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Criminal Appeal No.225 and Murder Reference No.135 of 1982, decided on 26th April, 1987.

---S.302--Prosecution story appearing to be highly improbable--No evidence available to corroborate prosecution story---Evidence of witnesses belied by medical evidence--Suggestion that it was a blind murder and story was concocted present on prosecution record--First information report was not promptly lodged--Investigation at first instance and deliberations before recording first information report not ruled out--Statement of deceased said to have been recorded in hospital not confidence inspiring--Deceased after receiving injuries was hardly in a fit physical condition to make statement giving details, names of places and motive--Recovery of Kurta and knife of accused was made from an open place after three days when accused could easily remove them--Recovery as such was not sufficient to warrant conviction on a capital charge--Prosecution, held, had failed to prove its case beyond reasonable doubt against accused-- Accused acquitted in circumstances.

Mrs. Fakhar-un-Nisa for Appellant.

Tassadaq Hussain Jilani, A.A. -G. for the State.

Dates of hearing: 25th and 26th April, 1987.

--This order will dispose of Murder Reference No.135 of 1982 and Crl. Appeal No.225 of 1982 as these are connected matters.

2. Relevant facts for the disposal of these matters are that according to the prosecution Muhammad Yaqub (deceased) resident of village Bootewala, P.S.Makhdoom Rashid, District Multan, set off on 1-6-1979 at 1.00 'p.m. alongwith Allah Bakhsh (accused) to recover his loan of Rs.1,600 from one Mushtaq Ahmad, resident of Chak No.140/9-L of P.S.Dera Rahim, District Sahiwal. They reached the graveyard of the aforesaid Chak at 11.00 pm Allah Bakhsh suddenly took out a knife and inflicted a blow on his abdomen. While warding off another assault, his left hand was also injured. The motive was that Allah Bakhsh had illicit relations with his wife and wanted to get him out of the way. This is the version stated to have been given by Muhammad Yaqub when the latter reached in front of the house of Muhammad Aslam, P.W.6 where Ashiq Ali, P.W.7 and Mukhtar Ahmad, P.W.8 had also gathered. The injured was taken to the District Headquarters Hospital, Sahiwal where he reached at 12.30 p.m. On 2-6-1979 he was examined by Dr.Muniruddin, Medical Officer, P.W.1 who found the following injuries on the person of Muhammad Yaqub.

(1) Incised wound x 1/6" skin deep on the left palm.

(2) An incised wound 1 x 1" x deep going on abdomen omentum is protruding out, corresponding cut is also present on the shirt."

The doctor found "the patient in state of shock, B.P. 80% pulse 120 per minute, weak. Injury No.2 was grievous. Injury No.l was simple. All the injuries were caused by sharp-edged weapon and duration was about 12 hours." Copy of medico-legal report is Ex.P.A.

3. FIR Ex.PE was recorded at 3.30 p.m. on 2-6-1979 on the statement of Muhammad Aslam,'P.W.6 at the P.S. Dera Rahim, District Sahiwal by Muhammad Akbar the then ASI, P.W.10. Statement of the injured Ex.PR is stated to have been recorded the same day i.e. 2-6-1979. He died of the injuries on 6-6-1979 at 2.00 a.m. post-mortem examination was conducted the same day at 12.00 noon vide Ex.PB. According to the opinion of Dr.Muniruddin, P.W.1 "the duration between the injuries and death was about 74 hours and between death and post-mortem was 10 hours". The doctor had examined the injured when the latter was brought to the hospital. He stated in cross-examination'. that "when the deceased was brought in the hospital in injured state he was not capable of speaking. The patient was under shock due-to the receipt of injuries. This state of shock could be produced due to the infliction of injuries as mentioned under Injury No.2 in the Medico-legal report." He added that "It is probable that the deceased might have fallen down after the receipt of injury No.2. It is also probable that after the receipt of said injury the patient was not capable of walking. He could however walk for a few paces."

4. P.W.6 Muhammad Aslam, P.W.7 Ashiq Ali and P.N'.8 Mukhtar Ahmad stated in Court what they had been told by Muhammad Yaqub when the latter had reached in front of the house of P.W.6 Muhammad Aslam in the injured condition. P.W.9 Muhammad Anwar was produced to say that Allah Bakhsh accused while in police custody led to the recovery of blood-stained Kameez P.3 belonging to him from near the village graveyard. A blood-stained knife P.4 was also found wrapped in the said shirt. Both these articles were taken into possession by the I.O. vide recovery memo. Ex.PH signed by him. These were sealed into a parcel. These were found to be stained with human blood by the Serologist vide Ex.PO.

