This Criminal Appeal No. 814 of 1977, arises from the judgment of learned Additional Sessions Judge, Sialkot, whereby he on 9-8-1977 while acquitting Allah Dad alias Dad, Fazal Hussain and Muhammad Boots co-accused of the charge, convicted Muhammad Yousaf appellant under section 302, P.P.C. For causing the death of Ejaz and sentenced him to imprisonment for life and a fine of Rs.2,000 in default thereof one year R.I. With the direction that half of the fine when recovered be given to the legal heirs of the deceased.
2. The occurrence took place on the night between 15/16-3-1973 in the Behak of one Allah Ditta situated in village Kharal at a distance of ten miles from Police Station Sambrial. The F.I.R. Exh. P.I.
Was lodged by Muhammad Boots (not produced) at the Police Station at 11 a.m. On 16-3-1973 which was recorded by Hameed Gul P.W. 15.
3. The motive as alleged by the prosecution was that Muhammad Boots complainant demanded the hand of Shahnaz Begum daughter of Allah Ditta for his son Ejaz deceased to which Allah Ditta agreed. Two months before the occurrence, Allah Ditta father of Mst. Shahnaz Begum took Ejaz with him for helping him in cultivation. Muhammad Boots complainant brought back his son Ejaz to his house about 10/12 days before the occurrence. About 8/9 days before the occurrence, Allah Ditta father of Shahnaz Begum went to the village of Muhammad Boots complainant and brought back Ejaz deceased with him. The acquitted co-accused also wanted the hand of Mst. Shahnaz Begum- for Muhammad Yousaf appellant. It so happened that 5/6 days before the occurrence, Mst.
Rasoolan mother of Muhammad Yousaf appellant visited the house of Allah Ditta for solemnizing engagement of her son with Mst. Shahnaz Begum. Allah Ditta the father of Shahnaz Begum however flatly refused to engage his daughter with Muhammad Yousaf appellant. On this the appellant and the acquitted accused threatened that they would not spare Ejaz alive, hence this occurrence.
4. As far the main occurrence it has been stated that at the eventful time, Ejaz was sleeping in the Behak of Allah Ditta where he was killed by unseen persons. In the morning, Muhammad Boots complainant went to the village of Allah Ditta in order to take back his son Ejaz deceased to his house. On reaching there he found Ejaz lying murdered in the Behak of Allah Ditta. He went to the police station and lodged the F.I.R. Wherein he suspected the appellant and the co-accused us murderer of his son. During the investigation, police collected evidence of waj-takar and conspiracy between the appellant and the co-accused to kill the deceased. So the appellant and the co-accused were arrested and incriminating articles were recovered from them. After investigation. The challan was submitted in the Court. Dr. Farooq Ahmad P.W. 1 conducted post- mortem examination on the dead body of Ejaz at 12.05. He found the following injuries on his person:- (1)One incised wound --" x --" on the upper part of right pinna in root.
(2)Internally connected to another incised wound -- " x -- on the right side of the head -- " above and to the back of injury No. 1.
(3)One incised wound 2 --" x --" on the right side of forehead near hair line transversely situated.
The underlying bone was fractured and brain was coming out.
(4)One incised wound 1 --" x --" on the outer canthus of right eye longitudinal in direction, underlying bone was fractured (5)One incised wound 3/4" x --" on the forehead in its middle longitudinal in direction bone was fractured, communicated internally to another wound (1/4" x -- " under the skin -- " above the present wound.
(6)One contused wound -- " x --" on the forehead right side above the eye brow. A piece of bone was coming out of wound edges.
(7)Contusion 1" x --" present on the right side of head --" above and to the outer aspect of injury No. 5.
(8)Contusion 2" x --" on the right temporal region, bone was fractured underlying."
5. On 22-11-1973 Hameed Gul S.H.O. P.W. 15 arrested Muhammad Yousaf appellant. He arrested Allah Dad. Fazal Hussain and Muhammad Boots co-accused on 24-3-1973. He got removed Chaddar P.8.
From the person of Boots co-accused vide memo. Exh. P.L. Attested by Inayat Ullah (not produced) and Malik Ghulam Rasool P.W.
