' MAZHARUL HAQ, J.-- All Nawaz (35), Yaseen (22), Noor Din (27) and Naseer Din (22) were first tried and acquitted. The revision against the acquittal was dismissed by the High Court in limine.
Complainant went up in appeal before the Supreme Court and the case was remanded for a trial afresh. On 27-1-1975 the accused were acquitted of the charge. State has come up on appeal.
2. Muhammad Inayat had illicit relation with Mst. Nooran sister of Ali Nawaz, accused. On account of this 10/11 days before the occurrence in this case, Ali Nawaz had a dispute with Inayat. P.W. Shera intervened. According to the prosecution, on 18-1-1967 at Deegerwela, Gulla (informant) came out of his house and proceeded towards the shop of Ali to make some purchases. His step-brother Inayat was coming home from Mandi Bahauddin. Just then, Ali Nawaz, who was armed with a stick, hurled filthy abuse to Inayat and said that why had he dared to pass that way when he had earlier been stopped. Upon this, Inayat abused him back. In the meanwhile, Naseer Din, Nur Din and Yaseen came out of the house of Ali Nawaz raising Lalkara saying that Inayat would not be spared and opened the attack. In order to save his life, while raising an alarm, Inayat tried to run, All Nawaz gave him a stick blow, which hit him in the back. Yaseen also gave him a stick blow on the left side of his back. Inayat fell down. Thereafter, the accused belaboured him. In the meanwhile, P.Ws. Saleh son of Badar Din, Saleh son of Fazal Din and the informant reached there and intervened.
Muhammad Inayat was carried on a Charpai to Civil Hospital, Mandi Bahauddin, where he was medically examined by Dr. Sajjad Ahmad Malik, Medical Officer.
3. Since Dr. Sajjad Ahmad Malik, Medical Officer, Civil Hospital, Mandi Bahauddin, could not be examined without undue delay, as he had proceeded abroad, secondary evidence was led. P.W.5 Rehmat Khan, his dispenser, proved the medical report Exh. P.G. Of Inayat's injuries. Following injuries were found on him:--
(1) Contusion 1" x 1/2" on the left shoulder outer side middle oblique.
(2) Contusion 6" x 24" on the left upper arm back middle oblique.
(3) Contusion 2" x 1" x 1" below injury No, 2.
(4) Abrasion 1" x 4" on the left forearm back middle.
(5) Abrasion 2" x " on the left elbow back middle.
(6) Contusion 3" x 1/2" on the left thigh outer side upper thereof.
(7) Contusion 7" x 1" just above injury No,6.
(8) Contusion 2" x 1" on the buttock left side upper and outer thereof.
(9) Contusion 6" x 3" just inner to injury No, 8.
(10) Multiple contusions of varying sizes on the left buttock in an area. Of 5" x 5".
(11) Abrasion 1" x 4" on the left thigh front upper thereof oblique.
(12) Abrasion 1" x 4" on the left thigh front lower thereof oblique.
(13) Abrasion 1" x 4" on the left leg outer side lower thereof.
(14) Contusion 3" x 1" on right thigh back lower thereof oblique.
(15) Contusion 4" x 2" on left thigh baek middle oblique.
(16) Contusion 5" x 1" on left thigh back upper thereof oblique.
(17) Multiple contusions of different sizes in an area of 6" x 6" on right buttock.
(18) Multiple contusions of different sizes in an area of 7" x 7" on left scapular region.
(19) Contusion 6" x 2" on right chest back lower thereof oblique. The bone underneath is fractured.
' Injury No, 19 was grievous, rest were simple caused within a duration of 12 hours.
4. P.W.7 Gulla went to Police Station Mandi Bahauddin and made F.I.R. Exh. P.A. There to P.W.9 Muhammad Zar, S.I, which was recorded at 7-40 p.m. The same evening at a distance of 2 miles from the place of occurrence. The S.I. Then went to the hospital, made a query from the doctor whether Inayat was fit to make a statement, who replied in the negative. He thereafter went to the place of occurrence and examined the witnesses. At 10-30 p.m. There, he received Rukka Exh. P.E.
From the doctor informing that Inayat has since died. The S.I. Then went to the hospital, prepared the necessary documents and sent the dead body for its post-mortem examination.
5. Dr. Sajjad Ahmad Malik, held the autopsy on 19-1-1967 at 11 a.m. Vide post-mortem report Exh. P.H.
And found the same injuries, which he had noted on the deceased when he was alive. Death in his opinion occurred due to shock and hemorrhage caused by the fracture of 19th rib which pierced into the lung and caused the hemorrhage. The injury was sufficient to cause death in the ordinary course of nature.
