' M. SIDDIQ J.-The brief facts of the case as alleged by the prosecution, are that on 25-2-1674, at digarwela Tagia deceased was cutting grass in his wheat field when he was attacked by Bakhshu appellant with a sota. He inflicted a rota blow oil the head of the deceased who fell on the ground.
When he was on the ground, the appellant is alleged to have sat on his chest. Khan Muhammad and Ghulam Haider P. Ws. Claim to have reached the spot and witnessed the occurrence. Ghulam Muhammad (given up P. W.) is also said to have seen the occurrence. The appellant after inflicting rota blow to the deceased, ran away. The deceased died on the spot after a few minutes. Khan Muhammad P. W. First went to inform Ghulam Hussain Khahlani lambardar about this incident, but he did not find him there. So, he came back to the spot. Next morning, he went to the police station where he lodged the F.
1. R. (Ex. P. C.) at 1 p.m. On 26-2-1974. S. I. Muhammad Nawaz P. W. After registering F.
1. R. Reached the spot, prepared the inquest report (Ex. P. G.) and injury statement (Exh. P. G./ of the deceased. He took into possession sickle (Exh. P. 1) and grass from the spot vide Memo Exh. P. D. He despatched the dead body to the mortuary for post-mortem examination. After 6/7 days of the occurrence, the appellant is alleged to have gone to Nawab Din P. W. At his house where he confessed that he had murdered Tagia with sota and that he should be produced before the police. Accordingly, Nawab Din P. W. Produced the appellant at Nurpur before the Investigating Officer on 3-3-1974. The appellant also produced rota (Exh. P. 2) before the Investigating Officer who took it into possession vide Memo. Exh. P. E. He arrested the appellant. The police officer also got prepared the site plan (Exh. P. B.) from the patwad. After the usual investigation the police challaned the present appellant under section 302, P. P. C. He was tried by the Sessions Judge, Dera Ghazi Khan, who vide the impugned judgment dated 26-11-1954, found him guilty for the murder of Tagia and sentenced him to death subject to confirmation by this Court. The appellant was also sentenced to pay a line of Rs, 2000 under section 544-A, Cr. P. C. Which if realized, was to be paid to the heirs of the deceased as compensation. In the event of failure to pay the fine, the appellant was ordered to suffer rigorous imprisonment for six months. The appellant has challenged his conviction and sentences through the present appeal. The case is also before us under section 374, Cr. P. C. For confirmation of the sentence of death awarded to him by the trial Court. This judgment will dispose of the Criminal Appeal as well as the Murder Reference.
2. Dr. Captain Hafeea Ahmad Khan, on 27-2-1974 performed the post-mortem examination on the dead body of Tagia and found the following injuries on it :-
(1) A contused wound 3"x 1" with small lacerated wound, I/2" x 1/4"x 1/4" on the right side of head. The wound was verticle. The lower end was above the middle of right eye-brow.
(2) An abrasion 3" x 1/2' across the left side of abdomen. The inner end was i' outer to the umbilicus.
(3) An abrasion 1"x on the dorsum of right foot 3' from the ankle joint.
(4) An abrasion 1" x 3/4' on the dorsum of left foot 3i. From the ankle joint.
(5) An abrasion 1' x 1' on the inner aspect of left knee-joint.
' Injury No, 1 was caused by a blunt weapon while the rest were caused by rubbing with rough surface.
' Injuries Nos. 2 to 5 were simple, while injury No, 1 was grievous and fatal in the ordinary course of nature. Death occurred due to internal brain haemorrhage and shook. Time between injuries and death was about 1 to 5 hours and between death and post-mortem about 36 to 45 hours.
3. The appellant when examined under section 342, Cr. P. C. Denied the prosecution allegations. He stated that the case was false one and had been concocted by the police with the collusion of the complainant party who were inimical towards him. He, however, produced no evidence in defence.
4. In support of its case, the prosecution produced two eye-witnesses, namely, Khan Muhammad (P. W. 7) and Ghulam Haider (P. W. 8). The prosecution also relied upon the extra-judicial confession allegedly made by the appellant before Nawab Din P. W., the recovery of weapon of offence sota (Exb. P. 2), the motive and the medical evidence. The trial Court did not rely upon the extra-judicial confession made by the appellant before Nawab Din P. W. As he was imported from Multan to create evidence of extrajudicial `confession against the accused. Similarly, no reliance was placed upon the alleged motive and the recoveries. The trial Court, however, believed the ocular evidence as corroborated by the medical evidence and convicted and sentenced the appellant as mentioned above.
