Manga Khan son of Raja Khan, aged 61 years, Rajput by case, resident of Dhok Bangial Dakhli Choha Khalsa, Tehsil Kahuta, District Rawalpindi, was tried along with his brothers Dadan Khan, Muhammad Fazal Muhammad and Yaqoob son-in-law of Dadan Khan, for the murder of Muhammad Fazil son of Allah Ditta, his co-villager, by the Additional Ses--sions Judge, Rawalpindi.
The trial Court acquitted Dadan Khan, Muhammad Fazal and Muhammad Yaqoob but convicted Manga Khan under section 304, P. P. C. And sentenced him to a term of seven years' rigorous imprisonment and a fine of Rs. 3,000, in default of payment of fine to further undergo rigorous imprisonment for a period of one year. The convict has filed this appeal. Abdul Khaliq complainant has also filed Criminal Revision No. 586 of 1972, in which he has prayed that the conviction of the appellant be altered to one under section 302, P. P. C. And sentence enhanced to death and the acquitted accused be also convicted under section 302, P. P. C. And sentenced accordingly. This judgment will dispose of both the appeal as well as the revision petition.
2. The first information report (Exh. P. A./1) in this case was recorded by Nusrutullah, Sub-Inspector (P. W. 15) on the 19th of March 1970 (10th of Muharrim) while he was present in the office of the Union Council Choha Khalsa in connection with the Muharrim duty. Abdul Khaliq (P. W. 14) on being informed by Mst. Razia Bibi (P. W. 12) reported the matter to the police regarding the alleged occurrence in which Muhammad Fazil lost his life.
3. The prosecution in support of its case relied on the evidence of Mst. Razia Bibi (P. W. 12) sister of the deceased and Muhammad Zar (P. W. 13). There is evidence of recovery of hatchet (P. 1) alleged to be the weapon of offence which was testified by Raja Muhammad Khan (P. W, 11) and Muhammad Zar (P. W. 13). The report of the Chemical Examiner as well as that of the Serologist was to the effect that it was human blood which was detected on the hatchet. Doctor Nasir Ahmad Qureshi, Medical Officer, Civil Hospital, Pind Dadan Khan who performed the autopsy of the deceased was examined to prove the cause of death. Apart from this evidence, the prosecution also produced Nusratullah Sub-Inspector (P. W. 15) and Nasim Ahmad, Traffic Sub-Inspector, Rawal. Pindi (P. W. 16), who verified the investigation of this case and submitted the final report. The rest is the formal evidence the details of which are not necessary but a reference to the material evidence would only be made later on.
4. The appellant when examined by the trial Court admitted his relationship with Dadan Khan.
Muhammad Fazal and Muhammad Yaqoob. When asked about the alleged occurrence he denied the same and stated that he was not present at the spot at all, but one Mst. Irshad Begum daughter of Muhammad Fazal (since acquitted) told him that lot of people had seen the incident in which there was free exchange of stones between the womenfolk of the two parties, and Mst.
Irshad Begum was also injured in this incident. The appellant denied the recovery of hatchet. When asked by the learned trial Court as to why he had been involved in this case the answer given by the appellant was that his brother Dadan Khan had filed a civil suit five months prior to the alleged occurrence and obtained an injunction against Abdul Khaliq complainant, brother of the deceased. The injunction was to the effect that Abdul Khaliq would not open the spouts of the joint house belonging to him and the deceased towards their land which was situated at the back of the house in Khasra No. 4176. The appellant further stated that the complainant party tried to open the spouts which led to a quarrel between the women-folk of the parties in which stones were exchanged. The appellant also placed on record a detailed written statement Exh. D. D.
