MUHAMMAD AFZAL CHEEMA, J.---Noor Muhammad and his three uncles Ghulam Muhammad, GhulamAbbas, Ghulam Hur were tried along with the fifth accused Ghulam Mohd. Son of Ghulam Hassan for the murder of one Muhammad Yar allegedly com--mitted by them at about 4-30 p. m.
At deegarwela on 11th December 1965, in the wild riverain growth of kye at a distance of seven miles from Police Station Isakhel, district Mianwali. On conviction by the learned Sessions Judge, they were awarded the sentence of transportation for life each under section 302/34, P. P. C. And have preferred the present appeal against their convic--tions and sentences.
2. The background of the case briefly is that on 9th December 1965, Muhammad Yar deceased accompanied by Ghulam Abbas (P. W. 8) went to Wandha Bakhshe Khelanwala in order to offer condolence, for the death of one Mst. Amiran daughter of Sher Muhammad (P. W. 9). The distance between the two villages is 7/8 miles. Having spent the night there, the deceased and Ghulam Abbas P. W. Started back and decided to spend the night in village Hindal Wala which fell on the way, in the house of Ale Muhammad P. W., a cousin of the deceased. On 11th December 1965, after having taken their meals, the deceased and Ghulam Abbas P. W. Left for their village Wandha Bakhshe Khelanwala. Mst. Amiran (P. W. 11), sister of Ali Muhammad P. W. Also decided to accompany there for offering condolence, for the death of Muhammad Yar in viliage Wandha Bakhshe Khelanwala. It appears, that they bad crossed the river at a place known as Pattan Nuar Wala presumably on a boat. Having crossed the river as they were prising through the wild growth of kye all of a sudden, the accused emerged from the jungle. Ghulam Abbas was armed with a gun, while the rest wielded sticks. Ghulam Abbas pointed his gun. Towards the deceased and challenged him, and threatened to kill anybody who dared to come near. Ghulam Hur accused then gave a sod blow to Muhammad Yar deceased hitting him on the left temporal region.
Muhammad Yar deceased tell down. The other accused gave mare blows to him with their sticks.
Having almost killed him, Ghulam Abbas and iris co-accused left the place. After the departure of the assailants both the eye-witnesses came near the deceased and found him lying unconscious.
Leaving Mst. Amiran (P. W. 11) with Muhammad Yar, Ghulam Abbas went to the house of Muhammad Yar where he informed his brother Gulzar P. W. About the incident who accompanied by 11/12 persons reached the spot. They lifted the deceased on a cot and removed him to the village, after a short while started for the police station. They had hardly covered a distance of 200 karams when Muhammad Yar expired. Gulzar P. W. Left for Police Station Isakhal which is four miles away, and lodged report Exh. P. A. At 3-00 a. m. In the early hours of the morning. The first information report was recorded by Safdar Ali Shah, S. I. (P. W. 12), who proceeded to the spot, and after spot inspection, sent the dead body for post-mortem examination under the escort of Khan Zaman (P. W. 2).
3. The accused were arrested by the Sub-Inspector on the 16th December 1965, when Ghulam Abbas led to the recovery of gun (P. 1) which was taken into possession vide memo, Exh. P. B. Others also led to the recoveries of sticks, which were not found to be blood-stained and thus were not of much con--sequence. The motive alleged by the complainant in the F. I. R. Was, that the deceased had obtained the band of Mst. Mehr Bhari, sister-in-law of Ghulam Hur appellant for his brother Gulzar P. W. On the promise that he shall give in exchange the hand of his daughter to the son, of the former. As a result of this settlement, Mst. Bakhat Bhari was married to Gulzar, while the deceased went back on his commitment and refused to give the hand of his daughter and as a result of this, the relations between the parties got strained. Again six or seven months prior to the occurrence, cattle of Ghulam Mustafa P. W. Son of Muhammad Yar deceased, trespassed into the field of Ghulam Abbas appellant, who gave stick blows to Ghulam Abbas. The last incident related was that a few days prior to the occurrence, a fight had taken place between the parties wherein Ghulam Abbas appellant was beaten by the deceased and his brother.
