SAJJAD AHMED SIPRA, J.--- The present appeal is directed against the judgment dated 2-5-1988, .Whereby M. Muhammad Soltan Alam, Judge, Punjab Special Court for Speedy Trial No.VI, Bahawalpur, convicted the appellant, Nazeer Ahmad, under section 302, P.P.C. And sentenced him to death and a fine of Rs.20,000 or in default thereof to undergo 5 years' rigorous imprisonment.
Half of the fine, if recovered, was ordered to be paid to the heirs of Manzoor Hussain, deceased.
The co-accused of the appellant, namely, Abdul Jabbar and Mst. Asma, were acquitted by the same judgment.
2. The brief facts leading to the present case; according to the F.I.R. (Exh.P.F.) are that on 2&10-1987 at about 9-00 p.m. Bashir Ahmad, maternal cousin of the deceased (P.W9), alongwith his son Nazeer Ahmad (P.W.10) and Muhammad Siddique (P.W.11), while coming to his house from the land of Muhammad Anwar heard alarm `save save', on which they rushed and in the light of torch belonging to Nazeer Ahmad (P.W.10) saw the appellant, Nazeer Ahmad, giving a `Kassi' blew on the neck of Manzoor Hussain, deceased. The witnesses tried to intervene but he threw away the `Kassi' and taking spear in his hand made threat that if anybody came near he would also meet the same fate. -He, then, ran away from the spot alongwith the spear. Manzoor Hussain died at the spot.
Bashir Ahmad (P.W.9) reached the police station alongwith Abdul Khaliq and lodged F.I.R. (Exh.P.F.) at 6-30 a.m. On 29-10-1987.
3. The motive of the occurrence was that the appellant, Nazeer Ahmad, used to tease Mst. Amna Bibi, a daughter of Manzoor Hussain, deceased, who prohibited him from doing so, but he remained consistent. Two days prior to the occurrence he teased Mst. Amna Bibi (P.W.6), on which Manzoor Hussain deceased, snubbed and scolded him. Nazeer Ahmad, appellant, left making threats that he would take revenge of that scolding.
4. Doctor Aslam Hameed (P.W.1) had performed autopsy on the dead body of Manzoor Hussain on 29-10-1987 at about 1-00 p.m. The dead body had been identified before him by Bashir Ahmad and Nazeer Ahmad P.Ws. He had observed the following injuries on the dead body:--
(1) Incised wound measuring 8 c.m. x 2.5 c.m. x going deep, placed obliquely verticle on forehead 1.5 c.m. To the left of midline. The margins of the wounds were clean cut alongwith the hair.
The injury caused by some sharp-edged weapon had resulted into the cutting of hair falling in the line, had cut the skin and scalp layers resulting into fracture of frontal bone on left side making the brain opened to air. The injury had cut down the brain matter at the site.
(2) Incised wound measuring 6 c.m. x 1 c.m. x going deep on the forehead 2.5 c.m. Lateral to the injury No.1, set obliquely verticle almost in the same plane as that of injury No.1.
The injury had cut down through the skin and scalp resulting into fracture of frontal bone on left side and had ended in licking of brain.
(3) Incised wound measuring 6 c. m. x 2 c.m. x muscle deep on the left cheek, set obliquely horizontal placed anteroposteriorly in horizontal plane.
(4) Incised wound measuring 6 c.m. x 2 c.m. x muscle deep, 1 c.m. Below the left ear place anteroposteriorly in horizontal plane.
(5) Incised wound measuring 14 c.m. x 6 c.m. x going deep, placed almost transversely across the midline of anterior aspect of neck, more towards the left side. There were 5 other wounds (incised) practically emerging to the same part/bed of the above-mentioned injury.
The injury caused by sharp-edged weapon had resulted into cutting of skin musculature almost transversely furthermore had cut down larynx oesophagus and main blood vessels on left side. The wound bed was pooled with blood.
