' This appeal is directed against the judgment, dated 31-3-1990 whereby Abdul Wahid alias Abdul appellant was convicted under section 302, P.P.C. For committing the murder of Muhammad Bashir and sentenced to imprisonment for life with a fine of Rs,5,000 and in default to undergo further R.I.
For one year. He was also directed to pay compensation of Rs,5,000 to the legal heirs of the deceased and in default he was to undergo further R.I. For on eyear. He was also found entitled to the benefit of section 382-B, Cr.P.C.
2. The prosecution case as unfolded in statement Exh.PA. Made by Mst. Nawab Bibi P.W.1 widow of Muhammad Bashir deceased is, that at the eventful night she alongwith her husband slept in her house situated in village Budha Rajada as usual. At about 12-30 a.m. On 26-1-1987 Abdul appellant armed with dagger, Safdar armed with hatchet, Muhammad Nawaz, Ghulam Rasul, Said and Akbar (acquitted accused) armed with Dangs residents of Kangni Wala, Police Station Sadar Gujranwala alongwith Mst. Maqboolan and Mst. Maqsoodan Bibi daughters of Said accused both empty- handed, forced their entry into the house of the complainant. Safdar and Abdul appellant held the deceased Muhammad Bashir and dragged him out and attacked upon him with their weapons.
The appellant inflicted dagger blow on her husband which landed on his right buttock and right elbow while the remaining accused inflicted Dang blows on his person. The complainant raised alarm. Residents of the locality arrived. The accused persons also attacked upon the residents who attracted upon the alarm. It was alleged that Safdar inflicted hatchet blow on Sabir Hussain P.W.3 which landed on his head whereupon he fell down on the ground. Then all the accused succeeded in making good their escape. It is also stated in the statement of P.W.1 that the accused persons also caused injuries to Muhammad Din son of Ghulam, Sabir Hussain son of Ismail, Muhamamd Bashir son of Baloch, Malik son of Hadayat Ullah, Rashida Bibi wife of Akbar Ali, Sakina Bibi wife of Sabir Hussain, Boota son of Allah Ditta, Ilyas son of Gulam Rasool, Sarwar son of Muhammad Hussain, Mst. Manzooran Bibi wife of Muhammad Riaz and Aisha Bibi wife of Hadayat Ullah.
Muhammad Bashir deceased succumbed to his injuries when he was being taken to the hospital.
This occurrence was witnessed by Sabir Hussain P.W.3, Muhammad Aslam P.W.4 and one Ghulam Rasool son of Roshan Din besides Nawab Bibi complainant.
' Motive for the occurrence was that a quarrel had taken place between Mst. Maqboolan and Mst.
Maqsoodan daughters of Said accused since acquitted on one hand and Mst. Nawab Bibi on the other hand on a previous day, therefore, both the ladies brought their father and brothers from Gujranwala and assaulted the P.Ws. And the deceased. Nazir Ahmad S.I. Recorded the statement of Nawab Bibi which is Exh.P.A. And on the basis of the same formal F.I.R. Exh.P.A./1 was recorded.
3. P.W.2 Dr. Muhamamd Ashraf M.O. T.H.Q., Hospital, Wazirabad examined the injured P.Ws. And did the post-mortem examination on the dead body of Muhammad Bashir on 26-1-1987 at 11-15 a.m.
And found five injuries on his person. In his opinion injury No,1 was sufficient to cause death in the ordinary course of life. The cause of death was shock due to massive concealed and external haemorrhage from injury No,1. All the injuries were ante-mortem. Injuries Nos.1 and 5 were caused by sharp-edged weapon whereas injuries Nos.2 and 4 were caused with blunt weapons. Probable time elapsed between injuries and death was about one hour and between death and postmortem was about ten hours. Exh.P.P. Is the correct carbon copy of postmortem report and Exh.P.P./1 is the diagram showing the locale of injuries.
' He also medically examined Mst. Aisha Bibi wife of Muhammad Hussain on 26-1-1987 at 9-00 a.m.
And found three injuries on her person which were simple in nature and caused by blunt weapon.
Exh.P.B. Is her medico-legal report.
' On the same day at 9-10 a.m. He examined Sabir Hussain son of Muhammad Ismail and found five simple injuries, out of which injury No,1 was caused by sharp-edged weapon and rest with blunt weapon. Exh.P.C. Is correct carbon copy of M.L.R.
' On the same day at 9-20 a.m. He examined Sabir Hussain son of Muhammad Hussain and found four injuries on his person which were simple and caused by blunt weapon. Exh.P.D. Is the copy of M.L.R.
' On the same day at 9-30 a.m. He examined Muhammad Malik and found four injuries on his person and all were simple in nature and caused by blunt weapon. Exh.P.E. Is the correct copy of M.L.R.