6. P.W.9 Muhammad Zar, S.I. Arrested all accused on 19-1-1967 and after completing the investigation, they were sent up for trial.
7. All accused denied guilt and admitting their inter se relationship ascribed the case to enmity. All Nawaz denied the earlier beating incident and explaining the case against him said that he had gone to take his wife and on his return, he came to know that women had given beating to Inayat (deceased) because he was found inside their house or in the street and was looking towards his sister. He led no evidence in defence. According to Yaseen, accused, he had gone to offer Fateha at the grave of his parents and in his absence a theft was committed in his house. He went to the police station with Jamal Din and got a case registered, but did not accused any one of theft. He, however, suspected Gulla P.W. Of it, therefore, he roped him in this case. He further added that Gulla P.W. Had even asked him to become a witness in this case but he refused him. Explaining the case further, Yaseen, accused, also made the following statement:- "I came to know on my return that Inayat deceased had entered inside the house of accused All Nawaz as I heard at that time that Inayat deceased was on illicit connections with the sister of accused All Nawaz and that the deceased was beaten either by men or by women inside the house of accused Ali Nawaz when the deceased and the sister of accused All Nawaz were caught in a compromising position."
' Explaining the case against him, Noor Din, accused made the following statement:- "P.W. Gulla had abducted a girl of Tells. I was dealing in the sale of milk. I went to the house of Noor Alam Teli and he told me that his daughter had been taken away by P.W. Gulla. I had helped Noor Alam Teli in that behalf. P.W. Gulla was caught and was beaten by us. We took P.W. Gulla to our village and he was got rescued by the Lambardar. It is for this reason that I have been got involved in the case."
' According to Naseer, accused, he had been roped in because he was distantly related to All Nawaz, accused.
8. Trial Court came to the conclusion that the prosecution had failed to prove the motive. It also did not rely on the ocular testimony and concluded that the prosecution case was not satisfactorily proved against the accused.
9. Criticizing the finding, learned counsel for the State contended that it was a broad daylight occurrence, the two eye-witnesses had no motive to falsely rope in the accused. Earlier, the case went upto Supreme Court, the acquittal was set aside and the case was remanded to consider the question of provocation. We have considered the submission. Retrial was ordered by the Supreme Court. The evidence recorded afresh at the second trial has to be assessed on its merits.
10. Sole question for determination in this case would be whether the eye-witnesses namely P.W. 7 Gulla and P.W.8 Salehon son of Badar Din saw the occurrence and have given a true account. The third eye-witness namely Salehon son of Fazal Din was given up as unnecessary. We may mention at the outset that none of the accused took up the plea of grave and sudden provocation. The next question would be whether the circumstances appearing in the evidence of the case indicate that it was a case of grave and sudden provocation. If so, then which of the accused was liable. It is the prosecution case that Inayat was carrying on with Mst. Nooran, sister of Ali Nawaz, accused. The remaining three accused are his collaterals. According to the prosecution, Ali Nawaz checked the deceased when he passed through the lane in front of his house and it was thereafter that the remaining accused on his Lalkara joined him in the attack. In the F.I.R., P.W. Gulla had said that the remaining three accused emerged out of the house of Ali Nawaz with Dangs, but at the trial, he took up a different position that the three came from their own houses. The narration in the F.I.R.
Cannot be true because it is not the prosecution case that all accused had lain in ambush. It also seems highly improbable, because there is no evidence to show that the accused already knew that the deceased would pass that way. He made another material improvement at the trial by saying that Ali Nawaz had told him about 6 or 7 days prior to the occurrence that Inayat (deceased) was on illicit connection with his sister and that the witness should stop him. This, he never stated in the F.I.R. Explaining his presence at the place of occurrence at deegerwela, when normally men are at work, Gulla P.W. Said that he was going to the shop of Ali for making some purchases. However, at the trial, he was specific that he wanted to buy soap from Ali. It may be mentioned here that it would be highly improbable for Gulla P.W. To go to Ali for shopping, because he had admitted before the Committing Magistrate that All had suspected him of theft in his shop, which fact, however, he denied at the trial. Even otherwise, Gulla P.W. Is not a man of good antecedents. He admitted that cases of theft were pending against him. Besides, he also admitted his conviction in a theft case, which has an important bearing in this case because the complainant of the theft case, namely, Kalu, is the uncle of All Nawaz, accused. As such, his relation with the accused would be strained and his statement would require corroboration.
