' Ameer Khan (30), resident of village Mirza, District Campbellpur was convicted for the murder of his brother Ahmad Khan by the Sessions Judge, Caraphelipur. He was sentenced to imprisonment for life under section 302, P. P. C. The convict has appealed through jail.
2. The three brothers of the appellant, namely, Mini Khan, Noor Khan P. W. 7 and Ahmad Khan (deceased) used to live together in a haveli while the appellant lived separately in the same village. Arshad, son-in-law of the deceased had some dispute with the appellant. Since he had made an application against the appellant, therefore he bore a grudge against him. The prosecution has also alleged another motive for the crime, i,e, on 17-3-1972, Khalida Bibi daughter of the appellant and Mukhtaran daughter of the deceased while playing, fought with one another over which the appellant and the deceased had an altercation. Their brother Noor Khan intervened and pacified them. The same evening at kuflanvela, deceased's brother Noor Khan P. W. 7, his son Muhammad Riaz P. W. Is and his brother-in-law Irwin P. W. 9 were sitting near a hearth in the courtyard of his haveli when the appellant came there and shouted at him. He went up to the appellant with a lantern in his hand. The appellant abused him. The aforementioned three witnesses also came up. In the meanwhile, the appellant pulled out a knife from his dub. The accused picked up a dandy from there and tried to ward off the attack, but the appellant succeeded in hitting him with the knife in his left flank. As Ahmad Khan staggered the aforesaid witnesses supported him and lay him on a charpai in a room. He died after about half an hour. P.
W. Noor Khan then went to Police Station Sadder, Campbellpur and made the F. I. R., Exh. P. A. To Shamsher Ali S. I. (P. W. 10) at 1-00 a.m. The same night at a distance of two miles from the plane of occurrence. After recording the F. I. R., the S. I. Went to the place of occurrence, prepared the necessary documents and sent the dead body for its post-mortem examination. On 18-.-19n at about 2-30 p.m., he arrested the appellant who got recovered blood-stained knife P. 1 from the corner of a room of his house, where it was buried under the ground. This recovery was witnessed by P. W.
6. Nadir Khan and Noor Khan P. W.
7. The knife was made into a sealed parcel and later sent to the Chemical Examiner. According to the report of the Serologist, knife P. 1 was stained with human blood.
3. On 18-3-) 972, at 12-15 p.m, Dr. Shams-ud-Din, Medical Officer, Civil Hospital, Cambellpur held the autopsy and found an incised wound 1/2' x 1/4' x cavity deep on the left side of the chest in the space between 9th and 10th ribs. The wound was transverse. The lower end of the 9th rib was 'a little cut. The whole of the peritionial cavity including pelvic cavity was full of blood. The diaphram was also pierced through. The small and the large intestines were injured at the side of splenic- flexure. The omentum was pierced opposite the side of injury. The spleen was having a cut at its upper border. Death was due to injury to the spleen, small and large intestines resulting in haemorrhage and peritonitis in the peritoneal cavity due to injury with ultimate shock.
4. On the same day at 6-20 p.m., he examined Ameer Khan (appellant) and found the following injuries on his person :-
(1) A lacerated wound on the right side of the fore-head near the hairy margin 1' x 1/2" skin deep. -
(2) A lacerated wound on the left side of the head at the back 1/2 x 1/4' x skin deep.
(3) Right hand was swollen and movements were restricted and complained of pain on movements.
(4) Abrasion on the left shoulder at the back 1/4' circle.
(5) Abrasion with contusion on the left upper arm 1/4' circle.
(6) Abrasion on the left upper arm on the front 1' x 1/2'.
(7) Abrasion on the right elbow 1/4' circle and was swallen.
(8) Abrasion on the right fore-arm on the ulnar side 1/4' long.
' After X-ray, injury No, 3 was declared grievous. The bone under this injury was fractured.
5. The appellant denied guilt. He admitted the fight between his daughter and his niece but denied his presence at that time. He also denied the dispute between him and Arshad son-in-law of the deceased. While explaining his injuries, the appellant made the following statement :- "Our children quarrelled in my absence when 1 was on duty in the Artillery Centre, Campbellpur. I returned to my house late in the evening. The deceased had gone to the Dhok of P. W. Noor Khan.
He returned at about kuftanwela. His wife then instigated him by giving him a twisted version of the quarrel between the children. The deceased came to the courtyard of my house armed with a stick. He told me that he had been asking me to mend myself but 1 had not reformed and that he would teach me a lesson. He started to give blows to me with a stick which landed on my head, arms and other parts of the body. I suffered in all 8 to 10 injuries including fracture of my right hand.
