This is an appeal by (i) Ibrahim son of Omarao alias Bhonda; (ii) Abdul Rehman; (iii) Suleman sons of R.I Khan and (iv) Yasin son of Bhag Mal Caste Meo, r/o Domala Police Station Narowal, District Sialkot, who have been convicted by the learned Addl. Sessions Judge, Sialkot, by means of his judgment and order, dated 29-11-1969, under section 304/34, P. P. C. For the murder of Nazru (Nazar) son of Jagmal Caste Meo r/o the same place and sentenced to transportation of life each.
2. The facts of the prosecution case are that about 2J or 3 years prior to the occurrence, Nazru deceased in this case, had abducted Mst. Saidan daughter of Yasin appellant. A panchayat consisting of Suleman r/o Chando--wal, Kaley Khan r/o Saiduwala and Haji Chairman was convened. They got the abducted girl returned to her parents. The Panchayat also decided that a sum of Rs. 400 should be paid to Yasin father of the abducted girl, Nazru abductor, it is to be pointed out, left for Karachi and Mst. Saidan, abducted girl, was married off in Village Jeewan, Police Station Lalyani, Tehsil Kasur, District Lahore. She has two children from her aforesaid wedlock.
After living in Karachi for one year, the abductor Nazru came back to the village. Even though the matter of abduction had been allegedly patched up, as hereinbefore mentioned but according to the prosecution Yasin retained a grudge on that count. On 16-6-1968, when Nazru was cutting fodder in his land at about 8 or 9 a. m. All the appellants came armed. Ibrahim and Suleman had sticks, Abdul Rehman was armed with a sanga and Yasin had a hatchet with him. Abdul Rehman appellant gave the first blow with his sanga on the head of Nazru which was followed by Yasin who gave a blow with the blunt side of his hatchet on the legs of the deceased. All the four assailants tried to appre--hend Bhondoo (P. W. 10) (brother of the deceased) but he ran away towards the village side. All the four assailants then started taking Nazru towards their well known as Chah Sheranwala. They kept him beating on the way. Even when they had reached at Chah Sheranwala, there again all of them gave him a beating. Bhondoo (P. W. 10) raised a noise which attracted Mal Khan (P. W. 11) (brother-in-law of the deceased), Muhammad Shafi son of Mal Khan (not produced) and Ismail son of Fazal Din (P. W. 12). After doing their job, the assailants ran away. The aforesaid witnesses went towards the well and observed that the deceased bad died and his anus, arms and legs bad been fractured and were profusely bleeding. Many other persons of the village collected at the spot. The dead body of the deceased was left in the guard of Sharif Chaukidar whereas Bhondoo (P. W. 10) went to Police Station Narowal, which was at a distance of seven miles from the place of occurrence and lodged F.
1. R. (Exh. P. A.) at 12-30 p. m., which was recorded by Muhammad Sadiq Butt A. S. I. (P. W.
131. After taking down the F. I. R. The Investigating Officer went to the spot and prepared the injury statement and inquest report of the deceased. He despatched the dead body of the deceased to the mortuary for post-mortem examination. The inves--tigation was then taken over by Sher Muhammad S. I. (P. W. 14) who collected the blood-stained earth from the place where the dead body of the deceased was lying in the area of well Sheranwala. He recovered blood-stained lacha of the deceased, dranti and a bundle of cut fodder from the earlier field vide memo. Exh. P. C. On 16-6-68. He arrested Abdul Rehman, Suleman and Yasin, appellants on 17-6-1968. Ibrahim appellant was arrested on 20-6-1968. Abdur Rehman produced sanga (Bxh.
