Appellants Allah Bakhsh and his brother Saghir Sons of Parri, residents of Umar Kot Police Station Rojhan, District D.G. Khan were tried by the Sessions Judge, D.G. Khan for the murder of Jangal resident of Village Prewar; vide judgment, dated 13-3-1978 they have been convicted and sentenced to imprisonment for life, each and fine of Rs.1,000, each or default to undergo further rigorous imprisonment for one year, each to half of the fine, if realised, was ordered to be paid to the heirs of the deceased. They have appealed.
2. The occurrence allegedly took place on 13-9-1975 at 11-00 a.m. Near watercourse Rojhan Umar Kot Branch. Deceased was killed at the spot. Statement Exh. P.D. Of Yar Muhammad P.W. Was recorded by Sharif Hussain A.S.I., Police Post Umar Kot at 2-00 p.m. F.I.R. Exh. P. D. / 1, on the basis of this statement was prepared by Qadir Bakhsh Muharrir Head Constable Police Station Rojhan at 4- 00 p. m.
3. Prosecution case briefly stated is that Mst. Gullan sister of the appellants was divorced by deceased Jangal. From re-appraisal to this, deceased was waylaid when he was going in the company of P.W. Yar Muhammad, Mst. Jindo and his relations Allah Ditta and Qalandar Bakhsh (the latter two were given up being as unnecessary) from Village Umar Kot to Village Qadra. Appellant Allah Bakhsh had a hatchet while appellant Sagheer, stately, had a Lathi with him. Both the appellants shouted at the deceased that he would not be left alive and simultaneously gave him blows with their respective weapons on his head and neck Yar Muhammad and Allah Ditta P.Ws.
Tried to rescue him but the assailants declared that he (deceased) was being given the lesson for his having divorced their sister and in case they (the P.Ws.) had come near, they would be dealt with in the same way Jangal deceased as a result of these injuries fell down. The alarm raised by the P.Ws. Attracted Qalandar Bakhsh (not examined) who came running to the spot. At this both the assailants ran away with their respective weapons.
4. Sharif Hussain A.S.I. Investigated into this matter. After recording the statement of Yar Muhammad P.W., he sent the same to the police station for the registration of the formal case and himself proceeded to the spot. He held inquest into the death of Jangal and drew up a report Exh.
P.L. And injury statement Exh. P.K. In respect of the dead body. The dead body was sent to the mortuary for post-mortem examination. He collected blood-stained earth from the spot and made it into a sealed parcel, vide memo. Exh. P.J. Both the appellants were arrested by him on 15-9-1975.
They were wearing blood-stained clothes. He got removed turban P. 4, shirt P. 5 and Shalwar P.6 from the person of Allah Bakhsh appellant and made them into a sealed parcel, vide memo. Exh.
P.E. Similarly, shirt P. 7, Chadar P. 8 were got removed from the person of Saghir appellant and were made into a sealed parcel, vide memo. Exh. P.F., Appellant Allah Bakhsh led to the recovery of blood-stained hatchet on the same day from his residential house. This was taken into possession, vide memo. Exh. P.G. Appellant Saghir, similarly, led to the recovery of blood-stained Lathi P. 10 which was secured, vide memo. Exh. P.H.
5. Dr. Sher Muhammad conducted the post-mortem examination on the dead body of the deceased. He was found to have sustained nine incised wounds and three abrasions. The injuries as described fully in the judgment of the learned Sessions Judge were on the right side of the head, on the back of the neck; on the back of the right shoulder, on the forehead, on the bridge of the nose and on the left upper eye-lid. Injuries Nos. 1 to 6 were caused by sharp-edged weapon while injuries Nos. 7, 8 and 9 by a blunt weapon. Injuries Nos. 1, 2 and 3 were grievous while the rest were simple. These injuries were sufficient to cause death in the ordinary course of nature.
Death in the opinion of the doctor was- caused due to shock and haemorrhage resulting in the heart and respiratory failure on account of these injuries. Time between death and injuries was immediate and between death and post-mortem about 24-30 hours.
6. Appellants when examined at the trial pleaded not guilty and refuted the allegations. They took up the position that their sister Mst. Gulan was married to the deceased. A suit for dissolution of marriage was instituted which was decreed. The deceased party had a grudge against them and for this reason they had been falsely implicate in the crime.
