' Abdul Khaliq, aged 35 years, was tried for committing the murder of Isa and Noor Muhammad, for causing simple injuries to Suleman complainant P. W. And for committing rioting armed with deadly /capons in prosecution of the common object of four other accused since acquitted having formed themselves into an unlawful assembly. By this judgment and order passed on 9-9-1972, Mian Muhammad Arshad, session Judge, Mdzaffargarh sentenced the appellant to transportation for life under section 302/149 P. P. C., to undergo R. I. For three months under section 323/149, P. P. C.
And to. Suffer R.
1. For one year under section 148, P. P. C. Abdul Khaliq convict has come up in appeal. All the sentences were to run concurrently.
' The co-accused of the appellant, namely, Ismail, Ahmad Ali, Abdullah sons of Moosa and Muhammad Hussain son of Yousaf were earlier tried separately by Sh. Masood Hussain, Additional Sessions Judge, Multan at Muzaffargarh who acquitted all the four of them on 3-11-1965.
2. Briefly, the prosecution case as disclosed in the F. I. R., is that the parties were nomads having no, fixed abode and at the time of occurrence had camped in the area of Chak No, 319/T. D. A., District Muzaffargrah. The huts of the parties were at a distance of half a mile from each other. On 26-4-64 at about evening time the appellant alongwith four other aforementioned acquitted accused having armed themselves with clangs each reached the huts of the complainant party and attacked them. Abdul Khaliq appellant, Ismail and Abdullah acquitted accused gave dang blows to Isa deceased while Muhammad Hussain and Ahmad All acquitted accused caused injuries to Noor Muhammad. The appellant also caused injuries with dang on the left hand of the complainant while Birnail acquitted accused caused clang injury to the complainant on his back.
The alram raised by the complainant attracted P. Ws. Noor Muhammad son of Ibrahim of Chak No, 318/T. D. A., and Muhammad Hussain son of Karam Din of the same Chak who witnessed the occurrence. Some other persons including Boota son of Chiragh and Siraj Din Kamboh etc. Also reached thereafter the occurrence. The appellant and his acquitted co-accused ran away towards their huts. The complainant attended his injured brother, Isa, during the night who died on the next morning in the hut. The condition of Noor Muhammad deceased, father of the complainant, was also serious. Suleman complainant went to Police Post Chak Azam after covering (6/7 miles) where his statement was recorded by Abdul Ghani A. S. I., P. W. On 27-4-64 at 10 am. On which the formal F. I. R., was recorded on the same day at the Police Station, Leiah. The distance between the place of occurrence and the police station was given as 23 miles.
' The motive alleged in the F. I. R., was that Mst. Surrayya, who was originally betrothed with the appellant, was not married to him and instead about 20 days before the present occurrence she was married to Moosa, brother of the complainant and son of Noor Muhammad deceased. On account of that grudge the appellant accompanied by four other accused since acquitted in a separate trial, attacked and committed the offences charged with.
' After recording the statement of the complainant at the Police Post Chauk Azam, Abdul Ghani (P.
W. 8), who was then A. S. I., Incharge of that Police Post, sent the same for registration of the formal F. I. R., to the Police Station, Leiah and himself proceeded to the spot. On arrival at the spot he prepared tf.e injury statement and inquest report of the dead body of Isa deceased and despatched it to the mortuary ft:of autopsy. He also found Noor Muhammad deceased lying injured there and after preparing his injury statement he sent Noor Muhammad in injured condition to the Civil Hospital, Leiah for examination and treatment. He handed over the investigation to Ch. Ghulam Ahmad (P. W. 2), who was then S. H.
0., Police Station, Leiah. On 19-5-64 Ch. Ghulam Ahmad P. W. Went to Civil Hospital Leiah on receipt of information where he prepared the inquest report of Noor Muhammad and sent his dead body to the mortuary for autopsy. He succeeded in arresting four accused since acquitted in earlier trial but the appellant remained an absonces and was got declared by him as a proclaimed offender.
He got prepared the site plan. After completion of the investigation the appellant was arrested on 4-7-68 and was challaned for a separate trial.
3. Zahoor Ahmad (P. W. 4), real brother of Dr. Mahmood Ahmad, deposed that the latter had left for England and was not likely to return to Pakistan in the near future as such in the absence of the doctor he proved the medico-legal reports and post-mortem examination reports relating to this case.'
' According to the post-mortem examination report (Ex. P L) Dr. Mahmood Ahmad performed the post-mortem examination on the dead body of Isa deceased, aged 30 years. On 28-4-64 at 11 am.
