BASHIRUDDIN AHMAD J--- Five persons namely SaeeD (30) Gulla (32)'Muhammad Ali (30), Yara
(35) and Muhammad (35) were tried' on charges under sections 148; 302 149 and 323/149 P.P.C. By the Sessions Judge Sargodha who acquitted Muhammad Ali, Yara and Muhammad of all thecharges. With their acquittal the charge under section 148,P.P.C. Against Save and Gulls also fell through, SaeeD Gullah were held guilty under, section 302 read with section 34, P.P.C.For the, murder of Ahman. SaeeD was sentenced to transporation for life.They were further held guilty for the offences under section 323/34 P.P.C. In respect of simple injuries caused with blunt weapons to Aslam and Yara P.W. And were sentenced to undergo R.I. For a period of six months cach. SaeeD was also tried under section 13 of the West Pakistan Arms Ordinance XX of 1965 for possession of a spear without, a licence and, convicted and sentenced to undergo R. I. For a period of 'six months The sentence of imprisonment in the case of SaeeD were ordered to take effect in the event of the death sentence being not confirmed by' this Court, the sentences of Gulla were ordered to run concurrently.
2. The convicted to persons appealed questioning the correctness of their conviction and sentences. The case is also before us under section 374"Cr'P.C. In so far as SaeeD is concerned, for confirmation of the death sentence. This judgment will dispose of the appeal as well as the reference.
3. Briefly; the prosecution story is that on the fateful day, a little, after sun-rise, the deceased alongwith Yara aid Aslam were `present' In their field in the area of village Mari when the applicants and their; co-accused assaulted Ahman. SaeeD and Yara were armed with spears. Muhammad Ali carried a hatchet, while Gulla 'and Muhammad had sticks. SaeeD and Yara gave spear blows to Ahman' who fell down. Muhammad Ali gave him hatchet, blows after he had, fallen. Gulla and Muhammad caused injuries with lathis to deceased Yara and Aslant ran to save Ahman and in there attempt to do, so were injured by ''Gulla and Muhammad Shera and Ditta who were present inthe neighbouring field reached the spot on hearing the larkana and had also seen the occurrence The assailants fled.
The motive for the assault ''on the' deceased was enmity. On the day of Haj Ahman had abused SaeeD as his cattle had trespassed and caused damage to the crop of Ahman.
Shera and others removed Ahman to the hospital at Sargodha. After obtaining the medico-legal certificate of Ahman' and two others, who also sustained injuries in the same transaction' shera a brother of the' deceased, proceeded to Saddar Police Station, where he lodged the report, Exh P.A.
At 10-45 a. m., the same, dayAfter scribing the report, S. 1. Sikandar Khan (P., W: 1,2) proceeded to the, Civil Hospital and found Ahman lying unconscious. Hey then proceeded to the spot which is at a distance of 15 miles from the Police Station and reached there at -4-00 p.m. He took into possession blood-stained earth from the spot and sealed it into a parcel. Ahman succumbed to the injuries on the succeeding night in the hospital. The S.I. Prepared the injury-sheet and she inquest report and lien despatched the dead body to the mortuary for post-mortem examination.
SaeeD and Gulla were arrested on, April 3,1967, On the same day, SaeeD appellant, while in custody, led, to the recovery of spear, Exh.P.6, from his residential kotha. It was taken into possession and sealed into a parcel by the police.On the ' same, day, Gulla appellant; while in custody, led to the recovery of sort, Exh. P.4. Which was taken into possession by the police. It may here be stated' that the soti produced by Gulla appellant was not stained with blood. The recovery of spear Exh. V. 6., at the instance of SaeeD appellant from his residential kotha in no way advanced the prosecution case because the origin of, blood on the spear could not be determined asit had disintegrated 4.
Dr Rashid Ahmad Rana (P.W.1) examined Ahman (deceased) on March 31, 1967, at 9-00 a. m., and found the following on his person: - (1)Oblique incised wound 2 -- x -- bone deep on the right parietal emience.
(2)Contused wound 1 -- x -- on the left parietal eminence.
(3) Transverse incised wound the 2 -- x -- bone deep on the left side of the back of the head.
(4) Punctured incised wound -- x -- bone deep on the left side of the neck behind the ear.
