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Criminal Appeals Nos. 298 and 353 of 1983, decided on 26th June, 1985.

‑‑‑S. 302/34‑‑Benefit of doubt‑‑Occurrence taking place in an area surrounded by residential houses but no independent person from locality produced by prosecution‑‑Only related eye‑witnesses produced by prosecution‑‑Statements of eye‑witnesses found to be suffering from infirmities like material contradictions/discrepancies‑‑Recovery of weapon of offence disbelieved‑‑Prosecution, held, had failed to prove its case beyond reasonable doubt‑‑Accused given benefit of doubt and acquitted.

‑‑‑S. 302/34‑‑Recovery‑‑Recovery of dagger (weapon of offence) effected after ten days of occurrence and after five days of arrest of accused‑ Delay in recovery of weapon of offence, held, threw doubts on its genuineness‑‑Keeping blood‑stained dagger by accused in his house without washing off blood for ten days found to be very strange‑‑ Recovery disbelieved in circumstances.‑‑[Recovery].

All Ahmad Malik for Appellant.

Sardar Muhammad Khurshid for the State.

Date of hearing: 26th June, 1985.

These two Criminal Appeals Nos. 298/83 by Ghulam Hussain and 353/83 by Ghulam Ahmad appellants, arise from the judgment of learned Additional Sessions Judge, Sialkot whereby he on 11‑5‑1983 convicted them under section 302/34, P.P.C. for causing the death of Abdul Sattar and sentenced them to imprisonment for life and a fine of Rs.10,000 each, in default thereof further R.I. for 2 years. It was directed that the fine if realized‑ half of the same be paid to the legal heirs of the deceased as compensation. I propose to dispose of these appeals through single judgment.

2. The occurrence took place at about 5.30 p.m. on 2‑5‑1982 in village Kakeywali of P.S. Saddar, Sialkot. The F.I.R. Exh. P.D. was lodged by Ghulam Hussain P.W. 6, the father of the deceased on the same day at 6.15 p.m. There was no motive for the murder of the deceased before the date of occurrence.

3. The circumstances giving rise to the main occurrence were that on the fateful day at about 5.30 p.m. Ghulam Hussain complainant, Abdul Sattar deceased and Irshad Ali P.W. (not produced) were sitting in the house of the complainant. They learnt that Ghulam Hussain and Ghulam Ahmad appellants were installing a door on the land in the occupation of Ghulam Hussain complainant at the behest of Muhammad Shafi who was a co‑sharer of that land with the complainant. On this the complainant alongwith the deceased and Irshad Ali P.W. went the spot and forbade the appellants from installing the door where upon the appellants abused them. The alarm attracted Nazir Ahmad P.W. 7 to the spot. Abdul Sattar deceased then demolished the door by push. The appellants then left that place abusing and threatening with dire consequences. Shortly thereafter, Ghulam Ahmad appellant armed with a dagger and Ghulam Hussain appellant empty handed returned to the scene. Ghulam Hussain appellant caught hold of Abdul Sattar deceased and instigated Ghulam Ahmad to kill him. Ghulam Ahmad appellant gate a dagger blow on the neck of the deceased which piarced through and through. Abdul Sattar fell down and died instantaneously The appellant then ran away.

4. On 3‑5‑1982 at 10.00 a. m. Dr. Muhammad Hanif P.W.1 conducted post‑mortem examination on the dead‑body of Abdul Sattar. He found following injuries:‑

(1) "Incised wound 2 " x " x communicating with injury No. 2 through the neck transversely oblique, on outer‑mid left neck.

(2) Incised wound " x 1/8" x communicating with injury No.1 mid right‑side of neck, transversely oblique."

In his opinion, the death occurred due to these injuries which were sufficient to cause death in the ordinary course of nature. The injuries were caused by sharp‑edged weapon. The death was immediate and the time between death and the post‑mortem was within a day.

5. The appellants were arrested on 7‑5‑1982. Ghulam Ahmad appellant led to the recovery of blood‑stained dagger Exh. P.1 on 12‑5‑1982 which was taken into possession vide memo. Exh. P.M. The Serologist Report Exh. P.O. shows that the dagger was stained with human blood.

