' MUHAMMAD SHARIF, J.-- Ghaus Bakhsh, the appellant has been convicted under section 302, P.P.C.
For causing the death of Sher Muhammad and has been awarded death penalty by the learned Sessions Judge, Dera Ghazi Khan vide his judgment, dated 20-10-1981. He has also been fined Rs,5,000 or in default thereof to suffer R.I. For one year. Ghaus Bakhsh has been directed to pay Rs,5,000 by way of compensation to the heirs of the deceased as envisaged under section 544-A of the Code of Criminal Procedure. His accomplice Qadir Bakhsh was, however, acquitted. The learned Sessions Judge has referred this case to us under section 374 of the Code of Criminal Procedure for the confirmation of the death sentence. Ghaus Bakhsh has lodged an appeal whereas the complainant has filed a criminal revision against the acquittal of Qadir Bakhsh. The murder reference, the criminal appeal and the criminal revision are being disposed of by means of this consolidated judgment.
2. The facts which led to the detection of this crime in substance are that Ghaus Bakhsh, the appellant had suspected illicit affections and guilty associations between his mother and Sher Muhammad deceased. In order to slake his sense of grievance, he alongwith Qadir Bakhsh, while armed with hatchets, murdered Sher Muhammad in the afternoon of 14-4-1980 in the area of Sajawal Khan located in village Jamal Khan Gharbi, Police Station Choti. Ghazi Muhammad the complainant was driving his tractor towards Jampur and Piyara P.W. Was with him when they saw the appellant and Qadir running after Sher Muhammad. Ghulam Akbar was present at a short distance from the scene of occurrence and all of them saw the appellant giving the first hatchet blow on the front side of the head of Sher Muhammad. Then both of them gave a blow each on the neck of Sher Muhammad, when he had fallen down. Sher Muhammad died on the spot. The bystanders were empty-handed and the appellant and his accomplice threatened them with dire consequences and fled away after committing this crime. Ghazi Muhammad left Piyara and Ghulam Akbar near the dead body and lodged the F.I.R. Exh. P.D./1 at the Police Station Choti at 6- 45 p.m. The police promptly reached the spot and prepared the inquest report and the injury statement and sent the dead body to the mortuary. Dr. Muhammad Arshad P.W. 1 conducted the autopsy and observed the following injuries on his dead body:-
(1) An incised wound 7" x 1" x brain deep on the left side of the head extending one to one and a half inches from the left eyebrow upwards.
(2) An incised wound on the front of neck. Whole of the neck was cut through and through except on the back of the neck where a part of skin was intact.
(3) An incised wound in transverse direction in the front of chest measuring 2" x 1/2" x 3/4".
' According to this medical expert, injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. Injury No, 3 had been caused by a Chhuri.
3. The appellant was arrested on 23-4-1980 and got recovered a blood-stained hatchet from his abode which was lying near the earthen bin intended for storing wheat. It was taken into possession and sent to the Chemical Examiner, Lahore who gave a positive report. After the completion of the investigation, the challan of the appellant was submitted and as a sequel to the impugned trial, he was awarded the aforementioned punishment.
4. The learned trial Court has convicted the appellant on the basis of ocular evidence, motive, medical evidence and the recovery of the blood-stained hatchet. Ghazi P.W.7 has narrated the incident as stated by him in the F.I.R. He has made a simple deviation by stating that Qadir Bakhsh took out a Chhuri and gave a blow on the chest of Sher Muhammad deceased when he had fallen down. Ghazi, P.W.7 was driving his tractor towards Jampur and Piyara P.W. Was seated thereon.
When subjected to the cross-examination, Ghazi posed ignorance about the number of fields which he had ploughed nor could he state the area which he had ploughed on that day. He corrected himself and stated that it might be five to seven acres. He was not to sow anything in his fields and' he has stated that he had gone there to prepare the fields for sowing further crop. He could not state the petrol consumed by his tractor on that day. According to him, he started ploughing his field at 8-00 or 9-00 a.m. And he could not state the number of intervals he had availed of to remove his fatigue. He has stated in the F.I.R. That he and Piyara were going towards Jampur, but before the learned trial Court he simply started that Piyara had met him at Tayyib Sultan Road and he did not know wherefrom he was coming and he just gave him a lift to drop him at a place of his choice. He made no inquiries as to where Piyara was going.
5. Piyara, P.W.9 has corroborated the statement of the complainant. He has testified that the appellant had given two hatchet blows to Sher Muhammad whereas Qadir Bakhsh had given a hatchet blow on the neck of the deceased and had also given a Chhuri blow on his chest. He has clarified that he calmly sat on the tractor of the complainant and did not take the trouble of introducing himself to the complainant and did not have any talk although the tractor was driven up to a distance of three/four miles and when they saw the incident, he asked the name of the deceased and the accused from the complainant. Piyara is the uncle of Ghulam Akbar, P.W. And has stated that he and the father of Ghulam Akbar were involved in the theft case of a tractor belonging to Din Muhammad. He denied' the suggestion that Qadir Bakhsh was ,a prosecution witness in that theft case. Piyara P.W. 9 acted as a dumb person till he saw this incident. If he was a stranger to the complainant, the complainant must ask him as to why he wanted to board his tractor and if he knew the complainant beforehand, then having regard to the natural course of events, both of them should have talked about the destination of Piyara and the purpose for which he had boarded his tractor. Furthermore, the involvement of Piyara in a theft case of a tractor makes him a man of questionable respectability and his testimony can hardly be relied upon.
