' This appeal is directed against the judgment of the learned Additional Sessions Judge, Rahimyarkhan, dated 15-3-1973, whereby Manzoor Ahmad and Allah Bakhsh appellants were convicted under section 302/34, P. P. C. And sentenced to undergo imprisonment for life while their co-accused Ahmad Bakhsh was given benefit of doubt and acquitted.
2. Five or six years before the present occurrence, Wahid Bakhsh deceased, brother of Abdul Khaliq P. W., enticed away Mst. Sohagan, wife of Hazoori, Allah Bakhsh appellant is a real brother of said Hazoori. Mst. Sohagan was restored after some time. Allah Bakhsh etc. Wanted the hand of a girl from the complainant party for the insult. Abdul Khaliq, P. W. Was prepared to give a girl in marriage to the accused party in case Mst. Sohagan was declared kail (declaration of immorality), but, the accused were not prapared to accept it. Thereupon Abdul Khaliq, P, W. Declined to give the hand of a girl in marriage to the accused party. The accused had threatened to avenge their insult.
This was the motive for the present murder.
3. On 6-11-1970, Wahid Bakhsh, deceased was irrigating the land from tube-well wafer. Abdul Khaliq, P. W. Was going to the place where the deceased was irrigating the land. When he reached at a distance of one or one and a half acre from the spot, he heard the alarm raised by Hazoori, P. W. He ran towards the spot. Nawaz, Gaman, P. Ws. Who were irrigating the lands nearby, also rushed .Towards the spot. The above-mentioned four eye-witnesses saw Manzoor Ahmad, appellant, armed with hatchet and Allah Bakhsh armed with stick inflicting blows to the deceased with their respective weapons. Abdul Khaliq, P. W., threw challenge to the accused who ran away from the spot. The deceased expired immediately.
4. Abdul Khaliq, P. W. Lodged the F. I. R. Exh. P. B., at the police station, which was recorded by Muhammad Yaqoob, S. H. O. After preparing inquest report and injury statement of the deceased, the S. H.
0. Sent the dead body for post-mortem eAamination. The S. H. O. Collected blood-stained earth from the spot and sealed it into a parcel. He arrested Manzoor accused, who produced blood- stained hatchet P. 2, which was sealed into a parcel. Blood-stained chaddar P. 3 and blood-stained shirt P. 4 were removed from the person of Manzoor Ahmad, accused and sealed in a parcel. Allah Bakhsh produced stick P. 6, which was taken into possession vide memo. Exh. P. R. Manzoor, accused, produced a piece of handle of hatchet V. 7, which was taken into possession vide memo.
Exh. P. J. The accused were chillaned after investigation.
5. The prosecution examined 13 witnesses at the trial. Abdul Khaliq (P. W. 9), Hazari (P. W. 10), Muhammad Nawaz (P. W. 11) and Gaman (P. W. 12) gave the eye account of the occurrence.
Hussain Ahmad (P. W. 5) and Muhammad Yaqub, S. H.
0. (P. W. 13) deposed about the above-mentioned recoveries. Hussain Ahmed had also given evidence about the extra-judicial confession of the accused. Rest are formal witnesses except doctors.
6. Dr. Ehsan-ur-Rehman conducted autopsy on the dead body of Wahid Bakhsh, on 8.11-1970, at 11- 00 a.m. And found 13 injuries on his person. Ten were incised wounds on the right ear, top of bead, right eye forehead and right elbow. Injury No, 11 was a bruise in an area of 7' x 3' on right side of the chest. The remaining two injuries were abrasions on the right shoulder and left wrist.
' Blood clot was found under the scalp. Frontal, both parietal, left temporal and occipital bones were broken into multiple pieces. Membranes were torn. Brain was lacerated in the right half. Blood was present on and under the membranes. Blood was oozing out of the mouth. Stomach contained semi-digested food.
' The death was due to shock and haemorrhage caused by injuries on the head. These injuries were sufficient to cause death in the ordinary course of nature. Time between injuries and death was 1 to 5 minutes and between death and post-mortem about two days.
7. Dr. Abdul Wahid (P. W. 7) medically examined Allah Bakhsh, accused on 8-11-1970, and found three contused wounds one on the back of right chest and two on the back of left chest. All the three injuries were simple in nature and caused by blunt weapon. The duration between injuries and medical examination was 48 hours.
8. The accused denied the prosecution allegations in their statements, Allah Bakhsh even denied his presence at the spot. He explained the injuries by stating that the police had injured him.