7. Prosecution at the trial relied on the ocular evidence given by Yar Muhammad and Mst. Jindo P.Ws., the recoveries of incriminating articles at the instance of the appellants and finally the medical evidence Learned trial Judge accepted the prosecution case in its totality. He noticed that both the appellants were real brothers and of young ages They had faced a protracted trial and remained confined for three years. In the matter of sentence, he took a lenient view and awarded them the aforementioned sentences convicting them under section 302/34. P.P.C.
8. I have heard the learned counsel for the parties and have gone through the record. Ocular testimony in this case is provided by Yar Muhammad and Mst. Jindo P.Ws. Yar Muhammad is the cousin of the deceased while Mst. Jindo is niece and also sister-in-law of Yar Muhammad P.W. In the F.I.R. Recorded at the instance of Yar Muhammad P.W they have taken up the position that Mst.
Jindo had come to the house of her parents at Umar Kot and on the day of occurrence the deceased, Yar Muhammad P.W. And Allah Ditta were going to leave her in the house of her husband at Qadra. At the trial, however, Yar Muhammad P.W. Has come out with a different version.
He had stated that Jangal deceased and Mst. Jindo were going to Kot Jamal Shah and he had joined them at Village Umar Kot. He explains that he had to recover some money from certain person in Kot Rah Jamal Shah. He maintains that even before the police he has stated that Mst.
Jindo and Jangal deceased were going to Kot Rah Jamal Shah and denies to have stated that they were going to Village Qadra. Mst. Jindo, however, has taken up the position that she was going alongwith her uncle Jangal deceased and P.W. Yar Muhammad and Allah Ditta to Village Qadra.
She stated that her husband had been living in Village Qadra two years prior to the occurrence. Yar Muhammad and Allah Ditta P.Ws. Had accompanied them, i.e. Mst. Jindo and Jangal deceased, as they had some personal work in Village Qadra. The two witnesses, therefore, who ex facie seem to be chance witnesses are not consistent on the aspect as to why they were accompanying the deceased at the time of the occurrence. Yar Muhammad P.W. Has given more details of the stated motive. He has admitted that Mst. Jindo had filed a suit for dissolution of marriage in' civil Court at Rajan Pur about 14 years before. She was able to obtain an ex parte decree against Jangal deceased. After obtaining divorce, from the deceased she had contracted a second marriage. Mst.
Azmat a sister of Mst. Jindo was married to Ghulam Haider brother of the appellants. Prior to the suit filed by Mst. Gulan, she had also filed a suit for dissolution of marriage with Ghulam Qadir and had obtained an ex parte decree. According to the witnesses of the spot, the deceased had been given three Dang blows by appellant Saghir and hatchet blows had been given by Allah Bakhsh appellant. As a matter of fact, as stated by Mst. Jindo, it was Saghir who had delivered the first Lathi blow which felled him to the ground. Allah Bakhsh delivered hatchet blows thereafter. According to the medical evidence, the injuries by blunt weapon were just abrasions. One is an abrasion 3" x 1" an the forehead, the other an abrasion 3" x --" on the bridge of nose and lastly an abrasion 1/3" x -- " on the left upper eye-lid. Doctor in his statement opined that these injuries could be the result of a fall. Even otherwise the blow by a Lathi given by a young man would have caused more harm. For all these reasons I feel that it is one of those cases in which before accepting the ocular testimony I should look for further corroboration.
9. Prosecution has relied on certain recoveries. These recoveries are the blood-stained clothes of the appellants and blood-stained hatchet at the instance of appellant Allah Bakhsh and blood- stained Dang at the instance of appellant Saghir. These recoveries have been witnessed by Muhammad Siddiq P.W.
8. He did not support the prosecution at D the trial and was declared hostile. The Investigating Officer alone, therefore, is the witness of these recoveries. I am not prepared to place reliance on the solitary statement of the police official for more than one reasons. Firstly, because the public witness examined has denied these recoveries; and secondly that a lot of imagination is required to accept that till 15-9-1975, the appellants would still have on them blood-stained clothes, as the occurrence having taken place on 13-9-1975. It would, therefore, be unsafe to accept these recoveries as a corroborative evidence. Motive hardly supplies the sufficient corroboration to sustain conviction. It is a double-edged weapon and very weak item of evidence in the whole body of proof. As laid down in Wasiullah v. Mirza Ali and others PLD 1983 SC 251 an exceptionally I strong evidence is required to corroborate the interesting testimony.
10. For all that has been stated above. I am of the view that the prosecution has not been able to establish its case against the appellants beyond a reasonable doubt. I, therefore, giving them benefit of doubt, accept this appeal, set aside the conviction and sentences recorded. They will be set at liberty forthwith if not required in any other case.