Muhammad Afzal Cheema, J.--Mubarak Ali, appellant, a Driver in Military Transport, who, at the relevant time, had come to his village Aheer, Police Station Gujar Khan, District Rawalpindi, on two months' leave, was tried for the murder of one Abdul Hamid and having been found guilty by the learned Sessions Judge, Rawalpindi, was convicted under section 302, P .P. C. with an award of sentence of death vide judgment dated the 26th of January 1971, now under appeal. His case lias also been referred to us under section 374, Cr. P. C. for the confirmation of the death sentence. This judgment will dispose of the appeal as well as the Murder Reference.
2. The facts of the prosecution case, as revealed in the F. I. R. (Exh. P. A) lodged by Muhammad Riaz a collateral of the deceased, and later found to be established at the trial, briefly arc that on the 4th of November 1969, at about evening time (Nimashanw'ela) the complainant and the deceased were sitting .ogether in their common courtyard when the appellant allegedly dsited them and suggested to the deceased to participate in the nelmdi ceremony of Abdul Aziz son of Mistry Muhammad Mam, a friend of the appellant. Although the relevant reference n the F. I. R. is rather confusing, yet it appears that according o the complainant's version he and the deceased stayed behind fliile the ladies of the family left to participate in the ceremony, ubsequentiy, at about 7 p.m. the appellant reappeared and once gain requested the deceased to accompany him with a view to- participate in the ceremony. Significantly enough, the appellant carried a danda (Exh. P. 13) which was later recovered at his instance and found to be blood-stained. At the time of his subsequent visit, the complainant and Mst. Tazeem Begum (P. W. 8) alone happened to be present in the house. The deceased was persuaded to accompany the appellant and left with him. After a short while, Muhammad Riaz and Mst. Tazeem Begum P. Ws. heard an alarm and ran out of their house towards the land of Muhammad Latif adjoining the village abadi in the south. They found the appellant giving danda blows to the deceased shouting at the same time that he had taught him a lesson for carrying on with his mother and being an Army personnel he would not spare him.
Seeing them drawing near the appellant left the deceased saying that he had finished him and they better carry him home. According to the F.
1. R. the two P. Ws. lifted him home and on a closer examination found that he had sustained two injuries on the forehead, one on the head oh the left side, two on the left cheek, and two on the back of the head below the left ear. The deceased was removed to Gujar Khan Hospital in a state of unconsciousness, where he was medically examined.
3. Muhammed Riaz P. W. then left for the police station 100/150 yards away from the hospital and lodged the report (Exh. P. A.) at 11-15 p.m which was recorded by Saeed Ullah Sub-Inspector (P.W.11) on the basis of which a case was registered under section 307, P. P. C. in the first instance.
4. Abdul Hamid deceased, while still alive was examined by Dr. Muhammad Aslant (P. W. 1) at about 10 p.m. the same night who vide his medico-legal report (Exh. P. L) found the following injuries on his person:--
(1) A lacerated wound 2" xl'x on left side of forehead.
(2) A lacertated wound lJ'x"xl|'on left side on forehead below injury No. 1.
(3) A lacerated wound 1* x x ' on left side of head.
(4) A lacerated wound 1|" x}/ x i" on left cheek.
(5) A lacerated wound x x i" on left cheek under lip.
(6) A lacerated wound 2" x x below left pinna.
(7) A lacerated wound 2J" x l'x on outer part of lei pinna which had been completely excised.
Injuries Nos. 1, 3 and 6 were considered dangerous to life. Injui No. 7 was grievous, the rest were simple, all having been cause with a blunt weapon within a duration of three to four hours. T1 condition of the deceased, who all along remained uuconsciou was declared serious as his pupils were restricted and acti slugglishly. Abdul Hamid expired at 4-30 p.m. on the nc evening and intimation was sent by the doctor to the local poli vide letter (Exh. P. J). Earlier, a query (Exh. P.G.) addressed him regarding the fitness of the deceased or otherwise to make statement was replied by the doctor in the negative v endorsement Exh. P.G./l.
5. Post-mortem examination was conducted by the same doctor on the 6th of November 1969 at 8 a.m. who vide post-mortem report Exh. P. M., found on internal examination that the left temporal bone was fractured into pieces, a linear fracture going up to the top of the head. Base of the skuil was also fractured on the left side, membranes of the brain were congested. Brain matter was injured on the left side and pieces of bone were sticking inside the brain. The stomach was healthy and contained digested food. Large intestines were full of faecal matter and gases. Peritoneum, pleura, liver and spleen were congested. Bladder was empty. The left lower jaw and left axilla were fractured into pieces. Death, in the opinion of the doctor, was due to shock and cerebral haemorrhage as a result of the injuries Nos. 1, 2 and 6 which were caused by a blunt weapon and were individually sufficient to cause death in the ordinary course of nature. Time between injuries and death was about 22 hours and between death and post-mortem, about I6 hours. In cross- examination he stated that he had not prepared the medicolegal report on the prescribed register as it was not available and that he had examined the deceased as a private case. He farther stated that the absence of injuries on the hands and other parts of the body of the deceased indicated that he had not put up any resistence and any one of head injuries could have rendered him unconscious.
