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Criminal Appeals-J. Nos. 207 and 208 of 1981, decided on 23rd November, 1983.

--S. 326/34--Evidence, appreciation of----Record not showing whether any one of 6 injuries was grievous as X-ray report not available anywhere-On face of such medical report, it could not be said with certainty that bone fractures noticed by doctor were as a result of alleged incident when incident was said to have taken place or these fractures were result of some later fall in house as sug gested---Following of deceased by accused from his house for two furlongs or so and on reaching spot where prosecution witnesses were present, to give blows to deceased, not probable-Prosecution, held, failed to establish its case beyond reasonable doubt ---Accused given benefit of doubt and acquitted.

Nemo for Appellants.

G. R. Warsi for the State.

Date of hearing: 13th January, 1983.

Appellants above-named, being aggrieved by common judgment, dated 17th October, 1981 of the Sessions Judge, Thatta, in Sessions Case No. 10/79, whereby both of them have been convicted under section 326, P. P. C. read with section 34, P. P. C. and sentenced to suffer R. I. for 7 years each and also to pay fine of Rs. 2,000 each and in default thereof to suffer further R. I. for one year each, have preferred the above two jail appeals, on the following facts and grounds:-

2. One Qadir Bux; son of the deceased, appeared at Police Station Sujawal on 7th January, 1979 at 1-00 p. m., and reported, that he alongwith his haris Fateh Muhammad, Allah Bux and Fakir Muhammad were working in his field when, at about 12-00 noon, his grandfather Amir Bux also reached there for giving round of the land. At the said time both the above appellants also came carrying lathi and hatchet in their respective hands. On their arrival appellant Ahmed abused the deceased Amir Bux and instigated Taj Muhammad not to spare him and so appellant Tai Muhammad gave back side hatchet blow on the head of Amir Bux while Ahmed also gave lathi blows on his head. The complainant party then ran towards Amir Bux and so the appellant went away. This Amir Bux was then taken to the Police Station and the above report was lodged.

3. This report was reduced to writing by S. H. O. Abdul Rashid in the Station Diary, it being a non-cognizable offence at Serial No. 10 vide (Exh. 12/A). A memo of injuries was also prepared by him in presence of mashirs Qaim and Hassan Ali as per (Exh. 17), and the injured was referred to the Medical Officer, Sujawal for examination, treatment and certificate.

4. After about 21 days of this report the complainant again came at the Police Station on 28th January, 1979 and informed about the death of Amir Bux at his house, as a consequence of injuries sustained by Amir Bux on 7th January, 1979. This information was also entered in the Station Diary at S. No. 5 vide (Exh. 12/B). The S. H. O. then sent A. S. I. Waryam Khan to the house of the complainant for holding inquest on the dead body and getting the post-mortem examination of the deceased. On the receipt of post-mortem report and finding that the death was certified by the Medical Officer as a result of aforesaid injuries, S. H. O. registered a case against both the appellants under section 302/34, P. P. C. vide Crime No. 6 of 1979 (Exh. 41), on 1st February, 1979. He then took up the investigation and inspected the wardat situated in deh Mirzo Lighari, in presence of the said mashirs Qaim and Hassan and on the showing of the complainant, as per (Exh. 18). He also examined Fateh Muhammad, Allah Bux and Fakir Muhammad and then arrested both the above-named appellants in presence of the same mashirs, from their village as per (Exh. 19). On his return back to the Police Station, he recorded the statements of A. S. I. Waryam Khan, P. C. Abdul Hakim and P. C. Muhammad Saddiq. He also examined Medical Officer Sujawal. State ments of P. Ws. Qadir Bux, Fateh Muhammad and Allah Bux were also got recorded under section 164, Cr. P. C. before Mukhtiarkar and F. C. M., Sujawal. After completing the investigation both the appellants were sent up to face their trial.

5. Charge of committing murder of Amir Bux was read over to both the appellants on 26th of April, 1981 and since they pleaded not guilty, they were put to trial.

