' Muhammad Yousaf aged 29 years had been convicted and sentenced by the learned Sessions Judge, Sahiwal under section 304(11), P. P. C. To undergo 8 years' R. I. Along with fine of Rs, 2,000 or in default of payment of fine to further undergo S. I. For 6 months. It was further directed by the learned trial Court that fine of Rs, 2,000 if recovered be paid to Shah Mohammad and Mst. Bibi by way of compensation under section 544-A, Cr P. C. Aggrieved against his conviction and sentences Mohammad Yousaf has filed an appeal before this Court.
2. The brief facts of the case are that Allah Ditta deceased had borrowed some money from Mohammad Yousaf appellant of which Mohammad Yousaf demanded repayment. It may be pointed out at this stage of the case that Allah Ditta and Mohammad Yousaf were married to two daughters of Sardara D. W. l and thus were, brothers-in-la v Inter se. This demand of payment led to the exchange of abuses between the deceased and the appellant and resulted in this murder when appellant went inside the hut, brought out a hatchet and struck a single blow on his head.
After injuring the deceased appellant Allah Ditta, ran away with the weapon of offence.
'Accordingly to the case of prosecution this occurrence was witnessed by Mst. Bibi the mother and Shah Mohammad the brother of the deceased respectively. It is also in the P. I. R. That /list.
Sardaran wife of the deceased was present at the time of occurrence. Allah Ditta injured, died at about mid-night. Thereafter Mst. Bibi accompanied by a Chowkidar of village went to the police station and registered a case vide report Exh. P. D. After registering the case the Investigation Officer proceeded to the place of occurrence and completed all the formalities necessary for the investigation of the case but could not find the appellant. Ultimately it was on 23-5-73 that the appellant was produced before the police and was taken into custody. While in custody he led to the recovery of blood-stained hatchet P. 1 from dry ditch which was taken into possession.
3. The case of the prosecution is supported by two eye-witnesses i,e, Mst. Bibi and Shah Mohammad while Mst. Sardaran the 3rd eye-witness was declared hostile before the C. M. And she offered herself as D. W. In this case. The factum of recovery is supported by Mubarik Ali P. W. 4, Jilal P. W. 5 alongwith the 'Investigating Officer Abdul Hamid P. W.
8. The autopsy on the dead body of Allah Ditta was performed by Dr. Mohammad Aslam whose evidence has been transferred to Sessions file under section 509, Cr. P. C, According to the medical evidence only one injury was found on the person of deceased as under :- ' Incised wound 5-1/2 x 1' on the right side of the head interoposterior and from eye to ear.
'According to the medical opinion this injury was sufficient to cause death of Allah Ditta in the ordinary course of nature and was also dangerous to life.
4. The case of the defence as disclosed from the statement of Mohammad Yousaf before the learned trial Court under section 342, Cr. P. C. Is as under :- ' Allah Ditta had developed illicit relations with wife of Waryam and Waryam killed Allah Ditta. I was having enmity with Faqiria and he implicated me in this case and caused the release of Waryam by connivance with the police. Police had arrested Waryam and I and Waryam were associated in the investigation of the police from the date even the investigation started.
' To substantiate his version the appellant produced two D. Ws. In his defence. D. W. 1 Sardara, his father-in-law as well as father-in-law of the deceased and Mst. Sardaran widow of the deceased.
'Learned counsel for the appellant and learned counsel for the State are present and I have perused the record of this case with their assistance. Learned counsel for the petitioner has submitted that the ocular testimony against the appellant relied upon by trial Court was interested as coming from the mouth of two close relations i,e, mother and brother of the deceased, that Mst.
