JAVID IQBAL, C.J.--Amir Muhammad, aged 35, armed with Sots, Ghulam Muhammad, aged 22, armed with Sots, both sons of Amir Abdullah and, therefore, brothers, as well as Khan Muhammad, aged 50, armed with Sots, and Gul Jahan, aged 42/43, armed with Sots, both sons of Ahmad Khan and maternal-uncles of Amir Muhammad and Ghulam Muhammad were originally charged under section 308, P.P.C. But their trial had been held under section 302/307/34, P.P.C. For the murder of Manzoor Illahi aged 50, their close relative. But they were acquitted, vide judgment dated 28-7-1981 of the Sessions Judge, Mianwali. Khan Muhammad amongst them was injured. The State appeal against their acquittal was admitted on 4-12-1982 on the ground that two eye-witnesses were injured in this case and one out of them was produced at the trial but his testimony had not been correctly appreciated. The State appeal against acquittal is being taken up alongwith Criminal Revision No. 70 of 1983 and both these matters are being disposed of by this judgment.
2. The occurrence took place at 4-30 p.m. On 4-1-1980 in the field of one Abdul Rasul near Abadi Dhurnakka Mauza Dhibba Karsial at a distance of 12 miles from Police Station Chakrala, District Mianwali Statement (Exh.P.L.) was made by Ghulam Muhammad P.W.8 son of the deceased, at 12- 00 noon on 5-1-1980 and it was recorded by Manzoor Ahmad M.H.C. P.W.7 at Police Station Chakrala. But formal F.I.R Exh.P.L./1 was got registered at the same police station by Ch. Abdul Wahid S.I. P.W.10 on the same day at 5-20 p.m.
3. The motive for crime as stated in the F.I.R. Is that all the parties are closely related to one another.
The respondents wanted that Ranjha P.W.5 maternal-uncle of Ghulam Muhammad P.W. And Saala of the deceased should give the hand of his daughter Mst. Zeenat to them, but Ranjha P.W.
Promised to give the hand of the girl to the younger brother of Ghulam Muhammad P.W. And son of the deceased, namely, Noor Muhammad. Before that the respondents had threatened the deceased as well as Ghulam Muhammad P.W. That if they received the hand of the girl, it would not be good for them. It was in this background that they had attacked the deceased. The witnesses in support of the motive produced by the prosecution are Ranjha P.W.5 as well as Ghulam Muhammad P.W.8.
4. In the F.I.R. The occurrence is reported to have taken place in the following manner: On the fateful day the deceased and his son Ghulam Muhammad P.W. Had gone to cut branches of Beri tree in the land of Sikandar Hayat and they wanted to load the branches on a she-donkey which they took with them. They had already purchased the branches of Beri tree from the owner. When they had cut the branches and loaded them on the she-donkey, Ghulam Muhammad P.W. Went to meet his uncle Ahmad Ali P.W.9 whereas his father Manzoor Ilahi deceased proceeded alongwith the she- donkey to their house in Mauza Dhibba Karsial. However, when Ghulam Muhammad P.W. Reached near the house of Ahmad Ali P.W. And met him, he was informed by Ahmad Ali P.W. That the respondents armed as described above, were sitting in the way in order to pick up a quarrel with them. Consequently Ghulam Muhammad and Ahmad Ali P.Ws. Ran towards Manzoor Ilahi deceased. By the time they arrived there, Bashir Ahmad (injured P.W and not produced) as well as Chapta Khan P.W.6 had also reached there. When Ghulam Muhammad and Ahmad Ali P. Ws.
Arrived there they saw that all the four respondents were giving blows with their respective Lathis to Manzoor Ilahi deceased who had fallen down on the ground. On their alarm the respondents left the deceased and started giving blows to Bashir Ahmad (not produced) as well as to Chapta Khan P.W. Thereafter the accused party left the scene of crime.
5. Amir Muhammad, Ghulam Muhammad and Gul Jahan respondents were arrested on 10-1-1980 by Ch. Abdul Wahid S.I. P.W.10 and the same Police Officer arrested Khan Muhammad respondent on 14-1-1980. From each of the respondents Sota/Dang/Lathi had been recovered but since these were not stained with blood, they were not sent for chemical examination and consequently have no corroborative value. The prosecution story is based entirely on the ocular testimony supported by the motive version and the medical evidence.
6. The respondents in their statements before the trial Court denied having participated in the occurrence. They disowned the recoveries and stated that they had been falsely implicated due to enmity of the P.Ws. Khan Muhammad respondent who was found injured had stated in his statement before the trial Court while explaining his injuries that the deceased was injured by someone at night outside on 3-1-1980 and that on 4-1-1980 when he came out of his house Bashir Ahmad (not produced) and Chapta Khan P.W. Assaulted him in the street and thus injured him.
They did not produce any defence except Khan Muhammad respondent who tried to show that the P.Ws. Were inimical towards him and in that connection had produced Exhs. D.B. And D.C.