6. To establish its case the prosecution tendered complainant Qadir Bux (Exh. 10); P. Ws. Fateh Muhammad and Allah Bux as (Exhs. 14 and 15), respectively, as witnesses of occurrence; Dr. Ghulam Qadir, Medical Officer Sujawal and Dr. Muhammad Sajjan Civil Surgeon, Civil Hospital, Mirpurkhas, and who both had examined the deceased Amir Bux; mashir Qaim Khan (Exh. 16); Tapedar Abdul Rasool (Exh. 38); P. C. Abdul Hakim (Exh. 8) A. S. I. Waryam Khan (Exh. 9) and S. H. O. Abdul Rashid (Exh. 40). Prosecution then closed its side as per (Exh. 42).

7. After the evidence referred to above, both the appellants were examined under section 342, Cr. P. C. but they professed their innocence. In his further statement appellant Ahmed and which statement has also been adopted by his son appellant Taj Muhammad, he pleaded that the complainant had demanded the hand of his daughter for himself but he refused. There was otherwise no enmity between them. None of the appellants entered into their defence.

8. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants above-named as hereinbefore mentioned and consequently the appellants have filed the above two jail appeals, on the grounds mentioned in the memo of their respective appeals.

9. Since both the above appeals arise out of common judgment I proposed to dispose of both these appeals by this common judgment.

10. The appellants were present in person before me on 13th January, 1983 and in support of their respective appeals stated they were innocent and have been implicated falsely in this case on account of enmity.

11. The learned Advocate appearing for the State took me through the R & P of the learned trial Court as well as the impugned judgment and submitted that life was supporting the impugned judgment for the cogent reasons given in the said judgment, as prosecution has established its case against the present appellants beyond reasonable doubt.

12. I have carefully considered the above submissions made by the learned Advocate for the State and have carefully gone through the R & P of the trial Court as well as impugned judgment.

13. The main point which requires consideration, in view of the submissions made by the appellants; before me, that deceased was old man and after his return from various hospitals had a fall in his own house, before his death, in which he received the injuries, which are now mentioned in post-mortem report, is whether this stand of the appellants is plausible or not, in view of the fact, that there is nothing on record to show, that in alleged incident deceased had received any grievous injuries. The second point which requires consideration is, whether prosecution version of the incident is plausible, when it is on record, that deceased and appellants were living within same enclosure of hedge and as such if appellants really wanted to cause injuries to the deceased, why should they do so in presence of the P. Ws., when they had ample opportunity to do so, within the endorse of their houses, at the time, when P. Ws. were not present, as on the day of the incident and follow the deceased and give him injuries, when deceased had arrived in the presence of P. Ws., as alleged in F. I. R.

14. It is clear from the state lent of P. W. 8 Ghulam Qadir, that when he examined the deceased for the first time on 7th January, 1979 he had in all 6 injuries and there is nothing on record to show, whether any one of these injuries were grievous, as X-ray report in respect of injuries Nos. 1, 2 and 3 was not at all available anywhere. However, when this witness performed post-mortem examination on 28th January, 1979 on external examination he found three fractures pertaining to injuries Nos. 1, 2 and 3. This witness also admitted in his cross-examination that he had not referred the deceased to Mirpurkhas Hospital, as Medico- legal case and/or in regard to his head injury. In the face of such medical evidence, it cannot be said with certainty, that bone fractures, which were noticed by Doctor on 28th January, 1979 were as a result of alleged incident dated 7th January, 1979 when the incident is said to have taken place or these fractures were result of some later fill in the house, as suggested to P. Ws., in cross-examination. In addition to this, it is improbable, that appellants would follow the deceased from his house for two furlongs or so and on reaching the spot, where P. Ws. were present to give blows to the deceased, so that the same were witnessed by P. Ws. in order to create evidence against them. It is admitted position, that deceased and appellants at the time of incident were residing within same hedge enclosure and as such appellants could have done the job; near enclosure without being noticed, if they really wanted to do so.

15. Keeping in view the facts mentioned in preceding para and my observations about the incident, ins my opinion, prosecution has failed to establish its case against both the appellants, beyond reasonable doubt, even in respect of offence under section 326/34, P. P. C.

16. Therefore, I allow the above appeal and set aside conviction of the appellants and their sentences and acquit them by giving benefit of doubt and direct that both the appellants be released forthwith, if not required in any other case.

M. A. K. Appeal accepted.

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