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Criminal Appeal No. 171 of 1973, heard on 6th December 1974.
----S. 304, Part I‑Evidence, appreciation of‑Benefit of doubt‑Eye witnesses of occurrence deeply interested in deceased and hostile towards accused and their testimony finding no corroboration from any disinterested evidence ‑Recoveries of alleged crime weapons also discarded‑Accused given benefit of doubt and acquitted, in circumstances.‑[Evidence‑Benefit of doubt].
Attaullah Qureshi for Petitioner.
Kh. Muhammad Asghar I for A.‑G. for the State.
Date of hearing: 6th December 1974.
Sohna (26), Manzoor (21) sons of Allah Ditty and Ibrahim (22) their maternal uncle were tried for the murder of Allah Yar, their co‑villager and on 28‑2‑1973 Sohna was acquitted while Manzoor and Ibrahim were convicted under section 304, P. P. C. and were sentenced to 10 year' R. I., and to a fine of Rs. 1,000 each, in default to further undergo one year's R. I. each. Their appeal is before me.
2. The facts of the case are that Mst. Jannat, sister of Ibrahim accused was married to Shimla who turned her out of his house about 10/ 12 years before the occurrence in this case. She went to her brother Ibrahim accused and lived there with her daughter Mst. Zohra. Some time later, Mst. Zohra was engaged to be married to Karim Bakhsh a brother of Rahim Baksh P. W. 5. During the day, before the occurrence in this case, Shimla (not produced), Rahim Bakhsh (P. W. 5) Karam Bakhsh (not produced) and Allah Yar deceased took away Mst. Zohra from the street, where she was playing and was kept in the house of Shimla. Allah Dad brother of Ibrahim reported the matter to the police upon which security proceedings were drawn up against them. On the night between 23rd/24th March, 1972, Allah Yar deceased was on his way to the Police Station to inquire about his sons who had been hauled up in connection with the security proceedings. At about 8/9 p.m. when he reached near Chah Pipalwala he was attacked by the appellants. Ibrahim was armed with a hatchet; rest were armed with dangs. The alarm raised by Allah Yar attracted Muhammad Ramzan P. W. 7 and Sohara P. W. 8. They went to the spot and saw the occurrence. On seeing them the appellants fled away. Allah Yar became unconscious he was carried to the hospital. Muhammad Ramzan made report Exh. PA at 11‑30 p.m. at Police Station Kot Chutta to P. W. 11 Abdul Khaliq A. S. I. On the following day, the A. S. I. went to the place of occurrence, prepared the necessary documents. He took in his possession blood‑stained earth from there.
3. P, W. 1 Dr. Salim Beg Mirza, Medical Officer, District Headquarters Hospital D. G. Khan, examined Allah Yar on 24‑3‑1972 at 4‑30 a.m. and found the following injuries on his person: ‑
(1) Lacerated wound 3" x stitches applied longitudinal situated over the head, slightly right to the mid line 4" above the eye‑brow.
(2) A swelling 2" x 1" on the left side of the head 1" above the eat‑in the temporal area.
(3) A bruise 5" x 3/4" in the middle of the chest on the back side in the lower part oblique.
(4) A bruise 3" x 3/4" on the right side back chest, lower part oblique.
(5) A bruise 3" x " on the right lumber region below injury No. 3.
Allah Yar died in the hospital the next day, intimation about his death was sent to the S. H. O. Police Station Kot Chutta. P. W. 12 Abdul Karim Sub Inspector (S. H. O.) sent the dead body for its post‑mortem examination. On 25‑3‑1972, Dr. Salim Beg Mirza, held the autopsy on the dead Allah Yar and found the same' aforementioned five injuries which he had noted on 24‑3‑1972. Death in his opinion was due to shock and haemorr hage caused by fracture of the skull and injury to the brain.
5. On 26‑3‑1972, Abdul Karim, Sub‑Inspector, arrested the accused. Manzoor led to the recovery of his Bola P. 5 from within his cattle‑shed. Sohna led to the recovery of his sota P. 6 from his house and Ibrahim' got recovered his hatchet P. 7 from his house. These weapons were made into separate sealed parcels. Sota of Manzoor and the hatchet of Ibrahim were found to be stained with human blood.
6. On prosecution, the accused denied guilt and ascribed the case to enmity with P. Ws. Each accused said that at times Mst. Jannat used to live with her husband Shimla and sometimes she used to live with her brother i. e., Ibrahim. Appellant Ibrahim said that though Shimla had remarried but his relations with his first wife were not strained. The accused denied whether security proceedings were drawn up against the sons of the deceased. Ibrahim denied whether any Nikah of Mst. Zohra had taken place. No accused produced defence.
