Shada (65) and Machhia (85) sons of Nauta were convicted by the Additional 'Sessions Judge, Multan, on 30-4-1977 and both were sentenced to imprisonment for life. They were also fined Rs.
1,000 each in default of payment of fine to undergo six months' R.I. Further. The fine if realised was ordered to be paid as compensation to the heirs of the deceased.
2. This judgment will dispose of the two appeals of the convicts preferred through jail.
3. Shada suspected his wife Sakina of a liaison with Bashir (deceased). In order to avenge the insult on the night between 8/9-5-1975 at about mid-night Shada and his brother Machhia came over to the Charpai of Bashir who was sleeping in front of his shop. Shada sat on the chest of the deceased while Machhia cut his neck with the Chhuri. The second blow landed on the head above the left ear.
The alarm raised by Bashir attracted his uncle Inayat Hussain (informant) who at that time slept in front of his Bethak. P.Ws. Boots, Noor Muhammad and Dina also saw the occurrence. They tried to apprehend the accused but were threatened with dire consequences. The accused made good their escape. Bashir died at the spot. Inayat Hussain went to Police Station Mian. Channu situate at a distance of six miles away from there. He reached there at 4-15 a.m. The next morning and made the report Exh.P.B. To P.W.Il Qazi Muhammad Tufail, S.H:O., P.S. Mian Channu. After registering the case, the S.I. Went to the spot, prepared the necessary documents and sent the dead body for its post-mortem examination.
4. On 9-5-1975 P.W.1 Dr. Allah Nawaz Brohi, Civil Hospital, Mian Channu at 4-15, p.m. Held the autopsy over the dead body of Bashir and found an incised wound 4" x 1" x cutting bone of skull of left side just above ears and in front of left ear. A small portion of ear was also cut. He also found an incised wound 4 --" x 2" x cutting trachea oesophagus bone deep on mid and anterior surface of neck.
According to the doctor, the left side of the skull bone was cut and back vessels of neck were also cut. Death in his opinion was due to shock and haemorrhage caused by the two injuries which were sufficient to cause death in the ordinary course of nature.
5. After their arrest on 25-5-1975 Machhia, accused, produced blood-stained Chhuri P.1 which was made into a sealed parcel,vide memo. Exh.P.C. Attested by Manzoor Ahmad P.W.8 and Syed Fateh Sher (given up). After completing the investigation, the accused were sent up for trial. Both accused denied guilt and ascribed the case to enmity. Machhia, accused, also denied the recovery of Chhuri P.1 and made the following statement which was supported by his brother Shada: "I have been falsely implicated in this case. We had civil litigation and criminal litigation with Inayat Hussain and Nur Muhammad P.Ws. An appeal was filed againqt the mother-in-law of Muhammad Bux P.W. Which is .Pending in the Board of Revenue regarding a lot. Inayat, Nur Muhammad and Muhammad Bux P.Ws. Convened a Panchayat and requested us to witiadraw the appeal but we refused. They threatened us with dire consequences. Moreover, Mst. Bassi, sister of Nur Muhammad, Inayat and Muhammad Bux Q.Ws. Who are the maternal-uncles of the deceased is married to our brother, Lal. She was turned out by my brother prior to this occurrence and Lal refused to take her home. The deceased .Vas a man of bad character. He had got so many love affairs in the village.
He was murdered by some unknown assailants on that night."
6. Relying on the evidence of the two eye-witnesses and the recovery of Chhuri P.1 from Machhia which was found to be statined with human blood, trial Court came to the conclusion that the prosecution satisfactorily proved its case against the accused. The sole question for determination in this appeal would be whether the eye-witnesses could have identified the accused. It may be mentioned at the outset that out of the four eye-witnesses, prosecution produced only two, Boota and Din Muhammad were given up as having been won over. P.W. 9 Inayat Hussain (informant) and P.W.10 Nur Muhammad are real brothers. They are the maternal-uncles of the deceased.
