Nazar aged 24 years, Muhammad Yar aged 25 years and Muhammad Ali aged 26 years, were tried for the murder of Jalal Din deceased, by the learned Sessions Judge, Sahiwal. Nazar co-accused was acquitted but Muhammad Yar and Muhammad Ali appellants were convicted of an offence under section 302/34, P. P. C. And each of them was sentenced to transportation for life vide judgment dated 22nd May 1968. Muhammad Yar appel--lant has filed an appeal through Mr. M. G.
Cheema, Advocate, while Muhammad Ali appellant has filed an appeal through Jail, against their conviction and sentence. I shall dispose of both the appeals by single judgment.
2. The facts of the prosecution case briefly stated are that on the night between 11/12th of July 1967, Jalal Din deceased was sleeping at the tube-well of Sardar Qasim Ali, in Chak No. 5/S. P., District Sahiwal, to guard the cattle. Ahmad Ali P. W. 6 who had come to visit the deceased, was also sleeping nearby on a separate cot. At about one pehr before sun-rise, Muhammad Ali, Muhammad Yar appellants along with Nazar co-accused who according to the prosecution were fast friends inter se, came there armed with hatchets and started inflicting blows to Jalal Din deceased while he was sleeping on his cot. Ahmad Ali P. W. 6 woke up on hearing a gurgling sound made by the deceased and saw the accused persons giving hatchet blows to him. He raised an alarm saying "mar giya mar giya". Nawab and Sarfraz Khan P. Ws. 4 and 5 respectively, who were already coming to that side, rushed towards the spot on hearing the alarm. Nawab P. W. 4 had a lantern with him. In the light of the said lantern they also saw the three accused persons giving hatchet blows. They challenged the accused persons and ran towards them to apprehend them. Muhammad Ali appellant, however, told them not to come near. He also said that they were killing Jalal Din (deceased) as he had illicit relations with his aunt. Thereafter the three accused persons ran away with their respective weapons. The blade of one of the kulharis, however fell down at the spot as the handle of the kulhari had been broken during the incident. Jalal Din deceased died before the witnesses even had the time to examine him. Many other people collected at the spot. Nawab P. W.
4, lodged the F. I. R. (Exh. P. B.) at Police Station Haveli on the next morning i.e. On 12-7-1967 at 8 a.m.
It was recorded by Tufail Muhammad S. H. O., P. W.
11. After recording the F. I. R., the S. H. O. Went to the spot and after preparing the necessary documents, sent the dead body for post-mortem examination. He took into possession some blood-stained earth from underneath the cot vide memo. Exh. P. F. Nawab P. W. Produced lantern P. 1 before him which was taken into possession vide memo. Exh. P. C. Blood-stained blade with its broken handle was found lying out--side, which was taken into possession vide memo. Exh. P. G. The S. H. O. Also took into possession blood-stained cot P. 5, pillow P. 6, turban P. 7, Tobacco Guthli P. 8 and Jul! (quilt) P. 9, belonging to the deceased, vide memo. Exh. P. H. These were all stained with blood. The three accused, were arrested on 13 of July 1967, at a place five acres from the spot. Nazar (acquitted accused), led to the recovery of blood- stained hatchet P. 10 from his residential kotha, which was taken into possession vide memo. Exh. P.
J. Similarly, Muhammad Yar appellant led to the recovery of blood-stained hatchet P. 1 t from his residential kotha in Chak No. 5/S. P., which was taken into possession vide memo- Exh. P. K.
Thereafter Muhammad Ali appellant got recovered the blood-stained wooden handle P. 12 of hatchet blade P. 4 found at the spot, from his residential kotha in the same village. It was taken into possession vide memo. Exh. P. L.
3. Dr. Aftab Ahmad P. W. 1, Medical Officer Depalpur, who performed the post-mortem examination found the following injuries on the dead body of the deceased: -
(1) An incised wound 2-- x 1-- x mouth cavity deep on the right side of the lower jaw. The jawbone and the tongue and part of the right lip were cut.
(2) An incised wound 1--' x --' x bone deep 'on the left side of chin.
(3) An incised wound 3/4' x 1 /4' x bone deep on the tip of the chin.
(4) An incised wound 8' X 3' on the front of the neck and upper part of the front of right chest.
Dissection. The right clavical, traches, oesophagus and major blood vessels on the right side of the neck were cut.
(5) An incised wound 3 x 2' x chest cavity deep on the upper part of the front of the left chest. The clavical bone under--neath was cut.
