THE STATE Versus MALI

MUHAMMAD HALEEM, J.‑ Respondents Malhi and Daru, who are brothers inter se, were tried for the murder of Abdul Wahid and acquitted by the II Additional Sessions Judge, Hyderabad, vide judgment dated 9th January 1971. The State has appealed against their acquittal, while Shah Mir, the brother of the deceased, has filed a revision (No. 127/71) also against acquittal of the respondents. This judgment will dispose of the appeal and the revision.

2. According to the prosecution case, the deceased and his brother, Shah Mir, resided in village sujawal Raby, Taluka Hala. In the morning of 22nd June 1969, the deceased left for Saeedabad for purchasing necessi ties of life. After midnight, his nephew Dhanibux Raha, who resided in Tando Adam, came to his village and woke Shah Mir and told him that he had met the deceased in the Bazar at Saecdabad and both of them had left for village Sajawal after the deceased had made purchases acid as they reached 'huri' (cluster of trees) of Gul Rahu, the respondents, whom he identified in the moonlight, attacked the deceased with their hatchets who was going ahead of him. The deceased raised his hands to ward off the blows and also attempted to run back when he was again given hatchet blows on his head, as a result of which he fell down. Thereupon, he raised cries but did 'not go near the assailants as he was empty‑handed. He also told him that as the respondents were escaping 'one' Bilawal Rahn also saw them. After the respondents had escaped he discovered that they had taken away his watch, boski turban and the bundle containing the articles purchased by him and that leaving Bilawal Rahu at the wardat he had come to inform him. Hearing about the death of his brother, Shah Mir and others went to the vardat, where he saw the deceased lying dead with hatchet injuries. He lodged the F. I. R. at Police Station Saeedabad at 7‑45 a.m. on 23rd June 1969, which was recorded by Haji Muhammad Lal S. H. O. Giving out the motive, Shah Mir stated that Jharo, cousin of the deceased, and Faiau had murdered a brother of the respondents and to avenge their grievance they had killed the deceased.

3. After recording the report, the S. H. O. repaired to the vardat along with Shah Mir which was near the 'hurl' of Gul Rahu, where he saw the deceased lying on the ground with hatchet injuries and a blade of hatchet stuck on his head, which he pulled out and along with it he took into possession the blood‑stained earth and a little quantity of sugar lying on the ground vide mashirnama, Exh.

13. He sent the dead body for post‑mortem examination to the Medical Officer, Hala and thereafter examined Bilawal, Dhani Bux, Wali Muhammad and Sawan Khan. He then looked for the respondents but could not find them and it was on 29th June 1969, that they were produced by Mir, brother of the respondents and were arrested. Respondent Daru took out from a heap of fodder lying in his house a blood stained turban of boski, handle of hatchet and a blood‑stained shirt and loincloth which were taken into possession vide mashirnama, Exh.

17. Malbi produced a blood‑stained shirt, loincloth, a watch and a bundle containing sugar and other household articles from a corn bin in his house, which articles were taken into possession vide mashirnama, Exh. 18. the incrimin ating articles along with the earth and the wrist watch were sent to the chemical analyser and, according to his report, except for the watch, on which blood had disintegrated, human blood was found on the other articles.

4. Dr. Muhammad Ibrahim performed autopsy on the body of the deceased and noticed the following injuries:‑

"(1) An incised wound 6' x 4' x 3' at the side of left parietal region and the brain matter was coming out of the skull.

(2) Incised wound 4' x 2 at the side of the left mastoid region cutting the left pin of the ear also.

(3) Incised wound 3' x 1 ' x 2' at the side of right wrist joint frontal position.

(4) Incised wound 3' x 2' x 2 at the side of right wrist joint 1' above adjacent to injury No. 3."

In his opinion, injuries 1 and 2 were individually and collectively sufficient to cause death in the ordinary course of nature and that the deceased suffered instantaneous death. We also gave the probable time which elapsed between death and the last meal taken as 6 hours, on the basis of the contents of the stomach, viz. "liquefied and semi‑digested food".

