QAIM DIN Versus STATE
MUHAMMRD RAFIQ TARAR, J.--- ‑Qaim Din appellant was tried by the learned Sessions Judge, Lahore at Kasur, for committing the murder of Abdur Rehman deceased on 28th March 1971, at 6‑30 a. m. in the area of village Badhaikey, by judgment, dated 2nd May 1973, he was convicted under section 302 of the Pakistan Penal Code and sentenced to death and a fine of Rs. 2,000 or in default in the payment thereof to R. I. for one year. Out of the fine, if realised, half the amount was ordered to be paid to the heirs of the deceased. The convict has appealed and the case is also before us on reference for confirmation of the death sentence awarded to him. The appeal and the reference are being taken up together and disposed of by this judgment.
2. The brief facts of the prosecution case are that Abdur Rehman deceased. Qaim Din appellant and the latter's brother Ismail were joint owners of a tube‑well situate in the area of village Badhaikey. On 28th March 1971 at about 6 a.m. the deceased and his maternal cousin Rehmat Ali complainant went to the tune‑well. The deceased started the tube-well while Rehmat Ali complainant joined Shakir Ali (not produced), Master Allah Ditto and Ghulam Muhammad P. Ws. who were smoking huqqa at a short distances from the rootless room of the tube‑well. A short while after, they heard noise coming from the room of the tuba‑well. They rushed to that room and found the appellant giving hatchet blows to the deceased who had fallen down unconscious. They rescused the deceased from the appellant, put him on a cot and took him to Kanganpur Civil Dispensary where he was medically examined. After preliminary treatment, he was taken to Mayo Hospital, Lahore. Rehmat Ali complainant reported the occurrence at Police Station, Kanganpur on the same day at 8‑15 a.m, vide F. I. R., Exh. P. A., recorded by Nur Muhammad, Assistant Sub-Inspector.
3. The motive for the occurrence was that about five or six days before the occurrence, Qaim Din appellant and Abdur Rehman deceased bad quarrelled when the former accused the latter for showing less income from the tube‑well. It is alleged that the appellant had advanced a threat to the deceased that he would kill him.
4. After recording the F. I. R., Nur Muhammad A. S. I., reached the spot. He took some blood‑stained earth into his possession from the spot and made it into a sealed parcel vide Memo Exh. P.B On 29 th March 1971, he enquired from the Doctor if Abdur Rehman was fit to make a statement and received the reply that he was not. On 30 th March, 1971, he made a similar quarry from the doctor and was again informed that Abdur Rehman was not in a fit condition to make a statement. On the same day, the appellant was produced before him at the spot by Ismail (brother of the appellant) and he arrested him. At the time the appellant produced hatchet (Exh. P.1) before the A. S. I who made into a sealed parcel vide memo Exh. P. C. On 1st and 8 th April 1971 the A. S. I. again inquired from the doctor if Abdur Rehman was fit to make a statement and received replies in the negative. The deceased expired in the hospital on 19th April 1971. The A. S. I., went to the hospital and prepared the inquest report (Exh.P.N). of the dead body and sent it to the mortuary for post‑mortem examination. After the investigation, a case under section 302, P. P. C., was sent up against the appellant.
5. On 28th March 1971, at 8‑30 a.m. Dr. Burhan Ahmad, the then A. M. C., Civil Dispensary. Kanganpur, examined Abdur Rehman deceased, when alive, and found the following injuries on his person :‑
(1) An incised wound 2 x bone deep on left side of cheek, away from the outer canthus of left side eye. It was directed obliquely downwards and inwards.
(2) An incised wound 2 x depth not measured, on left side of cheek at level of lobule of ear directed horizontally.
(3) An incised wound 4 x 1'' x depth not measured just under injury No. 2 cutting the mandible direction same as injury No. 2.
(4) An incised wound 2'' long cutting the left ear pinna vertically detaching the outer flap which was loosely hanging.
(5) An incised wound 2'' so '' x bone deep on right side of skull 4'' above the car.
(6) An incised wound 1F x F x scalp deep on left side of back of scalp 3' behind the left car detaching the flap of scalp.
(7) An incised wound '' x '' x '' on dorsum of right band.
(8) A 'Z' shaped contusion 1'' x '' on outer aspect of left upper arm.
Injuries Nos. 3 and 4 were grievous in nature. Injury No. 8 was simple and the rest of injuries were collectively dangerous to life. Injuries Nos. 1 to 7 were caused by a sharp‑edged weapon and No. 8 by a blunt weapon within the duration of about six hours.
On 20th April 1971 Dr. Nusrat Ullah, Deputy Surgeon (Medicolegal), conducted the autopsy on the dead body of Abdur Rehman deceased and found a healing wound on left temporal and mandibular region 2 '' x 1 '' apart from the other injuries referred to in the medicolegal report which were in the form of healed scars at the time of post‑mortem examination. In the opinion of the doctor, death was due to toxemia by, meningitis as a result of injury No. 1 which was sufficient to cause death to the ordinary course of nature. The attendance of Dr. Nusrat Ullah who conducted the autopsy on the dead body could not be produced as he had left for U. K. for higher studies. The post‑mortem report (Exh. P. O.) and the pictorial diagram (Exh. P. Q./1) were proved by Abdul Sattar Shah (P.W.4), Dispenser, to be in the handwriting of Dr. Nusrat Ullah. The report having been made by the said doctor in the discharge of his professional duties is admissible under section 32(2) of the Evidence Act.
