' SARDAR MUHAMMAD DOGAR, J.-- Khalid (19) and Qaisar (23) were tried under section 302/34, P.P.C., by the Additional Sessions Judge, Sialkot, for having murdered Akhtar Ali. Learned trial Judge vide judgment, dated 3-11-1985 convicted both of them under section 302/34, P.P.C. And sentenced Khalid to death, and Qaiser to undergo imprisonment for life. Both of them were also sentenced to pay a fine of Rs,10,000 each, in default whereof to undergo further R.I. For 2 years each. Half of the fine, on realization, has been directed to be paid as compensation to the heirs of the deceased.
' The convicts have filed appeal. The trial Judge has made a reference for confirmation of death sentence. Both the matters are being disposed of together.
2. The occurrence had taken place on 16-8-1984 at 7-00 a.m. Near Government High School, Murakewal in the area of village Murakewal, at a distance of 15 k.m. From Police Station Head Murala, District Sialkot.
' F.I.R. Exh.P.C./1 was registered at the police station by Muhammad Rafiq, A.S.I. P.W.2 at 9-40 a.m. On 17-8-1984, on receipt of statement Exh.P.C. Of Muhammad Nawaz P.W.5, recorded by Mushtaq Ahmad, A.S.I. P.W.11 at 8-30 a.m. In Chowk Kotli Loharan.
3. The case originally was registered under section 307/324/34, P.P.C. Offence under section 302, P.P.C. Was added after the death of Akhtar Ali on 31-8-1984. According to F.I.R., the complainant owned a tonga which he used to ply on hire. He fell ill before the occurrence. He requested Akhtar Ali, his nephew on 16-8-1984 to take him to Sialkot City for taking medicine. Both of them started for Sialkot on the tonga. Ashiq All (given up P.W.) also joined them in the tonga. Akhtar All was plying the tonga. The tonga reached near Government High School, Murakewal at about 7-30 a.m. Both the appellants armed with Chhuris appeared there. Qaisar appellant raised a Lalkara to stop the tonga. He came forward and caught reins of the horse. The tonga stopped. Khalid appellant gave a Chhuri blow on the chest of Akhtar Ali. He fell down and lost consciousness. The complainant and Ashiq Ali got down the tonga and tried to catch the accused, but they succeeded in running away, waving Chhuris.
' Nazir Hussain P.W.6, a co-villager who was also going to Sialkot on bicycle, also witnessed the occurrence.
4. Motive for the occurrence was a dispute between Khalid appellant and Akhtar Ali deceased that had taken place 6-7 months prior to the occurrence, about the receipt of some amount. Akhtar All had given a Danda blow in that dispute. Muhammad Ikram, Councillor (given up P.W.) got a compromise effected between the two. In spite of that the appellants attacked the deceased and injured him.
' It is mentioned in the F.I.R. Towards the end that as the condition of Akhtar Ali was serious, he (the complainant) remained busy in his treatment and so could not report the occurrence earlier.
5. Mushtaq Ahmad, A.S.I. After recording statement Exh.P.C., despatched the same to the police station for registration of the case and proceeded to hospital at Sialkot. He moved application Exh.P.C. To solicit opinion if Akhtar Ali was fit to make a statement. On receiving positive opinion, he recorded his statement Exh.P.H. Thereafter he inspected the spot and prepared rough sketch of the place of occurrence.
' Khalid appellant was arrested by him on 18-8-1984. On the same day he (Khalid) led to the recovery of blood-stained Chhuri P.4 which was taken into possession vide memo. Exh.P.F. The S.I.
Recorded the statement of Ikram (given up) P.W. On 26-8-1984. Qaisar appellant was arrested by him on 30-8-1984. Nothing was recovered from him.
' He went to A.I.M. Hospital on 31-8-1984 on receipt of information about the death of Akhtar Ali. He despatched the dead body of the deceased after preparing inquest report Exh.P.K. And injury statement Exh.P.L. After completion of necessary investigation the challan was put to Court.
6. Statements of eleven prosecution witnesses were recorded at the trial. Ashiq Ali named as an eye-witness and Malik Muhammad Ikram, Councillor, were given up as having been won over.
Chemical Examiner's report Exh.P.N. And that of the Serologist Exh.P.O. Were also tendered in evidence.