(5) Incised wound -- x -- x bone deep on the left elbow.
(6) Swelling 4 x4 on the back of left hand
(7) contusion mark 1 -- x -- with swelling of the back of the right fore-arm with fracture of both the bones.
(8) Punctrued incised wound -- x -- x -- on the front of right leg.
(9) Punctrued incised wound -- x -- on the front of the right leg 1 below injury No.8
(10) Punctrued incised wound -- x -- bone deep in the middle of left shin.
(11) Punctrued incised wound -- x -- bone deep on the left side of left leg in the lower part
(12) Punctrued wound -- x -- on the medial side of left leg in the lower part.
(13) Punctrued incised wound -- x -- bone deep on the lowest part of the medial side of left leg.
(14) Contusion mart 8 x 1 on the left chest obliquely situated.
(15) Left leg was fractured under wound Nos. 10 and 12.
On April 1, 1967, at 10-30 a.m., the doctor performed --the post-mortem examination on the dead body of Ahman and noticed almost the same injuries its lie had found at the time of his examination, when the deceased was alive. The doctor opined that the death was caused by multiple injuries lead--ing to shock and excessive haemorrhage from the fractures of left leg alongwith the compression of brain by cerebral haemorrhage resulting from fracture of the skull and concussion of the brain.
5. The doctor examined and found two simple injuries caused by blunt weapon. The (P.W. 9)and found four simple weapon, on his person. On doctor found simple injuries on his cawed by blunt weapon.
6. The appellants pleaded not denied the prosecution allegations against them. Ed the ease to enmity and declined to produce any their defence.
7. At the trial Yara (P. W. 9), Aslam (P. W. 10) and Shera (P. W. 11) furnished direct evidence. Yara is the nephew of Ahman deceased. On the death of the father of Yara, which took place 30 years ago, his mother remarried Ahman deceased, and Yara was brought up by him. Yara, Ahman and his son Aslarn used to cultivate half a square of land belonging to Ali Muhammad Minhas. The other half was being cultivated by Sher Muhammad, a brother of the deceased. The ocular evidence is clearly of interested character. According to Yara and Aslam, they alongwith the deceased were draining water out of their wheat field which had collected there due to rain. The deceased had gone to stop the flow of water in the khai. He was on his way back to the field and was still a bigah away when the appellants and their co-accused, who were variously armed, attacked Ahman after emerging from a bush. The deceased tried to escape, but he was overtaken when he had run to a distance of about a killa. SaeeD and Yara speared the deceased who fell down. Muhammad Ali, who was armed with a hatchet and Gulla and Muhammad, who carried sticks, also caused him injuries white he lay prone. Yara and Aslam tried to save Ahman, but they were pushed away by Gulla and Muha:mmad accused with the dangs. In the meantime, Shera and Ditto (not produced) who were present in the adjoining field, about 2 killas away,.Came up and the assailants ran away on seeing them. Shera corroborated the story narrated by Yara and Aslam in their statements at the trial. It is curious that Shera clearly stated in the first information report that Ahman along with his son Astam and Yara, his nephew, were irrigating his land when the appellants and their co-- arcused suddenly attacked Ahman. It appears that not only Shera but also Yara and Aslarn were constrained to change the story completely because the turn for water of the deceased started at 2.30 and lasted till 3-45 a.m. The turn of water for the land of the deceased had been permanently fixed. The prosecution realizing the difficulty in their way decided to introduce the story that it rained a day before the occurrence and water had collected in the field of the deceased, which is situate at a low level. Shera, the maker of the F. I. R. Did not mention therein that the deceased alongwith Yara and Aslam P. Ws. Was draining water from their crops a little after sun-rise. To the contrary, the witness, stated in Exh. P. A. That these persons were present for the ,s' purposes of watering their fields. It looks that the maker of the F. I. R. Changed his position in order to show that the occurrence took place at day time. Shera stated, at the trial, that there had been rain a day before the occurrence and water had collected in the fields. He did not say so inthe first information report. In his anxiety to prove that the occurrence took place after sun-rise, Shera had stated be-- fore the committing Magistrate that the occurrence took place after a pehr after sun- rise. 