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Criminal Appeal No. 12 and Murder Reference No. 45 of 1969, decided on 14th December 1970.
itness‑Credibility‑6Vitness explaining injury by attributing a blow with danda‑Fact that no danda was found at spot‑Not sufficient, by itself, to hold that witness lied.
S. 32‑Dying declaration shown to include falsities‑Held, cannot be relied upon.
Tawaib Khan and another v. The State P L D 1970 S C 13 rel.
S. 302‑Murder‑Prosecution story not above board‑No satisfactory explanation for injuries on person of accused‑Prevaricating. statements by eye‑witnesses suggesting suppression of true facts regarding infliction of injuries on accused‑Motive., as alleged by prosecution, not proved‑Colossal delay in sending hatchet and other articles for chemical examination remaining unexplained and giving rise to grave suspicion to genuineness of investigation‑Accused given benefit of doubt arid acquitted.
Syed Mahmud Shah Mashhadi for Appellants.
Hameed Aslam Qureshi for A.‑G. for the State.
Iftikharul Haq Khan for A.‑G. for the State (in Cr. M. No. 7820 of 1970).
Dates of hearing : 26th February and 14th December 1970.
‑Ghaus Muhammad (27) and his brother Shah Muhammad (23) were tried for the murder of Shah Rasul on 18‑6‑1967, in furtherance of their common intention, by the Sessions Judge, Bahawalpur, who convicted and sentenced Ghaus Muhammad to death and Shah Muhammad to transporta tion for life, under section 302134, P. P. C.
2. Ghaus Muhammad appealed through jail.
3. The prosecution story. briefly narrated, is that on the eventful day, at 8 a.m., Ghulam Nabi, his brother Shah Rasul and Abdur Rehman were going to fetch bhoosa when they were way laid and attacked by the appellant and his co‑accused. Maham Ali, who is a fugitive from justice clasped the deceased from behind. The appellant gave a hatchet blow to the deceased on his head. Shah Muhammad advanced towards Ghulam Nabi, who threw a brick at him. Kalu and Qutab Din also witnessed the occurrence. The ‑assailants left on the arrival, of the witnesses at the spot. Ghulam Nabi proceeded to Khairpur Police Station, at a distance of 12 miles from the spot and lodged the report Exh. P. A. at 12‑30 a.m., the same day.
The motive, as disclosed in the report, Exh. P. A. was that Ghulam Nabi had given evidence in a criminal case in which the appellant also figured as one of the accused.
4. After half an hour of the scribing of the report by S. I. Sajid Mahmood Khan (P. W. 12), Shah Rasul was brought to the thana in an injured condition. The S. H. O. recorded the state ment Exh. P. V. of Shah Rasul, prepared the injury‑sheet and then sent him to the hospital at Qaimpur for medical examination. Shah Muhammad accused also went to the thana simultaneously with the complainant‑party. He had injuries on his person. The S. I. prepared the injury‑sheet and got him medically examined. Thereafter, the S. I. went to the place of occurrence, took into possession blood‑stained earth and sealed it into a parcel. One Shera produced the appellant before the Investigat ing Officer. The appellant produced blood‑stained hatchet, Exh. P. 1, which was taken into possession and sealed into a parcel by the police.
Shah Rasul died in the B. V. Hospital, Bahawalpur on 19‑6‑1967. A. S. I. Muhammad Sharif prepared the inquest- report and then despatched the dead body to the mortuary for post‑mortem examination. The appellant was arrested on June 21, 1967.
5. On June 18, 1967, at 1C‑45 p.m. Capt. Dr. Mubarik Ahmad (P. W. 2) examined Shah Rasul, during his lifetime, and found a longitudinal incised wound at the top of head slightly towards right side; 6" long, half an inch wide in the centre and skull deep. The injury, in the opinion of the doctor, was caused by a sharp‑edged weapon.
6. The deceased died in the hospital on 19‑6‑1967 and the next day at 11‑15 a.m., Capt. Dr. Kafayat Ullah Salmani (P. W. 3) performed post‑mortem examination on the dead body, who found the following injury :‑
An incised wound 6" long (after removing stitches) " wide on the top of the head in the middle but little to the right of middle line. Position was antero‑posteriorly. The bone underneath was cut through the posterior 4/ . The brain matter was coming out of the wound. There was blood clot also under the scalp,
In the opinion of the doctor, the cause of death was severe lacera tion of the brain and severe haemorrhage both leading to shock and death due to injury No. 1, which was sufficient to cause death in the ordinary course of nature.
