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Criminal Appeal No. 27 of 1973, hoard on 28th May 1975.
‑‑ S. 302/34‑Murder‑Benefit of doubt‑Evidence‑‑Corrobora tion‑Conviction based on testimony of inimical and unreliable witnesses and corroboration sought from presence of injuries on persons of accused‑First information report silent regarding injuries sustained by accused persons and eye‑witnesses including complainant suppressing fact of injuries throughout‑Complainant as well as eye‑witnesses making improvements to bring their statements in line with medical evidence‑Prosecution, held, failed to bring home charge to accused‑Convictions and sentences set aside.‑[Benefit of doubt‑Evidence].
D. M. Awan for Appellants.
Kh Shaukat All for the State.
Date of hearing : 28th May 1975.
Muhammad Afzal (41), Mansab Khan (51) sons of Ahmad Khan, Noor Din (60), Muhammad Din (21) son of Noor Din, Mst. Sardaran (62) wife of Muhammad Amir, Mst. Afzal Khatoon (20) daughter of Muhammad Amir and Muhammad Nawaz (48) residents of Nowshera Town, District Sargodha, were tried by the Additional Sessions Judge, Sargodha. The first mentioned six accused under sections 147 and 302/149, P. P. C. and Muhammad Nawaz under section 302/109, P. P. C. for having committed murder of Khizar Hayat deceased on 24‑4‑69 at 6‑00 p.m. in Nowshera Town the allegations against Muhammad Nawaz having been confined only to abetments vide judgment dated 16‑11‑1972 the learned Additional Sessions Judge acquitted Noor Din, Muhammad Din, Mst. Sardaran, Afzal Khatoon and Muhammad Nawaz of all the charges on benefit of doubt, but convicted Muhammad Afzal and Mansab under section 304, Part II read with section 34, P. P. C. and sentenced them to R. I. for 7 years each. They have appealed.
2. Muhammad Afzal and Mansab appellants are real brothers, Mst. Sardaran (acquitted accused) is their sister and Mst. Afzal Khatoon is the daughter of Mst. Sardaran. Muhammad Din (acquitted accused) is the son of Noor Din accused. They are not related to the appellants. Muhammad Nawaz accused is also not related to the other accused persons. On the complainant side, Falak Sher complainant is the husband of the sister of the deceased. The father of Iqbal P. W. is the mother's sisters' son of the deceased.
3. Brief facts of the prosecution ease as per First Information Report (Exh. P. A.) are that Mansab appellant had illicit relations with Mst. Jawaher Khatun, a relative of Khizar Hayat deceased and was keeping her in his house without any Nikah. Nawaz (acquitted accused) had also strained relations with Khizar Hayat deceased, therefore, he and Mansab Khan appellant formed a party against the deceased. On 24‑4‑1969 Mansab Khan appellant remained with Muhammad Nawaz accused at the letter's shop for quite some time and had deliberations with him. The prosecution story goes that on .the same day at about 6‑00 p.m. Khizar Hayat deceased was returning to his house in the company of Muhammad lqbal P. W. after enquiring about the health of his relative subedar Muhammad Nawaz (father of Iqbal P. W.) and when they reached near the house of Mansab appellant, all the accused persons came out and caught hold of them. Mst. Sardaran Bibi and Mst. Afzal Khatoon over‑powered Muhammad Iqbal P. W. while the appellants and the other acquitted accused persons overpowered the deceased. Mansab appellant started throwing stones on the head of the deceased as a result of which his skull got fractured and he died at the spot the occurrence was witnessed by Falak Sher complainant Ghulam Muhammad son of La1 Beg, Mumtaz Khan Saleh Muhammad son of Mian Muhammad and Barkat son of Ali Muhammad. It is alleged that Muhammad Nawaz acquitted accused ii the leader of the accused party and being a wealthy person, he got the deceased murdered. After the occurrence, Falak Sher complainant took the dead body of the deceased to the P. S. Nawshera and reported the occurrence to Muhammad Sadiq Sub‑Inspector vide F. I. R. (Exh. P. A.) incorporating the above facts.
