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Criminal Appeal No. 224 of 1986, decided on 24th June, 1987.

‑‑S. 302/34‑‑Place of Wardat surrounded by cultivations and houses located at a distance of forty to fifty paces and occurrence taking place when Haris and graziers were usually in fields but none of the persons from village and surrounding cultivations were cited or examined as a witness‑‑Presence of complainant and prosecution witnesses who claimed to be eye‑witnesses doubtful and their conduct was unnatural‑ Complainant and prosecution witnesses remained satisfied with giving Hakals to accused but neither raised any cries nor tried to chase them‑ First information report was lodged with delay which went a long way to show that incident was an unwitnessed one‑‑Complainant made a statement before Court which was different to that he gave in the first information report which was apparently done to cover delay in lodging first information report‑ ‑Accused's alleged enmity with a Zamindar to whom complainant apprised of facts of incident immediately after incident but said Zamindar was not examined by prosecution perhaps for oblique motive nor any reason was given for giving him up‑‑Medical evidence instead of supporting prosecution case contradicting it‑‑Held, prosecution failed to prove its case beyond reasonable doubt‑‑Conviction and sentence set aside in circumstances.

Raham Ali and 3 others v. The State 1976 P Cr. L J 17; Nura v. The State P L D 1966 Lah. 383 and Pir Mohammad Khan and 2 others P L D 1970 Kar.399 rel.

‑‑‑S. 302/34‑‑Appreciation of evidence‑‑Fact that witnesses had no enmity with accused, held, would not make their evidence sufficient for conviction.

Pir Mohammad Khan and 2 others P L D 1970 Kar. 399 rel.

‑‑‑S. 302/34‑‑Medical evidence shows only cause of death and nothing else.

Mohammad Hayat Junejo for Appellant.

Rashid Tariq Khan for the State.

Date of hearing: 10th March, 1987.

The appellants were charged under section 302 read with section 34, P.P.C. for committing murder of one Achar, and were tried before the learned Ist Additional Sessions Judge, Nawab Shah, who has convicted them under section 302/34. P.P.C. and sentenced them to imprisonment for life, and to pay fine of Rs. 2,000.

The brief facts of the prosecution case are that on 6‑9‑1983 one Rustam s/o Murid lodged a report at P.S. Sakrand inter alia alleging therein that they are four brothers. He and Achar were joint, and the remaining two were separate from them. He was cultivating the land of Ghulam Nabi Rahoo, while his brother Achar and one Ismail Khoso used to deal in cattle business as partners. Manthar s/o Allah Bux Machhi and Murid Rahoo are also Haris of Haji Ghulam Nabi, who are settled there earlier to the complainant party. In the morning complainant, his brother Achar, and Ismail Khoso came together at bus stand Sabu Rahoo in connection with some work. His brother Achar had Rs.1,500 with him. They went to take tea at the hotel of Khan Mirbahar, where Manthar Machhi and Murid Rahoo were also sitting. 'The complainant party was sitting near them. After taking tea Achar brother of the complainant took out money from the pocket and paid the bill. Manthar Machhi and Murid Rahoo saw money with Achar. Then complainant went in the town, Achar and Ismail Khoso had left prior to the complainant. At noon time Achar came back at Sabu Rahoo and met the complainant. He informed the complainant that he had given Rs.1,500 to Ismail who needed the same. His brother Achar told him to go to the village, and he would come after some time. The complainant came to the village and started cutting grass for cattle from sugarcane cultivation of Haji Ghulam Nabi. Bakhshan s/o Usman and Bilwal s/o Kauro by caste Talpurs were also cutting grass near the complainant. At about 2‑00 p.m. they heard cries of Achar brother of the complainant coming from sugarcane cultivation near them. On hearing cries all the three rushed there and saw Manthar Machhi and Murid Rahoo overpowering his brother Achar. Murid Rahoo was twisting his testicles and pulling his penis, while Manthar was sitting over him pressing his neck with his knees. The complainant party advanced towards them giving Hakkals. Having seen the complainant party approaching, the accused ran away. The complainant party saw that the testicles of Achar were twisted and skin had pealed off from his penis, and there were marks of fist blows at his left eye. He was ‑unconscious and after some time he expired. Thereafter leaving the above witnesses over the dead body, the complainant went to inform his Nekmard Haji Ghulam Nabi Rahoo at his village who advised him to report to the police. The complainant then went to the Police Station Sakrand and lodged report at 6‑15 p.m. The F.I.R. was recorded by W.H.C. Mohammad Khan. The F.I.R. has been produced as Ex.14. After recording the F.I.R. Mohammad Khan W.H.C. accompanied the complainant to the place of Wardat and prepared Mashirnama of Wardat in presence of Mashirs Ramzan and Budho. The Mashirnama has been produced as Ex.9. The dead body of deceased Achar was lying at the Wardat and inquest report was prepared in presence of the same Mashirs, the inquest report has been produced as Ex.10. The dead body was referred to the Medical Officer Sakrand for post‑mortem. In the meanwhile S.H.O. Ghulam Mustufa arrived at the Wardat and, therefore, the investigation was handed over to him. S.H.O. Ghulam Mustufa examined P.Ws. Bilawal, Mohammad Ismail, Ghulam Nabi Rahoo and Bakhshan. On 7‑9‑1983 he arrested accused Murid and Munthar and prepared such Mashirnama, the same has been produced' as Ex.11. Nothing was recovered from the accused. On 15‑9‑1983 he produced the witnesses before Mukhtiarkar for 164, Cr.P.C. statements. He verified the Mashirnamas of Wardat and inquest report. After complying with necessary formalities he challaned the accused before the Court of law.

