I propose to dispose of Criminal Appeal No.464 of 1981 Filed by Sanatta appellant against his conviction and sentence and Criminal Revision No.620 of 1983 filed by Waryam complainant, against the acquittal of Sanatta, appellant, and his co-accused of the charge under section 302/34, P.P.C.
2. Sanatta and three others were tried under section 302/34, P.P.C. For the murder of Nazir on 3-8- 1979 in Dhari of Sanatta, appellant, situate in village Kaura, Chak No.128 of Police Station Chiniot, District Jhang. They denied the charge and claimed to be tried.
3. The motive allegedly was that Nazir, deceased, had abducted Mst, Fateh Mai, who had illicit relation with him 4/5 years before the occurrence. However, she was returned to her parents. As far the main occurrence it has been stated that on 3-8-1979 Jahanan. P.W.9 and Nazir deceased came to Chiniot at 3-00 p.m. They were shaved by Bashir Barber. P.W.6 m Chiniot. Mirja acquitted accused met them there, who brought the deceased and Jahanan, P.W.9. To the Dhari of the appellant in village Kaura at about sunset time. Leaving the deceased and Jahanan, P.W.9, under a tree near his house, Mirja went inside the Dhari of the appellant. Shortly thereafter Sanatta armed with hatchet Manik, Noora and Mirja carrying Dangs, came out of the Dhari and attacked Nazir, and caused injuries on his persons with their weapons. On seeing Nazir under attack Jahanan slipped away. Sultan and Muhammad Latif, P.Ws. Were attracted to the place of occurrence. They saw the appellant and his co-accused inflicting injuries to the deceased. It was in their presence that the appellant and his co-accused removed Nazir into the haveli of the appellant and gave him more injuries there. Jahanan, P.W.9, went to his village and informed Waryam P.W. Who came to the spot and found Nazir lying in serious condition. He took him to Civil Hospital. Chiniot. In the meantime, Sanatta got a case under section 457/511, P.P.C. Registered against Nazir deceased. Nazir died at 7- 30 p.m. On this, the present case under section 302, P.P.C. Was registered against Sanatta and his co-accused.
4. The appellant and his co-accused were arrested on 11-8-1979. Sanatta appellant produced hatchet P.4 which was taken into possession vide memo. P.H. Sota P.1, P.2 and P.3 were recovered from Manik, Noora and Mirja co-accused.
5. To prove its case, the prosecution produced 15 witnesses. Bashir, P.W.6, has deposed about the arrival of deceased alongwith Jahanan P.W.9, in his shop situate in Chiniot. Jahanan, P.W.9, and Latif, P.W.10, are the eye-witnesses of the occurrence. They claim to have seen the appellant and his co-accused inflicting injuries on Nazir deceased at the time of occurrence. Waryam P.W.11 has supported the story of prosecution including the motive.
6. Dr. Muhammad Bashir Amin, P.W.1, had examined Nazir in injured condition. He found 9 injuries on his person. After the death of Nazir Ahmad, deceased, he conducted post-mortem examination of the dead body and found the same injuries oh his person. On internal examination he found that there were fracture of parietal bones. In his opinion, the death was due to shock and haemorrhage as a result of the injuries 1 to 5, which were sufficient to cause the death in the ordinary course of events. All the injuries were cause by blunt weapon. The rest of the evidence is of formal nature.
7. When examined under section 342, Cr.P.C. The appellant and his co---accused denied all incriminating circumstances. They did not produce any witness in defence. .
8. Disbelieving the ocular evidence and statement made by Bashir P.W.6, the trial Court acquitted the three co-accused but relying on the F.I.R. Exh. P.K. Under section 457/511, P.P.C. Lodged by the Sanatta appellant against Nazir deceased, the trial Court came to the conclusion that Sanatta alone had killed the deceased when the later came to his Dhari to meet Mst. Fetah Mai (the niece of the appellant) and as such the offence committed was punishable under section 304, Part I, P.P.C. So he sentenced him to 10 years' R.I. And a fine of Rs.5,(100 or in default thereof 2 years' R.I.
Learned counsel for the appellant contended that after disbelieving the prosecution case and the ocular account of the occurrence given by the two eyewitnesses, there were no justification to convict the appellant on the basis of the F.I.R. Exh. P.K. Learned counsel for the State has supported the judgment of the trial Court. The learned counsel for the complainant who has appeared in the connected criminal revision, was of the view that Sanatta appellant and his cod accused all have wrongly been acquitted of the charge under section 302/34, P.P.C. He argued that the eye- witnesses had no serious enmity to involve the accused falsely; and that the trial Court has not given sound and cogent reasons for acquitting them.
9. I have considered the submissions made by the learned counsel for the parties. I feel pursuaded to agree with the learned counsel for the appellant. I find that the trial Court has applied its conscious mind to the evidence on record and circumstances appearing in the case, and has given sound and cogent reasons for rejecting the statement made by Bashir, P.W.6, Jahanan, P.W.9 and Muhammad Latif, P.W.10. The prosecution story that Nazir admittedly had abducted the niece of Sanatta had voluntarily accompanied Mirja to the Dhari of the appellant runs counter to the natural probabilities. In the ordinary course of events he could not have accompanied the relative of the woman abducted by him and gone to the Dhari of his enemies. The trial Court found that the deceased had not accompanied Mirja from Chiniot to the place of occurrence. The observations made by the trial Court fits in with the evidence and circumstances appearing in the case. After discussing the evidence of Muhammad Latif P.W.10, the trial Court found that he was not present at the place of occurrence and was a procured witness. The reasons given by the trial Court in para. 15 of its judgment find support and circumstances appearing in the case. For these reasons. I feel that no exception can be taken to the rejection of the prosecution case and the ocular evidence produced by it by the trial Court.
10. Strangely enough, after having disbelieved the presence of the eye--witnesses on the spot and the statement made by Bashir, P.W.6 and story of the prosecution, the trial Court has based the conviction of Sanatta on the contents of F.I.R. Exh. P.K. Which he had lodged against the deceased. I am convinced that the trial Court was not justified in recording the conviction of the appellant on the basis of F.1.R. Exh. P.K. After having disbelieved the prosecution case, the trial Court was obliged to accept the statement of the appellant made under section 342, Cr.P.C. As a whole and was also bound to accept the contents of the F.I.R. Exh. P.K. As a whole. It is well-settled that if an accused person is to be condemned out of his mind then his entire version is either to be believed or to be rejected as a whole.
11. Pursuant to the above discussion, the appeal is accepted. The conviction and sentence of the appellant is set aside and he is acquitted of the charge. He is on bail. He stand$ discharged of the bail bond. Resultantly, the connected revision fails and is accordingly dismissed.