SADOO Versus THE STATE
AFTAB HUSSAIN, J. ‑Sadoo and Waryam have been convicted by the Sessions Judge. Rahimyar khan under section 302/34, P. P. C. for murdering Haji Ahmad at about 2 a.m. on the 21st July 1973, within the area of village Thul Hamza 14 miles from Police Station. Tarindah Muhammad Pannah, District Rahimyar khan. Sadoo has been sentenced to death while Wayram has been sentenced to life imprisonment. They have also been sentenced to pay a fine of Rs. 1,000 each for being paid to the heirs of the deceased and in default of payment they have been ordered to undergo further rigorous imprisonment for one year. Their co‑accused Pehlwan was, however, acquitted. The case has been referred by the learned Sessions Judge to this Court for confirmation of the death sentences. 130th the convicts have also filed an appeal.
2. The prosecution story is that on the 14th July 1973, the deceased and his brother Abdul Subhan P. W. 11 were irrigating 3 acres of land in Mauza Bakhshoo taken by them on tenancy basis from Muhammad Siddique. Their turn of water lasted from 2‑45 to 3‑45 p.m. At about 3 p.m. the appellants alongwith Pahlawan and Muhammad Nawaz diverted the water into their own field by force. There was exchange of abuses between Abdul Subhan and Haji Ahmad on one hand and Sadoo etc. on the other. In the meanwhile a paternal cousin of the complainant, namely Rasool Bakhsh, arrived there and gave fist blows to Pehlwan. Muhammad Ali P. W. 9, who is Lambardar of the village, tried to effect a compromise between the two parties. On the first day Pahlwan and his party did not agree to this compromise and remained aggrieved. Another meeting was arranged the next clay when the matter was settled by compromise. According to the first information report Exh. P. L. however, the appellants threatened to avenge Phalwan etc. On the night between the 20th and 21st July 1973, the turn of water of Abdul Subhan and Haji Ahmad was from 12.00, and Hazoor Bakhsh P. W. 13 to guard the flow of water at about 2 a.m. Abdul Subban, Pathan and Hazoor Bakhsh P. Ws. 11, 12 and 13 who were at a distance ranging from 1 acre to 1 acres from Haji Ahmad deceased heard an alarm. On rushing to the place where Haji Ahmad was present, they saw from a distance of about 4 paces that the appellants gave a number of lathi blows to Haji Ahmad as a result of which he fell down and died.
3. Abdul Subhan after a little while i.e. at about 2-15 a.m. started for the Police Station where he reached at about 10 a.m. and gave first infor mation report Exh. P. L. which was recorded by Dil Muhammad, Sub Inspector, who immediately came to the spot. He reached the place of occurrence at about 12.00 noon and took into possession blood‑stained earth vide memo. Exh. P. B. He took into possession vide memo. Exh, p. ,C. a kassi Exh. P. I of the deceased. At the instance of the appellant Waryam he recovered iota Exh. P. 2 from his residential house, which he took into possession ride memo. Exh. P. D. Similarly, he recovered at the instance of Sadoo appellant a iota Exh. P. 3 from his residential house and took the same into possession vide memo. Exh.P.E. None of these sotas was stained with blood.
4. The autopsy conducted by Dr. Mazhar Ismail, Medical Officer, Allahabad (P. W. 1) revealed the following injuries :‑
(1) A lacerated wound 2' x 1/3 x bone deep in right parietal region 4' from pine of the left ear.
(2) A bruise on the left side of abdomen in upper part arid lower chest on front and outer side 10' x 2'.
(3) A bruise on outer upper part of right thigh 6' x 2".
(4) A bruise on front of right side 3'x 1 ' just above the knee.
(5) A front bruise on left calf 2' x 1'.
He found semi digested food in the stomach. Some food was present the small intestines. Large intestines were normal and some food was present in them. Spleen was torn into two pieces. Its total size was 8 x 4 x 2 and the lower part was smaller than the upper.
In the opinion of the doctor the death wag due to shock and haemorrhage which occurred as a. result of complete tearing of spleen into two pieces which itself was result of injury No. 2. Injury No. 2 was ante‑mortem and as sufficient to cause death in the ordinary course of nature.
The death was instantaneous. According to the doctor the death occurred within three hours of the last meal taken by the deceased. The injuries could be caused by sotas.
5. The motive is said to be established by the evidence of Muhammad Ali P. W. 9 Muhammad Siddique P. W. 10 and Abdul Subhan P. W.
