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Criminal Appeal No. 91/BWP and Murder Reference. No. 24 of 19831BWP, decided on 14th, April, 1985.

‑‑‑S. 302‑‑Trial Court disbelieving testimony of witness who claimed‑ t o have apprehended accused and co‑accused (acquitted) and to have snatched one (weapon of offence) from accused, at spot‑‑Trial Court, however, convicting accused by placing reliance upon testimony of other two eye‑witnesses, of whom one being young lad of 15/16 years of age‑‑Possibility of apprehension of accused who was armed with axe, by one eye‑witness and his minor son not believable‑‑Natural conduct of accused would have been to escape from scene‑‑Another prosecution witness to whom custody of accused and acquitted co‑accused, after their apprehension was handed over not supporting eye‑witnesses on that score‑‑No reliance, held, could be placed on such testimony

‑‑‑S.302‑‑Accused and acquitted co‑accused allegedly apprehended at spot, and weapon of offence snatched from accused by one of eye‑witnesses‑‑Trial Court holding that if story of apprehension of accused was not true, even then it was evident that they must have been identified by eye‑witnesses‑‑Such finding could not be correct as it was not case of prosecution‑‑Prosecution categorically asserting that one eye‑witness had apprehended accused and had snatched (weapon of crime) from him‑‑Witness who allegedly apprehended accused, disbelieved by trial Court‑‑Entire prosecution story, held, stood demolished in circumstances.

‑‑‑S.302‑‑Criminal Procedure Code (V of 1898), S.417‑‑Appeal against acquittal‑‑Acquitted accused allegedly holding legs of deceased when he was sleeping while other accused causing injuries with axe to deceased‑‑Held, if prosecution evidence was believed, even then it was hardly necessary to hold legs of deceased for causing injuries with axe by other accused while he was sleeping‑‑Trial Court although acquitting co‑accused on fallacious reason, yet order of acquittal not interfered on ground of doubt that legs of deceased were held by acquitted accused while he was sleeping, in circumstances.

‑‑‑S. 302‑‑Both accused and acquitted co‑accused were not apprehended at spot as alleged by prosecution, and they were arrested subsequently by investigating officer on account of suspicion due to threats held out by accused to deceased‑‑Held, such suspicion could not be a substitute of proof of commission of offence‑‑Accused acquitted in circumstances.

Nazir Ahmad Bhatti for Appellant.

Masood Shaheen Rizvi, A. A.‑G. for the State.

Dates of hearing: 31st March and 1st April, 1985.

‑‑ The appellant, Nazir Ahmad son of Abdul Sattar, aged 25 years, was tried alongwith Qutab Din son of Muhammad Shafi, aged 20 years, by the learned Sessions Judge, Bahawalnagar, on a charge under section 302 read with section 34, P.P.C. for having committed the murder of Muhammad Younis deceased. The learned trial Judge, vide his judgment, dated 3‑11‑1983 acquitted Qutab Din of the said charge but convicted the appellant, under section 302, P.P.C. and sentenced him to death and to pay a fine of Rs.2,000 or in default of the payment of fine to undergo R.I. for a period of six months. In addition to the imposition of fine, the learned trial Judge further ordered, the appellant to pay a compensation amounting to Rs.2,000 to the heirs of the deceased under section 544‑A, Cr.P.C. or in default of the payment of compensation to undergo R.I. for a period of six months. The learned trial Judge has also made reference to this Court for the confirmation of the sentence of death awarded to the appellant. The State has filed Appeal No. 42/84‑BWP against acquittal of Qutab Din. We propose to dispose of these three matters Criminal Appeal No. 91/83‑BWP, Murder Reference No. 24/83‑BWP and State Appeal No. 42184‑BWP through this single judgment.

