' SHEIKH ABDUR RAZZAQ, J.-- Ryas Masih was tried for the murder of Basharat Masih. By judgment, dated 21-41992, the learned Additional Sessions Judge, Lahore, convicted him under section 302, P.P.C., and sentenced him to death. He further ordered that compensation of Rs,20,000 shall he paid under section 544-A, Cr.P.C., to the legal heirs of the deceased and in default thereof he shall undergo further S.I. For six months.
2. Challenging his conviction and sentence the convicted accused has filed instant appeal while the learned Trial Court has made a reference under section 374, Cr.P.C., for confirmation of the death sentence. Both the matters are being disposed of by this judgment.
3. Briefly stated the prosecution case, as gleaned from FIR., dated 17-2-1991 Exh.P.A., lodged by Bagheecha Masih (P.W.I) is that 5/6 days ago Mst. Hafeezan daughter of Gaija Masih was abducted by' Waris Masih son of Nazar Masih on account of their illicit intimacy but no case was registered and the abductee was restored through the intervention of the respectable of the Brotheri. Ilyas Masih brother of Mst. Hafeezan Bibi suspected the complainant as well as his son Basharat Masih responsible for her abduction. He (complainant) tried to satisfy Ilyas Masih at Brorheri level but Gaija Masih and others were not satisfied regarding than and nourished a grudge against them. On 17-2-1991 at. 9-00 a.m., complainant along with his son Basharat Masih went for cutting fodder from the field of Muhammad Yousaf Jat. The complainant loaded the fodder on a she-donkey and went to Havaili of Muhammad Yousaf Jat for unloading the fodder. While he was returning to fetch more fodder and was at a distance of one acre from the field of Muhammad Yousaf Jat, ilyas Masih, who was also cutting fodder in a nearby field of Riaz Jat, went towards Basharat Masih and inflicted three Dater blows on the head, ear and cheek of Basharat Masih. He raised cries, upon which Arif Masih and Bashir Masih residents of the village were attracted and witnessed the incident. They tried to catch hold of Ilyas Masih but he escaped from the place.
Basharat Masih was seriously injured and succumbed to the injuries at the spot. He left Arif Masih and Bashir Masih to guard over the dead body and made for the police station to lodge report.
4. Muhammad Siddique S.I. P.W.5 was posted as S.I. At Police Station, Khana on 17-2-1991. On the statement of Bagheecha Masih, he recorded Exh.P.A. And then made for the place of occurrence.
He prepared statement of injuries Exh.P.D., inquest report Exh.P.I. And site-plan Exh.P.E. And recorded the statements of witnesses. On the same day, he collected blood-stained earth and made into a sealed parcel vide memo. Exh.P.B. He also dispatched the dead body on the same day. On 18-2- 1991, last worn clothes of the deceased P.2 and P.3 were produced before him which he collected vide memo. Exh.P.H. On 25-2-1991, he took Patwari Halqa to the place of occurrence and got site- plan Exh.P.F. Prepared from him. On 9-3-1991, he arrested the accused, who later on led to the recovery of blood-stained Datar P.1 which was secured and made into a sealed parcel vide memo.
Exh.P.C. He also prepared site-plan of the place of recovery Exh.P.G. After completing investigation, he submitted the challan.
5. A charge under section 302, P.P.C., was framed against the accused to which he pleaded not guilty and claimed trial.
6. In order to bring home guilt to the accused, prosecution examined Bagheecha Masih complainant (P.W.1), who reiterated his contention appearing in F.I.R. Exh.P.A. He further deposed that police arrived at the spot at 1-00 p.m. And collected blood-stained earth from there and made into a sealed parcel vide memo. Exh.P.B. Which he attested, Bashir Masih (P.W.2) is an eye witness of this occurrence who corroborated the version of Bagheecha Masih (P.W.1). Ghulam Rasool (P.W.3) is a witness of recovery of Datar but he has not supported the prosecution version and as such, was declared hostile. Inayat Ali (P.W.4) is another witness of recovery 'of Datar who has also not supported the prosecution version and consequently, was declared hostile. Muhammad Siddique S.I. (P.W.5) is the Investigating Officer, whose evidence has already been discussed above.