Sardaran D. W. 2 being wife of the deceased has belied the prosecution version in entirety and has stated that in fact deceased was killed by Waryam her uncle with whose wife he was carrying on illicit relations, that Sardara father-in-law of the deceased has also fully corroborated the statement of her daughter in this respect, that the evidence of recovery in this case is of unreliable kind because it suffers from material contradictions, that the case has been manoeuvered against the appellant at the instance of Faqiria's son-in-law of Mat. Bibi P. W. 6 (brother-in-law of the deceased), who has got the real culprits released from the police. On the other hand learned counsel for the State has submitted that there is no motive for the mother as well as the brother of the deceased to falsely implicate the appellant who was also belonging to their own brotherhood and was their relation. Learned counsel has attributed certain discrepancies which have crept in the evidence of these two P. Ws. As lapse of memory, exaggerations and due to over anxiety to make the case successful. According to the learned counsel the prosecution has proved its case beyond reasonable doubt and if at all Waryam was a real culprit, it would not be natural for the complainant party to shield him and instead get the appellant falsely implicated on serious charge of murder. I have given my anxious thought to all the contentions raised by both the learned counsel and have also assessed the entire evidence of prosecution case. While going through the evidence of Shah Mohammad brother of the deceased, I find that he has stated before the Court of enquiry that on the day of this incident a person had gone to call him from the village Dulyana. He has also admitted in cross-examination that "we had lived in village Dulyana for about 2 years." He has further conceded before the C. M. That Yousaf appellant had given number of blows to Allah Ditta on his head, temple and other parts of the body. The analysis of his evidence leads to a reasonable conclusion that this witness was not present at the time when the occurrence took place. If really the appellant had hit so many blows on the person of the deceased the same would have been found by the doctor who conducted his post-mortem examination. This version given by this witness gets direct he from the medical evidence and even otherwise by his own admission he excludes his presence in positive manner and that in the same manner makes the presence of his mother also doubtful. While going through the evidence of second eye-witness Mat. Bibi left in the field to support the case of prosecution, I find that she has not behaved better than her son Shah Mohammad. She has clearly stated before the C. M that the appellant gave a number of blows on the person of the deceased, a fact which is not made out by the medical examination.
She further prevaricated on the points of residence in village Dulyana and tried to suppress the facts that actually she had taken up the residence for the last two years as stated by her son. Her half-hearted confession that she stayed in village Dulyana for two nights speaks of a guilty conscience. She has stated before the trial Court that she nor her deceased son had taken their evening meal when this incident took place but she is belied by the post-mortem examination where in column No, 5, I find that stomach of Allah Ditta deceased was found with semi-digested food matters. With all these infirmities in the evidence of these two witnesses the element of delay assumes significance. If Shah Mohammad as alleged by him, was present at the time of occurrence, he would like a good son and a brother would take the matter into his own hands and lodge the first information report at the earliest with the police. He is conspicuous by his absence at the police station and whereas I find an old lady trudging her way during the dark hours of night in the company of chowkidar approaching the police to initiate the criminal proceedings against the appellant. The only conclusion which judicial mind can possibly draw is that this delay was due to the fact that murder was un-witnesse I by these two witnesses and something was afoot to conclude as to how this tragedy has taken place. I am in disagreement with learned trial Court when he titles these two witnesses as inmates of the house and disentitles Mst. Sardaran wife of the deceased from that equal status. In fact this would have been the converse. The mother may be with her son or not but a wife is a must unless and until it is brought on the record that relations between the spouses were estranged. In the instant case it will be unfair to minimize the value of evidence of Mst. Sardaran in favour of the defence. She appeared at the earliest before the C. M.
And supported the case of Yousaf appellant completely. She was declared hostile by the prosecution but I find her daring as well as a truthful witness as she offered herself as D. W. The father-in-law of the deceased and the petitioner was equally strong and effective. Both were married to her daughters. To say that he was committing perjury to save a husband for another daughter would be assuming too much in favour of prosecution, as human mind will always be revengeful and would not easily forgive a murderer who has ruined the life his daughter. Assuming for a moment that a father-in-law was taking a balanced view of the situation and was trying to extract minimum out of maximum but a wife would hardly forgive a person who has once for all made her widow and thrown her to wolves in the society. The law is well-settled that the benefit of doubt if it ever occurs will always be given to the accused and not to the prosecution. In view of the above analysis of this ocular testimony produced by the prosecution I have no hesitation to believe that both the witnesses did not see the occurrence as claimed by them.
6. Now diverting to the evidence of recovery of blood-stained hatchet stated to have been recovered at the instance of the appellant, it cannot b said that prosecution has proved beyond reasonable doubt that this bloodstained hatchet was recovered from the appellant. Both the witnesses have damaged the case of prosecution beyond repairs. Undoubtedly there is dictum of the Supreme Court that in such cases where recovery witnesses resile from their statements, the Investigating Officer can be considered as a reliable witness unless and until found to the contrary.
I would have certainly followed this pronouncement with utmost respect but this is not so in the present case. Even accepting for a moment that this hatchet was recovered at the instance of the appellant this piece of evidence by itself would not be sufficient to warrant the conviction of the appellant as I have in the earlier part of my judgment has excluded the presence of two eye- witnesses at the time when this occurrence took place.
7. The result is that I am of the considered opinion that prosecution has failed to prove its case against the appellant Mohammad Yousaf beyond reasonable doubt. Therefore, I accept his appeal and set aside his conviction and sentence. The appellant is acquitted and set at liberty.