5. Mst. Razia Bibi and Muhammad Zar are the main prosecution witnesses with regard to the alleged occurrence. The evidence of Mst. Razia Bibi was that about morning rotiwela she along with her brother (Muhammad Fazil deceased) was present in the courtyard of her house where some modification was being made by replacing stones with bricks. The house of the deceased had a pushti to protect back wall of house from water action resulting from down-pour and out-Sow from spouts. The pushti, according to the witness, had been constructed along with the entire length to back wall and was cemented one. On the day of occurrence Dadan Khan, Yaqoob Khan and Fazal Khan came to the spot and started damaging it. Yaqoob Khan bad a spade with him whereas Dad Khan and Fazal Khan had kassis. The witness along with deceased went to the place where damage was being done to the pushti and asked the three accused to desist from their action, because they had already taken the matter to a Court of law for decision. This had no effect on the accused who told the witness that they would dismantle the pushti. It was at this stage that Dadan Khan shouted and asked the appellant, who was armed with a hatchet, to hit the deceased.
The appellant was then standing at a distance of four or five yards and, according to the witness, all of a sudden he gave hatchet blow on the head of the deceased, the deceased fell down. The witness tried to shield the deceased by spreading her arms over him and also implored the appellant not to attack the deceased. The witness was also hit by the appellant with the hatchet from its sharp side, whereas the injury inflicted on the deceased was with the blunt side of the hatchet. This incident was witnessed by Muhammad Zar P. W. And many other co-villagers who arrived there. Mst. Razia Bibi then Informed her brother Abdul Khaliq who, as stated above, lodged the. Report. The witness was also examined by the Lady Doctor and X-Rayed. " The deceased expired after the fourth day of the occurrence and right froth the time he received the injury up to the time of his death he remained unconscious. The version given by this witness was substantially supported by Muhammad Zar P. W.
6. Learned counsel appearing for the appellant raised a number of contentions, the most important and material are --
(i) that there was an unexplained delay in lodging the first information report and therefore, the evidence of Mst. Razia Bibi and Muhammad Zar has to be thoroughly and verify carefully examined who too are highly interested being the relations of the deceased and
(ii) that the prosecution gave no explanation with regard to the injuries of one Mst. Irshad Begum daughter of Fazal Khan although there was evidence on record to prove that she was medically examined. Similarly, the withholding of medical evidence of Mst. Razia Bibi is a factor which makes the entire prosecution cast very suspicious.
Learned counsel also attacked the recovery of hatchet (P. 1) and submitted that even the first information report was not a reliable piece of evidence as there appears to be some interpolations at the end of this report. He summed up his case by arguing that the evidence on record does not prove the case against the appellant beyond reasonable doubt and the appellant as such was entitled to its benefit.
7. So far as the objection with regard to delay is concerned this has not been either explained by the prosecution in a reasonable, manner nor has been met otherwise during the arguments.
Thereafter, it will have to be examined as to how far this delay is demanding to the prosecution and helpful to the defence. With regard to the next contention, that the two eye-witnesses are interested being the relations of the deceased and their evidence as such deserved minute examination, I would first of all like to discuss their evidence in order to make sure as to whether they are consistent in their version or there are some material contradictions to their evidence and then would also like to compare the evidence of these two witnesses individually as well as collectively with the rest of the evidence on record.
Dealing with the evidence of Mst. Razia Bibi it is admitted that she is the sister of the deceased and.
Muhammad Zar is girt cousin of fist. Razia Bibi. The complainant Abdul Khaliq although not an eye- witness yet is an important person because it was he who was the first to bring the alleged incident to the notice of the police. He is also related to the deceased being his real brother. Mst. Razia Bibi P.
W. In her examination-in-chief only attributed this part to the appellant that while his other companions were busy in demolishing the pushti he was standing nearby as a silent spectator.
According to the witness the appellant inflicted a solitary blow on being asked by Dadan Khan. All this happened within the twinkling of an eye. I find a number, of important omissions as well as contradictions in the cross-examination of this witness. In cross-examination she admitted that her statement wag recorded by the police and when confronted with Exh. D. A. She failed to mention a number of important things for instance, she had nor stated before the police that Yaqoob had a spade while Dadan Khan and Fazal Khan had kassis. She even did not mention this fact that the appellant was armed with a hatchet and was standing at a distance of four or five yards. She also admitted that Dadan Khan had filed a civil suit against her brother Abdul Khaliq prior to the alleged occurrence. The suggestion that the deceased wanted to open the spouts which, was objected to by the accused party and resulted in a quarrel between the womenfolk in which stones were freely exchanged was denied by the witness. With regard to the presence of Muhammad Zar she deposed that he bad come to her house to take butter--milk (lassi) and he had not yet taken the butter-milk, when he ran towards the spot. She also stated that Gulzar, Ghani Iqbal and Muhammad Zar had carried her and the deceased from the place of occurrence to the courtyard.