4. After recording the F. I. R. Muhammad Sadiq S. I. prepared the injury statement (Exh. P.J) and inquest report (Exh. PK) of dead body and sent it to the mortuary for post‑mortem examination. He reached the spot on the same day and took some blood‑stained earth and six stones P. 1. and P. 2/1‑5. all blood‑stained into his possession and made them into a sealed parcel vide memo. (Exh. P. C.). Iqbal P. W. produced his torn shirt (Exh. P. 3) before the Sub‑Inspector, who secured it rid4 memo Exh. P. B. on 2e‑4‑1969 Muhammad Afzal Mansab Muhammad Din and Noor Din accused appeared before the S. I. and he arrested them. Afzal Khan appellant while in custody got recovered blood‑stained chhuri (Exh. P. 4) which was secured rids memo. Exh. P. E. The appellants had injuries on their persons. The Sub‑Inspector prepared their injury statements (Exhs. P. N. and P. M.) and sent them for medical examination on 27‑4‑69. He also arrested Mst. Sardaran Bibi and Mst. Afzal Khatoon. After the investigation a case under sections 148 and 302/149 of the P. P. C. was sent up against the accused persons, Muhammad Nawaz was shown at column No. 2 of the challan and he was summoned by the committing Magistrate during the inquiry proceedings.
5. On 25‑4‑1969 at 7‑30 a.m. Dr. Muhammad Obaidur Rehman. Medical Officer, Civil Hospital, Noshera conducted the autopsy on the dead body of Khizar Hayat deceased and found the following injuries on it: ‑
(1) A lacerated wound 4 ' x skull (i.e. craniam) cavity deep on the right side of the bead including the frontal and middle craniam fossa 2 ' above the right ear. The brain matter was protruding out of the wound. The minor clots of blood were present on the surface of the brain. The bones of the skull had depressed fractures and pieces of bones were found piercing into the craniam cavity. Hair were jammed with blood.
(2) A lacerated wound 1'x 1/3 bone deep on the right forehead 1' above the eye‑brown.
(3) A lacerated wound 3' x ' x craniam cavity on the forehead is the middle right side ' above injury No. 1. The brain matter was protruding out of the wound. The underlying frontal bones showed the depressed fracture. Blood oozing, signs were seen at the edges of the wound and brain. The underlying bones had depressed fracture. ,
(4) A lacerated wound ' x ' on the left forehead above the eye‑brows.
(5) A lacerated wound x 1/3 x bona deep 1' above injury No. 1.
(6) A lacerated wound 1' x x bone deep in the middle of right side of the head.
(7) Multiple small contusion merits on the back of left side of the shoulder in the area of 3 ' x 4 '.
(8) A scratch mark 1' x 3' on the outer side of left shoulder joint.
(9) A Scratch mark 1 ' on the back of left upper arm in the lower part.
(10) A scratch mark 1' on the back of left elbow joint.
(11) A scratch mark ' on the back of left forearm in the upper part.
(12) Two scratch marks ' and 1' on the back of left little finger.
(13) A scratch mark on the back of middle finger.
(14) Multiple contusion and scratch marks in the area of 4' x 2 on the outer aide of the left upper thigh and hip.
(15) A scratch mark ' x 1/3' on the outer side of the left knee joint.
(16) A scratch mark 1' x on the outer side of the left upper leg one inch below injury No. 15.
(17) A scratch mark 2' x 1/3 on the outer side of the left upper leg.
(18) A scratch mark 2 'x on the right leg on the frost in the upper part.
(19) There was bleeding from the left ear.