5. As stated above, the fate of this case depends mainly upon the ocular evidence. In the F. I. K.
Three eye-witnesses were mentioned, but only two namely, Khan Muhammad (P. W. 7) and Ghulam Haider (P. W. 8) were produced in Court. It is an admitted fact that both these eye- witnesses are closely related to the deceased. Ghulam Haider P. W. Is the son, while Khan Muhammad. Is the real nephew of the deceased. The occurrence, according to the prosecution, took place at digarwela on 25-2-1974, while the F. 1, K. Was lodged on 26-2-1974 at 1 p.m. The distance between the place of occurrence and police station is only 12 miles. Khan Muhammad complainant has stated that he started for the police station on 26-2-1974 in the morning.
According to the defence, the cause for this delay was that in fact the deceased was killed by some unknown assailant during the night time when nobody had seen the occurrence, but in the morning the complainant party concocted this false case against the present appellant duo to enmity. Ghulam Haider P. W., who is son of the deceased, has admitted in his statement that for the theft of a she-camel of Bakhshu appellant, he was chsllaned, convicted and sentenced to six months' rigorous imprisonment prior to the present occurrence and in that case the present appellant was the complainant. It is also admitted by Ahar (P. W. 3), another son of the deceased, and brother of Ghulam Haider P. W., that before the occurrence security proceedings under section 107/151, Cr. P. C. Were initiated between him and the appellant's cousin Bihar and Mir Muhammad.
Ahar P. W. Has further admitted that his brother Bakhshan was involved in a murder case of Ilahi Bakhsh. He again stated that the said Bakhshan was not his real brother but cousin. Bakhshan was tried along with one Amir Bakhsh. Both of them were found guilty and sentenced to life imprisonment in that murder case, he admitted that in that case Khair Muhammad, brother of the present appellant, appeared as a prosecution witness against said Bakhshan and Amir Bakhsh.
The learned State Counsel has frankly conceded before us that in view of previous enmity of these eye-witnesses with the appellant, their statements should not be believed unless corroborated by some independent evidence. ,,according to him, that corroboration is available in the form of medical evidence which has been rightly relied upon by the trial Court. We are unable to agree with him. Apart from the previous enmity of the complainant party with the appellant, there are other circumstances which cast serious doubt about the prosecution case. If the occurrence had taken place at digarwela on 25-2-1974, as alleged by the prosecution, and the F. I. R., was lodged on 26-2-1974 at 1 p. m., there is no cogent explanation offered by the prosecution for this inordinate delay. If the eye-witnesses, who are closely related to the deceased, were really present on the spot and had witnessed the occurrence, Khan Muhammad complainant could immediately proceed to the police station which was at a distance of 12 miles only. He has offered no explanation why he did not proceed to the police station immediately after the occurrence or during the night. Further we land that even if he had started early in the morning on the next day, he should have reached the police station at about 10 a. m. He has not shown how he took so long to reach there at 1 p.m. In the absence of any plausible explanation, we are inclined to agree with the defence suggestion that Tagia deceased might have been killed during the night by some unknown assailant and the occurrence was not witnessed by anyone and his dead body was found lying in the morning and the complainant party took this time to concoct this false story.
6. Another circumstance, which goes against the prosecution, is that according to the medical evidence the time between injuries and death was about 1 to 5 hours and between death and post-mortem examination about 36 to 45 hours. On the other hand, according to the eye- witnesses, the deceased died within five minutes of the receipt of the injuries. The learned Sessions Judge has given preference to the ocular evidence over the doctor's evidence for the reason that the doctor had not given any reasons or shown any material which induced him to come to the said conclusion. Since the eye-witnesses are not only closely related to the deceased but are also inimical towards the appellant, we are not attaching much importance to their statements. In a situation like this, preference should have been given to the medical evidence, especially when there is nothing on the record to show that the doctor made that statement with some ulterior motive. He was not cross-examined by any party. He was a prosecution witness and made that statement in examination-in-chief. His statement was never doubted by the prosecution at any stage.
7. The conduct of the alleged eye-witnesses also goes against them. As mentioned above, Ghulam Haider (P. W. 8) is the son, while Khan Muhammad P. W. 7 is the real nephew of Tagia deceased.