P. 4) (three pieces) on 18-6-1966 from an uninhabited but near well Sheranwala which was taken into possession vide Memo. Exh. P. E. The witnesses for recovery were Muhammad Khan (P. W. 11), Ismail (P. W. 12) and Sher Muhammad, S. I. (P. W.14). The sanga was found by the Serologist to contain human blood. Suleman appellant produced dang (Exh. P. 5) on 18-6-1968, which was taken into possession vide Memo Exh. P. F. Witnesses for recovery were the same as in the recovery of sanga. This dang also has been found by the Serologist to contain human blood. There was no recovery from Ibrahim and Yasin, appellants. After conducting the necessary investigation, the prosecution put in a challan against the appellants. It is pertinent to mention that Ibrahim appellant No. 1 was placed by the police in Column No. 2 of the challan. All the appellants denied the guilt. Yasin appellant denied even the factum of the abduction of Mst. Saidan, and her recovery through the Panchayat, but so far as Ibrahim, Abdul Rehman and Suleman are concerned, they seem to have admitted it though their plea was that the matter having been patched up, there was no question of retaining any grudge thereafter. The learned Addl. Sessions Judge after believing the prosecution evidence found the appellants guilty and convicted and sentenced them as hereinbefore mentioned, From what has been written above, it will be evident that the prosecution case consists of the following, namely,
(a) evidence of motive;
(b) medical evidence;
(c) ocular evidence as deposed to by Bhondoo (P. W. 10), Mal Khan (P. W. 11) and Ismail (P. W. 12) ; and
(d) evidence of recovery of sanga (Exh. P. 4) from Abdul Rehman, dang (Exh. P. 4) from Suleman appellant, lacha (Exh. P. 1), dranti (Exh. P. 2) from the earlier field.
I will deal with each of these matters hereinafter.
2. Taking up the motive, the prosecution has produced Haji Nazar Khan (P. W. 9) and Bhondoo (P. W.
10) brother of the deceased, who have deposed about the matter of the abduction of Mst. Saidan by Nazru deceased. Haji Nazar Khan (P. W. 9) was a member of the panchayat. He stated that initially when Mst. Saidan was abducted she was restored at his intervention. After that Nazru left for Karachi and remained there for about 1 --years, After the expiry of that period, he returned to village Domala and it was at that time that a panchayat of the brotherhood was held wherein it was decided that Naaru should pay Rs. 400 to Yasin appellant by way of com--pensation. The amount was accordingly paid. The witness stated that motive for convening the panchayat and making Nazru to pay Rs. 400 was to patch up the matter between the parties and inculcate a sense of security in the mind of Nazru that after the aforesaid settlement he need have no fears from the side of the appellant and could live in the village peacefully and manago his land. The panchayat about the compensation was held in the village after about a fortnight of the return of Nazru from Karachi and the present occurrence took place about a year after that. To the similar strain is the statement of Bhondoo (P. W. 10) a real brother of the deceased. He reported the matter by saying that on his return from Karachi after one year, Nazru deceased had made an application to the Tehsildar Narowal that he apprehended danger. The Tehsildar went to the village and advised Nazru to settle the matter through a panchayat. It was in consequence thereto that a panchayat was convened which imposed a penalty of Rs. 400 at Nazru. These details do not exist in the statement of Haji Nazar Khan (P. W. 10), but as already indicated Ibrahim, Abdul Rehman and Suleman accused did admit in their statements in Court that such a settlement had in fact taken place. I have no hesitation in believing this part of the prosecution case. However; this is not the end of the matter and whereas from one point of view the motive nay be a ground for involving the accused but from another point of view, it is a proof of the existence of hostilities on the part of the complainant party as well. This principle should not be lost sight of while assessing the prosecution case.
3. According to the medical evidence, the deceased had the following injuries on his person:
(1) A contusion, 3' x 2' on the left side of head and left temple just above the ear.
(2) Contusion, 4' x 2', on right cheek.
(3) Contusion, 3 -- ' x 1", on left side of mandible.
(4) Contusion 1 -- ' x -- " on nose, under it bones were found fractured.
(5) Contusion with swelling, 2 -- " x 2' on back of left hand and left wrist, under ibis, bones were found fractured.
(6) An abraded contusion, 3' x 2 -- " on lower back of left forearm.
(7) Confusion, 4 -- ' x 3" on upper hack of left forearm and left elbow.
(8) Contusion, 2 -- ' x 2' on back of right hand.
(9) Contusion, 3' x 3' on the right buttock.
(10) An abrasion, 1' x -- ' on upper outer of right thigh.
(11) A contusion, 3 -- ' x 1 -- ', on left buttock.
(12) Contused wound, 1' x -- x muscle deep on front upper of right leg.
(13) An abrasion, -- " x -- ' on inner of left knee.
(14) A contused wound, 2 --x -- ' x muscle deep on front of upper of left leg.
(15) A contused wound, 1 -- ' x -- ' x bone deep on middle front of left leg.