2. The unfortunate occurrence resulting into the death of Muhammad Younis, took place on the night between 13th and 14th of October, 1981 in the area of Chak No. 242/HL, Tehsil Fortabbas District Bahawalnagar Within the jurisdiction of Police Station Fortabbas situated at a distance of 11 miles. The occurrence was reported at the Police Station Fortabbas by Nawab Din P.W.9, real brother of the deceased and on his dictation. F.I.R. Exh.P.K. was recorded by S.H.O. Police Station Fortabbas, namely; Muhammad Saadullah Khan P.W.7. In the F.I.R. it was stated by the first informant that three days before, Bashir Ahmad son of Muhammad Shafi and Muhammad Aslam son of Nabi Bakhsh, residents of Chak No.242/HL had ‑taken their cattle near the Indo‑Pak border where the cattles were grazing. A mobile party of Pakistan Rangers apprehended the aforesaid Bashir Ahmad and Muhammad Aslam, who were taken to the Rangers Post and were given beating, because they had brought their cattles within the prohibited zone of 500 yards at Indo‑Pak border.

According to the first informant, the Rangers released Bashir Ahmad and Muhammad Aslam after admonishing them. It was further stated that the deceased had cordial relations with the Rangers' Staff, on account of which the aforesaid Bashir Ahmad and Muhammad Aslam suspected that they had been given beating and admonished by the Rangers Staff at the instance of Muhammad Younis deceased. Bashir Ahmad and Muhammad Aslam narrated this incident to the appellant Nazir Ahmad and the co‑accused Qutab Din, who visited the house of the first informant on the same evening and threatened Muhammad Younis deceased with dire consequences for their insult at the hands of the Rangers Staff. According to the first informant, the deceased assured the appellant and Qutab Din about his innocence, but they did not believe the deceased and left the house of the complainant. It was also stated that on the night between 13th/14th of October 1981, the deceased and Zulfiqar P.W.10, son of the first informant, slept in the Dhari of the goats for guarding the cattle-head while the first informant and Abdul Sattar P.W.11, a guest, slept in the residential house of the first informant. Allegedly at mid‑night they were awakened by the hue and cry raised by Zulfiqar P.W.10 and the deceased on which they reached the Dhari. It was moonlit night and they saw the appellant causing‑injuries to the deceased with a hatchet, who was lying on the bed, while the co‑accused Qutab Din had held the deceased from his legs. The first informant further stated, that he with the help of Abdul Sattar P.W.11 and Zulfiqar P.W.9 apprehended both the appellant and the co‑accused Qutab Din. Abdul Sattar P.W.11 snatched the hatchet from the appellant. The injured Muhammad Younis died at the spot. Syed Fazal Hussain Shah Lamberdar P.W.8 was also attracted to the scene of occurrence and the first informant handed over both the appellant and the co‑accused Qutab Din to the said Lamberdar, who was also asked to guard the dead body and thus the first informant proceeded to the police station and lodged the F.I.R. Exh.P.K.

3. The investigation of the case was taken over by Khurshid Ahmad Inspector P.W.4, who reached the spot. Abdul Sattar P.W.11 produced the blood‑stained hatchet P.4 alleged to have been snatched from the appellant before the aforesaid Investigating Officer, which was taken into possession vide: memo. Exh.P.G. The Investigating Officer also arrested Nazir Ahmad and his shirt P.5, Bunian P.6 and Chaddar P.7 were found to be blood‑stained and the same were removed from his person and were taken into possession vide memo. Exh.P.H. Similarly, the shirt P.8 and Chaddar P.9 worn by Qutab Din, were also found to be blood‑stained and the same were got removed from his person and taken into possession vide memo. Exh.P.J. All these recoveries were attested by Syed Fazal Hussain Shah P.W.8 and one Maulvi Nazir Ahmad (not produced) besides the Investigating Officer.

4. Dr. Wahid Bakhsh Ali Bhatti P.W.3, Medical Officer, Civil Hospital Fortabbas conducted the post‑mortem examination on the dead body of Muhammad Younis on 14‑10‑1981 at 4 p.m. and the following injuries were noticed on the person of the deceased:‑

(1) An incised wound 4" x " x skull bone deep and brain matter. The injury was oblique on the right frontal part of head.