On receipt of information regarding the death of Abdul Hamid, Saeed Ullah Sub-Inspector (P. W. 11) repaired to Gujar Khan Hospital and prepared the inquest report (Exh. P.K.). He sent the dead body for post-mortem examination under the escort of Lai Khan F.C. (P. W. 3) who on the 6th of November 1969, on return from the mortuary, handed over blood-stained clothes of the deceased, shirt (Exh. P. 1), Shalwar (Exh. P. 2) and Chadar (Exh. P. 3) which were taken into possession vide memo. Exh. P. B.
Muhammad Din A. S. I. (P. W. l2) was deputed to investigate the case who claimed to have reached the spot at 2 a.m. in the early hours of the next morning and with the help of a gas-lamp secured blood-stained earth from the spot vide memo. Exh. P.C. Significantly enough, a purse (Exh. P. 5) containing a ten-rupee note (Exh. P. 6), one-rupee note (Exh. P. 7), two cinema tickets (Exh. P. 8/1-2), one gate-pass (Exh. P. 9). two chits (Exhs. P. 10 and P. 11) and three photographs of the appellant (Exh.P. 12/1-3) were recovered from the spot and taken into possession vide memo. Exh. P. D. The appellant was arrested on the 7th of November 1969 and he led to the recovery of a bloodstained danda (Exh. P. 13) the blood on which was found to be of human origin vide reports of the Chemical Examiner and Seroligist (Exh. P. N. and P. O.). The A. S. I. got prepared the site-plan (Exh. P. F.) by Muhammad Sarwar Patwari P. W. 6 since it was a single-accused case and the appellant was arrested within a couple of days of the registration of the case, the investigation presented no complications and the appellant was sent up on a charge of murder and was tried on committal.
7. The position taken up by the appellant at the trial was that on the night of the occurrence, his father's sister's son had invited him to dinner and on the following morning a Chowkidar came and took him to the police. Explaining his false implication he stated that his father died in 1965 and that he had four younger sisters and two younger brothers who were threatened by Muhammad Riaz P.
W. to be turned out of the house, that the brother of Muhammad Riaz P. W. filed a suit against them and that the appellant had also sent an application against him through his Officer commanding that he harassed his brothers and sisters in the village. He admitted that at the relevant time he had come to the village on leave when some one had killed the deceased. He did not examine any witness in defence and confined himself to the production of trial Cour'ts judgment (Exh. D. 6) and appellate Court's judgment (Exh. D. D.) in a pre-emption suit filed by Muhammad Razzaq, a brother of Muhammad Riaz complainant, against Abdul Wahid, father of the appellant. Both the suit and the appeal were dismissed by the Courts.
8. Having perused the impugned judgment we find that the learned trial Judge placed full reliance on the ocular testimony of Muhammad Riaz and Mst. Tazeem Begum, and believed the alleged motive as also the evidence of recoveries furnishing the purpose of corroboration.
9. Having heard the learned counsel for the appellant we are clearly of the view that the judgment of conviction cannot be maintained for more than one reason. In the first instance, there is no convicting evidence on the point of motive. A crude attempt was, however, sought to be made by the prosecution to examine Muhammad Yasin (P. W. 9), who was not examined till more than a month after the occurrence and yet he stated before the committing Magistrate that his statement was recorded by the police only 3/4 days after the occurrence though he was constrained to admit at the trial that his statement was recorded about five weeks thereafter. This witness, who has admittedly relationship with the deceased in the sense that his sister was married with the deceased and vice versa, would have us believe that about 1\ months prior to the occurrence he happened to find the appellant in the house of Muhammad Riaz and in his presence he told the latter that he should tell Abdul Hamid deceased to desist from carrying on with his mother and that in his presence the deceased satisfied the appellant that his suspicion was unfounded. Although it would be difficult to lay hands in every case on a convincing type of evidence of a motive of this nature, yet, the alleged motive does not fit in with the prosecution case and ir particular the genesis of the occurrence. In fact, from a perusa of the initial report lodged by Muhammad Riaz, P.
