AFRASIAB KHAN, J.--The appellant Zahid Iqbal, aged 19/20 years, son of All Akbar, armed with dagger P.3, was convicted under section 302, P.P.C. For the murder of Mahmood Ahmad, aged 21 years, and was sentenced to death plus fine of Rs.10,000 and in default thereof to suffer three years' rigorous imprisonment by the learned Additional Sessions Judge, Sialkot, vide his judgment dated 27-6-1985. The fine, if realized, half of it was ordered to be paid to the legal heirs of the deceased.
The appellant has come in appeal against his conviction and sentence and reference under section 374, Cr.P.C. Is also pending before us. We propose to dispose of both the criminal appeal as well as the murder reference together by this judgment.
2. Briefly, the facts of the prosecution case, as narrated by Rehmat (P.W.6) in the F.I.R., are that appellant Zahid Iqbal belongs to Ahl-e-Hadis sect of the Muslims, whereas the deceased Mahmood Ahmad, son of Rehmat complainant, was a follower of Ahl-e-Sunnat. The complainant stated that one year ago, both the appellant and the deceased together went to say their Peshi prayers in the mosque belonging to Ahl-e-Sunnat sect. While discussing religion, both of them quarrelled and consequently the deceased Mahmood Ahmad gave a beating to the appellant.
However, on the intervention of the people, both the appellant and the deceased entered into a compromise. However, the appellant nourished a grudge against the deceased. On 11-10-1984, at about 6-00 p.m., the complainant Rehmat (P.W.6) and the deceased were coming back home from their fields. When both of them reached near the sugarcane field of Nazir Ahmad, the appellant while armed with a dagger, emerged out of the field while shouting and addressing the deceased that he had given him beating a year ago and that he would be taught a lesson for that.
The appellant gave a dagger blow to the deceased just below the chest. Upon the hue and cry of the complainant, Muhammad Hussain (P.W.7), Amin Bakhsh (P.W.8) and Muhammad Nawaz (not produced) who were quite nearby, came and witnessed the occurrence. The appellant with the weapon of offence ran away from the spot. The deceased Mahmood Ahmad in an injured condition was brought to Pasroor hospital on a cot.
3. Wali Muhammad (P.W.12) S.H.O. Police Station Pasroor investigated the case. On 11-10-1984, he was on patrol duty and was present on Classwala Road along with Ghulam Haider constable.
Rehmat complainant (P.W.6) appeared before him and made a statement (Exh.P.D.) which was recorded by the witness and was sent through Ghulam Haider Constable for the registration of formal F.I.R. To Muhammad Arshad Inspector (P.W.9) who recorded the formal F.I.R. (Exh.P.D./1). The witness proceeded to the spot and prepared rough sketch (Exh.P.K.). He took into possession blood-stained earth from the spot vide memo. Exh.P.E. On the same day, he moved an application (Exh.P.J. ) as to whether the injured Mahmood Ahmad was in a position to make a statement or not.
The doctor opined vide his report (Exh. P.J. /1) that the injured was not fit to make a statement. On 14-10-1984, the appellant Zahid Iqbal appeared before him and accordingly he was arrested, on the same day, the appellant while in police custody, led to the recovery of dagger P.3 from his residential house which was taken into possession vide Memo. Exh.P.F. On 21-10-1984, the witness again visited Mayo Hospital, Lahore, in order to find out whether the injured was fit to make a statement. However, it was disclosed by the doctor that the injured was not in a position to make a statement. The injured Mahmood Ahmad died on 31-10-1984, at 7-15 a.m. The inquest report (EXh.P.N.) was prepared by the witness. On 2-11-1984, Banyan P.1 and shirt P.2 of the deceased Mahmood Ahmad were taken into possession vide memo. Exh.P.B. By the witness. Site plan (Exh.P.C.) was got prepared from Muhammad Nawaz Khan Patwari (P.W.5) by the witness. In cross- examination, the witness admitted that he did not check the fields to find out as to whether there was a trail of blood or not. He further conceded that he did not record the statements of witnesses of the earlier incident of motive. The witness admitted as correct that Talwandi Inayat Khan is situate on the road leading to Classwala from Pasroor. He admitted that Sikandarpur village where the occurrence took place is situate near the airport of Pasroor and in just opposite to Talwandi Inayat Khan. He stated that Sikandarpur village is two furlongs more from Pasoor than Talwandi Inayat Khan.
