AHMAD Versus THE STATE
The appellant Ahmad son of Amir (46;, and his co‑accused Zahoor Ahmad son of Chakar (2b), were tried by a learned Additional Sessions Judge, Jhang, for the offence punishable under section 302/34, P.P.C. for causing the murder of Noor Muhammad deceased aged 65 years. Vide judgment dated 29‑1‑:986, the learned trial Court acquitted Zahoor Ahmad and convicted Ahmad appellant under section 304, Part I, P.P.C. and sentenced him to imprisonment for life and fine of Rs. 5,000 or in default two years' R.I. It was directed that the fine if realized would be paid to the legal heirs of the deceased as compensation. Ahmad has challenged his conviction and sentence through the present appeal.
2. The occurrence in this case took place at 7.00 a.m., on 13‑7‑1984, in the area o: Chak No.199/JB, at a distance of nine miles from Police Station Bhowana, District Jhang. The occurrence was reported to the police through statement Ex.PB by Raja Khan P.W.4, the real brother of the deceased, at 2.00 p.m., on the same day. The statement was recorded by Ch. Talib Ali, SI P.W. 7 at the Bus Stop Bhowana. Formal F1R. Exh.PB/1 was recorded at the police station on the same day at 2.15 p.m. by. Ahmad Bakhsh M H C P.W.2.
3. Regarding motive it has been alleged that a few days prior to the occurrence, a Beeri tree of Ahmad appellant was cut and removed. He suspected the deceased to have committed the theft of his wood.
4. As for the main occurrence, it has been stated that at the fateful time Noor Muhammad deceased accompanied by Muhammad Iqbal (not produced), Amir Hussain P.W.5 and Raja Khan his brother P.W.4, went to the Dera of Ahmad appellant to furnish assurance about his innocence. The appellant and Zahoor Ahmad acquitted co‑accused were present at the Dera. During the conversation hot words were exchanged. Ahmad raised La lkara that Noor Muhammad should be caught and taught lesson for committing the theft. Consequently, Zahoor Ahmad caught hold of Noor Muhammad deceased while Ahmad picked up a Pahora lying nearby and caused first injury on the back of the neck of the deceased, whereafter he fell down. The appellant caused live other injuries with Pahora on different parts of the body of the deceased i.e., left shoulder, behind the shoulder on the left side of the back, and on the forehead. With the intervention of Raja Khan, Amir Hussain and Iqbal Ahrnad and Zahoor Ahmad ran towards the south. Subsequently, Noor Muhammad was taken 1h injured condition to Bhowana Hospital, where he succumbed to the injuries soon after his arrival in the hospital.
5. Autopsy on the dead body of Noor Muhammad deceased was performed on 13‑7‑1984, at about 5.00 p.m. by Doctor Muzaffar Ahmad, the then Medical Officer Rural Centre, Bhowana P.W.6. He noticed the following injuries:
(1) A contusion mark, 4 cm x 3 cm, on the left part of front of chin.
(2) A contusion mark, 7 cm x 4 cm, on the left cheek :(.ad left eye. There was an abrasion of 2 cm x 2 cm on its middle. Both upper and lower left eyelids were contused.
(3) A contusion mark, 3‑1/2 cm x 1 1/2 cm, on the left forehead.
(4) A contusion mark, 13 cm x 2 cm, on the front and outer side of left upper arm.
(5) A contusion mark, 8 cm x 3 cm, on the back and left side of neck. Movements of the neck were present extra‑ ordinary free towards side to side.
(6) A contusion mark, 11 cm x 3 cm, on the back of left upper chest crossing the upper thoracic spine.
(7) A contusion mark, 5 cm x 2‑1/2 cm, on the back of left lower chest.
The doctor opined that the cause of death in this case was injury No.5 which resulted into fractured dislocation of fifth cervical vertebra and injury to the spinal cord which caused impairment in respiratory function and later on respiratory arrest. This injury was caused with blunt weapon and was dangerous to life. He further opined that injury No.5 alone and all the remaining injuries collectively were sufficient to cause death in the ordinary course of nature. The remaining injuries were simple and caused with blunt weapon. According to Dr. Mr Ahmad, probable duration between the injuries and death was about within 20 hours. It has been disclosed by this doctor that Noor Muhammad was brought in injured condition in the hospital about 3/4 hours before his death. He was then conscious and was given medical aid by the witness. The doctor, however, could not explain as to for how long he remained in his senses after he was brought in the hospital. Police Station Bhowana according to Dr. Muzaffar Ahmad is at a distance of about two furlongs from the hospital.
6. The appellant arid the co‑accused were an errested by Ch. Talib Ali, the then SI Bhowana on 16‑7‑1984, and on the same day, Pahora P.4, the alleged weapon of offence was recovered at the instance of the appellant vide memo Exh.PG, which has been attested by Muhammad Anwar (not produced), Allah pitta (not produced) and Ch. Talib Ali SI P.W.7. This Pahora was not bloodstained and, therefore, it was not sent to the Chemical Examiner and the Serologist. In these circumstances, Pahora P.4 is not connection with the crime and its recovery is,, therefore, of not much substance..
