ALLAH BAKHSH Versus THE STATE Farooq A. Chaudhry , Sh. Mohammad Nawaz

The appellant Allah Bakhsh aged 20 years was convicted under section 302 P.P.C for the murder of Amir Khan aged 35 years and was sentenced to life imprisonment plus a fine of Rs.10,000 and in case of default to undergo further rigorous imprisonment for two years. He was also convicted under section 411 P.P.C. and was sentenced to two years' rigorous imprisonment vide the judgment dated 29-1-1986 passed by the learned Additional Sessions Judge, Toba Tek Singh. Both the sentences were ordered to run concurrently.

2. Briefly stated the case of the prosecution as narrated by Haitem Khan, complainant PW7 vide his statement Ex.PE, is that on 18-5-1983 at about Dopherwela Amir -Khan, deceased, real brother of the complainant PW7, went to Kamalia in order to purchase household goods on his cycle P1 bearing No. D 078500 Beco Mark. The complainant PW7 and Rab Nawaz PW8 also went on foot in order to attend their personal matters and when they reached near Chak No.715/G.B., they saw that Amir Khan, deceased, while riding on his cycle came from the side of Kamalia and when he reached near the lands of Haq Nawaz, etc. the complainant and his companion PW8 saw that the appellant, Allah Bakhsh, emerged immediately from behind a Sheesham tree and attacked upon Amir Khan, deceased. The complainant PW7 stated that within their view the appellant threw a piece of stone at Amir Khan and on the receipt of stone injury on his head, he fell down. Thereafter the appellant gave more stone blows which landed on the right eye, right side of head and right ear. The complainant stated that the appellant after lifting the cycle of Amir Khan ran away on the said cycle. The witnesses chased the appellant but he ran away: Amir Khan was transported in a Tractor-Trolley to Civil Hospital Pir Mehal in an injured condition and the medico legal report was obtained.

About the motive, the complainant PW7 stated that the appellant had suspicion that Amir Khan had illicit relations with Mst. Niamat, mother of the appellant. Later on the injured Amir Khan died in the hospital on account of the injuries on 18-5-1983 at 9.45 p.m.

3. Muhammad Aslam ASI PW10 investigated the case. He stated that on 18-5-1983 he was posted as ASI at Police Station Kamalia. He recorded the F.I.R. Ex.PE on the statement of Haitem Khan, complainant PW7. He inspected the spot. On the same day the witness went to Civil Hospital Pir Mahal and at that time Amir Khan injured was still alive. However, the witness could not record his statement because the injured was not fit to make a statement. The witness prepared the injury statement Ex.PK and inquest report Ex.PL. The dead body of Amir Khan, was entrusted to Niaz Ahmad FC PW9 for post-mortem examination. On the following day, the witness again visited the spot and prepared rough site plan Ex.PM. He collected the blood-stained earth vide memo Ex.PA, two pieces of blood-stained stones P5/1-2 vide memo Ex.PB, the last worn clothes of the deceased, Shirt P2, Chadar P3, and Saluka P4 vide memo Ex.PF and made them into a sealed parcel. The appellant was arrested by the witness on 29-5-1983. On 2-6-1983 the appellant led to the recovery of cycle Pl from his resident which was taken into possession vide Memo Ex.PC. In cross-examination, the witness conceded that it was brought to his notice that the deceased had illicit relations with Mst. Niamat, mother of the appellant. The reports of the Chemical Examiner Ex.PR as well as that of the Serologist Ex.PS were positive and the articles were found to be stained with human blood.

4. Dr. Iqbal Ahmad Javed, Senior Medical Officer, PW11 medically examined Amir Khan (at that time injured) on 18-5-1983 at 5.00 p.m. and found the following injuries on his person:-

(1) A lacerated wound on the middle of the right side of the head 2" above the right ear. 1 ? " x ? " x bone deep direction was oblique.

(2) A lacerated wound on the right side of the head just behind the right ear 1" x ? " x bone deep direction was oblique.

(3) A lacerated wound on the right side of the forehead 1" x ?" x bone deep direction was oblique 2" in front of the right ear.

(4) An incised wound on the Pinna of the right ear ?" x ?" x cut through and through.

(5) A cut mark on the front of the right ear just above the lobule of the right ear ?" x 1/16" x skin deep.

(6) A cut mark on the right cheek ?" x 1/16" x skin deep 1" below the right eye.

(7) Both eyelids of the right eye were extremely swollen and of bluish colour. The general condition was very serious. He was completely unconscious at the time of examination. B.P. was not recordable. Pulse not recordable. Pulse was very low volume 65/m. Temperature was 103? F. Bleeding was noticed from nose both nostrils

Injuries Nos.1, 2, 3 and ' were kept under observation and X-rah was advised. It was also observed that the injuries were dangerous to life. Injuries Nos. 4, 5 and 6 were declared simple. It was further declared that injuries Nos. 1, 2, 3 and 7 were caused by blunt weapon and injuries Nos, 4; 5 and 6 by sharp-edged weapon within, a duration of about 6 hours.

