' MUHAMMAD RAVE) Rehman, Saif Ali and Jhelum, udder sections dated 22n 1 September acquitted while Allah section 302/34, P. P. C. TARAR, J.-Allah Din, Muhammad Ali, Abdur Rehm Ali were tried by the learned Sessions Judge, 148, 429/149 and 302/149. P. P. C. By judgment 1973, Abdur Rehman, Saif Ali and Rehm' Ali were Din and Muhammad Ali were convicted under Muhammad Ali appellant was sentenced to death and Allah Din to imprisonment for life. They have appealed and the case is also before us on reference for confirmation of the death sentence awarded to Muhammad Ali appellant. The appeal and the reference shall be disposed of by this judgment.
2. Saif Ali, Rahm All (acquitted accused) and Muhammad All appellant are real brothers, Abdur Rehman (acquitted accused) is their first-cousin and Allah Din appellant is their maternal uncle.
3. The brief facts of the prosecution case are that on the night between 30th and 31st July 1972 Abdus Salam deceased was sleeping in his Behak near Dhok Miani in the area of village Sahowal.
At about Sehriwala, Muhammad Ayub (not produced), Bashir Khan and Allah Yar P. Ws saw the appellants and the acquitted accused going towards the Behak of the deceased. At that time Allah Yar was going to his land for ploughing while Muhammad Ayub and Bahadur Khan were searching the strayed horse of the latter. The appellants were armed with hatchets. Abdur Rehman with a spear and the other two with lades. When they reached near the Behak, the deceased's dog barked at them whereupon Abdur Rehman went forward and killed the dog by a spear blow. Then all of them launched attack on the deceased. Allah Din appellant inflicted the first hatchet blow on the left side of his neck. On receiving the blow he shrieked and tried to get up but Saif Ali and Rehm Ali pressed him down on the cot. Then both the appellants gave him hatchet blows while Abdur Rehman inflicted a spear blow on his throat. Bahadur Khan and Allah Yar P. Ws. Shouted at them as to what they were doing. The appellants and the acquitted accused then went away with their weapons. Bahadur Khan and Allah Yar P. Ws. Went near the cost of the deceased and found that he had already expired. Leaving Muhammad Ayub near the dead body, Bahadur Khan P. W. Went to village Wara Phaphra and informed Ali Haider complainant (uncle of the deceased) about the occurrence. The complainant rushed to spot and after seeing the dead body of Abdus Salam deceased proceeded to Police Station Pind Dadan Khan where he reported the occurrence to Bashir Ahmed Sub-Inspector vide F. I. R. Exh. P. A.
4. The motive for the occurrence was that All Haider complainant had demanded the hand of Mst.
Azizan from her father Hasan Muhammad for the deceased. Abdur Rehman acquitted accused is the real brother of Mst. Azizan. Hasan Muhammad agreed to the proposal but the appellants and acquitted accused opposed it and declared that "they would not let it happen". It is alleged that about ten or fifteen days prior to the occurrence Muhammad Ali appellant and the deceased had grappled with each other but were separated by Ghulam Muhammad P. W. And on that occasion Muhammad All appellant had challenged the deceased that "he would see as to how he (the deceased) would marry."
5.After recording the F.
1. R., Bashir Ahmad Sub-Inspector reached the spot. He prepared the injury-statement (Exh. P. M.) and inquest report (Exh. P. L.) of the dead body and despatched it to the mortuary for post-mortem examination. He took some blood-stained earth into his possession from the spot and made it into a sealed parcel vide memo. Exh. P. D. He took blood-stained cot (Exh. P. 2) and blood-stained pillow (Exh. P. 1) into his possession vide memo. Exh. P. C. On 4th August he arrested the accused persons.
On 5th August 1972 Allah Din appellant led to the recovery of blood-stained hatchet (Exh. P. 3) which was made into a sealed parcel ride memo. Exh. P. D. On the same day Muhammad Ali appellant led to the recovery of blood-stained hatchet Exh. P. 4 which was taken into possession vide memo. Exh. P. E. After the investigation, the appellants and the acquitted accused were challaned.
6. On 1st August 1972 at 7-30 a.m. Dr. Nazir A hmad Qureshi, Medical Officer, Civil Hospital, Pind Dadan Khan, conducted the autopsy on the dead body of Abdus Salam deceased and found the following injuries on it
(1) Incised wound 4' x 3' x 2.1/2' on the left side of face and neck running horizontally and cutting the lobule of ear. The lower jaw in-between the angle and the neck was cut across along with muscles of neck below the mastoid process.
(2) Incised wound 3' x x 1-1/2" on the left side of anterolateral parts of neck and face. The anterior end of wound was continuous with injury No, 3.
(3) Incised wound 4' x 1' x 1' on the left side of face and neck starting from medial end of injury No, 2 and reaching the left angle of mouth. The muscles of neck and the lower jaw below the angle were cut across under the wound.
