MAZHAR-UL-HAQ, J.-----Haq Nawaz, a resident of Chak Channuwali in Inayatpur Mahota (District Multan) has been sentenced by the Sessions. Judge, Multan, to death under section 302, P. P. C. Of the Pakistan Penal Code, for the murder of Mulazim Hussain, a tube-well operator. His appeal and the connected murder reference are before us.
2. Mulazim Hussain deceased was a resident of Hassanabad near Multan City. He worked as an operator at tube-well No. 17 of Lutafabad near Pakhowali village. He was related to Allah Bakhsh (P.
W. 5) and Imam Bakhsh (P. W. 6). Allah Bakhsh P. W. Ran a grocery shop in Hassan--abad. Imam Bakhsh P. W. Who lived in Hassanabad, worked as a labourer in the Fertilzer Factory at Multan. On the evening of 25th December 1970, Imam Bakhsh P. W. Went to the shop of Allah Bakhsh P. W., where both decided to go to Mulazim Hussain to fetch ghee, which was needed by Allah Bakhsh P.
W. They left together next morning and reached the tube-well of Mulazim Hussain at about 10 a.m.
After staying there for nearly three hours, Allah Bakhsh P. W. Told Mulazim Hussain that he wanted to buy some ghee. Mulazim Hussain took them to Pakhowali. Mst. Muradan (P. W. 11) met them there near her house and offered to sell one to one and a quarter seers of ghee. She then took them home and asked her daughter Mst. Naziran to weigh the ghee for Mulazim Hussain and give it to him, Mulazim Hussain went with her to a chappar, his companions sat in the compound, and Mst.
Muradan began to pluck turnips which were growing in the compound. Soon afterwards, Haq Nawaz appellant turned up armed with a wooden bala (rafter). He asked Mulazim Hussain, why he had come there in spite of having been prohibited from visiting his fiancae (Mst. Naziran). Mulazim Hussain replied that he had come to buy ghee from Mst. Muradan. Haq Nawaz appellant got enraged and struck the bala on his head. Mulazim Hussain fell down and began to bleed from mouth, ears and nose. The appellant went away with his bala. Allah Bakhsh ant Imam Bakhsh P. Ws.
Raised an alarm. Mulazim Hussain died ten or fifteen minutes later. Imam Bakhsh P. W. Went and brought Muhammad Waris Lambardar and a Chaukidar after three quarters of an hour. Allah Bakhsh P. W. Then went to Alpa Police Station and made report Exh. P. A. To Sahibzada Zulfiqar A.I Khan, Sub-Inspector (P. W. 13), at 3 p.m. The Sub-Inspector reached the spot at 5 p.m. And prepared the necessary documents. He collected blood-stained earth from the place of occurrence and sent the dead body of Mulazim Hussain for post-mortem examination.
3. Autopsy was held by Dr. Zafar Durrani (P. W. 1) Medical Superin--tendent, District Headquarters Hospital, Multan at 2-30 p.m. On 270; December 1970. He found the following injuries on the dead body :---
(1) An abraded contusion 2-- ' x 1/8' on the middle part on the back of the left fore-arm.
(2) An abrasion 1--' x 1/8' on the outer part of the mid length of the left arm. Transverse.
(3) An abrasion 1--" x 1/6' placed transversely on the middle and upper --part of forehead.
(4) An interrupted contusion 3--' x 2", a little to right of midline on the front part of the head, antro posterior.
There was an extensive and multiple fracture of the skull involving frontal bone, the parietal bones, the temporal bones. There was also a linear fracture of the occipital and sphenoid bones. The injury was sufficient in the ordinary course of nature to cause death. The doctor was of the opinion that it might have been the result of the two blows but on seeing ball (P. 3) he stated that a single blow with it could be responsible for the injury. In his opinion, the remaining three injuries could be due to a fall or to striking against a hard substance. The injured person could die within a few minutes, but judging from cynoses of the face, he died after about five hours.
4. On 27th December 1970, the Sub-Inspector arrested the appellant, who was produced before him by Malik Manzoor Chairman, Basic Demo--cracies, with bala (P. 3). The bala had no blood stains but the earth which was sent to the Chemical Examiner was found to be stained with human blood.
5. The appellant denied guilt and ascribed the case to enmity with Muhammad Bakhsh whom the appellant had beaten for teasing his sister. The appellant admitted that Mst. Naziran P. W. Was engaged to him, but he denied having stopped the deceased from visiting her house, as he did not suspect him. He produced two witnesses in defence.
6. The prosecution relied on the evidence of Mst. Muradan, her daughter Mst. Naziran, Muhammad Waris Lambardar and Malik Manzoor Chairman, B. D. From Pakhowali and Allah Bakhsh and Imam Bakhsh from Hassanabad. Mst. Muradan did not support the prosecution case even in the Court of the Committing Magistrate, while Mst. Naziran, Muhammad Waris and Malik Manzoor were given up as hostile witnesses. The defence examined Muhammad Waris (D. W. 1) and Malik Manzoor (D. W.