Another eye-witness, who reached the place of occurrence is Ghulam Muhammad who was given up by the Public Prosecutor as unnecessary. If these three persons had really seen the occurrence and were present on the spot, their conduct as ordinary human beings should have been entirely different. They are closely related to the'deceased, one of them being the real son. They should have tried to rescue the deceased from the clutches of the appellant who was all alone and armed with ordinary sota. It was a fight between single person armed with an ordinary sota on one side and four persons on the other. It is understandable how a grown-up healthy son and a nephew could tolerate the assailant to sit on the chest of the deceased. It is nobody's case that the assailant was armed with some deadly weapon, like firearm, and, therefore, the witnesses could not dare to go near him. The sota, in dispute is of ordinary type. If these witnesses really had been present on the spot as alleged by them, their conduct should have been entirely different. They should have been able to capture the assailant and rescue the deceased. As these eye-witnesses did nothing of the kind, the only possible inference is that they may not be present on the spot at the relevant time.
8. Another material circumstance, which damages the prosecution case, is the admission by the Investigating Officer. He has stated that at serial Nos. 7 and 8 dated 26.2-1974 in the Roznamcha, he gave the substance of the F. I. R., pertaining to this case. In that Roznamcha, there is no mention of any accused, motive, names of the witnesses and the weapon of offence. He, however, volunteered that there was no necessity to give such details in the said Roznamcha. We are not impressed by this explanation. The object of giving the substance of the F. I. R., in the Roznamcha is to indicate the nature of the case and at least mention the name of the accused and the eye-witnesses. If there was no mention of the accused. Motive or the eye-witnesses, what else could be the substance of the F. I. R. In the absence of these particulars, the whole object of making the said entry in the Roznamcha is defeated. From the omission of these material facts from the said Roznamcha, the only possible inference is that by that time these particulars were not known to the investigating Officer. This circumstance also supports the defence version that the occurrence might have taken place during the night and it was not witnessed by anyone. The Investigating Officer has further admitted in cross-examination that from 26-2-1974 till 3-3-1974, at 8 p,m , there was no mention of the name of the accused in any of the entries of the daily diary. According to him, the name of the accused appeared for the first in the Roznamcha dated 3-3-1974 at 8 p.m. On serial No, 14 of the said date wherein it was recorded that the accused had been brought by the Investigating Officer in custody and was confined in the police station lock-up. This police officer has further admitted that in column No, 24 of the inquest report, he mentioned that the cause of death was on account of stick blow and gagging of mouth and that column No, 23 which relates to the articles lying near the dead body, was left blank. From these circumstances it has been argued by the learned defence counsel that the possibility that the F. I. R., was recorded at the spot during the investigation, cannot be excluded.
9. After hearing the counsel for the parties and going through the relevant material available on the record, we are clearly of the view that no explicit reliance can be placed upon the testimony of Khan Muhammad and Ghulam Haider P. Ws., as their presence on the spot at the relevant time is anther doubtful. In any case, the statements of such closely related witnesses on the deeased and inimical towards the appellant, cannot be relied upon without corroboration coming forth from unimpeachable source which in the stunt case is missing. The medi,141 evidence does not corroborate the; ocular evidence, rather it conflicts with it. The prosecution has failed to prove its case against the appellant beyond reasonable doubt. Giving the benefit of doubt to the appellant, we accept this appeal, set aside his conviction and sentences and acquit him. He shall be set at liberty forthwith if not required in connection with any other case.
10. Before parting with this case, we would like to observe that the counsel for the parties practically rendered no assistance to us in this case. Mr. Muhammad 1. Atif Khan Khosa was the counsel for the appellant, He did not turn up in the morning when the case was taken up. We sent intimation first to the Bar Association and then to his office. His clerk came and told us that although it was the case of Mr. Khosa, yet it escaped his notice from the cause list, as the name of the counsel was not mentioned. We, however, directed him to inform the counsel to appear before us immediately. He promised to do so. We waited for him, After the interval, we were informed that Mr. Khosa was sitting in his office and that he was not ready to appear before us as he had not prepared that case. We, however, again directed him at least to show the courtesy of appearing before us. It was late in the day that he quietly came and sat in the Court Room. Mr. Saeed K. Haq was the counsel for the State. He was also not available at the relevant time. We sent for the Advocate-General or Assistant Advocate-General, but none was available. However, on behalf of the Advocate-General Kazi Umar Draz, Advocate, came and informed us that both the Advocate-General and the Assistant Advocate-General were busy before other Benches of this Court in some other political cases. Since we had no other case on the cause list, we gave him paper book and asked him to read the evidence and the impugned judgment. By the time, Mr. Khosa and Mr. Haq reached the Court, Kazi Umar Draz had practically read the entire paper book. We could not understand the attitude of Mr. Muhammad Latif Khan Khosa, the learned counsel for the appellant, that even after his arrival in the Court. He neither asked for adjournment of the case, nor uttered a word in favour of his client. He owes professional duty towards his client which he miserably failed to perform, as he did not, in any way, prosecute the case of the appellant.