9. I have examined the entire record with the assistance of the learned counsel for the appellants. It was urged by the learned counsel that none of the eye-witnesses had seen the occurrence; that the dead body was I found in the bajra field and after inquiry the F. I. R. Was recorded at the spot and this fact finds support from the post-mortem examination because post-mortem examination was conducted on 8-11-1970; that except Hazari, P. W:, the other wttnesses were related to the deceased; that Hazari was also interested as he was a servant of Jalab Khan, p. W. And the deceased was tenant of Bakhshinda Khan, brother of said Jalab Khan; that it was in the evidence that when the witnesses reached near the dead body, the: accused had already gone to a distance of five/seven acres, and it also proved that no one saw the occurrence; that there was bajra crop on three sides of the spot and hence nobody could see the occurrence as the bajra was of man's height. I have considered the arguments of the learned counsel in the light of the material on record. A tendency has cropped up amongst the police officers that they record the F. I. R. After visiting the spot with the object that innocent persons are not involved in. The case. On account of this tendency, the statement of the complainant cannot be discarded. Only the F. I. R. Is to be kept out of consideration. Gaman, P. W., is nephew of the complainant. Muhammad Nawaz, P. W. Is nephew of Ms:. Jannat mother-in-law of Wahid Bakhsh, deceased. Father of Mst. Gullo wife of Muhammad Nawaz, P. W. Is a cousin of the father of the complainant. The relationship of Abdul Khaliq, Muhammad Nawaz and Gaman, P. Ws. Is admitted on record. To some extent they are interested in the prosecution. Hazari, P. W. Cannot be held to be an interested witness. Statements of Abdui Khaliq, Muhammad Nawaz and Gaman, P. Ws. Are corroborated by disinterested evidence of Hazari, P. W. The eye-witnesses were cross-examined at length, but no material discrepancy could be brought on the record. The eye-witnesses did not materiall contradict their earlier statements. The eye-witnesses had seen the occurrence from some distance and they started running towards the 'spot. On seeing them, the accused took to their heels. When these witnesses reached near the dead body, the accused had covered some distance. It was a day time occurrence. The occurrence had taken place at about asar time (about 5-00 p m.). The sunset was at 5-10 p.m. There was sufficient light. There could be no mistake about the identity of the accused.
The deceased was running the tube-well of Bakhshinda Khan. Muhammad Nawaz and Gaman, tenants of Bakhshinda, were irrigating the fields. They were the natural witnesses. Hazari Khan, P. W.
Bad come for the round of cotton field of his master Jalab Khan. The deceased told Hazari (P. W. 10) that he would also accompany him after some time. Both set out for the round of watercourse.
Hazari was ahead of Wahid Bakhsh, deceased. The accused emerged all of a sudden and attacked the deceased. Hazari inflicted two/three blows to Allah Bakhsh accused. This part of the statement is corroborated by the medical evidence. The occurrence had taken place near the bank of watercourse. A site plan indicates that Hazari was also near the watercourse. He could conveniently see the occurrence. Muhammad Nawaz and Gaman, P. Ws. Were towards the south- west of the spot. On alarm raised by Hazari P. W., they ran towards the spot and witnessed the occurrence. Abdul Khaliq was towards the north west of the spot. Hazari, P. W. Deposed in cross- examination that bajra crop was towards the north and south of the spot. He further explained that bajra on the north side had been cut. Muhammad Nawaz stated that cotton crop was on one side of the place of occurrence while bajra crop was on the remaining three sides. It was not put to these witnesses that on which side was the cotton crop and on which side was the bajra crop. After having read the relevant portions from the statements of Hazari and Muhammad Nawaz, P. Ws., it cannot be held that the bajra crop was towards the western side of the spot and the occurrence could not be seen by the eye-witnesses. There is no justification to reject the statements of the four eye-witnesses whose statements are consistent and reliable. Post-mortem examination was conducted on 8-11-1970. The dead body was despatched from the spot on 7-11-1970. It was for the constable to explain B under what circumstances, he did not hand over the dead body to the docto for post-mortem examination, on 7-11-1970. There was confusion about dates in the statement of Abdul Karim, F. C., who escorted the dead body. The constable deposed that he reached the hospital at 11.00 p.m. And the post-mortem examination was conducted on the following day.
Instead of 6-11-1970, the date should be read as 7-11-1970. The dead body had been despatched from the spot on 7-11-1970 at about noon time. As the constable was unable to take the dead body during day time, post-mortem examination was conducted on the next day. On account of delay in post-mortem examination, it cannot be held that nobody had seen the occurrence and the dead body was found in the bajra told and thereafter inquiry was held and thus the delay occurred in the post-mortem examination.
10. I agree with the learned counsel for the appellants that the evidence of extra-judicial confession and recoveries of blood-stained hatchets and bloodstained clothes could not be considered due to inherent defects. Hussain Ahmad (P. W. 5) and Muhammad Yaqub, who was then S. H.
0. Police Station, Abadpur, had testified the recoveries, mentioned above. Hussain Ahmad, P. W. Is admittedly a stock witness of the police. He appeared as a prosecution witness in as many as seven cases. His evidence about extra-judicial confession was rejected by the learned Additional Sessions Judge. The evidence of recoveries cannot be accepted since there are material discrepancies in the statements. Hussain Ahmad stated before the trial Court that when Manzoor accompanied by other accused, came to him, he was holding blood-stained hatchet in his hand.
He then produced three accused before the police and Manzoor Ahmad accused produced blood- stained hatchet P. 2, which was taken into possession vide Exh. P. B. The S. H.
0. Stated that Manzoor Ahmad accused led to the recovery of blood-stained hatchet. Abdul Khaliq (P. W. 9) stated in cross-examination that on the following day, the police recovered hatchet from the house of Manzoor, accused. Statements of witnesses regarding recovery of blood-stained clothes does not sound true. The accused would not normally keep on the blood-stained clothes on his person after the occurrence. For these reasons I would not place any reliance on the evidence in respect of the above-mentioned recoveries.
11. The case stood proved against the appellants through the ocular evidence furnished by Abdul Khaliq, Hazari, Muhammad Nawaz and Gaman, P. Ws. Allah Bakhsh is not entitled to the reduction of sentence because provisions of section 34, P. P. C. Were attracted in this case. Allah Bakhsh and Manzoor Ahmad, accused, armed with stick and hatchet respectively, caused 13 injuries to the deceased on the vital parts of the body. Both the accused had intended to commit murder.
Although injuries inflicted by Allah Bakhsh were found simple in nature, his sentence cannot be reduced. With the above observations the appeal filed by Nclanzoor Ahmad and Allah Bakhsh is dismissed.