QURBAN SADIQ IKRAM, J.--Abdul Wahid, Muhammad Saleem and Karim Bakhsh accused were convicted by learned Additional Sessions Judge, Bahawalpur, vide judgment, dated 2f-5-198;, for the murder of Abdul Khaliq. Abdul Wahid was sentenced under section 302/34, P.P.C. To death and a fine of Rs.5,000 or in default two years, R.I, Muhammad Saleem was sentenced under section 302134, P.P.C. To imprisonment for life and a fine of Rs.5,000 or in default two years, R.I. Both of them filed Criminal Appeal No.9 of 1984/BWP. Karim Bakhsh was sentenced under section, 302/34, P.P.C.
To imprisonment for life. He filed Criminal Appeal No.24 of 1984/BWP through jail.
Abdul Wahid accused having been sentenced to death, the proceedings are also before us for confirmation of his sentence. All these matters will be disposed of by this judgment.
2. The F.I.R. In this case was recorded on the statement of Abdul Razzaq (wrongly printed as Abdul Khaliq in the paper book), on 3-1-1982, at 9-30 a.m. By Mushtaq Ahmad A.S.I. P.W.5. The occurrence took place on 2-1-1982, at 8.00 p.m. It was alleged in the F.I.R. By Abdur Razzaq P.W.1 that he was employed in WAPDA. He came back to his house on 2-1-1982, at 7-00 p.m. And shortly thereafter went to the house of his brother Abdul Khaliq deceased. There Abdul Khaliq deceased and his son Abdul Saboor were present. They were engaged in discussing family matters when Abdul Khaliq was called out. At this, Aboul Saboor P.W. Was sent to inquire as to who had called Abdul Khaliq. He came back and informed Abdul Khaliq deceased that Karim Bakhsh, Muhammad Saleem and Abdul Wahid accused were asking Abdul Khaliq to come out. Accordingly, Abdul Khaliq went out of the house and accompanied the three abovenamed persons. At about 8-00 p.m., Abdur Razzaq and Abdul Saboor P.Ws. Heard noise from the side of Panjnad Canal. They went to that side and 'in the moon-light saw Abdul Khaliq deceased being chased by Karim Bakhsh, Muhammad Saleem and Abdul Wahid accused who all had Sotis in their hands. In their view Abdul Wahid accused gave Soti blow on the head of Abdul Khaliq while Muhammad Saleem and Karim Bakhsh accused gave one Soti blow each on the back of the deceased who fell down unconscious at the spot. Fazal Haq P.W.3 was also attracted to the spot and witnessed the occurrence. The three accused ran away.
Abdul Khaliq was brought to his house where he died at 3.00 a.m., the same night. It was stated 'in the F.I.R. That Karim Bakhsh accused suspected Abdul Khaliq deceased of having illicit relations with his were Mst. Azeem Mai. It was further stated in the F.I.R. That Abdul Wahid and Muhammad Saleem accused also had illicit relations with the said Mist. Azeem Mai and for that reason the three accused murdered Abdul Khaliq.
After registration of the case, vide F.I.R. Exh.P.A., the dead body of Abdul Khaliq was sent for post- mortem examination which was conducted on 5-1-1982, at 8-00 a.m. By Dr. Abdul Hameed P.W,7.
He noted three injuries on Abdul Khaliq deceased which are as follows:- (1)Lacerated wound 1" x 1 --" is bone deep on right side of scalp, 3" above the right ear. There is no dissection; there is fracture of right parietal bone extending to frontal bone. There is a big haematoma below the scalp on the site of injury extending on the whole right side, on removing the bone there is big haematoma of clotted blood in the menings.
(2)Bruises redish, two in number on the back of chest on lower part each 4" x 1 --".
Injury No.1 was dangerous to life while the two other injuries were of simple nature. At the time of examination the dead body was found in state of putrefaction and the skin was peeling of from the back of both shoulders. In the opinion of the Medical Officer, the injuries had been caused by blunt weapon. Injury No.1 was sufficient to cause death in the ordinary course of nature. It had caused fracture of bone of head with bleeding into sub-dural and sub-arachnoid space. The time between injuries and death was about 12 hours and between death and post-mortem was 48 to 72 hours.
The accused were arrested and on 10-1-1982, led to the recovery, of their respective Soties. No blood-stained earth was recovered from the place of occurrence. The accused were challaned after investigation.
3. The prosecution during the trial examined seven witnesses all. Abdur Razzaq P.W.1, brother of the deceased, Abdul Saboor P.W. Son of the deceased and Fazal Haq P.W.3, nephew of the decease were examined as eye-witnesses in this case. The medical evidence was furnished by Dr. Abdul Hameed P.W.7 as given in detail above. Abdur Razzaq P.W.1 also witnessed the recoveries of three sticks from the --accused. These recoveries are of no consequence because the sticks, were not found to be stained with blood. Mushtaq Ahmad A.S.1. P.W.5 investigated the case. The evidence of the remaining witnesses was of formal nature.
