' ATAULLAH SAJJAD, J.-This judgment will dispose of Murder Reference No, 1145, Criminal Appeal No, 424 and Criminal Revision No, 1179 of 1970.
2. The appellant Fazal Elahi was tric d alongwith his brother Ahmad Khan by the Sessions Judge, Jhelum, for the commission of an offence under section 302/34, P. P. C. For the murder of their first cousin Tora Baz. Fazal Elahi has been sentenced to death. He has appealed to this Court and usual murder reference is also before us. Ahmad Khan was acquitted. Sher Baz the first informant and brother of the deceased has filed Criminal Revision No, 1179 against the acquittal of Ahmad Khan.
3. The occurrence took place on 11th of June 1965, at peshiwela in village Musa Kahut, Police Station Dhuman in the District of Jhelum. The 'ether of the accused and the deceased had a common courtyard and there Nils a dispute about its boundaries. We find from the evidence of Capt. Slur Khan (P. W. 9) that he and Najeeb Khan (P. W. 13) had gone to the ;pot and it was decided that a person expert in measuring the land should called and thereafter a boundary be fixed. The parties agreed to this decision and the two witnesses named above demarcated the land provisionally.
4.On the day of the occurrence Tora Baz Khan had gone to Chakwal appear in a case before a Court. When he came back he found that the accused had constructed a wall in the joint courtyard. On this he protested loudly and there was an altercation between the two accused and 'ora Baz Khan. After this, the two accused went to their house and brought spears with them. Fazal Elahi gave a spear blow on the left flank f Tora Baz Khan. When Ahmad Khan was about to give the second blow e was intercepted by Imdad Khan (P. W. 12) the son of the deceased who icked up a stick from nearby and gave a blow on the shoulder of Ahmad han.
' The occurrence was seen by Sher Baz (P. W. 11), a brother of the ;ceased, Imdad Husain (P. W. 12), the son of the deceased, and Najeeb han (P. W. 13) a cousin of the deceased. His sister Mst. Nazir Begum is arried to Muhammad Nawaz a brother of the deceased. Ghulam Abbas W. 14) is the Khalazed of Gulzar Husain P. W.
10. The witness of recovery in this case is not directly related to the deceased.
5. Tora Baz Khan was taken on a cot to village Padshahan which is at a distance of one mile from the place of occurrence and from there in a bus to Chakwal Civil Hospital. Before medical aid could be rendered to the injured person, he died within a minute of his arrival in the Hospital at Chakwal.
Miss K. D. Khurshid, Lady Doctor, Civil Hospital, Chakwal (P. W. 1) informed the police about it and the statement of Sher Baz (P. F.) was recorded by Ghulam Ahmad (P. W. 8) S. H.
0. Police Station Chakwal, at 7-30 p.m. In the hospital. The formal F. I. R. Exh. P. F./1 was drawn on the basis of this statement.
6. Ahmad Khan was arrested on 13th of June 1969. Fazal Elahi appellant was not available, but he voluntarily surrendered before a Magistrate on 16th of June 1969. After his arrest Ahmad Khan had led to the recovery of a kharambi from a manger in his house. This weapon was not found to have been stained with blood and, therefore, was not sent for chemical examination. After the surrender of Fazal Elahi, the police took the remand of his person. On 18th of June 1969, he led to the recovery of barchhi P. 7 which appeared to be blood-stained, gun P. 8, bag P. 9 containing three live cartridges and cycle P. 10 from a heap of wood in front of the shutterless frame of kotha in his bela.
All the articles, except barchhl, belonged to the deceased. The recoveries are supported by the evidence of Gulzar Husain (P. W. 10) and Nadir Khan. This latter witness died after he made his statement before the committing Magistrate and his evidence was transferred to the file of the Sessions Court under section 33 of the Evidence Act.
7. Ahmed Khan was medically examined on 13th of June 1969, at 9-30 p.m. By Dr. Asghar Hamid Qureshi, Medical Officer, Civil Hospital, Chakwal. He found the following injuries on his person :-
(1) An abrasion 1' x r over front of left wrist.
