QURBAN SADIQ IKRAM, J.--This is an appeal by Abdur Rashid (40) against his conviction under section 302. P.P.C. By Mr. Habib-ur---Rehman's, Additional Sessions Judge, Gujrat, vide judgment dated 20-5-1981. He was sentenced to death and a fine of Rs. 1,000 or in default six months' R.I. For the murder-of Muhammad Khan. The two co-accused named Liaqat and Muhammad Hanif were acquitted by the same judgment. The appellant having been sentenced to death, the proceedings are also before us for confirmation of sentence.
2. The facts in brief are that Muhammad Khan deceased had his house in front of the house of Abdur Rashid appellant. On 9-5-1979, early in the morning, the hen belonging to Muhammad Khan deceased damaged the wheat lying in the Verandah of the house of Abdur Rashid accused. This resulted in exchange of abuses between Mst. Hameeda were of Rashid accused and Mst. Razia were of Muhammad Khan deceased. The latter intervened and abused Mst. Hamida in support of his own were Mst. Razia.
On account of this quarrel, it is alleged that on the same evening, at about 6-00 p.m., Rashid accused (appellant) armed with a hatchet alongwith his two maternal-nephews Muhammad Hanif and Liaqat (acquitted accused) armed with Sotas came to the courtyard of Muhammad Khan deceased who was lying on a cot. The accused abused Muhammad Khan deceased and simultaneously Rashid appellant gave hatchet blow on the left side of head of Muhammad Khan deceased. He gave a second hatchet blow on the right side of the head of the deceased whereafter Muhammati Hanif and Liaqat (both acquitted accused) inflicted one blow each with their respective Sotas. The occurrence, according to the F.I.R, was witnessed by Muhammad Din complainant, his brother Ahmad (given up P.Ws.) and Muhammad Amin P.W. They entreated the accused who left the spot with their respective weapons.
Muhammad Khan deceased who was in injured condition was removed to Civil Hospital, Dings, where he was medically examined at about 11-30 p.m. By Dr. Ghazanfar Ahmad P. W.1 who found the following injuries on his person:- (1)Incised wound anteroposterior in direction 4 --" x 1/2" on left side of head, 4 --" above left ear.
Wound was found bleeding profusely.
(2)Incised wound 2" x 1/2" x 1/2" on right side of forehead and temple.
(3)Lacerated wound 1/2" x 1/4" x 1/2" on right cheek against right eye.
(4)The right eye was found swollen due to haemorrhage.
Injuries Nos. 1 and 2 had been caused by sharp-edged weapon while Nos. 3 and 4 by blunt weapon of six to eight hours duration. Muhammad Khan was found unconscious and gasping for breath.
Thereafter, Muhammad Din complainant went to Police Station, Dinga, District Gujrat, about four miles from the place of occurrence and lodged the F.I.R. Exh. P.F. At 12-30 a.m. (mid-night) on 10-5- 1979. Muhammad Khan aged 50 years died at 5-45 a.m. On 10-5-1979.
3. After registration of the case, the police undertook investigation The dead body of Muhammad Khan was sent for post-mortem examination which was conducted by Dr. Muhammad Sammeh Tariq, Senior Medical Officer, Jhelum, on 10-5-1979, at 10-00 a.m. He found the same injuries on the dead body as stated above. On external examination, he found that the right eye was eccymosed and swollen with sub-conjunctional haemorrhage present on the lateral side. On opening the skull, he found blood clotted all over the scalp. There was straight fracture of left frontal bone and also fissured haphazard fracture joining with the straight fracture. There was slight depression on the left part of the bone. He also found some fluidy and juicy greenish fluid material, 1/3rd filled up with slight digested food in the stomach. Small intestines had digested and undigested food while faecal matter was present in large intestine. In the opinion of the Medical Officer, death had occurred due to shock and haemorrhage resulting from injury No.1 which was sufficient to cause death in the ordinary course of nature.
During spot inspection, the police took in possession Charpoy P.2 on which the deceased was lying at the time of occurrence alongwith pillow P.3 and Chaddar P.4, all blood-stained vide memo. Exh.