The accused when examined under section 342, Cr. P. C. Denied the charge and pleaded innocence. Karim Bakhsh accused did not produce any evidence in defence. Muhammad Saleem and Abdul Wahid accused examined Hafiz Abdul Ali D.W.1, Manzoor Ahmad D.W.2 and Mehr Nabi Bakhsh, Inspector D.W.3 in their defence. The two defence witnesses stated that they had gone to offer condolence to the house of the deceased and at that time it was stated by the persons present there that Karim Bakhsh accused had committed the murder of Abdul Khaliq; on account of illicit relations with Mst. Azeem Mai and that the other two accused were not named as the assailants of the deceased. Mehr Nabi Bakhsh D.W.3 stated that. Muhammad Saleem and Abdul wahid were found innocent during investigation by him.
4. We have gone through the evidence on record and have also heard the learned counsel for the appellants, learned counsel for the complainant and the State. The prosecution case rests only on the evidence of the three eye-witnesses. There is no circumstantial evidence in this case. Thus, the main questions requiring determination are as to whether firstly the three eye-witnesses saw the occurrence and secondly, even if their presence is admitted, were they able to identify the assailants of Abdul Khaliq deceased. We have minutely considered red this aspect of the case and are of the view that the witnesses did riot see the occurrence nor 'were they in a position to identify the alleged assailants of Abdul Khaliq deceased. It is prosecution's own case that each of the three accused gave only one blow each to the deceased it is also prosecution's case that the two eye- witnesses Abdur Razzaq P.W.1 and Abdul Saboor P.W.2 were present in the house of the deceased.
After they heard alarm, they went out and saw the deceased being chased by the accused.
Although these 'witnesses stated during the trial that their house was only a few paces from the place occurrence, but this fact is belied by the site plan Exh.P.H./1 which indicates that the house of the deceased was 68 Karams from the of occurrence. Similarly, the house of Fazal Haq P.W. Was 74 Karams from the spot of occurrence. It was, therefore, not possible for the witnesses to reach the spot immediately to see the occurrence. Even if they were able to leave their house immediately on hearing the alarm, they could not have identified the assailants of Abdul Khaliq from that much distance. It is claimed by the witnesses that they were able to identify the accused in the moon-lit night. Even in a bright moon light, identification of a previously known person is not possible from C beyond the distance of 20 feet. We are, therefore, not satisfied from the evidence on record that the three eye-witnesses were able to identify the assailants of Abdul Khaliq deceased.
Besides the above, we are of the view that the prosecution story was improbable. Firstly, it does not appeal to reason that Abdul Wahid, an aged person, would have illicit relations with Mst. Azeem Mai alongwith his real nephew Muhammad Saleem accused who is aged only 19 years. Abdul Wahid appellant was present in Court at the time of hearing of this appeal. In this record, his age is recorded as 35 years but from appearance he looks in his late forties. It is, therefore, improbable that both these accused would jointly have illicit relations with Mst. Azeem Mai. Secondly. If these two accused had illicit relations with Mst. Azeem Mai, they would be the last persons to take Karim Bakhsh husband of Mst. Azeem Mai with them to murder Abdul Khaliq deceased. From a perusal of the F.I.R., it appears that the complainant party knew that Abdul Wahid and Muhammad Saleem accused were having illicit relations with Mst. Azeem Mai. In that view of the matter, Abdul Khaliq deceased would never have accompanied the three accused at that odd time in the evening. He did not inform his son or brother as to where and for what purpose he was accompanying the three accused. There is nothing in evidence to indicate as to what happened in between 'the time he left his house and before the raising of alaram by him. It is also not clear as to why he went to the canal bank alongwith the accused. Two accused namely Abdul Wahid and Muhammad Saleem had enmity with the complainant party. It is admitted by Abdul Razzaq P.W.1 that Allah Wasaya father of Wahid accused had abducted Mst. Sardar Mai, a daughter of the paternal aunt of Abdul Khaliq deceased. As such it seems improbable that the deceased had accompanied the three accused. We find these are mysteries of this case. It appears to be an unwitnessed occurrence. The three accused seem to have been involved in this case on account of enmity or suspicion.
5. In view of the above discussion, we are of the view that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. Both the appeals are accordingly accepted. The three appellants Abdul Wahid, Muhammad Saleem and Karim Bakhsh are acquitted. The sentence of death of Abdul Wahid accused is not confirmed.
6. The three appellants shall be released from prison forthwith, if not required in any other case.