11. There is unanimity between the witnesses on the point that the compromise failed on the first day but succeeded on the next day. They are, however, at variance on the other material evidence. P. W. 9 stated that on the next day the compromise was affected between the parties and Haji Ahmad deceased sought forgiveness. P. W. 10 did not make any reference to this forgiveness but added that both the parties came out of the dera of Muhammad Ali P. W. 9 Pehlwan exhorted that they were the owners of 100 bighas of land while the complainant owned only few marlas. In cross‑examination, he stated that Pehlwan made this exhortation in the presence of Abdul Subhan, Hazoor Bakhsh and Pathan P. Ws. as well as Muhammad Nazir. He was confronted with his statement Exh. D. A. made before the police where he had not made such statement. P. Ws. 12 and 13 did not make any state ment in support of the motive as brought out in the evidence of P. W.
10. Abdul Subhan went a step further. According to him, not only Pehlwan but others also extended threats to them and said that they would take revenge from Haji Ahmad at whose instance they had been insulted. He was confronted with his statement Exh. P. L. where there is no such statement that Pehlwan etc. would take revenge from Haji Ahmad or that they had been insulted at the instance of the deceased.
6. The learned Sessions Judge discredited that portion of the evidence which relates to exhortation by Pehlwan. He, however, believed the complainant's story that "the accused entertained grudge against Haji Ahmad deceased as at his instance 1'ehlwan accused was insulted. I do not agree with this finding. It is clear from the evidence that the first blow was given neither by Abdul Subban nor by Haji Ahmad. It was given by Ghulam Rasool. There is no evidence at all that Ghulam Rasool acted on the exhortation of Haji Ahmad. It appears clear that seeing the parties exchanging abuses he acted of his own in giving these blows to Pahlwan. Pahlwan was, therefore, disgraced by Ghulam Rasool and not by Haji Ahmad. There was therefore no occasion for singling Haji Ahmad for the threat. The evidence of P. W. 9 clearly establishes that the two parties had compromised the matter. There is no reason to disbelieve the evidence of this witness.
Out of the two other witnesses one has attributed this exhortation to Pehlwan only. The other has gone a step further and involved in these threats even the other companions of Pehlwan. P. W. 10 did not state that Pehlwan had any particular grudge against Haji Ahmad but P. W. 11 went to the extent of saying that the threat of the accused party was to take revenge from Haji Ahmad. This evidence which contains so many con tradictions and which is an improvement on the initial statements made before the police does not inspire confidence. I am, therefore, of the view that the evidence of motive is worthless and does not establish that the accused party was actuated by any motive of vengeance against the accused.
7. The evidence of recovery is also worthless since none of the sotas Exhs. P. 2 and P. 3 were found stained with blood.
8. The ocular testimony consists of flier evidence of Abdul Subhan P. W. 11 Pathan P. W. 12 and Hazoor Bakhsh P. W.
13. Haji Ahmad deceased was the brother of Abdul Subhan P. W. while Pathan and Hazoor Bakhsh are his cousins. All these witnesses are, therefore, closely related and their evidence shall have to be sifted and weighed with care. It is also to be seen whether their presence at the place of occurrence was natural. Hazoor Bakhsh and Pathan are said to have been taken to the spot by Abdul Subhan and Haji Ahmad in order to guard the flow of water. The evidence of these persons on the question whether this was the first time when they were taken by the complainant party for assisting them in watering the fields or they read accompanied them earlier also is discrepant. Pathan P. W. stated that Abdul Subhan had gone to him for the first time for seeking his help if, watering the land. On the other Band. P. W. 13 stated that Abdul Subhan had taken him as well as P. W. 12 for this purpose about 5 or 6 times. P. W. 12 further stated that Haji Ahmad deceased and Abdul Subhan came to seek his help and to take him to the fields for watering purpose at about 10 or 11 p.m. He was confronted with his statement made before the Committing Magistrate where he stated that these persons had contacted him at isha time. But he stated that he had not made such a statement. He further stated that when the witnesses ran towards the place of occurrence they raised an alarm but no one was attracted at tile alarm. Before the Committing Magistrate he had stated that on this alarm 50 persons were attracted. He was confronted with this statement but he denied having made it. He further stated that he and Hazoor Bakhsh reached near the place of occurrence first and Abdul Subhan came after some time. Before the Committing Magistrate he had stated that all these persons reached near the place of occurrence simultaneously.
