Allah Bakhsh, aged 35 years, Karam Ilahi, aged 45 years and Noor llahi, aged 50 years all real brothers inter se were tried by Mr. Muhammad Khurshid Khan, Sessions Judge, Mianwali, for the murder of Muhammad Khan (deceased) and making murderous assault on Muhammad Sher P. W.
11. He convicted all of them under section 302/34, P. P. C. and sentenced each one of them to transportation for life. For the attack on Muhammad Sher P. W. he convicted them under section 324/34, P. P. C. and sentenced them to 2 years' R. I. each. Both, the sentences were ordered to run concurrently. All the three convicted persons have come up in appeal to this Court.
2. The occurrence is said to have taken place at sargiwela on the night between 24/25-10-1968 in the area of village Gali, Police Station Chakrala, District Mianwali. The F. I. R. was lodged by Mehr Muhammad P. W. 9 at Police Station Chakrala on the next morning (i.e. 25-10-1968) at 10 a.m. It was recorded by Raja Amir Afsar S. I. P. W. l2.
The prosecution story, as given in the F. I. R. briefly stated is that on the night between 24/25-10- 1968 Muhammad Khan deceased, Mehr Muhammad P. W. 9, Ali Khan P. W. 10 and Muhammad Sher P. W. 11 were sleeping in the common courtyard of the houses of the deceased and Muhammad Sher P. W. At about sargiwela the dogs started barking. On hearing the noise Muhammad Sher P. W. got up and also woke up Muhammad Khan deceased telling him to get up as somebody was damaging their jawar field. Muhammad Khan deceased thereupon armed himself with a hatchet; Muhammad Sher P. W. took hold of a danda and both of them went towards their Jawar field. Mehr Muhammad P. W. 9 and Ali Khan P. W. 10 also followed them. When they reached the spot, they saw that Muhammad Khan had already died while Muhammad Sher P. W. was lying in an injured condition. They i.e.. Mehr Muhammad and Ali Khan P. Ws. went over to Muhammad Sher P. W. who told them that the three appellants had made bundles of Jawar and were taking away the same when Muhammad Khan deceased called out asking as to who they were and why have they damaged the crop. Upon this, the appellants threw down the bundles and attacked them. Allah Bakhsh appellant gave a knife blow to Muhammad Khan deceased, which fell on the front of his chest as a result of which he died. Karam Ilahi appellant then gave a knife blow to Muhammad Sher P. W. which fell on the latter's back. Noor Ilahi appellant, who was armed with a gun, hit Muhammad Sher P. W. with the butt of the gun. On hearing the noise other persons also reached the spot. Leaving the dead body in their custody Mehr Muhammad P. W. 9 went to Police Station Chakrala and lodged the F. I. R. Exh. P. A. at 10 a.m. on 25-10-68. After recording the F. I. R. Raja Amir Afsar S. I. P. W. l2 proceeded to the spot and reached there at about 2 p.m. after covering a distance of I6 miles. He prepared the inquest report Exh. P. H. and injury statement Exh. P. G. in respect of the dead body of Muhammad Khan deceased and despatched the body for post-mortem examination. He als prepared the injury statement Exh. P. J. of Muhammad She Pi W. and then sent him to the hospital for medical examinatio The S. I. then inspected the spot and took into possession the blood-stained earth and blood- stained knife P. 1, which was lying at the spot vide memo. Exh. P. B. He also took the following articles into possession from the spot vide memo. Exh. P. C.
Three bundles of jawar P. 2/1-3, three sickles P. 3, P. 4 and P. 5, one chapar of the gun P. 6, hatchet P.
7, dang P. 9 and a letter P. 8 written by Allah Yar, brother of the appellants to his father.
The memo. Exhs. P. B and P. C were attested by Zulfiqar P. W. 6 and Raja Amir Afsar S. I. P. W. l2. One Ata Muhammad, who bad also signed the memos, had not been produced. On 2-11-1968 Allah Bakhsh appellant while in custody of the police got gun P. I6 recovered from his residential house. It was taken into possession vide memo. Exh. P. O which was attested by Tura Baz P. W. 7 and Raja Amir Afsar S. I. P. W. l2. A separate case under section 13 of the Arms Ordinance was registered against Allah Bakhsh appellant.
