SOWALI Versus THE STATE

JUSTICE RAJA AFRASIAB KHAN (MEMBER). --- Sowali son of Ellahi Bakhsh and Yousaf son of Muhammad Bakhsh were tried by the learned Judge, Special Court for Speedy Trials, Multan, under section 302/34, P.P.C. The learned Judge convicted the accused on 29-3-1992 under section 302/34, P.P.C. and sentenced them to undergo imprisonment for life plus a fine of Rs.50,000 each or in default thereof to suffer one year's R.I. each for intentionally causing the murder of Suleman. It was directed that in case of recovery of fine, it shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. was also given to the convicts. The third accused Kajloo was not challaned an was accordingly dropped from the array of the accused by the Investigating Officer. The convicts have challenged their convictin and sentence by filing Cr.A. No.20/SAC/L of 1992 before this Court which shall be decided by this judgment.

2. Shortly stated the facts of the case are that the complainant Maula Bakhsh is an agriculturist and also keeps cattle. On 20-9-1991 at about Asarwela his son Suleman (24/25) was coming home with a bundle of grass loaded on his camel. When he reached near his house, Sowali, his brother Kajloo armed with hatchets and Yousaf armed with a .12 bore gun emerged at the scene. They shouted at Suleman that he would not be allowed to go alive. On this, Suleman left his camel and ran while raising an alarm in order to save his life. However, Sowali, Kajloo and Yousaf chased him. Suleman entered into the house of Dost Muhammad in Peer Hussainabad and bolted the room from inside. At that time, Dost Muhammad and his family members were not present in the house. On the noise of Suleman, Maula Bakhsh, Ali Gahnwar, Muhammad Ameen and Muhammad Nawaz reached the spot and saw the occurrence. Sowali and Kajloo killed Suleman by inflicting blows with their weapons on his head and neck when he was hiding himself in an iron chest lying in the room. Yousaf stood there armed with a gun outside the room and threatened the witnesses that in case they came forward they will also be done to death like Suleman. He also fired at Suleman which hit him on his neck by standing close to him. Suleman died on the spot. Thereafter all the three accused left the place with their weapons while shouting. They declared that they had taken the revenge of their insult and that they would now finish Mst. Momel as well. Later on it transpired that the accused also murdered Mst. Momel by electricuting her. The motive, was that Sowali had a strong suspicion that Suleman had developed illicit liaison with his sister Mst. Momel and on account of this grudge Suleman was done to death by them in furtherance of their common intention. Muhammad Ameen and Muhammad Nawaz were left behind to guard the dead body of Suleman in the house of Dost Muhammad while Maula Bakhsh proceeded towards the police station to give information to the police. On the statement of Maula Bakhsh F.I.R. Exh.P.D. was recorded by Muhammad Arshad A.S.I. on 20-9-1991 at 9-30 p.m.

3. Muhammad Arshad A.S.I. P.W.11 conducted the investigation of the case. He visited the spot and found the dead body of Suleman lying in an iron chest in the house of Dost Muhammad. He prepared the injury statement Exh.P.G. and inquest report Exh.P.F. of the deceased. Blood-stained scrapings from the wall were collected by the officer. Iron chest P.13, plank of, door P.2, blood-stained quilt P.12 were taken into possession vide memo. Exh.P.N. Statements of the witnesses were recorded by the investigator under section 161, Cr.P.C. The dead body was sent to the mortuary for autopsy. Abdul Majid F.C. produced three phials, clothes of the deceased and the post-mortem report which were taken into possession by the Investigating Officer. Site plan was got prepared by the Police Officer vide Exh.P.P. The accused were arrested on 4-10-1991. On 6-10-1991 Yousaf appellant got recovered a .12 bore gun from his house which contained one empty, vide memo. Exh.P.M. On the same day, Sowali appellant got recovered a blood?stained hatchet P.8 which was taken into possession vide memo. Exh.P.L.