5. On 18-6‑1967 at 10‑45 p.m., Capt. Dr. Mubarik Ahmad (P. W. 2) also examined Shah Muhammad accused and found the following injuries on his person :‑
(1) One lacerated wound at the outer side of left eye‑brow 1" x 1/8" bone deep.
(2) One oblique lacerated wound at the left cheek one inch below the left lower eye‑lid. Size 1"x 1/6" bone deep.
(3) One lacerated wound 4"above the left eye‑brow, size 1" x 1/8' x scalp deep.
(4) One contused wound 1/8" in diameter at the back of head, 3" from left ear pinna.
All the injuries were simple in nature.
6. The defence was that Shah Muhammad, who bad illicit relations with Mst. Ilahi, wife of Idrees, was attacked by Idrees, Bhulla, Qamar Din and Shah Rasul deceased. The deceased gave a stick blow to Shah Muhammad on his head. The, latter snatched the hatchet,from Bhulla and defended himself against the attack.
7. No evidence was produced in defence.
8. At the trial, Ghulam Nabi (P. W. 8), Abdur Rehman (P. W. 9), Kalu (P. W. 10) and Qutab Din (P. W. 11) furnished direct evidence. In addition to it, there is also the statement Exh. P. V. of the deceased recorded by the police which came to be treated as dying declaration after the death of Shah Rasul.
9: Taking up the' ocular evidence, we find that Ghulam Nabi is a brother of the deceased person. Abdur Rehman is his paternal cousin. He accompanied Ghulam Nabi and Shah Rasul, to fetch bhoosa when the latter was assaulted by the appellant and his companions. Kalu and Qutab Din, who also corroborated the prosecution story, reached the spot on hearing the alarm raised by Abdur Rahman. The house of Kalu is near the place of occurrence, while that of Qutab Din is in the middle of the village abadl. The trial Judge doubted if Qutab Din saw the occurrence. He accepted the presence of Qlhulam Nabi, Abdur Rehman and Kalu at the time of the occurrence. He considered Kalu as an independent witness and found corroboration of his evidence from the statement by the deceased, the medical evidence and host of other circumstances to convict the appellant.
10. Learned counsel for the appellant strenuously argued that the conviction was improper inasmuch as it rests on evidence of witnesses, who are not trustworthy. We find that the appel lant was credited with a hatchet and his co‑accused Shah Muhammad with a lathi. The absconder is alleged to have caught hold of the deceased by the waist when Ghaus Muhammad inflicted a blow with the hatchet on the head of the deceased. Ghulam Nabi did not say in his report, Exh. P. A. that the absconder clasped the deceased from behind. Shah Muhammad is alleged to have simply advanced towards Ghulam Nabi, who threw a brick‑bat at him. There is no mention in the report, Exh. P. A. by Ghulam Nabi that Shah Muhammad advanced towards him. Ghulam Nabi stated, at the trial, that after he had thrown a brick‑bat at Shah Muhammad, he went towards the deceased. Ghulam Nabi did not say so in his statement before the committing Magistrate. He did not even say so in his report to the police. He simply mentioned that he threw a brick‑bat at Shah Muhammad. However, in his statement at r the trial, Ghulam Nabi realised that Shah Muhammad had an injury on the back of the head as well and he introduced in his statement that he threw another brick‑bat at Shah Muhammad when the latter turned his attention towards the deceased and it struck him on the back of his head. Since the medical witness said in his statement that injuries Nos. 1 and 3 to Shah Muhammad, could be caused by different blows, Ghulam Nabi deposed at the trial that he threw brick‑bat at Shah Muhammad. Abdur Rahman, Kalu and Qutab Din also made similar statements on these points, which can conveniently be described as improvements, but it cannot reasonably be held that the improvements so selected on their previous statements made their evidence unaccept able. The witness also stated that when Shah Rasul fell down after receiving the hatchet blows, he picked up a danda 2 feet long, lying on the spot, and threw it with force at Shah Muhammad hitting him on the head. None of the witnesses so stated before the police or even at the time of his statement before the committing Magistrate. The injury on the back of the head of Shah Muhammad was trivial. The witnesses appeared to have drawn on their imagination to explain the injury by attributing a blow with the danda by the deceased. The fact that no such danda, as alleged by the prosecution witnesses, was found at the spot is not sufficient, by itself, to hold that the witnesses lied.
