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Criminal Appeal No. 213 of 1977, heard on 20th April, 1985.

‑‑‑S. 302/149‑‑Deceased stated to be fatally injured but no blood found at alleged place of occurrence‑‑Prosecution witnesses either related to deceased or belonging to opposite camp of accused and their evidence requiring close scrutiny‑‑Incident taking place in the dark of night and one of prosecution witnesses stating that he had a torch and that he had identified accused‑‑Neither said witness stated story of having torch in First Information Report nor produced torch in question‑‑ Presence of witnesses at spot appearing doubtful‑‑Injured body of deceased taken to his house instead of taking it to hospital‑‑Medical report stating death of deceased on account of pressing of trachea but none of eye‑witnesses stated that deceased was strangulated by accused‑‑Doctor also finding innumerable injuries on person of deceased which showed that deceased was given sustained beating for a long time when nobody was around him and that it was an unseen murder‑‑Conviction and sentence set aside in circumstances.

Sardar Ahmad Khan for Appellants.

Muhammad Akbar for the State.

Date of hearing: 20th April, 1985.

Gul Muhammad (35), Muhammad Sadiq. (30), Abdul Ghani (25)‑ Muhammad Ashiq (28) brothers inter se and their sister's husband Mithu (25) were tried for having committed rioting arid murder of Allah Ditta (35) by Sessions Judge, Bahawalpur, who convicted all of them and sentenced them to one year's R.I. under section 148, P.P.C. and to imprisonment for life and a fine of Rs. 5,000 each or in default to undergo one year's R.I. under section 302/149, P.P.C., vide judgment, dated 20‑ 9‑ 1977. Besides this they were directed to pay compensation of Rs. 1,000 each under section 544‑A, Cr.P.C. for payment to the legal heirs of the deceased, in default whereof to undergo three months' R.I. each. Feeling aggrieved the convicts have jointly filed the instant appeal challenging their conviction and sentence.

2. The occurrence took place about one Peher before sunrise on 4‑ 6‑ 1973 near Chah of Maulvi Muhammad Ramzan in the vicinity of village Wahi Jogian at a distance of 9 miles from Police Station Naushera Jadid, District Bahawalpur. Report in this case was made by Abdul Hakim (P.W. 9) father of the deceased vide F.I.R. Exh. P.A. recorded by Sarfraz S.I. (P.W.6) on 4‑6‑1976 at 1 p.m.

3. The prosecution case briefly is that on the fateful night Allah Ditta (deceased) in the company of his father Abdul Hakim (P.W.9) complainant, his uncle Noor Din (P.W.10), Abdul Malik (P.W. 11), and Imam Din (given up P.W.) went to see a Tamasha in Basti Wahi Mochian. After the show had finished they started for their homes in the last Pehar of the night. In the way the complainant asked the deceased to go quickly and arrange for ploughs. The deceased went ahead of the P.Ws. for about an acre or so when the witnesses heard his cries, they saw in the light of torch that Mithu, Gul Muhammad, Muhammad Sadiq, Abdul Ghani and Muhammad Ashiq appellants were giving him stick blows. They tried to intervene but the appellants scared them away by threatening them with dire consequences. The appellants then decamped from the spot alongwith their weapons. The witnesses removed the deceased to their house in an injured condition, who remained unconscious throughout. He was being removed to the hospital next day but near Ch. Malik Shahra, he breathed his last and his dead body was taken to the police station.

4. The motive behind the attack was that the deceased was suspected of having illicit connections with Mst. Maqsood Mai wife of Mithu appellant and sister of the other appellants. About one month before the occurrence, Allah Diwaya Lambardar had sent for the complainant. The complainant in response to the call went to the Lambardar and found the appellants also present there, whom he assured on oath that the accusation against his son Allah Ditta (deceased) regarding his liaison with Mst. Maqsood Mai was false but Mithu being dissatisfied threw challenge that he would take revenge from the deceased.

5. After registering the case S.I. prepared the inquest report and sent the dead body to mortuary for post‑mortem examination under the police escort. He arrested all the appellants on 5‑6‑1976 and recovered the weapons of offence from them. A blood‑stained Soti P. 4 and another blood‑stained Soti P. 5 were recovered from Gul Muhammad and Mithu appellants respectively while the Sotis recovered from the remaining appellants were not found stained with blood. These recoveries were witnessed by Muhammad Nawaz (P.W. 4) and the Investigating Officer. After usual investigation the case was challaned to Court.

6. Dr. Ahmad Nawaz Khan Bhatti (P.W. 5) who conducted post mortem examination on the dead body of Allah Ditta on 5‑6‑1977 had found 18 injuries on his person which were spread all over his body. On dissection the skull was found congested. There was fracture of 5^th cervical vertebrae, and trachea below the thyroid cartilage was found pressed. In the opinion of the doctor, death occurred due to severe pain leading to shock and respiratory muscles failure and insufficiency in breathing and the injury on the trachea. All the injuries caused with blunt weapon were collectively sufficient in the ordinary course of nature to cause death. Probable time that elapsed between the injuries and death was about 10 to 12 hours and between death and post‑mortem was 20 to 24 hours.

7. At the trial the prosecution examined 11 witnesses in support of its case. Abdul Hakim (P.W.9) complainant, Noor Din (P.W.10), and Abdul Malik (P.W.11) furnished the eye‑witness account. Muhammad Nawaz (P.W.4) proved the incriminating recoveries and Sarfraz S.I. (P.W.6) narrated the different stages of the investigation besides Dr. Ahmad Nawaz Khan (P.W. 5) proved that the deceased had died of violence.