7. At the trial Raja Khan P.W.4, brother of the deceased, and Amir Hussain P.W.5, his cousin, testified as eye‑Witnesses to furnish the ocular account of the prosecution version. They have by and large supported the prosecution case except that according to the contents of the F.I.R. the occurrence took place at the Dera of Ahmad while at the trial these witnesses have stated that the occurrence took place at the D hari of Fazil, a close relative of Ahmad appellant. P.W.1 Muhammad Ashraf Patwari who prepared the site‑plan Exh.PA has stated that the place of occurrence was located in the land of Fazil while the Dera of Ahmad was in the village Abadi about 3 1/2 squares from the Dhari of Fazil. Out of the remaining P.Ws. Ahmad Bakhsh MHC P.W.2 and Talib Hussain F.C., P.W3 are formal witnesses. P.W.7 Ch. Talib Ali SI conducted the investigation in this case. He recorded the statement Exh.PB of Raja Khan and thereafter went to the hospital. He prepared the injury statement and the inquest report in respect of the dead body of the deceased and handed over the same to Talib Hussain F.C., for being taken to the mortuary. He recorded the statements of the P.Ws. under section 161 Cr.P.C. and then proceeded to the place of occurrence. He arrested the accused on 16‑7‑1984 and effected the recovery of Pahora P.4 at the instance of the appellant. He disclosed that as a result of his investigation he had concluded that the occurrence had taken place during the night. He also conceded that the accused had produced persons in their defence.
8. The appellant claimed to be innocent and stated that the deceased was injured at his own Dhari during the night. It was a blind murder and that he has been falsely involved on account of sheer suspicion. According to the appellant there were many enemies of the deceased with whom he had blood‑feud on account of murders of Muhabbat and Raja, is who6e murders Mansabdar, the elder son of the deceased was involved. No evidence has, however, been led by the appellant is his defence.
9. The learned counsel for the State has supported the judgment appealed against and maintained that admittedly the, eye‑witnesses were not inimical towards the appellant and., their testimonies fully establish the prosecution case against him (the appellant).
The learned counsel for the appellant, however, contended that the prosecution has utterly failed to bring home the guilt to the appellant beyond reasonable doubt. It has been urged that the eye‑witnesses who were closely related to the deceased, being h&‑ brother and cousin, have been disbelieved by the learned trial Court qua the acquitted. co‑accused, viz. Zahoor Ahmad and, therefore, their testimonies have to be considered qua the appellant with care and caution. It has further been maintained that according to the allegations contained in the F.I.R. the occurrence took place at the Dera of Ahmad appellant which is located in the village Abadi but at the trial the. P.Ws. have stated that the place of occurrence was the Dhari of Fazil, a relative of the appellant. The Patwari who has prepared the site‑plan has disclosed that the occurrence, in fact, took place in the land belonging to Fazil at a distance of about 31/2 squares from the Dera of Ahmad. It has further been contended that according to the statements of the ,eye‑witnesses the occurrence took place at 7.00 a.m. on 13‑7‑1984, but the doctor who performed the post mortem examination at 5.00 P.M. on 13‑7‑1984 has stated that time which elapsed between the injuries and death was about 20 hours. The investigating officer has also disclosed that he concluded as a result of investigation that the deceased was murdered sometime luring the night.
It has also been pleaded that according to the statement of the doctor the deceased was in senses when he was brought to the hospital and that later he died. If it was so, his dying declaration could be recorded as the police station was at a distance of only two furlongs from the hospital.
10. The contentions raised on behalf of the appellant have been thoroughly considered and fully analysed. In the present case, as already observed, the alleged recovery of Pahora P.4 at the instance of the appellant is not of much consequence and cannot be regarded as a corroboratory evidence. The prosecution case in the circumstances is based on the ocular evidence and the medical evidence. The eye‑witnesses, no doubt are closely related to the deceased, being his brother and cousin, but there is nothing on the record that they were in any manner inimical towards the appellant. Mere relationship does not render them as non‑trustworthy. The fact, however, remains that the medical evidence in the present case does not lend support to the testimonies of the eye‑witnesses. They have stated that the occurrence took place at 7.00 a.m. on 13‑7‑1984, but the medical evidence is to the effect that duration between injuries and death was about 20 hours. The paint‑mortem examination toot place at 5.00', B p.m. on 13‑7‑1984. The death is stated to have occurred a few hours before the post‑mortem examination. The investigating has also disclosed that as a result of his investigation he concluded that the occarrence took place during the night. Ordinarily, it could be said by some stretch of imagination that the investigating officer has given a dishonest concession to the but the present case, the conclusion arrived at by the investigating officer in regard to the trine of occurrence is supported by the medical evidence. It has also been noticed that the description regarding the place of occurrence, as given by the eye witnesses is not believable. In the statement Exh.P.B. Raja Khan P.W. disclosed that the occurrence took place at the Dera of Ahmad. During the trial these eye‑witnesses stated that the occurrence took at ‑the Dharr of INA, while the, Patwari who has prepared the site plan has testified that the occurrence took place in the land of Fazil. No blood‑stained earth was collected in this case as it has been said that no blood out from the injuries received by the deceased. This fact cannot also be ignored that Bus Stop B is at a distance of only one furlong from the police station and, therefore, there was hardly any occasion for Talib Ali SI to record the statement Exh.PB of Hayat Khan P.W. at the bus stop instead of recording the F. I. R. directly at the Police Station. The fact that that the deceased before his death aid alter his arrival in the hospital remained in his senses for a few hours, as stated by Dr.Muzaffar Ahmad, also raises a suspicion about the veracity of the prosecution version, The possibility is the circumstances cannot be ruled out that the statement Exh.PB of Raja Khan P.W., was recorded after deliberations The learned counsel for the State has tact been able to furnish any clarification or explanation about the confusion regarding the time of occurrence and the place of occurrence.
11. In the light of the above discussion it is concluded that the testimonies of eye‑witnesses have been contradicted by the medical evidence. The possibility that they were not present at the time of occurrence cannot, therefore, be excluded. The occurrence might have taken place during the night without having been witnessed by any person. In ‑view of these conclusions it is held that the prosecution has not been successful to establish the guilt against the appellant beyond a reasonable doubt. The appeal is consequently allowed. The conviction and sentence of the appellant is set aside and he is acquitted. He shall be set at liberty forthwith if not required in any other case.
S.A./A‑276/L Appeal accepted.