' This judgment will dispose of Criminal Appeal No,433 of 1998 filed by Sajid Ullah and Muhammad Abdullah, appellants, who were convicted under section 302(b)/34, P.P.C. And sentenced to imprisonment for life with a fine of Rs,30,000 each and in default six months' R.I. By learned Additional Sessions Judge, Bhakkar vide judgment, dated 17-4-1998. Criminal Appeal No,459 of 1998 filed by Ghulam Sarwar appellant (complainant) against the acquittal of Inam Ullah and Saifullah and Criminal Revision No,215 of 1998 filed by complainant for enhancement of sentence of the convicts shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 8-45 p.m. On 21-9-1997 at a distance of 3 furlongs from Police Station Darya Khan and the matter was reported through complaint Exh.P.B. At 9-45 p.m. On the same night by Ghulam Sarwar while the formal F.I.R. Exh.P.B./1 was recorded by Sher Ali, Head Constable at 9-55 p.m.
3. Briefly stated the facts of the case are that Ghulam Farid (P.W.9) and Muhammad Iqbal, his brother were married to Mst. Asia and Mst. Salma Bibi respectively, the sisters of Muhammad Amin Ullah (deceased) and that his another sister Mst. Adeena was married to Inam Ullah (accused) about six months prior to the occurrence. Mst. Bilqees Bibi (P.W.10) mother-in-law of the complainant and Muhammad Amin Ullal, (deceased) her son about one month prior to the occurrence, started living in a rented house in Mohallah Bangia Abad. The marriage of Mst. Adeena with Inam Ullah (deceased) took place without the consent of Muhammad Amin Ullah (deceased) who could not refuse his mother Mst. Bilqees Bibi (P.W.10) having arranged the Rishta of Mst.
Adeena with Inam Ullah (deceased)., The relationship of Mst. Adeena with Inam Ullah (accused) after marriage became strained and Amin Ullah (deceased), therefore, decided to et Talaq of Mst.
Adeena, his sister from Inam Ullah (accused) to which the later did not agree. On the fateful day, that is, 21-9-1997, Muhammad Amin Ullah (deceased) invited his sisters at a lunch and at evening time Inam Ullah (accused) alongwith Saif Ullah (accused) his father arrived at the house of Muhammad Amin Ullah (deceased) to take Mst. Adeena back to their house. The complainant in the Meanwhile arrived at. The house of Muhammad Amin Ullah (deceased) to take his wife back to his house and in his presence an altercation took place between Muhammad Amin Ullah (deceased) Inam Ullah and Saif Uillah (accused) over the amount of Rs,160 with regard to the price of Atta over which Muhammad Amin (deceased) insulted Inam Ullah and Saif Ullah. The complainant after taking his wife went back whereas Inam Ullah and Saif Ullah also started for their house and while proceeding, both the said accused stated to Sajid Ullah and Muhammad Abdullah about their insult offered to them by Muhammad Amin Ullah (deceased) and thereafter he continued proceeding towards the house of Muhammad Iqbal. Muhammad Amin Ullah (deceased) alongwith his mother Mst. Bilqees were proceeding towards the house of Muhammad Iqbal and at that time he alongwith Muhammad Iqbal, his brother were standing in a lane outside the house of Muhammad Iqbal. At that time, the streetlight was on. When Muhammad Amin Ullah (deceased) alongwith Mst. Bilqees arrived near the house of Allah Nawaz, Sajid Ullah and Muhammad Abdullah accused while armed with Chhuris and Saif Ullah empty-handed raising Lalkara emerged there and attacked upon Muhammad Amin Ullah (deceased). Sajid Ullah gave a Chhuri blow which hit Muhammad Amin Ullah on his chest, then Muhammad Abdullah gave Chhuri blows one after the other which hit Muhammad Amin on his right Daula (arm) Muhammad Amin Ullah fell down. Sajid Ullah inflicted two more injuries with Chhuri to Muhammad Amin Ullah which landed on his left flank. In the meanwhile, Muhammad Amir also arrived there and the accused ran away with the weapons. The injured Muhammad Amin Ullah was taken to hospital but he succumbed to his injuries.
' After registration of the formal F.I.R., Sultan Mehmood, S.-I. (P.W.11) proceeded to Civil Hospital Darya Khan, inspected the dead body of Muhammad Amin Ullah, prepared injury statement Exh.P.A/2, inquest report Exh.P.A./3, then proceeded to the place of occurrence, took into possession blood-stained earth vide memo. Exh.P.E., got prepared the site plan Exh.P.D. And on 29-9-1997 arrested Sajid Ullah and Muhammad Abdullah; on 4-10-1997, Sajid Ullah led to the recovery of Chhuri P.3 which was secured vide memo. Exh.P.F.; on the same day Muhammad Abdullah got recovered Chhuri P.4 which was taken into possession vide memo. Exh.P.G.; then on 8-10-1997, Saif Ullah and Inam Ullah were arrested and on 9-10-1997 they were sent to judicial lock-up. After completion of the investigation, all the four accused were challaned to, face the trial.
' At the trial, prosecution in order to prove its case produced 11 witnesses in all; then the learned D.D.A. Tendered in evidence reports of the Chemical Examiner Exh.P.H., Exh.P.J. Reports of the Serologist Exh.P.H./1, Exh.P.I./1 and Exh.P.J./1 and closed the prosecution Case, thereafter statements of the accused under section 342, Cr.P.C. Were recorded in which they pleaded innocence. After conclusion of the trial, Inam Ullah and Saif Ullah were acquitted while the present appellants namely Sajid Ullah and Muhammad Abdullah were convicted and sentenced as stated above.
