to take the oath and said that his son was Siakar and why he should take the oath. He, therefore, left the place in anger. This incident is repeated by the father of the deceased but both of them contradict each other in mentioning the name of Ibrahim as one of the companions of Yusuf.
For three long months thereafter no untoward incident took- place although Yusuf appellant is alleged to have left the place in anger according, to the testimony of both these witnesses. We are not persuaded to admit this as a motive for the crime.
12. All the accused have denied their participation in the crime. The recovery has also been denied by those from whom the alleged recoveries have been made. Yusuf appellant attributed his implication on account of his dispute with Qadir Bakhsh a relation and co-sharer in cultivation with Khuda Bakhsh, father of the deceased: The other also repeated the same cause, but Ahmad produced a report from the Naib-Tehsildar (Exh. D. F.), copy of the report of the S. H. Q. (Exh. D. G.), copy of judgment in a criminal case dated 26-4-1963 (Exh. D. H.) and the copy of the order of the.
Commissioner Hill Torrent dated 30-5-1964 (Exh. D. J.) in order to prove their enmity and false implication in the case. Report of the Naib-Tehsildar (Exh. D. F.) is in regard to the dispute between Yusuf appellant and some others on one side and (nadir Bakhsh and others on the other. Exh. D. G.
Is a report submitted by S. H. O: on 12-1-1963 in the Court of Khan Mohammad Iqbal, XEN Hill Torent District Dera Ghazi Khan. Exh. D. H. Is a judgment in criminal case under section 353/34, P. P. C.
Registered against Qadir Bakhsh and others for having assaulted the officials, in which Yusuf appellant and Haji Sojal, his relation appeared as witnesses against him. 5 Qadir Bakhsh was convicted and sentenced to pay a sum of t Rs. 25 or in default to undergo one month R. I. Exh. D. J.
In the decision dated 30-5-1964 in regard to an old dispute regarding distribution of water of Hill Torrent between Qadir Bakhsh and Haji Sojal.. The revision petition of Qadir Bakhsh was dismissed by the Commissioner on 30-5-1964 and the decision of the sub--ordinate Court dated 11-6-1958 was upheld. This documentary evidence clearly establishes old enmity between Haji Qadir Bakhsh who is 'a close, relation of Khuda Bakhsh. The deceased was involved in a murder case and was on bail when he was murdered and other relations of his received injuries. It seems that the assailants were not known to the complained and Haji Qadir Bakhsh has implicated his old enemies in order to wreak his vengeance. We have already observed that the allegation of illicit liaison of the deceased with the wife of Yusuf appellant does not ring-truth. Assuming that be the case it is more probable that on account of this suspicion also Khuda Bakhsh has fallen prey to the wishes of Qadir Bakhsh in the implication of the appellants.
13. In view of the above discussion we are afraid we cannot upheld the convictions and sentences of -the appellants. We accept the appeal, set aside their convictions and sentence on all counts They have already been released by a short order passed by us today and these are the-reasons for their acquittal.
14. Before parting with the case we take strong exception to the dishonest investigation made by the Sub-Inspector in the case. We are afraid something has to be done by the executive head of 'the province in this behalf for it is very difficult for Courts to sift the truth in a criminal case where the investigation is found tainted. In this case not only the S. I. Planted the torch and to scabbards, alleged to be those of chhuri and the sword used in the crime, but he also failed to comply with the police rules mentioned above and violated the mandatory pro--visions of section 174, Cr. P. C. In filling the various columns of the inquest report. Allegation was,. However, made that he recorded the F. I. R. And conducted investigation as desired by some influential landlord of the area at his Dera. Though it has been denied by him in the cross-examination, but it does smell so from the investigation. If the Courts are deprived of the assis--tance of honest investigation and are called upon to find the truth from the statements of interested witnesses and dishonest investiga--tion, their task becomes enormously onerous and some the it can result in miscarriage of justice. A copy of this judgment shall be sent to the Governor, West Pakistan for such measures as he may deem necessary to take in this behalf.