This judgment will dispose of Criminal Appeals Nos. 870/b9 and 8 of 1970.
2. Hashmat (28) and Mushtaq (18) have appealed against their conviction under section 302/34, P.
P. C., and sentence of transportation for life.
3. The prosecution case, in brief, is that a sister of Mushtaq appellant, Mst. Began by name is married to Hashmat appellant. They suspected Waryam deceased of maintaining illicit relations with her, On the 22nd of October 1968, at about Digarwela, Waryam was driving his cattle on the Canal road when the two appellants armed with sticks emerged from the neighbouring cotton field. Hashmat was the first to give a lathi blow on the head of Waryam on which be fell or the ground. Thereafter both the appellants are said to have given a number of stick blows to the injured. Adil (P. W. 3), Nizam Din (P. W. 4) and A.I Ahmad alias Alia (P. W. 5) were attracted to the scene as they were close to it. They saw the occurrence. The injured was removed on a cot and taken first to the Dispensary in village Kamir where he was attended to by Dr. Muhammad Wajid A.I (P. W. 2). He, however, expired at about 10 p.m. It was just before that Adil (P. W. 3) started for the Police Station Dera Rahim and on way met A. S. I. Sondhe Khan (P. W. 9) at the bus stand of village Kamir where he had come to investigate a case of accident. He lodged the report about the occurrence with him at 10-30 p.m. Who sent a copy of the report for registration of the case which was done at midnight at Police Station Dera Rahim. Sondhe Khan A. S. I. (P. W. 9) reached the dispensary immediately thereafter within about 15 minutes. He found the dead body of Waryam in the courtyard of the dispensary and after preparing the injury statement and the inquest report sent it for its post-mortem examination. From there he reached the scene of occurrence at 3 a.m.
No blood was found at the spot and none was recovered in the case. Hashmat appellant was arrested on 26-10-1968 after the witnesses produced by him in his defence had been examined by the Investigating Officer. Mushtaq was also arrested. A stick Exh. (P./I) produced by one Sher was taken into possession.
4. Waryam in injured condition was examined by Dr. Muhammad Wajid A.I (P. W. 2), who found the following injuries on his person:-
(1) One lacerated wound 1 -- x 1/6' x 1/4' on the right par tat eminence 3' above the right ear. There was bleeding from the wound.
(2) One contusion 4" x 1 -- " on the back of the lower part of chest wall 6" below the right inferior angle of scapula.
The patient soon expired. An intimation about the death of the injured was sent by the doctor to the police.
5. The post-mortem examination was performed by Dr. Aftab Ahmad Khan (P. W. 1), who found
(1) A contused wound 2 -- " x -- " x -- " bone deep on the posterior part of the right side of the head, 3" above the right ear.
(2) A contusion mark 4' x -- on the right side of chest.
There was extensive internal damage under injury No. 1.
6. The appellants denied the relationship attributed to them inter se and also the motive of suspecting Waryam of maintaining illicit relations with the sister of one who is the wife of the other.
They also denied having attacked and injured Waryam deceased resulting in his death. They alleged false implication in the case on account of enmity of Waryam and his relatives for their case was that a few months before the occurrence. Waryam who was Hashmat's tenant had been ejected from the land while the crop cultivated by him was still standing in the field.
7. The trial Judge on a consideration of the evidence brought on the record, came to the conclusion that in spite of the improvements made and the concessions shown by the eye-witnesses to the occurrence in favour of the appellants their earlier statements had to be believed, they were held to be eye-witnesses of the occurrence. Hashmat appellant, on the other hand, was held to be an influential person who could not only prevail upon these witnesses but also the investigating officer in the matter of the conduct of the investigation and the reports that were made.
8. The first question which requires serious consideration in the case s whether the witnesses produced at the trial are in fact the eye-witnesses of the occurrence. It would be incorrect to say that there has been no delay in lodging the first information report. The occurrence had taken place, at late digarwela. The police station and the dispensary were at equal distance from the spot, i.e. About six miles. There were more than one person who had according to the prosecution version, seen the appellants and the occurrence and therefore any one of them could go to the police station and lodge the report. There is no explanation why every one of them accompanied the injured to the dispensary and waited there till such time as the injured had not expired. It was not a case where not many people had seen the occurrence or that not many people were available to attend to the injured and to take him for immediate medical treatment. In determining the presence of these witnesses the first version of the occurrence and the explanation given for their presence at the spot is of great importance, Adil's report with the police makes him a chance witness for he is normally a resident of a place 45 miles away from the spot. It is not unusual to find such persons moving about with their cattle when fodder is scarce. There. Fore the presence of Adil (P. W. 3) could be accounted for in the village where the occurrence had taken place. But he has not been able to explain satisfactorily his presence in the vicinity where the occurrence took place.
He admits that he never purchased fodder and that he was there going to Bahadur for getting some fodder for the cattle without making payment for it. The other witness Nizam Din (P. W. 4) stated that he had gone to purchase the fodder. When fodder is scarce one like Adil (P. W. 3) cannot go and get it just for the asking of it from a person with whom he has no direct or close connection. Therefore, the errand which was put forward for explaining the presence of Adil (P. W.
3) at the spot is not convincing. His first version of the occurrence also repudiates his credentials as an eye-witness. In the first information report he stated about a number of lalhi blows having been given to Waryam when he had fallen on the ground after receiving the first blow given by Hashmat appellant. The medical evidence does not show any injury except the two which have been noted by both the doctors. Their description and location differ in the two reports but the fact remains that there were not more than two injuries. This could not have been the result if the two appellants had come with the set purposes of inflicting injuries and for causing his death and had him at their mercy. Similarly, for this reason the statement of other eye-witnesses Nizam Din (P. W. 4) and Alia (P. W. 5) cannot be accepted for their version of the occurrence indicates more injuries on the person of Waryam than were actually found. Besides, none of them has a consistent and plausible explanation for his presence in the vicinity though each one was on a separate errand and none was accompanying Waryam deceased. It is also not without significance that Adil (P. W. 3) is the husband of a sister of Waryam, Nizam (P. W. 4) is a brother of Waryam and Alia (P. W. 5) is an uncle of Waryam. The only independent witness Muhammad Bakhsh named in the first information report was not produced on the ground that he was won over. There are various other improvements made in their statements by Nizam Din and Alia who were declared hostile and cross-examined by Additional Public Prosecutor. There is no reason why they being such close relatives of the deceased should have been influenced by the appellants who had admittedly shown no restraint or mercy when they ejected the deceased from the land denying them any share in the standing crop.
9. The motive for the occurrence is also coming only from these related witnesses and from none else. There is no other indication on the record that there was any manifestation of such a feeling by word or act o Hashmat or Mushtaq which could suggest that they suspected a lady of their family maintaining illicit relations with Waryam deceased. Without any prejudice and without any warning, they are said to have attacked and killed Waryam on a mere suspicion which found no expression otherwise before the occurrence.
10. I find that the presence of these eye-witnesses is not made out not the motive for the occurrence and the statement made by them is sufficient in law to record conviction of the appellants. I, therefore, accept the appeal, set aside the conviction and sentence under section 302/34, P. P. C. And acquit the appellants. They shall be forthwith set rat liberty if not required in any other case.
11. It has been pointed out by the learned counsel representing Mushtaq that he has been already released from jail under the orders of the Governor as he was, at one stage, seriously ill inside the prison.