' MUHAMMAD FARRUKH MAHMUD, J.---Abdul Majid was conjunctively tried with Nasir in case F.I.R.
No,94 registered at Police Station Tulamba on 19-5-2000 for offences under sections 302/34, P.P.C.
For causing the death of Muhammad Mustaqeem, by the learned Additional Sessions Judge, Mianchannu, District Khanewal, who, vide judgment, dated 20-12-2000, while acquitting Nasir, convicted Abdul Majid for offence under section 302(b), P.P.C. And sentenced him to death. He was also directed to pay compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., in default in payment whereof he was to suffer S.I. For six months.
2. Through this appeal, Abdul Majid has challenged his conviction and sentence. Murder Reference No,150 of 2001 seeking confirmation or otherwise of death sentence inflicted upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. The facts of the case, in brief, as gleaned by F.I.R. Exh.PA lodged by Ghulam Abbas, A.S.-I./P.W.2 on 19-5-2000 at 7.45 p.m. At the instance of Muhammad Ilyas, son of Mustaqeem-deceased, complainant/P.W.8, are that on the fateful day at about Asarwela, the complainant and his father went to Chak No,22/8-R to see their relatives. Having alighted the wagon, while they were on their way to the aforesaid Chak and reached near the sugarcane crop of Muhammad Afzal, all of a sudden Abdul Majid/appellant armed with Kassi and Nasir empty-handed 'came across them and raised Lalkara that they would teach a lesson to Muhammad Mustaqeem for demanding agricultural land for his daughter. Meanwhile, Abdul Rasheed/P.W.9 and Muhammad Hanif came at the spot from Chak No,22/8-R. On catching sight of the aforesaid P.Ws., Nasir/acquitted accused held the complainant's father in this Japha. Abdul Majid/appellant gave 4/5 successive Kassi blows which landed on head and neck of Mustaqeem, in view whereof he fell on the ground. After throwing Kassi and extending threats, the accused ran away from the scene of occurrence. The P.Ws. Followed them but they made good their escape. Muhammad Mushtaqeem succumbed to the injuries at the spot.
' As to the motive, it was alleged that sister of the complainant was married with Abdul Aziz and it was settled at the time of Nikah that Abdul Aziz would transfer two acres of land in her name.. The deceased had been demanding the land for his daughter from Abdul Aziz and his relatives but Abdul Aziz did not do so. The accused had nursed a grudge against the deceased and, thus, committed his murder. Leaving the above said P.Ws. At the spot to guard the dead-body, the complainant himself went to the police station and reported the matter.
4. On 19-5-2000, Jamshed-ul-Hassan, SI/P.W.10, went to the place of occurrence and arranged a gas lamp for light and cots. He prepared injury statement Exh.PE, and inquest report Exh.PF of the deceased and sent the dead-body for post-mortem examination. He prepared rough site-plan Exh.PJ of the place of occurrence. He took into possession blood-stained Kassi P-4, which was produced by the complainant, vide memo Exh.PG, attested by Abdul Rasheed/P.W.9 and one Muhammad Hanif. After post-mortem examination, the Investigating Officer took into possession the last-worn blood-stained clothes of the deceased, i.e, Kameez P-1, Chadar P-2 and Safa P-3 through memo.
' Exh.PC, attested by Islam/P.W.4. And one Asghar. The Investigating Officer got prepared the site- plan Exh.PB and Exh.PB/1 from Muhammad Iqbal, Draftsman. On 26-5-2000, Abdul Majid/appellant was arrested. After completion of investigation, the appellant along with his acquitted co-accused was challaned to face the trial.
5. To substantiate its version at the trial, the prosecution produced ten witnesses. Ocular account was furnished by Muhammad Ilyas/P.W.8 and Abdul Rasheed/P.W.9. They also stated about the motive. Their statements are in line with the story given in the F.I.R. In addition to the above, Abdul Rasheed also stated about the recoveries. Dr. Nazir Ahamd/P.W.5, who conducted post-mortem examination on the dead-body of the deceased on 20-5-2000, while observing six incised wounds, one bruise and one lacerated wound, opined that injury No,1, which cut through and through the right side of face and neck just below right pinna, was the cause of death. He further opined that injury No,1 individually and injuries No,1 to 4, reading as under:-- "(i) An incised, wound 14 x 7 cm x underlying bone exposed and cut through and through on the right side of face and neck just below right pinna (right maxilla an mandible was cut).