She denied the fact that she had made a statement before the committing Magistrate that the accused party had lodged a report with the police earlier although she had stated so before the committing Magistrate. Regarding the alleged weapon of offence the witness was sure that it was recovered by the Sub-Inspector on the very day of occurrence. In examination-in-chief the witness admitted that when the party had gone to the office of the Union Council alongwith the police Mst.
Irshad Begum daughter of Fazal Khan and wife of one Muhammad Yousaf was with them and this lady had travelled in the same bus up to Kabuta, at that time the Sub-Inspector and the constables were also in the bus. The witness stated that she remained in Civil Hospital, Kahuta for two days where she had also seen Mst. Irshad Begum. Mst. Razia Bibi then said that she kept the dopatta on the head and never round her neck and even at the time of occurrence she had the dopatta on the head, and that as a result of hatchet injury on her head there was a cut on the dopatta. The witness bad shown to the Sub-Inspector. At the end of her cross-examination she stated that she was taken to the courtyard on a cot. She also admitted that she did not state before the committing Magistrate that she was medically examined by the Lady Doctor and was also X-Rayed.
8. The evidence of this witness when compared with that of Muhammad Zar P. W. Leaves no room for doubt that it would not be safe to rely on her testimony in the absence of strong corroborative evidence. I find that there are material contradictions in her statement when compared with that of her cousin Muhammad Zar P. W. He in his statement deposed that Mst. Razia Bibi had not been injured while lying on her brother. He further contradicted her when he deposed that Mst. Razia Bibi was supported to walk down to the courtyard and she was not taken there on a cot. This witness although alleged to have actually seen the hatchet blow being given by the appellant yet stated that he did not know as to with which side of the hatchet-the deceased was struck. Similarly, he deposed that Mst. Razia Bibi was injured in his presence on her head but he did not know as to by which side of the hatchet she had been bit.
9. The evidence of Nusratullah Sub-Inspector (P. W. 15) is also important because he admitted that Mst. Irshad Begum who had later on appeared before him made a statement and that she was in an injured condition. Mst. Irshad Begum appeared before the Sub-Inspector at the office of Union Council, Choha Khalsa after he had recorded Exh. P. A. According to the witness he even prepared her injury statement (Exh. D. C.) for medial examination and that she was got medically examined because she had disclosed a link of her injuries with the alleged occurrence. The witness further deposed that he was not in a position to contradict the fact that Mst. Irshad Begum remained admitted in Civil Hospital, Kahuta for a period of three days. With regard to Mst. Razia Bibi the witness said that she never showed any dopatta to him. The fact that Mst. Razia Bibi was medically examined is also admitted by' this witness for according to the witness, ruqqa (Exh. P. Q.) was sent by him to the Women Medical office, Kahuta for obtaining the result of the injury of Mst. Razia Bibi.
Similarly, Nasim Ahmad (P. W. 16), who verified the investigation in this case and submitted a final report under section 173, Cr. P. C. Admitted that he was not shown any dopatta by Mst. Razia Bibi.
This witness admitted to have seen on the police record the injury statement and the medico-legal report regarding Mat. Irshad Begum.
10. So far as the evidence of recovery of alleged weapon of offence .Is concerned even that is not at all very reliable, because I find that Mst. Razia Bibi in her statement admitted that the Sub-Inspector had recovered the hatchet on the day of occurrence and at that time he took the hatchet along with -him to the office of Union Council, Choha Khalsa. The hatchet was carried by a constable and it was not wrapped in any cloth.