11. Ghulam Nabi and Abdur Rehman are related, though they tried to suppress the relationship. Ghulam Nabi clearly stated in his report to the police that Abdur Rahman is his paternal cousin. He stated, at the trial, that Abdur Rahman is in no way related to him as he is a refugee from Hissar District, while Ghulam Nabi hailed from Patiala State. Such attempts on the part of witnesses, we encounter daily, but do not discard the evidence on such flimsy grounds. Abdur Rehman stayed with the deceased till his death. He brought the dead body of Shah Rasul to the village after his death in B. V. Hospital, Bahawalpur. Qutab Din left the hospital on the morning of June 19, 1969. It proved the interest of Qutab Din in the deceased person and although he tried to suppress his relationship with Shah Rasul, but we are convinced that he is interested. However, there is no enmity between him and the appellant. Kalu ascribed the injuries of Shah Muhammad accused to Ghulam Nabi complainant as. a result of throwing of brick‑bats. Kalu made a departure from his police statement when he said that Shah Rasul picked up a small stick from the ground and threw it at Shah Muhammad hitting him on the head. We have already held this to be an improvement and in our view, it in no way detracts from the evidentiary value of the statement of Kalu; who is not only independent, but also a disinterested witness.
12. The deceased in his statement Exh. P. V. also ascribed the fatal injury to the appellant. The occurrence took place in broad day light and Shah Rasul stood to gain nothing by sub stituting the really guilty person with Ghaus Muhammad appel lant. The story narrated by him is also consistent with the ocular evidence.
13. Turning to the question whether the defence version was equally probable with the prosecution story, we find that although Qutab Din reluctantly admitted that Mst. Elahi is married to his brother Idrees, but that does not go to' prove that Shah Muhammad prosecuted a love‑intrigue with Mst. Ilahi. It is not possible to believe that four persons out of whom one had a lathi and the other was armed with a hatchet waylaid Shah Muhammad, who was struck with the lathi by Shah Rasul, and Shah Muhammad after snatching the hatchet from the hand of Bhulla caused the fatal injury to Shah Rasul. The defence plea is not supported by any evidence worth the name on the record. Had four persons waylaid and attacked Shah Muhammad with a stick and hatchet, the result would have been entirely different. The nature of injuries on ‑the person of Shah Muhammad in no way proved that he was assaulted by a number of persons. The plea of defence of person was, therefore, not available to the appellant.
14. The motive was also on the side of the appellant because Ghulam Nabi had given evidence against Ghaus Muhammad in a criminal case. There had been no other enmity between the parties. We are alive to the consideration that immediately after the occurrence, Shah Muhammad proceeded to the thana where he produced the stick, Exh. P. 2, before the Sub‑Inspector, but in view of trivial nature of his injuries, no case was registered. In fact, the injuries found on the person of Shah Muhammad did not disclose the commission of a cognizable offence. We cannot dismiss the prosecution case wholesale merely because the police did not register a case at the instance of Shah Muhammad.
15. On careful consideration of facts and evidence, we are satisfied that the appellant and no other person was responsible for the fatal injury caused to the deceased by means of a hatchet on the head of which Shah Rasul died later in the hospital. We would, therefore, uphold the conviction, maintain the sentence and dismiss the appeal. The death sentence is confirmed.
‑The .prosecution story given by Ghulam Nabi (P. W. 8), brother of the deceased, is that on the fateful day at 8 or 9 a.m. he along with his brother Shah Rasool and Abdur Rehman P. W. was going towards the fields in order to bring chaff. They had just reached the precincts of the village when Ghaus Mohammad appellant, his brothers Shah Mohammad and Maham Ali emerged from the ambush in which they had laid themselves. Maham Ali caught hold of Shah Rasool and the appellant struck a hatchet blow on his head. Shah Mohammad advanced towards Ghulam Nabi but the threw some bricks on him whereon Shah Mohammad accused turned back towards Shah Rasool in order to strike stick blow on his body. Ghulam Nabi threw another brick towards Shah Mohammad which struck on his head. The bricks earlier thrown by this witness caused injury on his face. Kalu and Qutab Din P. Ws. reached the place of occurrence by then and saved them from the accused who later took to their heels. Ghulam Nabi proceeded towards Police Station Khairpur, and after covering a distance of 12 miles lodged the F. I. R. (Exh. P. A.) at 12‑30 p.m. which was recorded by Malik Sajid Mahmud Khan S. I. (P. W. 12). Shah Rasool was brought to the Police Station half an hour latter on cot. He was then carried to Qaimpur dis pensary accompanied by Foot Constable Sadiq. From Qaimpur he was taken to Hasilpur dispensary. As no doctor was available in both the dispensaries he was finally taken to B. V. Hospital, Bahawalpur.
