MUHAMMAD ARFAN Versus STATE
This is an appeal against the judgment dated 16‑3‑74 recorded by the learned Sessions Judge, Rawalpindi whereby he convicted the appellant under section 302, P. P. C. and sentenced him to life imprisonment and a fine of Rs. 2.000. He was sentenced to one year R. I. more in default of payment of fine.
2. The prosecution story as given in the F. I. R. in short is that at about 8. p. m. on 25‑9‑62 the appellant cut jokes with a lady who was pass ing near the shop of Mohammad Ilyas P. W. Manzoor deceased reprimanded the appellant where upon an altercation took place between the two. The appellant left threatening to teach a lesson to the deceased very soon. On the same date after about half an hour when Manzoor deceased was passing near the house of Mir Zaman the appellant accompanied by his brother Daud co‑accused appeared there and after being exhorted by the latter attacked the deceased with a chhuri. The deceased warded off the blow at his hands and received injuries. Thereafter Daud grappled with the deceased and exhorted the appellant to kill him whereupon the appellant pierced his chhuri into the left flank of the deceased and ran away wits, his companion leaving the chhuri in the wound when the eye‑witnesses. namely, Mohammad Yaqoob P. W.
9. Noor Mohammad P. W. 10 and Mohammad Younas P. W. 11 raised alarm. Noor Mohammed P. W. took out the chhuri from the wound of the deceased and took him to the hospital in a taxi but before medical aid could be given to him he expired. Mohammad Aslam S. I. P.W. 14 reached the hospital receiving a telephonic message from the doctor and recorded statement Exh. P. A. of Mohammad Yaqoob P. W.
9. During the investigation, Noor Mohammad P. W‑ produced blood‑stained chhuri P. 1 to the said S. I. who siezed it vide memo Exh. P. B. It was sent to the chemical examiner and the Serologist and was found to be stained with human blood. The appellant was found to be stained with human blood. The appellant was arrested by Inayat Hussain Shah P. W. 15 on 27‑9‑72 and was got medically examined through his injury statement Exh. P. J. as he appeared to be having injuries on his person. He was medically examined by Dr. Abdul Jabbar, Court witness, who found as many as seven injuries out of which one was bluish violet contusion 1' x 3/4' below the right eye and the rest were scabbed abrasions on the left shoulder, left chest above the arm pit, on the right index finger, on the front of left form‑arm above the wrist, on the left side of abdomen in its outer part at the level of the umblicius and on the front of the left knee lower part. All the injuries were found to be simple and caused with a blunt weapon.
3. The eye‑witnesses supported the prosecution case but did not identify chhuri P.
1. The appellant took up the plea that a verbal altercation had taken place between him and the deceased on the turn of hair cutting and the deceased had left for his house threatening him with dire consequences. He further explained that when after finishing his business on his betel shop was returning home he was attacked by the deceased at 8‑30 p. m. in front of the house of Ch. Mi: Zaman. He further explained that he was injured by the deceased and when he snatched the suti from him the deceased grappled with him and felling him on the ground took out chhuri from the fold of his shalwar and attempted to cause an injury but he snatched the chhuri. He went on to say that the deceased made an statement t o snatch the chhuri by holding it from the blade side as a result of which his hand was injured and when he was unsuccessful in snatching it he throttled him (the appellant) whereupon the latter in exercise of right of self‑defence gave the one chhuri blow.
4. The learned Sessions Judge found the story given by the appellant as improbable and believing the prosecution evidence convicted him.
5. According to the learned Sessions Judge the witnesses are natural and for this reason he has believed their evidence ignoring the fad that they are related to the deceased. Younas P. W. has been characterised as natural witness because his baithak is alleged to be situated near the place of occurrence but the learned Sessions Judge has erred in coming to this conclusion. No doubt, Younas P. W. stated that his baithak was situated near the place of occurrence, but lie had admitted before the Committing Magistrate that the rent receipts of the baithak were in the name of one Ilahia. The learned State counsel has argued that the mere fact of the rent receipts being in the name of Ilahia is not sufficient to say that Younas P. W. 11 wrongly stated that he was occupying the baithak during the days of the occurrence do not find any force to the argument of the learned counsel. The receipts of rent are always in the name of the tenant and since the receipts were admitted to be in the name or Ilahia there is no material to say that Younas P. W. 11 was occupying the said baithak on the date of the occurrence. So this is wrong that he is natural witness According to the learned Sessions Judge Noor Mohammad P. W. was also a natural witness because he had to recover Rs. 20 from Younas P. W.
11. Firstly, this fact would not make Noor Mohammad a natural witness but will show only this much he had a cause to be present near the place of occurrence. When this is not believable that Younas was occupying any baithak near the place of occurrence, the evidence of Noor Mohammad P. W. who stated that he had gone to Younas P. W. to recover Rs. 20, also falls to the ground. Noor Mohammad stated that Rs. 20 which he had to recover from Younas were the price of two maunds of fodder. The rate of fodder could not be Rs. 10 per maund in 1972 when the occurrence took place. So this is also doubtful that Noor Mohammad bad to recover some amount from Younas. Admittedly, the rest of the eye‑witnesses are not residing near the place of occurrence and this is not understandable how per chance the relative witnesses happened to be present at the tints of the occurrence and no natural witness residing near the place of occurrence happened to see the incident. The Courts should be on their guard to scrutinise the evidence of relative chance witness in case where no natural or disinterested witness comes forward and the relative witnesses have no cause to be present at the scene of occurrence. The other thing, which makes the presence of the eye‑witnesses at the scene of occurrence doubtful, is that they have not explained the injuries present on the person of the appellant. If they had seen the occurrence they would have stated that the appellant received injuries at their hands or at the hands of the deceased. Mohammad Ilyas P. W. 12 who has given evidence of motive does not say that the appellant had suffered injuries at the hands of the deceased. He stated only this much that the deceased and the appellant grappled with each other. In grappling injury No. 1, which is a bruise could not be suffered by the appellant. This injury could be caused by a fist or a stick blow: So the appellant did part receive the injuries at the time of the incident which took place about half an hour before the incident of murder. The other thing is that the witnesses have stated that no bandage was applied on the wound of the deceased but the doctor and the S. I. stated that they found a bandage on the wound. The defence suggestion was that the deceased first of all was removed to his house after the occurrence and there bandage was applied and afterwards he was taken to the hospital. It shows that the eye‑witnesses were not present therefore, they did not know if any bandage was applied. The other thing is that none of the assailants was tried to be apprehended. The witnesses admitted that they did not make an attempt to catch hold of the appellant or his companion. P. W. 9 stated that when the deceased was about to fall after receiving the injuries he gave him a support. It means that he and the other witnesses were quite close to the deceased, thus could very well apprehend the assailants but strange enough to see that none of them made even an attempt to apprehend them. The appellant and his companion both were empty handed after the deceased was given fatal blow because the chhuri was left in the wound, and so could be very easily apprehended. The upshot of the above discussion is that the prosecution has failed to prove the prosecution case without any shadow of doubt and the learned Sessions Judge erred in coming to the conclusion that the eye‑witnesses were natural witnesses and that they were present at the time of the occurrence. I accordingly accept the appeal and giving the benefit of doubt acquit the appellant: The appellant is in the jail so he shall be set at liberty at once if lie is not required in any other case.
Appeal allowed,