(4) incised wound 2i" x 3/4 x 2' on the antero-medial side of right half of neck running horizontally.
The larynx was cut across at the level of lower part of thyroid cartilage. The cosophagus- was also cut at the same level. The caropid vessels were severed under the wound.
(5) Incised wound just below the lower border of the right jaw 2' x x skin deep.
(6) Incised wound 5' x x 2' on the upper part of front of chest across the mid-line of body. The medial end of clavical was cut under the wound near its sterno-clavicular joint.
(7) Five small superficial cuts on the lower part of front of neck and upper part of chest.
' In the opinion of the doctor, death was due to shock and haemorrhage as a result of injuries Nos. 1 to 6. All the injuries were ante-mortem, caused by sharp-edged weapon. Injuries Nos. 1, 3, 4 and 6 were grievous and the rest were simple. Injuries Nos. To were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was few minutes to half an hour and that between death and post-mortem examination from 24 to 48 hours.
7. To support its case the prosecution examined fifteen witnesses in all, its main stay being the ocular testimony of Bahadur Khan and Allah Yar P. Ws. The prosecution also relied on the motive and recovery of blood-stained hatchets at the instance of the appellants.
8. The appellants pleaded not guilty to the charge. They admitted their relationship inter se but denied all other allegations and contended that they had been falsely implicated due to enmity and suspicion. Allah Din appellant produced certified copies (Exhs. D. D. And D. E.). Of the General Register pertaining to Tehsil Pind Dadan Khan. No other evidence was led in defence.
9. The learned Sessions Judge rejected the motive. He disbelieved the ocular account furnished by Bahadur Khan P. W. He also disbelieved the evidence of Allah Yar P. W. In respect of the acquitted accused. He observed that the evidence in regard to the recoveries made at the instance of the appellants was not reliable. He, however, accepted the evidence of Allah Yar P. W. Against the appellants, and on the basis of his statement convicted them under section 302/34 of the Pakistan Penal Code.
10. After going through the evidence with the help of the learned counsel for the State, we are of the view that it is insufficient to warrant the conviction of the appellants. To support the motive, the prosecution examined Ali Haider complainant and Ghulam Muhammad P. W. Ali Haider complainant stated that he demanded the hand of Mst. Azizan from her father Hasan Muhammad who agreed to the proposal but the appellants and the acquitted accused opposed it and declared that they would not let it happen. Ghulam Muhammad (P. W. 9) stated that about ten or fifteen days prior to the occurrence, the deceased and Muhammad All appellant grappled with each other when he alongwith three girls separated them. He further stated that "Muhammad All accused threatened Abdus Salam deceased that he would see as to how he (the deceased) would marry". Besides the solitary statement of All Haider complainant there is no other evidence on the record to show that any proposal was put before Hasan father of Abdur Rehman, acquitted accused, for the hand of Mst. Azizan. Ali Haidar complainant is the uncle of the deceased. In cross- examination he admitted that his wife Mat. Bhag Bhari was previously married to Ghulam Muhammad, maternal uncle of Abdur Rehman acquitted accused. He denied that he had abducted aforesaid Mst. Bhag Bhari and stated that "Mst. Bhag Bhari's father Lal Khan and her uncle Shah Muhammad had obtained her divorce from Ghulam Muhammad by filing suit for dissolution of marriage" and after that he had married her. He further stated that he had given his niece Mst. Rasul Bibi in marriage to the brother of Mst. Bhag Bhari. In view of this background we are reluctant to believe that Ali Haider could demand the hand of Mst. Azizan from Hasan (sister's husband of afore-mentioned Ghulam Muhammad) or Hasan had agreed to the proposal. Ghulam Muhammad (P. W. 9) seems to be a partisan of the complainant as he admitted in cross- exmination that he was challaned under section 107, Cr. P. C. Alongwith the complainant on many occasions and that Hasan son of Hayat was the head of the opposite-party in those security proceedings. This patent fact was, however, denied by the complainant. At the trial, Ghulam Muhammad P. W. Stated Muhammad All appellant had challenged the deceased "that he would see as to how he (the deceased) would marry". He was confronted with his police statement where it was not so recorded. This witness wits examined by the police about a fortnight after the occurrence but no explanation was offered for this inordinate delay on the part of the police to examine him, therefore, it is unsafe to rely on his evidence, and the motive alleged by the prosecution remains unsubstantiated.
11. According to the prosecution, the deceased was murdered in his Behak at Sehriwela. Bahadur Khan (P. W. 13) and Allah Yar (P. W. 14) gave an ocular account of the occurrence. Bahadur Khan P.
