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Criminal Appeal No. 140 of 1974, decided on 18th June 1974.

--‑ S. 302 read with S. 300‑Murder‑Sudden fight---Benefit of doubt‑First Information Report lodged with inordinate delay of 3 days with no explanation and after prolonged deliberations Nothing to ascertain as to which party set ball rolling and how deceased baby and prosecution witnesses received injuries‑Accused given benefit of doubt and acquitted in circumstances.‑---[Benefit of doubt].

Zafar Yaseen and Mauj Muhammad Khan for Appellants.

Wallayat Umar for A: -G. for the State.

Date of hearing :18^th June 1974

Six persons including the three appellants Din Muhammad alias Gilloo. Abid Hussain alias Abdul Hussain and Jamal Din were tried on charges under section t 48‑X04, 324/149, P. P. C. by Mehr Ghulam Rasul, Additional Sessions Judge, Multan, who acquitted three of them of all these offences holding the three appellants responsible for their individual acts and convicted them vine his judgment dated 16th February as under:‑

Gilloo: Under section 304, Part II, P. P. C. to R. I. for seven years with a fine of Rs. 2,000 or in default further rigorous imprisonment for one year.

Under section 324, P. P. C. to rigorous imprisonment for one year and a fine of Rs. 500 or in default further rigorous imprison ment for three months. Both the sentences were ordered to run concurrently.

Abid Hussain: Under section 323, P. P. C. rigorous imprisonment for one year and a fine of Rs. 500 of in default further R. I. for three months.

Jamal Din: Under section 323, P. P. C. to rigorous imprisonment for six months and a fine of Rs. 300 or in default further R. I. for one month.

They have questioned the correctness of this order through this appeal.

2. The incident involving the death of Mahmood, an infant of 3/4 months, during the assault on her mother Mst. Zulekhan, Ibrahim and Wali Muhammad P. Ws., took place at 9‑10 a.m. on 26th January 1972 as reported by the last named witness vide Exh. P. A. to Sub‑Inspector Shaukat Mahmood (P. W. 13) on the third day, i.e, 28th January 1972, at 9‑30 a.m. at Police Station, Mitru.

3. It was alleged that Wali Muhammad (P. W. 7) a cloth‑vendor by profession passed through Chak No. 119/W.B. with his bundle of cloth on his routine round on the eventful morning when Jamal Din appellant took a than of Lady Hamilton cloth from him to show to his womenfolk in his house. They, however, did not approve of it and shortly thereafter it was returned to the complainant, who suspected that it had been tampe red with as it was found short in length leading to an altercation between them and the alarm so raised attracted Shahab Din (acquitted accused) with a sota raising a lalkara which also brought Imam Din (acquitted accused) to the spot, who is said to have planted a blow on his head with a hatchet, followed by a sota blow from Jamal Din appellant. In the meanwhile Mst. Zulekhan (P. W. 8) also arrived with her infant in her lap and intervening on the side of Wali Muhammad raised hue and cries on which Abid Hussain, appellant came up with a hatchet in his hand and delivered a blow on her head. He was accompanied by Gilloo appellant, who had thrown clod on her which is said to have bit her infant Mahmood in his chest. Both of them fell on the ground when Ibrahim (P. W. 9), the uncle of Wali Muhammad complainant also arrived and received a dang blow at the hands of Jamal Din appellant and a knife blow from Gilloo appellant followed by a seta blow on his head from Mir Baz (acquitted accused). Basher (P. W. 10) and Isa (P. W. 11) separated the parties. The infant succumbed to his injuries during the night, but no one from the complainant side informed the police about it till 28th January 1972 i. e. the third day as stated above.

4. Sub‑Inspector Shaukat Mahmood (P. W. 13) after registering the case on the basis of the statement (Exh. P. A.) of Wali Muhammad (P. W. 7) came to the spot and despatched the dead body of Mahmood, the deceased infant, to the mortuary after preparing the necessary inquest report (Exh. P. S.) and injury statement (Exh. P. R.). He also found injuries on the person of Wali Muhammad, the complainant, Mst. Zulekhan and Ibrahim P. Ws. and drawing out their injuries statement Exhs. P. J., P. T. and P. U. respectively also sent them to the hospital for medical examination. The blood‑stained clothes of Mst. Zulekhan, Wali Muhammad P. Ws. and that of the deceased infant were taken into possession vide Exhs. P. E., P. F. and P. G.

