' This criminal appeal has been directed against the judgment, dated 21-11-1989 passed by Mr. Fakhar Hayat, Additional Sessions Judge, Gujranwala whereby the appellant Muhammad Yousuf was convicted under section 304(1), P.P.C. And sentenced to undergo imprisonment for life and a fine of Rs,10,000, in default whereof to suffer further R.I. For 2 years. He was further ordered to pay Rs,10,000 as compensation to the legal heirs of Shan deceased, and in failure of its payment to undergo further R.I. For six months. The appellant Ahmad was convicted under section 323, P.P.C.
And sentenced to R.I. For 6 months and was directed to pay Rs,1,000 as compensation to the legal heirs of Shan deceased, in default whereof to suffer further R.I. For one month. He was extended the benefit of section 382, P.P.C. For the period of detention under the offence. The connected Criminal Revision No,664 of 1989 shall also be disposed of by this judgment.
2. Briefly stated the prosecution case is that P.W.6 Nazar Muhammad made a Ruppet Exh.P.F. With the police on 22-9-1988 about an occurrence which took place at 6-30 p.m., wherein he had stated that he was present outside his house in the street. Muhammad Yousuf and Ahmad appellants used to stop his children who used to climb over the joint wall. The family members of the appellants used to abuse the children of the complainant and the complainant forbade them, on which hot words exchanged between them. In the meantime P.W.11 Mst. Nusrat Bibi wife of the complainant (P.W.6) went to inform his deceased brother Shan Muhammad in the other street.
When the deceased reached near the house of Shafqat (P.W.10) and Muhammad Yar (P.W.7) who were the relatives of Ahmad, held him in Japha and his brother Shan Muhammad was given successive hatchet blows with blunt side, whereas Ahmad accused shouted a Lalkara that he be killed. The deceased received injuries on his head and left eye. The appellant Ahmad had inflicted Sota blows on the left forearm and back of P.W.6 complainant. Thereafter the appellant ran away.
P.W.6 and P.W.11 removed the deceased to the Rural Health Centre, Sukheyki for treatment, where he was admitted. The complainant produced M.L.R. No,143/88 pertaining to himself and No,142/88 relating to Shan Muhammad to the Moharrir P.W.4 Muhammad Sharif, H.C., who scribed the report.
The report was read over to the complainant, who signed the same. Since the injuries to the deceased Shan Muhammad were kept under observation, therefore, according to P.W.4 he kept the matter pending without any further action. On 28-9-1988 P.W.6 Nazar Muhammad had moved an application Exh. P.K. To the S.H.O. To the effect that on 22-9-1988 at about 10-45 p.m. He had stated about P.W.7 Yar Muhammad and P.W.10 Shafqat Hussain to taking into Japha, which he had mentioned due to misunderstanding, whereas Shafqat Hussain (P.W.10) and Yar Muhammad (P.W.7) had caught hold of P.W.6 complainant to save him from the fight and both were eye- witnesses and were not the accused, whereas the real accused were the appellants and proceedings be initiated against them. It is pertinent to mention here that the deceased succumbed to his injuries in the hospital, and thereafter the formal F.I.R. Exh.P.J. Was recorded by P.W.13 Muhammad Karim, A.S.I., and after incorporating the contents of the report Exh.P.K. It was added that the appellant Shan Muhammad was given repeated Kulhari blows from the wrong side by the appellant Muhammad Yousuf. The appellants were challaned and sent up for trial, where they denied the charge against them and claimed trial.
3. The prosecution examined 13 P.Ws. In all to substantiate its case. The motive behind the occurrence has been stated by P.W.6 Nazar Muhammad complainant, the real younger brother of the deceased. No other prosecution witness has stated about the motive behind the prescnt occurrence.
4. The prosecution examined four P.Ws. To state about the eye-witness account, i,e. P.W.6 Nazar Muhammad complainant, P.W.7 Yar Muhammad P.W.10 Shafqat Hussain and P.W.11 Mst. Nusrat Bibi wife of P.W.6. P.W.6 had narrated the contents of the report lodged by him on 22-9-1988, the application Exh.P.K. Submitted by him on 28-9-1988 and also the contents of the F.I.R. Exh.P.J. P.W.7 Yar Muhamamd and P.W.10 Shafqat Hussain were declared hostile as they had not supported the prosecution version. P.W.11 Mst. Nusrat Bibi had stated that on 22-9-1988 at about 6-30 p.m. She was present in the street two Karams short of the place where Shan Muhammad deceased was present, and within her view Yousuf appellant gave two blows with blunt side of the hatchet on the head of Shan deceased, who fell down and thereafter Ahmad gave Sota blow to him on his left eye.
Thereafter Ahmad appellant gave two Sota blows to P.W.6 Nazar Muhammad, her husband injuring him on his left arm and on the back.
5. The medical testimony has been furnished on record by the statement of P.W.8 Dr. Arshadullah, who conducted the autopsy on the dead body of the deceased and found the following injuries on his person:--
(1) 13 c.m. Long L-shaped surgically stitched wound with 12 black stitches on the left side of head, 6 c.m. Above left ear and 5.5 c.m. Above left eyebrow.
(2) V-shaped surgically stitched wound on the left forhead with total 8 black stitches 2.5 c.m.
Above left eyebrow and 2 c.m. To left of midline.
(3) 8.5 c.m. Bruise of dark brown colour on right side of head 6 c.m. Above right ear and 6.5 c.m. To right of midline.
(4) 5 x 15 c.m. Superficial infected wound on the left side of face starting from outer border of the eye. Left eye was swollen and was of dark brown colour.