And found two blunt weapon injuries on it. Injury No, 1 was a contusion 4' x 1" just above the left ear on temporal region while injury No, 2 was also a contusion 2' x 1', just behind the left ear on the neck, whole of the head, eyes and nose were extremely swollen. On dissection the doctor found that the skull of the deceased had a fracture under the injury No, 1 which fracture was star-shaped and was present in the left temporal and left parietal bone. In the opinion of the doctor death resulted due to the compression of brain on account of injury No, 1 which was sufficient to the cause death in the ordinary course of nature. He gave the interval between injuries and death as 8 to 10 hours and that between death and post-mortem examination about 32 hours.
' The same doctor medically examined (vide M. L. R. Ex. P. M.) Noor Muhammad deceased in injured condition on 28-4.64 at 7 a.m. And found two injuries on his person. Injury No, 1 was a lacerated wound 1" x *" on nose. The nose and eyes were swollen with fracture of nasal bone. Injury No, 2 was an abrasion I" x r on the front of right knee. Injury No, 1 was declared grievous while injury No, 2 was found simple in nature. Both the injuries were caused by blunt weapon within 22 hours. The doctor mentioned in his report (Exh. PN/1) that the injured was relieved and discharged from the hospital on 30-4.1964 but was brought back to the hospital on 14.5-64 in coma and with paralysis on the right side of the body. When he was given treatment but he died on 18-5-64. After his death the same doctor conducted the post-mortem examination (Report Exh. PN) on the dead body of Noor Muhammad. On dissection the doctor found that both lungs of Noor Muhammad deceased were adherent to chest wall and showed signs of old Tuberculosis. In his opinion the death resulted from brain hemorrhage caused by the high blood-pressure. He gave the interval between the death and post-mortem examination as 9 hours.
' The same doctor on 28-4-64 at 11 a. m. Medically examined Suleman (M. L. R. Exh. PO) complainant, P. W. And found two injuries on his person caused by blunt weapon within the duration of 36 hours. Injury No, 1 was a contused wound skin deep inner side of the left thumb while injury No, 2 was an abrasion 1' x r on the back.
4. At the trial the prosecution examined 10 witnesses in all. Suleman, complainant (P. W. 3), Muhammad Hussain (P. W. 5), Noor Muhammad (P. W. 6) and Msr. Aisha (P. W. 7) were examined as eye-witnesses while the complainant and 41st. Aisha also gave the motive. The investigation in the case was proved by Ch. Ghulam Ahmad S. H.
0. (P. VV. 2) and Abdul Ghani A. S. I. (P. W. 8). Other formal witnesses were also examined. The eye- witnesses did not fully support the prosecution case and made concessions in favour of the appellant. Noor Muhamthad (P. W. 6) resiled and was cross-examined by the Public Prosecutor.
5. The appellant pleaded not guilty to the charge. When examined under section 342, Cr. P. C. He denied the allegations of the prosecution and also denied the motive alleged against him and that he had absconded and declared as a proclaimed offender. He attributed his false implication in the case, to the enmity of Suleman complainant P. W. He stated that his father' had promised the hand of his sister in marriage with the complainant but the appellant did not agree and stood in the way as a result of which the complainant could not marry the sister of the appellant. He also stated that Mst. Aisha P. W. Deposed against the appellant at the instance of the complainant while the other material witnesses had not deposed anything against the appellant. He did not lead any evidence in defence.
6. The learned trial Judge believed the ocular evidence of Suleman complainant and Mst. Aisha P.
Ws and found that the same was corroborated by the motive alleged by the prosecution which had been established and that the medical evidence supported it. He did not believe the testimony of Muhammad Hussain (P. W. 5) and the hostile witness Noor Muhammad (P. W. 6) and discarded it. The learned counsel for the appellant has argued that the ocular evidence is not worthy of credence and is in conflict with the medical evidence. He has submitted that according to the prosecution story five persons with dangs belabored two deceased and Suleman complainant P.
W. Who in all suffered six injuries of trivial nature. He has further submitted that the motive alleged by the prosecution has not been established because, if any, it was against Moose and not the deceased and it could also be against the father of Mst. Surraya who was not married to the appellant but was married 20 days earlier to another person and none of them was present at the time of occurrence. He has also submitted that the appellant did not abscond, he was a nomad and might have shifted to some other place. Finally he has submitted that although the occurrence is alleged to have taken place on 26-4-1964 at evening time, the statement of the complainant at the police post was recorded on 27-4-1964 at 10 a.m. On which formal F. I. R., was subsequently registered, the delay was fatal and had been availed of by the prosecution for deliberation and consultation to involve the appellant on suspicion as the names of the assailants were not known to the complainant. Learned counsel for the State has argued that the convictions and sentience of the appellant be maintained for the cogent reasons given by the learned trial Judge. 1 have been taken through the entire evidence which 1 have read and considered in the light of the submissions, made by the learned counsel for the parties.