(16) A lacerated wound, 2' x 1 -- ' and bone deep on middle front of left leg, 1" below injury No. 15, the tibia bone was fractured and the lower end of upper fragment bone was corning out of the wound, fibula bone was also found fractured in this wound. .
(17) Contusion, 3' x 3" on dorsum of left foot and of front of left ankle. Skull was found intact and under the scalp, small haemorrhages were seen under Injury No. 1. Brain was purifying and otherwise healthy.
Thorax.---Skin was peeling off due to putrification. All the organs in the thorax were fund healthy.
The heart was found empty on both the sides and was putrefying.
Abdomen.-Inside the abdomen, liver, spleen had started putrefying and all the other organs were found healthy. Stomach contained about -- oz. Thick fluid, greenish in colour. Small intestines were full of gases. Large intestines contained digested food and rectum was full of faeces.
Cause of death in my opinion was shock and haemorrhage. All the injuries were collectively proved fatal Injuries Nos.4, 5 and 16 were grievous in nature and all the rest were simple in nature. All the injuries were ante-mortem and were caused with blunt weapon. Duration between injuries and death was immediate and between death and post-mortem exami--nation was about 24 hours.
In cross-examination the Doctor stated that injuries Nos.4 and 5 could be caused in a general fight and that injury No. 16 was not fatal. He further deposed that injuries Nos.4 and 5 could not be caused with a friendly hand. .
A perusal of the above medical evidence shows that the deceased died as a result of assault with blunt weapons. We have to see whether the said assault was caused by the appellants or not.
4. This brings me to the ocular evidence which consists of Bhondoo (P. W. 10), Mat Khan (P. W. 11) and Ismail Weaver (P. W. 12). At this stage, it is pertinent to mention that on the day of occurrence, there was to take place a marriage of the daughter of Chandar Khan Meo in the village, The Barat of the marriage part had arrived in the village at about Peshiwela. Sharif Chaukidar P. W. 8 deposed that he alongwith others remained busy in connection with the arrangements of that marriage and had also gone to an adjoining village Gajoke to bring cots. It is worthwhile to reproduce his statement as made in his cross-examination. It reads as follows:- "It is correct that the marriage of the daughter of Chandar Xhun Moo wax fixed up for solemnization on the day of the present occurrence. The Barat of marriage party bad arrived at about Peshiwela in the village that day. I and others in the village had been attending to the marriage arrangements in re and to collection of cots etc. Since 7/8 a. m; that day Ismail and Bhondoo P. Ws, were also present in the village at that time but I had not seen them after sunrise, when I left for village Gajoke to brio; cots. Previous to that they had been attending to the work with me. Gajoke village is at a distance of one mile from our Tillage. I had gone to Gajoke village at about 9/10 a. m. I had seen Ismail and Bhondoo in the village till -- hour after the sunrise but thereafter I went to my house and from theca I went to Gajoke village. I had returned to my own village from, Gajoke immediately after delivering the message there. In my return I had informed the concerned persons about the delivery of the message. After informing the concerned persons I went back to my house and it was there that I learnt about the murder of Nazroo."
"It is correct that a Bar at was expected in the house of Chander Khan of our village and that was busy alongwith Sharif P. W., In making arrangements for the guests that day of the occurrence.
Bhondoo P. W, was also with us, Sharif, had also gone to Gajoko village to collect the necessary things for that arrangements. I had, also gone with Sharif to that village and one had brought various things. We had stayed about one hour in Gajoke village. We had brought these things to the house of Chandar Khan. Bhondoo P. W. Had also accompanied us to village Gajoke. We had stayed in the house of Chandar Khan till the arrival of the Barat. It is correct that the information about the death of Nazroo was received by us at the house of Chandar Khan. I do not own any land in the village."
The Court realising that, whereas Ismail P. W. Posed to be an eye-witness of the occurrence but from the passage reproduced above, it appeared that he was not in the village at the relevant time, put him the following question:- "C. Q.---You had stated previously that you had witnessed the occurrence and that when you went along with others you found him lying dead. You have now stated that you and others received the information about the death of Nazroo when you all were in the house of Chandar Khan. Can you clarify this?
A.---I had given the subsequent statement due to misunderstanding." The learned Sessions Judge then recorded the following note:- "Note.-The learned counsel for the defence had been putting questions to the witness in an unambiguous manner in ordinary Panjabi dialect."