'Shera did not state either in Exh. P. A. Or in his statement before the committing Magistrate that the occurrence took place when the deceased was returning after stopping the flow of water in the minor. Shera denied that" he stated in his report to the police that the deceased and his sons were watering the field when the accused attacked Ahman deceased. He was confronted with his statement to that effect in his report to the police. Shera said in his statement, at the trial,, that the deceased received 15 or 16 injuries at the hands of his assailants. He stated to the police that the 'deceased had received 6 to 8 injuries. The witness did not ascribe any injury to Muhammad accused in the first information report. Shera stated to the com--mitting Magistrate that SaeeD and Yara accused gave a blow each before the deceased fell down. The evidence of Yara and, Aslarn also suffers from similar infirmities. Yara and Aslam P. Ws: resided at the same dera which is at a distance of l-- miles from the spot. Yara stated that they had left their dera on that day at nimazwela before sun-rise. To the contrary, he stated to the committing Magistrate that they left the dera after sun-rise. It is in the statement of Yara that Shera P. W. And Ditta (not produced) were present towards the east at a distance of two killas when the occurrence took place. Shera was also draining water from his field and Ditta assisted him. Ditta has his land at a distance of two squares from the place of occurrence. Yara did not give the exact number of y injuries sustained by Ahman deceased in his statement before the committing Magistrate. Continuing, the witness said that he was given 3 or 4 blows by Gulla and Muhammad. Aslarn admitted that there was enmity between the accused and his. Father Ahman for the past nine or ten months on -account of the nikal of the common irrigation channel. Aslarn did not say' so in his statement before the committing Magistrate. Neither Yara nor Aslarn stated be-- fore the committing Magistrate that they fell on Ahman in order to save him from further harm and that they were given thrusts with lathis. The injuries sustained by Yara and Aslam were all on the face and we doubt if the same could be the result of lathi thrusts. We, therefore, do not place implicit reliance on the evidence of Yara and Aslam.
8. We find that the prosecution case was disbelieved by the learned trial Judge in so far as Muhammad Ali, Yara and Muhammad accused were concerned. Muhammad All produced evidence in his defence that he was at Sialkot at the relevant time. The trial Judge, after examining the defence evidence, held that the presence of Muhammad Ali accused at the time of occurrence was doubtful. As regards Yara and Muhammad accused, he summed up his conclusion in para. 12 of the judgment which runs: - "Muhammad accused had not been attributed airy injury, to the deceased. If he was there armed with Bang and had chosen not to give any injury to the deceased, what purpose he had - to be there. He is alleged to have pushed the P. Ws. Away with dang which is a minor role and may have been included to stretch the prosecution story in order to involve Muhammad who happens to be the brother-in---law of SaeeD accused and also his cousin and to whom a larger role has been assigned. The participation of Muhammad accused is, therefore, also doubtful. It appears that the injuries to Aslam and Yara P. Ws. Also may have been caused by the other accused and not by Muhammad Yara accused is alleged to have used barchha but the barchha recovered from him has not been found to be stained with blood. This will be a queer circumstance. It is possible that blood may have been washed away by him, but, on the other hand, it is also likely that Yara has been included on account of his brother Gulla who has been assigned a larger role. I therefore, also have reservations regarding Yara. The prosecution case against him is at best doubtful."
9. Ch. Nazeer Ahmad Khan, learned counsel for the appellants, contended that the conviction was improper inasmuch as the evidence which had been disbelieved with regard to three others, had been erroneously relied on by the trial Judge to convict the appellants without any corroboration of the evidence from an- independent source. The learned trial Judge took into consideration the recovery of blood-stained spear from SaeeD appellant. He considered the ocular evidence sufficient, by itself, to prove the case against SaeeD. We do not agree with the reasoning given by the learned trial Judge in. Coming to the conclusion that the ocular evidence against SaeeD was sufficiently strong. He had disbelieved the same witnesses with regard to Muhammad Ali, Yara and Muhammad accused. In the circumstances, he should have looked for independent corroboration of the ocular evidence. We have already observed that the blood on the spear, alleged to have been recovered at the instance of SaeeD had disintegrated and the Serologist was not in a position to determine its origin. Thus the mere recovery of spear, Exh.-P.6, at the instance of SaeeD, could not be considered as corroboration of the evidence that had been disbelieved as regard the other three accused. There was hardly any corroboration forthcoming in so far as Gulla was concerned.
