MUHAMMAD FAZLE GHANI KHAN, J.-The appellants, Muhammad Sadiq (24), his younger brother, Dost Muhammad (21), were tried by Ch. Muhammad Rafique Tarar, Additional Sessions Judge, Sargodha, for offences under section 302/34, P. P. C. For causing the death of Muhammad Khan son of Painch, resident of Chak No. 36/MB, Tehsil Khushab, District Sargodha. Both the appellants have been convicted for the offences for which they were tried and have been sentenced to transportation for life each by the order of the trial Court, dated the 5th of January 1967. It is their appeal against their- conviction and sentences.
2. The prosecution story, in brief, is that the deceased Muhammad Khan had obtained some land on lease from Sikandar Khan Baluch (P. W. 6) and while he was busy in ploughing that land at about noon time on 2nd of November 1965, along with his paternal cousin, Hidayat (P. W. 12) and his brother, Shamir (P. W. 13), the appellants came over this field armed with a hatchet and Sangola and started cutting Gowara crop, from near the place where the deceased and the P. W. Were ploughing their land. The deceased left ploughing and went to the field where the appellants were cutting Gowara crop and asked them not to do so, on which a scuffle ensued between them, whereupon Muhammad Sadiq appellant inflicted a hatchet blow on the head of the deceased, who fell down to the ground, as a result of the head injury and at that time Dost Muhammad appellant caused an injury upon the arm of the deceased with his Sangola. Further injuries are alleged to have been inflicted by both the appellants upon the deceased when he had fallen to the ground, but it is alleged, that both the appellants used the blunt sides of their respective weapons this time.
3. According to the prosecution case, Mst: Mehran (P. W. 14), wife of the deceased also reached the spot as she had brought some meals for the deceased and the P. Ws. And had seen the occurrence. The appellants made good their escape and Hidayat P. W. Kept sitting near the dead body and sent Shamir P. W. Brother-in-law of the deceased, to inform the Lambardar. Abdul Aziz Lambardar (P. W. 8) therefore, arrived on the spot, at, about peshiwela and thereafter Hidayat P. W.
Went to the Police Station to lodge the F. I. R. (Exh. P.A.), which was recorded at 11 p.m. At Police Station Nurpur, and was registered by Mian Ghulam Qadir, Sub-Inspector (P. W. 15).
The Investigating Officer reached the place of occurrence at about 6 a.m. On 3rd of November 1965 and found the dead body lying in a field. He prepared the injury statement and inquest report and sent the dead body for post-mortem examination. He collected the blood-stained earth from the spot and made it into a scaled parcel. The Gowara crop was also taken into possession vide memo. Exh. P. C., on the 4th of November 1965. The appellants were also arrested on that date and Muhammad Sadiq is alleged to have lead to the recovery of hatchet (P. 2) and. Sangola (P. 3) from his residential Kotha. Both the weapons along with earth were sent to the Chemical Examiner and the Serologist, who reported that these articles were stained with human blood, vide their reports Exhs. P. G. And P. M., respectively.
4. The post-mortem examination was conducted by Dr. Muhammad Asghar (P. W. 1) on the 4th of November 1965, at about 9 a. m. He found the following injuries on the body of the deceased: -
(1) An incised wound, 3-- " x 1" x muscle deep, on the back of head left side oblique in direction; 1-- " behind the left ear.
(2) An incised wound, 1/2" x 1/4" x bone deep on the back of left forearm, 2'-- " below elbow point.
(3) A contused wound, 1/2 " x '1/4" x bone deep on the back of left forearm, l -- " below elbow point.
The elbow joint was dislocated and there was fracture of ulna-bone under it.
(4) A contusion mark, 2" x 3/4", on the back of left forearm just above wrist joint, both bones under it were fractured.
(5) A contused wound, 2" x --", x bone deep on the mid--front of left leg longitudinal in direction.
(6) An abrasion, 1 -- " x 1/2", on the front of left leg, 4" below knee-joint.
(7) An abrasion, 1 -- " x 1", on the inner side of right thigh, 6" above right knee.
(8) A contusion mark, 1 /2" x 1", on the front of chest transverse in direction at nipple level.
(9) A contusion, mark, 6" x 1", on the outerside of right chest oblique in direction 5" below arm-pit.
(10) A contusion mark, 4"x 1", on the back of right scapula oblique in direction
(11) A contusion mark, 4"x 1", on the left outer side of the chest, 4" below arm-pit oblique in direction.