(2) A lacerated wound r x r into superficial over tip and right thumb.
(3) A contusion mark 3' x t" over inner part of left scapula.
(4) A lenial abrasion 2' long over left scapular region.
(5) An abrasion 2' x 1/16' over back of neck.
(6) An abrasion, 4'x 1/16' over lower part of the back on the left side.
' All injuries were simple and were caused by a blunt weapon within the duration of about two to three days.
8. It may be observed that the case of the prosecution from the very start was that when Ahmad Khan, the acquitted accused, was going to give a second blow to the deceased, traded Husain the son of the deceased gave him an injury on his shoulder. We find from the medical examination of Ahmad Khan that he had six injuries on different parts of his body. The learned Sessions Judge observed that the only injury worth-noting is the contusion mark 3" x r which had been mentioned by the prosecution witnesses and since other injuries were minor, the prosecution witnesses mad not have been in a position to know as to how these injuries had been received. It may be stated that in order to explain the presence of more than one injury on the person of Ahmad Khan, the prosecution witnesses a' one trial said that he had fallen on the bricks after the incident. This face was not mentioned in the F. I. R. And this latter improvement has not been accepted by the learned Sessions Judge.
9. Ahmad Khan, the acquitted accused, had stated at the trial that some bricks had been thrown by the persons who brought them from the kiln in the entrance of the house of bra Baz deceased.
The deceased got annoyed and after exchange of hot words attacked Ahmad Khan with a lathi near the entrance of the latter's house. After the deceased had given him a number of blows, Ahmad Khan also picked up a chhurri from near a hearth and caused injury to the deceased in self-defence. He denied the prosecution story that injuries to him had been given by Imdad Husain when he was about to give another spear blow to the deceased. He further said that Fazal Elahi, appellant, had not participated in the fight.
10. We have observed above that both the accused and the complainant party are closely related, but this fact cannot be ignored that after the incident there was no love lost between them. The prosecution, to start with, admitted that only one injury was given to Ahread Khan but at the trial they invented an explanation for the other injuries and stated that Ahmad Khan had fallen on bricks. This explanation was disbelieved by the learned Sessions Judge and we feel for good reasons. Lmdad Husain P. W. Who was a boy of about sixteen years of age at the time of the occurrence was studying in a school at Hasola which is at a distance of four and a half miles from his house. He admitted that the school usually closed at 3 p.m. But on that particular date he had left the school at 12-30 p.m. After applying in writing for leave on the ground that he had to do some work at home. He said that he had to water the cattle in the absence of his father. He further admitted that he walked on foot all along to his house. No evidence was produced to the effect that Imdad Husain was actually on leave on that day. It is his claim that he inflicted only one injury on Ahmad Khan by taking hold of a stick from nearby. It is improbable that if Imdad Husain had acted in the manner in which he claims to have done he could have remained unscatched. Both the brothers were armed with spears and, in any case, Fazal Elahi, appellant, if he was there, was free to inflict a blow on Imdad Husain.
11. The learned Sessions Judge in coming to the conclusion of the culpability of Fazal Elahi took the following four factors into consideration :-
(1) that all the witnesses were related to the accused and were consistent in stating that the fatal blow had been given by Fazal Elahi appellant.
(2) that the blood-stained spear had been recovered at his instance ;
(3) that he remained absconding for five days after the occurrence; and
(4) that he removed the licensed gun of the deceased apprehending danger to his life at the hands of the relatives of the deceased.
12. The recovery by Fazal Elahi is deposed to by Gulzar Husain (P. W. 10) and Nadir Khan, as stated above. Gulzar Husain admitted that Muhammad Khan a remote nephew of the accused had abducted Mst. Sahib Noor, the wife of Capt. Noor Khan (P. W. 9). Gulzar Husain denied at the trial that the above Mst. Sahib Noor was his mother's sister. He had, however, admitted before the committing Magistrate this relationship and was duly confronted with his statement. He further admitted that Mst. GulahL Khatun, the mother of Ghulam Abbas (P. W. 14) was his mother's sister.