W. on< cannot avoid an impression as if the appellant was very friend!; with the complainant and the deceased and in view of tha cordiality had not only suggested to them to participate in th mehndi ceremony of his friend Abdul Aziz, but had als persuaded the deceased to accompany him on that pretex Surprisingly enough, the prosecution would have us believe thi while on the one hand he not only suspected the deceased of carrying on with his mother, but also carried a danda at the relevant time. The deceased readily agreed to accompany him without sensing any danger at his hands. But coming to the prosecution version as sought to be established by the testimony of Muhammad Riaz and Mst. Tazeem Begum of whom the former was a collateral of the deceased and the latter a sister's daughter, we find that the prosecution version suffers from several infirmities. Admittedly, the occurrence took place at 7 p.m. the sunset time at Lahore on the 4th of November 1969 being 5-13 p.m. which corresponded to 23rd of the lunar month, the moon-rise being 4 a.m. As such, on a dark wintery night at 7 p.m. it can be safely presumed that the visibility would be rather poor so as to enable the identification of an accused person. Of course, it could be argued that having regard to the promptitude with which the matter was reported at the police station nominating the appellant as the solitary accused with little chances of substitution he would have been identified but there is a host of doubtful circumstances which goes a long way to belie such an assumption. In the first instance, having regard to the account given by the two P. Ws. in regard to the situation of their house where they sat in the courtyard at the relevant time, the place of occurrence in the field of one Muhammad Latif, at a distance of about 100 yards, adjacent to the village abadi towards the south, the inconsistent directions given by them in respect of the emanation of the noise. We find that the account does not fit in with them. According to the inconsistent statement of the two P. Ws. the outcries of the deceased emanated from the north-east and the eastern direction (Charda), although a perusal of the site-plan Exh. P. F. clearly shows that the place of occurrence shown at point No. 1 the field of Muhammad Latif was towards the south of the village abadi. Again, the P. Ws. had to admit that in between the place of occurrence and the place where they sat, there was a man-high banna, yet they would have us believe that a portion of it had been demolished and as such did not obstruct the view. According to the Patwari the field wherein the occurrence took place was at a much lower level than the village abadi and in particular the place from where the witnesses had seen the occurrence, I.e. 18 to 20 yards. Having regard to the state of visibility it is difficult to believe that the two witnesses who were none else than the near relations of the deceased should alone have been attracted to the spot of all the persons in the abadi, including the residents of the neighbouring houses and none of them came forward. Surprisingly enough, in their police statements although the P. Ws. would have us believe that they bodily lifted the deceased in a state of unconsciousness and brought him to the house and yet going completely back on the police statements with which they were duly confronted they stated at the trial that he was placed on a cot and was removed to the house in the first instance before he was taken to the hospital. Mst. Tazeem Begum was not in a position to say as to who had carried the deceased to the house on the cot or who were the persons who reached immediately after the occurrence, They were keen to suppress the established fact of civil litigation between the father of the appellant on one side and brother of Muhammad Riaz complainant on the other.
10. But assuming that these considerations would not per se be good enough! for the total rejection of the testimony of the two P.Ws, and should at best call for independent corroboration, we find that the evidence of recoveries relied upon in this regard by the learned trial Judge is incredibly false and simply worthless. In the first instance, although the A. S. I. would have us believe that at the time of his arrival in the early hours of the next morning he inspected the spot with the help of a gas-lamp and recovered blood-stained earth as also purse (Exh. P. 5) yet we find that he did not prepare any note of his inspection giving specific reference to the recovery of the purse which according to the appellant was taken by the police from bis possession at the time of his arrest on the 5th of November 1969. Significantly enough, the site plan itself makes no reference to the place from where it was recovered. It was suggested to the A. S. I. that after having returned from the spot on the 7th November, he had prepared all the zimnis relating to 5th, 6th and 7th in one sitting and had fabricated the evidence of recovery of the so-called purse which would be ordinarily available with any person. On being questioned the A. S. I. stated in cross-examination that he had prepared a note which was subsequently torn, and on the top of it, the only witness of recovery produced by the prosecution in this regard was Muhammad Zar (P. W. 10) who having admitted his relationship with the deceased before the committing Magistrate completely went back on his statement so as to give an impression of a disinterested witness. He was a resident of an adjoining village situated two miles away. Apart from the discrepancies as to the mode and time of his arrival at the spot and the hospital, the duration of having remained associated with the investigation of the case he stands condemned by his own admission that he was a stock witness of the Police. All this would go a long way to show that the evidence of recoveries is unreliable and could not be employed for the purpose of corroboration. With this estimate of the straightforwardness or otherwise of the investigation, we are not inclined to rely on the recovery of the so-called danda, which was sent to the Chemical Examiner on the 14th of November, seven days after its recovery. As stated earlier, the position taken up by the appellant was that on the relevant night having dined with his cousin (aunt's son) he was summond by the police on the next morning i e., 5th November 1969, and remained associated.
11. The upshot of the discussion, therefore, is that in view of the unconvincing testimony of Muhammad Riaz and Mst. Tazeem Begum, relations of the deceased, which does not inspire confidence, coupled with the lack of unimpeachable evidence of corroboration and further having regard to the fact that it was a case of night occurrence and should have attracted other natural witnesses from the immediate neighbourhood to the spot, none of whom is stated to have seen the occurrence, we are not satisfied that the prosecution has succeeded in bringing home the guilt to the appellant beyond reasonable doubt. Accordingly, we hold that he is entitled to the benefit of doubt. Consequently, the appeal is allowed and his conviction and sentence are set aside. He shall be released from jail provided he is not required to be detained in any other case. .