The cause of death in the opinion of the doctor was shock and haemorrhage. Injury Nos. 3 and 4 were grievous Injury Nos. 8, 9 and 11 were grievous and dangerous to life and were sufficient to cause death in ordinary course of nature. Injuries Nos. 1 and 2 were caused by sharp-edged weapon and rest all injuries were caused by blunt weapon. All injuries were anti---mortem Injuries Nos. 1, 2, 5, 6, 7 and 10 were simple. The probable time between injury and death was instantaneous and between death and post-mortem was within 48 hours.
5. The appellants pleaded not guilty to the charge and stated that they had been falsely implicated in the case on account of enmity.
6. In support of its case prosecution has produced as many as 15 witnesses but the case rests entirely on the evidence of 3 close relations of the deceased, namely, Hidayat, Shamir, and Mst.
Mehran (P. Ws.) who are alleged to have seen the occurrence. The learned Additional Sessions Judge has accepted their presence on-the-spot and has found support for the fact of their presence from the evidence of Abdul Aziz Lambardar (P. W. 8). The recovery of the incriminating articles hatchet (P. 2) and Sangola (P. 3) at the instance of Mohd. Sadiq appellant from his residential Kotha has also been believed and these two confirmatory pieces of prosecution evidence have been considered to be enough corroboration for the evidence of interested eye-- witnesses. The appellants have, however, been awarded lesser punishment under section 302/34, P. P. C. For the reason that there was no previous enmity between the accused and the deceased and the attack was not premeditated and the identity of the accused responsible for the fatal blow was not `discoverable'.
7. The deceased Mohd. Khan was admittedly a resident of Chak No. 36/MB where he had obtained land. It is alleged that he obtained 10 killas of land on lease from Sikandar Khan Baloch (P. W.) in the area of Rakh Kaka in Chak No. 35/MB. Hidayat (P. W. 12) who is paternal uncle of the deceased has stated that one day before the occurrence he had gone to the house of deceased to, enquire about the health of Mst. Saleh Khatoon daughter of the deceased and on the day of occurrence he had gone-to the land which Mohd. Khan deceased had acquired from Sikandar Khan Baloch in order to help the deceased in ploughing the land and for sowing the grams. At about noon time Mohd. Sadiq and Dost Mohd. Appellants armed with their respective weapons came to the spot and started cutting the Gawara crop belonging to the deceased. On this, a scuffle ensued between the appellant and the deceased upon which Mohd. Sadiq appellant gave a hatchet blow to the deceased on his head which resulted in the fall of the deceased on the ground and thereafter both the appellants gave beating to the deceased with the blunt side of their respective weapons.
Shamir (P. W.) was also present at that time and Mst. Mehran also turned up on the spot with the meals, which she had brought for all of them. The witness r waited with the dead body till such time Abdul Aziz Lambardar came to the spot and directed him to go to the Police Station, which is at a distance of 20 miles from the place of occurrence where he reached at about I1 in the night and the F. I. R. Was lodged at his dictation by Ghulam Qarir, S. H. O., Noorpur (P. W. 15). This witness is a resident of village Bhod Awan which is at a distance of about 35 miles from the place of occurrence. Being a close relation of the deceased the evidence of this witness has to be considered with great caution. In the F. I. R. He has stated that Mohd. Sadiq gave kulhari blow on the head of deceased on account of which the deceased fell to the ground and Dost Mohd. Injured the deceased with his sangola inflicting injuries on his elbow and the left knee. There is not a word in the F. I. R. That Mohd. Sadiq gave any other blow to the deceased after he had inflicted the head injury or Dost Mohd gave any other blow except that on the elbow and the left knee of the deceased. From the medical examination of the deceased it is clear that he had as many as 11 injuries on his person but besides the 3 injuries mentioned above which have been specifically attributed to the two appellants no other injury has been assigned to them. There is no mention in the F. I. R. About the various injuries, caused on the chest of the deceased nor there is a word about this fact that the appellants caused some more injuries upon the deceased with the blunt side, of their weapons. Evidently the witness while appearing before the learned trial Court has made considerable improvement upon his statement as recorded in the F. I, R. When he stated as follows: - "Mohd. Sadiq accused gave a hatchet blow to the deceased on his head upon which Mohd. Khan deceased fell down. Dost Mohd accused gave a sangola blow to the deceased which struck him at his arm. Thereafter, both the accused gave beating to the deceased, Mohd. Sadiq accused gave blows to the deceased with the blunt side of the hatchet while Dost Mohd accused used his sangola like a stick."
He was confronted with his statement in the F. I. R. Where the story of the subsequent blows and the use of arms by their blunt side has not been mentioned. Hidayat, however, asserted that he had stated so before the Police at the time of recording F. I. R. (Exh. P. A.).
From the above discussion it is clear that Hidayat (P. W.) had made a material departure from his earlier statement in the F. I. R. And this improvement cannot be considered of a minor nature as in our opinion the change in the statement has been brought about in order to fit in with the medical evidence.