7. Dr. Inamul Haq Khan P.W.2 medically examined Chapta Khan P.W. On 7-1-1980 and found on his person a lacerated wound on he left side of head and an abrasion on the back of right thumb. Both the injuries were caused by blunt weapon within the duration of 3 to 4 days and were simple in nature.
He also medically examined Bashir Ahmad (not produced) and found on his person a stitched lacerated wound on the middle of head, contused swelling on the back of head, abrasion below the left eye and swelling on the back of left shoulder. These injuries were also caused by blunt weapon and subsequently declared simple in nature.
Dr. Muhammad Hussain P.W.3 medically examined the deceased while he was still alive on 5-1- 1980 and found on his person the following injuries:- (1)Contused area at posterior surface of left forearm just proximal to left wrist. 3 c.m x 1 c.m. Colour was bluish black.
(2)Contused area 5 c. m. x 2 c. m. It was horizontally placed at middle of left upper arm on its posterior surface. Colour was bluish black.
(3)Abraded area at the back of right elbow, 3 c.m. x 1 c.m.
(4)Contused area at right upper back chest about 10 c.m x 2 c.m. Obliquely placed at the middle of scapular region. Its colour was also bluish black.
(5)Contused area at right back chest 8 x 2 c.m. In size and situated about 10 c.m. Below injury No.4.
It was horizontally placed. Its colour was also bluish black.
(6)Contused area at right buttock 10 c.m. x 2 c.m. In size and was obliquely placed. Its colour was also bluish black. It was situated near the lateral part of right buttock.
(7)Contused area 10 c.m. x 2 c.m. On the back of right buttock about 7 c.m. Medial to injury No.6. Its colour was also bluish black.
(8)Contused area at left buttock, 10 c.m. x 2 c.m. Its colour was bluish black.
(9)Contused area at left buttock 10 c.m. x 2 c.m. About 5 c.m. Lateral to injury No.8.
(10)Contused area 10 c.m. x 2 c.m. At the root of left thigh. Its colour was also bluish black.
(11)Abraded area 4 c. m. x -- c. m. On the front of right lower leg about 10 c.m. Below right knee.
(12)Swollen area 5 c.m. x 2 c.m. At the right parietal eminence. It was tender.
Injuries Nos. 1, 4, 5, 6, 7, 8, 9 and 12 were kept under observation, whereas injuries No. 2, 3, 10 and 11 were declared simple. All the injuries were caused by a blunt weapon within the duration of three days. The deceased while still alive was not in a position to make a statement and that this Medical Officer informed the police on 10-1-1980 that he had expired.
The same Medical Officer on 10-1-1980 conducted the post-mortem examination on the dead body of the deceased at 3-00 p.m. And noted the same injuries on his person. In his opinion all the injuries were ante-mortem and had been caused by a blunt weapon. Death was due to injury No.12 which caused the cerebral haemorrhage and shock and was sufficient to cause death in the ordinary course of nature.
The same Medical Officer medically examined Khan Muhammad respondent at 2-00 p.m. On 9-1- 1980 and found on his person a lacerated healing wound on the left side of head, abraded area on the right side of forehead, contused area below the left eye and contused area on the left side of nose. Injuries Nos.1 and 4 were kept under observation while the other two were declared as simple.
All of them were caused by a blunt weapon and subsequently all the injuries were declared as simple.
8. We have heard learned counsel for the parties and carefully perused the record. It may be pointed out at the outset that the parties are closely related to one another. So far as the motive part of the story is concerned, it is being supported by Ranjha P.W. And Ghulam Muhammad P.W.
