MUHAMMAD NAWAZ vs ABDUL KHALIQ AND Other

1. SALAHUDDIN AHMED, J.-The appellant is a complainant, and he has felt aggrieved by an order of the High Court refusing to set aside an order of acquittal in respect of charges under sections 302/109, 148 and 323/149 of the Pakistan Penal Code.

2. The occurrence took place on 18-2-1963 a little before sunset. Mohammad Hanif deceased, Ali P. W.

3. 11, Hayat P. W. 13, Mohammad Nawaz P. W. 14 and Dosa P. W. 15, were sitting at Dera Wahidwala when Abdul Khaliq armed with a ballam, Ghulam Mohammad armed with a kulhari and the rest viz. Karim, Karamallah, Sultan, Chavi, Mahram and Mohammad armed with dangs, came there. Abdul Khaliq raised a lalkara that he had come to avenge because Mohammad Hanif deceased had given evidence against the former. Mohammad Hanif stood up, and Abdul Khaliq gave two blows with the ballam in his belly. Mohammad Hanif fell down and all the accused-- respondents showered blows on him with their respective weapons. In the meantime Munda, P. W.16, Mohammad P. W. 17 and Bashir Ahmad P. W. 18, arrived at the spot and they along with the first named set of P. Ws. Tried in vain to rescue Hanif and in that process P. Ws. Ali, Hayat, Dosa, Munda and Mohammad received injuries at the hands of the accused persons. The accused persons then ran away from the place of occurrence. Walayat P. W. 20 and Suleman P. W. 21 also came to the spot. Mohammad Hanif died on way to the Civil Dispensary. P. W. Mohammad Nawaz and Dosa went to the Police station 6 miles away from the spot and lodged the First Information Report at 9 p.m.

4. The respondents pleaded not guilty. The defence case was that respondents Abdul Khaliq, Karim, Karamullah, Sultan and Mohammad were not present at the spot and they were falsely implicated due to enmity. So far as respondents Chavi and his two sons Ghulam and Mahram are concerned, their case was that there wad some trouble over the value of a sheep given by deceased Hanif to respondent Chavi. As the sheep and other cattle were grazing to the south of Chah Wahidwala, the deceased along with P. Ws. Hayat, Ali, Dosa, Munda and Mohammad came there armed with dangs and lifted the sheep as a result of which Chavi grappled with them and was beaten by them. On Chavi's alarm, his sons Ghulam Mohammad and Mahram arrived and they, too, were beaten. The alarm brought to the scene 50/GO other persons and they beat up deceased Hanif and P. Ws. Ali and Dosa. The complainant party were the aggressors and the occurrence took place at peshiwela in a Banjar field situated close to Chah Wahidwala.

5. The prosecution case rested on the ocular evidence of P.Ws. 11, 13, 14, 15, 17 and 18 all of whom are found to be not only related inter se but also with the deceased and are thus inter--ested persons.

6. There is also enmity between them and respondents Karamallah, Sultan and Abdul Khaliq. In these circumstances the learned Judges of the High Court rightly held that the evidence of these witnesses required some corroboration to ensure that they were speaking the truth. The prosecution sought to supply the corroboration by the evidence of recovery of dangs from respondents Sultan, Karamallah and Mahram. These dangs however, did not contain any blood- stains and the witnesses of their recovery are also interested persons. It appears that no independent person from the locality was examined to support the recovery.

7. There are certain other unsatisfactory features of the case. Admittedly respondent Chavi had three injuries and his sons, respondents Ghulam Mohammad and Mahram had two injuries and one injury respectively. No mention however, of their injuries was made in the First Information Report.

8. The witnesses too, do not say how they were injured. Respondent Chavi was said to be 65/70 years old and for that reason the High Court was of opinion that it was improbable for him to participate in the occurrence. Although the prosecution case is that more than two ballam blows were given to Hanif deceased, the medical evidence disclosed only two injuries which could be attributed to ballam blows. Prosecution also sought to rely on the dying statement of the deceased. No mention was, however, made of the dying statement in the First Information Report. It is indeed curious that although the Sub-Inspector came to the house of the deceased on that very night and P. Ws. 20 and 21 who sought to prove the dying statement, were present there, they did not tell the police officer anything about the statement. These two witnesses stated that the dying statement was made before some other witnesses also but the latter did not speak about it.

9. Again there is a great deal of discrepancy about the place of occurrence. In the First Information Report, the recovery memorandum Exh. P. C. Regarding the seizure of blood-stained earth and grass and in the statements of witnesses before the police under section 161, Cr. P. C. "Chah Wahidwala" has been mentioned as the place of occurrence. At trial, however, the prosecution led evidence to prove that the occurrence took place at "Dera Wahidwala". The evidence clearly shows that the said two places are entirely different and a distance of 300 yards intervene between them.

10. The witnesses were well aware of these two places and their difference.

11. Even as regards motive, it appears that although only one motive was mentioned in the First Information Report, at trial three different motives were assigned for the commission of the murder.

12. It also appears there was delay in lodging the First Information Report inasmuch as the occurrence took place at 5-45 p. m. And it was not reported at the Police Station which is only 6 miles off until 9 p.m.

13. The time of occurrence, as alleged by the defence, namely, peshiwela, seems to be more consistent with the medical evidence which found gas and liquid in the stomach of the deceased which indicated that the occurrence having taken place in the month of Ramazan, the deceased was still fasting and had not broken his fast.

14. Be that as it may, having regard to the infirmities mentioned above, we do not think that the impugned order of the High Court requires interference by this Court. In the ultimate analyses it is purely a question of appraisal of the evidence and we are unable to find any fault with the High Court in its appreciation of the evidence.

15. The appeal is accordingly dismissed.