' Z. A. CHANNA , J.-Appellant Gul Bahar was tried by the learned Sessions Judge, Jacobabad, in respect of offences punishable under sections 302 read with 34 and 201, P. P. C. And under section 13(d) of the West Pakistan Arms Ordinance, 1965, for the murders of Atta Mohammad and Mst.
Arbeli, for causing evidence in respect of the murder of Mst. Arbeli to disappear and using an unlicensed fire-arm. He was acquitted of the offences relating to the murder of Mst. Arbeli and causing evidence in respect of her murder to disappear, but has been convicted for the murder of Atta Mohammad and also for having used an unlicensed fire-arm, and on the first count he has been sentenced to transportation for life and on the second count to suffer six months R.
1. The appellant has preferred an appeal from jail to assail his convictions, but later on he engaged a counsel, who has argued this appeal before us.
2. According to the prosecution version, Atta Mohammad was killed on 3-3-1971, at sunset time, in the uncultivated land near Bahadur Minor, three miles from Karim Bus P. S. In Jacobabad District.
The prosecution case is that on the day of the incident, at about Tepahri time, deceased Atta Mohammad and his cousin, complainant Baggan, were returning from Piaro Village, where they had gone to enquire about the health of their cousin, Gulab, when on the way, near Bahadur Minor, the appellant, his brother Rato and his cousin Hashim-the latter two are said to be absconding- suddenly emerged from an old disused channel and fired several shots from their guns at Atta Mohammad, who fell down and died on the spot. Besides complainant Baggan, tr e incident is said to have been witnessed by Misri and Piaro, who lived in a nearby village and were attracted on hearing the gun shots. After killing Atta Mohammad, the appellant and his two companions are said to have gone to the nearby house of Abdul Rahim, dragged out his wife, Mst. Arbeli, shot her dead and then taken away her dead body in a bullock cart. Leaving Misri and Piaro with the dead body of Atte Mohammad, Baggan repaired to Karim Bux P. S., three miles away, where he lodged his report the same day at 10 p.m.
3. After recording the F. I. R., H. C. Behram accompanied the complainant to the scene of offence where he found a number of persons gathered around the dead body. On the next morning, he inspected the first scene of offence in the presence of mashirs, Noor Mohammad and Dilawar, and recovered from there three empties and two live cartridges, which he sealed into a packet, and prepared inspection memo. Exh.
14. The H. C. Also found a large quantity of blood-stained earth at the wardat, which he secured. He thereafter sent the dead body of Atta Mohammad to the Jacobabad District Hospital for post- mortem examination. Subsequently, the investigation was taken up by S. H. O. Motile Bux, who had reached the scene of offence some time on 4-3-1971. He recorded the statements of P. Ws. Misri, Piero, Sher Khan and Mohammad Rahim. The S. H.
0. Also visited the second scene of offence in the village of Atta Mohammad, where it is alleged that Mst. Arbeli, wife of Mohammad Rahim, who was suspected to be maintaining illicit relations with Atta Mohammad, is said to have been killed. At the second wardat, the S. H.
0. Secured blood-stained earth, one pellet and two wads, and prepared mashirnama, Exh.
24. No trace of the body of Mst. Arbeli could be found in spite of intensive search and it is not known what has become of the body or how her assailants managed to dispose of the same.
4. The inquest on the deceased was performed by Dr. Habibullah, who was then Medical Officer at Jacobabad District Hospital. He found the following external injuries on the deceased :- "(1) One lacerated punctured type of wound, about 1' in diameter, with charring and blackening around the wound near right hypochodrium, as wound of entry.
(2) One lacerated punctured type of wound, about 1' in diameter with charring and blackening around the wound on the epigastrium, as the wound of entry.
(3) Three small, about c. m. In diameter, lacerated punctured type of wounds of exit on the left side of the chest in the axillary fold line.
(4) Four lacerated wounds each about into skin deep on the left forearm.
(5) One lacerated wound about 3' x 2' x structure deep on the inner side of the left forearm, with the fracture of ulna bone.
(6) One lace rated wound about 2r x x structure deep on the left forearm on the outer side."
' In the opinion of the Medical Officer, the death of the deceased was due to shock and haemorrage as a result of injuries caused by the discharge from fire-arm. He has further opined that injury No. 1 individually and Nos. 1 to 6 equally were sufficient to cause death in the normal course of nature. The medical officer had also taken the urethral swab of deceased and sent it to the Chemical Analyser, whose report, Exh. 32, is to the effect that semen was detected thereon.
5. The defense of the appellant is that he was an indoor patient in the Civil Hospital, Jacobabad, from 22-2-1971 upto the time of his arrest by the Police on 5-3-1971, and therefore, it was just impossible for him to have way (land ha the two murders. Amerding to him, he has enmity with Haji Mohammad Nawaz, a cousin and Nekmard of the complainant, over land and irrigation water and It is at the instance of Haji Mohammad Nawaz that he was falsely implicated in the case.