(ii) An incised wound 8 x 1 cm x bone exposed on the back of neck over cervical area.
(iii) An incised wound 6 x 2 cm x bone exposed on the right side of scalp 3 cm above from right ear.
(iv) An incised wound 6 x 2 cm x bone exposed on the top of scalp". ' were collectively sufficient to cause death in natural course of life. According to the doctor, injuries Nos.1 to 6 were caused by sharp-edged weapon, while injuries Nos.7 and 8 were caused by blunt weapon. Probable time between injuries and death was within thirty minutes, while the time which elapsed between death and post-mortem examination was 13 to 14 hours. Ghulam Abbas, A.S.- I./P.W.2, registered the F.I.R. Exh.PA at the instance of Muhammad Ilyas/complainant. Jamshed-ul- Hassan, S.I./P.W.12, stated about the investigation of the case. The rest of the evidence is formal in nature and need not be discussed.
6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication due to existing enmity in the following words:-- "I am innocent, I have committed no offence. I have been falsely involved in this case due to enmity with the complainant party.
' My real brother Abdul Aziz was married to Mst. Hamidan Bibi, daughter of the deceased Muhammad Mustaqeem and sister of the complainant, about 15/16 years back. The said Mst.
Hamidan Bibi is a lady of ill-repute. There was also disparity of ages between the said couple. My brother Abdul Aziz being an old man had been suspecting bad character of Mst. Hamidan Bibi. The deceased, the complainant and Mst. Hamidan who were in league with each other made my brother Abdul Aziz disappeared about five years ago. Co-accused Nasir is son of said Abdul Aziz.
We both insisted upon the restoration of Abdul Aziz. Mst. Hamidan Bibi told us that he had gone with the preaching party. But we were not satisfied with this answer. Now we both were putting pressure upon the complainant, the deceased and Mst. Hamidan Bibi to tell us truly the actual and factual position about the disappearance of Abdul Aziz. In order to avoid this situation the said Mst.
Hamidan Bibi involved us both falsely in case F.I.R. No,327, dated 17-5-2000 under section 457/380, P.P.C., Police Station Shorkot City. The deceased Mustaqeem was a litigant person and had numberless enemies. A few days prior to the occurrence, the deceased had an altercation with the defendant in suit entitled Zahooruddin etc. v. Abdul Hameed etc. The date of hearing in the said suit was fixed for 20-5-2000. The deceased was done ' to death by some unknown persons on 19-5- 2000. When complainant could not trace out the actual culprits, he involved us falsely in this case.
We heard about this fateful event at Kakki now Shortkot along with others. The complainant being the PQR and having close relations with the police got us challaned in this case falsely. The complainant, being son, and P.W. Abdul Rasheed, being relative of the deceased, have deposed falsely."
' The appellant did not appear as his own witness under section 340(2), Cr.P.C. However, he produced Muhammad Yamin and Haq Nawaz asD.W.1 and D.W.2 in his defence. D.W.1 stated that on the day of occurrence at about Isha time, he went to the house of Mst. Hamidan Bibi who told him that her father Mustaqeem had been murdered. On his inquiry, she told that the culprits were not yet known. On her request, he went to the Bhaini of appellant Abdul Majid where he' met Wajid, Nasir-acquitted co-accused, Haq Nawaz/D.W.2 and Daim and informed them about the murder of the deceased. He further stated that subsequently, he heard that Abdul Majid and Nasir had been arrested from their Bhaini by the police on 26-5-2000. He further stated that he had appeared before the Investigating Officer in defence of the accused on 27-5-2000 but he was told that both the accused had been challaned.Haq Nawaz/D.W.2 stated that on 19-5-2000 at Isha prayer time, he was present at the Dera of Abdul Majid/appellant along with Nasir/co-accused, Abdul Majid/appellant, Wajid and Daim when Muhammad Yamin/D.W.1 came there and told about the murder of father of Mst. Hamidan. He further stated that both the accused were arrested from the Bhaini by the police on 26-5-2000 in his presence. He also stated that he appeared before the police in defence of the accused but he was told the accused had been challaned. The appellant also tendered in evidence certified copies of plaint in the suit titled Zahoor-ud-Din etc. v. Abdul Hameed etc and certified copy of order, dated 20-5-2000 as Exh.DC and DD. He also produced in his defence copy of F.I.R. No,327, dated 17-5-2000 under section 457/380, P.P.C. Of Police Station City Shorkot as Mark "A".
