This Criminal Appeal No.22 of 1984 filed by Muhammad Ayub and Muhammad Afzal, appellants, and State Appeal No.442 of 1984 against acquittal of Mchmood Ahmad. Respondent, arise from the judgment of Additional Sessions Judge, Faisalabad, where he, on 21-12-1983, while acquitting Mehmood Ahmad convicted Muhammad Ayub and Muhammad Afzal, appellants, under sections 308 and 304, P.P.C. And sentenced them as under:--
(1) Muhammad Ayub, appellant Under section 308, P.P.C.to three years' R.I. and a fine of Rs.5,000 or in default thereof one year's R.I.
(2) Muhammad Afzal appellant Under section 304(1), P.P.C.to ten years' R.I. and a fine of Rs.10,000 or in default thereof two years' R.I.
I propose to dispose of them through single judgment.
2. The occurrence took pace on 2-5-1981 at 2.00 p.m. In lane situate in Ward No.3, Dijkot. The F.I.R.
Exh. P.M. Was lodged by Muhammad Sarwar, P.W.7, brother of Muhammad Ashraf, deceased on the same day at 4-45 p.m. At Police Station Dijkot and was recorded by Rustam Khan S.I. P.W.13. The distance between the place of occurrence and police station was/is 2-1/2 furlongs. The parties besides being closely related were neighbours. Muhammad Ayub, appellant, is son of Mahmood Ahmad acquitted accused. Muhammad Afzal is brother of Mahmood Ahmad, acquitted accused.
Muhammad Ayub, appellant, and Mehmood Ahmad acquitted accused are the first cousins of the father of the deceased. Muhammad Sarwar, P.W.7, is the brother of Muhammad Ashraf, deceased.
3. There was no serious enmity between the parties. However, their relations were strained on account of quarrel over the division of an Ihata and the placement of the drains. The immediate cause of the attack by the appellants/accused on the deceased and his brother Muhammad Sarwar complainant allegedly was that just before the main occurrence, Muhammad Afzal accused was going towards his fields when Muhammad Sarwar, P.W.7, came out of his house and coughed. Muhammad Afzal took exception to it. Muhammad Sarwar, P.W.7, explained that he had not coughed to insult or annoy him. Muhammad Afzal appellant feeling not satisfied with the explanation of Muhammad Afzal threatened Muhammad Sarwar with dire consequences and left for his fields.
4. As for the main occurrence, it has been stated that after some time of incident (coughing)
Muhammad Ayub, appellant, armed with hockey, Muhammad Afzal appellant carrying Churri in his hand, and Mehmood Ahmad holding Sotas in his hands came in front of the house of Muhammad Sarwar complainant and raised Lalkara asking him to come out of the house. In the meantime, Muhammad Ashraf, deceased, and Muhammad Anwar P.W. Returned from their fields. On seeing them, the appellants and the acquitted accused raised Lalkara that they should be caught hold of.
Meanwhile, Muhammad Sarwar came out from his house. Muhammad Ayub gave two stick blows on his shoulder. Mehmood Ahmad gave two Sota blows on his person. Muhammad Ashraf, deceased, tried to intervene, when Muhammad Afzal gave Churri blows in his abdomen. On receiving these injuries, Muhammad Ashraf, deceased, retreated towards Pacca road but fell down at a distance of 8/10 paces. The occurrence was also seen by Nazir Khan P.W.8 and Iqbal (not produced). Muhammad Ashraf, deceased, was removed to District Headquarter, Faisalabad, by Muhammad Sarwar, complainant, and others.
5. Dr. Muhammad Ajmal, P.W.1, had examined Muhammad Ashraf and Muhammad Sarwar. He found one stab wound on the left side of the abdomen of Muhammad Ashraf and four injuries caused with blunt weapon on the person of Muhammad Sarwar, complainant. One of the injuries of Muhammad Sarwar on the back of the right elbow was grievous and the others were simple.
Muhammad Ashraf, died in the hospital on 5-5-1981 at 7-50 a.m., so Dr. Muhammad Ajmal, P.W.1, conducted post-mortem examination on his body and found following injuries on his person:-- (1)A stitched stab wound 4 c.m. Long at 1-00 O'clock position of the urnblicus on the left side of the abdomen, cutting peritoneum and stomach underneath.
(2)A stitched wound of laparatomy operation 11 c.m. Long vertically on the left side of abdomen.
On opening the thorax, the doctor found the right side of the heart containing blood while the left side was empty. On opening the abdomen, its walls were found out and stitched as mentioned above. The peritoneum was congested. The stomach was found cut and stitched and was empty.
The intestines, both large and small were congested and contained clotted blood. The urinary bladder was empty.
6. The appellants and Mehmood Ahmad acquitted accused were arrested on 6-5-1981 by Rustam Khan, Sub-Inspector, P.W.13. On 8-5-1981 Muhammad Ayub got recovered hockey stick P.6 from his house, which was taken into possession vide memo. P.Q. Attested by Habib-ur-Rehman's, P.W.12. On the same day and in the presence of the same witnesses Muhammad Afzal, appellant, led to the recovery of blood-stained Churri P.7 from his house, which was taken into possession vide memo.
