MUHAMMAD AFZAL Versus STATE
1. Muhammad Afzal son of Ghulam Sarwar was tried for the murder of Piran Ditta, by the Additional Sessions Judge, Sargodha. The trial Judge by his judgment dated 6th November, 1977 found the accused guilty, con victed him accordingly and sentenced him to life imprisonment and a fine of Rs. 5,000; in default to undergo three years' R. I. Fine, if recovered was to be paid to the wife and daughter of the deceased, as compensa tion. The convict has filed this appeal against the judgment of the trial Court.
2. The occurrence took place on the night between 16th/17 th July, 1975, in the area of Chak No. 7/N. B. situated at a distance of seven miles from Police Station, Bhalwal. First information report Exh. P. E. was lodged by Nawab Khan (P. W. 9) on 17 th July, 1975, at 4-30 a. m. at Police Station, Bhalwal, which was recorded by Mehr Khan A. S. I. (P. W. 6).
2. According to the prosecution, the deceased Piran Ditta was a domestic servant of Ghulam Sarwar, father of the accused. During that period, it is alleged that the accused developed illicit relations with Mst. Manzooran daughter of the deceased. Piran Ditta left the service of Ghulam Sarwar and came to the Dera of Nawab Khan P. W., where he started cultivating his land. Nevertheless, the accused used to visit off and on his beloved Mst. Manzooran.
3. Four or five days prior to the occurrence, Piran Ditta turned out Muhammad Afzal from his Dera and abused him.
4. On the night of occurrence, Piran Ditta along with his wife Mst. Rabia and daughter Mst, Manzooran was sleeping in the courtyard of the dera. Inayat, Akbar and Nawab Khan were sleeping at the Behak close to the Dera. It is alleged that at about mid-night the appellant attacked Piran
5. Ditta with a hatchet. Piran Ditta raised alarm, on which Mst. Rabia, Mst. Manzooran, Inayat, Akbar and Nawab Khan woke up and saw the occurrence. Afzal after injuring Piran Ditta ran away. Plran Ditta was then alive. He told the witnesses that it was Afzal who had injured him with a hatchet.
6. Piran Ditta was removed to the hospital. He was medically examined. However he could not survive the injuries received by him and expired on 17th July, 1975.
3. As already observed by me at the time of attack, Mst. Rabia and Mst. Manzooran were sleeping close to the deceased and the prosecution case is that they saw Piran Ditta being attacked. Nevertheless, I find that in their evidence both the women deposed that they did not see any body causing injuries to the deceased. As a matter of fact, Mst. Rabia said that Piran Ditta was sleeping near the cattle; whereas she and her daughter Mst. Manzooran were sleeping in the courtyard. She even gave the distance and said that her husband was sleeping at a distance of 10/12 karams. She was declared hostile and cross-examined by the Addi tional Public Prosecutor, but even then she stuck to her version that she did not see anybody injuring Piran Ditta.
7. Same is the statement of Mst. Manzooran. She too was declared hostile. 1n cross-examination she denied the-suggestion that the appellant was carrying on with her and that in order to remove him from the way the appellant had murdered him.
8. Nawab Khan who lodged the first information report, deposed that he, Akbar and Inayat were sleeping at his Behak. The deceased with his family was sleeping at the Dera of Nawab. It was about mid-night when they heard alarm and all of them rushed to the place. There they found a man running towards the garden and saw Piran Ditta lying injured. He was in his senses. They enquired from him as to what had happened to him and he said that Afzal son of Ghulam Sarwar had given him injuries with a hatchet. The deceased was removed to the hospital where he died.
9. The rest of the evidence I do not want to discuss, because that is not relevant,
10. Umar Hayat Khan Sub-Inspector arrested the appellant on 23 rd July, 75 and on his pointing out recovered hatchet. P. 3 vide memo. Exh. P. G. According to the report of the Chemical Examiner Exh. P. K. the scrapp ings were sent to the serologist to determine the origin of blood, but there is no report of the serologist on the record.
11. The appellant when examined by the trial Court denied the allegations levelled against him, pleaded not guilty and declined to produce evidence in defence. He however, admitted that the deceased was the tenant of his father, who ejected him from his land and thereafter he came to the Dera of Nawab Khan P. W. and started cultivating his, land. He ascribed the case to suspicion and enmity with Nawab P. W. and said that in fact Nawab and other P. Ws. bad murdered Piran Ditta and due to grudge they had implicated him falsely.
5. The important eye-witnesses, i.e. wife and daughter of tile deceased did not support the prosecution case and I, therefore, do not think that the testimony of Nawab Khan P. W. alone is sufficient in law to maintain the conviction of the appellant, especially when the report of the serologist is not forthcoming. It is thus obvious that the prosecution has failed to prove any case against the appellant.
12. This appeal is accordingly allowed and the appellant is acquitted. He is on bail. His bail bond shall stand cancelled.
13. Order accordingly.