This is an appeal by Wali Dad 60, Ashiq 22, Ahmad 30, both sons of Wali Dad and Ghulam Muhammad 40 against their conviction under section 302/34, P.P.C. By learned Additional Sessions Judge, Multan, who, vide judgment, dated 24-1-1985, sentenced them to imprisonment for life and fine of Rs.3,000 each and in default one years' R.I. For the murder of Islam aged 55 years. It was ordered that half of the fine, if recovered, will be paid as compensation to hair s of the deceased.
Allah Bakhsh complainant filed Criminal Revision No. 73 of 1985 for enhancement of sentence of the accused. It was ordered to be heard alongwith the appeal. This judgment will dispose of both these matters together.
2. The occurrence in this case took place on 30-8-1983, at 6-30 p.m. Near Bhaini Ludhiana Khan in village Khokharan Mohabbat, about 15 miles from Police Station Alappa, District Multan. The F.I.R.
Exh. P.F. Was recorded by S.I. Zahid Ali Sherazi, P.W. 7 on 31-8-1983, at 8--00 a.m. At the instance of Allah Bakhsh P.W. 4.
3. Allah Bakhsh complainant himself is not an eye-witness It was stated by him in the F.I.R. That he lived at Bhaini Islamwala and was a cultivator. His father had taken land from Rafiq Taragar for cultivation. On 30-8-1983 at 5-30 p.m., his father Islam was proceeding from his house to the said land to have a round. He passed from near the house of Manzoor Taragar at about 6-30 p. m.
Suddenly, Wali Dad, Ahmad, Ashiq and Ghulam Muhammad accused armed with Dangs came there and attacked his father Islam. Wall Dad gave stick blows on the head, right hand and arm of Islam; Ahmad caused injuries on his back and legs; Ashiq caused injuries on his back, legs and ribs and Ghulam Muhammad caused injuries on the back, legs and ribs of Islam. The alarm of Islam deceased attracted Daim and Allah Ditta P.Ws who were grazing their cattle nearby. They rushed to the spot and witnessed the occurrence. The accused ran away. It was stated by Allah Bakhsh that he reached the place on the alarm to inquire as to what had happened. He found his father unconscious. He gained consciousness after a short-while and narrated him the entire occurrence.
He was placed on a cot and taken towards his house so that he could be taken to Civil Hospital, Multan for treatment. However, Islam died in the way at a short distance from his house. He, thereafter, went to police station and lodged the F.I.R.
The motive was stated to be that some time before this occurrence, Dost Muhammad, a brother of Allah Bakhsh complainant, had given stick blows to Wali Dad and Ashiq accused. The matter was settled on the intervention of Haji Muhammad Iqbal, Chairman but in spite of that the accused continued to nurse grudge against them.
4. The dead body of Islam was sent for post-mortem examination which was conducted on 31-8- 1983 at 5-00 p. m. By Dr Muhammad Salim Arshad P.W.
6. On internal examination, the Medical Officer found 8 injuries in all on the dead body. Injury No. 1 was a lacerated wound 4 c. m. x 1-- c. m x bone deep on the left side of head, 8 c. m above the left ear. Injury No. 2 was a swelling in an area of 3 c.m. x 3 c.m. On the right side of head. Injury No. 7 was multiple contusion marks on the back of the chest and more on the left side. Injury No. 3 was an abrasion on the right hand while injuries 4, 5, 6 and 8 were contusions on the right thigh, left thigh, both buttocks and lumbar region.
All the blood vessels of the covering of the brain were found congested. Left 8th, 9th and 10th ribs were found fractured at its back. Left side of the pleura was injured underneath these three ribs Left lung was found injured at its posterior part under these three ribs. The death was due to shock and haemorrhage as a result of injuries 1, 2 and 7 which were sufficient to cause death in ordinary course of nature. Injury 7 was grievous and fatal. All the injuries had been caused by blunt weapon.
The time between the injuries and death was half to one hour. The post-mortem was conducted within 22 hours of death.
5. The Investigating Officer during spot inspection did not collect blood-stained earth from the place of occurrence.
The accused were arrested on 6-9-1983. On 9-9-1983, Wali Dad led to the recovery of Dang P.1, vide recovery memo. Exh. P.A.; Ashiq accused led to the recovery of Dang P. 2, vide memo. Exh. P.B.; Ahmad accused led to the recovery of Dang P. 3, vide memo. Exh. P.C. And Ghulam Muhammad accused led to the recovery of Dang, p. 4, vide memo. Exh. P.D. These memos. Were prepared by S.I.
Zahid Ali Sherazi P.W. 7 and attested by Talib Hussain P.W. 2 and Allah Bakhsh P.W.
4. These Dangs were not stained with human blood and were commonly available in every house of a Zamindar and as such, the evidence regarding the recoveries need not be considered in detail being of no avail to the prosecution.
The accused were challaned after completion of the investigation.
6. The prosecution during the trial examined 8 witnesses in all. Daim P.W. 5 was examined as an eye-witness of the occurrence. Allah Ditta, another eye-witness named in the F.I.R., was given up as having been won over by the accused. The medical evidence was furnished by Dr. Muhammad Salim Arshad P.W. 6 as-given in detail above. The case was investigated by S.I. Zahid Ali Sherazi P.W.
7. The evidence of the rest of the witnesses was of formal nature.
The accused when examined under section 342, Cr.P.C., denied the charge and pleaded innocence.