' Learned counsel for the appellants after having read the entire prosecution evidence submit that the occurrence having taken place in dark hours of the night, was an unwitnessed occurrence; both the eyewitnesses, namely Ghulam Sarwar and Bilqees Bibi (P.Ws.9 and 10) are closely related to the deceased; their conduct at the spot was unnatural and improbable; F.I.R. Was recorded outside the police station which casts doubt on the prosecution case; two accused namely, Inam Ullah and Saif Ullah have been acquitted on the same set of evidence; though the clothes of the P.Ws. Were blood-stained but they were not taken into possession; the deceased having his many enemies, he could have been murdered by anyone; there are material contradictions in the statements of the witnesses; motive has been disbelieved and once the motive has been disbelieved, then the eye-witness account should be considered very carefully; the doctor had signed only on the last page of the inquest report; in Column No,3 of the inquest report, no time of death has been given; F.I.R. Was got registered after due deliberation and consultation; recoveries have been planted as after the occurrence it is not believable that the accused would keep the Chhuris in their house and that no electric bulb has been installed in the street. Concluding their submissions, learned counsel for the appellants submit that the prosecution has miserably failed to prove its case against the appellants beyond any reasonable doubt.
' On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that it was a case of promptly lodged F.I.R.; there was no previous background of enmity between the parties, ocular account is corroborated by the medical evidence, despite lengthy cross-examination on the P.Ws., no dent could be created in the prosecution story; though the motive is not proved but rase has otherwise been proved by the prosecution through ocular account corroborated by the medical evidence and that Inam Ullah and Saif Ullah are also liable to be convicted and convicts deserve enhancement of sentence.
I have heard learned counsel for the parties and have gone through the record. Occurrence in this case had taken place at 8-45 p.m. While the matter was reported to the police on the same night at 9-45 p.m. It was a case of promptly lodged F.I.R.
2. Inam Ullah being accused of abetment was acquitted by the learned trial Court. Saif Ullah was father of Inam Ullah (acquitted co-accused) and also the father of Sajid Ullah and Muhammad Abdullah convicts. The role attributed to Saif Ullah was that of Lalkara. The tendency of involvement of innocent persons alongwith the actual culprits is at peek nowadays. It was stated by the eye- witnesses, namely, Ghulam Sarwar Khan (P.W.9) and Mst. Bilqees Bibi (P.W.10) that Muhammad Abdullah, convict-appellant caused two injuries on the arm of the deceased but there is only one injury which is muscle deep on front of right arm. He is also real brother of main accused Sajid Ullah who is attributed four injuries. The possibility of false involvement of Abdullah, thus cannot be ruled out. There are two eye-witnesses in this case, namely, P.Ws.9 and 10. The occurrence had taken place in front. Of the house of Ghulam Sarwar P.W.9. Mst. Bilqees, P.W.10 is mother-in-law of Ghulam Sarwar P.W.9, so her presence and the presence of Ghulam Sarwar at the time and place of occurrence is natural. Both the eyewitnesses had got no previous enmity whatsoever against the appellant. So far as electric bulb is concerned, that has been shown in the site plan and even in the F.I.R. Electric light has been mentioned. The parties were known to each other. It was not a case of mistaken identity. It is a case in which possibility of false implication of one appellant cannot be ruled out. Recoveries were also effected from both the convicts. As far as Abdullah convict is concerned, in my view, recovery has been planted upon him. Mere recovery is of no help to the prosecution case but it is only a corroborative of evidence. The Court has to see whether the ocular account is corroborated by the medical evidence or not. In the instant case, so far as Sajid Ullah, convict is concerned, ocular account is not corroborated by the medical evidence. It is not totally a case of false implication. In a case of such-like nature, minor discrepancies always occur. So far as the non-mention of date in Column No,3 of the inquest report is concerned, only time has been given. It can be due to negligence on the part of the Investigating Officer. All the facts have been given in brief facts of the inquest report. An objection was also raised by the learned defence counsel that in the injury statement, time is given as 8 a.m. And the post-mortem was conducted at 10 a.m. During the trial proceedings, it has come on record that the deceased was first taken to Civil Hospital Darya Khan but there was no doctor then he was sent to D.H.Q. Hospital, Bhakkar there the dead body was received at 8 a.m. The time between the post-mortem and injuries was given as 13 hours which tallies with the time of occurrence. The mere relationship of the witnesses with the deceased is of no significance when the ocular account is corroborated by the medical evidence.
' As a result of the above discussion I am of the considered view that the prosecution has proved its case against Sajid Ullah appellant beyond any shadow of doubt. Conviction and sentence recorded against him by the learned trial Court is maintained. To his extent, Criminal Appeal No,433 of 1998 is dismissed.
' As far as case of Muhammad Abdullah, convict is concerned he is attributed only a muscle deep injury on the person of the deceased which could have also been caused by Sajid Ullah and moreover two injuries were attributed to him in the F.I.R. But there is only one, so there is clear conflict between ocular account and the medical evidence. While extending the benefit of doubt in favour of Muhammad Abdullah, appeal to his extent is allowed and the conviction and sentence recorded against him by the learned trial Court is set aside. He is on bail and shall stand discharged from his bail bonds. Criminal Appeal No,459 of 1998 filed by the complainant against the acquittal and Criminal Revision No,215 of 1998 for enhancement of sentence of the convicts are dismissed.