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‑‑‑Ss. 304, Part I & 323‑‑Evidence, appreciation of‑‑Benefit of doubt‑ Parties admittedly having no love lost‑‑Ocular witnesses consisting of brother of deceased and his father while only independent witness named in F.I.R. not examined on the pretext of having been won over‑ Investigation not conducted properly and doubt created even regarding genuineness of F.I.R.‑‑Accused given benefit of doubt and acquitted, in circumstances.

M. Afzal Wattoo for Appellant.

Mehr Shaukat Ali for the State.

Syed Saj jad Raza Jafari for the Complainant.

Date of hearing: 6th February, 1983.

Boota, his brother Sadar Din, their nephew Muhammad Ali and their friend Ramzan were tried for the murder of Asghar Ali, by the Additional Sessions Judge, Faisalabad. The trial Judge, by judgment, dated 13‑2‑1982, convicted Boota and Muhammad Ali under section 304, Part I, P.P.C. and 323, P.P.C., respectively. Boota was sentenced to imprisonment for life and a fine of Rs. 2,000 or, in default, one year's R.I. Muhammad Ali was sentenced to one year's R.I. The rest were acquitted.

The convicts have appealed to this Court. The complainant has filed two revisions; one against the acquittal and the other for enhancement of Boota's sentence. All these matters shall be decided by this judgment.

The occurrence in which the appellants were involved was alleged to have taken place on 11‑9‑1979 at 3 p.m. in Chak No. 651/2‑GB which falls within the jurisdiction of Police Station, Lundianwala. Case was registered on the statement (Exh.P.F.) of Hakeem Ghulam Abbas. It was recorded by M.H.C. Muhammad Rafiq in the police station.

According to Hakeem Ghulam Abbas, his‑wife Mst. lqbal Begum and daughter Jameela were returning to their house from the well. When they came near the Haveli of Boota, Anwar Bibi was asking Chanan to return the amount of money which was given to him for making Khes. Chanan said that he would get money from Hakeem Abbas and return the same to her. Iqbal Begum told Chanan that no amount was outstanding from them; he was telling a lie. Mst. Rehmo wife of Boota turned up there. She asked Iqbal Begum and Jameela why were they quarrelling with Chanan. In the meanwhile, Hakeem Ghulam Abbas and his son also turned up. Asghar deceased asked Mst. Rehmo to go back to her house. On this Mst. Rehmo slapped him.

The incident took place in the afternoon at 3 p.m. Asghar was returning from toilet. When he reached in front of the Haveli of Boota, Sadar Din shouted and said 'Do not spare Asghar Ali'. All the accused were present. Sadar Din had a Phaura, Boota a spear and Muhammad Ali and Ramzan were armed with sticks. On hearing the Lalkara of Sadar Din accused, Asghar Ali went towards his house. Hakeem Ghulam Abbas and his son Shabbir came out of their house. Karam Din also turned up. In their presence Ramzan gave a Sota blow on the head of Asghar Ali. He was followed by Muhammad Ali. His blow landed on the upper part of Asghar's arm. Boota then thrusted spear in the left side of the chest. Asghar tried to catch the spear. His hand was injured. Sadar Din raised Lalkara that if any other person came near he would be killed. Asghar fell down. The accused party ran away with their weapons. He was put in a tonga and removed to Civil Hospital, Jaranwala, before reaching there he died.

Shabbir Hussain did not say anything before the trial Court about the morning incident. His evidence pertains to the actual occurrence which started at 3 p.m. He supported his father. Having deposed how the accused were armed, he blamed Boota for the Barcha blow on the left side of the chest of his brother Asghar Ali.

On 29‑9‑1979 all the accused were arrested. On 7‑10‑1979 Sadar Din got recovered Phaura P.4 which was taken into possession vide memo. Exh.P.C.; Muhammad Ali led to the recovery of Sota P.5 taken into possession vide memo. P.D.; Muhammad Ramzan Sota P.6 vide memo. P.E. and Spear P.3 was recovered at the instance of Boota which was sealed into a parcel vide memo. P.B.

