MUHAMMAD HALEEM, J.-----Appellant Nawab was tried for the murder of Gul Muhammad, convicted under section 302, P. P. C. And sentenced to transportation for life and to pay a fine of Rs.
1,000, or in default to suffer rigorous imprisonment for one year by the learned Sessions Judge, Dadu vide ,judgment dated 28th August 1970. He has appealed to impugn his conviction and sentence.
2. According to the prosecution case, at noon on 14th April 1965, while the deceased, Muhammad Hasan and Siddiq were grazing their buffaloes in the jungle near village Buthi, the appellant also came there to graze his sheep, and on seeing the deceased he asked him as to why he had accused him of theft of a cow and abused him last year; saying so, the appellantgave two sharp- sided hatchet blows to the deceased who fell down. Muhammad Hassan and Siddiq thereupon raised cries of murder, murder the appellant, however, managed to escape threatening them not to come are him. Muhammad Hassan went and informed Jan Muhammad, a cousin I' the deceased who was then reaping wheat crop in his field, half a mile way from his village. Being thus informed, he went there and saw Gul Muhammad lying dead. Jan Muhammad went to inform his nekmard, Qazi Muhammad Anwar, who also carne to the wardat and saw the deceased lying there. On his advice Jan Muhammad went and lodged the F. I. R. Police Station, Khairpur Nathan Shah the same day at 3 p.m. It further transpires from the F. I. R. That the appellant and other Dostlani Khosas used to come and settle near village Buthi for grazing their cattle. This are the appellant had also come and settled as usual. It was said that to avenge last year's grievance of an accusation against him, namely of abused of theft of a cow, that on seeing him this year for the first time the appellant caused his murder. The F. I. R. Was recorded by Bukh Khan and Constable, who repaired to the wardat and saw the dead body of the deceased and blood on the ground. He secured blood-stained earth vide earth vide mashirnama Exh. 24 but observed no footprints as the ground was hard the wardat was a mile away from village Veji, where the complainant, the deceased and the two eye-witnesses, namely Muhammad Hassan and Siddiq, resided. He examined both of them and also Qazi Muhammad Anwar at he spot and sent the dead body for post-mortem examination. The appellant, however, was not traceable though, according to him, efforts were made a trace him out. A challan was accordingly submitted, in which the appellant was shown as an absconder.
3. The appellant was arrested on 30th May 1969, from the platform of Railway Station Sita Road by Constable Nisar Ahmad at 1-45 p.m. However, no incriminating articles were seized either from his person or at his instance.
4. The autopsy on the dead body was performed by Dr. A.I Muhammad A. M. O., Mehar, who noticed the following injuries---
(1) An incised wound 2 x -- x I bone deep on the centre of chest below the neck cutting the 7th cervical vertebrae and left juglar vein.
(2) An incised wound 2 -- x --x bone deep on the centre of chest below theneck cutting upper part of sternum."
Which, in his opinion, were caused by some sharp weapon such as hatchet and that both the injuries were individually and collectively sufficient in the ordinary course of nature to cause death.
5. The appellant denied the prosecution case and proclaimed his innocence.At the enquiry stage, he alleged that the niece of Jan Muhammad was enticed away by his father some 7 years back and it was because of this grudge that he has implicated him. At the trial he pleaded that the deceased was on illicit intimacy with Mst. Janat, wife of Khanan Mirbihar Who and the others had seen them together, whereupon they gave him beating and left him there. Lastly be alleged that he was arrested from his village.
6. The prosecution has examined. Muhammad Hasan and Siddiq to furnish ocular testimony of the incident. According to Muhammad Hasan he took the deceased from his house when the sun had risen. One ---kana' met Siddiq outside the village while proceeding towards the grazing ground which was a mile away. Each of them had a "soti" for driving the cattle. At `manjhand' time the appellant arrived there along with his sheep and after challenging the deceased inflicted two hatchet blows on him. Siddiq also states so. However, according to the doctor, the deceased had died 21 or 22 hours before the post-mortem examination, which was performed at 9-30 a.m. On 15th April 1965. Estimating the time of his death therefore it would be 7 or 8 in the morning and not `manjhand' time as stated by the prosecution witnesses. What is again intriguing is that the cattle had grazed for a few hours but no dung was seen at the grazing ground. Similarly the droppings of the sheep were also not observed. There were no apparent signs of either the cattle or the sheep having grazed at that moment. Jan Muhammad, who had come soon after the occurrence, also did not see the sheep. What happened to them is again a mystery, and if they were there, why were they not seized. Even the "sods" carried by the deceased and the two eye-witnesses were not found there. Furthermore, according to the evidence the ground, where the deceased was lying, was hard and Impressionable but the doctor noticed mud on his right hand and right leg below the knee.
How he came to be smeared with mud, the prosecution has not explained. Equally no evidence of any blood having been found at the lake, which according to Muhammad Hassan is near the scene of offence, was brought on record to establish that that was the place of incident. In the con--text of these intriguing features is the admission of Qazi Muhammad Anwar that Jan Muhammad did not tell him that Muhammad Hasan and Siddiq had seen the appellant killing the deceased, which admission was brought on record as he denied having said so in the committal Court. Siddiq admitted in cross-examination that lie did not know the appellant while in his examination-in-chief lie claimed to have known him, which was again a prevarication. He was not put to any identification test and: therefore, his ipse dixit as to the identity of the appellant cannot he accepted on its face value for whatever he has said must he at the instance of Muhammad Hasan. Cumulatively, these features have led us to conclude that they had not witnessed the occurrence, for the above features preclude their presence.
7. Both the eye-witnesses have denied the suggestion that Mst. Janat, wife of Khanan Mirbahar was on illicit intimacy with the deceased. They have also denied that she had come to meet the deceased in the jungle and was seen in an objectionable way with him by Khanan and others who hail therefore killed him. Although it does not appeal to us that he would be the only victim and not Mst. Janat, yet the presence of mud on his hand anti knee is rather intriguing.
8. The motive alleged is also dubious, for if the appellant had felt aggrieve he would have avenged his grievance by killing him when the deceased had abused and accused hire of the theft of a cow, rather than to have waited for a year. In the circumstances, it does not appear to us that the appellant would commit his murder for that reason. No incriminating a articles were either seized or recovered at the instance of the appellant and his conviction merely rests on the ocular testimony of the two eye-witnesses whose evidence we are reluctant to accept. The circumstance that the appellant had absconded is also not established on record. Jan Muhammad has stated that the deceased resided in village, Hambar, which is 4 or 5 kohs away. There is nothing on record to establish that he had come to settle for sometime near Buthi village. There is no evidence that he was looked for in his village. Head Constable Buxial Khan has merely stated that A.I Bux A. S. I.
Had made efforts to arrest the appellant but that he was not traceable. A.I Bux has not been examined and we do not know what effort he made to secure the appellant. This circumstance, therefore, loses its value in the context of the guilt of the appellant.
9. The trial Court has accepted the ocular testimony of Muhammad Hasan and so far as Siddiq is concerned it has held that his identification of the appellant is doubtful, but his presence has not been doubted. In the context of the infirmities discussed above, the presence of these witness---s is doubtful. The corroborative evidence also falls through, for that is dependent on the ocular testimony. It has further relied on his abscondence which cannot be regarded as an incriminating conduct for the reasons given by us. In the result, the prosecution has failed to establish its case against the appellant. While giving to him the benefit of doubt, we accept his appeal and acquit him. He shall be released forthwith unless required in some other case.