On 19-5-1983 at 9.45 Amir Khan expired in the hospital and at 10.00 p.m. his dead body was subjected to post-mortem examination by the same Doctor. Following injuries were noted by the Doctor:----

(1) A lacerated wound on the middle of the right side of head 2" above the right ear 1?" x 1?" x bone deep direction was oblique. On the instruction of the scalp I had seen extensive and wide spread formation of Haemotoma due to internal haemorrhage all around the skull bones. On further dissection of Haemotama a mole of coagulated blood of right frontal bone, were right purital bone right occipital bone and the left parital bone all fractured.

(2) A lacerated wound on the right side of the head just behind the right ear 1" x ?" x bone deep direction was oblique. On dissection haemotoma was seen and right temporal bone was fractured.

(3) A lacerated wound on the right side of the forehead 1" x ?" x bone deep direction was oblique in front of the right ear. On dissection coagulated blood was seen and the right frontal bone was fractured.

(4) An incised wound on the Pinna of the right ear 1/3" x 1/3" x cut through and through.

(5) A cut mark on the front of the right ear just above the lobule of the right ear ?" x 1/16" x skin deep.

(6) A cut mark on the right cheek ?" x 1/16" x skin deep 1" below the right eye.

Both eyelids of right eye were swollen and of bluish colour.

In the opinion of the Doctor the death occurred due to internal haemorrhage and shock due to injuries Nos.1, 2 and 3. These injuries were sufficient to cause death in the ordinary course of nature. Injuries Nos.1, 2 and 3 were grievous and rest were simple in nature.

5. The eye-witness account in the case was provided by Haitem Khan, complainant PW7 and Rab Nawaz PW8. Haitem Khan PW7 stated that the deceased went to Kamalia on his bicycle in the morning in order to purchase some household articles. The witness stated that he alongwith Rab Nawaz PW8 and Waryam (not produced) proceeded to Kamalia on foot. When they reached near Chak No.715/G.B. at about Dopharwela they saw that the deceased Amir Khan while riding on his bicycle was coming from the Kamalia side. The witness stated that at that time the appellant suddenly emerged from behind a Sheesham tree and he inflicted a blow by throwing a stone upon the deceased, which hit him on the right side of his head near the ear. On receipt of this injury Amir Khan, deceased, fell down and became unconscious. Thereafter the appellant ran away on the bicycle of the deceased. The deceased (at that. time was injured) was shifted through a Tractor-Trolley to Civil Hospital, Pir Mahal where he was medically examined. On the statement of the witness a case was registered vide F.I.R. Ex.PE. On the same day Amir Khan expired in the hospital. Rab Nawaz is another eye-witness in the case. He stated that he in the company of Haitem Khan PW7 and Waryam (not produced) was going towards Kamalia and when they reached near Chak No.715!G.B. they saw Allah Bakhsh, appellant, concealing himself behind a Sheesham tree. He appeared from there and threw a piece of stone on the deceased who was coming from Kamalia side. On the receipt of the injury, the deceased fell down on the ground and thereafter the appellant caused more blows with pieces of stones on the head and near the right ear of the deceased.

6. The appellant while making a statement under section 342 Cr.P.C. denied the allegation. He pleaded that he was completely unaware about the murder of Amir Khan, deceased, and as such he was innocent. He stated that he had paid Rs.42,000 to the deceased and his brother for the purpose of purchasing a piece of agricultural land. However, the deceased did not fulfil the promise nor returned the money to him. It was stated that the deceased abducted his mother and sisters and his maternal-uncle moved a petition to the Martial Law Authorities containing therein the allegations that his mother and sisters have been abducted by Amir Khan, deceased. The Martial Law Authorities summoned the parties and the mother and sisters of the appellant were restored to him. The appellant also produced Ahmad Ali DWI. to prove the allegations contained in the aforesaid application Ex.D.B. submitted to Martial Law Authorities.

7. The learned Additional Sessions Judge, Toba Tek Singh has passed the order of conviction while placing reliance upon motive, ocular account provided by the witnesses, medical evidence and the recoveries, vide his judgment, dated 29-1-1986.

8. Learned counsel for the appellant submitted that it is established on the record that the occurrence is an unwitnessed occurrence. He submitted that there are material contradictions in the statements of the two eye-witnesses, namely, Haitem Khan P.W. 7 and Rab Nawaz P.W.8. He forcefully urged that the ocular account is in direct conflict with the medical evidence. Lastly, the learned counsel submitted that the prosecution has miserably, failed to prove the case against the appellant.