11. P.W.8 Salehon son of Badar Din was also going to make some purchases from the shop of Ali, just at the time of the occurrence, like Gulls P.W. It is noteworthy that in his statement before the Police, he had not mentioned the name of Ali's shop which is said to be near the place of occurrence.
However, there were other shops also in the vicinity, but they are not near the place of occurrence.
In his earlier statement in the Court of the Additional Sessions Judge, he had stated that he went to the shop of Ali for purchasing potatoes. Since it was closed, he could not buy them. On the other hand, Gulla P.W. Said that Ali's was the only shop which was open near the place of occurrence that day. Further, according to this witness, Ali Nawaz, accused, was standing at the corner of the street with a Sota in his hand and abused Inayat as soon as he reached there. It would seem highly improbable that Inayat, who was suspected of illicit intimacy with Mst. Nooran, All Nawaz's sister, would appear near the house of All Nawaz in broad daylight at a time when Mst. Nooran's brother Ali Nawaz was already standing with a Dang in his hand. It is not the prosecution case that the accused were in ambush and it would not be because the accused would not know that Inayat was going to pass that way, nor would Inayat under the circumstances pass that way during the day. In his statement, before the Committing Magistrate, P.W. Salehon took up the position that he alongwith Salehon son of Fazal Din separated the accused and the deceased. At the trial, however, he denied this fact because the witness bore no injury, nor there was any mark of struggle found at the place of occurrence by the Investigating Officer, nor was any blood found there. We further find that Salehon was suggested his relationship with the accused, which he denied. No doubt P.W.
Salehon denied his relationship with the accused, but the improvements and the contradictions in his statement make his presence at the place of occurrence doubtful. According to P.W. Salehon, his house was not visible from the place of occurrence. It is noteworthy that there were other people living in the adjoining houses near the place of occurrence, whose names were also suggested to the witnesses under cross-examination, but none out of them is a witness in this case. We are, therefore, in doubt about the presence of the two eye-witnesses at the place of occurrence.
12. There are circumstances appearing in the evidence of this case which support the statements of the accused that the deceased was beaten up by the womenfolk for his deeds. In the first place normally at day time men are out at work and women are generally at hopes. P.W. Gulla had stated before the Committing Magistrate that only women had arrived at their hue and cry. A perusal of deceased's injuries would reveal that not a single injury was inflicted on his head and out of the nineteen injuries suffered by him, only one was grievous, which caused the fracture of the rib that pierced the lung and proved fatal. The nature of the injuries suggest that probably women and old men were the assailants, because had the four accused attacked the deceased with Dangs, then the injuries would have been inflicted with much greater force and the deceased would have suffered injuries all over his body, including the hand. Next we find that the Investigating Officer admitted that during his investigation, he learnt that the occurrence took place inside the house of Ali Nawaz and not in the street. He also admitted that the dead body was clad in a Bunyan and a shirt only. This was further corroborated by P.W. 8 Salehon, who stated before the Committing Magistrate that he could not say whether Inayat was wearing his loin-cloth. P.W. Gulla, deceased's brother, admitted that Chadar had fallen at the place of occurrence and was sent home. The explanation does not make sense, because it should have either been produced before the police or placed on the deceased to cover him. P.W. Gulls also stated before the Committing Magistrate that the Chadar was blood-stained, but there was no blood found at the place of occurrence.
These circumstances do create a doubt about the place of occurrence and also suggest that the deceased had no under-garment on, when attacked. If that be so, then the two eyewitnesses are not giving a true account of the occurrence. We further find that F.I.R. In this case was delayed.
Police Station was only 2 miles from the place of occurrence, but none made the report in time.
According to P.W. Gulla (informant), he first went with the injured to the hospital and, after obtaining the medico-legal certificate, he trade report at the Police Station Mandi Bahauddin. It is noteworthy that theD S.I. Did not mention whether he received the medico-legal certificate from P.W. Gulla. On the other hand, we find that the medico-legal certificate Exh. P.G. Also does not mention the name of Gulls as the person who brought the injured to the hospital. The name of deceased's brother Bashir P.W. Is noted therein who brought Inayat to hospital at 6-45 p.m. The occurrence was alleged to have taken place at Deegerwela i.e, about 3 to 4 p.m., 3 hours before the injured was received at the hospital. The fact that Gulla's name does not appear in the medico- legal certificate also makes his presence doubtful.
For the foregoing reasons, we are not satisfied with the presence of the two eve-witnesses at the place of occurrence. In the absence of positive evidence connecting any of the accused with the commission of the crime, we do not consider it a fit case for interfering with the order of acquittal.
This appeal is, therefore, dismissed.