TANVIR AHMAD KHAN, J.--ThLs appeal is directed against the judgment dated 5.12.1984 passed by the learned Additional Sessions Judge, Kasur, whereby he convicted both the appellants under section 302 PPC and sentenced them to life imprisonment for the murder of Muhammad Akbar.
They were also fined Rs.5000/- each and in default in payment of fine to suffer two years R.I. The fine, if realised, was ordered to be paid to the legal heris of the deceased as compensation under section 544-A Cr.P.C. The other co-accused, namely Muhammad Yusuf acquitted of all the charges ,by giving him benefit of doubt.
2. The facts as unfolded by the prosecution arc that Shahabuddin (P.W- 1) made a statement Ex.PA before Muhammad Sarwar AS1 (P.W) at the Railway Station Kot Radha Kishan on 21.9.1977 at 10.30 a.m. While the latter was on patrol duty. It was stated therein that three years earlier one Jan Muhammad son of Siraj Din brother of Muhammad Yusuf co-accused was murdered whereupon a case was registered against complainant's son Munawar and his brother-in-law Farmaish. Due to this murder Muhammad Yusuf co-accused and the present appellants, who all were related inter se nourished grudge. It was the complainant's case that on the abetment of Muhammad Yusuf co- accused Anwar and Razzaq respectively armed with hatchet andjChhuri attacked deceased Akbar while he was coming to his village in the company of the complainant from Kot Radha Kishan at 9.30 a.m. On 21.9.1977; It was stated that Anwar appellant gave a hatchet blow on the head of the deceased and thereafter Razzaq appellant gave two Chhuri blows hifting him.On the back of his right shoulder and on his right arm. Muhammad Akbar fell on the ground and thereafter Anwar appellant caught hold of him from his leg and Razzaq appellant sat on his chest and cut his throat with Chhuri. Thereafter Anwar accused inflicted blows on the legs of the deceased with the wrong side of the hatchet. The complainant continued raising alarm which attracted Faiz and Rashid P.Ws. On the basis of this statement formal FIR Ex.PA/1 wasJ recorded at Police-Station Raiwind by Bashir Ahmad ASI(P.W-3). Muhammad Sarwar AS1 (P.W) after recording the above statement proceeded towards the place of occurrence where the dead body was lying. He prepared the injury statement Ex.PH and inquest report Ex.PJ. He also took into possession blood-stained earth from the place of occurrence vide Ex.PD/1. He recorded the statements of the witnesses and got prepared the site plan Ex.PB and Ex.PB/1 through Muhammad Yaqub Patwari., The postmortem examination was conducted by Dr.Zafar Iqbal on 22.9-. 1977 at 1.00 p.m. At Civil Hospital Kasur where he was Medical Officer during those days. Due to his death the postmortem report was proved through the testimony of Dr.Shamim Zafar, his wife W.M.O. Distt.Headquarter Hospital, Kasur, who was fully conversant with his hand writing. Muhammad Akbar deceased had the following injuries:
1. A lacerated wound 1" x 1/2" x scalp deep on the top of head hear. Occiput.
2. A cut wound 2" X 1" on the back of head lV right of occiput, jjone underneath had chip chopped off. Right posterior cranial fossa flf the bone Of skull has 1" x 1" depressed fracture. Brain was covered withr blood.
3. A cut wound 3" x 1" on the front of neck upper part horizontally , placed. Thyroid cartilage and 2 tracheal rings fractured to pieces.Vertebra underneath had superficial injury with some blunt weapon. A vertebra below this (4lh vertebra) has a horizontal cut 1" x 1/6" x 1/2" (deep. Oesophagus and right neck vessels'alongwith trachea cut 1 through and through.
4. Five parallel superficial horizontal incised wounds on the front of neck below injury No.4 upto root of neck size 2 V x 1/6" each.
5. Abrasion 1h" x 1 /2" on the right side of chin.
6. Scratch 2 V x 1/6" x supernal on the top and back of right shoulder.
7. - A cut wound 2" X 1" muscle deep on the front of right arm middle.
8. A stab wound 1" x 1/2" x 1" outside eight arm 1h" above and outside of injury No.7.
9. A stab would 1" x 1/2" x 1^" on the back of right arm 1h back and above injury No.8.
10. Abrasion 2" x 2" back right arm lower part.
11. A cut would 2" x 1" x muscle deep back right scapula. There is 5" long tail on the upper and of the wound.
12. Abrasion 2 V x 1/4" outside and back left fore arm and elbow.
3. Corresponding cuts over the shirt were present. In the opinion ofdoctor death occurred due to massive haemorrhage and shock from injury No.3 which was sufficient to cause death in the ordinary course of nature. Injuries No.1,5,10 and l2 were caused by blunt weapon and other injuries were by sharp- edged weapon. All the injuries were ante-mortem. The probable time between injuries and eeath was immediate and between death and post mortem was 24 hours to 36 hours.
