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Criminal Appeal No. 50 and Murder Reference No. 14 of 1980, decided on 23rd January, 1982.
‑‑‑S. 302‑‑Eye‑witnesses purposely suppressing injuries caused to accused and perjured themselves about motive‑‑Held, such witnesses were not at all witnesses of truth.‑‑[Witness].
‑‑‑S. 154‑‑First Information Report‑‑Not a substantive evidence‑‑Reason of delay given in F. I. R. could not be read in evidence‑‑F. I. R. recorded after preliminary investigation, held, lost all sanctity attached to it.
‑‑S. 302‑‑Defence version put in juxtaposition to prosecution version, found to be more probable and reasonable than prosecution story‑ Accused acquitted.
‑‑S. 302‑‑Witness‑‑Testimony of witness could not be rejected simply because of close relationship with deceased but it certainly calls for close scrutiny of his evidence.‑‑[Witness].
Sardar Muhammad Latif Khan Khosa for Appellant.
Ch. Siddique Safdar for the State.
Date of hearing: 23rd January, 1982.
.‑‑This appeal has been filed by Lai son of Faiz Bakhsh, aged 40 years, caste Thaim, cultivator, resident of Mauza Chutala, Tehsil Lodhran, District Multan, against the orders of Additional Sessions Judge, Multan, dated 22‑12‑1979 whereby he was convicted and sentenced to death under section 302, P.P.C. and a fine of Rs.5,000 and in default thereof to undergo further rigorous imprisonment for a period of one year for causing the murder of Iqbal Hussain. He was also sentenced to six months' rigorous imprisonment under section 323, P.P.C. for causing hurt to Muhammad Nazim P.W. The amount of fine, if realised was, ordered to be paid to the heirs of the deceased. Besides the appeal, reference under section 374, Cr.P.C. made by the trial Court for the confirmation of the death sentence awarded to Lal appellant is also before us. Both the criminal appeal (Cr.A. No. 50 of 1980) and the murder reference (Murder Reference No. 14 of 1980) shall be disposed of by this judgment.
2. The incident took place on 20‑8‑1977 at 11 a.m. in village Chutala, Tehsil Lodhran, District Multan, about 19 miles away from Police Station Lodhran.
3. Briefly stated facts of the prosecution case as contained in the First Information Report Exh.P.U. lodged by Khadim Hussain complainant P.W.12 are, that at the relevant time his cousin Muhammad Nazim P.W.11 was irrigating his land with canal water during his turn when Lal appellant accompanied by his brothers Allah Bakhsh, Afzal, Rafiq and his father Faiz Bakhsh (the acquitted accused) each armed with a Lathi arrived there and made a cut in the watercourse to take the flow of water to their land situated at Chah Totanwala at some distance. Muhammad Nazim P.W.11 restrained them from doing so upon which Lal appellant gave him a Lathi blow on his head. He raised alarm hearing which Khadim Hussain appellant P.W.12, Iqbal Hussain deceased and their servant Khan Muhammad P.W. (not produced) who happened to be present nearby looking after their crops reached the spot. They admonished the appellant and his companions, but instead of being appeased the got enraged and attacked them as well. Iqbal Hussain deceased was given stick blow by the appellant which landed on his temple (Kanpati) and he fell down. The remaining four accused persons (since acquitted) started belabouring Khan Muhammad P.W. (not produced) and Muhammad Nazim P.W.11. The commotion raised by the complainant party‑attracted Ghulam Sarwar son of Karim Bakhsh P.W.10, Ghulam Sarwar son of Ghulab P.W. (not produced) to the spot and seeing them approaching, the appellant and his companions made good their escape with their weapons.
4. Iqbal Hussain's condition became serious because of the head injury. He was first taken home and then towards the hospital in a bus at 3 o'clock mid‑night but he breathed his last on the way before any medical aid could be given to him. Khadim Hussain P.W. placing the dead body of Iqbal Hussain outside the police station lodged the report Exh.P.U. with Sub‑Inspector Kifayat Hussain P.W.13 who recorded the same at 5 a. m. on 21‑8‑1977.