2. Capt. Dr. Mubarik Ahmad (P. W. 2) examined Shah Rasool on 18‑6‑1967 at 10‑45 p.m. and found the following injury on his person :‑
One longitudinal incised wound at the top of head slightly towards right side 6' long half an inch wide in the centre and skull deep. X‑Ray was advised.
The injury was caused by sharp‑edged weapon. The doctor also examined Shah Mohammad accused and found the following injuries on his person :‑
(1) One lacerated wound at the outer side of left eye‑brow 1' x 1/8' x bone deep.
(2) One oblique lacerated wound at the left cheek one inch below the left lower eye‑lid. Size 1' x 1/6' x bone deep:
(3) One lacerated wound 4' above the left eye‑brow, size 1' x 1/8' x scalp deep.
(4) One contused wound 1/8' in diameter at the back of head 3' from left ear pinna.
Injuries Nos. 3 and 4 were found simple. Injuries Nos. 1 and 2 were ultimately found td be simple after X‑Ray report was received.
3. The motive for the crime given by Ghulam Nabi (P. W. 8) is that there was a fight between some relations of the. accused persons, and he appeared as P. W. against them in that case. Ghaus Mohammad was one of those accused persons. It was on this account that all the three brothers had nursed grudge against him.
4. The appellant denied his presence at the spot and stated at the trial that Qamar Din, Bhulla, Idrees and Shah Rasool deceased attacked Shah Mohammad his brother since they had a suspicion that he was carrying on with Mst. Elahi wife of Idrees. They had also some litigation with Maham Ali. He alleged that he was falsely implicated being brother of Shah Mohammad and Maham Ali. He does not reside nor cultivate land in village Inayati.
5. Shah Mohammad co‑accused made statement at the trial that four persons including the deceased had suspicion about his having illicit relations with Mst. Elahi wife of Idrees. He was attacked while he was passing‑ that way. According to him Shah Rasool deceased was armed with stick with which he hit him on his head. Bhulla had a hatchet. He snatched that hatchet from him and caused injuries in self‑defence. He claimed that blood dropped into his eyes and he became almost blind after receiving the injury on his head.
6. Malik Sajid Mahmud Khan S. H. O. (P. W. 12) recovered stick (Exh. P. 2) vide memo. (Exh. P. B.) on 18‑6‑1967 from Shah Mohammad accused when he was at the police station. On 21‑6‑1967, he arrested Ghaus Mohammad who was produced by Shera. On that occasion he produced hatchet (Exh. P. 1) which was taken into possession vide memo. (Exh. P. D). Both these recoveries were attested by Kalu (P. W. 10) and Qutab Din (P. W. 11) who are also the eye‑witnesses in the case. The stick had no stains of blood on it while the hatchet was stained with blood. Report of the Chemical Examiner (Exh. P. R.) disclosed that the blood was found on the hatchet which was ultimately found to be human blood by the Serologist vide his report (Exh. P. X).
7. Statement of Shah Rasool was also recorded by Malik Sajid Mahmud Khan S. I. (P. W. 12) when he was brought to the Police Station. This statement of Shah Rasool (Exh. P. V.) was subsequently treated as dying declaration: In his statement he mentioned that he, his brother Ghulam Nabi and his cousin Abdur Rehman were proceeding to Chah Chandniwala in order to bring bhoosa. They had just come out of their house when they saw Shah Mohammad Maham Ali. Ghousa had a gundasi while Maham Ali and Shah Mohammad sotis. Ghousa raised a lalkara and attacked him with his hatchet which hit him on his head, and he fell down. A small danda was lying nearby which he picked up and threw it with force towards Shah Mohammad hit ting him on his head. Shah Mohammad and Ghousa were giving lalkaras kill them no body can stop them from doing so". During the fight Kalu son of Umra and Qutab‑ud‑Din son of Ahmad also reached the spot, and saw the occurrence. They saved them from the accused persons, Maham Ali and Shah Mohammad had threatened that nobody should come near them. Ghulam Nabi in order, to save himself threw a brick which hit Shah Mohammad. He, his brother and cousin were empty‑handed. Since he had received serious injury Ghulam Nabi was sent to police station to lodge the report. This was done because they suspected that the accused persons are clever they may not, create some counter version. Shah Rasool further stated that his brother Ghulam Nabi had appeared against the accused persons as a P. W. in a case and they have taken that revenge.