8. The appellants when appellants when examined under section 342, Cr.P.C. denied the allegation and declined to produce defence excepting Abdul Ghani appellant who produced Khadim Hussain (D.W. 1). He stated that he lived in Basti Wahi Mochian and that 2/3 years before the occurrence in his Basti neither any marriage had taken place nor any Tamasha was organised. The learned trial Court on consideration of the material on record disbelieved the defence witness and accepted the prosecution case based on ocular testimony corroborated by motive and recovery of blood‑stained sticks and convicted all the appellants and sentenced them as indicated above.

9. I have heard the learned counsel for the appellants as well as for the State assisted by learned counsel for the complainant and also perused the record.

10. The prosecution case is that the deceased was suspected of having illicit connections with Mst. Maqsood Mai, wife of Mithu and sister of other appellants who lived at a square's distance from his house. It is in evidence that Mithu appellant did not feel satisfied by the assurance given by Abdul Hakim (P.W. 9) father of the deceased regarding his innocence and had declared that he would take revenge. The place of occurrence is reported to be close by the residences of all the accused. Ordinarily, therefore, the deceased would not be expected to, go rear or pass by, at odd hours, that place where his enemies lived. Again since no blood was found at the alleged place of occurrence, therefore, it has not been established beyond doubt that Allah Ditta (deceased) was fatally wounded there.

11. The next question arises as to whether the deceased was really returning from Basti Wahi Mochian in the company of the eye‑witnesses P.W. 9, P.W.10 and P.W.11 after seeing a Tamasha when he was waylaid by the appellants. It may be noted that Abdul Hakim (P.W.9) is real father of the deceased. Noor Din (P.W.10) though denied that his father Mitha and complainant's father Ramzan were first cousin, yet in column No. 4 of inquest report he has been described as uncle of the deceased. Abdul Malik (P.W. 11) denied that Maulvi Hafeez had brought suit against him, wherein Ranjha (father of the appellants) had appeared as witness against him but certified copy of Ranjha's statement Exh. D.D. has been placed on record by the defence to prove the fact. These witnesses are, therefore, either related to the deceased or belong to opposite camp of the appellants, so their evidence needs close scrutiny before it is acted upon.

12. All the three defence witnesses admitted that the night was dark. On hearing alarm none of them made any noise while running towards the spot for rescuing the deceased. Abdul Hakim (P.W. 9) stated that he had a torch with him at that time and in its light he had identified the appellants but he did not state so in the F.I.R. nor did he produce any torch during investigation. Contrarily Abdul Malik (P.W.11) stated that Abdul Hakim did not have anything in his hands at that time. Both Noor Din and Abdul Malik (P.W. 10 and P.W. 11) did not state that they identified the appellants in the light of the torch. According to the complainant the deceased was removed from the spot to his house in a precarious condition who remained unconscious throughout and that they left their village for police station about one Pehar before sunrise. Noor Din (P.W.10) stated that they started for police station with the deceased at 1/2 Pehar after sunrise. Whatever the case, I think if the witnesses were present at the spot during the occurrence then after the assailants had decamped, their first concern would have been to remove the deceased to the hospital straightaway for saving his life instead of taking him to the house and unnecessarily waste time there. It appears that they have introduced this story of taking the deceased first to the house to explain the delay which occasioned in reaching the police station and to provide an excuse that during this period the deceased died. The witnesses have differed that at what time and at what place they gathered for going to Basti Wahi Mochian for seeing Tamasha. Noor Din (P.W. 10) stated that they collected at his well while Abdul Malik (P.W.11) stated that they got together Abdul Hakim's place and from there left for Basti Wahi Mochian. Abdul Malik (P.W.11) stated that he had not appeared before the police on any occasion in this case' but later amended his statement saying that he appeared before the Thanedar when appellants were arrested i.e. on the second day of occurrence (5‑6‑1976). Furthermore, the story that on their return journey, Abdul Hakim complainant had asked Allah Ditta (deceased) to go ahead and arrange for ploughs is missing from F.I.R. and had been introduced later for specific purpose i.e. to explain that why did not they intervene physically to rescue the deceased, when he was being given innumerable injuries. Above all, none of the eye‑witnesses stated that the deceased was strangulated by the appellants, whereas the doctor stated that the deceased's death occurred on account of pressing of trachea. It appears to me, in the circumstances, that none of the P.Ws. was present at the spot during the occurrence, rather it was a blind murder.

13. There is yet another aspect of the case. Dr. found innumerable injuries on the person of the deceased. Injury No. 6 has been described as multiple contusion on the back of the chest. Injury No. 9 shows that his both the buttocks were swollen. Injuries Nos. 11, 12, 14 and 15 indicate that left thigh, right calf and left calf of the deceased were swollen. According to the doctor, there were 18 injuries on the person of the deceased but each injury mentioned above is result of repeated blows. This shows that the deceased was given sustained beating for long time by his enemies when nobody was around and they dealt with him at leisure. For these reasons also I hold that it was an unseen occurrence. Consequently I allow this appeal, set aside the conviction and sentence of the appellants. They are on bail. They are discharged of their bail bonds.

M.Y.H./M‑79/L Appeal accepted.

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