5. After recording the First Information Report the Sub‑Inspector started the investigations. He prepared injury statement Exh.P.V. and inquest report Exh.P.B.' pertaining to the deceased and sent the dead body to Civil Hospital, Lodhran, for autopsy under the escort of Constable Ghulam Farid P.W.9. Thereafter he left for the scene of occurrence, the same day. He collected blood‑stained earth from the place where Iqbal Hussain deceased has allegedly fallen injured and made the same into sealed parcel, vide memo. Exh.P.G.
6. He arrested the appellant and four acquitted co‑accused on 23‑8‑1977. The appellant led to the recovery of blood‑stained Sota P.5 which was seized through memo. Exh.P.K. and was made into a sealed parcel. This recovery memo. like other recovery memos. was attested by Muhammad Nawaz P.W.7, Khuda Bakhsh P.W.8 and the Investigating Officer. Serologist reports Exh . P. A . A . confirmed that Sota P.5 was stained with human blood.
7. Dr. Abdul Qadir P.W.1 performed the autopsy on the dead body of Iqbal Hussain on 21‑8‑1977 at 9‑30 a. m. and found a solitary head injury on his person, measuring 6" x 7" on the left side of the head with swelling all over the left side upto the left ear and the outer end of the left eye. Left and right perietal bones and left temporal bones were found fractured underneath this injury, which proved fatal. This injury as opined by the doctor was sufficient to cause death in the ordinary course of nature. It was of 18 to 24 hours duration caused by a blunt weapon.
8. Muhammad Nazim P.W.11 and Khan Muhammad P.W. (not produced) were also examined by the aforementioned doctor for their injuries, the same day, between 11‑30 a.m. to 11‑45 a.m. He observed two injuries on the person of Muhammad Nazim, one being a lacerated wound, 2" x " on the back of the right hand and the second being abrasion. Three injuries were found on the person of Khan Muhammad P.W. (not produced). One of them was a lacerated wound on the head, while the outer two were found on his right fore‑arm and left fore‑arm.
9. Besides the deceased and the P.Ws.,.Dr. Abdul Ghaffar also has medically examined the appellant on 20‑8‑1977 at 6 p.m. and found the following injuries on his person:‑
(1) Lacerated wound 1 " x 1" scalp deep on the right side of the head, 3 " above the right ear.
(2) Swelling with contusion 1‑3/4" x 2" on the back on the left side of the head.
(3') Contusion area 2 " x 2" on the back of the right shoulder.
(4) Contusion 2" x 1" on the back of the left thigh.
Injury No.4 was simple while the rest were kept under observation but later on they were also found to be simple. The duration of the injuries was 6 to 12 hours. Exh.P.E./1 is the copy of the medico‑legal report.
10. The prosecution based its case on various pieces of evidence like, the motive furnished by Muhammad Nazim P.W.11; ocular account given by Ghulam Sarwar P.W.10, Muhammad Nazim P.W.11 and Khadim Hussain P. W.12 recovery of blood‑stained Sota from the appellant attested by Muhammad Nawaz P.W.7 and Khuda Bakhsh P.W.8, besides the medical evidence mentioned above.
11. The appellant when examined under section 342, Cr.P.C. put up a counter‑version saying that at the relevant time he was ploughing his fields alongwith his uncle Ramzan and at that time Khadim Hussain P.W. was irrigating his own lands. A buffalo sat in the watercourse, as a result of which the supply of water to the lands of Khadim Hussain P.W. diminished. He, therefore, came there and quarrelled with the appellant. Later on, he went away and brought with him Iqbal Hussain deceased, Hasham, Nazim, Khadim son of Ramzan, Hassan, Allah Ditta and Khan Muhammad. They opened an attack upon the appellant who was injured by all of them including Iqbal Hussain deceased. The appellant and his companions Ramzan and Hayat acted in their self‑defence. The remaining co‑accused, jointly tried with the appellant, simply denied their participation in the occurrence. No evidence was produced in defence.