4. Post-mortem examination of the dead body of Muhammad Yar was performed by doctor Z: H.
Mansoor, Civil Hospital, Isakhel, on the following day at 12 noon, who vide his report Exh. P. K., found the following injuries on it :-
(1) A contusion 9" x 11" over the front of thigh in the middle on the right side.
(2) A contusion 8" x 9" over the front of left thigh in the middle.
(3) A contusion 7" x 5" ever the posterior aspect of right thigh, 2" below the fold of the buttock.
(4) A contusion 10" x 4" over the posterior aspect of left thigh, 3" x below the fold of the buttock.
(5) A contused area 12" x 11" over the back of chest within the medial border of the two scapulae.
(6) A contusion 6" x 1" from the posterior anxillary line across the left scapula.
(7) A contusion --" x --" by the side of the lateral end of left eye.
Chest walls were contused on the back on both sides. Right 7th and 8th rib were fractured near the spinal end. Pleura were contused. Stomach contained five ounces of semi-digested food material.
Right lobe of the liver was contused. 'Bladder con--tained two ounces of urine.
It would be pertinent to refer in this context to the large rectangular area covered by the contusions described above and in particular to those shown against injuries Nos. 1 and 2 on the front of the thigh with corresponding area on the back of the thighs shown against injuries Nos. 3 and 4, respectively and lastly the square shape contusion against injury No. 5 on the back of the chest.
The rather unusual dimensions of these injuries are more prominently indicated in the pictorial diagram Exh. P. K/1.
6. In addition to the ocular evidence of Ghulam Abbas, Mst. Amiran (P. W. 11), the only two eye- witnesses, in the case, the prosecution case rested on the statement of Mustafa P. W. Son of the deceased, Muhammad Yar (P. W. 6), his first cousin and of course -the medico-legal evidence. The recoveries were of .No consequence inasmuch as, they could not be connected with the commission of the offence.
7. While examined under section 342, Cr. P. C. The appellants pleaded not guilty to the charge and confined themselves to a total denial of the prosecution case without raising any specific plea in defence. Placing full reliance on the testimony of the eye-witnesses, supported by the evidence of motive and the medical evidence, the learned trial Judge came to the conclusion that the offence bad been fully brought home to the accused except Ghulam Muhammad son of Ghulam Hassan, who was found to be entitled to the benefit of doubt on the two-fold ground ; firstly, that he bad no direct motive to kill the deceased and secondly, that he led evidence in his defence in the course of investigation to which reference was also made by the Investigating Officer in his report under section 173, Cr. P. C.
8. Learned counsel for the appellants has raised the following contentions before us -
(i) that there is inordinate delay in the lodging of the report which has not been satisfactorily explained ;
(ii) that the statement of Ghulam Abbas P. W. Does not inspire confidence inasmuch as, he even does not know the age of Mst. Amiran, daughter of Sher Muhammad on the pretext of whose death, he had accompanied the deceased a couple of days prior to the occurrence, for offering condolence ;
(iii) that Mst. Amiran besides being the first cousin of the deceased, was a chance witness and as such, her testimony has to be taken with a grain of salt ;
(iv) that there is a glaring discrepancy between the ocular evidence and the medical evidence ; and
(v) that the prosecution case on the whole is doubtful, inas--much as, the two eye-witnesses namely, Ghulam Abbas and Mst. Amiran being chance witnesses, were related to the deceased.
9. Having considered the contentions raised by the learned counsel as also the explanations offered in defence by the learned counsel for the State, we find considerable substance in them and are of the considered view that the convictions and sentences of the appellants cannot be maintained.
10. In the first instance, the P. Ws. Have consistently stated that the deceased accompanied by Ghulam Abbas and Mst. Amiran P. Ws. Had left for Hindalwala, after taking their meals at 11-00 a. m.