W. Stated that on the night of occurrence at about midnight he woke up for feeding his horse and found that it was missing. He, therefore, set out in search of the horse and straightaway went to the Haveli of his nephew Muhammad Ayub. He called him aloud and asked him if he had seen the horse. Muhammad Ayub replied that the horse had not come to his Haveli and thereafter both of them went out towards the Behak of the deceased and saw the appellants and the acquitted accused committing the murder of the deceased. In cross-examination he gave out that his house had a compound-wall with a gate and the horse had been tied by his son outside the compound- wall. He further stated that his house was on the south western side of the village abadi and that of Muhammad Ayub on the northern side of it and that the whole village abadi intervened between his house and the house of Muhammad Ayub. He further admitted that his other relatives also resided in the same village. After giving our careful consideration to the evidence of this witness we are of the view that his presence at the spot is doubtful. It is very unusual that a person would tie his horse outside the compound-wall of his house or would awake at the dead of night to feed his cattle. This witness belongs to village Warah Phaphra. It is in his statement that Dhok Miani and the place of occurrence were towards the north of Warah Phaphra. He did not go to the house of any of his other relatives residing in the same village to enquire about the missing horse but chose to approach Muhammad Ayub whose house was towards the place of occurrence on the northern side of village abadi. We feel that he had invented the story of searching the horse of make himself available near the place of occurrence. He admitted in cross examination that he was a tenant of All Haider complainant. At the trial, he stated that he did not know if Allah Din appellant had made an application against him, Sher Khan, Muhammad Zeman and Mian Khan sometime before the occurrence alleging that they had killed his camel. He denied having made any such statement before the committing Magisrate. He was confronted with his statement before the committing Magistrate where it was so recorded. In view of these circumstances, we are of the view that he is not a truthful witness and his presence at the spot is extremely doubtful.
12. The next witness Allah Yar (P. W. 14) stated that on the night of occurrence at about Sehriwela he was going to plough his land situate near the place of occurrence when he saw the appellants and the acquitted accused committing the murder of Abdus Salam deceased. The learned Sessions Judge disbelieved this witness in respect of the acquitted accused. He observed that he was not truthful on the participation of Rehm All and Sail All accused and his statement was not correct in regard to Rehm Ali. In cross-examination, Allah Yar P. W. Admitted that he was employed as a school-teacher in primary school, Warah Phaphra and that his son Ahmed Yar was also a school- teacher. He further admitted that his son Abdul Khaliq was a cultivator and he and his sons resided in the same house. One fails to understand why this witness thought of sloughing the land at odd hours of night when one of his sons who was a cultivator by profession, was available for doing this job. The learned Sessions Judge disbelieved him in respect of the acquitted accused on the ground that ho made contradictory statements before the committing Magistrate and at the trial and his evidence was in conflict with the medical evidence. At the trial he stated that Abdur Rehman acquitted accused gave one spear blow on the throat of the deceased and the other on his forehead and that both the blows were given with full force. According to the medical, evidence, there was no injury on the forehead of the deceased. There were seven injuries on his person and the doctor had stated that injuries Nos. 1 to 6 were caused by a hatchet while injury No, 7 could be caused by a knife or a balam. This injury was described as "Five small superficial cuts on the lower part of front of neck and upper part of chest". According to the doctor, this injury was superficial and had no length, breadth or width. The doctor further stated that if a balam or a knife was struck even with some force the result would not be a superficial cut. In view of this conflict in the statement of the witness and the medical evidence, the learned Sessions Judge acquitted Abdur Reitman accused. This reason was also available in respect of Muhammad All appellant. At the trial, Allah Yar P. W. Stated that the blow given by Muhammad Ali appellant had landed on the neck of the deceased and not on the forehead. He denied having stated before the Committing Magistrate that "the blows of Muhammad Ali hit the deceased on the forehead." He was confronted with his statement before the Committing Magistrate where it was so recorded. On tne right side of the neck and on the forehead. The deceased had seven injuries in all and five' persons were implicated out of whom three were found innocent by the learned trial Court. The evidence of Allah Yar P. W. Has not received credence from the trial B Court with regard to the participation of three co-accused of the appellants, therefore, it cannot be accepted in regard to the two appellants unless corroborated by probabilities and other reliable evidence which is lacking in this case. It is in the statement of the doctor that the stomach of the deceased was healthy and contained about two ounces of semi-solid diet. In cross-examination he gave out that "the state of semi-solid diet would be in the stomach after a few minutes of the intake of the food." It appears that the deceased was done to death soon after he had taken his night meals, and not at Sehriwela as alleged by the prosecution, therefore, the possibility of the murder having been discovered in the morning cannot be excluded in this case.
13. For all the foregoing reasons, we feel inclined to the view that the prosecution has failed to prove its case against the appellants and they are entitled to acquittal. We, therefore, accept this appeal, set aside the conviction and sentence of the appellants and acquit them of the charge. They shall be set at liberty forthwith if not required to be detained in any other case. The death sentence of Muhammad All appellant is not confirmed.