1. Muhammad Afzal Zullah, J.--Saif Ullah, Inayat Ullah, Muhammad Ali and Muhammad Hussain were tried by the learned Addl. Sessions Judge, Lyallpur for the murder of their co-villager Fateh Muhammad. He vide his judgment dated 15-6-1968, acquitted Muhammad Hussain and convicted the others under section 304 (II) read with section 34, P. P. C. and sentenced them to five years' R. I. each. Criminal Appeal No. 582 of 1968 has been filed by the convicts while Criminal Appeal No. 751 of 1968 has been filed by the State seeking the conviction of all the accused under section 302/ 34, P. P. C. Nazir Ahmad, the brother of the deceased has filed Criminal Revision No. 716 of 1968 with the same prayer as in the State Appeal. All the three matters are being disposed of by this judgment.
2. The prosecution case as disclosed in the statement of Nazir Ahmad P. W. 3, who is the brother of the deceased and is also the first informant, is as follows : On the day of occurrence which took place on 25-7-1967 at about 6-00 a.m. Nazir and his brother Fateh Muhammad had gone to plough the land which they had taken on lease from Barkhurdar P.
3. W.
4. It is in Square No. 50. Fateh Muhammad started ploughing the land while Nazir started clearing the Khal at some distance. He heard a lalkara given by the four accused when they were two karams from his brother. They all were carrying dangs. Fateh Muhammad started running away but at about two paces he was surrounded by the four accused. Blows were then inflicted by all of them to the deceased, who fell down. They continued giving him blows even after he had fallen down. The witness ran towards his brother to save him, but on being threatened by the accused he stood at about 10 karams and raised an alarm on which Barkhurdar, Ibrahim and Sher Muhammad, P. Ws. Nos. 4 to 6 reached the spot. They beseechedthe accused not to beat Fateh Muhammad any more on which they gave up the attack and went towards the village.
4. After having put the injured, who had become unconscious, on a cot, the witness, his brother Ghulam Qadir and Sikandar brought him to a pucca road going towards Khurhirianwala, at a point which is three miles from the spot. From there they took a tonga and when they passed in front of P.
5. S. Chak Jhumra Nazir P. W. got down and went to the P. S. and lodged the F. I.'R. Exh. P. A. at 10-00 a.m. while Qadir and Sikandar proceeded on with the injured, in the tonga, to Khurhirianwala hospital. The Police Station is at a distance of 8 miles from the spot. After lodging the F.
1. R. Nazir also went to the hospital on a bus during the examination the injured expired at 11-40 a.m. The Thanedar had also reached the hospital at about 12-00 noon from where he went to the village.
6. During the investigation dangs Exhs. P. 1 to P. 3 were recovered from Saif Ullah, Inayat Ullah and Muhammad Ali appellants. There is, however, no direct evidence to connect them with the crime.
7. Muhammad Hussain, the acquitted accused isa B.D. Member. The motive alleged by Nazir P. W. is that Fateh Muhammad deceased had illicit connections with Mst. Rasul Bibi, a sister of Muhammad Hussain, acquitted accused.
8. Dr. Ghulam Rasool P. W. 2 started examining the injured on 25-7-1967 at 11-30 a.m. When he had noticed only 5 injuries, the injured expired. He, however, continued the examination and noted a total of 29 injuries. One injury is on the fore-head, three are on the chest and the remaining injuries are on the legs, arms and hands. Dr. Ahmad Ghulam Muhammad P. W. 1 conducted autopsy on the same day at 6-30 p.m. The dead body was of a stoutly built person of 30 years of age. He confirmed the injuries noted by Dr. Ghulam Rasool and observed that there was effusion of blood on the surface of brain on the right side in an area of 4" x 3" due to the head injury. All other organs were healthy. Stomach contained some fluid like material. Bladder contained 2| ounces of urine.