P.D. Prepared by Muhammad Latif A.S.I. (not examined) in the presence of Muhammad Khalid P.W.5 and Khushi Muhammad (given up P.W.). The appellant Abdur Rashid was arrested on 13-5-1979. He was interrogated whereafter on 14-5-1979 he led to the recovery of blood-stained hatchet P.5 which was taken in possession by Tariq Mahmood S.I. P.W.14 in the presence of Muhammad Anwar P.W.6 and Bashir Ahmad (given up P.W.). The hatchet was found to be stained with human blood vide report of the Chemical Examiner Exh. P.P. And that of serologist Exh. P.Q. Liaqat accused got recovered Sots P.6 vide memo. Exh. P.M. On 19-5-1979. The accused were challaned after investigation.
4. During the trial, the prosecution examined 14 witnesses in all. Muhammad Din P.W.8, Muhammad Amin P.W.9 and Mst. Razia P.W.10 were examined as the eye-witnesses. Ahmad P.W. Was given up as unnecessary. The medical evidence was furnished by Dr. Ghazanfar Ahmad P.W.1 and Muhammad Sammeh Tariq P.W.12. The recoveries were witnessed by Muhammad Khalid P.W.5 and Muhammad Anwar P.W.6 as given in detail above. The investigation was conducted by Muhammad Latif, A.S.I. (not examined) and Tariq Mahmood, S.I., P.W.14.
The accused when examined under section 342, Cr. P.C. Denied the charge and pleaded innocence. The recovery of crime weapon was also denied. They attributed the present case on account of their enmity with one Abdur Rehman's, employer of Abdur Rashid accused because Muhammad Rafiq, a son of the sister of Abdur Rashid accused had refused to transfer a plot of land to the aforesaid Abdur Rehman's. The accused did not produce any evidence in defence.
The learned trial Judge relied upon the evidence of the eye-witnesses. He did not rely on Muhammad Din and Muhammad Amin P.Ws. Against the two acquitted accused. He also relied upon the recovery of hatchet P.5 at the instance of Abdur Rashid accused and convicted only Abdur Rashid appellant as stated above.
5. We have heard the learned counsel for the appellant and also the learned counsel for the State.
We have also gone through the record of this case. In this case, the prosecution examined three eye-witnesses. Muhammad Din P.W.8 is married to a sister of the deceased and resided at a short distance from the place of occurrence. One house intervened between the place of occurrence and the house of Muhammad Din. Muhammad Din P.W. Has stated that he was present in his house at about evening time and heard the accused abusing the deceased on account of which he was attracted to the spot. According to this witness, he went to the courtyard of the deceased and saw the present occurrence. The two other eye-witnesses, according to him, came to the spot after he had reached the place of occurrence. It was further stated by him that after the occurrence he had brought a wagon from Dings and took the deceased from the place of occurrence to Civil Hospital, Dinga, which was about 50 yards from the Police Station. In cross- examination, he stated that he did not know the name of the father of Amin, P.W. Or the name of the grandfather of the said P.W. He further stated in cross-examination that he omitted to name Mst. Razia P.W. As an eye-witness in the F.I.R. And that the deceased was not administered any medicine by the Medical Officer. According to this witness, the deceased was given some milk in the village before leaving for the Hospital. The second witness Muhammad Amin stated during the trial he had gone to the house of Fazal Elahi, a little before the occurrence to ask him for help for placing his Bhoosa at some place. According to this witness, Fazal Elahi was not present in the house. His young daughter was present, so he kept sitting in the courtyard of Fazal Elahi alongwith Ahmad P.W. Who also had accompanied him there. They were still present in the courtyard of Fazal Elahi when the three accused armed with their respective weapons came there, shouted abuses at the deceased and caused him injuries. According to this witness, no one of the witnesses raised any alarm nor the deceased got up from the cot. It was further stated by him that the deceased was not given water or milk and that in fact he could not take any such thing.
We have considered the evidence of these two witnesses. Muhammad Amin, P.W. Is married to a sister of Muhammad Khan deceased. Muhammad Amin P.W. Is a cousin in second degree of Muhammad Khan deceased as his grandfather Mehr Din and grandfather of Muhammad Khan deceased were real brothers. The house of Muhammad Din P.W. Was at a short distance whereas the house of Muhammad Amin P.W. Was about 100 yards from the place of occurrence. According to Muhammad Din P.W. He. Went -to Dings to bring a wagon for removing Muhammad Khan deceased to the Civil Hospital. The Police Station is also located at Dinga and as such, if Muhammad Din had gone to Dings, he should have reported the matter to the police at that very time. He gave full description of Muhammad Amin, P.W. In the F.I.R. But during cross-examination stated that he was not aware of the names of the father and grandfather of Muhammad Amin P.W.