4. The respondents denied their implication in a crime and stated that the articles were foisted on them. Malhi alleged enmity for the reason that the prosecution witnesses, who were related to each other, bore grudge on account of the murder of Hafiz Younas, in which case his uncle, Sher, was tried but acquitted about 3 years back.

5. The trial Court, after weighing the contentions for and against the guilt of the respondents, reached the conclusion that the testimony of Dhani Bux and Bilawal stood, contradicted by the medical evidence, for if the deceased had taken night meal at Sawan s place, then it could riot have been in that state of digestion and that both of them were chance witnesses and set up to support the prosecution case. In this context, the trial Court also held Sawan to be a liar, whose evidence did not deserve any credit. It also held the delay to be fatal and the time intervening having been con sumed in deliberation to implicate the respondents. As for the articles, such as turban, wrist watch, soap, sugar and tea, the trial Court held that they were not identifiable as they were commonly possessed. As for the incriminating articles, no credence was given to them, for, in the opinion of the trial Court, the respondents were not so stupid as not to destroy them or to wash out the blood stains.

6. We have examined the findings of the trial Court in the light of the evidence on record. According to the F. I. R., the incident occurred at midnight of 22nd June 1969, and Dhani Bux stated that he had identified the respondents in the light of the moon. However, on checking up the calendar of 1969 published at the instance of the High Court of West Pakistan, Lahore, for the judicial Courts in West Pakistan, it transpires that on 22nd June 1969, the moonrise was at 11‑22 and moonset at 23‑51 hours. Thus the moon at that time would not have been on the sky to emit sufficient light to facilitate identification but would be about to set and, therefore, there could hardly be any moon‑light to make the identification possible. Realis ing the weakness, Shah Mir in his testimony advanced the time of incident to 10 p.m. and so did Dhani Bux and Bilawal, which feature adversely reflects on the veracity of these witnesses and leaves room for doubting as to whether Dhani Bux and Hilawal were able to identify the respondent. The F. I. R. was lodged after Shah Mir had gone to the vardat where be had met Bilawal but there is nothing in the F. I. R. to chow that Bilawal had come to Shah Mir village and had taken, night meal with him and it was thereafter while returning to his house in Sawan's village that he saw the respondents. If that was so, then there was no reason for Shah Mir to omit to mention it as the presence of Bilawal at that time of the night could hardly be probable at the place where the incident occurred, for he had no other reason to be there. It should not be forgotten that according to the prosecution case the F. I. R. was not lodged in haste but after the delay of several hours, and in that view of the matter it could not be an accidental omission, for the presence of Bilawal at his house in the context of the fact given out by Dhani Bux that Bilawal had also seen the respondents, was an important feature. Again, the use of the word 'one' before "Bilawal Rahu" in the F. I. R. does not show any familiarity but gives an impression of his being casually known and in that light also it is improbable that he would have been entertained to a meal by Shah Mir. In his evidence too, Shah Mir does not say about the presence of Bilawal at his house and of his having offered him night meal. That is only apparent from the testimony of Bilawal himself, which we regard as highly improbable. Considering the above deficiencies the presence of Bilawal is highly doubtful.