Ghulam Akbar and Piyara are the employees of Sardar Jafar Khan Leghari and are related inter se.
Although Ghulam Akbar has assigned specific role to the appellant as well as Qadir Bakhsh as stated by the complainant and Piyara, yet it remains to be determined whether his presence near the venue of crime was probable. He has stated in his cross-examination that he being a tenant of Sardar Jafar Khan Leghari, had gone to the farm to bring the arbitrator of the assessment of the crop. He means to say that he wanted to get conducted the appraisal of the crop through Muhammad Bakhsh who lived at Jampur. No body told this witness that Muhammad Bakhsh was present in the farm. After the incident, he did not come to the farm nor did he try to search Muhammad Bakhsh so that he may appraise the crop. His statement is also replete with contradictions. He denied having stated before the police that he was present in the area of village Darkhawst Jamal Khan near Nari Farm for his private job, but it was found so recorded in his statement Exh.D.B. According to him, he stated before the police that he was passing through the land of Sajawal Khan when he saw Ghazi and Piyara P. Ws. Driving a tractor. It was not found recorded in his statement, the copy of which is Exh.D.B. He had stated that he told the police that the accused chased the deceased and overtook him after crossing the road. It was not found recorded in his statement before the police. He also did not state before the police that Qadir had given a Chhuri blow on the chest of Sher Muhammad. The manner in which Ghulam Akbar reached the spot does not appeal to reason. It appears that the complainant, Piyara and Ghulam Akbar, who are the chance witnesses, did not see this occurrence at all. Chances mostly lead to fiction and the ocular testimony is nothing more than a good fiction.
7 The medical evidence is not in line with ocular account as narrated by the eye-witnesses. They have stated that the appellant and Qadir Bakhsh had dealt one hatchet injury each on the neck of Sher Muhammad, but the medical expert is of the opinion that injury No, 2 was caused by a solitary blow. Injury No, 3 was not disclosed in the F.I.R. But an improvement has been made by the ocular witnesses after this injury was detected by Dr. Muhammad Arshad, P.W.1.
8 The motive for the commission of the crime is stated to be the suspicion of a marital ties between the deceased and Mst. Pathani, the mother of the appellant. In defence, the copy of the Identity Card Exh.D.E. Of Mst. Pathani has been produced which shows that she is an old lady of sixty years.
Her illicit liaison with the deceased, who was a married man, is not probable. Secondly, the complainant could not state with exactitude whether the suspicions of the appellant regarding the illicit relations of his mother with Sher Muhammad were possibly correct. The investigating agency failed to verify the investigation regarding the motive for the commission of this crime. The motive as alleged by the prosecution has not been substantiated.
9 The story of recovery of Chhuri from the appellant appears to be a fake affair. The incident took place on 14-4-1980. The appellant was arrested on 23-4-1980 and the blood-stained hatchet was recovered at his instance from his house lying near the earthen bin. It is not credible that a culprit should keep the blood-stained hatchet in his house so as to present it as souvenir to the police after his arrest. He could have easily washed the same within a long span of nine days or could have thrown it or buried it at a convenient place. The parcel containing the blood-stained hatchet was sent to the office of the Chemical Examiner very late. The report of the Chemical Examiner is dated 1-10-1980. After the efflux of time, it appears that the blood on the hatchet must have disintegrated and Chemical Examiner could have experienced difficulty in its examination. The place of recovery was accessible to everyone and the room wherefrom it was recovered is jointly owned by the family members of the appellant. Mr. Tasaddaq Hussain Mani, the learned Assistant Advocate-General, has scrupulously conceded that he does not rely on the factum of recovery.
9. The motive for the commission of this crime has not been proved. The ocular account of this incident has been disbelieved. The medical evidence is not in line with the ocular testimony. The recovery of the blood-stained hatchet is a fake affair. It is pertinent to note that the conduct of the police needs castigation. The Investigating Officer had absconded and was not produced as according to the learned counsel for the appellant, he was involved in an abduction case. The police did not take the trouble of verifying the investigation of this case which depicts the negligence of the prosecution agency.
10. In the light of the above observations we accept this appeal and set aside the conviction and sentence ordered against the appellant under section 302, P.P.C. He shall be set at liberty forthwith if not required to be detained in any other case. The death sentence is not confirmed and the reference is answered accordingly. The revision petition filed by the complainant against the acquittal of Qadir Bakhsh also stands dismissed.