' On 26-1-1987 at 9-40 a.m. He medically examined Muhammad Boota and found three simple injuries on his person which were caused by blunt weapon with the same duration. Exh.P.F. Is the medico-legal report.
' On the same day at 9-50 a.m. He medically examined Muhammad Bashir son of Baluch Ahmad and found two injuries on his person. Injury No,1 was grievous while the other was simple. Exh.P.G. Is the medico-legal report.
' On the same day at 10-00 a.m. He medically examined Muhammad Ilyas son of Ghulam Rasool and found three simple injuries. Exh.P.H. Is the medico-legal report.
' On the same day at 10-10 a.m. He examined Mst. Nawab Bibi wife of Bashir and found one simple injury, caused with blunt weapon, on her person. Exh.P.I. Is the copy of M.L.R.
' On the same day at 10-20 he medically examined Muhammad Din son of Ghulam Muhammad and found six injuries on his person. All the injuries were simple and caused with blunt weapon Exh.P.J. Is the copy of M.L.R.
' On the same day at 10-30 a.m. He medically examined Mst. Sakina Bibi wife of Sabir Hussain and found one simple injury caused with blunt weapon. Exh.P.K. Is the copy of M.L.R.
' On the same day at 10-40 a.m. He medically examined Mst. Manzooran Bibi wife of Muhammad Riaz and found four injuries on her person. All the injuries were simple and caused by blunt weapon.
Exh.P.L. Is the copy of M.L.R.
' On the same day at 10-50 a.m. He examined Mst. Nom Bibi wife of Bashir Ahmad and found one injury on her person. The injury was simple caused by blunt weapon. Exh.P.M. Is the copy of M.L.R.
' On the same day at 11-00 a.m. He medically examined Mst. Aisha Bibi wife of Hadayat Ullah and found two simple injuries caused by blunt weapon.
' On the same day at 11-10 a.m. He also examined Mst. Majidan Bibi wife of Abdul Wahid and found three injuries on her person. All the injuries were simple and caused by blunt weapon.
4. Nazir Ahmad P.W.9 S.I. Is the Investigating Officer of this case. After information of this occurrence he reached Civil Hospital, Wazirahad recorded the statement of Mst. Nawab Bibi and then prepared inquest report Exh.P.S. And the injury statement Exh.P.T. Of the deceased. He also recorded the statements of 13 injured P.Ws. And took into possession their M.L.Rs, The last-worn clothes of the deceased were also received by him vide memo. Exh.P.R. He took into possession blood-stained earth of the place where the deceased received injuries vide memo. Exh.P.Q. He got prepared the site plans Exhs.P.U. And P.U./1 from the draftsman. He arrested the accused on 9-2-1987 except Said Muhammad who was arrested on 22-3-1987. He took into possession dagger Exh.P.9 which was recovered from residence of Abdul Wahid. It was blood-stained and was secured through recovery memo. Exh.P.Z. He also got recovered the weapons from the remaining accused but those are not important to be mentioned here as they have been acquitted by the learned trial Court and no appeal or revision against their acquittal has been filed.
5. To substantiate the charge against the appellant the prosecution examined ten P.Ws. In this case. All the injured P.Ws. Except Sabir Hussain P.W.3 were given up as unnecessary or as having been won over by the accused persons. The reports of the Chemical Examiner Exh.P.BB about the bloodstained earth and Exh.P.CC. About blood-stained dagger and reports of the Serologist Exh.P.BB./1 about earth and Exh.P.CC/1 about dagger were also placed on record. Out of the prosecution witnesses Mst. Nawab Bibi P.W.1 Sabir Hussain P.W.3 and Muhammad Aslam P.W.4 are the eye-witnesses. Mst. Nawab Bibi P.W.1 is the wife of the deceased whereas Sabir Hussain P.W.3 is son-in-law of the sister of the deceased. P.W.2 is the Medical Officer who did autopsy and examined injured P.Ws. P.W.9 Nazir Ahmad is the Investigating Officer while the remaining P.Ws. Are the formal witnesses. P.W.1, P.W.3 and P.W.4 besides furnishing the ocular account they also deposed about the motive of the occurrence.
6. When confronted with the case of the prosecution all the accused took up the plea of denial simpliciter by denying all the incriminating circumstances against them. They stated that at night time some burglars entered the house of the complainant to commit theft and on the resistance shown by the deceased he was injured alongwith some other co-villagers who also came there.
The deceased and his widow Mst. Nawab Bibi P.W.1 owed Rs,6,000 to Mst. Maqboolan acquitted accused and in order to get rid of that loan the whole family of the accused persons was involved in this case. Nevertheless the appellant did not appear himself as his own witness to disprove the allegations as required under section 340(2), Cr.P.C. And nor he produced any defence evidence.
7. At the conclusion of the trial the learned trial Court acquitted all the accused except the appellant who was convicted and sentenced as mentioned above. Hence this appeal on his behalf alone.