8. It is really strange that none of the accused persons caused any injury to Ghulam Nabi although the motive given by him is that he appeared as a witness against the accused and for that reason they had attacked him when he was proceeding with his cousin and brother to fetch bhoosa. If the motive of the prosecution is true then there is no reason why Ghulam Nabi should have been spared especially when it is alleged that there were three persons on the side of the accused, two of whom were armed with sticks and the third with hatchet and yet they selected Shah Rasool as their victim in place of Ghulam Nabi who had himself done nothing against the accused. Ghulam Nabi has intentionally withheld his relationship with Abdur Rehman at the trial, but he had to admit that he is his first cousin. He has. not attributed anything to Maham Ali in the F. I. R. but at the trial he introduced the story that Maham Ali caught hold of the deceased and the other persons caused injuries. All the eye‑witnesses including the deceased in their statements before the police admitted that Shah Rasool, when he fell down on the ground, picked up a small stick lying nearby and threw it with force towards Shah Mohammad which hit him on his head, but at the trial all the witnesses resiled from their statements. This course they had to adopt for the simple reason that after receiving the head injury it was not possible for Shah Rasool deceased to have picked up the stick from the ground after he fell down and thrown it with force towards Shah Mohammad causing him injury on the head. Ghulam Nabi had to introduce another brick throw in order to explain the injury on the head of Shah Mohammad accused. Similarly Abdur Rehman (P. W. 9) had to adopt the same evidence which was given by Ghulam Nabi. He too denied his relationship with the deceased although in his statement (Exh. D. A.) before the police he had admitted that the deceased was his cousin. Regarding the stick blow given by the deceased he had also to change his statement at, the trial Kalu (P. W. 10) adopted the same role and changed his statement at the trial in order to fall in line with the statement of Ghulam Nabi and Abdur Rehman. He made contradictory statement regarding the recovery from Ghaus Mohammad. At first he stated that the hatchet (Exh. P. 1) was recovered from the appellant and then he deposed that stick (Exh. P., 2) was produced by him. The Sub‑Inspector has clearly stated that he took into possession stick (Exh. P. 2) from Shah Mohammad when he was at the police station on 18‑6‑1967 while this witness stated that the stick (Exh. P. 2) was taken into possession on 21‑6‑1967 at the place of occurrence from Ghaus Mohammad, Ilam Din, Idrees and' Shahab Din were also present when this recovery was made. Evidence of Qutab Din (P. W. 11) is no better than the evidence of the other eye‑witnesses. He has admitted that Mst. Elahi is the wife of his brother 1drees. Shah Mohammad has made statement at the trial that he was suspected of having illicit relations with Mst. Elahi and he was beaten by the com plainant party. The learned Sessions Judge has disbelieved the presence of Qutab Din at the spot. The witness stated that from Bahawalpur he went to Qaimpur in order to make arrange ments for watering his field and came to village Inayati, where the occurrence took place, on 18‑6‑1967. It is really strange as to how he was made the recovery witness of blood‑stained earth collected from the spot on 18‑6‑1967.
9. I am clear in my mind that none of the eye‑witnesses has witnessed the occurrence. They have deposed because they are related to the deceased or somehow connected with him. It is strange why these persons did nothing to save the complainant party from the assailants. The motive for the crime is also base less, because if that be the case of Ghulam Nabi should not have been spared by the accused. No independent person has been produced to prove the recoveries. The story told by the deceased in his statement,, which the prosecution claims to be dying declara tion, had to be changed at the trial by the witnesses simply because the deceased having fallen on the ground after receiving the head injury with the sharp‑edged weapon, could not pick up and throw with force the stick causing injury on the head of co‑accused Shah Mohammad. I am absolutely clear in my mind that the prosecution story is entirely false and truth rings in the statement made by Shah Mohammad. No reliance can be placed on the dying declaration of the deceased either, when it show that it includes falsities in it. Reliance is placed on Tawaib Khan and another v. The State (PLD1967SC13). Having come to the conclusion that the prosecution story is false and the witnesses have not seen the occurrence, I have no other option but to accept the state ment of Shah Mohammad. The story given by him seems to be more probable. He has been suspected of having a liaison with Mst. Elahi wife of Idrees. He was given beating and he caused injuries to one of his assailants Shah Rasool deceased. The injuries, one of which is on his head, would give him the right of exercise of private defence against the assailants and if one of them has received fatal injury he was perfectly justified to cause it. The statement of Ghaus Mohammad seems to be correct that he was not present at‑the spot and he has been implicated because he is a brother of Shah Mohammad and there was litigation between his brother Maham Ali and the complainant‑party.