8. On 25-3-1973, Muhammad Yousaf appellant led to the recovery of blood-stained Dang P. 9 and blood-stained Chaddar P. 10 from the house of Allah Dad and from his own house respectively which were taken into possession vide memorandas P.D. And P.H. Attested by Muhammad Malik and Mian Khan (both not produced). The Serologist's report reveals that Dang recovered from the appellant and Chaddar recovered from Muhammad Boots co-accused were stained with human blood.
6. To prove its case, the prosecution examined 15 witnesses. Sooba P.W. 9 and Muhammad Hussain P.W. 10 have deposed about the alleged motive. Khan Muhammad P.W. 11 and Noor Hussain P.W. 14 are Wajtakar witnesses. They claimed to have seen the appellant and the acquitted accused variously armed standing on a path near the Behak of Allah Ditta. On their enquiry, the appellant and the co-accused told them that they were searching for the missing buffaloes. Nazar Muhammad P.W. 13 stated that on the night of murder he had stayed in the house of Allah Dad co- accused where Yousaf and Boots had also come at about mid-night. The witness stated that the appellant and the co-accused made some consultations and went out of the house variously armed. The witness further stated that after about one hour, he came out of the house and saw the appellant and the co-accused coming running from the side of Behak of Allah Ditta and that Cheddar of Muhammad Yousaf was stained with blood at that time. Ch. Gul Hameed S.H.O. P.W. 15 had investigated the case. He collected blood-stained earth from the spot. He took into possession blood-stained cot P.4, Talai P.5, Razai P. 7 vide memo. P.D. He recovered blood-stained Deng and Cheddar at the pointing out of Muhammad Yousaf appellan:. The Serologist report Exh. P.M./1 is in positive. Dr. Farooq Ahmed P.W. 1 has proved the post-mortem examination report of the deceased The rest of the evidence is more or less of formal nature.
7. When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. He raised plea of false implication. In defence no witness was produced.
8. The learned trial Court has acquitted the three co-accused giving them the benefit of doubt. The trial Court has disbelieved Khan Muhammad P.W. 11 and while relying on the evidence of motive given by Sooba P.W. 9, and Muhammad Hussain P.W.10, the Wajtakar evidence furnished by Noor Hussain P.W. 14 and the recovery of blood-stained Deng from the appellant supported by Hameed Gul S.H.O. P.W. 15, has convicted and sentenced the appellant as stated above.
9. The learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt; that Noor Hussain P.W. 14 and Hameed Gul S.H.O. P.W. 15 are not reliable witnesses and that the circumstantial evidence fails to connect the appellant with the murder of Ejaz deceased. Conversely, the learned counsel for the State has supported the judgment of the learned trial Court.
10. I have considered the submissions made by the learned counsel for .The parties with care. I feel persuaded to agree with the learned-- counsel for the appellant. I find that admittedly it was an unseen murder; that Khan Muhammad P.W. 11 one of the Wajtakar witnesses has been disbelieved by the trial Court. Noor Hussain P.W. 14 is servant of aforesaid Khan Muhammad and as such he was under his influence and could have been easily induced to become false witness of Wajtakar.
Furthermore, his statement to the extent of the three acquitted accused whom he had equally implicated has not been acted upon by the learned trial Court. As far the recovery of blood-stained Deng from the appellant, I find that the two attesting witnesses of the) recovery memo have not been produced. Hameed Gul S.H.O. Was certainly interested in the success of the case investigated by him; that the blood-stained Deng was allegedly recovered from the appellant after 9/10 days of the occurrence and that the Deng was recovered from a house which was not in the exclusive possession of the appellant Nazar Muhammad P. W. 13 the witness of the alleged conspiracy had not heard any conversation between the appellant and the acquitted co-accused. He simply stated that all the four accused sat in the-- courtyard of the house of Allah Dad and consulted each other. He has not given the details of those consultations. For all these reasons I am of the view that the circumstantial evidence produced at the trial does not exclude the hypothesis of the innocence of the appellant and as such the prosecution has failed to prove its case against Muhammad Yousaf appellant beyond reasonable doubt.
For what has been said above, while giving him the benefit of doubt, the appellant is acquitted of the charge. He shall stand discharged of the bail bond.