(6) An incised wound 3/4' X 1/L' x skin deep on the middle of the left clavical.
(7) An incised wound 5-- x 1' x bone deep on the upper part of front of right chest extending to the front of the right shoulder. The shoulder bone was cut underneath.
(8) An incised wound 1/4' x 1/6' x skin deep just above the medial end of right eye-brow.
In the opinion of the doctor death was due to shock and haemorrhage. Injury No. 4 could cause death individually.
After the completion of the investigation, the accused persons were ultimately committed to stand their trial before the Court of Session. At the trial, the prosecution produced 11 witnesses in support of its case. The prosecution relied mainly on the ocular testimony of Nawab P. W. 4, Sarfraz Khan P.
W. 5 and Ahmad Ali P. W. 6 corroborated by the evidence of (i) motive, (ii) recovery of blood- stained hatchets at the instance of the accused' persons, (iii) the recovery of blade of hatchet P. 4 from the spot which fitted in the handle P. 12 got recovered by Muhammad Ali appellant, (iv) the medical evidence.
4. I have heard the learned counsel for the appellant in Criminal Appeal No. 475 of 1968. The learned counsel for the State, appeared in both the appeals namely, Criminal Appeal No. 475/68 and Criminal Appeal No. 536 of 1968. In the last mentioned appeal which is a Jail Appeal, he not only represented the prosecution points of view but also highlighted the points favouring the appellant.th
5. The first contention urged by the learned counsel for Muhammad Yar appellant is that all the three eye-witnesses are false inasmu ch as crone of them had actually seen the occurrence and they are made-up witnesses. He pointed out that Ahmad Ali P. W. 6 who is said to have been sleeping with the deceased at (lie tube-well, belongs to an altogether different village, called Rakh Jowaya Baloch. It is in evidence through Nawab P. W. 4 that the said village is situated at a distance of three miles from Haveli which, in turn, is situated at a distance of 8 miles from the place of occurrence. Ahmad Ali P. W. Has explained his presence at the spot by saying that he had come to the village 5/'S. P. To ask for the hand of the daughter of Jalal Din deceased for his son.
Thereafter he went over to the tube-well of Sardar Qasim Ali in order to see Jalal Din. He is said to have taken his meals with the deceased and then got slept there. The learn; ~i counsel for the appellant contended that this witness was, on the own showing, merely a chance witness for had he not visited tip, tube-well on that date and chosen to sleep there, he would not have been able to see the occurrence. The learned counsel their fore contended that this witness was not present at the tube-well and never saw the occurrence. I am inclined to agree with this view for, besides the fact that he was a chance witnesses, there are other indications on the record that lie was not present at the spot. The reason given by him for being present at the spot at the time of occurrence has already been given about. He stated during the cross-examination that he had also given the same reason namely, that lie had gone to village 5/S. P. For the betrothal of his son with the daughter of the deceased, in his statement before the police. But on being confronted with the said statement it was found that this reason had not been men--tioned there. Further he denied having stated before the committing Magistrate that: -- It is incorrect, that I had gone them simply to see the deceased and I did not state so before the police.
However, when confronted with the statement before the com--mitting Magistrate it was found that lie had said so there. The above-noted contradictions casts a serious doubt on the very reason of his being present at the spot. I have often noticed that in such cases where a person is murdered at the dead of night, in a far oil- and lonely place like a tube-well located at some distance from the village abadi, the prosecution is usually anxious to introduce at least one witness who is, for one reason or the other, said to have been sleeping with the deceased on the fateful night. In this ca e, tore, I think a similar attempt has been made and Ahmad Ali P. W. 6 has been introduced simply to depose that he was present atthe spot when the occurrence took place. He has given a cock and bull story to explain his presence at the spot which 1 alit not at all inclined to believe for the reason given above. I am of the view that he was not present at the tube-well on that night.
6. I now take up the statements of the remaining two eye--witnesses namely, Nawab P. W. 4 and Sarfraz Khan P. W. S. As already mentioned, the occurrence is said to have taken place about one pehr before sun-rise. In other words, at about three hours before sun-rise. The sun-rise in those days would be at about 5 a.m. From this it appears that the occurrence took place somewhere at 2 a.m. This view is fortified by the fact that Ahmad Ali P. W. 6 had stated before the committing Magistrate that Nawab P. W. Had left for police station for making the report at about 2/3 a.m.