Their version is that Khan Muhammad respondent had demanded the hand of Mat. 2eenat, daughter of Ranjha P.W., for his son Noor Muhammad but that girl was obtained by the deceased for his son and so this had become a cause of grievance so far as the accused party was concerned. Thus, it is evident that due to a dispute over the hand of the girl there were strained relations between Khan Muhammad and Gul Jahan respondents on the one hand with the deceased and his son Ghulam Muhammad P.W. On the other. We have already pointed out that the recovery evidence in the instant case is of no consequence because the Sotas etc; recovered from the respondents were not found to be stained with blood. Thus the case of the prosecution is based essentially on the ocular testimony. The ocular testimony comes forth from Ghulam Muhammad P.W. Son of the deceased, Ahmed Ali P.W., uncle of Ghulam Muhammad P.W. And brother of the deceased as well as Chapta Khan P.W. Injured nephew of the deceased and cousin of Ghulam Muhammad P.W. Bashir Ahmed another nephew of the deceased and cousin of Ghulam Muhammad P.W. Was also stated to be injured in the course of occurrence but he has not been produced and was given up as unnecessary. According to the medical evidence Bashir Ahmed (not produced) as well as Chapta Khan P.W. Had injuries on their person but they are all simple in nature. Similarly the injuries on the person of the deceased which had been caused with blunt weapon were simple with the exception of one injury on the head (injury No.12) which was grievous and eventually proved fatal. So far as injury No.12 is concerned, on internal dissection cerebral haemorrhage was present at the junction of right parietal and occipital lobes of brain under injury No.12. The death was due to this injury but it is further stated by the doctor that injury No.12 on the person of the deceased could have been caused due to fall on hard substance. He did not observe injury No.12 to be a contused swelling but only observed that the area was swollen and, therefore, according to him the more probable thing was that injury No.12 had not been caused by a blunt weapon but was due to fall. He also stated that if someone was having high blood pressure, then even without a fall he could develop cerebral haemorrhage. According to him there was no abrasion near the area of injury No.12. So far as the ocular testimony is concerned, the version of the P.Ws. Is that Ghulam Muhammad P.W. Anti the deceased were together and they separated from each other at a particular spot when the deceased proceeded towards his house, whereas Ghulam Muhammad P.W. Went to meet his uncle Ahmed Ali P.W. When he met Ahmed Ali P.W. He was informed by Ahmed Ali P.W. That the respondents armed as described above were sitting in ambush to pick up a quarrel with the deceased and it was for this reason that both Ghulam Muhammad and Ahmed Ali P.Ws. Rushed to the spot. Ahmed P.W. Did not state a single word as to how he came to know that the four respondents were sitting on the passage to have a fight with the deceased. His version was that when he came out of his house, the respondents met him in the street and told him that they were going to teach a lesson and to injure the deceased and thereafter first he went to the shop of his nephews Chapta Khan P.W. And Bashir Ahmed (not produced) and then chanced to meet Ghulam Muhammad P.W. In whose company he started running to the spot. It is the case of the eye-witnesses that Chapta Khan P.W. And Bashir Ahmed (not produced) were going ahead and reached the spot before Ahmed Ali and Ghulam Muhammad P.Ws. Arrived there. If all the four of them were there, they could have physically intervened or they would have also been assaulted and received injuries at the hands of the accused party. It may further be noted that the eye-witnesses make no mention as to how Khan Muhammad respondent was injured. Apparently it seems that Khan Muhammad respondent as well as Bashir Ahmed (not produced) and Chapta Khan P.W. Had fought with each other separately and were injured by each other and this proposition is also being supported by the medical evidence. It may also be noted that the F.I.R. Is delayed in the instant case. The occurrence took place at about 4-30 p.m. On 4-1-1980 and the matter was reported to the police on the next day at noon time. The reason for delay as given by the P.Ws. Is that the deceased went unconscious right at the spot. Chapta Khan P.W. Stated that they intended to take the deceased in an injured condition to the hospital but Khan Muhammad respondent and some other Maliks reached there and asked them not to report the matter to the police on the plea that they would effect a compromise between the parties. However, the deceased did not regain consciousness and so he was eventually taken to the police station on the following day. The record also indicates that there does exist enmity between the parties. For instance, the defence evidence produced by Khan Muhammad respondent to prove the same includes documentary evidence to show that sister of Ahmed Ali P.W. Namely, Mst. Sees Bano had been married to brother of Khan Muhammad respondent but he did not accept her Rukhsati. The answers to this suggestion of the P.Ws. Were evasive as if they were suppressing the truth. Thus it is obvious that the relations between the parties were strained. The reasons why the trial Court found that the prosecution version was not free from doubt were that according to the eye-witnesses Khan Muhammad respondent was not injured by Chapta Khan P.W. And Bashir Ahmed (not produced) on the spot, whereas the conclusion of the Investigating Officer was that Chapta Khan P.W. And Bashir Ahmed (not produced) had injured Khan Muhammad respondent at the spot when they had reached there.
However, according to the medical evidence, the possibility could not be ruled out that Chapta Khan P.W., Bashir Ahmed (not produced) and Khan Muhammad respondent were injured at one time while the deceased was injured at another time. The medical evidence thus being susceptible to two interpretations--one in favour of the prosecution and the other in favour of the defence, the latter should be accepted on the principle that benefit of doubt should go to the accused side. It is also observed that the eye-witnesses were not reliable in the instant case unless there was corroboration of their testimony which was not forthcoming in the instant case. The defence version is that the deceased was injured on the night between 3rd and 4th January, 1980 by some unknown persons in an un witnessed occurrence. But since the complainant family suspected the accused party due to enmity as against them, they at noon time on 4th of January, 1980, particularly Chapta Khan P.W. And Bashir Ahmed (not produced) assaulted Khan Muhammad respondent in the street and they injured each other. Be that as it may, from the eye-witness account it certainly is not clear as to who had caused the fatal injury on the head of the deceased or as to whether the so-called fatal injury was the result of a fall or due to cerebral haemorrhage as a result of high blood pressure. Since this was the position, in our considered opinion the trial Court was justified to arrive at the conclusion that the prosecution version was not free from doubt and consequently giving the benefit of doubt to the respondents the learned trial Judge acquitted them. In that view of the matter, we do not find any substance in this State appeal which is accordingly dismissed.