A formal charge was framed against the appellants u/s 302/34, P.P.C. to which they did not plead guilty.

At the trial prosecution examined Chibhar Khan Khoso Police Constable P.W.1. He was given the dead body on 6‑9‑1983 for handing over to the M.O. Sakrand for post‑mortem. After post‑mortem M.O. delivered dead body to him, and he delivered the same to it's relatives. He was given clothes of deceased which he had deposited at the police station.

P.W.2 Ramzan had acted as Mashir in this case. Police had visited the Wardat in his presence and had prepared such Mashirnama. The same has been produced by him as. Ex.9. According to him there was no blood at the Wardat but there were signs of struggle in that cultivation and the crop was broken in that area. The dead body was lying in the sugarcane cultivation and the police had prepared such inquest report which he had signed, the inquest report has been produced by him as Ex. 10. On the next day both the accused were arrested by the police in his presence and such Mashirnama has been produced by him as Ex.11. In cross‑examination he has stated that he resides. in Sabu Rahoo village which is about 4/5 Survey numbers away from the place of incident. He is man of Allah and not of Haji Ghulam Nabi. He was at bus stand Sabu Rahoo where he joined police party and came to the place of Wardat. He had come to Sakrand as dead body was also brought there for post‑mortem. The police had come at the Wardat about 15 minutes after Bipahari' prayers. Azan of Bipahari' prayers takes place some times at 1‑30 p.m. and some times at 2‑00 p.m. He did not remember as to how many signatures were obtained from him by the police at the place of Wardat. After post‑mortem on dead body it was brought to it's village and he had also come with those people as they were Raj people. Again stated, he had not gone to the hospital with the dead body nor to it's village. He had gone then in Sakrand town and returned back to his village, On the following day he was available at bus stand Sabu Rahoo as they had dealings with grain merchants there and had been contacting them regularly. Accused were arrested at Sabu Rahoo bus stand, There are many shops and hotels also at Sabu Rahoo bus stand. It is not a fact that he was deposing falsely.