3. Dr. Nazar Ahmad Nazar, P. W. 1, who conducted the post-mortem examination on 26-10-1968 at 10 a.m., found the following injuries on the person of Muhammad Khan deceased :--
(1) A wound I* x 1/3'over the front of right side of neck obliquely near the medial end of clavicle.
Right carotid blood vessels were injured.
(2) An incised wound f* x 1/3" over the front of chest in the midline at the level of nipples. The wound was not entering the chest cavity.
(3) An abrasion 3J" x 1/6* traversely over the front of chest below injury No. 2.
The doctor found that right carotid blood vessels were cut. The heart was empty on both sides. The death in his opinion was caused by injury No. 1. Injuries Nos. 1 and 2 were caused by sharp-edged weapon while injury No. 3, was caused by blunt weapon. He also found that there was 4 ounces of semi-digested food material in the stomach. In the opinion of the doctor the time between injury and the death was 15 minutes between death and post-mortem was about within 36 hours.
On the same day at 2 p.m., he medically examined ! Muhammad Sher P. W. 11 and found the following injury on his ! person :-- An incised wound 3/4* x J' over the back of left scapula (shoulder blade) obliquely.
5. At the trial, the prosecution produced l2 witnesses. Muhammad Sher P. W. 11 was the only eye- witness in the case. Mehr Muhammad P. W. 9 and Ali Khan P. W. 10 reached the spot shortly after the occurrence and were told about the incident by Muhammad Sher P. W. Zulfiqar P. W. 6 and Tura Baz P. W. 7 are the witnesses of various recoveries, Mr. Nazir Ahmad Nazar P. W. 1 is the doctor, who conducted the post-mortem on the dead body of Muhammad Khan deceased and Raja Amir Afsar S. I. P. W. l2 is the Investigating Officer. The test are formal witnesses.
6. When examined at the trial, the appellants denied their guilt and pleaded innocence. They stated that they had been falsely involved due to enmity with Muhammad Khan deceased and the prosecution witnesses.
7. I have heard the learned counsel for the appellants as well as the learned State Counsel. I have also gone through the entire records.
The learned counsel for the appellants argued that the occurrence had taken place at about 11/12 o'clock on the night between 24/25-10-1968, that no one had seen the occurrence and that the relatives of the deceased had found him lying dead in the field early next morning and named the appellants in the F. I. R. due to suspicion. In the alternate he argued that even if it be assumed that Muhammad Sher P. W. was also present, he could not have identified the assailants because it was a dark night being the lst of the lunar month; that the sequence of injuries as given in the F. I. R. is materially different from the One given by Muhammad Sher P. W. in his statement at the trial, that the time of occurrence has been wrongly given as sargiwela with a view to show that there was sufficient light for the eyewitness to identify the assailants but the prosecution version on this point is belied by the medical evidence, that the injury on the person of Muhammad Sher P. W. is obviously got inflicted subsequently, by a friendly hand, in order to establish his presence at the spot; that the witnesses are related inter se and are also related to the deceased and their testimony should not, therefore, be relied without independent corroboration and lastly that the recovery witnesses are unreliable, the recoveries are not proved and, in any case, they do not connect the appellants with the crime.
8. After having carefully considered the above mentioned contentions, I am inclined to agree with the learned counsel for the appellants.