8. We are not prepared to accept the statement ofHidayat (P. W.) when he said that he had gone to the Police Station at a distance of 20 miles on foot as he was penniless. The witness is alleged to have gone from his village to see the ailing daughter of the deceased at a distance of 35 miles and it is hardly believable that he had gone for this purpose without there being any cash on him and, therefore, he travelled 20 miles on foot to lodge the F. I. R: Hidayat in his statement before the Committing Magistrate has admitted that the buses ply on the road till mid-night but he has refuted his statement before the trial Court in order to cover the unnecessary delay which has occurred in lodging the F. I. R. It is in the statement of Hidayat that when he reached the spot with the S. I. At about 6 in the morning about 10 or 15 persons from village Bola had reached the spot. In these circumstances, the reason put forward on behalf of the defence that Hidayat had proceeded to lodge the F. I. R. At Police Station Noorpur directly from village Bola cannot be held to be without force.
9. Shamir (P. W. 13) is brother-in-law of the deceased and real brother of Mst. Mehran (P. W.). It is in whose house the deceased is alleged to be living at the time of the incident. He has stated that deceased came to his house because Mst. Saleh Khatoon had fallen ill and that he had obtained land on lease from Sikandar Khan Baloch in the revenue estate of Rakh Kaka two years prior to the occurrence. The witness could not deny that the deceased and his sisters were permanent residents of Chak No. 36 and they had come to his house during the sickness of their daughter till she was recovered. He has further admitted that the deceased and his sister came to his house when he informed them about the illness of their daughter but they went back to Chak No. 36 and returned to Chak No. 35 two days afterwards to see their daughter and then took their residence with him. At that time deceased and his sister had brought two cots, two beddings and few utensils. Both Hidayat and Shamir have admitted that the deceased had his deru, his house and his animals in Chak No. 36/M.B. It is difficult for us to believe that deceased Mohd. Khan had shifted his residence to the house of Shamir (P. W.) in order to look his ailing daughter leaving behind his entire land, house and the cattle completely unattended in his own village. The house of Shamira (P. W.) was equally in a village where no better medical facilities were available than village 3 /M.B.
The story that the deceased was residing in the house of Shamir (P. W.), therefore, does not inspire any confidence.
10. The illness of Mst. Saleh Khatoon also does not seem to be of such a serious nature that she could not be taken back to the village of the deceased or that the relations should start calling upon to enquire about her health from far off distance like village Bola. Shamir (P. W.) has admitted that no other persons in village Bola had come to enquire about the health of Mst. Saleh Khatoon except Hidayat (P. W.) as no message was sent to village Bola about her sickness. In these circumstances, it is not understood how Hidayat (P. W.) learnt about the sickness of Mst. Saleh Khatoon in his village.
11. At this stage we consider it useful to examine the story of the cultivation of the land of Sikandar Khan Baloch on the part of the deceased. No documentary evidence about the lease of this land by Sikandar Khan Baloch in favour of the deceased has been brought on record. Hidayat has stated only this much that the deceased had acquired some land from Sikandar Khan Baloch for cultivation in the area of Rakh Kaka. Shamir (P. W.) has said that the deceased had taken this land on lease two M years prior to the occurrence and it was under his self-cultivation. To the same effect is the statement of Mst. Mehran. Sikandar Khan Baloch appearing as P. W. 7 has said that the land under M dispute was allotted to him by the Government under `Grow Fe More Food' Scheme in the year 1959 and is at a distance of K about 30/40 miles from his residence. He does not say that the land was under self-cultivation of the deceased but has stated that he had given the management of the land to the deceased and it was under his control and he used to manage it.
In cross--examination the witness has admitted that he has not leased the land to the deceased but it was under his self-cultivation through Mohd. Khan. There is a material discrepancy in the statement of this witness. He had stated before the committing Magistrate that he used to cultivate the land himself and for its management he had appointed Mohd. Khan deceased.
Manzoor Alam Patwari appearing as P. W. 6 has also stated that according to revenue record the land was under the self-cultivation of Sikandar Khan Baloch. The entire story regarding the lease of the land and its being under cultivation of the deceased, therefore, becomes highly doubtful. We are, therefore, unable to accept the prosecution story that the deceased was ploughing the land of Sikandar Khan Baloch, which he had obtained on lease at the time of occurrence in company of Hidayat and Shamir for the purpose of cultivation grams crop.