(6) Incised wound measuring 6 c.m. x 2 c.m. x going deep, on the left parietal region of scalp in its anterior part, set obliquely verticle.
The injury caused by sharp-edged weapon had resulted into cutting of hair of scalp failing in line of injury and resulted in culling of under lying parietal bone.
(7) Incised wound measuring 6 c.m. x 1 c.m. x skin deep on the lateral aspect of left shoulder joint set almost horizontally placed ante roposteriorly.
(8) Incised wound measuring 5 c.m. x 2 c.m. x going deep on the lateral aspect of lower part of deltoid region of left upper arm placed obliquely verticle.
The injury caused by sharp-edged weapon had cut down the skin and musculature down to the humerus bone without any practicle evidence of injury to the bone which stood saved.
(9) Incised wound measuring 6 c.m. x 2.5 c.m. x muscle deep on the postero-lateral aspect of lower part of left upper arm, just above the elbow set obliquely verticle.
(10) Two incised wounds each measuring 3 c.m. x 2 c.m. x muscle deep on the posteroir aspect of left elbow set verticle.
(11) Incised wound measuring 1.5 c.m. x 3 c.m. x going deep on left lateral aspect of upper part of abdomen set obliquely verticle. There was an interrupted reflection of the incised nature of the above-said injury slightly angular and measuring 2 c.m. x 1 c.m. x muscle deep.
The detailed dissection/exploration of the, wound revealed that the injury was only muscle deep and no penetration into the abdominal cavity could be appreciated.
(12) Incised wound measuring 4 c.m. x 3 c.m. x skin deep on anterior aspect of upper part of abdomen of left side set obliquely vcrticle.
(13) Incised wound, sliced measuring 3 c.m. x 5 c.m. x skin deep, making flap of skin at its lower margin on' dorsum of right hand, set horizontally placed anteroposteriorly.
(14) Incised wound measuring 5.5 c.m. x 1 c.m. x skin deep on lower part of dorso lateral aspect of right forearm set obliquely verticle.
(15) Incised wound measuring 5 c.m. x 1 c.m. x skin deep 2 c.m. Medial to injury No.14 on dorso medial aspect of lower part of right forearm about in the same place and direction as that of injury No.14.
He finally opined that all the injuries were antemortem caused by sharp-edged weapon. Injuries Nos.1 and 5 were collectively and individually sufficient to cause death in the ordinary course of nature. While the rest of the injuries proved to be additional factor to quicken the death. Death occurred due to haemorrhage, shock and destruction of brain directly. He further opined that duration between injuries and death was immediate while the duration between death and post- mortem was 12-24 hours. Post-mortem report and diagrams of injuries are Exh.P.A., Exh.P.A.4l and Exh.PA./2 respectively.
5. To prove its case, the prosecution had produced as many as 15 witnesses. The eye-witness account was furnished by Bashir Ahmad (P.W.9), Nazeer Ahmad (P.W.10) and Muhammad Siddique (P.W.11). Bashir Ahmad (P.W.9) had stated that he, alongwith Nazeer Ahmad and Muhammad Siddique P.Ws., was coming on cart with chaff. They heard noise, 'save save' on which they all rushed towards the noise. In the light of torch of Nazeer P.W., they had seen Nazeer appellant inflicting a `Kassi' blow on Manzoor Hussain deceased, lying on the ground. Nazeer, appellant threw away the `Kassi' and picking up a spear, made threats to the witnesses that if anybody came near he would meet the same fate. Thereafter, he ran away, alongwith the spear. He further stated that he went to the Chak to inform Lumberdar Hanif and Abdul Khaliq, leaving behind Nazeer and Muhammad Siddique P.Ws. But could not find them. He went to his house and informed his family members on which all started weeping and he became involved with them. He has succeeded in contacting Abdul Khaliq in the morning and then went to police station where he lodged F.I.R.