It must be mentioned to begin with that Muhammad Sher, Mehr Muhammad and Ali Khan P. Ws. are closely related to the deceased. The sister of Mehr Muhammad P. W. 9 is the widov of Muhammad Khan deceased, Ali Khan P. W. 10 is the brothe^ of Muhammad Khan deceased while Muhammad Sher P. W. 11 is married to the sister of the deceased. The occurrence tool place in Dhok Bidhar. The deceased, his brother Ali Kht P, W. 10 and bis brother-in-law Muhammad Sher P. W. 11 livd in the adjoining house in the said village, but Mehr Muhammad JMah Bakhsh P. W. 9 is the resident of altogether different village, namely, Y; village Nammal. He is said to have come to visit his sister i.e. tate the wife of the deceased, on the evening prior to the night of Aslam Riaz occurrence and can, therefore, be termed as a chance witness. Hussain, J The night was admittedly a dark one, as it was the 1st of the lunar month. The time of the occurrence is said to be sargiwela on the night between 24/25-10-1968. This is, however, contradicted by the medical evidence inasmuch as according to the doctor, who conducted the post-mortem examination 4 ounces of semi- digested food was found in the stomach of the deceased. It is common knowledge that in the rural areas people take their dinner rather early. It can, therefore, be safely assumed that the deceased had taken his last meals by 7 or 8 p.m. on the night of 24-10-1968.
Food is completely digested in about 4 to 5 hours time and after 6 hours there should be no food material, whatsoever, left in the stomach.
9. The calendar of 1968 shows that on the morning of 25th October 19 ;8 the sun rose at Lahore at 6-11 a.m. at Mianwali, therefore, it may have arisen at about 6-15 a.m. and sargiwela would be an hour or so before sunrise. Taking the prosecution version to be correct the occurrence must, therefore, have taken place at about 5 a.m. i e. about 10 hours after the deceased had taken his last meals. The fact, therefore that 4 ounces of semi- digested food material was still found in the stomach of the deceased completely falsifies the assertion that the occurrence took place at sargiwela. Although the contents of the stomach are not a very accurate guide as to the time of death but keeping in view the quantity of food material found in the stomach it can safely be presumed that it had taken place about 4 hours after the deceased had taken his last meals and the occurrence, therefore, can be said, roughly, to have taken place between 11 p.m. and 1 a.m. during the night of occurrence.
The view that the occurrence did not take place at sargiwela but much earlier is also supported by the duration of the injuries, as given by the doctor. If calculated backwards the injuries on the deceased as well as on Muhammad Sher P. W. are found to have been inflicted at about 10 p.m. on the night between 24/25-10-1968. As it was a dark night, the identification of the assailants would be impossible or at least doubtful. It appears that the prosecution was compelled to change the time of occurrence from mid-night to sargiwela so that it could be argued that there was enough light for Muhammad Sher P. W. to identify the assailants.
10. I am inclined to believe that Muhammad Sher P. W. the only eye-witness in the case was actually not present at the scene of occurrence. He has, of course, shown to have an injury on his person, which was allegedly received during the occurrence. But on a careful study of its dimension I am inclined to feel that it was got manufactured subsequently by a friendly hand. It will be noticed, that the dimension of the injury is only 3/4" x 1/4". The depth of the injury is not given. It, therefore, appears to be a superficial stitch with a sharp-edged weapon. This fortifies the view that the injury was inflicted by a friendly hand.
Further the story, as given in the F. I. R. is said to be based on the information given to Mehr Muhammad P. W. 9 by Muhammad Sher P. W. 11, but the sequence of injuries given in the F. I. R. is entirely different from the one given by Muhammad Sher P. W. at the trial. Whereas in the F. I. R. it is stated that Allah Bakhsh appellant gave a knife blow in front of the chest of Muhammad Khan deceased, Karam Ilahi appellant then gave a knife blow on the back of Muhammad Sher P. W. and thereafter Noor Ilahi appellant gave a blow with the butt of the gun to Muhammad Sher P. W. At the trial this witness has stated that Allah Bakhsh and Karam Ilahi appellants gave one knife blow each to Muhammad Khan deceased which fell on the chest and the neck of the deceased respectively, the deceased fell down and Noor Ilahi appellant then gave a blow with the butt of the gun to Muhammad Khan deceased in the fallen condition. The witness tried to intervene but Karam Ilahi appellant gave him a knife blow on the back. The reason for this modification in the sequence of injuries given by this witness at the trial is obvious, namely, that by that time the doctor's report had become available and the statement of the witness had, therefore, to be brought in conformity with the medical evidence.