4. Dr. Fiaz Ahmad Ranjha (P.W.11) on 11-10-1984, at 10-00 p.m., medically examined the deceased Mahmood Ahmad, when he was alive, and found the following injury on his person:-
(1) A stab wound 4 x 2 c. m. x going deep into abdomen at the epigastric area with profuse bleeding and omentum coming out from the wound. General condition of patient was serious. B.P.
Was 70 systaltic and diastolic could not be recorded. Pulse rate was 116/minute. It was regular, thin thready and of low volume. Resuscitation done and patient was shifted to A.I.M. Hospital Sialkot for immediate surgical help. There was corresponding cut on Banyan and shirt. The Shalwar, Banyan and Kameez were blood-stained. B.P. After resuscitation was 110/60 m.m. H.g.
The nature of the injury was grievous and dangerous to life caused by sharp-pointed weapon within the duration of 3 to 6 hours. In cross-examination, the witness admitted that the injured Mahmood Ahmad was brought to the hospital on 11-10-1984 at 9-50 p.m.
Dr. Azam Yousaf, Registrar, North Surgical Ward, Mayo Hospital, Lahore (P.W.13) on 13-10-1984, examined the injured Mahmood Ahmad and found the following injuries on his person:-
(1) One stab wound 2" long in the epigastrium in the midline Stitches already applied.
(2) Left upper paramedian incision already made and stitched, starting from the centre of stab wound and going parallel and one inch left lateral to the lienal alba and ending 2" below the umbilicus on the left side.
(3) Five drains already put in the peritoneal cavity. One-corrugated drain and one tube drain in right iliac fossa and 2 corrugated and one tube drain in lateral aspect of left lumber area. Clinically abdomen distended, pender, rebound tenderness positive all over.
The injured died on 31-10-1984 at 7-15 a.m. Dr. Zahir Anjum Sherazi, Medical Officer Legal Examination, Lahore (P.W.1) conducted the post-mortem examination on the dead body of Mahmood Ahmad on 1-11-1984 at 11-45 a.m., and found the following injuries on his person:-
(1) Gaping wound 21 c.m. x 7 c.m. With 5 silk and tube stitches intact in left paramedian region of abdomen. Margins were irregular and infected.
(2) Surgical stitched wound 5 c.m. Long with 5 stitches intact on left upper arm.
(3) Surgical stitched wound 3 c. m. x 1 c. m. With 11 stitches intact on front of left shoulder.
(4) Surgical stitched wound 2 c.m. Long with 4 stitches intact on front of right shoulder.
In the opinion of the doctor, all the injuries were ante-mortem. Injury No. l was caused with sharp- edged weapon while injuries Nos. 2, 3 and 4 were caused by surgical interference. Cause of death was Septicaemia secondary to abdominal injury. The probable time that elapsed between injuries and death was two to three weeks and that between death and post-mortem examination was 24 to 36 hours.
The blood-stained earth and the dagger P.3 were examined by the Chemical Examiner as well as the Serologist. According to the report of the Serologist (Exh.P.T.) these articles were found to be stained with human blood.