Riaz Hussain (P.W. 6) deposed that on 25-3-1991, one person came to him at Patwaar Khana and disclosed that occurrence had taken place in Khasra No,1075, Mauza Saraich and accordingly, he drafted the site-plan of the place of occurrence Exh.P.F. Which bears his signatures. Dr. Jalal-ud- Din Gohar (P.W.7) conducted the post-mortem examination on the dead body of Basharat Masih son of Bagheecha Masih on 18-2-199 I at 2-30 p.m. And found the following injuries on his person.
(1) An incised wound measuring 8 x 1.5 c.m., horizontal in direction, on the back of scalp, 11 c.m., behind left Ear and 8 c.m., behind right Ear and 5 c.m. Above the occiput.
(2) An abrasion measuring 9 x 4 c.m., on right side of the back extending up to midline, 6 c.m., above right iliac crest.
(3) An abrasion measuring 5 x 1 c.m., on right side of the face, 2 c.m., below and away from outer can thus, of right eye and 4 c.m., in front of right ear.
(4) A contusion measuring 3 x 2 c.m., on right side of the face extending up to right ear.
(5) An incised wound measuring 2 x 5 c.m., at the root of right Pinna at the hack.
(6) An abrasion 4 x 2 c.m., over the right mastoid.
(7) A lacerated wound measuring 0.5 x 0.5 c.m., scalp deep, 1 c.m., above and behind the right ear and 1 c.m., above and in front of injury No,6.
(8) An incised wound measuring 1 x 0.5 c.m., on the upper part margin of right Pinna.
' On exploration, he found that there was contusion of scalp over the frontal and right temporal regions. There was fracture of coronal suture extending up to right orbit on right side. There was fracture of base of skull, extending from anterior part of left middle cranial fossa to interior cranial fossa and middle cranial fossa on right side (horizontal limb) where it splits into an anterior limb which was continuous with the fracture of vault and a posterior limb which ran backward up to middle of posterior fossa on right side. There was laceration of meninges along the fracture lines.
There was extra dural, sub-dural and sub-arachnoid hemorrhage. About 50 ml. Of clotted blood was recovered from the cranial cavity. There was contusion of right cerebrum at outer aspect. The intra-cranial blood vessels were injured. In his opinion, all the injuries were ante mortem. Injuries Nos.1, 5 and 8 were caused by sharp-edged weapon and rest of the injuries were caused by blunt weapons. The death was due to injuries Nos.l, 5, 6 and 7 causing fracture of skull and injury to brain and intracranial blood vessels leading to intracranial and extra cranial hemorrhage and shock which was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was within a few minutes and death and post-mortem examination was 18 to 36 hours. He issued post-mortem examination report Exh.PJ and diagrams of injuries Exhs.PJ/1 and PJ/2 which bear his signatures. Muhammad Akram Constable (P.W.8) was given dead body on 17- 2-1991 which he removed to the dead house of Mayo Hospital Lahore. On 18-2-1991, after post- mortem examination, he was handed over last worn clothes of the deceased which he deposited with the Moharrir and handed over the dead body to the legal heirs of the deceased. Thereafter, the learned S.P.P. Gave up the remaining P.Ws. And closed the prosecution case.