(Exh.P.F.). He had also stated that he had identified the dead body at the time of post-mortem examination. Nazeer Ahmed and Muhammad Siddique P.Ws. Had made identical statements about the occurrence.
6. Mst. Amna, Bibi (P.W.6), Bashir Ahmad (P.W.9) and Nazeer Ahmad (P.W.10) had deposed about the motive of the occurrence. Mst. Amna Bibi (P.W.6) had stated that since 2/3 months prior to the occurrence Nazeer, appellant, used to cut indecent jokes with her and she used to tell her father, Manzoor Hussain, deceased, who used to ask Nazeer appellant to desist from doing so. Two/three days prior to the occurrence, she had gone out of her house to throw away rubbish when Nazeer, appellant, met her and asked her to accompany him to a side, but she had refused and complained to her father. Manzoor Hussain, deceased, snubbed Nazeer, appellant, about the above incident and scolded him, on which Nazeer, appellant, had threatened that he would take revenge of the scolding. Although Bashir Ahmad (P.W.9) in the examination-in-chief did not state anything about the motive yet during cross-examination he had admitted the above motive in all necessary details. Muhammad Siddique (P.W.11) had also made an identical statement and fully supported Mst. Amna Bibi (P.W.6), on the point of motive.
7. Arshad Javaid (P.W.7) had deposed that on 7-11-1987, Nazeer, appellant while in custody led to the recovery of spear. (Exh.P.1) from his residential Kotha hidden under beddings vide memo.
Exh.P.E., which was made into a sealed parcel. Abdul Khaliq (P.W.4) and Nazeer Ahmad (P.W.10) hid proved that the torch (Exh.P.9) was sealed seized by the police on 2-12-1987 vide memo. Exh.P.D.
Nazeer Ahmad and Muhammad Siddique P.Ws. Had also stated that on 29-10-1987, blood-stained `Kassi' (Exh.P.2) and blood-stained earth was taken into possession by the police from the spot vide memo. Exh.P.H. And Exh.P.G. Respectively, and were made into sealed parcels. Dr. Aslam Hameed (P.W.1) had performed autopsy on the dead body of Manzoor Hussain, a detailed account of which has already been given above. Muhammad Arshad (P.W.2) had proved that he had prepared site plan (Exh.P.B.) and (Exh.P.B./1) of the place of occurrence. Altaf Hussain Moharrir (P.W.8) had staled that Abid Akhtar Investigating Officer had handed him two sealed parcels on 29-10-1987 and one sealed parcel on 7-11-1987 which he had kept in police Malkhana safely and, on 9-11-1987, he had delivered the same intact to Saeed Ullah F.C. Saeed Ullah (P.W.3) had stated that he had delivered the said parcels intact in the office of Chemical Examiner, Lahore Dilawar Hussain A.S.I. (P.W.4) had stated that the last-worn clothes and other articles belonging to the deceased were collected by him from Dr: Aslam Hameed after autopsy and were produced before Abid Akhtar, Investigating Officer who seized them vide memo. Exh.P.C. Atta Ullah F.C. (P.W.12) had stated that he had escorted the dead body of Manzoor Hussain from the spot to' the mortuary and had produced the same intact before Dr. Aslam Hameed for post-mortem examination. Abid Akhtar, S.I. (P.W.13), had proved injury statement of the deceased EARL, and the inquest report Exh.P.J. And deposed about the entire investigation, i.e. Recoveries etc. He had finally stated that he had found Nazeer Ahmad appellant guilty and had challaned him to face trial
8. Ghulam Abbas (P.W.14) had stated that 4/5 months prior to the occurrence he and Sharif (C.W.1) woke up on hearing the dogs barking. They came out and saw Nazeer Ahmad, appellant and Abdul Jabbar accused, in the street and on his query Abdul Jabbar told that they were coming after irrigating their land. He had further stated that the said two a cured were apprehended by the police on the following morning but Abdul Jabbar was, released after 10/15 days. After about a month Abdul Jabbar came to them and made extra-judicial confession stating that he and Nazeer, appellant, had murdered Manzoor Hussain. Ali Akbar Inspector (P.W.15) had stated that the investigation of this case was entrusted to him under the orders of S.P. Bahawalpur after the earlier challan was submitted in the Court, and he had found Abdul Jabbar, Nazeer Ahmad and Mst. Asma accused as the murderers and had challaned all the three accused to face trial.