5. Investigating Officer Muhammad Akbar, S.I.appeared as P.W.10. After the close of the prosecution evidence the accused was examined under Section 342 Cr.P.C. He denied the allegations and stated that he was falsely implicated in this case at the instance of one Yunas and one Muhammad Din of village Bootewala, District Multan who were inimical towards him due to party faction in the village. The investigating officer was recalled to record his supplementary statement about recording the statement (Ex.PR) of the deceased. The accused was asked about it and he said that "it is incorrect. This evidence has been fabricated by the prosecution in order to strengthen their case. I have been falsely implicated in this case. My statement recorded in this Court on 20-6-1982 may also be read in this bahelf."

6. Accused Allah Bakhsh was found guilty under Section 302, PPC for the murder of Muhammad Yaqub and was sentenced to death subject to confirmation by the High Court. He was also fined Rs.2,000, in default to undergo two years' R.I. The fine, if recovered was to be paid to the legal heirs of the deceased other than his wife who was said, by the learned Judge, to be the root cause of the incident. This is vide judgment of the learned Additional Sessions Judge, Sahiwal dated 19-7-1982. The convict has filed the above-titled appeal. Both the reference and the Appeal have been heard together.

7. Learned counsel for the appellant has submitted that the motive given is that while the deceased and accused were coming together at the dead of night at 11.00 p.m. the accused gave knife blows as he was carrying on with the wife of the deceased and wanted to get rid of the deceased. Learned counsel submitted - that, it is neither natural nor normal that the deceased should be going together with a person at the middle of night about whom he believed that that person was carrying on illicit relations with his own wife. It was next submitted that the account given by the three P.Ws. 6, 7 & 8 that the deceased had come in an injured condition from the place of occurrence, the area of the graveyard to the house of P.W.6 Muhammad Aslam and stated what is attributed to him, is in contradiction with the medical evidence. It was stated by Muhammad Aslam, P.W.6 in his cross-examination that "the village graveyard is at a distance of more than three squares from my house." P.W.8 Mukhtar Ahmad said that the distance was two squares. Learned counsel submitted that according to the medical evidence, "it is probable that the deceased might have fallen down after the receipt of injury No.2. It is also probable that after the receipt of said injury the patient was not capable of walking., He could however walk for a few paces." Learned counsel submitted) that the injury No.2 was such that it was not possible for the injured to walk two or three squares to reach the house of Muhammad Aslam. As regards the recovery of Kurta P.3 and knife P.4 on the pointing of the accused, it was submitted that the recoveries were from an open place after three days and it is highly improbable that the accused would leave his Kurta and knife at the place of occurrence when he could take away the same alongwith himself as he was not being seen or followed by anybody. It was also urged that the FIR was lodged after delay of 16 1/2 hours. According to the, testimony of Muhammad Aslam, P.W.6, he had sent Khushi Muhammad Chowkidar of the village at about 7.00 a.m. to the Police Station to lodge the FIR. According to Mukhtar Ahmad, P.W.8 the Chowkidar was sent to the Police Station after about 20/25 minutes when Muhammad Yaqub had become unconscious. The police came to the spot on the following morning with the Chowkidar. The contention of the learned counsel for the accused is that FIR was not recorded when information was first received but after preliminary investigation and deliberation at 3.30 p. m. on 2-6-1979. Learned counsel also submitted that no blood stained earth was from the place where the injured had reach i.e. in front of the house of Muhammad Aslant, P.W.6. If in fact had reached there, there must have fallen some blood on the spot because of the nature of the injuries. Learned counsel then submitted that there is no evidence whatsoever as to whether anybody had seen the accused with the deceased while they set off from Multan or throughout the entire journey from Multan to the Chak in the district of Sahiwal, nor there is any evidence that the accused was set r, after causing the injuries going away from the place of occurrence Learned counsel further submitted that the alleged statement (Ex.PR; of Muhammad Yaqub recorded on 2-6-1979 is not a reliable piece evidence for the reason that according to the statement he was injured at 11.00 p. m. His intestine had come out which he had pushed ire and tied the abdomen with a Pagri. He reached the house of P.W.6 Muhammad Aslam at 12.00 in the night. He went unconscious in the Chak (P.Ws.6 & 8). The Doctor who examined him at the hospital next day i.e. 2-6-1979 at 12.30 p.m. said that "It is correct that when the deceased was brought in the hospital in injured condition he was not capable of speaking" It was submitted that these face, i.e. the nature of injuries and state of the injured makes it quite impossible that he.would have made any statement on 2-6-1979. Alleged statement Ex.PR is pure fabrication. Besides that the motive allege,: against the accused would make it highly improbable that the injured would be going about in the middle of the night with the accused. Learned counsel submitted that according to the post-mortem report Ex.PB the injured Muhammad Yaqub died at 2.00 a.m. on 6-6-1979. The probable time between injuries and death was stated to be '7-1 hours' which would mean that he was injured at about 12.00 in the night of 2/3rd June, 1979. The prosecution case on the other hand is that he was injured at 11.00 p.m. on 1-6-1979.