6. The case against the appellant rests on the ocular testimony of complainant Baggan and P. Ws.
Misri and Plato. We have carefully examined the testimony of these witnesses and have not been impressed with the same. Complainant Baggan has not explained as to what ailment his cousin Gulab was suffering from and all that he has stated is that Gulab was indisposed. He gave a somewhat different reason for going to Gulab's village in the Committal Court and there stated that he had gone to enquire after the health of Gulab's mother. When confronted in the Sessions Court with this statement, he' gave a still another reason and alleged that he and the deceased had gone to enquire after the health of Gulab as well as his mother. A more important reason which has created a real doubt in our minds in respect of the story given by him is the report of the Chemical Analyser regarding finding of semen in the urethral swab of the deceaied. According to the complainant, he and the deceased had gone together at Depahri time to Gulab's village and later on also they were together till the deceased was killed at sunset time. If the version which he gave is true, then Atta Mohammad could have had no opportunity of having sexual inter-course at least from midday till the time of his death and in the circumstances no semen could have been found in his urethral swa b. The finding of semen in the urethral swab suggests to us that not only the deceased had sexual inter-course a short while before his death, but that he was killed in circumstances substantially different from what the complainant has stated. Another circumstance which throws considerable doubt on the testimony of the complainant and other two eye-witnesses is that whereas according to them only gun shots were fired at the deceased, the medical evidence seems to suggest that three of the injuries on the deceased, which were on the left arm, were apparently caused with some heavy blunt weapon, perhaps the back side of a hatchet. No satisfactory explanation is forthcoming as to how these injuries were sustained by the deceased.
7. So far as P. Ws. Misri and Piaro are concerned, we do not think that they could have witnessed the incident, since according to the mashirnama of the scene of thence, Exh. 14, their houses were at a distance of at least 1 furlongs away from the scene of offence, and further in-between flowed the Bahadur Minor. In the first place, the witnesses could not have known that their relation, Atta Mohammad, was being attacked or killed. Secondly, it is most unlikely that at dusk time they would have dared to have gone to the scene of offence, which is at a considerable distance from their village, immediately on hearing the gun shots. They would only have done so much after the firing had ceased and they considered it safe to go there. Thirdly, even if for the sake of argument we were to accept their story that they immediately ran towards the scene of offence on hearing the gun shots, they could not have come there in time to see either the shots being fired at the deceased or even see and identify the ass iilants, as the firing of the two or three gun shots, which resulted in the death of Atta Mohammad, could not have taken more than a couple of minutes.
Another circumstance which throws doubt on the ocular testimony is that whereas the incident is said to have taken place at sun-set time, which in March would be about 6 p.m., the F. R. Was not lodged till 11 p.m , four hours later, though the Police Station is only tame miles away from the scene of offence. The prosecution has not explained this undue delay in the lodging of the F. I. R. We are inclined to think, in view of the discrepancies in the testimony pointed out above, that the death of Atta Mohammad occurred in different circumstances from what have been alleged by these witnesses, and that they took time to consult among themselves as to what story they should put up.
8. The learned Sessions Judge has taken the view that the appellant, by a clever ruse, had got himself admitted as an indoor patient at Jacobabad Civil Hospital some days prior to the incident and that on the date of the incident he managed to slip away from the hospital, and after committing the murder alongwith his two absconding relations, returned back to the hospital, which is at a distance of only 20 miles from the scene of offence. In taking this view, he has heavily relied upon the testimony of Dr. Moolchand, who had been treating the appellant at Jacobabad Civil Hospital. According to this doctor, though the appellant had been admitted as an indoor patient, he found nothing seriously wrong with him, with the exception of slight tenderness of his abdomen. He has further stated that the appellant was found absent from the hospital on the night between 23rd and 24th February, 1971, and again on 3-3-1971 the appellant disappeared from the hospital, but returned back on the next morning. The doctor, however, has admitted in his cross- examination that whenever he visited the ward in which the appellant was admitted, which was usually in the morning, he found the appellant present, and it was either the other patients in the ward or the Ward Orderly who informed him that the appellant had been remaining absent from the hospital. Neither the ward Orderly nor any of the patients,'svho are said to have given this information to Dr. Moolchand, have been examined as such the testimony of Dr. Moolchand in regard to the absence of the appellant from the hospital during night or at any other time of the day would be clearly hearsay evidence and not admissible. Furthermore, Dr. Moolchand himself has admitted that there was no provision in the hospital for supply of meals and even some medicines were not available in the hospital and had to be obtained from outside and patients used to go outside for meals or medicines or their relations used to bring the same. If the appellant did leave the hospital, it is not improbable that he did so for the purposes of either obtaining his meals or some medicines prescribed by the doctor, for it appears that during the period of stay of the appellant in the hospital, different medicines were being prescribed for him from time to time.
In the circumstances, we do not think that the appellant's plea of alibi is as weak or hollow as the learned Sessions Judge thought or was a clever device to create an alibi.
9. We are also not impressed with the motive, which was said to have impelled the appellant to kill Atta Mohammad. The appellant has denied that Mst. Arbeli, who is alleged to have been carrying on with the deceased, was his cousin. Furthermore, Baggan and the other eyewitnesses have denied that either she was carrying on with the deceased. Or that they even suspected her of having illicit relations with the deceased. Even if she was maintaining illicit relations with the deceased, the more likely persons, who would have felt aggrieved and taken action in retaliation, would have been her husband, Mohammad Rahirn, who incidentally was not examined, and his brother, Sher. Khan and not the appellant, even if it be conceded or assumed that the appellant is a cousin of Arbeli.
10. In view of the infirmities in the case, which we have pointed out! Above, the learned counsel for the State frankly and fairly conceded that he could not support the conviction of the appellant. We consider- the entire prosecution case not free from reasonable doubt, if not improbable. We would accordingly give the benefit of this doubt to the appellant, accept his appeal and set aside his conviction and sentence. If the appellant is not required in any other case, he should be set at liberty forthwith.