Besides this close relationship, they are admittedly inimical towards the accused because of previous litigation. P.W.9 Inayat Hussain (informant) admitted that there was civil litigation between the accused and Mst. Daulan mother-in-law of his brother Muhammad Bakhsh P.W. He further admitted that his sister Mst. Bassi was turned out of the house by her husband Lai, a brother of the accused and was since living with them. P.W. Inayat Hussain (informant) was also a witness in a case under section 307, P.P.C. Registered against Lai, brother of the accused. He further admitted that there was criminal litigation between Machhia accused and the witness about the theft of a buffalo. The informant tried to minimize his strained relationship with the accused by saying that his sister Mst. Bassi had come to their house after the occurrence in this case but when confronted with his statement before C.M. It transpired that his sister had come over to his house before the civil litigation which admittedly took place before the occurrence in this case. In this regard, he was also contradicted by his brother Nur Muhammad P.W.10 who had frankly admitted that his sister had come over to their house before the occurrence in this case. Under these circumstances, it is satisfactorily proved that the informant and his brother Nur Muhammad P.W. Had strained relations with the accused. As such they were interested witnesses. Their statement required corroboration from independent source.
7. Before taking up the recovery of Chhuri from Machhia I would like to mention that in the circumstances of this case, the identification of the accused was a highly doubtful matter.
Admittedly, it was a dark night. According to the eye-witnesses, they identified the accused with the help of electric light which came from the house of Muhammad Bakhsh Dhobi where an electric lamp was lit that night. The informant admitted that the distance between the house of Muhammad Bakhsh and the place of occurrence was about 33 Karams and two or three Ihatas intervened in between. Under these circumstances, it would be highly improbable that there could be direct light coming from the house of Muhammad Bakhsh. It may also be mentioned here that P.W.8 Manzoor Ahmad, a witness of the recovery of the weapon, under cross-examination said that the distance between the house of Muhammad Bakhah and the place of occurrence was about one furlong. P.W.5 Muhammad Razaq, Draftsman who prepared the site plan has made no mention of the electric light nor it is shown in the site plan. Strangely enough P.W.11 Qazi Muhammad Tufail, S.I. Who investigated this case also made no mention in his notes about the electric light. What was still surprising that under cross-examination, the Investigating Officer admitted that it never came to his notice during the investigation whether there was any Ihata of Muhammad Bakhsh Dhobi near the place of occurrence. Besides this serious omission about the light, neither the Patwari nor the Investigating Officer have shown the pace in the site plan from where the witnesses had seen the occurrence. It was, therefore, highly doubtful whether there was any light to facilitate the identification of the accused in this case.
8. There is yet another circumstance which made the prosecution story further doubtful i.e. The nature of injuries suffered by the deceased indicated that he could not make any noise because the injury on the neck had cut the oesphagus and trachea and the head injury had cut the skull.
Under cross-examination, the doctor admitted that had the injury on the neck been given first, there was no probability of the deceased having made any sound. Further according to him, the head injury could be caused by a heavy weapon like a hatchet. In my view the two injuries inflicted to sleeping man would make no more a noise than a mere thud. As to the recovery of Chhuri P.1 which took place about 20 days after the occurrence it was said to have been presented by the accused to the Investigating Officer at the time of his arrest. He was produced by Syed Mohib Shah (not produced). Suffice it to say that it was highly improbable that the accused preserved the blood on the weapon all along which weapon he was said to have pulled out from the Dub before the S.I. According to P.W.8 Manzoor Ahmad, the only recovery witness who appeared besides the S.I., said that Mohib Shah who was said to have produced the accused, had also signed the recovery memo. But a perusal of the recovery memo. Would reveal that he had not attested the memo. Whereas one Fateh Sher had attested it who has not been produced. It is also noteworthy that under cross-examination, the Investigating Officer had said that Fateh Muhammad Sarbrah Lambardar had produced the accused before him. He against said that it was in fact Abbas Hussain Shah who produced the accused before him. At this stage, I may refer to the statement of A.P.P., dated 24-2-1977. He gave up Syed Mohib Shah and Syed Fateh Sher as having been won over. Under these circumstances the recovery of knife P.1 was highly unsatisfactorily.
9. Last but not the least, the parents of the deceased who were said to be present at the time of the occurrence are not the witnesses in this case. This admission is made by Inayat Hussain (informant) under his cross-examination. About this fact, the Investigating Officer was cross- examined. He denied whether parents of the deceased resided in the Ihata of Nur Muhammad but admitted that their statements were recorded by the Inspector in this case.
10. In view of the above analysis of the evidence, I am not satisfied with the guilt of the appellants.
Giving them benefit of doubt, I accept their appeals, setting aside their conviction and sentence and acquit them. They shall be released forthwith if not required in any other case.