They denied the recoveries of crime weapons at their instance. They produced copies of Khasra Girdawari Exh. D.C., regarding Killa No. 47/1-2 and Exh. D.D., regarding land bearing No. 41/16 to 18 and 21 to 25 for the crops Kharif 1983 and Rabi 1984. They did not produce any other evidence in defence.
The learned trial Judge placed reliance on the evidence of motive, recoveries of crime weapons and the eye-witness account and convicted the accused as stated above.
7. I have gone through the evidence on record and have also heard the learned counsel appearing on behalf of the parties.
Allah Bakhsh P.W. 4 was son of the deceased. Daim P.W. 4 and Allah Ditta given up P.W. Were uncles of Allah Bakhsh complainant. Khuda Bakhsh P.W. Who had identified the dead body was also a brother of Allah Bakhsh complainant.
It is stated by Allah Bakhsh complainant that there was some quarrel between the parties about 1- - years prior to the present occurrence when his brother Dost Muhammad had caused injuries to Ashiq accused but the matter was compromised. Wali Dad accused his statement under section 342, Cr.P.C. Denied that Dost Muhammad son of Islam deceased had given beating to him or his son Ashiq. He stated that only hot words were exchanged between them but later Muhammad Iqbal, Chairman effected compromise and, therefore, the had no grudge against the deceased or his son. The motive is, therefore, admitted by the parties. This would mean that both the parties had grudge against each other. Thus, the prosecution witnesses are not only related to the deceased but also had ill-will against the accused. It cannot be said that only the accused had motive against the deceased or his son. The complainant party also had some ill-will against the accused on account of which the earlier incident had taken place. Motive is a double-edged weapon and as such, I hold that the prosecution has failed to prove motive against the accused.
Allah Bakhsh complainant is not an eye-witness. The prosecution case is supported by the solitary evidence of Daim P.W. 5 who, as stated above, was related to the deceased and, therefore, was interested to support the prosecution case against the accused. I have carefully B gone through his evidence which does not inspire confidence. He made material improvements in his statement during the trial. It was stated by him that he had gone to the place of occurrence at Deegarwela on hearing the alarm of the deceased. This fact was not stated by him in his police statement. He further stated that he had brought a cot while Allah Bakhsh P.W. Had brought water which was sprinkled on the deceased. This fact was not stated by him before the police. It was stated by him during the trial that he remained with the dead body while Allah Bakhsh went to the police station to report the matter. This fact was also not mentioned by him before the police. Secondly, the evidence of this witness stands contradicted by the medi46el evidence. It was stated by Daim P.W.
5 that Islam deceased went unconscious after the occurrence. He regained consciousness when water was sprinkled on him and thereafter, he narrated the incident to his son Allah Bakhsh P.W. Dr. Muhammad Salim Arshad P.W. 6 in cross---examination stated that after sustaining the injuries as mentioned in the post-mortem report, the deceased could not regain consciousness upto his death, if there was no medical aid. He further clarified that it was not possible that the deceased could have regained consciousness C for a shortwhile after sustaining the injuries even if some water had been sprinkled on his face or some water had been given to him through mouth. It is, therefore, clear that firstly, the deceased never regained consciousness after receipt of injuries on his person and secondly, he never narrated the incident to his son Allah Bakhsh as stated in the F.I.R. And also by Daim P.W.5. Thus, the medical evidence contradicts the ocular account in this case furnished by the solitary eye-witness. Thirdly, if Daim P.W.5 had been present at the place of occurrence, he must/would have narrated the whole occurrence to Allah Bakhsh complainant but according to the F.I.R. And also according to the evidence on record, Daim P.W. Never narrated the occurrence to Allah Bakhsh P.W. This was an unnatural conduct on the part of Daim P.W. 5 which makes his presence at the spot doubtful. Fourthly, the house of this witness was one square away from the house of the deceased and, four squares away from the place of occurrence. There were many Bhainis around the spot but no one from those Bhainis was cited or examined as witness during the trial, and finally, the Investigating Officer on reaching the place of occurrence did not mention the name of Daim P.W. 5 as one of the persons present near or around the dead body of Islam deceased. He did not sign the inquest report. I am, therefore, of the view that Daim P.W. Was not present at the spot at the time of occurrence. No blood-stained earth was collected from the place of occurrence during inspection of the spot by the Investigating Officer. The dead body .Was found lying near the Bhaini of Allah Bakhsh P.W. It was stated by Khuda Bakhsh P.W. 1 and Allah Bakhsh p.W. 4 that blood had fallen at the place of occurrence. It was stated by Allah Bakhsh P.W. 4 that the police collected blood-stained earth from the spot. This fact is not admitted by the Investigating Officer. The prosecution has, therefore, not been able to establish that the occurrence took place near the house of Manzoor Tragar at the Bhaini of Ludhiana Khan. In my view, the prosecution has failed to prove its case against the appellants beyond reasonable doubt.
8. As a result of the above discussion, this appeal is accepted. The conviction and sentence of Wali Dad, Ashiq, Ahmad and Ghulam F Muhammad accused-appellants is set aside. They are acquitted. They shall be released from prison forthwith, if not required in any other case.
9. In view of the above decision in appeal, Criminal Revision No. 73 of 1985 is dismissed in limine.
H.A.K. Appeal accepted.