STATE Versus IRFAN ASBRAF

ORDER

1. SARDAR MUHAMMAD SHARIF KHAN, C. J. ‑This is an acquittal appeal filed by the Additional Advocate‑General against the order dated 30‑11‑1981 passed by the District Criminal Court, Muzaffarabad.

2. In the evening of 8‑2‑1980, it was alleged that as soon as Kaloo deceased entered the verandah of his house alongwith his wife, he was attacked by Bashir respondent from behind and two blows of a stick were given thereof on his right temple by the latter as a result of which the former fell down lying unconscious. Hue and cry raised by the wife of the deceased attracted Alif Din brother of the deceased and two more persons namely Kamal Din and Sher Muhammad who also saw the occurrence as alleged. Kamal Din and Sher Muhammad are also closely related to the party on the prosecution side.

3. Alif Din, brother of Kaloo immediately left for the police station after having enquired from the wife of the deceased, to lodge a report in respect of the offence committed, leaving behind his brother unconscious at home.

4. He reached the police station neat day at about 2 p.m. which is situated at a distance of about nine miles. He was stuck up on his way to police station on account of sprain of foot and so had to stay for the night somewhere at the house of one Yusuf and it was explained as the cause of his being late to the police station.

5. The other relatives of Kaloo deceased carried him to Hospital in a state of unconsciousness at Muzaffarabad on 9‑2‑1980 and it was between the night of 9‑2‑1980 and 10‑2‑1980 'that he succumbed to the injuries inflicted on his head. The post‑mortem was conducted by Dr. Muhammad Afzal. He found fracture of the skull on the right side of the head and according to him, the injuries on the head of Kaloo deceased could have also come by a fall thereby dashing against a hard substance.

6. After hearing the learned Additional Advocate‑General, it is held as under:

7. The first information report was made doubtful by the reporter of the same, himself, while giving evidence. From this report it is not evident in any manner whatsoever, that Alif Din, Kamal Din and Sher Muhammad were the eye‑witnesses of the occurrence but were the persons just attracted to the scene of occurrence by the hue and cry raised by the wife of the deceased, who could have at the most seen the alleged offender on the scene of occurrence or just running away therefrom after commission of the offence, if at all. But they did not depose to as such. They appeared before the Court as the eye‑witnesses of the account of the occurrence which part cannot be assigned to them, keeping in view the first information report made by the brother of Kaloo deceased, who is a prosecution witness No. 1. When we find that they are not the eye witnesses as claimed, no implicit reliance could even be placed on the sole statement of the wife of the deceased, to whom the male witnesses had come forward to support as eye‑witnesses for what, they had not actually seen i.e. the commission of the offence while the blows were being given on the head of Kaloo deceased.

8. Kamal Din a near one of Kaloo deceased was also cited as an eye witness of the incident but he was given up for being won over. Ho could it be? A question for winning over of this witness may not arise as he was closely related to the deceased. His non‑appearance may show that he was not to support the prosecution story which definitely creates a lawful presumption against the prosecution that he would no have deposed in favour of the prosecution, if produced and that he was, A for being a relative, just named as an eye‑witness on the hope of securing his evidence as was done in case of Sher Muhammad who appears to be his brother and who had come in support of the prosecution as managed but Kamal Din did not support the prosecution story perhaps for its being far from truth. Kaloo P. W. also did not come to support Sher Muhammad P. W. to be present near the alleged scene of occurrence.

9. No impartial evidence could have come from the neighbourhood tot corroborate the prosecution case, which of course could have been avail able if hues and cries were raised by the wife of the deceased person a alleged. Such being the case, the indication and the production of only interested and inter‑related persons as witnesses out of whom even two refrained from appearing as witnesses to support them, may not inspire confidence.

10. The manner in which the blows given on the head of the deceased were attributed to Bashir respondent must have crushed the right ear too, C but the ear was safe and so it may be inferred that the incident did not take place in the manner it was alleged.

11. Again, the enmity of the prosecution party with the family of Bashi respondent was shown as a motive which may even by itself come to cut the very root of the prosecution. This indeed is a two‑edged sword and possibility of its being used against the respondent just to avenge the latter may not be ruled out. This all makes the case doubtful and then one may go to consider the defence of the accused which is supported by the evidence of one Sikandar Shah who had once been an `Imam' of the village and is a Lamberdar of the village as well. He is a disin terested person. According to him Kaloo deceased had a fall from a tree in the forest wherefrom he was brought to his house, on a cot and his carrying on the cot from the jungle was seen by him. Niaz Muhammad D. W. also supports him in this respect.

12. That being so, in the circumstances above, the case of the prosecution is not free from doubt and so we dismiss this appeal in limine.

13. Appeal dismissed.