10, I would, therefore, accept the appeal, set aside his conviction and acquit him. Shah Mohammad's appeal is not before me. I am told that he 'has not filed any appeal against his conviction. Since I feel that he has made a true statement at the trial, which clearly gives him right of private defence, I in exercise of my power under section 439, Cr. P. C. set aside his conviction and sentence also. Both the appellant and Shah Mohammad will be, set at liberty forthwith, if they are not wanted in any other case. The sentence of death passed on Ghaus Mohammad is not confirmed.
.‑Lay before .the learned Chief Justice in view of difference of opinion ‑for nominating a third Judge to dispose of the case.
.‑‑Put up before Mr. Justice Shaukat Ali when resumes work for opinion in terms of section 378, Cr. P. C.
The case was laid before Mr. Justice Ataullah Sajjad, as Mr. Justice Shaukat Ali, was, on leave, lay order of the Chief Justice Mr. Justice S. Anwarul Haq, on 27‑10‑1970.
The case has been referred to me as Shaukat Ali, J. is on leave. Since I shall he proceeding on circuit from 16th onwards, this case should he fixed on a date in the first week of December 1970.
[in terms of S. 378, Cr. P. C.
‑This case has been referred to me on difference having arisen between my brothers Bashir‑ud‑Din Ahmad and Shameem Husain Kadri, JJ.
2. Ghaus Muhammad appellant in this case who has been convicted by the learned Sessions Judge, Bahawalpur, under section 302/34, P. P. C. and sentenced to death, filed an appeal through jail which was registered in the Bahawalpur Registry as Criminal Appeal No. 89 of 1968. The same appeal was registered at Lahore as No. 12 of 1969 (Lahore). Murder Reference No. 45 of 1969 is ‑connected with the same case. Bashiruddin Ahmad, J. found that the case had been proved against the appellant and Shameem Husain Kadri, J. found otherwise and held that the case against the appellant had not been proved beyond reasonable doubt and that the defence version was more probable. He, therefore, allowed the appeal of Ghaus Muhammad. and also ordered the acquittal of his brother and co‑accused Shah Muhammad who had also been convicted under section 302, P. P. C. along with the appellant and was sentenced to transporta tion for life. Maham Ali, the third brother and the co‑accused of the appellant is still absconding.
3. The occurrence took place in village Anayati which, as the evidence shows, has a population of about two thousand persons, in the jurisdiction of Police Station Khairpur, District Bahawalpur. The motive alleged is that Ghulam Nabi (P. W. 8) had appeared in a hurt case as a prosecution witness in which the appellant and some others were involved, about nine or ten months before the occurrence and the accused bore grudge against him on that account.
4. On 18th of June 1967, at about 8 a.m. the deceased, his brother Ghulam Nabi (P. W. 8) and Abdur Rehman (P. W: 9) were proceeding from their house for bringing chaff for the fodder of their cattle when they were attacked by the appellant and his two brothers. The appellant was armed with a hatchet while the two others were armed with sticks. Maham, the absconder, caught hold of Shah Rasul deceased whereupon the appellant struck a hatchet blow on his head. Shah Muhammad accused advanced towards Ghulam Nabi P. W. whereupon the latter threw some bricks upon him. When Shah Muhammad tried to advance towards Shah Rasool in order to give him a Bang blow, Ghulam Nabi P. W. again threw a brick which struck on the back side of the head of the above accused. Meanwhile, Kalu and Qutab Din (P. Ws. 10 and 11) respectively were attracted to the spot and the victims were rescued from the assailants. The accused then made good their escape. Ghulam Nabi and Abdur Rehman P. Ws. attended to Shah Rasul the injured person. After this Ghulam Nabi immediately proceeded t Police Station Khairpur where he lodged the F. I. R. Exh. P. A.. which was recorded by Malik Sajid Mahmud S. H. O. (P. W. 12). The injured person was brought to the police station after about one hour by Abdur Rehman, Kalu and Qutab Din P. Ws. and some other persons.