7. According to P. W. 5 Rahim Bakhsh, about 7/8 years before the occurrence in this case, Mst. Zohra daughter of Mst. Jannat was betrothed with Karim Bakhsh (not produced) a brother of the witness. He explained that the nikah had taken place but not the Rukhsati. If this was so then the prosecution story that Mst. Jannat all along lived with her brother Ibrahim accused would be doubtful because how could the Nikah of her minor daughter take place in her absence. On the other hand no documentary proof of the nikah has been produced. Karim Bakhsh P. W. the alleged husband of Mst. Zohra was given up by the prosecution as an unnecessary witness. Even Shimla husband of Mst. Jannat was not produced. There is no evidence of the Nikha of Mst. Zohra with Karim Bakhsh. P. W. 11. Abdul Khaliq A. S. 1. Police Station Chutta said that Mst. Jannat reported at 6‑15 p.m. on 23‑3‑1972 that Rahim Bakhsh, Karim Bakhsh, Shimla and Muhammad Bakhsh had taken away her daughter Mst. Zohra. He produced a copy of the report, which he had entered in the Roznamcha. After recording it, he went to the village of the parties. He admitted hav ing hauled up the aforementioned four persons under section 107/51, Cr. P. C. Under cross‑examination he also admitted that he had brought Mst. Zohra, Mst. Jannat, Shimla and Talib Hussain (son of Mst. Jannat) from the house of Shimla to the police station where he handed their custody over to Faiz Muhammad Lambardar. This Lambardar was cited as a witness but was given up as having been won over. It is noteworty that those who were alleged to have taken away Mst. Zohra had been hauled up the deceased was not away from them. He did not figure anywhere in the alleged dispute. It was, therefore, doubtful that the brother of Mst. Jannat i.e. Ibrahim appellant would nourish a grudge against the deceased.
8. Learned counsel for the appellant argued that occular evidence was not consistent with the medical evidence, because according to Ramzan and Sohara P. Ws. Ibrahim opened the attack giving a hatchet blow on the head of the deceased but according to Dr. Salim Beg Mirza the deceased had blunt weapon injuries on the head. I have considered this aspect of the matter. Normally an assailant would use the sharp-edged side of a hatchet. May be that the witnesses could not notice this detail as the occurrence took place at night and tile :noon was in its first quarter in those days. However the witnesses were not questioned in detail about the matter. Nevertheless the fact remains that the two eye‑witnesses namely, P. W. 7 Ramzan and P. W. 8 Sonhara are related to the deceased and their relations with the accused were strained. Ramzan is the son‑in‑law of the deceased and Sonhara is his nephew.
P. W. Sonhara admitted under cross‑examination that Allahbad brother of Ibrahim accused had got him and his brother bound down in security proceedings before the occurrence in this case. He also admitted that Ibrahim and his brother had obtained possession of a piece of land from him through Martial Law Authorities. These admission of Sonhara would indicate his strained relations with the accused.
9. Besides his relationship with the deceased, Ramzan P. W. is also related to Shimala husband of Ibrahim appellant s sister, namely, Mst. Jannat, Sister of Ramzan is the second wife of Shimala. According to prosecution itself Shimala had deserted the sister of Ibrahim appellant, and Shimala had forcibly taken away Mst. Zohra daughter of Mst. Jannat. Under these circumstances, Ramzan P. W. would naturally be on the side of his brother -in‑law Shimala. P. W. Ramzan contradicted himself on a material fact, which also showed that he was trying to conceal the truth. Under cross- examination, Ramzan denied whether Sona (the acquired accused) had occupied a thorough‑fare situated in the south of his house. But the witness had said so before the Committing Magistrate. There are other circumstances in this case, which have to be considered in some detail for a proper appraisal of the evidence of the two eye‑witnesses.
10. According to the prosecution, Sonhara P. W. had come to Ramzan at Chah Pipalwala a little before the occurrence for smoking Haqqa. As they were chatting, Allah Yar deceased came there and told them that he was going to the police station because his sons hail been hauled up by the police. He then left and about 4/5 minutes thereafter they heard an alarm upon which they went towards that direction and reached in time to see the first blow being given by Ibrahim with a hatchet to the deceased on his head. They admitted under cross‑examination that they did not carry any weapon with them. Admittedly, there were several other persons who had their cultivation at Chah Pipalwala bat no one out of them was attracted to the spot. After the occurrence, Ramzan went to basti to inform Muhammad Bakhsh and Allah Ditta, who came to the spot with a chorpoy and helped the eye-witnesses in carrying Allah Yar to the police station, Muhammad Bakhsh and Allah Ditta were cited as witnesses but were given up as unnecessary. Ramzan admitted under cross‑examination that besides Muhammad Bakhsh and Allah Ditta, he had also narrated to Faiz Muhammad that the accused had injured the deceased. Faiz Muhammad was given up as having been won over. P. W. 6 Muhammad Iqbal, a resident of the same village was produced to prove the recovery of the blood‑stained earth from the spot. Under cross‑examination, this witness said that the eye‑witnesses had informed him, Muhammad Bakhsh and Allah Ditta that they had not seen who had injured the deceased. This witness was declared hostile by the prosecution. P. W. 7 Ramzan was, however, not suggested under cross‑examination whether he had informed Muhammad Iqbal also about the incident. The fact remains that the two witnesses to whom the incident was narrated by Ramzan have not been produced. P. W. Sonhara tried to improve upon all his previous statements. He said that when they went to the place of occur rence, they shouted at the accused as to why they had injured the deceased, but they were also threatened. Trot only that he did not mention this in any of his previous statements even Ramzan P. W. did not take up this position.
11. For the forgoing reasons it is not safe to rely on the evidence o the two eye‑witnesses without corroboration from disinterested evidence. The trial Court rightly did not consider the evidence of the recoveries of the weapons of offence genuine. It is not necessary to examine this finding in detail. It will suffice to say that out of the two recovery witnesses, Budha P. W. was given up and other witness, namely, Fateh Muhammad P. W. contradicted the Investigating Officer about the date of the recoveries. It may also be added that P. W. 7 Ramzan also gave a different date of arrest of the accused than the one given by the Investigating Officer.
12. As I am not satisfied with the guilt of the appellants, giving the benefit of doubt, I acquit them. They shall be released forthwith if not required in any other case.
Appeal allowed.
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