Muhammad Din was present in his house and as such, it was not expected that he was able to reach the place of occurrence within the short time when the occurrence took place. The house of Muhammad Amin P.W. Is about 100 yards from the place of occurrence. Fazal Elahi was not present in his house and as such, there was no occasion for Muhammad Amin P.W. To sit in his courtyard when a young daughter of Fazal Elahi was alone present in the house. This story appears to be improbable. According to the Medical Officer, who conducted the post-mortem examination, the stomach was found 1/3rd filled up with slight digested food. The small intestines were also found to contain digested and undigested food. This means that the deceased had already taken his evening meals when the present occurrence took place. If the occurrence had taken place at 6-00 p.m., then no food would have been noticed in the stomach. There is another aspect of this.
According to the eye-witnesses, the deceased remained lying on the cot and did not get up after hearing the abuses- alleged to have been given by the accused before causing injuries. If the accused had abused the deceased before inflicting injuries, firstly, the deceased himself must have got up from the Charpoy and secondly, the witnesses must have cautioned him to get up from the Charpoy to save himself. It is prosecution's own case that in spite of the noise created by the accused which even attracted Muhammad Din P.W., the deceased Muhammad Khan remained lying on the cot. It can, therefore, so safely inferred that the deceased was sleeping at the time of occurrence. This view is supported by the presence of food in. The stomach. We are, therefore, of the view that the occurrence did not take place at 6-00 p.m., as stated by the eye- witnesses but during the darkness of the night when no one of the witnesses was present at the spot. So far as the evidence of Mst. Razia is concerned, she was not named as an eye-witness in the F.I.R.; secondly her name also did not appear as an eye-witness in the inquest report prepared by the Investigating Officer in Civil Hospital, Dinga; and thirdly, it is in evidence that Mst. Razia did not accompany her injured husband from the spot to Civil Hospital, Dinga. If she had been present, she must have accompanied her husband to the Hospital; and finally, Muhammad Khan deceased had two daughters; one aged eight years and the second aged about four years out of Mst. Razia.
If the occurrence had taken place at about evening time, these two daughters of the deceased must also have witnessed the occurrence. They were also not named as eye-witnesses of the present occurrence nor did they accompany Muhammad Khan to Civil Hospital, pings. We are, therefore, of the view that Mst. Raffia did not witness the occurrence. On the other hand, we feel that the absence of the name .Of Mst. Razia from the F.I.R cast doubt on the prosecution story itself.
She might not be willing to become an eye-witness in the instant case for which many reasons can be visualised. All these facts make the prosecution story narrated by the prosecution witnesses doubtful. So far as the recovery of hatchet P.5 is concerned it is supported by Muhammad Anwar, P.W.6. According to Muhammad Anwar, P.W.6, the house of the accused was locked when the police party went there for recovery of the hatchet. The Thanedar summoned the were of the accused who brought a key with which the lock of the house was opened whereafter the accused took out hatchet from underneath a box lying in the Koths. On the other hand, Tariq Mahmood, S.I.
P.W.14 stated that the door of the house of the accused was open when they reached there and some children were found present in the house. He specifically stated that the door of the room in which the hatchet was lying was not locked. He further denied having opened the door after getting key from the were of the accused. This is a material discrepancy in the statements of two recovery witnesses which make the recovery of hatchet. P.5 doubtful and as such, the same cannot be considered as a corroborating evidence to the ocular account. We have already held that Mst.
Razia A was not present-at the spot at the time of occurrence. She was the only witness to depose about the motive against the accused. Mst. Razia having been disbelieved, no other evidence regarding motive was brought on the record of this case.
6. In view of the above, we find that the case against the appellant was not free from doubt. This appeal is, therefore, accepted. The conviction and sentence of the appellant Abdur Rashid is set aside. He shall be released forthwith, if not required in any other case.
7. The sentence of death is not confirmed.