5. The prosecution in order to prove its case against the appellant, produced as many as three eye-witnesses, namely, Rehmat (P.W.6), father of the deceased Mahmood Ahmad, Muhammad Husain (P.W.7), real paternal-uncle of the deceased, and Amin Bakhsh P.W.8 a cousin of the complainant Rehmat (P.W.6). Rehmat (P.W.6) stated that on the day of occurrence he and the deceased Mahmood Ahmad were coming to the village from their fields. Near the sugarcane field of Nazir Ahmad, the appellant while armed with dagger, came out and gave a dagger injury on the abdomen of the deceased just below the chest. About the motive the witness stated that the deceased was the follower of Ahl-e-Sunnat, whereas the appellant belonged to Ahl-e-Hadis sect and that earlier the appellant and the deceased had grappled with each other on account of religious differences and they were separated by the persons who were present at the spot. The witness submitted that the deceased was going ahead of him about 6/7 karams when he was attacked and was given a dagger injury by the appellant, which incident was witnessed by Muhammad Nawaz (not produced), Muhammad Hussain (P.W.7) and Amin Bakhsh (P.W.8). The witness stated that the injured was brought to the village on a cot from where he was taken to Pasroor hospital in a tonga. The witness stated that he was going to the police station Pasroor when the Investigating Officer met him in the way and thus his statement Exh.P.D. Was recorded.
Almost to the same effect are the statements of Muhammad Husain (P.W.7) and Amin Bakhsh (P.W.8).
6. The appellant when examined under section 342 Cr.P.C. Before the trial Court, denied the allegations of prosecution and pleaded that he has been falsely involved in the case. The appellant produced his father Ali Akbar as D.W.1, who stated that the appellant did not quarrel with the deceased on account of religious difference. However, the witness disclosed that the deceased was a man of bad character and wanted to have immoral relations with the appellant.
7. Learned counsel for the appellant submitted that this was a case of blind murder inasmuch as the eye-witness account provided by Rehmat (P.W.6), Muhammad Hussain (P.W.7) and Amin Bakhsh (P.W.8) is highly interested, partial and unreliable. It is stated that there is absolutely no corroboration to the eye-witness account provided by the so-called eye-witnesses. Learned counsel stressed that there is no direct evidence produced by the prosecution so far as the incident of motive is concerned. Learned counsel submitted that the recovery of dagger P.3 is highly doubtful and cannot be given any credence. Learned counsel vehemently argued that the lodging of the F.I.R. As well as the medical examination of the injured by the doctor were considerably delayed and this fact will amply demonstrate that the deceased was caused the injury by some unknown assailant and that there was no one present at the spot, and, therefore, after considerable delay the injured was shifted to the hospital. Learned counsel submitted that the prosecution has failed to provide any sufficient explanation for lodging the F.I.R. After such a long delay. The learned counsel appearing on behalf of the State has supported the conviction and sentence awarded to the appellant by the trial Court. He stated that the mere fact that the eye- witness account was provided by the witnesses related to the deceased, 'should be discarded only on the ground that the witnesses are related to the deceased. He stated that the motive to commit the murder stands proved by the evidence on record.
8. After hearing learned counsel for the parties. And perusing the record of the case very minutely, we are of the view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. To begin with, the occurrence took place on 11-10-1984 at 6-00 p. m. In village Sikandarpur and the report was lodged by Rehmat (P.W.6) with police station Pasroor on the same day, namely, 11-10-1984, at 10-35 p. m. On the face of it, there is unexplained delay of more than four hours. This was a very material circumstance which has not been considered by the learned trial Court. In the F.I.R. The distance from the place of occurrence, namely, village Sikandarpur, to police station Pasroor has been shown as seven miles. However, according to the statement of Wali Muhammad (P.W.12) S.H.O. Police station Pasroor, the distance between the police station and the place of occurrence is decidedly less than three miles. He conceded in cross-examination that Talwandi Inayat Khan is at a distance of about two miles from Pasroor. Sikandarpur village is situated near the airport of Pasroor and is opposite to Talwandi Inayat Khan. The witness further stated that Sikandarpur village will be two furlongs more from Pasroor than Talwandi Inayat Khan.
Thus, it is crystal clear that village Sikandarpur, the place of occurrence is at a distance of between 2 to 3 miles away from police station as well as Tehsil Headquarters hospital at Pasroor. It is also in the evidence of this witness that Talwandi Inayat Khan is just situate on the road leading to Classwa la from Pasroor. The witness has also stated that Sikandarpur village is situate quite near the airport of Pasroor.
