' Farman All son of Fad Din, caste Rajput, aged 25 years, was convicted under section 302, P. P. C.
And sentenced to transportation for life on 19th January 1970, by Sardar Muhammad Abdul Ghafoor Khan Lodhi', then Sessions Judge, Multan, for committing the murder of his father on the night between 3rd and 4th of November 1968, while asleep in one of the rooms of his house in Jahanian.
2. The prosecution case in brief is that Farman All appellant, who was employed in the Army had come to his native place on two months' leave in September 1968, and negotiated his marriage with Mst. Bushra, the sister of Riaz of Village Garh, District Lyalipur, in exchange for the hands of his own sister Mst. Aare for the latter which was disapproved by his father as be was against watta marriages resulting in exchange of hot words between them on the night between 3rd and 4th November 1968, after which they went to sleep but Farman Ali appellant is said to have got up at mid-night and attacking his father with a hatchet killed him in his bed. On hearing the outcries of the deceased bis daughters Mst. Azra (P. W. 9), Rabia (P. W. 10) and his son Qurban All (P. W. 11) woke up and witnessed this occurrence through the holes in the wall as the door was closed from inside. They raised alarm and called out to him to open the door but the appellant saying that he had stood In the way of his marriage went out of the room through the window on the other side. Sher Afial Chowkidar who was attracted to the spot by their alarm tried to catch hold of him but he succeeded in giving him a slip and disappeared in the darkness of the night. Some other residents of she locality also arrived at the spot on coming to know about the occurrence, who went inside the room and found that Fazal Din (deceased) had succumbed to his injuries. They sent Mat. Azra P. W. Along with Sher Aka Chowkidar to the Police Station where the present case was registered on her statement vide Exh. P. H.
3. After the formal registration of the case Ch. Khurshid Ahmad, Sub-Inspector (P. W. 12) came to the spot and despatched the dead body to the mortuary after preparing the necessary injury statement Exh. P. J. And Inquest report Exh. P. C. Under the escort of Foot Constable Muhammad Ramzan (P. W. 2), where Dr. M. S. Faridi (P. W. 1) held autopsy on the dead body of Fezal Din and found the following injuries vide Exh. P. M.
"(1) An Incised wound 5'x 1' brain deep on the head vertex left aide. The bone underneath was completely cut.
(2) An incised wound 4'x 3/4' brain deep on the left temporal region. Bone underneath was completely cut.
(3) An incised wound 3}' a 11 bone deep on the left side of the neck upper part."
' In his opinion these injuries were sufficient to cause death Individually and collectively in the ordinary course of nature due to haemorrhage and injury to the brain.
' The Sub-Inspector then inspected then spot and securing blood-stained earth from there sealed it into a parcel vide Exh. P. B. He also took into his possession a parcel vide Exh. P. C. He also took into possession the blood-stained cot (P. 3) with the articles of bedding, etc. (P. 4 to P. 9) ride Exh. P. E.
Lamp (P. 10) which was lying lit in the room was also taken into possession vide Exh. P. F. He got prepared the plan Exh. P. A. With its duplicates Exhs. P. A. 4, 1 and P. A/2 and putting his notes in red ink signed it in token of its correctness. He deposited all the sealed parcels with Muhammad Sharif Moharrir A. S. I. (P. W. 3) fist safe custody in the malkhona, who in his turn sent two sealed parcels of earth and hatchet to the Chemical Examiner for analysis which were found stained with human blood vide report Exh. P. N. Of the Chemical Examiner and that of the Serologist Exh. P. O.