In the opinion of the do‑for death was due to crushing of the brain and haemorrhage caused by depressed fracture of the skull bone due to injury Nos. 1 and 3, which were dangerous to life and sufficient in the ordinary course of nature to cause death. The rest of the injuries were simple. All the injuries had been caused by blunt weapon.
On 26‑4‑1969 the same doctor examined Mansab appellant and found the following injuries on his person :‑
(1) An incised wound x 1/3' skin deep on inner side of the right little finger at the tip. There was clotted blond in the wound. The wound was cleaned and small blood clots removed, the rest of the finger on the inner side and the other fingers of the hand were blood‑stained.
(2) A cut ' x ' on the inner side of right little finger a few c.m. below the injury No. 1. The clotted blood was seen on the surface of the cut. Both the injuries were simple in nature caused by' a sharp‑edged weapon.
On 26‑4‑1969 the arms doctor examined Muhammad Afzal Khan appellant and found the following injuries on his parson: ‑
(1) A scabbed scratch mark ' x on the back of right elbow-jointer on the inner side.
(2) A scabbed scratch mark 1/3 x 1/3 on the back of right forearm just below the elbow‑joint.
(3) A scabbed scratch mark 1 ' x 2' on the front of left leg below the knee‑joint.
(4) A scabbed scratch mark x 1/3' on the front of left knee‑joint.
(5) A scabbed scratch mark " above and inner to injury No. 3.
(6) A scabbed scratch mark 3/4' x 1/3 on the inner side of left knee‑joint.
(7) A scabbed scratch mark' 3/4' x on the front of right leg 1 below the knee‑joint.
(8) A scabbed scratch mark ' x 1/3 on the outer side of right leg below and outer to the injury No. 7.
(9) A cut on the inner side of right little finger below the hip. The clotted blood was present.
(10) A cut ' on the inner side of right middle finger in the middle. The clotted blood was present.
(11) A cut 1/3' on the inner side of right middle finger in the ' middle.
(12) A curved cut " on the inner side of right index finger below the tip. Clotted blood was present. On cleaning the wound the portion of the skin was detached and this portion was removed for treatment purpose.
All the injuries were simple in nature. Injuries Nos. 1 to 8 had been caused by blunt weapon and 9 to 12 by a sharp‑edged weapon.
5. To support its case the prosecution examined eleven witnesses in all. Its mainstay being the ocular testimony of Falak Sher complainant, Muhammad Iqbal P. W. 7, Mumtaz Khan (P. W. 8) and Fateh Sher (P. W. 11).
The appellants pleaded not guilty to the charge. They admitted their relationship inter se but denied all other allegations and contended that they had been falsely implicated due to enmity. They maintained that Mansab Khan appellant had married Mst. Jawahir Khatun 6/7 years prior to the occurrence with the consent of her parents and that she was not related to the deceased. They further stated that Surkhuru, father of Mst. Jawahir Khatun and the deceased were not on good terms with each other because the latter and some others had beaten aforesaid Surkhuru. Mansab appellant produced copies of the statements (Exh. D H & D. I) in his defence. Muhammad Nawaz acquitted accused produced documents (Exh. D. J. to Exh. D. U) in his defence.
6. The learned trial Judge rejected the motive. He disbelieved the evidence of Muhammad Iqbal P. W. and held that he was not present at the spot. He also discarded the evidence of Mumtaz P. W. on the ground that he was a chance witness and had deposed against the accused" simply due to his friendship with Falak Sher P. W." As regards the evidence of Falak Sher complainant, he observed that he had improved upon his statement on certain points and his evidence on those points was not believable. He was however of the view that "this witness had only seen the deceased being given blows with stones by Mansab and Muhammad Afzal accused." He further observed that Falak Sher and Fateh Sher P. Ws. had enmity with the accused persons and their evidence requires corroboration. He found corroboration of their evidence in the injuries found on the persons on Mansab Khan and Afzal Khan appellants and held that this was a strong circumstance against them, and on the basis of this evidence he convicted them under section 304, Part II read with section 34 of the P. P. C. He however, acquitted Mst. Sardaran and Afzal Khatun on the ground that they had not participated in the occurrence. He also acquitted Noor Din and Muhammad Din on the ground that no part was attributed to them and there was nothing on the record to show that they had any grudge against the deceased. Muhammad Nawaz was acquitted on the ground that "the alleged conspiracy between him and Mansab accused has not been proved."