9. The mere that the place of occurrence is quite near the village Sikandarpur, which in turn is situate quite close to the pucca road, will amply support the view that if the murder of the deceased had been witnessed by the father of the deceased Rehmat (P.W.6), his paternal uncle Muhammad Hussain (P.W.7) and deceased's father's cousin Amin Bakhsh (P.W.8), then the injured Mahmood Ahmad should have been immediately removed to the Tehsil Headquarters Hospital, Pasroor not later than half an hour. This is in the evidence that Mahmood Ahmad deceased was brought from the village on a tonga. Therefore, the necessary transport being available, the deceased should have been brought much earlier than actually he was transported to the hospital at 9-55 p.m. In the night. This shows beyond any shadow of doubt that the deceased was caused an injury by some unknown person and he lay at the spot in an injured condition without being witnessed by anybody at the spot. We are, therefore, not prepared to accept the eye-witness account provided by Rehmat (P.W.6), Muhammad Hussain (P.W.7) and Amin Bakhsh (P.W.8). These witnesses being the close relatives of the deceased, were later on made the eye-witnesses by the investigating police. The presence of H Rehmat (P.W.6) at the spot is also without any purpose. He has stated in his evidence that he had gone with the deceased to look after the sugarcane field. He conceded that on the day of the occurrence, he had not gone there to irrigate his field or to do any.
Special work there. He also disclosed that he had not constructed any Dera in his land. He admitted hat he keeps his cattle in the village. The evidence of Muhammad Hussain (P.W.7) who is the real paternal uncle of the deceased, as stated earlier, does not inspire any confidence. The witness appears to be quite shaky. In the beginning he point blankly refused to be related to the deceased and he took the plea that the deceased was from his brotherhood and that the father of the deceased was not at all related to him. However, in the latter part of the cross-examination the witness changed his stand and stated that he was the real brother of Rehmat complainant (P.W.6).
The presence of this witness at the spot is also without any set objective. He states he was there along with Amin Bakhsh (P.W.8) for the purpose of gossiping and that there was nothing special to be there at the spot. The witness on the face of it appears to be a chance witness. He, therefore, cannot be believed for the purpose of convicting the appellant on capital charge. Similarly, Amnin Bakhsh (P.W.8) is also not an independent witness. He has conceded his relationship with the complainant Rehmat (P.W.6). He has deposed that he as well as Muhammad Hussain (P.W.7) were coming from Northern side and were proceeding to their house in the village. From the site plan (Exh.P.C./1) the village Sikandarpur is situate exactly in the East from the place of occurrence. This witness has deposed that they were coming from the Northern side. Muhammad Hussain (P.W.7) and Amin Bakhsh (P.W.8) are not expected to come from the Northern side towards South so as to see the occurrence. Their declared purpose was that they were leading towards their village which is situate in the East from the place of occurrence, therefore, there was no occasion for them to proceed towards the South instead of proceeding towards the East where the village is situate.
Under these circumstances it appears from the record that these two eye-witnesses, namely, Muhammad Hussain (P.W.7) and Amin Bakhsh (P.W.8) were not present at the spot, nor they had witnessed the occurrence. They have been planted by the prosecution to become the eye- witnesses. It is not possible to believe the version of the prosecution that the eye-witnesses who were standing quite near the place of occurrence, should not intervene so as to save the life of the deceased. They did not move an inch to do so. They also did not raise any hue and cry upon the attack of the appellant.' They remained all the time mere silent spectators. Their conduct at the spot makes them the doubtful witnesses. It has already been) noted that the eye-witnesses are closely related to the deceased, inasmuch as Rehmat (P.W.6) and Muhammad Hussain (P.W.7) are' the father and paternal uncle of the deceased respectively, whereas Amin Bakhsh (P.W.8) is the cousin of P.Ws. 6 and 7. In view of', this, if they were there, as the prosecution wants us to believe, they must act physically which they failed admittedly. This is a, strong circumstance, which suggests their absence from the scene of occurrence. We, therefore, repel the eye-witness account in its entirety.