The deceased then aimed another soti blow at me. At that stage I gave a chhuri blow to him with my left hand in order to defend myself because I was apprehending death at his hands. By that time my right hand was already fractured."
' The appellant denied the recovery of knife P. 1 but said that he had himself gone to the police station and produced a knife there which was much small in size of that knife P.
1. According to him, knife P. 1 was planted on him by the police. He added that the eye-witnesses were inimical towards him and that they were not present at the spot. He further stated that Noor Khan P. W. Lived at his Dhok which was at a distance of two miles from the house of the deceased.
According to the appellant, the deceased was a desperate person and had been sentenced earlier to five years' R. I. For causing the death of one Yasin Baba. The appellant led no evidence in his defence.
6. The appellant claimed to have attacked the deceased in self defence. He denied having gone to the haveli of the deceased. On the contrary he said that the occurrence took place in the courtyard of his house. It will be relevant to mention at this stage that no blood was found at the spot. Even the cianaa with which the deceased hit the appellant was not found lying there by the Investigating Officer. These circumstances create a doubt about the place of occurrence.
Moreover, I find that the eye-witnesses had made contradictory statements about the place of occurrence. Noor Khan P. W., was declared hostile by prosecution and when cross-examined by defence. Said that the occurrence took place between the courtyard of the deceased and the courtyard of the accused at a distance of 5 or 7 paces outside the door of the haveli of the deceased. P. W. 9 Imtiaz denied if the courtyards of the deceased and the appellant adjoined and whether the occurrence took place 5 or 7 paces away from the outer door of the hap -II of the deceased. But he had said so before the Committing Magistrate. Similarly, P. W, Muhammad Riaz son of the deceased said that Ameer Khan appellant called the deceased out and that his father went out. Muhammad Riaz did not tell the Committing Magistrate that the accused came in the courtyard of their house where the buffaloes were tethered and called out the deceased there. In my view, prosecution failed to establish that the occurrence took place in the courtyard of the house of the deceased.
7. The next question would be whether the eye-witnesses can be relied upon. Noor Khan P. W. a brother of the deceased and the appellant reported the matter to the police. He made a different statement at the trial than what he had said in the F. I. R. At the trial, he said that he did not live at Dhok Babkibani two miles away from the place of occurrence and had come in the village on that day to make some purchases. He, however, did not support the prosecution case instead he supported the defence version. Prosecution has not been able to satisfactorily prove whether the appellant was the aggressor. Noor Khan P. W. Did not mention at the trial whether the appellant and the deceased were present when their daughters fought with each other ; although he said so in the F. I. R. Muhammad Riaz son of the deceased did not mention in his statement recorded under section 164, Cr. P. C. About the motive for the crime. He admitted at the trial that he was not present when the fight between his sister and the daughter of the appellant took place. P. W. 9 Imtiaz did not mention a word about the motive. I am, therefore, of two view that prosecution has failed to prove whether the appellant or the deceased were present at the time when their daughters fought. According to the appellant, they were both not present and a distorted version of the quarrel between the two girls was given to the deceased by his wife upon which he came in a rage to his courtyard with a stick and attacked him first. Giving the eye-witness account Muhammad Riaz said that the appellant was trying to give chhuri blows but the deceased was warding of the attack with a stick and the last blow given by the appellant bit him. But before the Committing Magistrate the witness said that when his father was giving awl blows to the accused, the latter while holding the chhuri had been retreating. He also admitted that the stick used by his father had broken in two pieces. He, however, did not know whether it was taken into possession by the police or not. P. W. 9 Imtiaz denied at the trial if the stick of the deceased was broken into two pieces but he said so before the Committing Magistrate. Imtiaz P. W. Lived at a distance of a furlong from the place of occurrence and claimed to have come to the house of the deceased from his own house at degarwela but before the Committing Magistrate he had said that he reached there at Peshiwela with the deceased from the fields and kept sitting there throughout. It is obvious that the Witness. Had contradicted himself. If the occurrence had taken place in the courtyard of the house of the decreased and the eye-witnesses were really there, then they could have intervened effectively particularly when the deceased was also armed with a danda. I am not satisfied with their testimony. It will, therefore, not be safe to rely on their evidence.
8. Although the appellant admitted having used a knife in his defence but he denied if knife Exit. P. 1 was-the one used by him. Besides the Investigating Officer, P. W. 8 Nader Khan deposed at the trial about the recovery of axe P. I from the house of the appellant. This witness said that the knife was not stained with blood. However, it is difficult to accept that an accused who would take precaution to conceal the weapon in the ground would leave traces of blood on it. I am not satisfied with the guilt of the appellant. Giving him the benefit of doubt I acquit him. He should release forthwith if not required in any other case.