9. Learned counsel for the State has supported the conviction and sentence awarded to the appellant by the learned trial Court.

10. I have heard the learned counsel for the appellant and the State and have perused the record very minutely. I am of the view that the prosecution has not been able to bring home guilt against the appellant beyond reasonable doubt. The evidence of eye-witnesses produced by the prosecution to prove the offence of murder against the appellant is highly doubtful. To begin with, it appears that Haitem Khan P.W. 7 in the facts and circumstances of the case, has not witnessed the occurrence. He has made a categorical statement that the appellant inflicted a blow by a piece of stone on the person of the deceased and on the receipt of this injury the deceased fell down on the ground and thereafter the appellant ran away. According to the complainant P.W. 7 only one injury was caused by the appellant. Similarly, Rab Nawaz P.W. 8 has disclosed that the appellant threw a piece of stone on the deceased and on the receipt of the injury he fell down on the ground. According to P.W.8 the appellant caused more stone blows which hit on the head and on the right ear of the deceased. Thus, according to the evidence of these two eye-witnesses only 2/3 blows were caused by the appellant with the pieces of stones on the person of the deceased Now the evidence of these two witnesses is completely contradictory to the medical evidence as deposed by Dr. Iqbal Ahmad Javed P.W.11. The Doctor P.W.11 found as many as seven injuries on the person of the deceased,. Injuries Nos. 1, 2 and 3 were found grievous whereas rest of the injuries were found simple. According to the medical evidence injuries Nos. 4, 5 and 6 were caused by a sharp-edged weapon whereas injuries Nos. 1, 2, 3 and 7 were by blunt weapon. Thus, it is clear that the eye-witnesses did not see the occurrence at all. If they were present and in fact had seen the occurrence, they were in a position- to mention the injuries which were received by the deceased at the hands of the appellant. From the site plan Ex. P.D/1 it is clear that at point No. 1, the dead body of the deceased was lying whereas at point No. 2 some pieces of stones were lying blood-stained and at point No. 3 the eye-witnesses were standing. The distance from point No. 1 to point No. 3 is only eight Karams. Therefore, the eye-witnesses were standing just near the place of occurrence. I am not prepared to believe the eye-witnesses especially when P.W. 7 is the real brother of the deceased and he was there in the company of Rab Nawaz P.W. 8 and Waryam (not produced). If at all these witnesses were present at the spot and they were standing just a few paces away from the place of occurrence, they could very well physically intervene and apprehend the appellant at the spot. It is the case of the prosecution that the appellant was empty handed and he caused injuries only by throwing pebbles on the deceased. Thus, the eye-witness account in these circumstances cannot be believed. For unknown reason Waryam P.W. has not been produced by the prosecution. The presumption in law is that if he had been produced, he would definitely have deposed against the case of the prosecution. I proceed to disbelieve the' eye-witnesses and discard their evidence in its entirety. The recoveries of cycle as well as the blood-stained stones from the place of occurrence are not of any consequence for the simple reason that only two or three blood-stained pieces of stones were collected from the place of occurrence. It is not necessary that the recovered blood-stained pebbles were in fact used by the appellant for killing the deceased. It appears from the facts and circumstances of the case that the deceased after receipt of the injury might have fallen on the pebbles and as a result thereof these pebbles might have been stained with blood. There is no independent witness produced by the prosecution so far the recovery of cycle from the possession of the appellant is concerned. Thus, I am not prepared to believe the recovery of bicycle P.1. According to the prosecution the occurrence took place on 18-5-1983 at Dopehrwela whereas the F.I.R. was lodged with Police Station Kamalia at a distance of only five miles on 18-5-1983 at 6-30 p.m. Thus, there is a delay of more than five hours. No plausible explanation for this delay has been given by the prosecution. It is in the evidence that the occurrence took place on the road and if the witnesses were present at the spot the injured could be brought to hospital within half an hour and F.I.R. could also be lodged promptly. Dr. Iqbal Ahmad Javed P.W.11 stated that he medically examined the deceased on 18-5-1983 at 5-00 p.m. It is, therefore, clear that Amir Khan, deceased was done to death by some unknown assailant and he was lying injured at the place of occurrence and was later on transported through a Tractor-Trolley to Civil Hospital, Pir Mahal.

11. The upshot of the above discussion is that the case in hand is not free from doubt. Therefore, by giving the benefit of doubt to the appellant, I proceed to accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith if not required in any other case. The conviction of the appellant awarded to him by the learned trial Court under section 411, P.P.C. is also set aside and he shall be acquitted accordingly.

S.G.D. /A-205/L ????????????????????????????????????????????????????????????????????? ?????????? Appeal allowed.