7. Learned counsel for the appellant submits that both the witnesses were not only related but were chance witnesses as well; that their statements do not find support from the medical evidence; that both the P.Ws. Made dishonest improvement to make their statements in line with the medical evidence; that the appellant who was resident of a place which was 30/40 kilometers away from the place of occurrence, could never know about the programme of the deceased and his son/complainant about their departure from Tulamba towards Chak No,22/8-R; that motive set down in the F.I.R. Was falsified from the fact that Abdul Aziz brother of the appellant and husband of sister of complainant was missing for the last 5/6 years and was married with the sister of the complainant 15/16 years prior to the occurrence, so there was no occasion to demand two acres of land from the appellant prior to the occurrence, that the recovery of blood-stained Kassi could not be used as corroboratory evidence, as the same was found lying near the dead-body and was not recovered at the instance of the appellant; and that the conduct of both the eye-witnesses shows that they were not present at the time occurrence.
8. The learned counsel appearing on behalf of the State submits that the appellant was duly named in the promptly lodged F.I.R., which showed that the witnesses were present at the time of occurrence; that the acquittal of Nasir/co-accused would not benefit the appellant, as Nasir had not caused any injury to the deceased and was empty-handed; that the ocular account is supported by the medical evidence and circumstances of the case like recovery of blood-stained Kassi which was lying near the dead-body; that the appellant acted cruelly and deserves no leniency. He supports the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties and have also gone through the record of the case.
10. The whole prosecution case revolves around the statements of Muhammad Ilyas-son of the deceased/P.W.8 and Abdul Rasheed-nephew of the deceased/P.W.9. Both are eye-witnesses of he occurrence and have furnished the ocular account. They also stated about the motive and the recovery of blood stained Kassi which was lying near the dead-body. The occurrence took place quite at a distance from the place of residence of P.W.8 and the deceased as well as Abdul Rahseed P.W. Who was resident of Chak No,22/8-R. Muhammad Ilyas claimed that he was accompanying the deceased, while both of them were going to Chak No,22/8-R in order to meet certain relatives. Abdul Rahseed-P.W. Who was resident of Chak No,22/8-R along with Muhammad Hanif son of Azeem-ud-Din (not produced during trial) reached the place of occurrence per chance. In F.I.R. it was stated that Abdul Majeed gave 4/5 blows with Kassi which caused injuries on the head and neck of the deceased. During trial the complainant as well as Abdul Rasheed tried to increase the number of injuries and both were confronted with their earlier statements. It appears that both these P. Ws. Made dishonest improvements after going through the post-mortem report, according to A which the deceased had received eight injuries in total. Six of the injuries were caused by sharp-edged weapon, while the other two were caused by blunt weapon. Injury No,1 was incised wound 14 x 7 cm x underlying bone exposed and cut through and through on the right side of face and neck. The injury had also cut right maxilla and mandible. Injury No,2 was 8 x 1 cm x bone exposed on the back of neck over cervical area. Injury No,3 was 6 x 2 cm x bone exposed on the right side of scalp 3 cm above from right ear. Injury No,4 was 6 x 2 cm x bone exposed on the top of scalp. Injury No,5 was 5 x 1 cm x bone exposed on the back of right shoulder. Injury No,6 was incised wound 2 x 1 cm x bone exposed on the back of right shoulder 5 cm below injury No,5. Injury No,7 was a bruise 11 cm x 2 cm on the front of right upper arm in the middle. Injury No,8 was a lacerated wound 1 cm x 1 cm x bone exposed on the back of right forearm 7 cm below right elbow. Injuries Nos.5, 6, 7 and 8 were not mentioned in the F.I.R. At all. It was not mentioned in the F.I.R. That the appellant caused injuries from the sharp-edged as well as blunt side of B the Kassi. However, during trial both the eye-witnesses stated that the injuries were caused by the blunt side as well as sharp side of the Kassi. This improvement was also made to account for injuries Nos.7 and 8 which were blunt in nature. Muhammad Ilyas who is son of the deceased and claims to be with him at the time of occurrence did not make any serious effort to save his father. It is nowhere stated in the F.I.R. That he grappled with the accused in order to save the life of his father. On the other hand, both the witnesses claim that they followed the accused after they had inflicted the injuries. P.W.8 states that he followed the accused upto 4/5 acres. He further states that when he ran after the accused, hisfather was alive at that time. P. W.9 states that the accused were followed upto 2/2-1/2 acres. It is not believable that the son and the nephew would leave Mustaqeem dying unattended at the spot and would follow the accused. Their first worry should have been to attend to their dying father. P.W.8 admitted that the appellant and acquitted co-accused were residents of Chak No,2 Kakki Nau Shorkot a place which was at a distance of 30/40 karms from the place of occurrence. The deceased and P.W.8, who were residents of Tulamba as per F.I.R. Were going to meet their relatives in Chak No,22/8-R as per routine. There was no special event like marriage, death or Eid which required the gathering of the relatives. In that case it would be nearly impossible for the appellant to know about the leaving of his house by the deceased for Chak No,22/8-R. There is no evidence that the information was leaked to the appellant who was resident of a place 30/40 kilometers away from the place of occurrence .