As already mentioned Muhammad Sher P. W. 11 is the only eye-witness in the case. If his testimony is excluded, the whole prosecution case falls to the ground for if no one had seen the assailants it cannot be said as to who caused the injuries and the recoveries would become absolutely useless.
11. Even if it be believed that Muhammad Sher P. W. was present at that time, he could not have identified the assailants because, as already observed, it was a dark night and the occurrence took place sometime in the middle of the night. The other two witnesses, namely, Mehr Muhammad and Ali Khan P. Ws. of course, came after the occurrence and they are of no help of the prosecution in ascertaining the identity of the culprits.
The learned State counsel argued that even if Muhammad Sher, the eye-witness, as well as Mehr Muhammad and Ali Khan P. Ws. are disbelieved, the recovery of the three bundless of Jawar, the three sickles, gun P. I6 one chapar of gun P. 6 and a letter P. 8 would constitute sufficient circumstantial evidence for the conviction of the appellants. [3] to his father. In the first place the assertion that the appellants had left this letter behind, is too thick to swa llow and the letter appears to have been planted by an overzealous Investigating Officer. In any case it cannot be said to connect the appellants with the crime. Firstly, it has not been proved on the record that the letter was written by Allah Yar. Secondly, Allah Yar who is employed in the army may have himself come on that night and committed the offence. Apart from this, this letter cannot possibly show that all the three appellants were present at the spot and since it cannot, with any certainty, be attributed to any particular appellant, none of them can be condemned because of the presence of this letter at the spot. l2. It may, however, add that the evidence of recoveries itself is not reliable. As already mentioned all the material witnesses in the case are related to each other. Zulfiqar P. W. 6, the only non-official witness of the recoveries of sickles, chapar P. 6 and the letter etc. is also a relative of the other witnesses. It has been held by the Supreme Court of Pakistan in Muhammad Nawaz v. Abdul Khaliq and others (1) that where the prosecution witnesses are related inter se and also to the deceased, corroboration of their testimony from independent sourses is necessary before the same can be believed. No such corroboration is available because apart from Zulfiqar P. W. 6, the only witness to the recoveries is Raja Amir Afsar P. W. l2, the Investigating Officer, who, as I have remarked, appears to have gone out of his way to effect the recovery of letter P. 8 by planting it.
As regards the recovery of gun P. 16, Tura Baz P. W. 7 is the only non-official witness of the recovery, the other witness being the same Investigating Officer. The gun is said to have been got recovered by Allah Bakhsh appellant. He was also tried for an offence under section 13(c) of Arms Ordinance, 1965. Tura Baz P. W. 7 also appeared as a prosecution witness. In that case, Allah Bakhsh appellant was, however, acquitted by Mr. Muhammad Bashir Ahmad Rana P. C. S., M. I. C., Mianwali, by his order dated 28-8-1970 for the reason that the prosecution had not been able to prove its case beyond reasonable doubt. I would, therefore, regard it unsafe to rely on the evidence of Tura Baz P.
W. with regard to the same recovery, in a murder case. In this view of the matter it cannot be said that the recoveries have been proved through reliable evidence. As already discussed above even if 1he recoveries were believed, they do not help the prosecution, in any way, as they do not connect the appellants or any one of them with the crime.
13. In view of the above discussion I am inclined to believe the defence verson that the murder had, in fact, taken place in the middle of the night, that no one had seen it that the body of the deceased found early next morning and the story was then concocted and all the brothers except the one who was employed in the Army were named as accused persons (the fourth brother was left out probably due to an apprehension that the [4] Military records may show him to be present elsewhere on that night). The prosecution story is highly doubtful and the evidence on the record is not reliable enough to sustain the conviction. As a result I set aside the order of the learned trial Court and acquit the appellants. They should be set at liberty if they are not wanted in any other case. .