(2) An incised wound 4" x 3" x cutting the left clavicel and lower neck vertebra at the level of left side of neck and lower part.

(3) An incised wound 3" x 1" x cutting side of the "heck and floor of mouth on left side.

(4) An incised wound 2" x 1" x cutting the left side face bone close to the angle of mouth.

(5) An incised wound 1 " x " x muscle deep on front of right side f the chest.

(6) An incised wound 3" x 1" x cutting bone of the right forearm close of the elbow joint.

In the opinion of the doctor the death took place due to shock and haemorrhage on account of injuries Nos. 1 and 2 which were sufficient in the ordinary course of nature to cause death.

5. At the trial, the prosecution relied upon the evidence as to the motive furnished by Muhammad Akram P.W.6, Nawab Din P.W.9 and Zulfiqar P.W.10 and the recovery evidence furnished by Syed Fazel Hussain Shah P.W.8, while the ocular testimony was furnished by Nawab Din P.W.9, Zulfiqar P.W.10 and Abdul Sattar P.W.11. It may be stated here that Qutab Din acquitted co‑accused is real brother of Bashir Ahmad who was given beating by the Rangers Staff, while Nazir Ahmad appellant is first cousin of Qutab Din acquitted co‑accused. Muhammad Aslam who was also given beating by the Rangers Staff is the husband of the sister of Qutab Din.

6. We have carefully gone through the entire evidence on the record and have heard the learned counsel for the parties at length. After anxious, consideration, we are of the view, that the findings arrived at by the learned trial Judge to hold the appellant guilty are unsustainable. The mainstay of the prosecution case is the presence and participation of Abdul Sattar P,W.11 in apprehending the appellant and the acquitted co‑accused, and the snatching of the axe by him from the appellant. According to Abdul Sattar P.W. 11, he is a dealer in goats and he used to purchase the goats from the deceased and his brother Nawab Din. According to the witness, eight days before the occurrence, he had purchased 9 he‑goats from the deceased for Rs.2,900 on credit. On the evening of the fateful day he had gone to the' house of Nawab Din to pay him the price of the goats The witness further stated that since it became late, therefore, he stayed in the house of Nawab and slept in the courtyard of the house where Nawab Din P.W.9 had also slept. The witness also deposed that at mid‑night, he and Nawab Din P.W.9 were awakened‑by the cries raised by the deceased Muhammad Younis and Zulfiqar P.W.10 and thus they rushed to the spot and saw Nazir Ahmed appellant, inflicting injuries, with the axe on the deceased, while Qutab Din acquitted co‑accused was holding the deceased from his legs. The witness also stated, that the accused were not known to him and thus he claimed to have apprehended the appellant and to have snatched the axe. We have also gone through the cross‑examination of the witness. The learned trial Judge had disbelieved the presence of Abdul Satter P.W.11 and, the role alleged to have been played by him. The relevant findings arrived at by the learned trial Judge are reproduced below:‑

"Abdul Satter P.W.11 says that the marriage party of his brother Abdul Karim left for Khanpur the day following the night of occurrence at evening time. He further says that Khanpur is 150 miles away from his house. The house of Abdul Satter is 2 miles away from the house of Nawab Din P.W. The Nikah ceremony of his sister was'. performed on 13‑10‑1981 and the marriage party of his brother had to leave for Khanpur the following day. If Abdul Satter P.W. came to the house of Nawab Din P.W. normally he should have gone back to his house after paying the amount, because, he must be too much occupied in connection with the marriage ceremonies of his sister and brother. Abdul Satter P.W. says that he paid Rs.2,900 to Nawab Din but he says that he received Rs.5,000 from him. Abdul Satter says that Zulfiqar was present in the house of Nawab Din when he. reached there but Zulfiqar says that he came to his house after he had gone to the pen of goats. Abdul Satter says. that the other family members of Nawab were sleeping in the compound but Nawab Din says that they were sleeping in the Kotha. Abdul Sattar is contradicted by Nawab Din and Zulfiqar on material points, therefore, his statement is not reliable. These contradictions and the facts discussed above, indicate that Abdul Satter was not staying with Nawab Din so he had not seen the occurrence."