6. To support its case the prosecution examined sixteen witnesses in all, its main stay being the ocular testimony of Rehmat Ali complainant, Master Allah Ditta and Ghulam Muhammad P. Ws. The prosecution also placed reliance on motive and the recovery of blood‑stained hatchet allegedly produced by the appellant before Nur Muhammad A. S.I. This recovery was supported by Abdur Rehman and Riasat Ali P. Ws.
7. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He stated that the tube‑well was purchased by him and his brother Ismail and the deceased was not a partner in it. He further contended that he bad been falsely implicated due to enmity with the prosecution witnesses. He produced an agreement (Exh. D. C.), a pronote (Exh. D. D.) and a receipt (Exh. D. D. 1) in order to show that he and his brother Ismail had purchased the tube‑well from Muhammad Siddiq Shah and Muhammad Rafiq Shah, residents of Qila Singh for a sum of Rs. 2,800. No other evidence was led in defence.
8. The learned trial Judge accepted the testimony of Rehmat Ali P. W. and observed that the evidence of Master Allah Ditta and Ghulam Muhammad P. Ws. required corroboration as they were inimical to the appellant. He found corroboration of their statement in the recovery of blood‑stained hatchet from the appellant, and on the basis of this evidence found the appellant guilty for murder.
9. The learned counsel for the appellant contended that the prosecution had failed to substantiate the motive and that all the eye‑witnesses were inimical to the appellant, therefore, no reliance could be placed on them. He also assailed the evidence relating to the recovery of blood‑stained hatchet.
10. We have gone through the entire evidence with the help of the learned counsel for the appellant and the State. The motive alleged by the prosecution was that the deceased, the appellant find the latter's brother; Ismail were joint owners of the tube‑well and five or six days before the occurrence there was a quarrel between the deceased and the appellant when the latter accused him for showing less income from the tube‑well. The learned counsel for the appellant contended that the tube‑well belonged exclusively to the appellant and his brother Ismail and there was not an iota of evidence on the file to show that the deceased was a partner in the tube‑welt. He further stated that there was inveterate enmity between the appellant and the deceased, therefore, any partnership between them was out of question. The contention seems to be well founded, Rehmat Ali complainant admitted in cross‑examination that a case under sections 326 and 307 of the Pakistan Penal Code was registered against the deceased in the year 1963 at the instance of Ismail, brother of the appellant. He further admitted that the eye‑witnesses, namely, Master Allah Ditta and Ghulam Muhammad, were also accused persons in that case. This fact was also admitted by Master Allah Ditta and Ghulam Muhammad P.Ws Master Allah Ditta P. W. stated that since he was innocent, therefore, he was acquitted. The complainant, however, volunteered that the accused persons in that case were acquitted a. there was a compromise. The learned counsel for the appellant contented that this compromise was introduced by the complainant with a view to meet the argument that in view of the previous enmity between the parties the deceased could not have joined Ismail in the tube‑well. The argument is not without force. Master Allah Ditta and Ghulam Muhammad who were accused persons in that case, did not speak about any such compromise. At the trial, the complainant was unable to tell as to from whom the tube‑well was purchased by the deceased anal whether any writing was executed to evidence of its sale or not. He was also unable to tell if any partnership deed between the deceased and the other partners was executed, or not, it is in evidence that before the occurrence this tube‑well bad been sold to some other person but nab not been removed by them. The complainant was also unable to tell as to whom the tube‑well had been sold. Master Allah Ditta P. W. also stated that he did not know as to from whom the tube‑well had been purchased by the deceased and others. In the absence of any documentary evidence. It is difficult to believe that the deceased was a partner in the tube‑well with the appellant and his brother Ismail, with whom he had previous enmity. The motive alleged by the prosecution thus remains unsub stantiated.
11. Coming to the ocular evidence, we find that the presence of the eye‑witness at the spot is doubtful and the account of occurrence given by them is highly improbable. Rehmat Ali complainant is employed in the army. He stated that on 11th March 1971, he x ad come to his village on lease for two months. He further stated that on the day of occurrence at about 6 a.m. he went to the tube‑well along with Abdur Rehman deceased. He admitted in cross-examination that he had no share either in the tube‑well or in the land adjacent to vie tube‑well. He further stated that he had gone to the tube‑well simply to Lella the deceased in starting the engine. It is in his statement that he had not learnt about tube‑well engine or motor of the tube‑well. In his statement before the committing Court with which he was duly confronted, he had stated that he had gone to the tube‑well for removing a defect in the tube-well pump. This witness had no share in the tube-well or in the adjacent land and he gave different reasons for his visit to the tube‑well in the committing Court and at the trial. Thus, apparently there was no reason for his presence at the tube‑well.