Ex.P.C was the correct carbon copy of the post-mortem report. The doctor had also observed that the skin of the deceased was peeled off at places.
4. The appellants were arrested on 22.9.1977 after they were produced by on Jilal according to Mushtaq Ahmad SHO(P.W-IO). Anwar appellant while in police custody produced hatchet P6 from the sugarcance field of one Mangtoo which was taken into possession vide recovery memo Ex.PH on 25.9.1977. On the same day Razzaq appellant while in police custody led to the recovery of Chhuri P7 from the afore stated sugarcane field and was taken into possession vide recovery memo Ex.PG. After the usual investigation the appellants were charged for the offence under section 302/34 PPC.
5. The prosecution examined 10 witnesses in order to establish its case. The ocular account has been stated by Shahabuddin complainant (P.W-1) and Faiz Muhammad (P.W-7). Shahab-Ud-Din (P.W-1) reiterated his earlier stance taken by him in the FIR. However, he has made certain improvements by stating that 3/4 days prior to the occurrence he had passed near the house of Muhammad Yusuf acquitted co-accused who stopped him from passing there. When the co- accused Muhammad Yusuf was told that was the only way, he threatened him with dire consequences. This witness also stated about the motive which he had earlier stated in the FIR. Faiz Muhammad (P.W-7) narrated the ocular account in the terms stated by Shahab-Ud-Din P.W.
6. When the appellants were examined under section 342 Cr.P.C, they denied the allegation and stated that it was an unseen occurrence alleged to havetaken place in the early hours of the morning and they had been implicated due to suspicion. They also produced Dr.Muhammad Tahir Anis, who had stated that the peeling of the skin starts approximately after 48 hours of the death of an individual in the summer and about four days after death in the winter.
7. Learned counsel for the appellants has argued that it was an unseen murder and the present appellants had been involved just because of suspicion. He has also stated that the medical evidence is in direct conflict with the ocular account. He has also argued that I.O. In the inquest report as well as in the injury statement Ex.PJ/1 and Ex.PH respectively had mentioned that the skin of the deceased was peeled off from both elbows, upper part of the abdomen and right fore-arm.
Peeling of the skin was also noticed by Dr.Zafar Iqbal, who conducted the postmortem examination.
Learned counsel has also challenged the veracity of the motive as well as the rccoverics'ol incriminating weapons.
8. I have considered the contentions and have perused the record with the assistance of the learned counsel appearing for the parties. The ocular account in this case has been stated by Shahab-Ud-Din P.W-1 and Faiz Muhammad (P.W- 7). It has been brought on record that the alleged place of occurrence was not a rgular path where according to the prosecution, Akbar deceased was going in the company of Shahab-Ud-Din (P.W). The witnesses have not given cogent explanation for their being present at the place of occurrence. It is also prosecution version that the alleged occurrence continued for about 25 to 30 minutes but surprisingly no body was attracted to the place of occurrence from the adjacent Abadi inspite of hue and cry of the complainant and the fact that the occurrence was stated to have taken place at 8.00 a.m. Even otherwise the conduct demonstrated by the witnesses at the place of occurrence is un-natural.
Had they been present over there and the occurrence continued for 30 minutes as alleged by them, they would have certainly intervened. Their testimony is also in conflict with the medical evidence. It has been stated that the injuries were inflicted on the legs of the deceased as well but during the course of medical examination no such injury had been found. Another aspect of the case is that the skin of the deceased was peeled off at different parts of the body. This would show that the death had taken place earlier than what had been stated by the prosecution. This being the situation, keeping the ocular account as well as medical evidence into consideration, I am of the view that the same is not in line with the medical account. The motive in this case has simply been alleged by the prosecution through the testimony of Shahab-Ud-Din P.W and has not been brought to its logical conclusion. The mere assertion of the alleged motive without bringing anything on record would not exonerate the prosecution from its duty in establishing it beyond doubt. Here in this case, the prosecution has not discharged its duty in establishing the motive as alleged. As far as the recoveries of incriminating weapons are concerned those too have not been established satisfactorily. The open sugarcane field fromwhere the alleged recoveries were affected was very close to the village Abadi. No independent witness had come forward to establish the recoveries except Muhammad Sharif P.W, the other brother of Shahab-Ud-Din complainant. His testimony does not inspire any confidence.
9. In view of what has been stated above, I am of the view -that the prosecution has not established its case beyond doubt, resultantly the appeal is accepted. The appellants shall be released forthwith, if not required in any other case.