6. To prove its case, prosecution examined 10 witnesses. Ghulam Hussain P.W. 6 and Nazir Ahmad P.W. 7 have deposed about the circumstances leading to the main occurrence and have also given the ocular account thereof. They stated that it was within their view that Ghulam Hussain appellant caught hold of Abdul Sattar deceased where Ghulam Ahmad gave dagger blow. Muhammad Rauf P.W. 8 anal Manzoor Hussain A.S.‑I., P.W. 10 stated that Ghulam Ahmad appellant had led to the recovery of blood‑stained dagger Exh. P. 1 C. from his residential house. As already stated Dr. Muhammad Hanif had conducted port‑mortem examination on the dead‑body of the deceased. The rest of the evidence is almost of formal nature.

7. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. In reply to Question No. 7, i.e "Have you anything else to say " Ghulam Hussain stated:‑--

"I am innocent. The actual position is that it was originally a plot measuring 18 Marlas belonging to Allah Ditta father of Ghulam Hussain complainant and Muhammad Shafi son of Wadhawa jointly in equal shares. On the death of Allah Ditta his shard measuring 9 Marlas was inherited by his widow Mst. Rabia Bibi, his four sons namely Ghulam Rasul, Ghulam Hussain complainant, Hussain and Ghulam Haider and three daughters namely Mst. Sughra Bibi, Rasulan Bibi and Mst. Hamidan Bibi. In the 1973, Ghulam Hussain complainant, his brother Ghulam the and his mother Mst. Rabia Bibi sold their entire share in this plot alongwith their uncle Muhammad Shafi who sold half of his land through a registered sale‑deed in favour of All Muhammad son of Hasham. The certified copy of the sale‑deed is tendered in evidence as Exh. D.B. This sale‑deed was registered on 9‑4‑1973 and was attested by the Registrar on 6‑4‑1973 and was entered in register on 9‑4‑1973 and as such, the complainant Ghulam Hussain his brother Ghulam Haider and his mother Mst. Rabia Bibi ceased to the owner in this piece of land. Muhammad Shafi aforementioned a real uncle of Ghulam Hussain complainant sold the remaining half of his share in this plot in my favour through a registered sale‑deed, dated 18‑11‑1981. He also put me in possession by installing a door. I tender in evidence certified copy of the said sale‑deed in my favour as Exh. D.C. I also tender in evidence the certified copy of the Register Haqdaran relating to the year 1966‑67 in respect of Khasra No. 304 the plot in question which is Exh. D.D. All these documents be read as part of evidence in the case. I have been falsely involved in this case because I am the owner in possession of the said plot and in order to prevent me from bringing the true facts to light."

In reply to Question No. 8, i.e. "Have you anything else to say " Ghulam Ahmad stated:‑-

"I am innocent. On the day of occurrence, it was about 4.30 or 5.00 p.m., when I learnt that the complainant party was illegally demolishing the door, lawfully installed in the plot belonging to my cousin Ghulam Hussaiq. I rushed there. I tried to stop them from demolishing. When I tried to intervene, Abdul Sattar tried to assault me apprehending danger to my life. I took out a small knife from my pocket. I gave him one injury. My cousin Ghulam Hussain was not even present at the spot."

No witness was produced in defence.

8. Learned counsel for the appellants submitted that prosecution has failed to prove its case beyond reasonable doubts, inasmuch as, the two eye‑witnesses are related to the deceased and no independent witness from the locality was produced by the prosecution. The learned counsel also stated that the parties have entered into a compromise and Criminal Miscellaneous No. 2/85 in this behalf has been filed by Ghulam Hussain complainant. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

9. I have considered the submissions made by the learned counsel for the parties with care. I find that the occurrence took place in an area which is surrounded by residential houses; that only two related eye‑witnesses have been produced by the prosecution; that the A statements of the eye‑witnesses suffer from infirmities such as material contradictions/ discrepancies and that no independent person of the locality has been produced by the prosecution. The occurrence took place on 2‑5‑1982 and the recovery of blood‑stained dagger was effected on 12‑5‑1982. The appellants were arrested on 7‑5‑1982. The delay in the recovery of weapon of offence throws doubts on its genuineness. Strangely enough, Ghulam Ahmad appellant kept blood‑stained dagger in his house without washing off the blood for 10 days. For all these reasons, I am of the view that the prosecution has failed to prove its case beyond reasonable doubts.

10. For what has been stated above, giving them the benefit of doubt, the appellants are acquitted of the charge. They shall be released forthwith, if not required to be detained in any other case.

H.A.K. Appeal accepted.

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