7. The learned counsel for the appellants contended that the tainted evidence of. Falak Sher and Fateh Sher was wrongly relied upon against the appellants as the presence of Falak Sher P. W., at the spot was extremely doubtful and Fateh Sher P. W. was not named in the F. I. R. as an eye‑witness of the occurrence. He further contended that the so‑called eye‑witnesses had failed to explain the injuries of the appellants therefore, their evidence was not entitled to any credence and there was no justification to treat the injuries as corroborative evidence. The contentions seem to be well‑founded. I have gone through the entire evidence with the help of the learned counsel for the appellants and the State and have given my careful consideration to the arguments addressed by them. The case of the prosecution as narrated in the F. I. R. has been detailed above. At the trial Falak Sher complainant improved his statement in material aspects obviously with a view to bring it m line with the medical evidence and the other circumstances. In examination‑in‑chief, he stated that the accused dragged the deceased "to a distance of 5/7 yards towards the south where they lay him on the ground. Noor Din accused sat on the belly of the deceased while Muhammad Din accused caught hold of his legs. Afzal accused caught hold of the deceased from his arms Mansab accused picked up a heavy stone and hit the deceased on his head which fractured his skull." He further stated that Afzal accused has also hurled 2 or 3 stones at the deceased. In cross‑examination he stated that the "deceased had not to pass in front of the house Mansab accused if the former bad to go to his house." In the F. I. R. with which he was duly confronted, he had stated that the deceased was attacked when he reached near the house of Mansab accused. Since the house of Mansab appellant did not fall on the way leading to the house of the deceased therefore, there was no occasion for the deceased to be present near the house of Mansab appellant, therefore, the story of dragging was introduced to over come this defect in the prosecution version. The complainant asserted that in the F. I. R. he bad stated that Noor Din accused sat on the belly of the deceased, Muhammad Din accused caught hold of his legs and Afzal caught hold of his arms. He was confronted with the F. I. R where it was not so recorded. He also asserted having stated in the F. I. R. that Afzal accused had also hurled some stones at the deceased, He was confronted with the F. I. R. where this fact was also not recorded. He made an attempt at the trial to ascribe specific part to each accused person although this was not according to the F. I. R. Again in examination‑in‑chief, he stated that Muhammad Afzal had a chhuri with him and he tried to assault the deceased with it but the latter snatched it from him. He further stated that "Afzal and Mansab accused tried to snatch the 'chhuri' back from Khizar Hayat deceased and in their attempt sustained injuries on their hands." He was confronted with the F. I. R. where these facts were not mentioned. Even in his statement before the committing Magistrate with which he was duly confronted there was no mention of the injuries sustained by the appellants during the occurrence. Obviously, this improvement was, made by the complainant in order to bring him testimony in line with the medical evidence, according to which Mansab appellant had incised wound on the inner side of the right little finger and a cut on the same finger and Afzal appellant bad cut on right middle finger and inner side of a right index finger. In the F. I. R. this witness did not state as to how from where and under what circum stance he reached the place of occurrence. At the trial he stated that lie saw the occurrence when he was returning from the Mazar of Baba Savi Beriwala in the company of Mumtaz and Ghulam Muhammad P: Ws. He was confronted with the F. I. R. where this fact is not mentioned. In cross‑examination he admitted that there was a direct and short route from his house to the Mazar of Baba Savi Beriwala. He however offered the explanation that he had never adopted that route because his enemies were residing there. He is an unreliable witness having told lies on patent facts, therefore, his above explanation cannot be, accepted., In cross- examination, he admitted that father of Iqbal P.W. was the mother's sister's son of his wife although in his statement before the C. M. with which he was confronted he had expressed his ignorance about this relationship. At the trial he stated that Ahmed Khan and Feroze P. W. were real brothers whereas in his statement before the committing Magistrate with which he was confronted he had stated that Ahmad Khan and Feroze P. Ws. were not brothers inter se. He further stated that Ahmad Khan and Feroze Khan belong to village Shakkar Kot, although in his statement before the committing Magistrate with which he was duly confronted he had stated that he did not know where they (Feroze Khan and Ahmad Khan) were residing. He further stated that Mumtaz P. W. was a cousin of Ahmad Khan and Feroze Khan P. Ws. He denied having stated before the committing Magistrate that he did not know if Ahmad and Feroze P. Ws. were cousions of Mumtaz P. W. He was confronted with his statement before the committing Magistrate where it was so recorded.