Referring to the evidence of Raja Muhammad Khan (P. W. 11) I notice that the witness stated that the appellant while in police custody made a disclosure and led the police to the house of his brother Fazal Khan (since acquitted), where the appellant and the other accused resided and it was here that the recovery of hatchet (P.1) was effected at the instance of the appellant which was taken into possession vide memo. Exh. P. C. And was attested by the witness. The hatchet was then scaled in a parcel. The other recovery witness is Muhammad Zar (P. W. 13), who merely deposed that while in police custody the appellant made a disclosure and led to the- recovery of hatchet from his house. Shah Zaman Patwari (P. W. 4) who prepared the site-plan in the instant case found that the place of occurrence was in field No, 4176 which was owned and possessed by the appellant and the acquitted accused. This witness stated that he had not given any note about the damage to the pushti of house, because if there had been any damage then he would have decidedly made a note to that effect. After the witness had deposed to that effect and his cross- examination had concluded, a request was made by the A. P. P. To declare the witness hostile so that he could be cross---examined because the witness was contradicting the site-plan. This request was granted and the witness was cross-examined. So far as the evidence of this witness with regard to pushti was, concerned this is admitted by Nusratullah (P. W. 15) as well that there was no mention about any pushti of the house of the deceased having been made in the site-plan.
11. Assessing the entire evidence I am of the view that so far as the two main eye-witness, Mst. Razia Bibi and Muhammad Zar ate concerned, their evidence certainly is of very weak type and the same becomes very doubtful when other factors are taken into consideration, for instance, not only that the prosecution did not explain the injuries of Mst. Irshad Begum but also gave no cogent reason for not examining her. Similarly, the entire case of the prosecution becomes very suspicious that in spite of the fact that Mst. Razia Bibi was injured her medico-legal report was not exhibited nor did the doctor who examined her was put in the witness---box, These factors taken along with.
Unexplained delay in lodging the first information report virtually demolish the entire prosecution case, The only injury which Doctor Nasir Ahmed Qureshi. Medical Officer, Civil Hospital, Pind Dadan Khan found on the person of the deceased ways a lacerated wound l -- " x -- ` x -- '; on the parietal region of head, oblique ire direction, 5' above the right car and 1 -- to the right middle line of head.
The injury, according to the doctor, was caused by a blunt weapon and after the receipt of X-Ray report was declared grievous and was within 10 to 16 hours duration.
On 23rd of March 1972, Muhammad Fazil died and the same doctor performed the autopsy on 23rd March 1970, at 11-00 a.m. He found that the scalp wound on the right parietal region was not bone deep. There was fracture of right parietal and temporal bone. Large amount of dark coloured clotted blood was seen in the subarachnoid space. According to the doctor the cause of death was fracture of skull bone and intracranial haemorrhage. In cross-examination the doctor admitted that the injury of the deceased was possible by stone, and the fact that stones were actually thrown by the parties on each other is admitted by Muhammad Zar P. W in his evidence when he stated: "it is correct that at time of occurrence, the parties lead exchanged stone throwing.
From the side of the accused, the daughters of accused Dadan Khan and Razal Khan and from the side of the complainant Mst. Razia Bibi and her daughters---in-law Mst. Sabiran and Mst. Zeenat and P. W. Khaliq's wife Mst. Kakhdoom participated in stone-throwing. For about five minutes.
Stone-throwing lasted. The stones hurled by the parties were still lying on the spot when the police arrived. I pointed out to the S. H. O. The spots where injuries were caused to the deceased and Mst.
Razia Bibi. The stones hurled, by the parties were of different shapes, size and nature, and some were macho stone and some were pointed too".
12. In the light of the evidence discussed above, I am of the view that the case of the prosecution is of a very doubtful nature. Giving the benefit of doubts to the appellant, I accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be set at liberty forthwith if not required in any other case. The fine, if realised, shall be refunded to him.
For the foregoing reasons I find no merit in the revision petition filed by Abdul Khaliq which is hereby dismissed do limine.