P.R. On the same day, Mehmood Ahmad got recovered Sota P.8 from his house in the presence of the same witnesses which was taken into possession vide memo. P.S. The Forensic report shows that the Churri was stained with human blood.
7. To prove its case prosecution produced 13 witnesses. Muhammad Sarwar, P.W.7, Nazir Khan, P.W.8, and Muhammad Anwar, P.W.9, have given the ocular account of occurrence. They claimed to have seen Muhammad Afzal, appellant, giving Churri blows to Muhammad Ashraf, deceased, and Mahmood Ahmad acquitted accused giving two Sota blows each on the person of Muhammad Sarwar complainant. Muhammad Sarwar has also deposed about the background of the occurrence. Habib-ur-Rehman's P.W.12, and Rustam Khan S.I. P.W.13, have supported the incriminating recoveries from the appellants and the acquitted accused. Dr. Muhammad Ajmal has proved the medico-legal report of the deceased and of Muhammad Akram complainant and also post-mortem examination report of the deceased. Dr. Bashir Hussain Kahlon, P.W.6 medically examined Muhammad Ayub, appellant, on 3-5-1981 at 12-30 a.m. He found following injuries on his person:-- (1)An incised wound 4 c.m. x 3/4 c.m. Into bone cut through and through on the back of left hand in the area of 5th matacarple bone at its middle.
(2)A contused mark 7 c.m. x 2 c.m. On the back of right scapular region.
(3)Three contused marks 8 c.m. x 1-1/2 c.m. On the back of the left side of the chest.
(4)A swelling 8 c.m. x 8 c.m. On the outer side of left thigh.
According to the doctor, injury No.1 had been caused with sharp-edged weapon and was grievous in nature while the remaining injuries were simple in nature having been caused with brunt weapon. The probable duration between the injuries and the medical examination was about nine hours. The rest of the evidence was/is of formal nature.
7-A. When examined under section 342, Cr.P.C. The appellants denied all incriminating circumstances. Admitting his presence on the spot Muhammad Ayub explained that at the eventful time when he came out of his house Muhammad Ashraf armed with Churri, Muhammad Sarwar, complainant, armed with stick launched attack on him and caused injuries with their weapons. He raised alarm which attracted a large number of people to the spot and someone from them inflicted Churri blow to Muhammad Ashraf in order to save his (Muhammad Ayub's) life.
The appellant and the acquitted accused did not produce any evidence in. Defence. The trial Court has disbelieved the motive, presence of Muhammad Anwar P.W., participation of Mahmood Ahmad co---accused, 50% of the story of the prosecution and on its own theory inferred from the facts and circumstances of the case has convicted and sentenced the appellants for their individual acts, as stated above.
8. Learned counsel for the appellants contended that after having disbelieved the motive, and the prosecution story partly, and participation of one of the accused, the trial Court was not justified in convicting the appellants on its own theory, which was/is not supported by the facts of the case.
He further submitted that the eye-witnesses having suppressed the injuries of Muhammad Ayub, appellant, could not have been relied upon for convicting the appellants. Learned counsel for the State has not only supported the conviction of the appellant but was also of the view that the acquittal of Mahmood Ahmad, co---accused was wrong on facts and law.
9. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the appellants. I find that the trial Court has disbelieved the prosecution version to a great extent. The trial Court has not believed the presence of Muhammad Anwar one of the eye-witnesses on the spot and has also disbelieved the presence and participation of Mahmood Ahmad co-accused.
The trial Court has given sound and cogent reasons in this respect. The eye-witnesses are not only closely related to the deceased but it seems to me that they have given the evidence with the motive other than that of telling the truth. Muhammad Ayub suffered four injuries. One of the injuries caused with sharp---edged weapons was grievous in nature. Strangely enough, these injuries have not properly been explained by the eye-witnesses. By the fact of the injuries on the person of Muhammad Ayub, it is very much established that the deceased party was armed with sharp-edged weapons as well as blunt weapon. The eye-witnesses have suppressed the part played by them in the occurrence. In view of the alleged background of the occurrence, the deceased had also a motive to attack Muhammad Ayyub and Muhammad Akram. The eye- witnesses are basically dishonest witnesses. They have not been believed to the extent of the presence of Muhammad Anwar P.W. And to the extent of one accused namely Mahmood Ahmad.
Recovery of blood-stained Churri from Muhammad Afzal after tour days of the occurrence and that too from his house where he could easily wash away the blood on the blade, runs counter to the natural probabilities. I am convinced that the trial Court has failed to appreciate the case and evidence on record in accordance with the guidelines given by the superior Courts for the appreciation of evidence in such like cases. The trial Court has convicted the appellants on a theory, which does not find support from the evidence and circumstances appearing in the case.
There was confusion and darkness around, so instead of drawing inference with the help of telescope, for convicting the appellants, the trial Court should have given the benefit of doubt to them.
10. Pursuant to the above discussion, there being no satisfactory basis to uphold the conviction and sentence of Muhammad Ayub and Muhammad Afzal, appellants, Criminal Appeal No.22 of 1984 is accepted and they are acquitted of the charge. They are on bail and stand discharged of the bail bonds. Resultantly the connected appeal against the acquittal of Mahmood Ahmad, accused fails and is dismissed.