If the statements of Sharif Chaukidar (P. W. 8) and Ismail (P. W. 9) are read together, then no scope for doubt is left that both these witnesses alongwith Bhondoo (P. W. 10) at the particular time of occurrence sere in the adjoining village Gajoke and were not present fin the village where the incident bad taken place. From the very tenor of their statements it is apparent that by the time they had gone to Village Gajoke, the incident bad not taken place. It was after they bad come back from Village Gajoke that they learnt about the murder of Nazru. According to Sharif (P. W. 8), he left for village Gajoke at about 9/10 a. m. If one or two hours' discount is given to him and Ismail P. W.
For remaining in Village Gajoke, then it is obvious that they carne back somewhere at 11 or 12 o'clock in the day. The incident seems to have taken place in their absence, because it is obvious if it had taken place prior to their going to Village Gajoke then definitely at least Bhondoo (P. W. 10) would not have gone to Village Gajoke. I am thus not satisfied about the presence of Bhondoo in the village at the actual time of the occurrence. He is a real brother of the deceased and due to the hostility hereinbefore mentioned has a definite motive to implicate the appellants. According to the prosecution case the deceased was at tacked virtually: at two places, namely (a) in the chard field to start with and (b) at well Sheranwala to which place he was later on carried or dragged. It is to be mentioned that no blood was found from the charri field and even though the prosecution case was that the deceased had started bleeding in the charri field when he was carried or dragged to well Sheranwala but still no trail of blood was found from the charm field up to that well. Another circumstance to be taken note of is that though later on the prosecution tried to prove the recovery of blood-stained lacha, from the charri field but the existence of any such lacha was not mentioned in the F. I. R. By Bhondoo (P. W. 10). There is a great discrepancy. In the statements of the prosecution Witnesses regarding the manner the which the did was allegedly taken from the chant field to Sheranwala well. In earlier state--ments before the committing Court, the stand taken was that the deceased had been dragged and actually the blood had fallen in the charm field as also in the way but in the Sessions Court the position taken was that the deceased was simply carried or lifted away or not dragged. At the time of the occurrence, Bhondoo (P. W. 10) had a drand, Mal Khan (P. W. 11) had a danda, Ismail (P. W. 12) had a rambi, Muhammad Shafi another P. W. (not produced) had also a danda. If all these persons . Had really been present at the spot, then as they were armed as hereinbefore mentioned, there is no reason as to why they should not have made any effort to rescue the deceased. Bhondoo (P. W. 10), as already mentioned, is the real brother of the deceased, Mal Khan (P. W. 11) is brother-in-law of the deceased (sister of the deceased is married to him). Ismail (P. W. 12) is a weaver of the village and Muhammad Shafi (given up P. W.) was son of Mal Khan and as such was nephew of the deceased. According to Bhondoo (P. W. 10) the place of occurrence was at a distance of about 4 -- squares from the village (i.e, about one mile because five squares are equally to one mile). Shafi (not produced) and Mal Khan were grazing cattle in the field of Karim Bakhsh at a distance of 20/30 karams from the place where Bhondoo was cutting fodder and Ismail P. W. Was at a distance of 10 karams from him. According to Mal Khan (P. W. 11), he was grazing cattle at a distance of about two squares from the village and his son Shafi P. W. (not produced) was also with him at that place. Bhondoo and Nazru were at a distance of one killa from him. The distances mentioned by one witness do not fit in with the distances given by the other witness. Ismail (P. W. 12), according to his own testimony, was in a field at a distance of about 8 or 10 killas from the village. It is to be mentioned that 25 killas in length will make a square, and if as deposed to by Bhondoo he and his brother were in a charri field at a distance of 4J squares from the village, it means that they were at a distance of 1 0 2 killas. The P.
Ws., according to my estimate, were actually not present at the spot and that is why they have not been able to give the definite places at which they were at the time of the occurrence. Mal Khan (P.
W. 11), according to the analysis hereinbefore mentioned, was also at the time of occurrence in the village. Bhondoo (P. W. 10) deposed that be mentioned before the police about Ibrahim and Suleman accused as also having caused injury to Nazru deceased with their dangs in the charri field but he was confronted with his statement before the police where it was not so recorded. He was given an opportunity to explain but his answer was that he could not give any explanation. The same was his position vis-a-vis his deposition before the committing Magistrate. Mal Khan (P. W.