Reports of the Chemical Examiner vide Exh.P.R. and Exh.P.S. on hatchet and earth were positive. Similarly, the Serologist vide reports Exh.P.V. and Exh.P.W. opined that the earth and hatchet were stained with human blood. The Director Forensic Science Laboratory vide report Exh.PX opined that the empty of .12 bore marked as `C' was fired from the SBBI shotgun of .12 bore.

4. Dr. Abdul Wahab M.S. Tehsil Headquarters Hospital, Sadiqabad, (P.W.5) conducted the post-mortem examination on the dead body of Suleman on 21-9-1991 at 8-00 a.m. and found the following injuries:--

(1) An incised wound 6" x 4" x bone deep on the back and left side of head and neck. Head detached. Cervical vertebrae cut.

(2) An incised wound 3" x 2" x bone deep on the front and left side of neck. Cervical vertebrae, blood vessels, trachea and oesophagus were cut.

(3) An incised wound 3" x 2" x bone deep on the left side of face left axilla and mandible and teeth were cut.

(4) A lacerated wound one big and four small on the front of neck 2 and upper part of chest and right side, one big is mixed with injuries Nos.2 and 3. Margins were burnt and blackened and inverted, going downward and backward. Left axilla, lips, lower jaw and teeth were blown out.

In the opinion of the doctor, death occurred on account of cutting of cervical vertebrae and blood vessels from injuries Nos.1 to 4. Injuries Nos.1 to 3 were caused by sharp-edged weapon while injury No.4 was caused by a fire-arm. All the injuries were collectively and individually sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Probable duration between injuries and death was instantaneous and that between death and post-mortem was 12 to 24 hours.

5. Eye-witness account. was furnished by Muhammad Nawaz P.W.6 and Maula Bakhsh P.W.7. Muhammad Yousaf appellant denied the allegations levelled against him in his statement under section 342, Cr.P.C. He pleaded that the case was planted upon him. He also denied the recovery of gun from him. He disclosed that it was the licensed gun of his brother Pandi. He pleaded his innocence. To the same effect is the statement made by Sowali appellant. He disowned hatchet P.11. However, the appellants did not make any statements on oath under section 340(2), Cr.P.C. They also did not produce any defence evidence. .

6. Learned counsel contends with vehemence that the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt inasmuch as both the eye-witnesses are interested and there was no evidence available on record to corroborate their deposition. It is added by the learned counsel that the trend of the prosecution evidence would show that it was an unwitnessed occurrence. Learned counsel maintains that Kajloo, the third accused, was shown to be armed with a hatchet and he also inflicted injuries to the deceased but he was let off by the prosecution for unknown reasons. On these premises, learned counsel, argues that the appellants are also entitled to acquittal. The learned State counsel submits that the witnesses are natural inasmuch as they came to see the occurrence when the accused were chasing the deceased to kill him. He argues that there was no enmity between the parties and as such there were no reasons to disbelieve the witnesses.