The above improvements and contradictions in the statement of this witness amply show that he is not at all a reliable witness. It is in his statement that his house was at a distance of half a mile from the spot. In the F. I. R. he did not give any explanation for his presence at the spot and it was at the trial that lie stated that he was returning from the Mazar of Baba Savi Beriwala when he witnessed the occurrence. His presence at the spot is therefore, extremely doubtful.
Moreover, the antecedents of this witness are not above board. It is in his statement that he alongwith his brother and some others was challaned for the murder of one Muhammad Akbar. He further admitted that he alongwith some others was also challaned for the murder of Muhammad Hayat. He further admitted that he alongwith Muhammad Sher and Khizar Hayat deceased was challaned under Goonda Ordinance and Muhammad Nawaz (acquitted accused) was a witness against him in that. He also admitted that he and others has a fight with Surkhru father of Mst. Jawahir Khatun, and were challaned under sections 342/307, 325 and 447 of the P. P. C. for that occurrence He also admitted that in a dacoity case, ho and his brother Muhammad Sher were convicted and sentenced to 5 year' R. I. each.' He also admitted that he was challaned in a case under sections 379 and 411, P. P. C: In view of the antecedents of this witness and the improvements made by him at the trial, it would be hazardous to place reliance on his testimony.
8. The evidence of Muhammad Iqbal P. W. was rightly discarded by the learned trial Judge. According to the prosecution, Mst. Sardaran and Mst. Afzal Khatun caught hold of this witness and kept him in that position throughout the occurrence. It is in evidence that this witness did not offer any resistance to these two women. The deceased was closely related to him and if he had been present at the spot, he must have endeavoured for his release in order to rescue the deceased who was being injured by the other accused persons. "The learned trial Judge therefore, rightly held that this witness was not ‑ present at the spot at the time of occurrence.
9. Mumtaz P. W. is a resident of village Shakkur Kot situate at a distance of three miles from the spot.
His three close relatives namely Feroze Khan Ahmad, Khan and Allah Yar, who are also residents of village Shakkur Kot were cited as P. Ws. in this case like Falak Sher complainant he too is a person of questionable character. He admitted that he was involved in two murder cases and also in cases under sections 342 and 307 of the P. P. C. He also made material improvements in his statement. At the trial he stated that Mansab appellant received injuries during the occurrence that the deceased was taken by the accused persons to some distance and that Noor Din accused sat on the belly of the deceased while Muhammad Din and Muhammad Afzal appellants caught hold of the deceased from his legs and arms respectively. Pie was confronted with his statement before the police, where these facts were not mentioned. The fact that three close relatives of this witness residing in a different village were cited as P. Ws. in this case lends support to the finding of the learned trial Judge that he had deposed against the Accused persons due to this friendship with Falak Sher complainant.
