This Criminal Appeal arises from the judgment of the learned Additional Sessions Judge, Dera Ghazi Khan, whereby he, on 14-12-1978 while acquitting Bakhat Ali co-accused, convicted Rahim Bakhsh arc Mamdu appellants under section 302/34, P.P.C. For causing the death of Kaloo and sentenced them to imprisonment for life and a fine of Rs.1,000 each in default thereof to further S.I.
For three months each with the direction that the fine, if recovered, be paid to the legal heirs of the deceased.
2. The occurrence took place on 12-4-1974 at 10.00 a. m. In the land owned by one Jehangir Khan in Mauza Wah Machka P.S. Rohjan. The distance between the place of occurrence and the police station is two miles. The F.I.R. Exh. P.H. Was lodged by Lal Khan P.W. 9 brother of the deceased on the same day at 11.00 a.m. And was recorded by Abdul Latif S.I. P.W. 11.
3. The motive as alleged by the prosecution is that on account of his illicit relation with Mst. Shahrah were of Rahim Bakhsh appellant, the deceased was declared Kala 15 years before the occurrence.
Rahim Bakhsh appellant received Rs.2,000 as penalty and ostensibly compromised with the deceased. The prosecution case is that despite compromise Rahim Bakhsh, the appellant nourished grudge.
4. The prosecution case is that or, the fateful day Kalu deceased alongwith the complainant Lal Khan P.W. 9 were returning from Rohjan Town after having made sundry purchases. When they reached in the land of Jehangir Khan at 10.C0 a.m., the appellants alongwith Bakhat Ali cc-accused duly armed with hatchets came there, raised Lalkara and opened the attack. The appellants as well as the acquitted co-accused gave hatchet blows to the deceased. The alarm raised by the complainant attracted Miran Bakhsh P.W. 10 and Bakhsh Ali (not produced) who also witnessed the occurrence. Kalu died instantaneously.
5. On 12-4-1974 Dr. Abdul Latif Asim P.W. 8 conducted post-mortem examination on the dead body of the deceased and found following injuries:- (1)An incised wound 6" x 3" x complete cut of left side of neck, horizontal in direction. Muscles, blood vessels, trachea, vertebra, oesophagus were cut.
(2)An incised wound 6" x 1" x brain deep oblique in direction on left side of head cutting left halex of left ear. Brain matter was cut.
(3)An incised wound 5" x 3" x brain deep on left side of face vertical in shape starting from left ear and going upto middle of back of head.
(4)An incised wound 3" x 1" x bone deep on scapula of left shoulder vertical in direction.
(5)An incised wound 4" x -- " x bone deep, coincider with injury No. 4 parallel in direction.
(6)An incised wound 6" x 1 -- " x ribs deep on back vertical in direction lying on left side of verteberal columns 8th and 9th and 10th ribs were cut.
(7)An incised wound 6" x 1" x muscle deep on front of left chest starting from nipple and going upto 10th rib.
(8)Incised wound 3" x -- " x scalp deep oblique in direction on left lateral side of head.
(9)An incised wound 6" x 1" x muscle deep on back of the middle of verteberal column on right side.
(10)An incised wound 3" x 1" x bone deep on back of neck 2" below occiput, horizontal in direction.
All the injuries were anti-mortem and caused by sharp-edged weapon. Out of these injuries, 7 were grievous and 3 fatal. In his opinion, the death was due to shock and severe haemorrhage due to injuries Nos. 1 to 3 which were sufficient to cause death in the ordinary course of nature.
6. Rahim Bakhsh and Mumdoo appellants were arrested on 23-4-1974 and 25-4-1974, respectively.
Rahim Bakhsh got recovered blood-stained hatchet Exh. P. 6 and Mumdoo led to the recovery of blood-stained hatchet Exh. P.
5. The Serologist report Exh. P.M. Shows that these hatchets were stained with human blood.
7. To prove its case, the prosecution examined as many as 11 witnesses. Lal Khan P.W. 9 and Miran Bakhsh P.W. 10 have given the ocular account of the occurrence. They stated that in their view the appellants and the acquitted co-accused inflicted hatchet blows on Kaloo and thereby caused his death. Rasool Bakhsh P.W. 5 and Muhammad Abdul Latif P.W. 11, the Investigating Officer, have supported the recoveries of the blood-stained hatchets from the appellants as well as from the acquitted co-accused. They stated that Rahim Bakhsh appellant got recovered blood-stained hatchet Exh. P.6 from his residential Kotha, Mumdoo appellant got recovered blood-stained hatchet Exh. P.5 and Bakhat Ali, the acquitted accused got recovered blood-stained hatchet Exh. P.
4 from their residential Kothas. The rest of the evidence is more or less of formal nature.
8. The appellants when examined under section 342, Cr.P.C. Denied the incriminating circumstances and raised the plea of false implication. In answer to question No. 6, Rahim Bakhsh appellant stated that:-- "I am innocent. After the occurrence, I have divorced my were Mst. Shahran as she had become Kali with the deceased on the day of occurrence."
The appellants, however, did not lead any evidence in defence.
9. The learned counsel for the appellants contends that the prosecution has failed to prove its case beyond reasonable doubt; that the eye-witnesses being related and inimical are not reliable; that statements of the eye-witnesses suffer from material contradictions and discrepancies; that the eye-witnesses stand already disbelieved to the extent of acquitted co-accused and that the recovery is fake.
The learned counsel for the State has, however supported the judgment of the trial Court.