The stick, which is alleged to have been recovered at the instance of Gulla, had no blood on it.
10. The deceased was a Badmash No. 10. He had once been challaned under section 110 of the Code of Criminal Procedure. It is on the record that Ahman was a profes--sional thief. It was so stated by Shera P. W. Before the pommitting Magistrate that the d9ceased had been challaned with Yara P.
W. For forcible removal of a mare and a watch belonging to one Gama. Shera, who admitted this fact, maintained in his statement that the deceased had falsely been accused by the real thieves.
That case was pending the time of the present occurrence. We further find from the evidence of Shera that the son of aforesaid Gama had committed the theft of a cow and had accused the deceased of stealing their mare. The deceased had lodged a report for the theft of buffalo, against Dosa and Sardara and had appeared as a witness against these two persons in the same case. He also appeared as a prosecution witness against the said accused under the Arms Act. The deceased had also enmity with Malik Fat-eh Khan Noon. This was admitted by Shera, the brother of the deceased, in his statement before the committing Magistrate. The Manager of Malik Fateh Khan Noon had lodged a report against the deceased for the theft of bhoosa. It is also on the record that one Muhammad Husain of District Mianwali was put to death it village Mari. He was the Manager of one Gul Muhammad. Mahtathela and Ali, cousins of the deceased, were challaned in that case.
Ahman deceased and Yara P. W. Were accused for causing injuries to one Ditta. There was also enmity bet--ween the deceased and Lal Pawali as the latter had abducted the daughter of Shera, brother of the deceased. In view of the admitted enmity between a large number of persons and Ahman deceased, who was a bad character, the possibility of his having been done to death by person or persons other than ,the accused during the night could not be ruled out in this case.
11. On a careful consideration of the circumstances and the evidence, we feel that the case against the appellants is not free from reasonable doubt. We, therefore, allow the appeal, set aside the convictions and sentences passed on the appellants under sections 302/34 and 323/34, P. P. C.
And order them to be acquitted. Death sentence passed on SaeeD is not confirmed.
12. Taking up the case against SaeeD appellant under section 173 of the West Pakistan Arms Ordinance XX of 1965, we find that the recovery of spear, Exh P. 6, at his instance from his house is amply proved on the record from the testimony of Abdur Raheem (P. W. 7) and S. 1. Sikandar Khan (P. W. 12). Abdur Raheem admitted that Haji Muhammad Yar is married to a sister of Ali Muhammad and a sister of Haji Muhammad Yar is married to the said Ali Muhammad. Ahman deceased, Yara and Aslam P. Ws. Are the tenants of said Ali Muhammad. Shera P. W. Is also a tenant of said Haji Muhammad Yar. It was put to Abdur Raheem that Haji Muhammad Yar was bearing expenses of the prosecution of this case, but he repelled the suggestion. Abdur Raheem stated before the committing Magistrate that he was not aware if his master was bearing the expenses. There is nothing else in the statement of this witness to prove that Haji Muhammad Yar was interested in the prosecution of the accused. Abdur Raheem made a categorical. Statement that there was no enmity between his employer Haji -Muhammad Yar and the accused and that he did not depose against the accused on account of enmity of Haji Muhammad Yar with them.
The recovery of spear, Exh. P. 6, was effected from a kotha at dera Maryana, at the instance of SaeeD appellant. The investigating officer deposed that SaeeD appellant led to the recovery of spear, Exh. P. 6, which was concealed under the beddings in his kotha. Since the recovery is supported by one witness from the public, we are inclined to rely on it. Ch. Nazeer Ahmad Khan, learned counsel for the appellants, did not contest the recovery. He submitted that the sentence already undergone by SaeeD in jail was sufficient to meet the ends of justice. We do not agree. We find that SaeeD appellant was rightly convicted under section 13 of the West Pakistan Arms Ordinance, 1965, for possession of spear, Exh. P. 6,- without a licence: The sentence of six months awarded to him for this offence is by no means excessive and is, therefore, upheld. The appeal of SaeeD fails so far his conviction and sentence under the Arms Ordinance is concerned.