Master Allah Ditta P. W. stated that he had gone to the tube‑well for taking bath. He admitted in cross‑examination that his house is at a distance of eight killas from the place of occurrence. He also admitted that there were two mosques in the village at a distance of three or four killas from his house and there were arrangements for taking bath in those mosques. It is not understandable why this witness came to the tube‑well owned by his enemies situate at a distance of eight killas from his house when he could conveniently take bath in one of the mosques situate at a short distance from his house. Therefore, his presence at the spot is extremely doubtful.
Ghulam Muhammad P. W. stated; "My land was irrigated by a well but after the tube‑well was installed my land came to be irrigated from the tube‑well on payment. My land that was irrigated by the tube‑well is at a distance of two killas from the place of occurrence. About two years ago on the day of occurrence at morning time I went to the tube‑well of Abdul Rehman and others for taking water". The impression gained from his above statement is that he had gone to the tube‑well for getting water for his land. In cross‑examination this witness gave out that his father had 17/18 acres of land out of which only one killa was under mortgage and the rest of the land was cultivated by him (the witness). Muhammad Sharif Patwari (P. W. 9) stated in cross‑examination that Hakam Ali (father of Ghulam Muhammad P. W.) owned 120 kanals and 8 maslas of land out of which 54 kanals was mortgaged with possession with different persons and 33 kanals and 19 marlas was cultivated by Hakam Ali himself and 16 kanals was cultivated by Abdul Rehman son of Chiragh. He further stated that the land of Hakam Ali was Chahi Nehri with the exception of one or two numbers which were shown as Nal Nehri, out of the mortgaged land. He categorically stated that the Khudkasht land of Hakam Ali is Chahi Nehri and is not irrigated by the tube‑well. The statement of the Patwari has thus belied the statement of Ghulam Muhammad that he had gone to the tube‑well for taking water for his land. Moreover, it is not established on the record that Abdur Rehman deceased had any share in the tube‑well and we are not prepared to believe that this witness could go to the tube‑well for taking water for his land from Ismail, brother of the appellant, who had brought a case against this witness under section 307 of the Pakistan Penal Code.
12. The account of occurrence given by these three eye‑witnesses is highly improbable. Rehmat Ali complainant stated that when be and other two eye‑witnesses entered the room of the tube‑well, the appellant gave two hatchet blows to the deceased within their sight while they were rescuing the deceased. He further stated that they caught hold of the appellant and pulled him out of the room. It is also in his statement that he and the other P. Ws. caught hold of the appellant from his shirt at the back and pulled him behind. Master Allah Ditta (P. W. 13) stated that they "caught hold of Qaim Din accused from his arm but not from his back in order to save the deceased." tic further stated that they did not get hold of Qaim Din accused at that time and that the appellant had run away from the spot within his sight. Ghulam Muhammad (P. w. 15) stated in examination in chief that they dragged Qaim Din accused and pulled him aside by catching hold of his arm.
In cross-examination he stated We did not get hold of Qaim Din accused as the life of Abdul Rehman deceased was more dear to us. We had our selves pushed back the accused aside, from his arms. The position that emerges from the evidence of these P. Ws. is that they had apprehend the appellant red‑handed but they allowed him to escape. Rehmat Ali complainant is the maternal cousin of the deceased their mothers being real sisters inter se. The other two eye‑witnesses are inimically disposed towards the appellant as his (appellant's) brother bad brought a case under sections 326 and 307, P. P. C., against them. If they had seen the occurrence as alleged by them and had caught hold of the appellant, they would not have permitted him to escape under any circumstances. According to the Doctor who examined Abdur Rehman deceased when alive the duration of injuries was six hours. The deceased was examined at 8‑30 a. m.. The duration given by the doctor can vary from 1 to 2 hours on either side. It appears that the deceased was injured much earlier than 6‑30 a. m. and the possibility that no body had witnessed the occurrence, cannot be excluded in this case. Moreover, alt the eye‑witnesses being inimical to the appellant it will be unsafe to place reliance on their uncorroborated testimony.
13. The learned trial Judge found corroboration in the recovery of blood‑stained hatchet which was confirmed by the Serologist to be stained with human blood. According to the prosecution, the blood‑stained hatchet was produced by the appellant on 30th March 1971 when he appeared before the Assistant Sub‑Inspector. The recovery was supported by Riasat Ali and Abdur Rehman P. Ws. Rehmat Ali complainant in his statement before the a Committing Court with which he was duly confronted stated: that Qaim Din accused while escaping had left the hatchet at the place of occurrence inside the tube‑well." We, therefore, do not place any reliance on the evidence of Riasat Ali and Abdur Rehman P. Ws.
14. For all the foregoing reasons, we feel inclined to the view that the prosecution version of the occurrence is pregnant with serious doubts and the appellant is entitled to acquittal. We, therefore, allow the appeal, set aside the conviction and sentence of the appellant and acquit him of the charge by giving the benefit of doubt. The appellant shall be set at liberty forthwith, if not required to be detained in any other case. The death sentence is not confirmed.
Appeal allowed.