And the occurrence allegedly took place at jhikki digarwela which taking the most favourable position for the prosecution would be about 4-30 p. m., sun-set time on the 11th December 1965, being 5-02 p. m. After the occurrence, Ghulam Abbas should have reached his village in 40 minutes time having travelled a distance of 2-- miles. But even if he reached there at 5-30 leaving a further margin of half an hour to enable him to inform his relation, they should have left for the spot at about 6-00 p. m. And reached there at about 6-40 p. m. But assuming they reached the spot at 7-00 p. m., they would have returned to their village at 7-40 p. m., or at 8-00 p. m. At the latest. Adding to this another hour, and proceeding on the assumption after the expiry of the deceased, Gulzar had left for the police station at 9-00 a. m., it would not have taken him more than two hours in any case to cover a distance of 4/5 miles and as such the report should have been reasonably lodged at about 11-00 p. m. The latest, which instead was lodged at 3-00 a. m. On the following morning. The delay, therefore, was not only inordinate but also remained unexplained.
The second point to be noted in this regard is the presence of semi-digested food material in the stomach of the deceased at the time of post-mortem examination conducted at 11 a. m. On the next day. Making allowance for the functioning of the stomach for some time even after death, if the deceased had left village Hindwala at 11-00 a. m., after taking his meals, semi-digested food should not have been found in his stomach by any stretch of imagination revealed by the post- mortem examination.
11. Again having carefully considered the dimensions of the injuries allegedly caused with sticks, we fail to understand how such regular and rectangular contusions in large areas could have been found on the body of the deceased as a result of stick blows. Except for injury No. 6, which was a contusion 6" x 1" and injury No. 7, --" x --", which could have been caused by sticks, the dimensions of the other injuries do not in any manner correspond to or fit in with sticks blows. Unfortunately, this inconsistency between the ocular evidence and the medical evidence, appears to have escaped the notice of the learned counsel, who defended the appellants at the trial. In order to seek its resolution, we had also considered it expedient to summon the doctor to record his additional evidence in the interest of justice under sections 375/428, Cr. P. C. But our enquiries have revealed that before the dissolution of one unit, Dr. Z. H. Mansoor was last posted at Quetta and on his transfer to the Punjab, never joined at his new station, and still remains unheard of. Again in the same context, it would also be pertinent to refer to another aspect. There is not even a single speck of blood on the last wearing apparels of the deceased which were taken into possession by the Sub-Inspector vide memo. Exh. P.G.
12. Furthermore there is considerable force in the conten--tion raised by the learned counsel that Ghulam Abbas who accompanied the deceased on his last journey on the morning of 9th December 1965, reaching village Wandha Bakhshe Khelan--wala to offer condolence did not even know the age of the deceased girl on account of whose death, they had undertaken the journey.
Even otherwise, his statement does not inspire confi--dence. Mst. Amiran on her own showing suddenly thought of accompanying the deceased and Ghulam Abbas on their return journey on the pretext of offering condolences for the death of the son of Muhammad Yar P. W., who had died about three weeks earlier. It is in evidence that the party had crossed the river at the ferry known as Pattan Nasar Wala, before proceeding to their village, as indicated by the inquest report Exh. P. J. It is common knowledge that at such ferries, boats normally carry a large number of passengers and it is hardly believable that the deceased alone would have travelled in the boat. In the circum-- stances, therefore, one would have naturally expected at least some other passengers travelling in the same boat and accompanying the deceased and the two P. Ws. At the time of the attack.
When considered in this background, the fact, that the two eye--witnesses besides being chance witnesses, were closely related to the deceased assumes special significance. In the circumstances, therefore, it would not be safe to place reliance on their testimony in the absence of unimpeachable corroboration which is conspi--cuous by its absence.
13. Although the appellants did not raise any specific plea during the examination under section 342, Cr. P. C. Yet a two-fold suggestion was made to the P. Ws. During the cross-examination, firstly, that at the relevant time, the deceased had gone to purchase a cane-crusher and was carrying a huge amount on his person and secondly, that he had illicit connection with the wife of one Habib with whom earlier, he had also a fight. This last sugges--tion was put to Ahmad Yar (P. W. 6), first cousin of the deceased, but was denied. Of course, no evidence was led in further support of these suggestions. Be that as it may, the fact remains that the onus to prove its case lies on the prosecution without reasonable doubt, which it has failed to discharge as detailed earlier.
14. The upshot of the discussion is that the offence was not brought home to the appellants in accordance with the legal requirements. Accordingly, we accept the appeal, set aside the F convictions and sentences of the appellants and direct that they shall be released from jail, if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.