9. According to the post-mortem report the large intestines contained feacal matter. The head injury was sufficient, in the ordinary course of nature, to cause death. Apart from the head injury three other injuries ; one on the right arm, one on the left arm and one on the index finger of the right hand were grievous as the underneath bones were found, fractured. All other injuries were simple. All the grievous injuries contributed to the shock. All the injuries were caused with blunt weapons. The time between injuries and death was about 5/6 hours and that between death and post mortem examination was about 7 hours. According to the doctor there was only one injury on a vital part of the body. He was of the opinion that there is very rare possibility of the survival of a person with such an injury. The duration of the injuries, according to him, could not be accurate and there could be a margin of 2 hours on either side. He accepted the suggestion that it was possible that the deceased had received injuries at about 4-00 a.m. on the morning of 25-7-1967.
10. At the trial Nazir, Barkhurdar, Ibrahim and Sher Muhammad appeared as eye-witnesses and supported the prosecution case. There is evidence about the recovery of the dangs from the three accused, but, as noted earlier they have not been connected with the crime. Muhammad Hussain, the acquitted accused was arrested on 4th of August 1967 by Akhtar Saeed Farooqui, S. I. P. W. 12.
11. According to him, he was not available before that date. There is, however, no evidence with regard to any search nor is it the case of prosecution that Muhammad Hussain was declared as absconder. The plea of all the accused at the trial was that of denial. They attributed their implication in the case due to enmity. The three appellants denied the recovery of dangs from their possession. The relationship of Mst. Rasul Bibi with Muhammad Hussain accused was accepted, but the allegation of her intimacy with the deceased was denied. Muhammad Hussain accused when examined in the committing Court explained that the case had been made against him "due to enmity and suspicion. It was given out in the village that some person killed the deceased in the small hours of the morning". About the motive he stated that the allegations were incorrect. He gave the age of his sister Mst. Rasulan as 10/11 years. When questioned as to why he remained absconder till 4-8-1967, he replied that it was incorrect ; and that he remained with the police and produced evidence of his innocence. The circumstance that Muhammad Hussain produced about 25 persons in his defence has been admitted by Akhtar Saeed Farooqi S. I. in his cross-examination.
12. The learned trial Judge disbelieved Barkhurdar, Ibrahim and Sher Muhammad P. Ws. It appears as if he had also some doubts about statement of Nazir Ahmad P. W. as well. After having resolved the same he placed reliance on his statement in so far as the three appellants are concerned. He rejected the same against Muhammad Hussain because he was of the view that Nazir had a grudge against Muhammad Hussain on account of elections. The learned Judge also remarked that Muhammad Hussain had no need of having involved himself in the case by joining the other three accused and further that only three accused, namely, Saif Ullah, Inayat Ullah and Muhammad Ali appeared before the police together and produced their respective dangs. He was of the view that if Muhammad Hussain accused had also taken part in the attack, it would have been expected of him to have appeared before the police alongwith the others. He did not exclude the possibility of false implication of Muhammad Hussain on account of Nazir Ahmad P.
13. W. having thought that the attack on his brother was at the instance of Muhammad Hussain on account of the illicit involvement of his sister with the deceased. He also took note of the fact that Muhammad Hussain had a licensed revolver. If he had taken part in the occurrence he might have used it. Considering all these circumstances, he came to the conclusion that the case against Muhammad Hussain, acquitted accused was doubtful and, there fore, acquitted him and convicted the other three under section 304 (II) read with section 34, P. P. C. on the basis of the statement made by Nazir Ahmad P. W.