6. According to Dhani Bux, he and the deceased had come to the otak of Sawan after sunset and after taking the night meals offered to them by Sawan they left for the village of the deceased at 10 p m. Surprisingly enough this feature is also not mentioned in the F. I. R. and it has come for the first time in the evidence of Dhani Bux and Shah Mir. Sawan has also said so. Apart from the fact that this feature was introduced to advance the time to 10 p.m. there is serious drawback, for according to the medical evidence, the deceased had last taken his meal six hours before his death and that must be at Saeedabad. It is not possible to reconcile the serious discrepancy between the evidence of the doctor and that of Shah Mir, Sawan and Dhani Bux. Therefore, it is not possible to fix the time of death either at 10 p.m. or at midnight. If at all he had left before sunset then easily he could have traversed the distance of 3 miles in Ii hours and, therefore, the incident after midnight is wholly unexplained. The delay in lodging the report thus assumes significance and to as it appears that it was some time before the lodging of the report that the dead body of the deceased was discovered. As for the presence of Dhani Bux, it cannot be doubted that he had come to Tando Adam to visit Shah Mir, but as to whether he accompanied the deceased is open to grave doubt. Again, it is not possible to rely on Sawan's evidence for that is also suspicious. It is also a matter of sheer coincidence that the deceased would have been accosted by the respondents, for there is nothing in the evidence to suggest that they had known about his movements earlier. Dhani Bux had gone to the extent of saying that while they were sitting at the otak of Sawan, both the respon dents had come there but seeing them they left and it was thereafter that the deceased was murdered. But this fact is neither stated in his section 161 statement nor section 164 statement, nor in his committal Court deposition, which apparently was an improvement at the stage of the trial. Having regard to other improvements in his evidence we are reluctant to accept Dhani Bux as an eye‑witness particularly when his own meeting with the deceased in the Bazar could not but he termed as a sheer coincidence, which cannot be taken into account.

7. The make of the watch is not disclosed either in the F. I. R. or in the evidence of mashir Sawan, Shah Mir or Dhani Bux, but in the F .I. R. the watch alleged to have been recovered is of the make 'Citizen', and in the report of the chemical analyser it is the same make which is given. However, in the judgment it is mentioned as Camy Watch. How. this dis crepancy arose is not apparent but there being no identification mark on the watch and no identification test having been held, it is not possible to say that ii was the same watch worn by the deceased. The turban and so also the other articles were not identifiable. Again if we were to accept that Dhani Bux had witnessed the incident as alleged by him, then it is not understandable as to why he had not seen the respondents taking away the articles, All that he had said is that after the respondents left he found the articles missing, which we again regard as suspicious, for if the murder was committed to avenge an earlier murder, the respondents would not have taken away the articles. Besides, the respondents lived in a house which was separated by a wall from that of Sawan and in the context of the evidence of the S. H. O. that he had looked for them, it is surprising why no search of the house was carried out in the absence of the respondents, who were arrested 5 or 6 days after the incident. No one had seen them in their house either on the intervening night or in the morning it, there fore, becomes highly suspicious even otherwise as to whether they could have concealed those articles in the house. The possibility of the articles being foisted cannot be excluded. In this context, the observations of the trial Court do not lack substance and in an acquittal appeal, where another view of the matter can be taken without straining the evidence, the appellate Court would be slow to interfere with that finding and on this basis we have no reason to differ from the opinion of the trial Court.

8. As for the incriminating articles, according to Sawan who is also a mashir, the respondents were produced after 5 or 6 days at the otak of Mir and Faqiro Rahus, The interval of time was sufficient to do away with the incriminating articles, and it is rather suspicious as to why the respon dents would preserve the articles for being produced at a later stage. No exception can be taken to the view of the trial Court on this aspect of the case. In any case, the credibility of Sawan is not beyond reproach and, therefore, we are not inclined to give weight to his evidence in regard to the recoveries; which stand on the same footing as the recovery of the articles said to have C been taken from the deceased, and even otherwise, in the absence of ocult testimony, the recovery of the incriminating articles is not conclusive to bring home the guilt to the appellants.

9. Again, enmity is admitted on account of the murder of Yar Muhammad, brother of the respondents. In regard to the same incident Yar Muhammad and Nimro were implicated in the counter case, in which D Shah Mir had appeared as a witness. In this context, the evidence has to be appraised with caution and upon scrutiny of the evidence we have reached the conclusion that it was an unwitnessed crime.

10. In the result, for the foregoing reasons we do not find any flaw in the acquittal of the respondents and we would, therefore, dismiss the State appeal. The revision also becomes infructuous in view of the conclusion reached in the appeal and is also dismissed.

Appeal dismissed.