It is strange that having reached the conclusion, narrated above, the learned trial Judge proceeded to convict the appellant by believing the prosecution version and by placing reliance upon the testimony of the other two eye‑witnesses, namely; Nawab Din P.W.9 and Zulfiqar P.W.10. It is noteworthy to mention here that Zulfiqar P.W.10 is a young lad aged about 15/16 years. The residential house of Nawab Din P.W.9, where he was sleeping, is situated at a distance of 28 Karams from the Dhari of the goats. The nature of the injuries received by the deceased further indicates that it was not possible for the deceased to have raised any hue and cry so as to attract Nawab Din P.Ws9 from his residential Kotha. It is further noteworthy to mention that the Dhari of the cattle-head of the complainant is not 'enclosed by any compound wall. Nawab Din P.W.9 and Zulfiqar P.W.10 his son, both .were unarmed, therefore, it is difficult for us to believe that. Nawab Din P.W,9 ands hg's minor son would have apprehended the appellant who was armed with axe. Assuming that Nawab. Din P.W.10 is a truthful witness, even then it is difficult for us to believe, that the appellant who was armed would have fallen prey into the hands of Nawab Din P.W.9 and his minor son. The natural conduct would have been to escape from the scene. Similarly, Zulfiqar P.W.10, a young lad could also have not apprehend the appellant and the co‑accused. It is further important to mention, that all the eye‑witnesses stated, that soon after the occurrence and after the apprehension of the appellant and the acquitted co‑accused by them, Syed Fazal Hussain Shah P.W.8 Lamberdar had also arrived at the scene to whom the custody of the appellant and the acquitted co‑accused Qutab Din was handed over. But it is strange to note, that while appearing as witness, Syed Fazal Hussain Shah P.W.8, did not support the eye‑witnesses on this score. He did not utter a single word about the presence of the appellant and Qutab Din acquitted co‑accused at the scene of occurrence. The said witness only supported the recoveries.

7. We have further noticed, that the learned trial Judge also opined that even if the story of the apprehension of the appellant and the acquitted co‑accused was not true, even then it was evident that they must have been identified by Zulfiqar P.W.10 and Nawab Din P.W. 9 at the time of occurrence. Unfortunately, this is not the case of the prosecution.

On the other hand, the prosecution has categorically asserted that Abdul Satter P.W.11 had apprehended the appellant and had snatched the axe. Thus, in the context of the prosecution case, if Abdul Sattar P.W.11 is disbelieved then the entire prosecution story stands demolished. .

8. We have further noticed that the learned trial Judge disbelieved the version of the eye‑witnesses qua Qutab Din acquitted co‑accused. The learned trial Judge observed that in view of the medical evidence, the participation of Qutab Din was doubtful. This reason, in our view is fallacious, inasmuch as, if the prosecution version is believed, even then it was hardly necessary to hold the legs of the deceased Muhammad Younis while he was sleeping, for causing injuries with an axe.

9. The upshot of the above discussion is that we are of the view,' that the appellant and the acquitted co‑accused Qutab Din were not apprehended at the spot and were arrested subsequently by the Investigating Officer on account of the threats held out by them, and thus such suspicion cannot be the substitute of proof of the commission of the offence and, therefore, we are left with no option but to hold that the prosecution had failed to prove its case beyond any reasonable doubt and consequently we hereby give the benefit of doubt to the appellant and acquit him of the charge. Accordingly, the appeal preferred by the appellant is hereby accepted. He shall be released forthwith if not required in any other case. The sentence of death is not confirmed, and the State appeal fails automatically.

H.A.

Appeal accepted.

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