' Dr. Syed Sajjad Ali who had medically examined the deceased during lifetime on 16-8-1984, and had performed autopsy on his body on 1-9-1984, appeared as P.W.1. He had noted an incised wound 1" x 1/2" x depth not probed on front of chest upper part over the sternum about 1-3/4" below the supera sternal fossa, on medical examination. The injury was opined to have been caused by a sharp-edged weapon and was declared grievous after X-Ray examination. He had noted the same injury at the time of autopsy. He had noted another incised wound with infected edges on the back of left side of chest lower part. It was surgical wound. He had also noted infected wound 3" x 3" on sacral area of back (bed sore).
' On internal examination, he had found inter costal muscles and left lung cut with collapse of left lung.
' Death, according to him, had occurred due to shock and haemorrhage resulting from injury No,1 and failure of respiratory system. Probable time between death and injury was 15 to 16 days.
' During cross-examination he stated that injuries Nos. 2 and 3 were infected wounds. In answer to other questions he stated that, 'it is correct that the victim died during convalescence period. It is correct that the victim survived the first effects of the injury. The collapse of the lung developed due to the infection of the surgical wound. It is correct that chances of survival of the victim were very bright if the victim had not developed infection and the secondary haemorrhage. It is correct that the secondary haemorrahage may be due to the infection. The direction of the injury was transverse oblique. It is correct that the area of the injury No,1 is in the area of maximum number of bones. No underlying bone was cut or fractured due to injury No,1'.
7. The ocular account was deposed to by Muhammad Nawaz P.W.5 and Nazir Hussain P.W.6.
Muhammad Nawaz repeated the facts given by him in the F.I.R. With some improvements. One of the additions, he made in his statement at the trial, is that Khalid appellant had stolen a sum of Rs,800 from the shop of Akhtar Ali deceased, 5-6 months prior to the occurrence and that Khalid appellant had tried to inflict a Chhuri blow to Akhtar Ali during the dispute that arose and Akhtar Ali had given a Danda blow to him before Khalid could inflict the Chhuri blow. He added that Muhammad Ikram, Councillor (given up P.W.) had got a compromise effected between the parties.
He also made an addition by stating that Akhtar Ali was removed to the hospital from the spot on a rickshaw. Apart from the ocular account he also stated having witnessed the recovery of Chhuri at the instance of Khalid appellant.
' During cross-examination, he stated that there were 2-3 Lumberdars, 4 Councillors and one Chairman in village Murakewal, but none of them was present at the time of recovery. He stated that Muhammad Saad P.W. Who had accompanied him at the time of recovery, was his real nephew and was staying with him since 2-3 days prior to the recovery. He gave out that Muhammad Saad was a resident of a village 10-12 miles away from his village and had come to his village on having learnt about the occurrence and had also visited the hospital.
' He gave out in cross-examination that he was sick since 15-16 days. He admitted that there were two doctors in village Murakewal. In answer to another question, he stated that they had proceeded to the hospital immediately after the occurrence. He stated that the tonga was also stained with blood. According to him the deceased was taken to the Lorry Adda in the tonga wherefrom he was taken to the hospital in a rickshaw and the tonga was sent to the village through his other nephew Anwar. He admitted that many persons had gathered at the Lorry Adda but he had not asked anyone of them to report the matter to the police nor had he talked to any one of them. He admitted that he had remained in the hospital till evening whereafter he had left for his village and had spent the night there in his house. In answer to another question he stated that some 20 days prior to the occurrence one Bank employee was murdered near the place of occurrence.
' He admitted that the deceased was challaned and convicted on his report, for having stolen his tonga and that he was also convicted and sentenced for having stolen the mare of his brother.
' He expressed ignorance that such like occurrences used to occur at that place as there was jungle nearby. He denied the suggestion that he had not seen the occurrence and it was for that reason that he did not report the matter till on the following day of the occurrence.