14. According to the prosecution Fateh Muhammad was murdered because of his illicit intimacy with the sister of Muhammad Hussain. The defence, on the contrary, suggested that Fateh Muhammad deceased had illicit connections with Mst. Gamo daughter of Naboo Musalli. The defence also suggested that there were more than one reasons for enmity between Muhammad Hussain and his relations on the one hand and Nazir Ahmad P. W. and his party on the other, therefore, they have been falsely implicated. According to the defence the occur rence took place in the early hours of the morning when it was still dark and as the identity of the assailants was not known to the complainant party, therefore, they have named their enemies. With the above conflicting position on the question of motive it becomes necessary to carefully examine the evidence in this behalf. None of the P. Ws. is a direct witness to the alleged intimacy between the deceased and Mst. Rasulan, the sister of Muhammad Hussain. The reliance is only on "a talk in the village." Nazir and Sher Muhammad P. Ws. who are very closely related to each other, have deposed about this talk. Sher Muhammad has not made any reference to any concrete incident in which he may have heard somebody talked about the intimacy. At the trial he stated that he heard about the illicit connection three months before the occurrence while before the C. M. he had given the period as 20/25 days. When confronted with this position, he admitted that he incorrectly stated at the trial that the period was three months. Nazir P. W. however gave the name of only one person, namely, Sher son of Ilyas from whom he had heard about this illicit connection. He asserted that he had stated this fact before the C. M. and before the police but when confronted with his previous statements it was found that he had not so stated. He then admitted that when he questioned Fateh Muhammad on this issue, the latter had denied its truth ; and that he (the witness) made no further query about it. He also stated that he did not hear about it from anybody else in the village ; and that none of the accused party complained to him in this behalf. In these circumstances, it was suggested to him that it was due to the other enimities with the accused party that they had tried to. falsely implicate them and maligned Muhammad Hussain and his sister. But he denied the suggestion. He also denied the suggestion that Mst.
15. Rasulan was hardly aged 10 or 11 at the time of occurrence. According to him she was un married and was 16/17 years of age. Muhammad Hussain in his examination under section 342, Cr. P. C. however, asserted that the allegation was incorrect and that his sister was aged about 10/11. Nazir P.
16. W. admitted that Fateh Muhammad deceased was married and had "a happy life" with his wife. He also admitted that Mst. Rasulan was of good character. In these circumstances we are of the view that there is insufficient evidence on record to prove that there was any illicit connection between Fateh Muhammad and Mst. Rasulan or that there was a talk in the village about any such illicit connection or that the accused party suspected such a connection. The two witnesses who have deposed about this matter are highly interested and inimical. No implicit reliance can be placed on their bare statements in this behalf. Better evidence could have been produced. We, therefore, do not agree with the learned trial Judge that the motive' for the murder of the deceased was that he had illicit connection with Mst. Rasulan.
17. On the contrary, there is sufficient material in the cross- examination of the eye-witnesses to show that all of them were inimical to the accused party. To begin with, it is necessary to mention that Ibrahim P. W. 5, who admittedly is the maternal uncle of Nazir, specifically admitted in cross- examination that there was an "enmity" between the accused and the deceased which arose about 6/7 months before the occurrence. He did not make mention of any talk about the illicit connection between the deceased and Mst. Rasulan. The details about the enmity were not asked from this witness. Sikandar son of Mehra, a first cousin of Nazir P. W. and nephew of Shera and Ibrahim P. Ws. was defeated in the B. D. Elections by Muhammad Hussain (acquitted accused).
18. According to the prosecution, all other accused are related to Muhammad Hussain. Barkhurdar, who admittedly is the landlord of the deceased and his brother Nazir and has thus strong interest in them, along with his father, uncle, a cousin and another relation, was convicted and sentenced to three years' R. I. for the abduction of Mst. Saidan, the daughter-in-law of Bhabal, a first cousin of Muhammad Hussain accused. Barkhurdar, however, denied the suggestion that his daughter Mst.
19. Rasulan was abducted by Muzaffar brother of Inayat accused, about six months before the occurrence; and that she was restored to him through a Panchayat 10 or 12 days after the abduction. There is yet another item of enmity, namely, that Ghulam Qadir, the brother of the deceased, was injured by Bahadur and Mehra. Sher Muhammad admitted that Bahadur is the first cousin of Muhammad Hussain accused but denied that there was any such beating. On the contrary, Ibrahim P. W. admitted that there was such a beating and a case was registered. Both of them, however, denied that they appeared as prosecution witnesses. The fourth proved and known item of enmity is that Mst. Sabi, a first cousin of Nazir P. W., was divorced by Ghulam Nabi, a maternal uncle of Saifullah appellant, about two years before this occurrence through Union Council. There are suggestions of other enmities also, but the above circumstances which have been proved are enough to show that there was long-standing enmity between the parties. Barkhurdar, though not related directly to the complainant, yet admittedly was their partisan on account of his own enmity with the accused party. In these circumstances, the defence suggestion that Sikandar was put up as a rival candidate against Muhammad Hussain is not at all well-founded and there is reasonable possibility of its being true. Barkhurdar is a Lambardar and there is nothing unusual in the further suggestion by the defence that he was the leader of the complainant party.