P.W.3 Rustam has deposed that deceased Achar was his brother. He used to reside with him. He was murdered about two years back. He used to deal in cattle business alongwith Ismail Khoso. On the day of incident the complainant and his brother Achar had gone from their village to Sabu Rahoo bus stand and had sat in the hotel of Khan Mirbahar. Ismail Khoso was also with them. In the hotel accused Manthar and Murid were also sitting at that time. His brother had Rs.1,500 in his pocket, while paying the bill for tea he had taken out the entire money which was seen by the accused. The complainant remained sitting there while Ismail and deceased Achar went to Sakrand in connection of their business. He had to recover money from a person and was waiting for him there. At about 12 noon his brother Achar came back and enquired from him as to why he was still there, on which complainant told him that the man for whom he was waiting had not been able to come. He, however, told the deceased that he was leaving for the village just now as he had to cut grass. He went to his house, brought the sickle and started cutting grass from sugarcane cultivation. P.W. Bakhshan was also cutting the grass at that time near him. There was little distance between them. P.W. Bilawal was also cutting the grass. At about 1‑30 or 2 p.m. they heard cries and rushed towards that side. They saw Achar lying and raising cries. Accused Manthar was sitting over him whereas accused Murid was holding his testicles with one hand and his other hand was in the hair of Achar. The complainant gave Hakal, and thereafter the accused lef t his brother and ran away. They all went near Achar. He was still alive but breathed his last immediately thereafter. He then went to inform Nekrnard Haji Ghulam Nabi but he was not available at his Otak. He returned at about 5 p.m. He narrated the entire incident to him to go and lodge report. The complainant then went to Sakrand and lodged his report, the same has been produced as Ex 14. In cross- examination he has deposed that they had come at Sabu Rahoo at about 8 or 10 a.m. P.W. Bakhshan was not his cousin but they are only caste‑fellows. It was incorrect that P.W. Bilawal and Bakhshan reside in the same house. They have separate houses. It is correct that there was sugarcane cultivation on both sides of the path. His house is in the south‑ east of Wardat. P.W. Bakhshan was about 15‑16 ft. away from him, while Bilawal was about 20 ft. away from him, while they were cutting the grass. They had cut the grass for about half an hour before hearing the cries. He had come to the cultivation from the side of his house while Bakhshan and Bilawal had come from the west. When they came at the distance of 15‑16 ft. from the accused they started running towards north. They had gone in sugarcane a cultivation. He had gone to that path and then went through it to the village of Haji Ghulam Nabi. It is not correct that Haji Ghulam Nabi himself had taken him from his Otak to P.S. Sakrand. He had come on foot from the village of Haji Ghulam Nabi upto Sabu Rahoo, and had gone from there in bus to Sakrand. The village of Haji Ghulam Nabi will be about 4/5 Survey numbers away from Sabu Rahoo. Haji Ghulam Nabi Rahoo is a big Zamrndar. He had his jeeps and car. It is not correct that he had not waited for Haji Ghulam Nabi Rahoo at the village. It is not correct that explanation given for delay in lodging the F.I.R. is not correct. P.W. Bilawal and Bakhshan were available at the dead body when he came there alongwith the police. Some other persons were also there with them. It is not correct that he had not witnessed the incident. It is not correct that he learnt about the death of his brother through others and then had come there. It is not correct that he had implicated the accused persons falsely at the instance of Haji Ghulam Nabi Rahoo. It is not correct that there is dispute over accounts and share of produce between accused and Haji Ghulam Nabi Rahoo. Roshan Talpur is related to him. It was not a fact that they have enmity with Balochs of Balochistan over a lady. It was not correct that they had detained a Baloch lady and have got her married with Roshan Talpur. It was also not correct that they had killed some Baloch. He has further deposed that the distance between the place of Wardat and the place where they were working will be less than a Jareb (half acre). They had left the sickles and grass in the field and rushed to the place of incident. He had not taken those things from there before lodging the F.I.R. He had not shown the grass which was cut by them to police. He had not stated before police that he had told his brother that he was still at Sabu Rahoo for the purpose of recovering money but he had only told them that he had told his brother that he was going to the village