9. Muhammad Ashraf and Asghar Ali P.Ws. Were given up by the prosecution as unnecessary, while Jaffar Ali and Muhammad Sharif P.Ws., as having been won over by the accused and the case was closed.
10. The appellant, Nazeer Ahmad, and his co-accused denied the prosecution case in toto, when examined under section 342, Cr.P.C. The appellant, Nazeer Ahmad, in answer to a question stated as under:-- "I have been involved in this case because of enmity, Jabbar wanted the hand of Mst. Amna on which Mst. Asma was agreeable but Manzoor Hussain deceased disagreed. Due to this reason Jabbar and Mst. Asma were against Manzoor Hussain. To save them from this case, I have been falsely roped into this case. Siddique P.W. Is the father of Jabbar accused. Bashir P.W. Is a close relation of Mst. Asma. Mst. Amna is the daughter of Mst. Asma. Nazeer P.W. Is the nephew of Mst.
Asma. All the P.Ws. Have connived against me. Mst. Asma was determined to marry Mst. Amna with Abdul Jabbar as the latter, had illicit relations with Mst. Amna. For this reason there were extreme differences between Mst. Asma, Abdul Jabbar and Manzoor Hussain deceased."
As against this, Abdul Jabbar and Mst. Asma accused had stated that Ghulam Abbas P.W., Muhammad Sharif C.W.1 and Ali Akbar Investigating Officer had connived with Nazeer Ahmad, appellant, and to save him from the present case, they were falsely involved so that in that manner, the prosecution witnesses may be forced to resile from their statements. They did not produce any witness in defence and also opted net to make, statements on oath under section 340(2), Cr.P.C.
11. The appellant, Nazeer Ahmad, however, had produced as many as six witnesses in his defence.
Muhammad Maqsood Patwari (D.W,1) proved copies of Rapat No.77 dated 29-10-1987 (Exh.D.L.), copy of Khasra Girdawari for Rabi and Kharif 1987 (Exh.D.M.) and that of Jamabandi for the year 1987 (Exh.D.N.), pertaining to the place of occurrence. Abdul Majeed (D.W.2) had stated that on hearing about the murder, he reached, the spot in the morning and saw Khuda Bakhsh Tracker (D.W.4) tracing out the footprints of the assailants in presence of the police and that he could not say as to who was arrested by the police at that time. Abdul Hameed (D.W.3) had stated that when he reached the spot in the morning after hearing about the murder, Khuda Bakhsh, Tracker, (D.W.4) was trying to find out the tracks/footprints of the assailants, and he told that there were footprints of two assailants. Nazeer Ahmad and Abdul Jabbar, accused, were apprehended by the police at the spot, but Abdul Jabbar was released after some days. He had further stated that after2/2-i/2 months of the occurrence, during the investigation conducted by Ali Akbar, Inspector (P.W.15), Bashir, Nazeer and Muhammad Siddique P.Ws. Made statements on Holy Qur'an that they came to know about the occurrence after the morning prayer time. Khuda Bakhsh (D.W.4), the tracker, had stated that due to heavy water, the footprints were not clearly available and he thought that there might be two assailants and that Khan Muhammad, tracker, had also failed to rind out the footprints and to certify as to how many assailants had murdered Manzoor Hussain. This witness had been declared hostile by the appellant, Nazeer Ahmad, but he, still denied the suggestion that he had told the police that there were footprints of two assailants Alam Hussain. (D.W.5) had deposed that during the investigation conducted by Ali Akbar Inspector (P.W.15), Khuda Bakhsh (D.W.4) and Khan Muhammad, trackers, had some time stated that there were footprints of one person anti some time stated that there were footprints of two persons, and that, the prosecution witnesses had stated on Holy Qur'an that they had come to know about the occurrence in the morning. Murad Ali (D.W.6) had stated that on the night of occurrence, while on the round to his fields, he saw a dead body lying in Square No.21, belonging to Haji Sardar and found the same to be that of Manzoor Hussain and then he informed Bashir Ahmad P.W.
