' AGRA Au RYDER, 1.-The appellants wore convicted by the learned Additional Sessions Judge, Nawabshah, for offence under section 302/34, P. P. C. Gul Hassan was sentenced to death, subject to confirmation by this Court, for which there is a reference as enjoined by section 374, Cr. P. C.
Khuda Bakhsh was given life imprisonment, as against transportation foi life, which was the proper lesser penalty under the then law. They have come in appeal. The reference and the appeal will be disposed of by this common judgment.
2. The prosecution story, in a nutshell, is that one Dhani Bukhsh came to be killed inside Mohni Bazaar, which is the heart of the town at Nawabshah, on 4-2-1972 at about 3-30 p.m. The appellants came to be apprehended by three policemen at the spot, and were taken to the Police Station, where P. C. Tej Muhammad lodged the report. The clothes of the appellants are stated to have been blood-stained. The hatchet alleged to have been used by Gut Hassan, had also blood stains. The articles came to be secured and, later on, referred to the Chemical Examiner. Enquiries then were made, from the said Policemen, Fazlur Rehman and some other persons, and, after due hweetisatiou, the sass Game to be hallowed.
3. The appellants in their statements et the Court of Enquiry as well as at the trial denied the various allegations made against them.
4. The injuries on the person of Dhani Bakhsii, according to Dr. Muhammad Shari?, who had held the autopsy. Was as follows
(1) Incised wound 8'w3' cutting of the scalp, stall meninges, brain, over the left parieto occipital area.
(2)Incised wound 6' x 3 with cutting all the underlying structure ores the left parietal area up to the nect of the left side.
(3)Incised wound 7 x 3' cutting of all the underlying structures at the occipital area at the mid.
(4)Incised wound 15"x 3' cutting of all the underlying structures over the right parietal area.
According to him, death hal occurred as a result of shock and haemorrhage due to the receipt of the aforesaid injuries, which were individually and collectively sufficient, in the ordinary course of nature, to cause death.
5. The eye-witness account has bcen furnished by P. C. Taj Muhammad informant. P. C.
Muhammad Hassan, P. C. Allah Warayo and Fazlur Rehman. The three policemen witnesses of the trial gave the details of the injuries given by Gul Hassan to Dhani Bukhsh. They, however, mentioned that no overt acts were done by Khuda Bukhsh. All that he had done was that he had taken away the hatchet from Gul Hassan after the crowd had started collecting. However, they also talk of the so-called ext,ajudicial confession made by the appellant, Gul Hassan, which was to wipe off the disgrace from the family honour, as Dhani Bukhsh was in toe with his sister. However, this extra- judicial confession will have to be ruled out, as it is not spoken about by Fazlur Rehman, who was at the "Wardat" prior to the arrival of these policemen, and also because of the bar of section 25 of the Evidence Act. However, even these witnesses in their statements at the Court of Enquiry, duly brought on the record, had not presented themselves as witnesses of the incident at all. Taj Muhammad had stated at the Court of Enquiry that, while on patrol duly, P. C. Muhammad Hassan and P. C. Allah Warayo had gone to take tea along with some guests in a hotel, while he had proceeded to Mohni Bazaar, and while he was still at a distance of half a furlong from the Warder, he had seen a crowd of people collecting in front of a shop, and found a man lying on the ground.
Fazlur Rehman was among one of the persons stan hog in the crowd. The people from among the crowd had told him that the appellant, who were also standing there, had corn nitted the murder, and it wu thereafter that he had apprehended the appellants and marched them off to the Police Station. That is exactly what the other two policemen had to say. Fula Rehman, who was admittedly at the "Wardat" at the relevant moment, even before the arrival of the policemen, had stated that he did not know anything about the unfortunate happenings, an I he was only asked by the policemen, who had arrived later on to sit by the side of the dead body. He was not cross- examined by the learned Assistant Public Prosecutor. It is also an admitted position that there was a big crowd of people assembled at the spot, and there is no evidence forthcoming from among any of them, though the policemen were very much there to ascertain their names and the incident had taken place in the heart of the town. In the circumstances, there is no reliable evidence in support of the prosecution case.
6, It is further alleged that the appellant had been takea to the Police Station along with blood stained clothes, but Sodo khan, the Mashir, had clearly stated that, when he had been called at the Police Station, the appellants were already sitting with the S. H.
0. The hatchet, on the showing of the prosecution itself, was taken to the Police Station by the policemen themselves. So, otherwise too, nothing will turn on the same.
7. As regards the motive, there is no direct evidence. The motive has been furnished by the policemen, which will not be admissible, and even the S. H. O. Had stopped short by saying that he could verify the motive, only from papers of another crime. The papers have not been exhibited, and there is no testimony in support thereof. So, even the motive cannot be said to be available. Mr. S. Murtaza Hussain very frankly conceded that as the matter stood, be could not support the judgment. The stand is not open to any exception, as the judgment is totally insupportable.
8. I will, therefore, set aside the conviction and sentence of the appellants, and allow the appeal.
The reference, accordingly, is not accepted. A The appellants will be released forthwith unless wanted In connection with some other case.