7. When examined under section 342, Cr.P.C., on 21-3-1992, the accused denied the prosecution version and stated that he had been implicated in this case due to grudge of abduction of his sister and being afraid of the fact that abduction case may not be registered. He stated that he would examine himself under section 340(2), Cr.P.C., and would also produce evidence in his defence. Accordingly, he recorded his own statement under section 340(2), Cr.P.C., and examined Arif Masih D.W.1 and Inayat Masih D.W.2 on 24-3-1992. On 28-3-1992, the case was fixed for arguments when the learned D.D.A. Moved an application under section 540, Cr.P.C., for producing report of Serologist which was accordingly brought on record Exh.P.M. On the same day, the learned D.D.A. Again closed the prosecution evidence. On 28-3-1992, the accused was further examined under section 340(2), Cr.P.C., in respect of fresh evidence which had come on record in the form of report of Serologist Exh.P.M. However, he stated that he would not produce any further evidence in his defence or to make statement under section 340(2), Cr.P.C. On 31-3-1992, the case was fixed for pronouncement of judgment when the learned D.D.A. Moved an application under section 540, Cr.P.C., to summon Ghulam Abbas Head Constable and Muhammad Ismail constable P.W. Which application was accepted vide order, dated 7-4-1992. Thereafter, Muhammad Ismail (P.W.9) was examined on 11-4-1992. He stated that on 18-2-1991, post-mortem examination was conducted and, thereafter, last worn clothes of the deceased P.2 and P.3 were handed over to him which were stained with blood and were produced before the Investigating Officer which he secured vide memo. Exh.P.H. He further stated that on 26-2-1991, he was handed over a sealed parcel containing blood-stained earth for onwards transmission to the office of Chemical Examiner Lahore which he delivered there intact. On 21-3-1991, he was given another parcel containing blood-stained Datar which he also delivered intact in the office of Chemical Examiner Lahore.
Ghulam Abbas (P.W.10) deposed that on 17-2-1991, he was posted as Moharrir Head Constable at Police Station, Khana. On the same day, Muhammad Siddique S.I., handed over to him a sealed parcel containing blood-stained earth for keeping the same in Malkhana which he transmitted intact to the office of Chemical Examiner Lahore through Muhammad Ismail constable on 26-2- 1991. On 9-3-1991, Muhammad Siddique S.I., handed over another sealed parcel containing crime weapon Datar for keeping the same in Malkhana which is transmitted to the office of Chemical Examiner Lahore on 21-3-1991. On 14-4-1992, the learned D.D.A. Again closed the prosecution evidence. Thereafter, statement of accused under section 342, Cr.P.C., was again recorded, wherein he reiterated his previous statement and stated that he had already produced evidence and would not like to produce any further evidence in his defence.
8. After going through the evidence of the parties and hearing learned counsel for the prosecution as well as defence, the Trial Court convicted the appellant vide judgment under appeal.
9. We have heard learned counsel for the appellant as well as the State and have gone through the record carefully.
10. Contention of learned counsel for the appellant is that prosecution has failed to bring home guilt to the accused beyond shadow of doubt. While elaborating his contention, he has drawn the attention of this Court to discrepancies which appear in the ocular statement as well as medical evidence regarding the number of injuries inflicted upon the person of the deceased. He argued that as per contents of the F.I.R., Exh.P.A., only three injuries have been attributed to the accused which he inflicted on the person of the deceased. However, his oral assertion stands completely belied by the statement of P.W.7 Dr. Jalal-ud-Din Gohar, who found as many as 8 injuries on the person of the deceased. Again as per opinion of the Medical Officer, death has been caused as a result of injuries Nos.1, 5, 6 and 7 whereas injuries Nos.l, 5 and 8 have been caused by sharp-edged weapon. Thus, there is no explanation of the injuries Nos.6 and 7 available on deceased. This discrepancy in the number of injuries, it is asserted, clearly shows that occurrence has not been witnessed by the complainant. He further argued that recovery of alleged weapon of offence, i,e,, Datar P.1 has not been believed even by the Trial Court, which fact further makes the prosecution version highly doubtful so far as the infliction of injuries on the person of the deceased is concerned. He further argued that if the very recovery of Datar i,e,, alleged weapon of offence is not proved, then how it can be proved that injuries on the person of the deceased were the result of said weapon of offence. He further stated that even the very registration of case is not beyond doubt, as according to the statement of Bagheecha complainant (P.W.1), he lodged F.I.R., at 10-00 a.m. Whereas according to the statement of Muhammad Siddique S.I. (P.W.5), the same was recorded at 1-00 p.m. He further canvassed that as per statement of Bagheecha complainant (P.W.1), the deceased was removed by Arif Masih and Bashir Masih to police station whereas he stands confronted by the Investigating Officer who submits that when he visited the place of occurrence, the dead body was lying on the spot and he also recorded the statements of Arif Masih and Bashir Masih (P.W.2) on the spot. He submits that this contradiction regarding the very presence of dead body also makes the prosecution case doubtful. Regarding the motive part of the prosecution version, he submitted that actual cause of grievance was against Waris Masih who is alleged to have abducted Mst. Hafeezan but he was not taken to task whereas the deceased has been done to death on the simple suspicion that he (deceased) and the complainant were responsible for her abduction. He, thus, argued that the motive attributed is farfetched and does not inspire confidence. He further submitted that as per statement of P.W.1, parties had compromised over the abduction of Mst. Hafeezan Bibi, so there was no question to commit the present occurrence and this fact further lends support to the fact that the case is a concocted one.