12. The learned trial Court had acquitted the co-accused of the appellant, namely, Abdul Jabbar and Mst. Asma, as stated earlier, by extending to them the benefit of doubt and convicted and sentenced the appellant by holding that the ocular evidence was unexceptionable, the medical evidence supported the same, believing the motive and accepting the genuineness of the recovery of the spear.
13. We have heard the learned counsel for the parties at length and perused the record with their assistance.
14. The learned counsel for the appellant vehemently argued for Setting aside the conviction and sentence of the appellant and called in question all the grounds stated above, on which the impugned judgment was based. The learned counsel 'submitted that in fact the ocular evidence of the pros, cotton itself establishes beyond doubt that the murder in question was an unseen occurrence. Further, submitted that the recovery of blood--stained spear itself materially, contradicts the version of the prosecution in respect of the mode and manner of causing injuries to the deceased, and that the motive as alleged was weak and far-fetched and that the medical evidence was no help to the prosecution to establish its version of the occurrence.
15. On the other hand, the learned counsel for the State supported the conviction and sentence awarded to the appellant.
16. We have considered the submissions made by the learned counsel for the appellant with care.
The contention of the learned counsel to the effect that the eye-witness account furnished by the P.Ws. 9, 10 and 11, namely, Bashir Ahmad, Nazeer Ahmad and Muhammad Siddique, respectively, failed to establish the offence as charged, is not without substance. We have noted that the explanation provided by the said three eye-witnesses for their having been attracted to the place of occurrence on the cries of the deceased, Manzoor Hussain, was that they were transporting chaff from the land of Anwar son of Siraj Din to their house at the odd hours of 9-00 p.m. On 28th of October, 1987, but at the same time all the three P.Ws. Have admitted in their testimony that there was a canal between the land of the said Anwar, from where chaff 'was being brought, and the place of occurrence, and that there was no bridge near the said place and that, as further admitted by the said witnesses, there was no road passing by the place of occurrence. Therefore, serious doubts are raised about the presence of the said witnesses at that odd hours in the vicinity of the place of occurrence. Further, notice has been taken of the fact that although the said P.Ws.
Had conceded that Anwar was present at the spot when the police arrived and it had further been conceded by the Investigating Officer P.W.13, Abid Akhtar S.I. That he was never joined in the investigation to support the explanation of the eye-witnesses for their presence in the vicinity of the place of occurrence as stated earlier. The said eye-witnesses had further conceded that the canal was about 10 Karams wide and that there was water in it on fateful night. They had further conceded that the bridge on the canal was near the Nai Abadi of Chak No.87/F, which was three squares away from the place of occurrence, and had further conceded that the land of Anwar, wherefrom the chaff was said to be transported, was linked by a `Katcha' road to the metalled road passing over the said bridge and that it was situated on the other side of the canal. Therefore, in view of the facts highlighted. We have conic to the conclusion that the evidence of the prosecution in support of its version for establishing the guilt of the appellant' under section 302, P.P.C. Miserably fails to achieve the said objective.
17. In view of the fact that we have disbelieved the ocular testimony, the rest of the evidence of the prosecution or that of the defence; is rendered redundant and hardly needs to be discussed.
18. Pursuant to the above discussion, we allow the present criminal appeal and set aside the conviction and sentence awarded to the appellant and acquit him of the offence charged. He shall be released forthwith, if not required be detained in any other case.
N.H.Q./N-76/L