11. Both the P. Ws. Also stated about the motive. According to them Mst. Hamidan sister of the complainant and daughter of the deceased was married with Abdul Aziz brother of Abdul Majid and father of Nasir acquitted co-accused. At the time of Nikah it was settled that Abdul Aziz would alienate two acres of land in favour of his wife. The land was not alienated; hence, the deceased used to pressurize Abdul Aziz and his relatives for transfer of land in favour of Mst. Hamidan. During trial it transpired that Abdul Aziz who was elder brother of appellant was married with Mst. Hamidan 15/16 years prior to the occurrence and three children were born out of the wedlock. P.W.8 conceded that no entry, about the transfer of land was made in the Nikahnaama and he had not produced any document before the Investigating Officer relating to agreement of transfer of land.
To top it all P.W.8 and P.W.9, both, admitted that Abdul Aziz was missing for the last 5/6 years and his whereabouts were not known. The appellant and his other relatives were informed by Mst.
Hamidan wife of Abdul Aziz that Abdul Aziz had gone with the Tableeghi Jamat. P.W.8 further admitted that his sister Mst. Hamidan had got a case registered against Nasir and Abdul Majidaccused/Appellant and others for offences under sections 457/380, P.P.C. At Police Station Shorkot City on 17-5-2000, two days before the registration of this case. He further conceded that Mst. Hamidan Bibi was in possession of seven acres of land owned by Abdul Aziz. During cross- examination P.W.8 stated that his father had made demand for the land about 7/8 years ago from the accused party. In the above noted circumstances, it is totally unbelievable that Mustaqeem deceased had been demanding the transfer of land in favour of his daughter from the relatives of Abdul Aziz. If any demand was to be made that was to be made from Abdul Aziz whose whereabouts were not known for thelast 5/6 years and his land measuring 7 acres was already in possession of Mst. Hamidan.
12. The upshot of the above discussion is that the prosecution has miserably failed to prove the motive. It has been time and again observed by the superior Courts that the corroboratory evidence must come from a distinct source. In the instant case, the eye-witnesses are also witnesses of motive and once they are disbelieved regarding motive, then it would reflect on the credibility of their eye-witnesses' account.
13. As far as recovery of the blood-stained Kassi is concerned, it was found lying on the spot and according to memo. Exh. PG, the same was produced before the Investigating Officer by complainant Muhammad Ilyas/P.W.8. The attesting witnesses were Abdul Rasheed who was also an eye-witness and Muhammad Hanif who was not produced during trial. So the above recovery evidence has not come from any distinct source and cannot be used against the appellant.
14. To sum up the prosecution story is based on the statements of related witnesses, who in our opinion, were not present at the time of occurrence. The evidence of motive which came from the mouths of the same witnesses was not reliable. The recovery of blood-stained Kassi was also not witnessed by independent witnesses and was collected from the spot and not from the possession of the appellant. The medical evidence, as discussed above, also does not support the ocular account. The prosecution case is not from doubt. Hence, we are of the considered opinion that the prosecution has failed to prove its case against the appellant beyond doubt. Thus, we allow this appeal and set aside the impugned judgment. The appellant is acquitted of all the charges and would be released forthwith, if not required in any other case.
15. As a necessary corollary to the above, the death sentence is not confirmed. The Murder Reference is answered in the negative.