12. According to the findings of the learned Court, Lal appellant alone has taken part in the occurrence and his co‑accused were just roped in by the complainant party and were, therefore, acquitted.
13. The learned counsel appearing on behalf of the appellant assailed the conviction and sentence of the appellant on a number of grounds, i.e. the report was lodged with an unexplained delay of over 18 hours, and it was recorded after conducting preliminary investigation at the spot. The motive, as alleged in the First Information Report, has not been proved. He submitted that due to the diminution of supply of water to the lands, it was the complainant party which had the grievance to attack the appellant. He made scathing criticism on the evidence of the eye‑witnesses. He submitted that they should not be believed because among other reasons, they have already been disbelieved qua the four acquitted accused by the learned trial Court; and lastly, he contended that the defence plea when put in juxta‑position with the prosecution version looks more reasonable and probable and, therefore, it legally deserved to be accepted in preference to the prosecution case.
14. In the first place we propose to deal with motive part of the story. Muhammad Nazim P.W. 11 stated that he was watering his land at 11‑30 a. m. in the fateful day when the appellant and his companions armed with Sotas came there and deliberately made a cut in the watercourse to divert the flow of the water to their fields. He rebuked them and simultaneously entered the "Khala" to redivert the water to his fields, and upon this he was attacked by the accused party. Hearing his alarm the deceased and the P.Ws. arrived. They too, were treated in the same fashion.
15. It will be seen that the situation had ignited due to making of a cut in the Khala by the accused party and, therefore to establish this fact beyond all doubts was of paramount importance for the prosecution. Let us see how far the evidence on record rendered support to fit.
16. It is common knowledge that cuts in the watercourse are mace with a spade (Kassi), but none of the eye‑witnesses stated if any person among the accused party had a Kassi with him that he used the same for making the cut at the time of occurrence. The Investigating Officer who reached the spot did not see any cut existing in the watercourse alleged to have been made by the accused party. Since its was non‑existent, therefore, the Investigating Officer did not indicate the same in the site plan Exh.P.F., Likewise, Ghulam Muhammad P.W.4,I author of the site plan Exh.P.F, did not show it either. Rather he conceded during cross‑examination that he was not shown such a place by the P.Ws. from where the water was taken to the place it flowed for irrigation when he inspected the spot. In these circumstances, we feel convinced that the appellant or his partymen did not make any cut in the watercourse muchless by show of force to Khadim Hussain or Muhammad Nazim P.Ws. Motive as set up by the prosecution thus falls through. It seems more probable, as pleaded by the appellant, that diminution in supply of water, which occurred due to sitting of a buffalo in the watercourse actually annoyed the complainant party, who came picked up a quarrel with them which ultimately culminates into exchange of blows between the two parties.
17. Next comes the ocular account given by the three eye‑witnesses, namely, complainant Khadim Hussain P.W.12 (brother of the deceased), Muhammad Nazim P.W.11 cousin of the deceased and Ghulam Sarwar P.W.10 (a cobbler of the village) who admittedly prepares shoes for both the parties. No doubt, Khadim Hussain P.W.12 and Muhammad Nazim P.W.11 as shown above, are the kith and kin of the deceased but their presence at the time of occurrence is established; firstly, because Muhammad Nazim P.W.11 was injured in the incident and secondly, the appellant also admitted their presence while dubbing them as his attackers. It is true that their testimony cannot be rejected simply because of their close relationship with the deceased, but in the circumstances of this case their evidence certainly calls for a close scrutiny, to ascertain if they are witnesses of truth. By going through their evidence we find that they did not conduct themselves as straightforward and honest witnesses. They perjured themselves, as stated earlier, on the point of motive. They have consciously suppressed the injuries caused to the appellant. On this point they stood belied by the Investigating Officer, who admitted that he came to know during investigation that the appellant was injured during the occurrence. They' also stated that each one of Muhammad‑Nazim P.W. and Khan Muhammad P.W. (not produced) was dealt blows by three persons, yet the medical witness found only 5 injuries in all; one of them being an abrasion and another could be the result of a fall. It is, therefore, established that the complainant party had involved the whole family of the appellant with sheer intention of putting them to utmost grief. The fact that the learned trial Court disbelieved the eye‑witnesses qua 4 acquitted co‑accused of the appellant has further confirmed our doubts about the truthfulness of these witnesses.