9. In view of these discrepancies, I am clearly of the view that the presence of these two witnesses at the site of occurrence at 2‑00 a.m. is doubt ful. In fact, there was no reason for their presence at the spot. Haji Ahmad was not alone. His brother Abdul Subhan had also an interest in the land. It appears clear from their discrepant evidence that they had never been taken to help the complainant party in watering the field before the occurrence. There is no reason why they should have accompanied them on the date of occurrence. Their presence at the spot is not natural. One important factor common in the evidence of all the three eye‑witnesses is that all of them were at a distance ranging from 1 acre to 1 acres when the deceased raised an alarm but it is strange that all 5 or 6 blows which are said to have been given by the accused party were given only when all the witnesses reached at a distance of about 4 paces only from the place of occurrence. It the accused party had gone to the spot to take revenge from Haji Ahmad I do not understand why they should wait till the arrival of witnesses who should see them committing the offence particularly when for the commission of this offence they had chosen a time when possibility of the presence of any person at the spot was rare. (It is possible to go it the realm of conjectures and explain this by saying that there might have been an altercation between the deceased and the assailants. But in the present case there is no scrape for such conjectures for the reason that Abdul Subhan P. W. 11 was positive that he had heard no altercation between the accused and the deceased before the alarm of the deceased. However, it is not permissible in a criminal case to make conjectures, since the benefit of doubt should go to the accused). I do not therefore believe the evidence of these eye‑witnesses that the assailants whoever they were had waited till the eye‑witnesses came from a distance to the spot, and then given blows to the deceased. In the natural course of event they should have taken advantage of the loneliness of Haji Ahmad and given him a beating immediately since they had outnumbered the deceased being three against one and escaped immediately thereafter.
10. The first information report also appears to have been given after some delay which was not explained according to the evidence of P. W. 13, Abdul Subhan left for the Police Station at about 2‑15 a.m. The first information report was recorded at 10 a.m. It, therefore, appears that he took about eight hours to reach the Police Station while the police after recording the first information report arrived at the spot by 12.00 noon. The complainant bad taken about eight hours to reach the distance which was covered by the police in about 1 hours. In these circumstances, it was necessary for the prosecution to explain the manner in which the com plainant and the police had gravelled in order to explain this delay. In my view, even if the complainant had walked to the Police Station he would not have taken more than 5 to 6 hours to cover a distance of 14 miles. There in, therefore, force in the argument of the defence counsel that the com plainant had not started to the Police Station immediately but had taken some time in consultation. A suggestion was put to P. W. 11, that he had gone first to Muhammad Afzal Khan, Lambardar, who had given him a Writing which be took to the Police Station. At that time he had informed Muhammad Afzal Khan that nobody had seen the occurrence. The sugges tion that the complainant first went to Muhammad Afzal Khan and took a piece of paper from him before going to the Police Station was also put to P. W.
12. Both these persons denied this suggestion, Dil Muhammad S. I. P. W. 14, however, stated that he did not remember whether the com plainant brought any writing of Muhammad Afzal Khan Lambardar. In view of the unexplained delay in the first information report, I agree with the learned counsel for the appellants that it is quite possible that Abdul Subhan also may not have seen the occurrence and may have taken some tune in leaving for the Police Station in order to consult his friends and members of the family. I have already disbelieved Abdul Subhan in regard to his evidence about motive. His evidence as an eye‑witness also does not inspire confidence.
11. I, therefore, give the benefit of doubt to the two appellants and acquit them.
M. A. GHAFOOR KHAN J. ‑I agree with trey learned brother Mr. Justice Aftab Hussain to his finding that the prosecution has failed to prove tile case beyond any shadow of doubt and that the appellants are entitled to be acquitted. Since only five injuries were found on the person of the deceased it means that very short time of few seconds only was required by the assailants to inflict the injuries. According to the prosecution case the deceased was at the water‑course to guard the flow of water. So naturally lie could be close to the water‑course. The deal body was found quite close to the watercourse meaning that the assailants did not allow the deceased to escape and attack him at the place where he was present. If the deceased had a chance to escape and had tried to do it could be said that after he raised alarm seeing the assailants, the eye‑witnesses had a chance to reach the place of occurrence in the presence of the assailants. Since the witnesses were at a distance, they could not have reached the place of occurrence within a few seconds which were required by the assailants to achieve their object. It, therefore, appears that they did not see the assailants causing injuries to the deceased and might have reached the place of occurrence after the assailants had decamped.
12. However with great respect I find myself unable to agree with the observations made by my learned brother that the F. I. R. was made after a considerable delay. A man usually walks at a speed of 2 miles per hour. Since the allegation is that the complainant had gone to the village also for taking a ruqqa from the Lambardar be could not have left for the police Station before about 3 a.m. Since the F. I. R. was completed at 10 a.m. when the Investigating Officer left the Police Station for the place of occurrence, the complainant must have reached the Police Station in between 9 or 10 a.m. covering a distance of 14 miles on foot. There is nit suggestion that the complainant went on some vehicle, therefore, the assumption would be that he had gone on foot. So there appears to be no delay in making the F. I. R.
13. As the case is not free from doubt. I agree in acquitting the appellants.
Appeal accepted.