On 31st January 1972 Gilloo and Abid Hussain appellant were arrested by him who are said to have produced their respective weapons knife (P. 5) and hatchet (P. 6) before him vide Exhs. P. B. and P. C.

Jamal Din appellant and one Nanu were also found injured and queries Exhs. P‑M. and P. C. were addressed by him to the doctor about them. It had transpired during the investigation that both of them had suffered their injuries during this occurrence, but the first information report was silent about it.

5. Sub‑Inspector Muhammad Rashid (P. W. 12) had arrested Jamal Din appellant, Imam Din, Mir Baz and Shahab Din, the three acquitted accused. He had recovered iota (P. 7) from Jamal Din appellant which was not stained with blood. In fact none of the above‑mentioned weapons were found stained with blood.

6. On 29th January , 972, at 4‑45 p. m. Dr. Altaf Hussain Gardezi (P. W. 1) hold autopsy on the dead body of Mahmood and found the following injuries vide Exh. P. L.:‑--

(1) A bruise with abrasion 2' x 1 " on the front of left chest in its lower part.

(2) Left lung was having a wound ' x " x ' at its lower lobe.

On dissection of the chest fracture of 5th to 8th ribs on left side was found. Pleurea was ruptured under injury No. 1. In his opinion the death had occurred due to shock and respiratory failure which was due to fracture of four ribs on the left side and injury in the left lung under injury No. 1. It was caused by some blunt object and was sufficient to cause death in the ordinary course of nature. The time between injury and death was 24 to 36 hours and the time between death and post‑mortem within 48 hours.

On 30th January 1972, the same doctor examined Nannu and found swelling 1 x 1' with scabbed abrasion ' x 1/8" on the back of left hand. 1t was found simple vide Exh. P. M., and had been caused by blunt weapon.

On the same day the same doctor examined Jamal Din and found the following injuries on his person vide Exh. P. N.

(1) A contused wound 1/3" x " x granulations were present on the top of head.

(2) An abrasion ' x " on the bridge of nose.

(3) Three small abrasions ' x 1/8" each on the left cheek.

(4) Swelling 2 x 2 with acrasion x " on the back of loft forearm.

(5) An abrasion 1 x " on the front of left upper arm.

(6) Swelling 1 x on the back of loft chest. All the injuries were found simple.

6. On 28th January 1972, Dr. Allah Nawaz (P. W. 2) examined Wali Muhammad P. W. and found the following injuries vide Exh. P. J./1:‑--

(1) Contused wound 2 x ' x granulation tissue present on the right top of head 3' from the right ear.

(2) An abrasion " x " with swelling 2" x 1" on the top of head.

(3) Scaled abrasion ' x " on the middle back of left forearm.

(4) Complained of pain in both sides of the chest, but there was no mark of injury.

All the injuries were simple and had been caused by blunt weapon.

On 29th January, 1972, the same doctor examined Ibrahim P. W. and found the following injuries on his person vide Exh. P. K.‑-

(1) Swelling 2 x 1" with abrasion crust x " on the front of bead.

(2) An incised wound 1 x with granulation tissue present at the lower end and the wound was through and through 1/6" x 1/6" on the left side of the cheek near the lip.

(3) Swelling 1 x 1" on the palm of the left hand.

(4) Scaled abrasion 2 ' x 2" on the front upper part of the chest.

(5) Abrasion " x ' on the back of right thumb.

(6) An abrasion " x " on the back of right finger.

All the injuries were simple.

8. Dr. Razia Sultana Latifi (P. W. 3) examined Mst. Zulekhan P. W. on 29th January 1972 at 4‑15 p. m. and found the following injuries on her person vide Exh. P. H. -

(1) An incised wound 1 x x scalp deep into right side of the head in parietal region. The wound had started healing.

(2) The injured complained pain in the chest.

(3) The injured complained R. S. L pain in the right lumber region and there was a bruise 4 ' x 4" and was tender. The colour of tae injury was black.

Injury No. I was kept under observation while the rest were simple.