P.W.4 Bakhshan has deposed that on the day of incident he was cutting grass from the cane cultivation of Haji Ghulam Nabi Rahoo. Rustam and Bilawal were also cutting grass. At about 2‑00 p.m. they heard cries from northern side. They all rushed there and when they went near the place they saw Achar lying, Manthar was sitting over him and his hands were on the throat of deceased Achar. His knees were also on the throat of the deceased. One hand of Murid was in the testicles of the deceased and other hand in his hair. When they went near and gave Hakkals asking the accused as to whom they were killing both of them started running. They ran towards north. They went near the victim and saw that he was Achar. He expired within 3‑4 minutes of their arrival. Then complainant Rustam went to inform Haji Ghulam Nabi Rahoo about the incident leaving him and Bilawal at the dead body. At about 7‑00 p.m. complainant brought police there. Police had recorded their statements after inspecting the place of incident and seeing the dead body. Police had then given dead body to them for taking to hospital. His statement under section 164, Cr.P.C. was recorded. In cross‑examination he has deposed that during the days of the incident he used to work as labourer with masons. He used to work some day at Sabu Rahoo, some day at Sakrand and other places including village of Haji Ghulam Nabi Rahoo. Complainant was not his cousin but they are only caste‑fellows, so also Bilawal. He has his house at Sabu Rahoo bus stop. There was a cane cultivation in between their houses and the place of incident. In the next month of this incident he was employed by contractor of Naka (District Export Tax) Saboo Rahoo. He and Bilawal kept on sitting at the dead body till the arrival of police. Some persons from the village of the complainant had come there as one grazier had heard the cries of complainant and then informed the villagers. He did not remember if he had come first for cutting the grass or complainant had come first. He and complainant were cutting the grass near each other, while Bilawal was cutting grass at some distance from them. He and complainant had seen Bilawal only when they started running towards cries and he also came running. Since there was cane cultivation, therefore, while cutting the grass they were not seeing each other. However, they had a talk inter se before the incident. On the noise of moving of a man and cutting of grass complainant enquired from him as to who he was, and then he had a talk telling him about his presence. His brother‑in‑law Sanwan had buffaloes and he had goats. He had been residing with his brother‑in‑law Sanwan jointly in the same house and had gone to cut the grass for their cattle. He used to cut grass for cattle whenever he was free. He had two goats, while Sanwan had two buffaloes. Those buffaloes were property of Haji Ghulam Nabi Rahoo, and Sanwan used to maintain them and use their milk on share. Sanwan had half share in those buffaloes as Haji Ghulam Nabi had purchased those when they were very small and thereafter Sanwan maintained them. Sanwan has one ailing brother who is suffering from T.B. It was incorrect that he was deposing falsely at the instance of Haji Ghulam Nabi Rahoo. The sugarcane cultivation from where they were cutting the grass was of Haji Ghulam Nabi Rahoo. He cultivates the sugarcane under the self‑ a cultivation policy and also through Sirriya Haris giving them 1/4th share. He could not say if that sugarcane where they were cutting the grass was of any Sirriya Hari, nor he could name any one. The cane bushes/sticks were broken at the actual place of incident. He did not notice any broken bushes around that place. The cane bushes were broken in between the Nali and the place where deceased was lying. Before hearing the cries they had not heard the noise of movements in the cultivation at the place of incident. It is not correct that Achar eras missing and on search they found him lying dead in the sugarcane, voluntarily says he had seen him being killed.

P.W.5 Bilawal has deposed that mostly he remains in Sakrand town and works there as labourer: Sometimes he returns back to his house at Sabu Rahoo in the evening and sometimes not. The marriage of his daughter was fixed during the night following the day of incident, therefore, he was at his house on the day of incident. At 1 or 2 p.m. he had gone to cut grass from the sugarcane cultivation of Haji Ghulam Nabi. He had goats and wanted to cut grass for the same. In his absence his wife used to cut grass. From same sugarcane cultivation Bakhshan and Rustam were also cutting the grass. After some time they heard cries from the cane cultivation. They went running, and when they reached near that place they saw deceased Achar lying on the ground and accused Manthar and Murid over him. They gave Hakkals on which both the accused ran away. Thereafter they went to Achar who was still alive and had breathed his last immediately thereafter. The loincloth of Achar was lying by the side and they saw abrasion marks on his testicles. Then the complainant went to inform Haji Ghulam Nabi Rahoo leaving them at the dead body. Police had come at the Wardat at 6‑45 p.m. or 7 p.m. Police had examined him at the place of Wardat on that very day. He had then gone with the dead body upto Sakrand and then returned back to his house as marriage of his daughter was fixed there. In cross‑examination h. has deposed that his brothers are Haris of Haji Ghulam Nabi Rahoo since 30/40 years. Previously he also used to work as a Hari. He had left the Harap before the days of incident. It is correct that during the days of incident he was serving as employee of Town Committee Sakrand as Piri Tax Collector. While cutting the grass in the cultivation he, complainant and Bakhshan were visible to each other. The complainant and Bakhshan were cutting grass from same Bara, whereas he was in different Bara at some distance. He did not remember as to who came there first for cutting the grass. They all the three were not talking inter se while cutting the grass. He cannot say about complainant and Bakhshan. He had 8/10 heads of goats. He did not remember as to whether he had stated before the police that he is Hari of Ghulam Nabi Rahoo. During the days of incident P.W. Bakhshan used to stay at his house, and take meals there occasionally. Mostly he used to remain out in connection of his labour. For some time in the recent past he had even gone to Punjab for the purpose of service. During the days of incident Bakhshan used to reside in the house of his sister at Sabu Rahoo. That sister of Bakhshan is married with Sanwan. When police arrived there many persons including ladies were there at the place of incident. It is not correct that he had not witnessed the incident and that he was giving false evidence at the instance of Haji Ghulam Nabi.