20. There were two factions in the village and the reasons of enmity are such that there is danger of false implication. Admit tedly, there is no independent corroboration of the statements of the eye- witnesses ; three of whom are, admittedly, very closely related to the deceased and the fourth one is connected with him due to the lease of land and party faction in the village' Rather he appears to be the leader of this faction. The only circumstance that the three appellants are said to have produced three sotis which it has not been established, were used in the occurrence because they were not blood-stained, is no corrobora tion in this case. On this ground alone, the accused are entitled to benefit of doubt.
21. There are other circumstances in the case which show that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. It is proved beyond any doubt that the F. I.
22. R. was not recorded at 10 a.m. at the police station. On the contrary, according to Barkhurdar P. W. the statement of Nazir P. W. was recorded at the place of occurrence which was read ovre to him and thereafter he thumb-marked it. This admission is in exatnination-in-chief. The police reached the place of occurrence at 5-40 p.m. (P. W. 12). Thus it appears that the F. I. R. was delayed by about 12 hours and that it was recorded after some preliminary investigations by the police at the spot.
23. This supposition is further strengthened by other facts. According to Nazir he lodged the report at the police station when he was on his way to the hospital. He also asserted that the injured and others proceeded to the hospital while he separated from them at the police station which fell on the way. On the oilier hand, there is enough material to show that Nazir accompanied Fateh Muhammad to the hospital. He admitted in cross- examination that when he reached the hospital, he found his brother present in a room and that the doctor started examining his injuries after his arrival at the hospital. He also admits that Ghulam Qadir and Sikandar who, according to his earlier statement, had gone with the injured, were not present in the hospital. He gave a flimsy excuse that both of them after having left the injured in a very precarious condition had gone to the bazar to bring ice. The doctor started examining the injured at 11-30 a.m. The medical report (Exh. 1J. J.) clearly shows that Nazir P. W. had accompanied the injured to the hospital and it was on his request that the injured was examined as a private patient on his certification that lie had not been examined earlier. In these circumstances, we agree with the assess ment of the learned trial Judge that the F. I. R. was recorded [Vol. V after the death of Fateh Muhammad and that Nazir P. W. has told a lie in this behalf. This circumstance by itself even if not enough to discard the prosecution version, in the background of the enmity between the parties and factions in the village is enough to support a reasonable possibility that the names of the accused were mentioned in the F. I. R. as a result of afterthought.
24. The time of occurrence, according to the eye-witnesses, is after sunrise (at about 6 a.m.), According to Nazir, he and the deceased were present at the time of occurrence because his brother was ploughing the land and he was clearing a khal in the same field. In the F. I. R., however, he had stated that he was straightening a banna. It is in cross-examination of Slier Muhammad P.
25. W. that on the night preceding the occurrence it was the turn of Fateh Muhammad and Nazir to irrigate their land and they did irrigate their fields in Square No. 50. He admitted that a wet khal could not be cleared. His assertion that the fields were irrigated through a different khal does not appear to be correct because if there was another khal to take water there was no reason why Nazir would be clearing another khal. Thus keeping in view these circumstances, the discrepancy in the statement of Nazir and the F. I. R., as to whether he was clearing the khal or was correcting the banna, becomes very significant. It throws a considerable doubt on his assertion that he was present at the spot at the time of occurrence. On the other hand, there is a possibility that the deceased might have been irrigating his field during the night and might have been killed in the early hours of the morning in his land. This supposition about time is strengthened by the fact that the stomach of the deceased contained fluid material while his bladder contained 2| ounces of urine. The post-mortem report shows that the large intestines contained faecal matter. This data indicates that the deceased had taken no food even in the form of lassi or milk in the morning (because that would not have remained fluid in the stomach) and that lie had neither passed urine nor evacuated his bowels. Keeping in view the duration of injuries the doctor has visualized the possibility that the deceased might have received the injuries at about 4 a.m. on the morning of 25-7-1967 when, it is not contested, it would be still dark. Not only this, but there is also another very significant omission in the prosecution evidence. The deceased was allegedly ploughing the land when he was attacked. Neither in the statement of the Patwari nor that of the Investigating Officer, there is any indication that some land was found ploughed at the spot. No ploughing instruments were taken into possession from the spot. Similarly, the kassi with which Nazir claimed to have been clearing the khal was also not taken into possession. It is, therefore, legitimate to presume that there is a reasonable possibility that the deceased had either gone to evacuate himself in the field (at least, one other eye-witness has admitted that he had gone out of the village to ease himself, therefore it is not improbable that the deceased also might have gone to ease himself) or he was there in the field after he had irrigated the land. The story of his ploughing the land and Nazir clearing the khal appears to be an afterthought and was introduced in the F. I. R. because it was registered at a late stage. If the above possibility is kept in view, the claim of all the eye-witnesses with regard to their presence at the spot becomes doubtful.