(although at the trial Ahmad Ali P. W, denied having said so before the committing Magistrate, yet it was found that he had in fact stated so during the commitment proceedings). The night of occurrence, as admitted by Nawaz and Sarfraz Khan P. Ws. Was a dark one. These P. Ws. Have not taken zany plausible explanation for having been present near the spot, at that hour of the night.
Sarfraz Khan P. W. Has explained that he along with Nawab P. W. 4 was going to his own tube-well to make a surprise visit in order to check work of his servants. He elaborated this explanation during cross-examination as follows: - "I had to check my servants about irrigating ' and about rile use of fertilizers etc. Fertilizers are used Sri the day whereas the fields are irrigated in the night time. My tube-well was-- working on the night of occurrence, and I used to make surprise visits previously as well during the night. Eight of my servants worked on my tube-well. I had no suspicion against my servants for causing any loss to my crops. I wanted to check that they do not damage my tube-well."
The contradictions in these explanations are obvious. If he had no suspicion against his servants, there was no reason for him to have one for checking at the dead of night. In any case, if he intended to make a surprise checking, the lantern being carried him would have given to his servants more than sufficient warning of his approach The whole thing therefore, appears be concoction, made only to explain, the purpose of his presence the spot at the unearthly hours of 2/3 a.m. Again, as usual such cases, since it was a dark night, the prosecution was naturally keen to introduce a lantern, in the light of which tire messes can be said to have identified the culprits.
Moreover highly improbable that the accused persons stayed-on tit the till the arrival of these two witnesses who were allegedly carrying a lantern. Further Nawab P. W. 4 has stated that they had heard the alarm from a distance of four kanals i.e. About feet. According to the witnesses they started running towards spot and reached the spot, where conversation actually took place between these two witnesses and the appellants. This is evident from the following statement of Sarfraz Khan P. W. 5, 'We challenged the assailants and asked Ahmad Ali 'to take courage that we had arrived, We were at a distance of 3/4 h karams, when we identified the accused persons. There was the light of lantern. Muhammad Ali accused also had takrar with us at that time. Even after that takrar the accused gave one or two blows each to the deceased in our view. Thereafter the accused persons ran away with their respective weapons."
The witnesses have attempted to say that the place of occurrence was such that the lantern could not be seen unless they reached near the tube-well. But, as already mentioned it was admittedly a dark night and in the darkness the lantern must have been visible from a fairly long distance.
Besides this, the witnesses admitted having raised a cry that they were approaching for help and they actually covered a distance of four kanals and reached the place of occurrence so near as to be able to conversate the accused which must have taken sometime of these witnesses to reach the tube-well through crops for admittedly they were travell--ing not on path beet through banna.
I had already noticed that there were only 8 injuries on the person of the deceased, three or even two persons could have caused these injuries in a few seconds. The obvious reason of their attacking the deceased in the middle of a dark night was to avoid the risk of being identified. It is impossible to believe therefore that the accused persons stood there unmindful of the approaching of the witnesses, even after seeing the lantern or hearing their shouts that they were coming for help. The accused could not have known the number of the persons approaching and as to whether or not some of them were armed with fire-arms their chief anxiety therefore would have been to run away and make good their escape. In view of the above-- noted circumstances I am inclined to feel that the whole prosecu--tion story is a fabrication. This view is supported by the fact that the F. I. R. Was lodged after considerable delay. As already mentioned Ahmad Ali .P. W.
Had stated before the committing Magistrate that Nawab P. W. Had gone to lodge the report at 2/3a.m. The report was actually lodged at Police Station Haveli which is situated only at a distance of 8 miles, as late as 8 a.m., i.e. After a lapse of 5/6 hours. For the above-mentioned reasons, I disbelieve the witnesses notwithstanding the fact that no direct enmity has been shown to exist between them and the accused persons. It may also be mentioned here that their testimony was not relied upon by the learned trial Court with regard to one of the accused persons namely, Nazra.
In view of the fact that I have disbelieved the eye-witnesses, the evidence of recoveries becomes redundant because there is nothing left for these recoveries to support. It appears that Jalal Din was found dead at the tube-well in the morning and the accused persons were involved either due to suspicion or for some other reasons. In any case in view of the fact that the ocular evidence is not trustworthy, I do not think it safe to maintain the conviction of the appellants on the same.
Consequently I accept both the appeals and set aside the order of the learned trial Court. Both the appellants are acquitted. They should be set at liberty if not wanted in any other case.