10. The next witness relied upon by the learned trial Judge is Fateh Sher (P. W. 11). He was not‑ named in the F. I. R. as an eyewitness. Moreover there is sufficient material on the record to show that he had inveterate enmity with the appellants. In cross‑examination he admitted that his nephew's brother‑in‑law Sher Khan was prosecuted for the murders of Muhammad Sher and Mst. Sharif Khatun, and Mansab appel lant had appeared as a witness against him and he was sentenced to death. He further admitted that Alam Khatun was his mother's sister's daughter. He expressed his ignorance if she had been married to Mansab Khan accused or that she had instituted a suit against Mansab accused or that the latter had divorced her subsequently. He admitted that aforesaid Alam Khatun was the daughter of Alam Sher. He further stated that he did not know any other women named Alam Khatun alias Allo daughter of Alam Sher wife of Mansab. Awan of Naushera. He admitted that Mansab appel lant was the son of Ahmad Khan Awan by caste, resident of Mohallah Bond Subewali, Noshera, Tehsil Khushab and stated that he did not know any other person with the particulars of Mansab accused. Mansab accused produced a copy of his statement (Exh. DH) which shows that Mst. Alam Khatun alias Alto daughter of Alam Sher wife of Mansab Khan filed suit for maintenance against Mansab Khan appellant. Mst. Alum Khatun is mother's daughter of this witness and he must be knowing about the litigation between her and her husband. He suppressed this fact obviously with a view to show that he was an independent and disinterested witness. His testimony too does not deserve any credit. The fact that he was not named in the F. I. R. as an eye‑witness would show that he was imported as such at a belated stage. I, therefore, disbelieve the entire ocular account.
11. The learned trial Judge was very much impressed by the injuries found on the persons of the appellants and he treated this fact as a very strong piece of corroborative evidence. The appellants when asked to explain their injuries stated that they were tortured by the police. The learned trial Judge disbelieved this version and observed that "the, police would not have given visible injuries with any sharp‑edged weapon to the accused" and "the Sub‑Inspector could employ some other methods to torture the accused." It is true that the appellants could not give satisfactory explanation of their injuries, but at the same time the prosecution also failed to explain the injuries on their persons. The F. I. R. is silent stout the injuries found on the appellants. At the trial the complainant improved his statement and stated that the appellants had sustained injuries during the occurrence. He was confronted with the F. I. R. and his two statements before the committing Magistrate where this fact wad not mentioned. Similarly the other eye‑witnesses also made improvements on this point. They stated that the appellants sustained injuries while snatching the chhuri from the deceased who had earlier snatched it from Afzal appellant. The medical evidence shows that Afzal appellant had as many as 12 injuries on his person out of which four were in the nature of cuts and the rest were caused by a blunt weapon. No explanation for the last mentioned injuries is coming forth. The eye‑witnesses thus suppressed the injuries found on the person of the appellants and in this view of the matter. Their evidence is not entitled to any credit.
12. While determining the liability of the appellants the learned trial Judge observed: ‑
"It is in evidence that the deceased was a bad character. He was challaned under Goonda Ordinance as evident from the Calander vide memo Exh. D. R. presented by the police before the District Tribunal. According to the contents of this document the deceased had committed several offences. Besides other offences he used to tease and disgrace the ladies in the town. It appears that the deceased passed by the 'baithak' of Mansab accused where some ladies were also present, Mansab, Afzal accused would have objected to the presence of the deceased by the side of their 'baithak' and an altercation between them might have taken place there."
He therefore, held that it was a sudden fight. I feel no hesitation to say that the above finding of the learned trial Judge is based on mere conjectures. On the basis of the evidence on the record it cannot be said as to how the occurrence had taken place and who had killed the deceased.
For all the foregoing reasons I am of the view that the prosecution) has failed to bring home the charge to the appellants beyond a reasonable, doubt. Consequently, I accept the appeal, set aside the conviction and sentences of the appellants and acquit them of the charge. They shall be set at liberty forthwith if not required to be detained in the any ether case.
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