7. The prosecution has examined four eye-witnesses. The learned trial Judge has not believed Muhammad Khan and Noor Muhammad P. Ws. Noor Muhammad resiled at the trial and was cross- etxamined but his statement before the Committing Magistrate was not transferred to Sessions file.
They are not reliable witnesses. The testimony of Muhammad Hussain and Noor Muhammad P. Ws.
Are ruled out of consideration. 1 am left with the ocular account given by Suleman complainant and Mst. Aisha P. Ws. Both of them are closely related with the deceased and their testimony are neither uniform nor consistent. They have contradicted each other as well. Suleman complainant P.
W. Is the real brother of Is deceased and son of Noor Muhammad who subsequently died and according to the medical report his death was a result of haemorrhage caused by high blood pressure. The appellant alongwith two others since acquitted allegedly caused the murder of-Isa and simple injuries to the complainant. According to his statement in the F. I. R. The occurrence took place at evening time after sun-set, before the committing Magistrate he stated that the time of occurrence was Isha walla while at the trial he deposed that the occurrence took place before sun-set. This inconsistency is motivated. The probability cannot be ruled out that the occurrence took place during the dark hours when the appellant could not be identified. He deposed that the appellant alongwith four others suddenly attacked with dang and caused injuries to his brother Isa, deceased and his father, Noor Muhammad deceased, besides causing injuries to the complainant himself. He deposed in cross-examination that his father Noor Muhammad lived in the same but in which the complainant lived but his brother, Isa deceased, lived in a separate but at a distance of about 10/15 karams with his wife, Mst. Aisha P. W. He further deposed in cross-examination that faces of five assailants were muffled but the complainant party had recognized them including the appellant and had also identified them from their voices. He also deposed that they were sitting at cots and were attacked from the back side suddenly when the assailants did not allow them any opportunity to get up. According to this witness, Ismail Abdullah and the appellant delivered dang blows to the deceased as a result of which the deceased died subsequently in the early hours of the next morning. He did not specifically. Attribute the injuries to the three aforementioned assailants two of whom were acquitted in the earlier trial. He also attributed simple injuries to himself by Ismail acquitted accused and the appellant. But the number and nature of the injuries suffered by the complainant and the two deceased per medical evidence are in conflict with his ocular testimony. The other eye-witness, Mst. Aisha is the wife of lag deceased and according to the, complainant she lived in a separate but with her deceased husband is distance of about 10/15 feet in darkness because there was neither any moon high nor any other light was available at the spot as the occurrence had taken place after sun set. She has only named the appellant as one of the assailants but has not specifically attributed any injury by him to the deceased. According to her she was inside the but preparing the food when her husband, father-in-law and the complainant were sitting outside the bus and suddenly they were attacked by the assailants who were five in number out of whom four had already been acquitted in earlier trial. She deposed in cross-examination that the appellant had not been seen by her prior to the occurrence and was known to her only by name. She also deposed that the name of the appellant was being mentioned by everybody after the occurrence to be amongst the assailants and that was the reason that she could depose that the appellant was also amongst the assailants. She admitted in cross-examination that she could not identify the appellant due to darkness. The testimony of both these eye-witness, namely, Suleman complainant and Mst. Aisha cannot be safely relied upon in the administration of criminal justice.
The motive alleged by the prosecution has not been-established. If' at al it was against the father of Mst. Surrayya, one is a, who lived at a distance of about 10 miles from the place of occurrence or it could be against the brother of the complainant, Moose, who actually married Mst. Surrayya. The evidence does not show that any of them was expected to be present at the spot at the time of occurrence. As against this the defence has pleaded that the appellant was falsely implicated because he opposed the marriage of his sister with the complainant. Thus the motive does not corroborate the ocular evidence and was rather on the side of the prosecution to falsely implicate the appellant. It cannot be ignored that the F. I. R., was lodged with delay0 over 14 hours. The absconscion of the appellant will not improve the prosecution case. It is in evidence that the parties were having no fixed abode and it is probable that the appellant had shifted from place to place and did not come forward out of fear particularly when he is a rustic illiterate person. On the evidence on record and in the circumstances of the case the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt and he is entitled to the benefit of doubt which is allowed to him.
8. As a result of the above discussion the appeal is accepted, convictions and sentences of the appellants are set aside and he is acquitted of all the charges.