26. There is yet another very important circumstance in this case. If we believe Nazir P. W., he had a kassi in his hand. The deceased, if he was ploughing the land, is most likely to have carried a whip or stick in his hand. There are three other persons from their party, namely, Barkhurdar, Sher Muhammad and Ibrahim, who were present near the place of occurrence. It may be mentioned that all the witnesses or discrepant on the question of their distances from the deceased, the shortest distance being about 10 karams. It is the prosecution case that the accused were seen at some distance from the deceased when they uttered a lalkara to warn him and further that the deceased tried to run but he was surrounded by the culprits. At the stage of lalkara, there are live persons (including himself) of the party of the deceased ; three of them very closely convicted with him and one of them being his brother. The accused party numbered four. None of them appears to have made any attempt to resist the attack. There was, admittedly, a kahi and possibly a stick with this party. They could, at least, put up a resistance. The witnesses would have us believe that the brother of the deceased stood at ten karams merely on the asking of the accused to do so in spite of the fact that he carried a kassi and that all others just walked, and did not run, towards the deceased and then they continued beseeching the assailants while the latter continued giving blows to the deceased. It is most unimaginable picture. The eye-witnesses have tried to create a sham occurrence. The accused were not armed with any firearms nor with any sharp-edged weapons. The attack could have very well been resisted if all the eye-witnesses were present there.
27. In any case, their connection with the deceased was such that they must have physically intervened, at least, during the sustained beating which resulted in 29 substantial injuries to the deceased. It must have taken some time for the allegedly four assailants to cause these injuries.
28. We are of the view that the occurrence was not seen by these witnesses ; other wise their conduct would not have been the same as explained by them. In this connection, it is also singificant to point out that according to Nazir P. W. there is a residential dhari at a distance of 25 karams from the place of occurrence. None is shown to have come from this dhari. Some argument was raised that there is some relationship of the eye-witnesses (and also of the residents of that dhari) with the accused, therefore, the eye-witness account should be believed. In view of all the circumstances discussed above, we do not attach any importance to this argument. There is enough evidence, as noted above, to show that the parties were inimical to each other. The relationship, if any, had gone in the background. The witnesses do not admit that any body else came at the spot. Therefore, the argument that the residents of the dhari are related to the accused is of no avail to the prosecution. The fact that no independent person came from the nearby fields and none came from the dhari on the one hand shows that the time and mode of occurrence given by the eye-witnesses is wrong and on the other that if the time of occurrence is after sunrise the persons who might have seen the occurrence have been withheld and only interested witnesses have been produced with the only conclusion that others would not have supported the prosecution case.
29. We do not consider it necessary to repeat here all the infirmities in the prosecution evidence noted by the learned trial Judge on the basis of which he rejected the statements made by Barkhurdar, Ibrahim and Sher Muhammad P. Ws. and doubted in some matters, the statement made by Nazir P, W. Those circumstances, in our view, are in addition to what we have discussed above. The learned Judge has noted at more than one place that the statements of the three eye-witnesses other than Nazir P. W. did not inspire confidence. We are of the view that that statements made by all these eye-witnesses do not inspire confidence. The prosecution has failed to prove the case against the appellants beyond reasonable doubt. We, therefore, accept the appeal of Saifullah, Inayatullah and Muhammad Ali and acquit them. The State appeal and the revision by Nazir are dismissed. .