10. From the statement of facts as given above and the trend of the arguments addressed by the learned counsel for the appellants, it is very much obvious that it is a case of total denial of incriminating circumstances and that the appellants have not raised any special plea. It is by now well-recognized that in such like cases, the onus is on prosecution to prove. Its case beyond reasonable doubt through reliable evidence; ,that _the absence or weakness in defence cannot strengthen the prosecution, case; that the appeal being in continuation of the trial, therefore, on the filing of the appeal, the matter re-opens. And as such, the presumption of innocence is still available at the appellate stage and that if there is any reasonable doubt, its benefit must go to accused as a matter of right and 'not as a grace or concession. Keeping all this in mind, I proceed to assess, weight and evaluate the prosecution case with initial presumption of innocence in favour of appellants uninfluenced by 'the 'finding of guilt recorded by the trial Court and would like to start with its' foundation. I find that it is a case of prompt F.I.R. The occurrence 'took place at 10.00 a.m. The police station is at a distance of two' miles from the spot. The F.I.R was lodged only after an hour of the occurrence. The names of the appellants and the acquitted co-accused, the names of the witnesses, the weapons of offence and the manner in which the occurrence took place are all detailed therein. Despite lengthy cross-examination, the defence has failed to bring on record any reason to doubt the genuineness of this document or to show that it was not written at the time and place as it purports or that it was lodged after consultation. To my assessment, the foundation of the prosecution case is concrete and may safely used to corroborate its maker, i.e. Lai Khan P.W.
9. Now, I proceed to examine whether on this foundation, the prosecution has been able to raise structure strong enough to Lace judicial blows. This brings me to the main pillar of the case, i.e. The ocular evidence. Having carefully attended to the criticism of learned counsel, I find that Meran Bakhsh P.W. 10 is an independent witness having no love for the deceased and no ill-will against the appellants. No doubt, his house is 3 mile away from the spot but the occurrence having taken place on a path, he being a way-farer was a natural witness of the occurrence as observed by the learned Supreme Court in case 'The State Fateh Sher and others reported as PLD 1970 SC 491. He has given acceptable cause of his presence that after purchasing cloth from Rohjan Town, he alongwith Bakhat Ali, given up P.W., were returning home when on hearing cries of Kaloo deceased, they were attracted to the spot. The reason of his presence given by him and his further conduct do not run counter to the natural probabilities. The-fact that his name finds mentioned in the F.I.R.
Which was lodged after an hour of the occurrence is of great significance. He being an independent witness, it is difficult to believe that within one hour he was approached and induced to make false statement against the appellants. In the circumstances, had he not been on the spot, then his name would not have appeared in the F.1.R. Further, the witness has stood the test of great engine ever invented for the discovery of truth. Nothing advantageous to the defence could be elicited from him. Except for minor discrepancies, I do no see any major infirmity in his statement. His statement fits in with other evidence and attending circumstances of case and inspires confidence. For all these reasons, I am of the view that implicit reliance can be placed on his statement. As for the other eye-witness namely, Lai Khan P.W. 9, no doubt, he is brother of the deceased but this relationship alone is not sufficient to discard his testimony. He has given plausible reason for his presence at the eventful time. The omission on the part of the Investigating Officer to take into possession the bullock cart or purchases made by the deceased and the complainant, does not adversely reflect upon their presence. The occurrence having taken place on/near the path, the statement of the witness that he alongwith the deceased were on the bullock-cart, very much fits in with the circumstances of the case. Furthermore, his statement tallies with the statement of Miran Bakhsh P.W. 10 who has already been declared a "dependable witness". Forgetting that the statements of the witnesses were recorded after about 4-1/2 years, the learned counsel pointed out the same immaterial discrepancies and contradictions in the statements of prosecution witnesses which are but natural. I am convinced that the fate of the case does not depend upon such vague and minor discrepancies. The ocular account does not suffer from any inherent infirmity. The reading of the judgment shows that the eye-witnesses have not been disbelieved by the trial Court as claimed by the learned counsel. To my mind, in the instant case, the ocular evidence can be acted upon without corroboration and if as an abundant caution, the prudence requilies any corroboration that, too, is available in the shape of evidence and circumstances. The number of injuries do commensurate with the number of the accused persons. The motive comes out of the mouth of Lai Khan P.W. 9 on whom I have already relied upon.
In the, circumstances of the case, the possibility that the appellant ostensibly compromised and accepting the penalty, but kept grudge hidden in their minds, cannot be excluded. For what has been stated above, the contentions raised by the learned counsel and the arguments advanced by him, do not carry any weight. On independent assessment of the evidence and the circumstances of the case, I find that the structure of the prosecution is strong enough to face the criticism of learned, defence counsel and would not tumble down.
11. Resultantly, the appeal is dismissed and the conviction recorded and the sentence awarded to the appellants by the trial Court are maintained. The appellants would, however, get benefit of section 382-B, Cr.P.C. The appellants are on bail. They shall surrender to their bail bonds and should appear before the learned Sessions Judge, Dera Ghazi Khan on or before 3b-3-1984 who would take them into custody and send them to jail for serving out the remaining sentence.
12. Before parting with the judgment. I would like to add that there was no legal and factual jurisdiction to acquit Bakhat Ali co --accused. The acquittal is based on surmises and conjectures and not on sound principles. Since the State/complainant did not care to file any appeal or revision against his acquittal, therefore, I am not inclined to issue notice for re-trial, particularly, after 11 years of the occurrence.