12. The statement of Mst. Mehran wife of the deceased is full of contradictions. She has stated before the committing Magistrate that her daughter Saleh Khatoon had gone to Chak No. 35/MB 8 or 9 days after her illness but she denied it before the trial Court. She had admitted before the committing Magistrate that her husband was murdered 3rd day after Hidayat (P. W.) had reached their house, but she denied this fact at the trial. She had stated before the committing Magistrate that she had brought nothing from her house while she came to Chak No. 35 to live with her brother Shamir while before the trial Court she has stated that they had brought two cots and two beddings with them. The witness was confronted with her previous statement by the learned defence counsel at the trial stage. She stated at the trial that she shifted with her husband to Chak No. 35/MB because of the illness of their daughter but in her statement Exh. D. A. Recorded by the Police it was not so recorded. Even the story that she was bringing the meals from the house of her brother on the day of occurrence is not mentioned in Exh. D. A. With which she was duly confronted.
13. The murder took place in the broad daylight. There are adjoining fields to the place of occurrence but no single independent witness has been produced. Even Abdul Aziz upon whom much reliance has been placed by the learned Additional Sessions Judge is not Lambardar of Chak No. 35 where the deceased was alleged to be living with Shamir (P. W.). He has also been imported from Chak No. 36 which is at a distance of 2 miles from the place of occurrence. Abdul Aziz is a person who was previously known to Hidayat as well as Shamir (P. Ws.) his statement that all the three eye-witnesses had stated before him that the appellants had murdered Mohd. Khan cannot, therefore, be relied upon.
14. We are unable to agree with the learned Additional Sessions Judge that the prosecution has proved the recovery of hatchet (P. 2) and Sangola (P. 3) at the instance of Mohd. Sadiq appellant.
Out of two witnesses for recovery, namely, Mohd. Hayat and Gulsher only Mohd. Hayat has been produced. This witness is a resident of village Noorpur, which is stated by him to be at a distance of 14/15 Kos from the place of recovery. He has stated that on the day of recovery he had gone to village Mohd. Ali Wala from where he returned in the evening to his village and on his way he passed through Kaka where S. I. Was present. He therefore went to pay Slam to the S. I. And at that stage the S. I. Asked him to join the investigation, where Mohd. Sadiq appellant offered to produce hatchet (P. 2) and Sangola (P. 3) from his house. In cross-examination he has admitted that many persons from village Kaka were present at the time of recovery but it is surprising that nobody was asked to attest the recovery memo. He has further admitted that the place of recovery is surrounded by inhabited houses and even inside the house of the accused their father and women-folk were present. It is further in the statement of this witness that as soon-as they entered the room the hatchet and Sangola were visible to them but the witness did not remember if the hatchet and Sangola were brought before the S. I. By Mohd. Sadiq accused or by his father. He has admitted that the house of the accused consists of one room only and his father, sister and mother they all reside in the same Kotha. In these circumstances it is difficult for us to hold that appellant Mohd. Sadiq had the exclusive knowledge about the concealed weapon of offence and he could not be burdened with its conscious possession. The recovery witness is also a mere chance witness on saluting terms with the Sub-Inspector of the Police and his statement, therefore, is, unworthy of reliance. Moreover, it is difficult to believe that both the incriminating articles with the blood-stains were allowed to be kept inside the house underneath the cot by the appellant Mohd. Sadiq and his family and no efforts whatsoever were made by any one of them for some days not to wash off the blood-- stains from them. The entire story of the recovery of hatchet P. 2) and Sangola (P. 3) at the instance of Mohd. Sadiq appellant and there being blood-stains on it appears to be mere fabrication.
15. We have given our anxious thought to the various aspects of the prosecution case and we are of the view that the prosecution has failed to prove satisfactorily beyond any reasonable doubt that the alleged eye-witnesses were present on the spot. The eye-witness being close relations ill' the deceased, there seems to be no reason why any independent witness could not be produced to support them although the murder has taken place in the broad daylight in the open fields of Rukh Kaka where the possibility of other persons ploughing their land at the same time cannot be excluded. Moreover, the prosecution witnesses have laboured to make material improvements upon h their statements at the trial and the exaggerated version given by them does not tally with the version of the incident as given by Hidayat (P. W. 12) in the F. I. R. When we compare the nature r of the injuries as detailed in the medical evidence with the only 3 injuries attributed to both the appellants in the F. I. R. It becomes highly doubtful that the severe injuries caused by blunt weapons could have been inflicted by the blunt side of a hatchet or Sangola. If the intention of appellants was to murder the deceased with their sharp-pointed weapons there seems to be no reason for them to use their blunt side in order to inflict fatal injuries upon the deceased.
16. As a result of the above discussion, we are of the opinion that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt; the appeal is, therefore, accepted, the sentence and conviction of the appellant is set aside and they may be released forthwith if not required in connection with any other offence. Release warrants to issue accordingly.