P.W. 6 Illahi Bux has deposed that he is Tapedar of Tapo Sabu Rahoo and had prepared the sketch with the help of tape. According to him point A was the place where dead body of Achar was lying. Point B denotes the watercourse and it was 130 ft. away from point A towards east. Point C is the place where P.W. Bilavial was working at the time of incident. It is 220 ft. away from point A towards south‑east corner. Point D denotes the place where P.W. Bakhshan and. complainant were present. It is about 250 ft. away towards south‑east corner of point A. He has produced the sketch as Ex. 18. In cross‑examination he has stated that there were 30 to 40 houses of Talpurs towards west of Wardat at the distance of about 40‑50 paces. On the eastern side of these houses there are about 12‑13 houses of Buriras. One can hear the cries in the village if they are raised from the point shown in the sketch in whole of the Survey number.

P.W.7 Mohammad Khan has deposed that on 6‑9‑1983 he was working as W.H.C. at P.S. Sakrand. Complainant Rustam Ali had come to the police station at 6‑15 p.m for lodging the report which he had recorded verbatim. Ex.14 was the same. He went to the Wardat and prepared the Mashirnama of Wardat and inquest report in presence of Mashirs Ramzan and Budho, and the same have been produced as Ex.9 and Ex.10. In the meanwhile the S.H.O. arrived there and he handed over the papers to him. In cross‑examination he has deposed that he was at the Wardat for about one hour. He had called both Mashirs through Constable when they reached at the Wardat. He could not say from where the Mashirs were picked up by Constable. No body else was present at the spot except complainant and two Mashirs. He had not seen any bundle of grass cut recently nor any body showed him the grass and sickles. He could not say whether S.H.O. examined any witness m his presence. He could not say whether any person was present at the Wardat.

P.W. 8 Ghulam Mustufa has deposed that on 6‑9‑1983 he was S.H.O. P.S. Skrand. He received investigation of this case. He examined witnesses Bilawal, Mohammad Ismail, Haji Ghulam Nabi Rahoo and Bakhshan. On 7‑9‑1983 he arrested accused Murid and Manthar under Mashirnama which has been produced as Ex.11. Nothing was recovered from the accused. On 15‑9‑1983 he produced the witnesses before Mukhtiarkar for 164, Cr.P.C. statements. He had verified the Mashirnama of Wardat and inquest report which have been produced as Exs. 9, 10 and 11. After necessary investigation he submitted challan in the Court. In cross -examination he has deposed that he knows Haji Ghulam Nabi Rahoo who is a big Zamindar of locality. He is helpful to police. He had seen the Wardat, and the sugarcane cultivation was upto the man's height. The accused were produced by Haji Ghulam Nabi Rahoo at Sabu Rahoo. Both Mashirs were present there.

P.W.9 Dr. Hafeezur Rehman conducted post‑mortem on the dead body of deceased Achar. He started post‑mortem at 7 a.m. and finished it at 9 a.m. on 7‑9‑1983. According to him on external examination he found the following injuries on the person of the deceased:‑

(1) Hard blackish mark 20 c.m. x 8 c.m. on the front and both sides of the neck, with one depressed mark on the left side, two abrasions on the left side, one on the front, one on the chin, 12 on right side and 2 abrasions on the back of the neck.

(2) Bruise 7 c.m. x 2 c.m. on the left orbit.

(3) Abrasion 2.5 c.m. x 1 c.m. on the back of left forearm.

(4) Skin of the penis peeled off and hanging over the gland penis.

(5) Squeezing of testicles present with 2 abrasions on both sides.

On internal examination he found the following injuries:‑

(1) Second and third vertebrae dislocated.

(2) Hard bone fracture.