4. The Sub-Inspector could not trace the appellant in his village or in the surrounding villages in spite of his best efforts and obtaining his address of posting he went to Karachi for his arrest under a warrant issued by the Maga Magistrate. He had also taken along with him a letter written' by the Superintendent of Police, Mullen, in the name of the Commanding Officer of the Unit of the appellant, a copy of which is Exh. P. W. 12/A, but he was informed that the appellant had not reported in the Unit after the expiry of his leave and had been declared a deserter since 28th October 1968. Exh. P. W. 12/B is the report of the Commanding Officer in this respect. The appellant had however, arrived in his Unit on 18th November 1968, at 9-00 p.m. So his Commanding Officer informed the Superintendent of Police, Multan, about it ride his letter Exh. P. W. 12/C, a copy of which was endorsed by the Superintendent of Police, Multan to the Sub-Inspector, who deputed Sharaf Din, A. S. I. (P. W. 5) for his arrest. He was accordingly brought back to the Police Station Jahanian in custody, and on the completion of the investigation be was put on trial resulting in his conviction as above which has been assailed in this appeal on the ground of in, ufficient evidence to connect him with this offence and that this evidence was inconsistent with the medical evidence and bad remained uncorroborated from any independent source.
5. A perusal of the record revealed that the three eye-witnesses, namely, Mst. Azra (P. W. 9), Mst.
Rabia (P. W. 10) and Qurban Ali (P. W. 11) the only Inmates of the house had supported the above narration of the occurrence during the enquiry but bad resiled from their earlier statements at the trial which were duly transferred to this hie under the provisions of section 288 of the Criminal Procedure Code. There was no other evidence to corroborate their testimony. Even Sher Afaal Chowkidar, who bad rushed to the spot in response to the alarm raised from the house of the deceased and had actually seen Farman All appellant running out from there immediately after this occurrence had not entered the witness-box.
6. The detection of human blood on hatchet (P. 1) could also be of no avail to the prosecution as it was recovered from the spot just after arrival of the Sub-Inspector there and not from the possession, actual or constructive, of the appellant. Moreover the prosecution had even failed to bring on record any evidence about the alleged motive or about the preceding incident of exchange of hot words between the appellant and the deceased on account of his alleged proposal about his own marriage in exchange for the hands of his own sister.
7. According to the evidence of Dr. M. S. Faridi (P. W. 1), who had held autopsy on the dead body of Fazal Din (deceased) the limn; carotical arteries, juggler veins, muscles and nerves were cut including the 4th cervical vertebra as also the membrne and left side temporal lobe upto the base of the skull in middle fosse under the above injuries. He had also conceded that injuries Nos. 1 and 2 could cause immediate shock and unconsciousness and even immediate death could have resulted in this case -without permitting the victim to utter any word or sound which would belie the claim of the three-eye witnesses that they woke up on hearing the outcries of Fazal Din (deceased). It would not be out of place to mention here that none of the three eye-witnesses in their statements before the Enquiry Magistrate had made any mention of lamp lying the in that room which would show that there was no arrangement of light in that room at the time of this occurrence and further negate the above assertion of the witnesses as they could not have identified the assailant of the deceased in the darkness prevailing in that room. Anyhow they stood self-condemned as liar so their former statements transferred under section 288 of the Cr. P. C.
Could not be unreservedly accepted with implicit faith without corroboration from any independent source as was observed in Muhammad Ahmad v. The State (1).
8. The learned trial Judge had, however, relied on the alleged abscondence of the appellant from the village just after the occurrence for the corroboration of their statements which unfortunately were never put to the appellant in his examination under section 342 of the Criminal Procedure Code.
The only question put to him was in respect of his leave from 22-8-1968 to 28-10.1968 and his failure to report back for duty after the expiry of his leave till 18th November 1968, which he hat no doubt admitted to be correct adding that on the evening of 4th November 1968, he reached the house of the maternal uncle in District Dada and fell ill there. He had, however, been declared a deserter by the Army Officials since 28th October 1968, the last date of the expiry of his leave which fell seven days earlier than the present occurrence. Even the factum of his desertion from Army service was not put to him at all during his statement at the close of the prosecution case. He might, however, have disappeared from his village on that account as the Military Police might be searching for him for his arrest as a deserter from Army service which could also be a satisfactory explanation of his absence from the village and from his unit. As a result his abscondence, even if true, could not be relied upon as a piece of corroborative evidence in this case. I have already taken a similar view in Miana v. The State (2).
9. With the elimination of this factor from consideration the transferred statements of the hostile witnesses could not sustain the conviction of the appellant in this case as held in the above authority of the Supreme Court. I, therefore, accept this appeal and setting aside the conviction of the appellant direct that he shall be set at liberty forthwith if not required in any other case.