9. In addition to the above‑detailed medical evidence and that of the recoveries the prosecution had relied for its case on the testimony of Wali Muhammad (P. W. 7), Mst. Zulekhan (P. W. 8), Ibrahim (P. W. 9), Bashir (P. W. 10) and Isa (P. W. 11) for the ocular account of the occurrence and expressed for Wali Muhammad, the complainant, the remaining witnesses had not learnt whole‑hearted support to the above version of the occurrence.

10. The three acquitted accused and the appellants except Jamal Din appellant none had admitted its correctness and had even denied their presence at the time of the occurrence. Jamal Din appellant had given his version as under:‑

"On the day of occurrence, Wali Muhammad complainant came to realize Rs.9 from me which I had earlier borrowed from him. I gave him a fifty‑rupees note and asked him to return Rs. 41. He said that he had no change and so I went to the shop of Muhammad Hussain, some distance away, to get change of my fifty‑rupee note. During my absence Wali Muhammad picked up my huqqa and began to smoke, on which nay wife protested but was abused by Wali Muhammad axed slapped by him. She raised un outcry and I ran towards my house. I remonstrated with Wali Muhammad, who began to fight with me and also raised noise which attracted the other Cads, They began to beat me and I retaliated. None of the other accused was present at the spot."

I1. The learned trial Judge, however rejected this defence out right and accepting partly the prosecution case gave the above finding which has been assailed before me as unsustainable to view of the inordinate delay in lodging the report and some of the admitted circumstances of this occurrence which were initially suppressed by the prosecution.

12. On being taken through the record and the judgment of the learned Judge I am persuaded to agree with this contention of the learned defence counsel.

13. There was no satisfactory explanation for not informing the police till the third day although the infant had died on the very day of the occurrence, which indicated a guilty conscience as it was held to be a free and sudden fight between the complainant party (the Oads) and the appel lants, who ate Sheikhs by caste and it was difficult to find which of the two parties had set the ball rolling and was so betrayed by Ibrahim (P. W. 9 the uncle of the complainant, in his cross‑examination. He had, frankly conceded that when he went to the spot he saw two or three Oads. Wali, Isa and Bashir P.W's. on one side and Jamala (appellant) on the other fighting with each other * * * that the fixing of injuries and blows was done later on after consultations when Wali Muhammad went to the police station for the Deport (i. e., on the third day) and till then no one know how the baby had received the injuries nor the blows given to the other P. Ws. This admission of a close relation of the complainant himself had practically demolished the prosecution case.

14. Bashir (P. W. 10) who picked up the baby from the spot had likewise admitted that he did not know if anything hit the baby and did not see Gilloo appellant throwing any clod whx9 h bit the baby.

Ibrahim (P. W. 9) had in fact attributed the throwing of the fatal clod on this baby to Imam Din (acquitted accused).

Even Mst. Zulekhan (P. W. 8) had herself shelved the prosecution case by stating that on hearing the noise she reached the spot and saw six persons beating Wali Muhammad and only named two of them Abid Hussain and Gilloo appellants adding that all the Cad P. Ws. were exchang ing lathi blows and throwing clods at each other, one of which hit her baby, that there were five or six Sheikhs on one side and five or six Cads on the other, who were fighting with each other.

15. This being the state of affairs as disclosed by the injured witnesses themselves the responsibility for initiating the dispute could not be pinned down safely on either side especially in view of the extremely belated report which was admittedly the creation of prolonged deliberations between the complainant and his witness, who are no less than his own kith and kin. To cross all they had initially suppressed the injuries suffered by Jamal Din appellant and one Nanu which can safely be made a basis for the leg presumption that they, the complainant, might have opened the attack on Jamal Din appellant and other Sheikh accused came to rescue him from the Cads (the P. Ws.) due to which they were hesitating to go to the police station for a report lest they might be rubbed in for an assault on the Sheikhs. It appears that due to the death of the infant they were spared of this agony by the police.

16. The concession made by the medical witnesses was another factor which had rendered their case extremely doubtful resulting in acquittal of three of them, who were attributed quite a serious role in this occurrence, the benefit of all these doubts could not be denied to the appellants. I have, therefore, to accept this appeal and setting aside their conviction and sentence; acquit them of the charges. Jamal Din and Abid Hussain appellants are on bail, so their bonds shall stand discharged and Din Muhammad alias Gilloo appellant shall be set at liberty forthwith, if no required in any other case by the police.

Appal allowed.