On 11‑9‑1979, Dr. Khurshid Ahmad Khan, Medical Officer, Civil Hospital, Jaranwala, conducted post‑mortem examination of Asghar Ali. He found four injuries; a penetrating wound 10 c.m. x 5 c.m. (depth not probed) on left side of chest lower part; an incised wound 10 c.m. x 3 c.m. x bone deep on inner side right hand; one lacerated wound 3 c.m. x 1 c.m. x 1 c.m. on right side of head and the fourth a contusion 6 c.m. x 3 c.m. on right upper arm. First two injuries were caused by sharp‑edged weapon, the rest with blunt. 9th rib was cut on the left side of the chest.

In the opinion of the doctor the cause of death was shock and internal bleeding through injury No. 1 which was sufficient to cause death in the ordinary course of nature.

Appellant Boota denied all the allegations and said that the recovery was false. It had been planted. He admitted his relationship with Sadar Din and Muhammad Ali; vis‑a‑vis Ramzan he said that he had no relations whatsoever with him. He said that he had been falsely involved due to enmity with Hakeem Ghulam Abbas. When questioned had he anything else to say, he stated:‑---

The fact of the matter is that I am a cultivator. On the day of occurrence, I was away to my fields from morning till Asar time. When I returned to my house in the evening I came to know that at about Zohar time an altercation took place between my wife and the women‑folk of the complainant in the presence of Chanan and Mst. Anwar Bibi. Asghar Ali deceased manhandled my wife Mst. Rehmo humiliated and grappled with her. At that time my nephew Nazeer Hussain son of Sadar Din my co‑accused, who was a young lad of 13/14 years of age at that time, was present in my house and on account of sudden and grave provocation for the humiliation to my wife by the deceased he attacked the deceased and caused injuries on his person as a result of which the deceased had died. I have no issue and Nazeer Hussain was the only son of my brother Sadar Din accused. The complainant party thought that in case a case was registered against Nazeer Hussain he might be acquitted or lesser penalty might be imposed because of his minor age and myself and my co‑accused have been involved in this case. On 13‑12‑1981 Nazeer Hussain son of Sadar Din accused has been murdered by Ashraf, a brother of the deceased and one Mohabat alias Baggu who is related to the complainant. Both Ashraf and Mohabat are in custody in the case of murder of Nazeer Hussain. I produce a copy of the judgment of the Magistrate Exh.D.A. regarding the case against me for the alleged recovery of spear P.3. I have been acquitted by the Court."

Learned counsel for the appellants submitted that both the eye witnesses were close relatives of the deceased; one was his father and the other his brother. Their evidence as such could not be relied upon unless duly supported by other independent evidence of unimpeachable character which according to him was lacking in this case. He then submitted that the same evidence had been disbelieved qua the other accused who had been acquitted.

Learned counsel further submitted that the only independent witness named in the F.I.R. was not produced.

I have also heard learned counsel for the State as well as for the complainant. The former supported the impugned judgment. The latter argued for enhancement of Boota's sentence and wanted me to convict the two acquitted accused for the offence they had been charged.

Ocular evidence, in this case, consists of brother of the deceased and his father. The only independent witness Karam Din named in the F.I.R. was not examined. He was given up on the pretext of having been won over. Hakeem Ghulam Abbas and his son admitted the factum of enmity inasmuch as Ashraf real brother of the deceased is accused of murdering Nazeer Hussain nephew of Boota appellant.

The occurrence took place on 11‑9‑1979. Recoveries were effected on 7‑10‑1979. Memos. were signed by Ta j and Abdul Hamid. The latter was not examined. Taj admitted the fact that he had enmity with Boota over killing of fowls. According to Taj, all the recoveries were effected from the house of Boota which had no shutters. This position is contradicted by the recovery memos. which show that the crime weapons were recovered from different houses of the accused. Even otherwise, it does not appeal to reason that blood would remain intact after about a month.

According to Hakeem Ghulam Abbas, he left the dead body of Asghar Ali in the hospital; then proceeded to the police station where he lodged the F.I.R. (Exh.P.F.) before sunset. He changed this position by deposing that he accompanied the police from his Chak to the police station at about midnight and then the F.I.R. (Exh.P.F.) was lodged and signed. This creates doubt about the genuineness of the F.I.R. Even, the investigation was not conducted properly. In such circumstances, there is an element of doubt and it is not safe to uphold the conviction. The appeal is allowed. The appellants are acquitted.

Muhammad Ali appellant is on bail. His bail bond is cancelled.

Boota shall be released forthwith, if he is not required in any other case.

Both the revisions filed by the complainant have no merit. These are dismissed in limine.

S.G.D./B‑5/L Appeal allowed.

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