7-A. Miss Yasmin Saigal, Advocate, the learned counsel for the appellant contended that the judgment of the learned trial Court is based on surmises and conjectures and, therefore, is liable to be set aside. It was argued that the testimony of the prosecution witnesses who are the close relatives of the deceased was not corroborated by any of the independent witnesses who also sustained injuries and all were given up by the prosecution on one ground or the other. It was also argued that when the testimony of the prosecution witnesses was disbelieved for seven accused it was illegally believed against the appellant alone. It was submitted that the learned trial Court sought the corroboration of the ocular testimony from the recovery of dagger P.9 at the hands of the appellant when the recovery of the same had not been proved, as both the recovery witnesses from the public had been given up as being won over. It was argued that this is a case of no evidence when the motive of the evidence had also not been proved. Lastly it was argued that there is a ten hours unexplained delay in lodging the F.I.R. And some contradictions and improvements were highlighted by the learned counsel in the testimony of the prosecution witnesses to hold the case of the prosecution as doubtful.
8. Conversely the learned counsel appearing for the State supported the judgment of the learned trial Court.
9. I have heard the learned counsel of both sides at length and have gone through the prosecution evidence with the able assistance of the learned counsel for the appellant. I find that all the independent P.Ws. Who belonged to the neighbourhood of the place of occurrence and had sustained injuries during this occurrence have been given up by the prosecution either on the ground of being unnecessary or having been won over by the accused. P.W.1 and P.W.3 arc the close relatives of the deceased. No doubt they had no enmity with the accused persons but at the same time they have made certain improvements in their statements as pointed out by the learned trial Court in paragraph 11 of its judgment. In view of these contradictions and improvements made by them the rule of prudence requires that the statements of these two witnesses must not have been believed until corroborated by an independent evidence coming from an unimpeachable source. The presence of Muhammad Aslam P.W.4 has already been disbelieved by the learned trial Court as he was found a chance witness not belonging to the place of occurrence but used to reside in a village at a distance of thirty miles from the spot. He had also not received any injury during this occurrence.
9-A. In this case the important question to be determined is whether the deceased Muhammad Bashir was done to death by some burglars or by the appellant. The plea of the appellant is that some unknown night prowlers visited the house of the complainant to commit theft and on resistance shown by them he received injuries alongwith other co-villagers and due to some old enmity Mst. Nawab Bibi involved him in this case falsely. This version of the accused is also admitted by the Investigating Officer P.W.9 who has stated that some persons informed him about this murder when he was standing outside the police station. The information was that at the Dera of Budha Rajadha at night time some dacoits came and there was a fight and one man was murdered. He has further stated that he received this information at 9/9-15 a.m. In the morning.
10. I also find that the learned trial Court also gave a finding in paragraph 12 of his judgment that P,W.1 and P.W.3 are the close relatives of the deceased and have also made certain improvements in their statements and those therefore, cannot be believed unless corroborated by an independent evidence coming from an unimpeachable source. For the purposes of corroboration the learned trial Court has relied upon the recovery of the dagger Exh.P.9 at the hands of the appellant. I find that both the witnesses of the recovery of dagger namely Sultan Ahmad and Ghulam Ahmad were given up by the prosecution as being won over and the learned trial Court has relied upon only the evidence of Nazir Ahmad, the I.O. Of this case in respect of this recovery which was allegedly effected at the instance of the appellant. There is no cavil to the proposition that the police officer can also be a good recovery witness but in this case when the recovery of dagger was effected from the residence of the appellant and under section 103, Cr.P.C. Two public persons were joined in the investigation and they did not support the recovery then in that case the sole statement of the Police Officer was not sufficient to be believed and that evidence should not have been read as the corroboration to the ocular account. I also find that there is a delay of ten hours in lodging the complaint which has not been reasonably explained by the prosecution, The learned trial Court has given a finding in paragraph 13 of the judgment that the F.I.R. Was lodged with a delay of ten hours and there was no explanation of delay given in the F.I.R. The avoidance of arrest by the appellant in this case for about 23 days was also considered by the learned trial Court as a corroborative circumstance going against him. The learned counsel for the appellant has rightly pointed out that it was not a delay of 23 days but he was arrested after 14 days after the occurrence as the occurrence took place on 26-1-1987 and the appellant was arrested on 9-2-1987 alongwith all other accused. If this delay in arrest was not considered for the remaining acquitted accused as a circumstance similarly it should not have been considered against the appellant.
11. In view of what has been discussed above, I find that the prosecution has failed to bring home the charge against the appellant. The case was not proved against him beyond any reasonable doubt. I, therefore, allow the appeal and acquit the appellant from the charge of murder by giving him the benefit of doubt. The accused is on bail. He is discharged of his bail bond.