7. We have heard the learned counsel for the parties at considerable length and have perused the entire record with their assistance. We find force in the contentions of the learned counsel for the appellants that the prosecution did not succeed to bring home the guilt to the appellants beyond reasonable doubt. To begin with, Muhammad Nawaz P.W.6 is the real brother of the wife of Maula Bakhsh P.W.7. Maula Bakhsh first informant himself is the father of Suleman deceased. Thus, the witnesses being interested require strong corroboration from some other unimpeachable source. There is absolutely no independent corroboration provided by the prosecution to the ocular account furnished by the eye-witnesses. Muhammad Nawaz P.W.6I stated that he was present in the house of Maula Bakhsh alongwith other' witnesses. They heard the alarm of Suleman and came out of the house only to find that the accused were chasing Suleman to finish him. According to the witness, Yousaf was armed with a .12 bore gun while Sowali and Kajloo were armed with hatchets. He deposed that the deceased entered into the house of Dost Muhammad. He bolted the room from inside and hid himself in an iron box. Sowali and Kajloo broke open the door by their hatchets and entered into the room. To the same effect is the statement of Maula Bakhsh P.W.6. It was added by him that the accused suspected Suleman to have developed illicit liaison with Mst. Momel, a real sister of Sowali appellant. Muhammad Nawaz lived at a distance of about 4/5 acres from the house of Maula Bakhsh. Muhammad Nawaz conceded in the cross-examination that it would take about half an hour to reach the house of Dost Muhammad. He also deposed that house of the complainant was at a distance of about half a square from the house of Dost Muhammad. He admitted that the witnesses did not raise any alarm when they ran after the accused. He clarified that they were at a distance of about 60/70 Karams away when they started chasing the accused. He disclosed that there was a Lohrha having been raised around the house of Dost Muhammad in order to provide security to it. He stated that Dost Muhammad used to live in the said house alongwith his children. The witness conceded that they stood outside the house of Dost Muhammad near Lohrah because they were threatened by Yousaf appellant not to come near them otherwise they would also be done to death. It is established beyond doubt that the witnesses stood outside the house of Dost Muhammad and they were unable to see the occurrence which took place inside because Yousaf appellant kept guard at the door while armed with his gun. It is really surprising that Muhammad Nawaz and Maula Bakhsh did not raise any alarm when the accused were running to kill Suleman. This does not appeal to reason that they would remain silent spectators only to facilitate the accused to complete the commission of the crime. This fact has persuaded us to conclude that the witnesses were not present at the spot. It was a broad daylight occurrence. It must have been seen by several villagers. No person from the village was produced in support of prosecution case. It is in the evidence that there were about 1,000 to 1,500 persons who gathered at the spot but none from them came forward to claim that he had also seen the occurrence. In our view, this would further make the matter doubtful. A close scrutiny of the site plan would demonstrate that Muhammad Nawaz and Maula Bakhsh were standing at point No.2 while Suleman was done to death at point No.1 inside the room from where they could not at all see as to what was happening inside the house. We hold that murder of Suleman was not seen by anybody. We, therefore, proceed to reject the ocular account. It is also strange that Dost Muhammad was not present in his house and had left it unattended without any plausible explanation. It is in the evidence of Muhammad Nawaz that wife of Dost Muhammad was present in the house at the time of occurrence. He has also 4/5 children. They were, however, not present in the house. The owner of the house had gone to the fields with his children to work there. It is, therefore, established that Suleman deceased and wife of Dost Muhammad alone were present in the house. Thus, the possibility cannot be ruled out that the deceased might have been enjoying the sexual favour with the wife of Dost Muhammad when he was not present in his house and on his spotting out, the deceased might have been done to death in the -iron chest, possibly by some one connected closely with the lady of the house. He might be the husband of the lady. In order to clear this inherent doubt which is apparent on the face of record, prosecution was required to produce Dost Muhammad as their star witness. His non-production as a witness has made the case of the prosecution highly doubtful. There was also no strong evidence to prove the motive part of the prosecution story to connect the appellant with the crime. Apart from the above, the evidence of Maula Bakhsh shows that he was satisfied with the finding of the Investigating Officer that Kajloo, the third accused, was innocent. It is in the evidence that Kajloo played an equally active role in killing Suleman. He throughout remained as one of the principal offenders. The exclusion of Kajloo from the charge of murder would, in our view, shake the whole case. At any rate, this would create further doubt in the truthfulness of prosecution story. Benefit of doubt has to be given to the appellants. We are convinced to hold that there was no sufficient evidence to convict and sentence the appellants in the given facts and circumstances.

8. Result of the above discussion is that there was no reliable evidence to connect the appellants with the commission of the crime. This being so, by giving the benefit of doubt, the appellants are also acquitted. They shall be released forthwith provided, of course, they are not needed in some other criminal case. The appeal succeeds and is hereby allowed.

N.H.Q./56/SAC ??????????

Appeal allowed.