From the external and internal examination of deceased Achar he was of the opinion that the cause of death was due to dislocation of clavicle vertebrae. All injuries were ante‑mortem. This injury was sufficient to cause death. Time between injury and death was instantaneous and between death and post‑mortem was 12 to 18 hours. In cross‑examination he has deposed that he received dead body at 2 p.m. on 6‑9‑1983. He did not remember as to why he did not perform post‑mortem on 6‑9‑1983. In his opinion the injuries were either by rope or by some other item. If the cause of death was asphyxia it shall congest lungs. If the man is strangulated by a rope or hands it shall cause asphyxia. In the present case he had marked the lungs congested. The injuries Nos. 2 and 3 were caused by some hard blunt substance. The penis is tissue organ without any bone. The testicles can be twisted by hand but it cannot be squeezed by hands. The testicles cannot be squeezed or crushed by a normal hand by using force. The 2nd and 3rd vertebrae could be dislocated by a certain jerks. If the death is caused by asphyxia there may normally be other symptoms such as froth from the mouth and nose and protrusion of eye‑balls. He could not say whether the death was caused by a rope or hands but it is a case of strangulation. He could not say whether this strangulation was made by hand or rope. He could not say with certainty whether the injuries Nos. 4 and 5 were caused by means of hand or by some mechanical means.

After close of the prosecution case the statements of the appellants were recorded under section 342, Cr.P.C. in which they denied the allegations. Accused Murid has further stated that the P.Ws. have given false evidence. They are all relatives of deceased and they were set up against him by their common Zamindar namely Haji Ghulam Nabi Rahoo. That he was Hari of Ghulam Nabi Rahoo who did not pay him due share of Harap, and he had been demanding his share on which he was annoyed and got him implicated in this case. The co‑accused Manthar also denied the allegations and further stated that his further statement was same as that of co‑accused Murid.

The learned trial Judge while relying upon the ocular evidence of complainant, two eye‑witnesses, and medical evidence has convicted the appellants as described above. The present appeal is directed against the said conviction.

I have heard Mr. Mohammad Hayat Junejo for the appellants, Mr. Rasheed Tariq Khan for the State, and have also gone through the R.&P. of the case.

It has been contended by Mr. Mohammad Hayat Junejo learned counsel for the appellants that the case was false and the present appellants were implicated due to enmity with Haji Ghulam Nabi Rahoo who was an influential man and the complainant party were his Haris. It was further contended that the ocular evidence was interested, contradictory, unreliable and was belied by medical evidence. There was no corroboration from any quarter and the conduct of the witnesses was unnatural. He has further contended that the incident was unwitnessed incident, the F.I.R. was belated, the motive behind murder appears to be sex, under the circumstances the appellants were entitled to acquittal.

Mr. Rasheed Tariq Khan learned counsel appearing for the State has contended that there are three eye‑witnesses in the case who have supported the prosecution, and their evidence is further corroborated by the medical evidence. The complainant and P.Ws. had no enmity with the accused and, therefore, the prosecution had proved its case beyond reasonable doubt.

I have considered the contentions of the learned counsel. Admittedly, the place of Wardat was surrounded by cultivations, and the houses of Talpurs and Buriras were situated at the distance of 40 to 50 paces from the place of Wardat. The incident is said to have taken place at 2 p.m. when Haris as well as graziers are usually in the fields but none of the persons from the village and the surrounding cultivations has been cited or examined as a witness. The complainant, P.Ws. Bilawal and Bakhshan claim that they were present in the sugarcane cultivation and were busy in cutting the grass but surprisingly enough they did not point out the grass which they had cut and the sickles to the police. The marriage of daughter of P.W. Bilawal was fixed on the night following the day of incident and according to him some guests had already arrived: in such circumstances his presence in the sugarcane cultivation for cutting grass appears to be doubtful. P.W. Bakhshan was a labourer and according to him he used to do Taghari' labour with masons at Sakrand and other places, and it is a common knowledge that this type of labourers have to work from morning to evening. He even did not know whether the said sugarcane was cultivated by some Hari or was cultivated by Haji Ghulam Nabi himself, under the circumstances his presence at Wardat was doubtful.