5. The S. H. O. took down the statement of the injured person under section 161, Cr. P. C. which after his death is now being used as a dying declaration. Simultaneously, Shah Muhammad accused also arrived in the police station and pro duced danda P. 2, memo. whereof was signed by Kalu and Qutab Din P:' Ws. . Shah Muhammad had injuries on his person. The S. I. directed Muhammad Siddiq Foot Constable (P. W. 1) to take both the injured persons to the hospital at Qaimpur. The injured persons were taken to Qaimpur Hospital and them to Hasilpur Hospital. The doctors were not present at both the places. They were then brought to B. V. Hospital Bahawalpur where they were attended to and examined by Capt. Dr. Mubarik Ahmad (P. W. 2). He found one longitudinal incised wound at the top of the head of Shah Rasul deceased slightly towards the right side, 6" x ' x skin deep. He also found four wounds on the person. of Shah Muhammad accused three of which were lacerated wounds on the left side, of the face and one contused wound on the back of the head:
6. Shah Rasul died on the night between 19th ‑and 20th of June 1967. Qazi Muhammad Sharif A. S. I. who was then posted in the Police Station Civil Lines, Bahawalpur, received a tele phonic call from the B. V. Hospital, Bahawalpur, regarding the death of Shah Rasul. He drew up the necessary documents and sent the dead body for post‑mortem examination.
7. Capt. Dr. Kafayatullah (P. W. 3) performed the post mortem examination on the dead body of Shah Rasul. He found that the brain matter was crushed due to the wound on the head of the deceased. According to him the death had resulted on account of severe laceration of the brain and haemorrhage on account of the injury on the head of the deceased which was sufficient in the ordinary course of nature to cause death.
8. The Investigating Officer visited the spot on 18th of June 1967, and collected the blood‑stained earth from the place of occurrence. He again visited the spot on 21st of June 1967, when the present appellant was produced before him by one Shera. The appellant on that occasion also produced hatchet P. 1 which was sealed into a parcel and taken into possession vide memo. Exh. P. D. The blood‑stained earth and the weapons produced by the appellant and his brother Shah Muhammad were sent' to the Malkhana and from there to Lahore, for Chemical Examination. The Serologist found that the earth and the scrapings from the kulhari were stained with human blood.
9. The defence version was that the complainant party suspected a liaison between Shah Muhammad accused and Mst. Elahi wife of Idrees, who is a brother of Qutab Din P. W: It is the plea of the accused that Shah Muhammad was attacked by Idrees the husband of Mst. Elahi, Shah Rasul deceased and some of their relatives. According to the defence version the other co‑accused of Shah Muhammad were not present at the spot.
10. I have heard the learned counsel at length and find that the prosecution story in this case is not above board. In the first instance there is no satisfactory explanation for the injuries on the person of Shah Muhammad accused and the prosecution witnesses have been shifting their ground in order to explain these injuries. In the first information report Ghulam Nabi P. W. had stated that he had thrown a brick on Shah Muhammad while the latter was coming forward td injure him. In his statement Exh. P. V., which has been used as a dying declaration the deceased stated that he had fallen on the ground after receiving the‑head injury and had then thrown a danda with great force to ward off Shah Muhammad accused which hit him on his head. The deceased had also stated in the statement that Ghulam Nabi P. W. had thrown one brick which had also hit Shah Muhammad. At the trial, the eye‑witnesses gave up the story about danda and changed their ground by saying that Ghulam Nabi had thrown a number of bricks at Shah Muhammad which had caused him four injuries including the head injury on the back. The dying declaration is, therefore, proved to be false in so far as it relates to the throwing of danda by the deceased by the testimony of the prosecution witnesses. It appears to me that when Shah Muhammad appeared in the police station with his injuries, the Sub‑Inspector thought it fit to have some explanation for his head injury on the back and, therefore, the story of danda was introduced. Perhaps, 'it' was realised after the medical examination of the deceased that in view of the extensive nature of the injury on the head it would not have been possible for him to throw a danda with some force after receiving this injury and falling down on the ground. In the F. I. R., and the dying declaration only one brick was said to have been thrown by Ghulam Nabi at Shah Muhammad but in order to wriggle out from the difficult situation which confronted the prosecution in view of the medical examination of Shah Muhammad accused, Ghulam Nabi and other eye‑witnesses were made to say that Ghulam Nabi bad thrown a number of bricks on Shah Muhammad. These pre varicating statements by the eye‑witnesses clearly suggest that they were suppressing the true facts regarding infliction of injuries on Shah Muhammad and the genesis of the fight, therefore, remains obscure.
11: The eye‑witnesses also do not appear to be the witnesses of truth. It vas stated by Ghulam Nabi in the F. I. R. that Abdur Rehman P. W. was his first cousin. Abdur Rehman had also stated likewise before the police. At the trial, this relation ship was denied by both of them only to show that Abdur Rehman was an independent witness.