18. There now remains the statement of Sarwar P.W.10. We would have considered the evidence of this witness as that of an independent person provided he had remained consistent with the stand he had taken during the investigation. His deposition at the trial gives an impression that, at that time he was labouring under the influence of the complainant party and, therefore, he made deliberate departures from his earlier statement made before the police as Exh.D.A. He denied to have told the police that when he arrived‑at the spot he found Iqbal Hussain lying unconscious, but it was found "so recorded" in Exh . D . A . He asserted to have stated to the police in Exh . D . A . that Lai appellant had caused Sots blow near the left ear of Iqbal Hussain deceased within his view as a result of which he fell down, but on confrontation, this statement did not find place in Exh.D.A. Again he denied to have stated in Exh.D.A. that he saw the appellant in an injured condition at the spot during the occurrence, when confronted, it was found recorded therein. He appears to have made these somersaults with a purpose to fall in line with the depositions of the other eye‑witnesses. He, therefore, sails with them in the same boat.
19 From the narration of events established above it emerges that the appellant had suffered injuries during the occurrence at the hands of the complainant party. The eye‑witnesses purposely suppressed his injuries in an attempt to minimise their role and magnify that of the appellant in order to secure his conviction. We, therefore, hold that they are not at all the witnesses of truth.
20. There is a delay of about 18 hours in reporting the matter to the police. Khadim Hussain P.W. at the time of lodging the First Information Report tried to explain the same by saying that he could not manage transport for removing the injured (Iqbal Hussain) till 3 a.m. mid‑night when he succeeded to arrange a bus for the purpose. It may be noted that even this explanation, he failed to give, when examined at the trial. The First Information Report is not a substantive piece of evidence, therefore, the reason of delay given therein cannot be .read in evidence, in the absence of a statement made in Court, to that effect. Even this excuse about the delayed report looks to be rediculous on the face of it. It is not believable that a bus was not available throughout the day time but was available at mid‑night. The question is, as to why the complainant felt shy of reporting the matter to the police with promptitude especially when Iqbal Hussain was so seriously injured The only answer one gets is, that the complainant party consumed time in deliberation and consultation for setting up a case involving the appellant and his family. The recording of the First Information Report at the police station also is highly doubtful. Rather there is evidence on record to show that this document was drawn up at the spot after conducting the preliminary investigation. Manzur Khan P.W.6, an uncle of the deceased had admitted this during cross-examination in the following words:‑
"The Thanedar had visited the spot on the following day. In fact Thanedar had reached the spot alongwith me. In my presence the Thanedar, enquired from the public as to how the occurrence took place, and it was after that, that the Thanedar recorded the statement of Khadim Hussain. He read over the statement to Khadim Hussain and got it thumb‑marked at the spot."
21. This clear cut admission by the uncle of the deceased leaves us in no manner of doubt that the First Information Report in this case was drawn after preliminary investigation at the spot and, therefore, it loses all sanctity attached to it under the law.
22. In the end, by putting the defence version in juxta‑position with prosecution version, we find that the defence version is more probable and reasonable whereas the prosecution case is bristled with dishonest suppression and conscious misstatements made by the witnesses. In our estimation, there is no credible evidence available on the record 'to support the conviction.
23. The upshot of the above discussion is that we allow this appeal and acquit the appellant. He may be set at liberty, if not required in any other case. Reference is rejected and sentence of death is no confirmed. Above titled matters are thus disposed of.
H. A. K. /4268/L Acquittal ordered.
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