8. The learned Assistant Advocate-General has submitted that the statement of the injured can be taken as a dying declaration an('; relied upon as the same sets out the relevant facts. The three witnesses i.e. P.W.6, P.W.7 & P.W.8 also say that they were told the same story by the deceased. These witnesses are independent and have nothing against the accused to depose falsely. Learned counsel submitted that the discrepancy about the duration of injuries and death seems to have come about on account of some miscalculation because according to the medico-legal report Ex.PA, the injured had arrived in the hospital at 12.30 p.m. on 2-6-1979 and the duration was about 12 hours. Therefore, the injuries would have been inflicted at about 11.00 p.m. on 1-6-1979 as deposed to by the prosecution. Learned Assistant Advocate General appears to be right that the discrepancy about time between the injuries and death seems to be mistake of calculation.

9. We have heard the learned counsel for the parties and perused the record with their assistance. The entire case depends upon as to whether the deceased had said what is alleged to have been said by him. He had said that he had come from Multan and was going to a Chak in Sahiwal to recover a loan. When he was near the graveyard of the Chak he was injured by his companion. The companion had the motive to put him out of the way because the companion was carrying on illicit relationship with his wife. It is highly improbable that the deceased would be travelling in the dead of the night through a graveyard with a person carrying on with his own wife. There is no evidence at all to show that the two persons had set off together from Multan, nor, there is any evidence of anybody seeing them together throughout their journey, nor, any evidence that the accused was seen after the occurrence to be going away from the place of occurrence. The evidence of the three witnesses that the deceased had told them about the occurrence and motive has to be seen in the background of what has been said above and also keeping in view of injury No.2 about which the medical evidence is that probably the injured could 'walk for a few paces', whereas, the distance from the place of occurrence to the house of Muhammad Aslant where the deceased is said to have told his story is two/three squares. It would hardly be possible to cross the distance and make a coherent statement. There was suggestion that it was a blind murder and since the deceased was found on the land of Muhammad Aslant, P.W.6, therefore, to smoke screen lest he be involved, the story was concocted. Then, the FIR is not prompt. It is delayed by 161 hours. Investigation in the first instance and deliberation before recording of FIR cannot be ruled out. The statement of the deceased said to have been recorded in the hospital on 2-6-1979 (Ex.PR) is not confidence inspiring. The injured had fallen unconscious in the middle of the night in the Chak. When he was brought to the hospital at 12.30 p. m. he was not, according to medical evidence, 'capable of speaking. The patient was under shock due to receipt of injuries'. He would hardly be in fit physical condition to make the statement giving the details, names of places and motive. Moreover, it has to be noticed that the deceased had a motive against the accused per his own statement that the latter was carrying on illicit relation with his wife. The recoveries of the Kurta and knife from an open place after three days when the accused could easily take away these things with himself are not sufficient enough to warrant a conviction on a capital charge. In all the circumstances it cannot be said that the prosecution has proved its case beyond reasonable doubt against the accused-appellant. In this view of the matter, his appeal is accepted and he is acquitted. He shall be set at liberty forthwith if not wanted in any other case. Reference is consequently rejected. The sentence of death is not confirmed. Thus, the two titled matters are disposed of.

M.Y.H./A-143/L Appeal accepted.

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