8. Nazir Hussain P.W.6 corroborated the statement made by P.W.5. During cross-examination he stated that deceased was shifted to the hospital by Nawaz P.W. And mother of the deceased in a rickshaw, which was brought from the Lorry Adda by his (deceased's) younger brother. He stated that 40-50 other persons had collected at the spot but neither he nor Nawaz P.W. Had talked with any of them about the occurrence nor anyone of them had been asked to report the matter to the police. He stated that he had stayed in the hospital for 10 minutes while Nawaz P.W. Had gone to the police station to lodge the report after obtaining medico-legal report. He stated that he had re- visited the hospital on the same day at 5-30 p.m. And at that time Muhammad Nawaz P.W. Had told him that he had gone to the police station and had lodged the report with the police. He stated that his statement was recorded by the police 15-16 days after the occurrence. He admitted that occurrences like dacoity and robbery are often committed near the place of occurrence. He claimed that he had seen the occurrence regarding motive, i,e, the dispute that had taken place due to stealing of Rs,800 by Khalid (appellant). He was not found to have mentioned that part of the statement, in his statement before the police (Exh.D.A.).
9. Muhammad Saad who had witnessed the recovery of blood-stained Chhuri at the instance of Khalid appellant, appeared as P.W.7. During cross-examination he admitted that 15-20 other persons were present at the time of recovery. The recovery, according to him, was effected on the following day of the occurrence at 7-00 p.m. He expressed lack of knowledge whether any member of the family of Khalid appellant was present in the house at the time of recovery of Chhuri. He stated that the persons who were present at the time of recovery, were not known to him.
10. Mushtaq Ahmad, A.S.I. P.W.l1 who had registered and investigated the case, admitted during cross-examination that he had not inspected the tonga nor had taken blood stains into possession from that. He admitted that he had recorded the statement of Nazir Hussain P.W. On 1-9-1984. He admitted that the Chairman had come on his car at the time of recovery. The Councillors and the.
Lumberdars, according to him, had not turned up in spite of being summoned. He denied that he had fabricated the prosecution case and had planted the recovery.
11. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence.
12. Learned counsel for the appellants criticised the impugned judgment and contended that it was an unwitnessed occurrence and it was for that reason that it was not reported till after 26 hours; that the delay in lodging the F.I.R. Has not been explained; that the evidence of recovery of Chhuri is not worth reliance and that even if the incident of motive is believed, it would not be sufficient to maintain the conviction as the appellants might have been involved due to suspicion on account of that incident.
13. Learned counsel for the State has defended the judgment of the trial Court.
14. The evidence of recovery of blood-stained Chhuri at the instance of Khalid appellant has been deposed to by Muhammad Nawaz P.W. (complainant) who is uncle of the deceased, and Muhammad Saad P.W.7 who is another nephew of the complainant and is resident of a village 10- 12 miles away from the village of the recovery of Chhuri. Both the witnesses are thus not only quite closely related inter se, but are related to the deceased as well in the same degree. Admittedly there were a large number of Councillors and Lumberdars in the village. Fifteen to twenty other persons were also present at the time of recovery, according to both the witnesses, i,e, P.W.5 and P.W.7. The Chairman, according to A.S.I. P.W.11, was also present. In spite of that, none was asked to attest the recovery. In the circumstances, no reliance can be placed on the evidence of recovery of Chhuri, and the same, therefore, has to be excluded from consideration.
15. The occurrence had taken place at 7-30 a.m. On 16-8-1984. The deceased was accompanied, at the time of occurrence, by Muhammad Nawaz P.W.5, who is his real uncle. According to him the deceased was removed in the tonga to the Lorry Adda wherefrom he was taken to the hospital in rickshaw, while according to Nazir Hussain P.W.6, the deceased was removed from the spot in a rickshaw brought from the Lorry Adda by a brother of the deceased. The complainant's version, is, that he had remained in the hospital and had not gone to the police station to report the matter after admission of deceased to the hospital while the stance of Nazir Ahmad P.W.6, is, that Muhammad Nawaz P.W.5 had gone to the police station after receiving medico-legal report on the same day and he (Nazir Hussain P.W.) had gone out of the hospital 10 minutes after admission of the injured and had returned in the evening. He also claimed that on his re-visit to the hospital on the same day, Muhammad Nawaz P.W. Had informed him that he had lodged the report at the police station. Both the witnesses, thus, have made contradictory statements.