10. There is not an iota of evidence to prove the factum of motive for the occurrence. The only evidence provided by the so-called eye-witnesses is that of the complainant Rehmat (P.W.6), but he does not say that he had himself witnessed the earlier occurrence of motive. He deposed that certain other persons of the village saw the occurrence, but those persons were not produced as eye-witnesses in support of the occurrence. Therefore, we have come to the conclusion that the first occurrence providing motive for the appellant to commit the murder, has not at all been proved by any direct evidence. Additionally, the so-called motive took place a year ago on discussion about religion. There is nothing in the evidence to show as to what was the nature of the religious discussion having taken place between the appellant and the deceased. There is also no evidence to show that the village population is divided into two sects, namely, Ahl-e-Sunnat and Ahl-e-Hadis. On the contrary, there is evidence that the whole population of village Sikandarpur belongs to Ahl-e---Sunnat Sect. This evidence has been provided by Ali Akbar D.W.1, and there is no contrary evidence produced by the prosecution about the fact that the village population is divided into two sects of Islam. Under these circumstances, motive as set up by the prosecution, is flimsy and feeble and is wholly unreliable. We are not prepared to accept a word of mouth from the prosecution side to suggest that one year ago a quarrel between the appellant and the deceased took place which quarrel was never reported to the police, nor any complaint was made before the village headman or before any other authority. In between the incident of motive and the occurrence leading to the murder, nothing untoward happened between the appellant and the deceased. This further leads us to believe that the motive as set up by the prosecution, on the face of it is false. The recovery of dagger P.3 has also not been established beyond reasonable doubt. As observed earlier, we have discarded the eye-witness account provided by Rehmat (P.W.6), Muhammad Hussain (P.W.7) and Amin Bakhsh (P.W.8). Amin Bakhsh (P.W.8) is also a witness to the recoveries. This witness, as observed earlier, is admittedly related to the complainant. He has conceded in cross-examination that the investigating Officer had asked him to become a witness for the recoveries as well. He admitted that there were other persons of the village who were not related to the complainant party and as such, they were asked by the investigating Officer to go away. Thus, it is clear that there were other independent witnesses available who were not intentionally made to witness the recoveries. The witness has disclosed that he refused to join the investigation but the investigating Officer directed him to join the police investigation as he was the headman of the village. Therefore, the evidence of this witness becomes highly doubtful vis-a- vis the recovery of dagger P.3. All these facts and circumstances, taken together, will show that the recovery of the dagger P.3 was fake and bogus and was planted to corroborate the eye-witness account of the occurrence. According to the prosecution version, dagger was used in the commission of crime but a dagger like chhuri was recovered at the alleged instance of the appellant. This again will falsify the story of the prosecution. The medical evidence, in our view, does not support the prosecution evidence in any way. The only injury on the person of the deceased was on the abdomen. The cause of death in the opinion of the doctor was Septicaemia secondary to abdominal injury. This clearly means that the death had taken place because of the Septicaemia. Septicaemia is a disease which is caused by the absorption of certain bacteria and from toxin into the blood stream. We have given our anxious thought and have come to the conclusion that unfortunately the deceased was not provided any immediate medical relief at the place of occurrence. As held earlier, the deceased lay at the spot in an injured condition for considerable time and thus after the expiry of about four hours, he was given some medical aid in Tehsil Headquarters hospital, Pasroor. But by that time, much damage had already been caused to the deceased because of the grievous injury on his person. This is unfortunate that there was no health centre available in the village to provide medical aid to the deceased. In our view, it appears that there was no ample medical arrangement in the Pasroor hospital as well. The deceased was shifted from Pasroor to Mayo Hospital, Lahore for better medical treatment on 13-10-1984. Therefore, in between this long duration, in our view, the disease like Septicaemia had taken place which disease in the opinion of the doctor was the cause of death of the deceased. In view of the nature of the condition of the deceased, he on the very first day should have been shifted from Pasroor to Mayo Hospital, Lahore. This was not done. Therefore, we think that the life of the deceased would have been saved if he was given the proper and effective medical treatment at the earlier stage.
11. The upshot of the above discussion is that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Accordingly, while giving the benefit of doubt, we proceed to set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith if he is not wanted in any other criminal case. The sentence of death awarded to him is not confirmed. Accordingly, the appeal is accepted.