11), in his statement before the committing Court, stated that he had not seen the earlier part of the occurrence in the charri field though now he deposed to be an eye-witness of the said occurrence as well. In his earlier statement he had deposed that the deceased was dragged away from the charri field to the Sheranwala well but now he deposed that he was simply carried. Though the investigating officer deposed that he did not find any trail of blood from the charri field up to the Sheranwala well, but Mal Khan (P. W. 11) stated that he had shown the said plot to the police. His stand in Court was that the other P. Ws., (whose details have been mentioned earlier) had no dangs with them, though in his earlier statement he deposed that they had dangs. He was confronted with all these aspects of his earlier and subsequent statements but be had no explanation in that respect.
The statement of Ismail (P. W. 12) is also no better. In the committing Court, he did not say that any injury on the head of the deceased was given by Abdul Rehman though the word head later on was introduced by him in his subsequent deposition. In the Sessions Court he deposed that hatchet blows were given from the blunt side but in the committing Court he had not said so. In the committing Court he went on even to the extent of mention--ing the number of blows by hatchet but in the Sessions Court he deposed that it was only one hatchet blow. In the committing Court he did not state that any dang blows were give by Ibrahim and Suleman appellants though now his position was to attribute such blows to them-, For all the reasons hereinbefore mentioned, I am of the view that none of the aforesaid eye. Witnesses were actually present at the spot at the tithe of the occurrence which had taken place in their absence and that they became the eye-witnesses subsequently. My finding is that they had actually not seen the occurrence.
5. This brings the to the recoveries. It is to be pointed out that there are three types or recoveries In this case, namely, (a) cut charri, human blood stained lacha and Brand which were taken into possession by the police front the charri field. The out charri was taken into possession vide memo.
Exh. P.D. And the remaining two items vide Memo. Exh. P. C. 1 would tact place any reliance on these recoveries for the simple reason that even though the F. I. R. Was lodged by Bhondoo, the alleged eye-witness of the occurrence, still the aforesaid items were riot mentioned by him to be present in the chard field In the F. I. R. Again though strangely enough no blood-stained earth was found In the charri field nor any trail of blood was found going from the charri field up to the Sheranwala well but still human blood-stained lacha is alleged to have been found from the charri field. The absence of blood in the charri field or in the track, destroys the recovery of human bloodstained lacha as well. The witnesses for these recoveries were Mal Khan (h. W. 11) Ismail (P. W. 12) and Sher Muhammad S. I. (P, W. 14). I have already disbelieved P. Ws. 11 and 12 in their ocular evidence. I further bold that they are false witnesses regarding the alleged recoveries from the charri field and my finding is that none of the items herein before mentioned, lay In the charri Bold and were planted later on.
The second set of recoveries is the blood-stained earth from the Sheranwala well which was taken into possession vide Memo. Exh. P. R. The dead body of the deceased was lying at that place and from that point of view this recovery can be believed. Mover, this does not advance the prosecution case in any manner because despite the blood being at the Sheranwala well, the point till remains to be determined as to who bad killed the deceased and whether any prosecution witness observed the occurrence.
6. The third set of recoveries is Sanga (Exh. P. 4) which was recovered at the instance of Abdul Rehman appellant on 18-6-1968 from an inhabited but treat Sheranwata well which was taken into possession vide Memo. Exh, P.E. And Bang (Fxh, P. S) which was recovered at the instance of Sideman appellant on 18-6-1968 from a heap of cotton reads and which was taken into possession vide recovery Memo, Exh. F. Dated 18-6-1968. The witnesses for these recover cog as already mentioned, are the same, namely, Mal Khan (P. W. 11), Ismail (P. W. 12) and Slier Muhammad S. I. (P.
W. 14).
I have already held that all these witnesses have perjured while giving the ocular evidence and also while planting the recoveries, from the charri field and in these circumstances I cannot place reliance upon the testimonies of those witnesses qua the recovery of sanga and Bang as well. It will not be relevant to state that though it is not the case of any eye-witness that the' sanga was broken or got broken during the occurrence into pieces, but nevertheless the recovery of the sanga was in the form of three pieces.
7. The upshot of the above discussion is that the prosecution has not succeeded in establishing a cast free from reasonable doubts against the appellants, the benefit of which obviously must go to them. The present appeal is accepted. The convictions and sentences of the appellants are here-- by set aside they should be set at liberty forthwith if not required in any other case.