ASLAM RIAZ HUSSAIN, J.-- Umar Din petitioner has filed the present petition for leave to appeal against the Judgment of the High Court dated 7-12-1981 acquitting Faiz Ahmed and Nasir Mahmood respondents who were accused of the murder of Abdus Sattar.
2. Motive for the offence is stated to be that 3/4 months before the occurrence it was generally rumoured in the village that Mst. Kauser, sister of Nasir Mahmood accused had become pregnant due to her illicit relations with Faiz Ahmad accused. Both the accused had threatened Abdul Sattar deceased as they hold him responsible for circulating the rumour.
3. Prosecution version briefly stated is that on the night between 21/22-5-1976, when Umar Din (PW.5) alongwith his son Abdul Sattar deceased, was sleeping in his land to protect his wheat "Pir", some time after mid-night, he was awakened by the sound of footsteps. A lantern was burning nearby. He saw both the accused armed with hatchets near the cot of his son. Faiz Ahmed accused raised a lalkara and Nasir Mahmood accused inflicted a hatchet injury on the neck of the accused who died as a result thereof. The occurrence was witnessed by Hakim A.I (PW.8) and Imam Din (PW.9) who were going to irrigate their land and were attracted to the place of occurrence by the noise raised during the incident.
4. In support of its case the prosecution relied upon the ocular testimony of three eye-witnesses namely Umar Din (PW.5), Hakim A.I (PW 8) and Imam Din (PW.9); the recoveries of hatchet's from the two accused-respondents; the evidence of motive and the medical evidence. The hatchets were not found to be stained with blood.
The learned trial Court, however, relied on the remaining evidence and convicted the two accused- respondents but on appeal the High Court acquitted both of them.
5. Feeling aggrieved Umar Din petitioner-complainant (father of the deceased) has filed the present petition for leave to appeal.
6. We have gone through the impugned judgment and heard the learned counsel for the petitioner.
One of the grounds which weighed with the learned High Court was that the injury on the neck of the deceased could not have been inflicted with hatchet. The injury has been described by the doctor who performed the post-mortem examination of the deceased, as follows: - "An incised wound 3 -- c.m. x 1 -- c.m. x muscle deep on the left side of the neck, starting 1-3/4 c.m.
Below the angle of the mandible going in of neck. Medial 1 -- c. m. Is skin deep only."
"On exploring the wound external carotid artery, external jugular vein, internal jugular vein Sterno- mastoid muscle and Sterno-hyoid were cut. Lungs were healthy and were pale and no blood was coming out on cut section..."
The learned High Court observed that; ...It cannot be forgotten that a hatchet is usually lifted 3 or 2 feet above the point where it is to be struck and then brought down with force and if a hatchet was so used, much more extensive damage would have been caused to Abdul Sattar deceased. In the instant case the medical evidence belies the ocular account. It therefore appears that none of the eye-witnesses were present at the spot or saw the occurrence------"
Learned counsel for the petitioner submitted that the damage caused by the blow, as deposed by the doctor (reproduced above), shows that the injury in question could have been caused by hatchet.
8. The next contention that weighed with the learned Courts below was that since Nasir Mahmood had placed himself on the head-side of the deceased he would only have been able to inflict a vertical injury on the head of the deceased, in line with the length of the bed but the injury on the neck of the deceased was in horizontal direction.
Learned counsel for the petitioner submitted that by saying that the assailant was standing towards the head-side of the deceased the witness meant to say that the assailant was standing on the broad-side of the cot, where the deceased had placed his head on the pillow and not the 'leg-side'. As such the blow given by the assailant could have caused a horizontal injury.
9. The next argument which weighed with the learned High Court was that while Umar Din father of the deceased woke up on hearing the footsteps of the assailant why should his son (Abdus Sattar deceased) not have woken up.
Petitioner's counsel submitted that it is well-known that older people have very light sleep compared to the young persons whose sleep is always more sound.
Another point which weighed with learned High Court was that although the incident had taken place in early hours of the morning, yet according to the doctor who performed the post-mortem examination of the deceased the dead body was received by him at 7 P. M.
Learned counsel urged that this observation overlooked that the distance from the place of the incident to the hospital is 26 miles and secondly that the doctor might not have been available at the time that the dead body arrived at the hospital. He urged further that mere making of an entry in the relevant register does not signify the time at which the dead body had arrived at the hospital.
10. Yet another point which weighed with the learned High Court was that the two other eye- witnesses namely Hakim A.I (P.W.8) and Imam Din (P.W.9) have stated that they were watering their fields in Square No.35 when they were attracted to the spot on the noise raised by Umar Din PW.
During the cross-examination they admitted that they did not own any land in the said square.
Petitioner's counsel submitted that this fact does not necessarily belie the eye-witnesses because it is not necessary for a person to have his own land for cultivation He pointed out that the witnesses had themselves stated that they had taken the land in question on lease for the purpose of cultivation.
11. We feel that the aforementioned contentions warrant further consideration. Leave is, therefore, granted in this case to consider whether the well-established principles of appreciation of evidence in criminal cases have been observed by the High Court.
12. Bailable warrants shall issue against Faiz Ahmad and Nasir Mahmood (Respondents 1 and 2), in the sum of Rs.20,000 each with two sureties each in the like amount to the satisfaction of District Magistrate, Okara.