Even the conduct of complainant and P.Ws. was unnatural. They remained satisfied with giving Hakals to the accused but they did not raise cries nor they tried to chase and catch the accused. The accused were two in number and there was no allegation that they were armed with any weapon, while the complainant and P.Ws. were three in number. Their houses were also very close to the place of Wardat, and, therefore, had they raised cries and chased the accused, they could conveniently attract people of the village and surrounding cultivations, and catch hold of the accused. Moreover, there is a delay in lodging the F.I.R. in the present case which goes a long way to show that the incident was an unwitnessed incident. According to complainant and P.Ws. the incident took place at about 1‑30 or 2‑00 p.m. and the report was lodged at 6‑15 p.m., the distance between the Wardat and the police station was 6 miles. In the F.I.R. the case of the complainant was that he first went to the village of Haji Ghulam Nabi Rahoo, informed him about the facts of the incident, who directed him to go and lodge the report. But in Court his case was that he went to the village of Haji Ghulam Nabi Rahoo but he was not available there, and, therefore. he had to wait for him. This explanation has been given dishonestly with a view to overcome the question of delay which was very important in the present case. The bus stand was at the distance of 4/5 Survey numbers from the Wardat and the buses used to leave for Sakrand from Sabu Rahoo after short intervals and, therefore, the complainant could have reached police station Sakrand within one hour at the most, even after informing Haji Ghulam Nabi Rahoo as stated in the F.I.R. as he was residing at the distance of 4/5 Survey numbers from bus stand and the distance between Wardat and P.S. Sakrand was 6 miles.

The evidence of Dr. Hafeezur Rehman shows that the dead body was brought to him at 2‑00 p.m. and, therefore, incident must have taken place few hours before 2‑00 p.m., and the F.I.R. was lodged much after the dead body was taken to Taluka Headquarter hospital Sakrand. Even Mashir Ramzan has stated that police came to Wardat at 1‑30 or 2‑00 p.m. Even the inquest report Ex.10 does not show the names of the accused although it was prepared at 7‑5 p.m. Under these circumstances it is difficult to believe that the complainant and P.Ws. Bakhshan and Bilawal had witnessed the incident and they had seen the accused committing murder of the deceased. The circumstances clearly go a long way to show that the incident was unwitnessed incident. The accused have alleged enmity with Haji Ghulam Nabi Rahoo who was admittedly a Zamindar and he was an important witness in the case, as according to the complainant he had immediately gone to his village and apprised him of the facts of the incident, but surprisingly enough he was not examined by the prosecution nor any reason was given for giving him up. Perhaps he was withheld by the prosecution for the oblique motive as otherwise the accused might have cross‑examined him on the point of enmity. The injuries on the person of deceased do suggest that the motive for the murder of Achar could be some sexual dispute.

As far as the question of delay was concerned, in the case of Raham Ali and 3 others v. The State 1976 P Cr. L J 17 it was held by a Division Bench of this Court:‑

"Wasting of one hour at Wardat, although the names of the accused were known to the complainant, was considered as a doubtful feature. It was further observed that it was, therefore, not possible to resist the inference that some suspicion was being entertained about the identity of the appellants:"

In another case Nura v. The State P L D 1966 Lah. 383, it was held:‑

"Penal Code S. 302‑‑Murder committed at 3‑30 or 4‑00 p.m. but F.I.R. lodged at police station (5 miles away) at 9‑45 p.m., delay, held inordinate, possibility of charge being false not ruled out:"

As regards contention of Mr. Rashid Tariq Khan, Advocate that the witnesses had no enmity with the accused and, therefore, their evidence is sufficient for conviction 1 am afraid the contention is misconceived and untenable. In Pir Mohammad Khan and two others P L D 1970 Kar. 399, it was held by a Division Bench of this Court that:‑

"Simply because the witness has no enmity and appears to be independent, does not necessarily mean that what he states is not untrue. Indeed the absence of malice is a factor which assumes importance in assessing the credit of the witness and places him in a favourable position but by no means it is the sole criterion. The truth or falsity of the statement of the witness largely depends upon the circumstances which provide the guideline. To accept the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and .is worthy of belief:"

So far medical evidence is concerned it can only show cause of death and nothing beyond it. In the present case as already pointed out the medical evidence instead of supporting the prosecution case has contradicted it.

In view of the above discussion I am of the considered view that the prosecution had failed to prove its case beyond reasonable doubt, and, therefore, I allow this appeal, set aside the conviction and sentence of the appellants, and acquit them. They shall be released forthwith if not required in any other case.

This appeal was allowed by me on 10‑3‑1987 by a short order, and these are reasons for the same.

M.Y.H./M‑2M/K Appeal accepted.

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