' He has also referred to the contradictions in the statements of P.W.1 and P.W.2 which make their presence on the spot highly doubtful. To elaborate his contention, he submitted that it has been admitted by P.W.1 that 2/3 other persons who were cutting fodder, had also witnessed the occurrence and so also other residents of the village. On this, he stands contradicted by P.W.2 Bashir Masih who admits that besides him and Arif Masih, none else was there who had witnessed the occurrence. He, thus, submits that the impugned judgment has not been passed in accordance with law and the appeal may be accepted.
11. Conversely, the impugned judgment has been supported by learned counsel for the State.
12. A perusal of the F.I.R. Exh.P.A. Clearly shows that a specific role of causing three injuries with Datar has been assigned to the appellant. This stand of the complainant Bagheecha (P.W.1) stands falsified from the medical evidence which has come on record through the statement of Dr. Jalal- ud-Din Gohar. According to the medical evidence, the deceased has received as many as 8 injuries on his person, out of which injuries Nos.1, 5, 6 and 7 had been held to be responsible for causing death of the deceased. There is no explanation forthcoming on the part of the prosecution about the injuries except 1, 5 and 8 which have been caused by a sharp-edged weapon. Again it is admitted by the Medical Officer that all the injuries were independent. This admission on the part of the Medical Officer clearly shows that besides injuries Nos.1, 5 and 8, other injuries were also caused by some other weapon. The Medical Officer ha's also deposed that he could not say if two weapons had been used for causing those injuries and his this reply clearly shows and proves that injuries on the person of the deceased had not been caused by one weapon alone as asserted by the prosecution. Again the stand of the prosecution is that Datar P.1 had been used for inflicting injuries on the person of the deceased. Prosecution has examined Ghulam Rasool (P.W.3) and Inayat Ali (P.W.4) to prove recovery of Datar P.1 at the instance of the accused. Both these P.Ws. Have not supported the prosecution version and consequently, have been declared hostile. The recovery of Datar P.1 also becomes highly doubtful when a reference is made to the statement of P.W.2 Bashir Masih. It is admitted by Bashir Masih (P.W.2) that accused/appellant had thrown the Datar in the Barseem crop when he ran from the spot. However, the recovery of Datar P.1 is alleged to have been made from the house of the accused, as is evident from memo. Exh.P.C. Which has been brought on record through the statement of P.W.5 Muhammad Siddique S.I./I.O. It is very strange that Datar P.1 is alleged to have been thrown in the Barseem crop but its recovery has been made from the house of the accused. This contradiction in the prosecution version regarding factum of recovery of Datar P.1 further gives a fatal blow to the ocular evidence which is also full of contradictions referred above. Again the prosecution has failed to prove the alleged motive as the same existed in respect of Waris Masih who abducted Mst. Hafeezan Bibi and the only part attributed to the deceased as well as the complainant is that the accused suspected the complainant and his son i,e,, deceased to be responsible for the said abduction. Thus, even the motive attributed in the prosecution case is farfetched one and does not inspire confidence and affords a cause of action for committing this murder.
13. From the facts stated above, we are convinced that prosecution has failed to bring home guilt to the accused beyond shadow of doubt. Accordingly, we accept the appeal, set aside the conviction and sentence and order him to be released forthwith if not required in any other case.
14. The murder reference is answered in negative.