12. Qutab Din has been disbelieved by the learned trial Court. Kalu (P. W. 10) claimed that Qutab Din was sitting with him in his house at the time of the occurrence whereas Qutab Din stated that he was coming from the bath room of the mosque after having a bath. The house of Qutab Din is said to be in the middle of the village Abadi which according to the Patwari has a population of about two thousand persons: The learned Sessions Judge rightly concluded that the house of Qutab Din must be far away from the place of occurrence and that Qutab Din could not have been present at the spot. This would also mean that Kalu has made a mis‑statement in material particulars with regard to the presence of Qutab Din and there is no guarantee that he himself is a witness of truth. The statements made by these two witnesses with regard to the existence of injuries on the person of Shah Muhammad do not carry conviction and it is not possible to place any reliance on their testimony.
13. The motive as alleged by the prosecution has also not been proved. There is a bare assertion by Ghulam Nabi that the motive for the attack was the fact that he had appeared as a prosecution witness in a case against the appellant and others. There are no particulars of the case or of the Court where this case was tried. The claim of Ghulam Nabi is repudiated by the accused. It would have been very easy for the prosecution to produce documentary evidence in support of the fact that Ghulam Nabi had appeared as a witness against the appellant and others. This has not been done and the onus, as we know, is always on the prosecution to prove their case.
14. It is also surprising as observed by my brother Shameem Hussain Kadri, J. that the assailants should choose to concentrate their attack on Shah Rasul instead of Ghulam Nabi who was pre sent there and against whom they bore the grudge. I am sure if Ghulam Nabi was present at the spot and this was the motive for the attack, he should have been the first target of attack. It is also not understandable why the accused kept quiet for nine or ten months in order to punish Ghulam Nabi for appearing against them in the case, the particulars of which we do not know. The motive, as alleged by the prosecution, has not. been proved. The reasons for the assault as alleged by the defence may or may not be. true but the facts of the case suggest that there was perhaps some other motive for the fight which was kept hidden by the prosecution.
15. The investigation of the case also smacks of padding. It appears from the evidence that Qutab Din and Kalu had accompanied the injured person to the police station and from there to Qaimpur and 1liasilpur where the doctors were not present and then to Bahawalpur where they reached at 11 p.m. The Sub‑Inspector, however, claims that he visited the spot on 18th of June 1967, some time in the afternoon and collected the blood‑stained earth from the spot which collection was witnessed by Qutab Din and Kalu. It is impossible that these witnesses could have been present at the spot in the afternoon of 18th of June 1967. With the 'usual forgetfulness of a liar, Kalu stated that the blood‑stained earth was collected by, the Investigating Officer on 18th of June 1967, at about 8 or 9 a.m. and his state ment was recorded by the police at the place of occurrence at 11 a.m. We know the F. I. R. in this case was recorded at 12‑30 p.m. and the above statement of Kalu fixing the time of the collection of the blood‑stained earth and the recording of his statement is entirely false. . The trend of the evidence of Qutab Din (P. W. I1) also shows that the blood‑stained earth was collected on 21st of June 1967, although in the latter part of the statement he maintained that the S. H. O. had visited the spot also on 18th of June 1967. According to this Witness the S. H. O. came to the spot on 18th of June 1967, : between peshiwela and digarwela. In order to meet the difficult question put to .him to explain his presence in the village in the afternoon when according to him he had all along been with the injured person and had escorted him up to Bahawalpur, he stated that be bad parted company with the' injured person at Qaimpur and had returned to his village as he had to make some arrangements for watering his fields and it was after that that he returned to Bahawalpur. The learned trial Judge found this statement to be false and I have no hesitation in agreeing with him. It appears that the Investigating Officer did not visit the spot at all on 18th of June 1967.
16. I also find that the evidence of the recovery of hatchet .is not satisfactory. According to the evidence of the Investigat ing Officer it was produced before him by the appellant at the time of his arrest on 21st of June 1967. It is unlikely that the appellant should be carrying this blood‑stained hatchet with him which was an important evidence of his guilt in the case. Then again the recovery of the hatchet was made on 21st of June 1967, but the parcel was received by the Chemical Examiner on 15th of July 1967. This colossal delay in sending the hatchet and other articles for chemical examination, remains unexplained and gives rise to grave suspicion to the genuineness of the investigation.
17. I, therefore, find that the prosecution have not been able to prove their case against the, appellant beyond reasonable doubt. I give him the benefit of doubt and acquit him. I also agree with my brother Shameem Hussain Kadri) J. that the co -convict of the appellant, namely, Shah Muhammad should also be acquitted in exercise of the powers of this Court under section 439, Cr. P. C. A short order to this effect, has already been issued.
18. The appeal and the murder reference are decided accordingly.
Order accordingly.
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