' On exploration skull was fractured into multiple pieces. Fracture lines ran through left frontal parietal temporal and occipital bones and also through right parietal bone. Left parietal bone was missing in an area of 5 x 2 c.m. Membranes were lacerated. In the opinion of PW.8 all the injuries were ante-mortem. Injuries Nos.1 and 2 were wounds of surgical intervention as mentioned in the Lahore General Hospital. Cause of death in this case was skull fracture and brain damage. Time elapsed between injuries and death was hospital death and time elapsed between death and post-mortem was 1 to 3 days.
6. P.W.1 Dr. Maqsood Ahmad Mughal medically examined Nazar Muhammad complainant and found the following injuries:--
(1) Superficial abrasion 15 c.m. x 1 c.m. On medial and front side of left forearm lower part.
(2) Redish bluish swelling 7 x 5 c.m. On the back of right scapula region.
' All the injuries were simple and caused by blunt weapon. Duration of injuries was about 1-1/2 hours.
7. Statement of P.W.13 Muhammad Karim, A.S.I. Had been recorded to the effect that on 5-10-1988 on the disclosure made by Muhammad Yousuf appellant, he led to the recovery of blood-stained hatchet P.2 from his residential house, which P.W.13 secured vide Exh.P.I. Ahmad appellant on the same day had produced Sota P.1 before P.13, who secured the same vide memo. Exh.P.H. It is pertinent to mention here that Sota P.1 was not bloodstained and hatchet P.2 was blood stained.
The reports of Chemical Examiner and Serologist Exhs.P.P. And P.O. Are positive pertaining to P.2.
8. The appellants when examined under section 342, Cr.P.C. Denied the prosecution evidence against them and also the recovery of Sota P.1 and hatchet P.2 at the instance of Ahmad and Muhammad Yousuf, appellants respectively. Their denial is simpliciter. The appellants neither made statement on oath as envisaged under section 340(2), Cr.P.C. Nor produced defence evidence.
9. I have heard the learned counsel for the appellants as well as learned counsel for the State and the complainant at length and have perused the record. Appellant Yousuf had led to the recovery of blood-stained hatchet P.2 which was secured by P.W.13 vide memo. Exh.P.I. Attested by P.W.7 Muhammad Yar and P.W. Ahmad Ali (given up). The occurrence in the present case took place on 22-9-1988. F.I.R. Exh.P.J. Was recorded on 28-9-1988, whereas the recovery of blood-stained hatchet was effected at the instance of appellant Muhammad Yousuf on 5-10-1988. Muhammad Yousuf appellant was arrested on 1-10-1988 by P.W.13. The recovery of P.2 was effected from the house of the appellant which was accessible to others. It was not recovered from some locked room or box.
Sota P.1 secured at the instance of Ahmad appellant was not blood stained. The recovery of hatchet P.2 at the instance of Muhammad Yousuf from his house is not confidence inspiring. P.W.7 Muhammad Yar who was allegedly an eye-witness of the occurrence, was declared hostile, but during cross-examination he had stated about the recovery of hatchet P.2 at the instance of appellant Muhammad Yousuf. P.W. Ahmad Ali, another independent eye-witness has not been produced by the prosecution. P.W.13 Muhammad Karim, A.S.I.'s statement has not been corroborated as to the factum of recovery by any independent witness of the locality. The recovery aspect of the case does not inspire confidence.
10. In the present case at first the local police incorporated Ruppet Exh.P.F. On the statement of complainant P.W.6 Nazar Muhammad to the effect that due to scalling over the common wall, the appellant had given beating to the children of the complainant and also abused when they were stopped. The appellants and the complainant exchanged hot words and meanwhile P.W.11 Mst.
Nusrat Bibi wife of P.W.6 Nazar Muhammad had gone to the house of deceased Shan Muhammad, and Shan Muhammad when reached near the house of the complainant, Muhammad Yar (P.W.7) and Shafqat (P.W.10) had caught hold of P.W.6 and Shan Muhammad deceased was given injuries one after the other with the wrong side of hatchet and Ahmad had raised Lalkara and meanwhile the deceased had received injuries on his head and left eye. Surprisingly on 28-9-1988 the complainant P.W.6 moved an application Exh.P.K. To the police that he had wrongly mentioned the names of Shafqat and Yara about catching of the deceased, whereas they had caught hold of him to save him from the fight and both of them were the P.Ws. And not the accused. Thereafter amazingly the police drafted the F.I.R. Exh.P.J. With some additions. It has been brought on the record that P.W.7 Muhammad Yar and P.W.10 Shafqat Hussain had not supported the prosecution version. P.W.7 had stated that Ahmad appellant had Sota in his hand and in the hand of Muhammad Yousuf appellant he could not see anything, whereas P.W.10 stated that it was darkness in the Bazar There was no electric light and he had asked the complainant not to quarrel with each other and he could not state who had injured whom.
11. The occurrence took place in the lane. No person from the vicinity had come forward to depose the truth. Only P.W.6 complainant Nazar Muhammad and P.W.11 Mst. Nusrat Bibi wife of P.W.6 have stated about the present occurrence. No independent person has supported the prosecution story.
It has been brought on record that proceedings under section 107/150, P.P.C. Were initiated against Yara and Shafqat P.Ws. Only to intimate them to become eyewitnesses and thereafter they had not supported the prosecution version. P.W.7 Yara had categorically stated that Shan Muhammad deceased was having a hatchet in his hand when he was quarrelling with the appellants in front of their door. The deceased participated in the fight on being armed with hatchet. P.W.10 Shafqat Hussain had stated that the electric light was off and there was darkness.
12. Pursuant to the above discussion, I am of the view that the case against the appellants was not free from doubt and giving them benefit of doubt I acquit both the appellants Muhammad Yousuf and Ahmad, from the charge. Muhammad Yousuf is on bail, his bail bonds are discharged. The connected Criminal Revision No,664 of 1989 has no force and is dismissed.