16. The deceased, at the time of suffering of injuries, was not only accompanied by his uncle Muhammad Nawaz P.W.5 but Ashiq Ali (given up P.W.) who belonged to his village, was also sitting in the tonga. Nazir Hussain P.W.6 had also arrived there. It is in evidence that his mother and brother, apart from many other villagers, had also reached the spot before he was removed to the hospital. The mother and the other witnesses had accompanied him to the hospital. He was examined there at 8-40 a.m. On the same day. He was in consciousness. There were many others also to look after him. In spite of that neither the complainant nor any of the two eye-witnesses nor anybody else went to report the matter. They did not ask the doctor also to inform the police.
Although the complainant gave explanation in the F.I.R. That he could not report the matter earlier to the police as the condition of his nephew was not good and so he had been looking after him, but that fact he contradicted himself at the trial by stating that he had stayed in the hospital during the day and had returned to his village in the evening where he had stayed for the night, and had gone to report the matter on the following morning. He had thus not stayed in the hospital to look after the deceased and was free to go anywhere. In fact, he had availed that opportunity and had gone back to his village. There was nothing more urgent for him to be done than to report the matter to the police which he did not. No explanation has been given by him at the trial for the delay which thus occurred.
' The statement of Nazir Hussain P.W.6 that the complainant had gone to the police station to lodge the report after obtaining medico-legal report, stands belied by the fact that no case was registered on that day and also by the fact that the complainant himself stated that he had reported the matter to the police on the following day. This cannot be termed as a mere contradiction. It rather lends support to the argument of learned counsel for the appellants that Nazir Hussain P.W.6, in fact, had neither witnessed the occurrence nor had visited the hospital, and so he did not know whether the F.I.R., was lodged on the first day or on the second day of the occurrence. This argument of learned counsel for the appellants also finds support from the fact that the statement of Nazir Hussain P.W.6 was recorded on 1-9-1984. This fact is not only borne out from his statement Exh.DA. But is also admitted by him and the A.S.I. Who had recorded his statement. This fact further lends support to the argument of learned counsel for the appellants that Nazir Hussain P.W.6 in fact was either not available till 15-16 days after the occurrence or was not prepared to support the prosecution version, even though his name had been mentioned as an eye-witness in the F.I.R. The alternative argument that if he had witnessed the occurrence, he could have also gone to report the matter to the police as he not only knew the deceased but knew the appellants as well, as all of them belonged to the same village, also possesses substance.
The circumstances noted above have led us to draw a conclusion that delay in lodging the F.I.R.
Must have been for the reason that neither the D complainant nor the other witnesses named in the F.I.R. Were present at the time of occurrence.
17. The prosecution case that the deceased was caused injury by Khalid appellant in the chest when he was sitting in the tonga also appears to be improbable. A person standing below could not have succeeded in inflicting a E Chhuri blow on the upper part of chest of the deceased, while being in tonga. The explanation given by the witnesses at the trial that the deceased was sitting at the Paidan seems to be an effort to make the infliction of injury more probable and possible.
Possibility of the deceased being at the Paidan looks rather improbable, the reason being that there were only two other persons, apart from the deceased, sitting in the tonga, i,e, Muhammad Nawaz complainant and Ashiq Ali given up P.W. Even if each one of the two was sitting on the front and rear seat, there would have been no occasion for the deceased to have sat at the Paidan as there would have been enough room for him to have sat on the front seat or alongwith the person, sitting on the rear seat. One cannot assume that the deceased might be sitting at the Paidan to balance the weightage of tonga because in that case it will have to be granted that both the persons, i,e, Ashiq Ali and Muhammad Nawaz were sitting on the back side. This, the complainant would not have done nor the deceased would have allowed to do, he was ailing and so would have been required to sit alone on the front seat, being more comfortable. In the circumstances, the version put forth by the prosecution about the infliction of injury by Khalid appellant while standing below to the deceased, who was sitting in the tonga, seems to be incongruent.
' For all the reasons enumerated above, we are of the view that no reliance can be placed on the ocular account furnished in this case. Even if reliance is placed on the statements of the witnesses about the evidence of motive, that would not be enough to maintain the conviction. Rather it would lend support to the argument of learned counsel for the appellants that the same might have been the reason for suspecting Khalid to have caused injury to the deceased. This part of the evidence, therefore, also is of no consequence to maintain the conviction.
' In the circumstances there seems to be force in this appeal. The same is, therefore, allowed and the appellants are acquitted. .