Gulzar Husain stated that 25/30 persons accompanied the police party when the accused was leading to his bela. None of these persons has been named as witnesses of the recovery. The other witness of the recovery, namely, Nadir Khan is a Chaukidar of village Padshahan. He stated that at the time when Fazal Elahi led to the recovery of the gun etc., no one except the police party and Fazal Elahi was present. He said that the police stayed at the place of recovery for about two hours.
He further said that Gulzar Husain Lambardar (P. W. 10) was not present at the time of the recovery.
This witness admitted that the spear was not blood-stained at the time of the recovery and the cycle was covered by the grass and was lying on the ground. The bag containing the two cartridges and the licence and the gun were also lying along with the cycle. This witness also does not appear to be quite ildependent because he admitted that he had a dispute with Nawab Khan the father of the accused about the price of a cow. We, therefore, find that the evidence of recovery against Fazal Elahi is not consistent. Moreover, the articles were recovered from the reeds in an open place and it cannot be positively said that Fazal Elahi had the exclusive knowledge of the fact that these articles were lying there. Gulzar Husain (P. W. 10) is definitely an inimical witness as his Khala was abducted by a distant nephew of the accused. Nadir Khan was imported from village Padshahan. ! Here is evidence to the effect that there were a number of persons present at the time of the recovery. There is no explanation whatsoever from the record except the statement attributed to Fazal Elahi in the recovery memo. As to in what way Fazal Elahi came into possession of the cycle, the gun of the deceased alongwith the licence and the cartridges which are said to be belonging to the deceased. The observation of the learned Sessions Judge that these articles had been taken away by Fazal Elahi to escape harm from the hands of the relatives of the deceased is not supported by any evidence on the record. The spear, according to Nadir Khan, was not stained with blood when it was recovered. In any case the result of the Chemical Examination shows that the blood on the spear was disintegrated.
13. So far as the abscondence of Fazal Elahi is concerned, no question was put to him under section 342, Cr. P. C. And since he was not asked to explain the circumstances leading to his absence, this factor cannot be taken into consideration against him.
14. We have seen above that the learned Sessions Judge was impressed by the fact that all the prosecution witnesses had said that Fazal Elahi appellant was the author of the fatal blow. We cannot be unmindful of the fact that after the incident the temptation to spread the net too wide became irresistible for the prosecution witnesses in spite of their close relationship with the accused. We cannot place implicit reliance on the word of these witnesses who in the first instance minimised the number of injuries caused to Ahmad Khan and then at the trial gave an explanation for them which was found to be false by the learned Sessions Judge himself. The learned Sessions Judge rightly held that Ghulam Abbas P. W. Was not related to the deceased but it is on record that a Khala of this witness and that of Gulzar Husain P. W. 10 was abducted by a relative of the accused and the rancour of this incident must have remained in the mind of Ghulam Abbas. He is, therefore, not an independent witness.
15. There is no dispute about the fact that it was Tora Baz deceased who had started a quarrel about the construction of the wall. The story that the two brothers went inside their house and came back armed, appears to be an embelishment. The incident in our opinion flared up suddenly.
In the circumstances of the Qase, the defence taken by Ahmad Khan that he had been assaulted first and was given injuries and he in exercise of the right of private defence gave the fatal injury to the deceased cannot be tuled out as improbable. It may Is mentioned here that Ahmad Khan is said to have been armed with a spear but only a kharambi was recovered after his arrest.
Following what their Lordships of the Federal Court have said in Safdar Ali's case (1) we hold that the story told by Ahmad Khan is probable and Fazal Flahi appellant is entitled to the benefit of doubt.
16. As a result of the above, we allow the appeal filed by the appellant and set aside his conviction and sentence. We refuse to confirm the sentence of death passed on him. The murder reference is answered accordingly. The revision petition against the acquittal of Ahmad Khan is dismissed.
' The appellant shall be released forthwith unless he is required to be lawfully detained in some other case.
(1) PLD 1953 FC 93