2). The sum and substance of the evidence of these witnesses is that no one saw the murder of Mulazim Hussain, that the appellant was suspected on the following day of the occurrence, that he was not produced by Malik Manzoor before the police and was not brought by Allah Bakhsh but by one Muhammad Bakhsh, who was inimical towards the appellant, because the appellant had complained against him to Malik Manzoor for teasing his sister. These witnesses also signed the relevant recovery memos prepared by the police, but they deposed to have done so under police pressure.
7. We are left with the evidence of Allah Bakhsh and Imam Bakhsh P. Ws. They are related to the deceased. They are also residents of his native village. Their story of a visit to the deceased to buy ghee is doubt--full. Imam Bakhsh was a labourer in the Fertilzer Factory at Multan and he had no business of his own with Mulazim Hussain deceased. The day on which he went with Allah Bakhsh P.
W. For the pleasure of his company was not a holiday. When questioned on the subject, he deposed that he was on six days sick leave and it was on the 4th day of his leave, that they went to buy ghee. A person on sick leave is not likely to travel 13 miles for the fun of it. His plea of having been on sick leave on the day of the occurrence is belied by Allah Bakhsh P. W. Who deposed that when Imam Bakhsh visited his shop, on the preceding evening, he had come from the Fertilzer Factory. Both had travelled together in a bus, but Allah Bakhsh could not tell, who paid the bus fare.
Allah Bakhsh P. W. Said that he carried a utensil for collecting ghee. This utensil was not taken to Pakhowali, wherefrom the ghee was to be taken nor was it produced before the police. Although the witnesses began by saying that they did not know why the appellant had killed their companion, they subsequently con--ceded that Mst. Muradan and her daughter were on visiting terms with the deceased and that the appellant was known to be engaged with Mst. Naziran. The witnesses first stated that Mst. Naziran went to the residential kotha for supplying ghee, but subsequently the kotha was changed to a chappar. We do not accept the view that as the roofs of the kotha and the chappar were thatched, the witnesses could consider them to be one and the same thing. The distinction between the two structures was drawn by Allah Bakhsh P. W. In the F.I.R.
And Imam Bakhsh P. W. Admitted to the Committing Magistrate that he knew the difference between them. Allah Bakhsh P. W. Stated in the first information report that the appellant had abused the deceased before striking him, but he denied this fact in Court. Again he deposed that the appellant had entered the courtyard of Mst. Murdan's house through an opening in the surrounding wall, but he stated before the Committing Magistrate that the appellant had come by climbing over the compound wall.
8. It is doubtful if the first information report was recorded at the police station and if it contained only what was stated by Allah Bakhsh P. W. The first information report mentions the name of the father of the appellant, but Allah Bakhsh P. W. Admitted at the trial, that he did not know his name.
He tried to get over this defect by saying that Mst. Muradan had given the name of the appellant's father to him before he left for the police station, but he told the Committing Magistrate that he did not give the parentage of the appellant in his report, because he did not know it. He stated that he could not say, whether he put his signatures on the first information report at one or two places at the police station or one of them was obtained at the spot. Further, he could not tell, whether his signatures were obtained in one register or two registers. The trial Court observed that he may have been confused by the fact that he had signed the recovery memos at the spot. These recovery memos, however, are not entered in any register and consequently no confusion could arise.
9. If these witnesses were present at the spot and had raised an alarm, there is no reason, why none should have responded to it. Allah Bakhah admitted that none turned up for 45 minutes after the departure of the appellant. To make matters worse, be also admitted that the assailant of the deceased had muffed up his face, although he added that he identified him when he lifted his face to strike.
10. It appears that Mulazim Hussain was killed, when he went to se Mst. Naziran and none else was present at that time. She was cited as a prosecution witness, but was given up as hostile. We cannot, therefore, say who had attacked the deceased and what were the circumstances under which he was killed. The whole affair was concealed till the deceased succumbed to his injuries some hours later. Allah Bakhsh and Imarn Bakhah P. Ws. Seem to have been sent for from Hassanabad to pose a eye-witnesses to implicate a suspected murderer. It is noteworthy that Munshi Khan, who worked with the deceased at the tube-well and who, admittedly reached the spot after the occurrence, was not cited as a witness. His evidence would at least have proved the presence of Allah Bakhsh and Imam Bakhsh P. Ws. At the spot.
11. As there is no evidence that the deceased was killed by the appellant and suspicion, however grave is not a substitute for proof. We accept the appeal, give the appellant the benefit of the doubt and acquit him. H shall be released forthwith if not required to be detained in any other case.
The sentence of death is not confirmed.