MANZOOR HUSSAIN SIAL, J.-Ghulam Muhammad (36), Khan Muhammad (23), Adalat (21), three brothers, and Muhammad Din (46), their maternal uncle, were tried under section 302/34, P. P. C. By the learned Sessions Judge, Gujrat, for causing the murder of Muhammad Alam son of Hayat. The learned trial Judge vide his judgment dated 11-8-1969 acquitted all of them. The State by means of present appeal has challenged their acquittal.
2. The prosecution case as related by Rehmat Khan complainant in his statement (Exh. P. A) is as follows: - On 3-5-1968 at Chhawela Muhammad Aslam (deceased) was present at his well in village Bhalseranwala with Mistri Noor Muhammad (P. W.) who was repairing the well. Muhammad Alam had to water the tobacco field. He, therefore, sent Rehmat Khan to bring bullocks from the village.
When Rehmat Khan was on his way to the well, the accused emerged from their street. Adalat was armed with a stick while Ghulam Muhammad, Khan Muhammad and Muhammad Din accused with spears. They proceeded to the well. When they reached near the well, they challenged the deceased. The latter ran (for shelter) raising alarm but was chased and captured by the accused.
Adalat opened the attack and gave a stick blow on the head of the deceased. The deceased fell down. Thereafter Ghulam Muhammad and Khan Muhammad accused gave spear blows in the right and left eyes of the deceased respectively. Muhammad Din accused also gave a spear blow in the mouth of the deceased. The accused then continued causing injuries to Muhammad Alam.
On the alarm raised by Rehmat Khan and Muhammad Alam, Mistry Noor Muhammad, Karam Dad and Muhammad Yousaf were attracted to the spot 'they tried to rescue Muhammad Alam, but the accused also chased Rehmat Khan who escaped unhurt. 7 hereafter the accused ran towards their Dera. The complainant then put the injured on a cot and took him to the hospital, where he died soon thereafter. The complainant then brought the dead body of Muhammad Alam to the Police Station.
3. About three years before the aforesaid occurrence the deceased and his brothers injured Muhammad Din and Adalat accused, they were challaned, but ultimately acquitted. I his motivate the present occurrence.
4. The statement of the complainant was recorded by Hashmat Ali, S. H. O., P. S. Dinga. He prepared injury statement (Exh. P. L.) and inquest report (Exh: P. K.). The dead body of Muhammad Alam was escorted by F. C. Mushtaq Ahmad (P. W. 2) to the mortuary for post-mortem examination. The S. H.
O. Collected blood-stained earth from the spot vide Memo Exh. P. B.
5. On 4th May 1968, all the four accused were produced by Sardar Khan, a B. D. Member, at the village Dera. They were arrested by Hashmat Ali S. I. (P. W. 11). Adalat accused while in custody produced stick Exh. P. 2 which was taken into possession vide memo Exh. P.C. Ghulam Muhammad accused produced a blade of spear Exh. P. 3 and its handle Exh. P. 4, which were taken into possession vide memo. Exh. P. D. Khan Muhammad accused produced blade of spear (P. 5) and its stick (P. 6), which were secured vide memo Exh. P. E. Muhammad Din accused produced a spear blade (P. 7) and its stick portion (P. 8), which were taken into possession vide memo. Exh. P. F.
6. On 4-5-1958 at 7-00 a.m. Dr. Bashir Ahmad (P. W. 1) conducted post-mortem examination and found in all twelve injuries on the person of the deceased. Eight injuries were caused by sharp- edged weapon while the rest with blunt weapon. Injuries Nos. 2 and 3 were declared dangerous and sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem.
The death, according to the doctor, occurred due to shock and haemorrhage caused by injuries Nos. 2 and 3. He opined that the death took place within two to three hours after the receipt of the injuries.
7. The accused when examined under section 342, Cr. P. C. Pleaded innocence and attributed their involvement on account of enmity between Adalat and Muhammad Din accused and Rehmat and Yousaf P. Ws.
8. The prosecution evidence against the accused consisted of ocular evi--dence, medical evidence and the evidence of recoveries and motive. The learned trial Judge disbelieved the ocular account on the ground that it was discrepant, interested and not inspiring confidence. The evidence of recovery was rejected being mutually contradictory. The medical evidence was discarded because it ran counter to ocular evidence. The trial Court, however, held that the motive against the accused, although proved, alone would not justify order of conviction without corroboration from other evidence of unimpeachable character, which was lacking in this case.
9. Learned counsel for the State has argued that despite the evidence of the eye-witnesses being discrepant the prosecution case was proved against the respondents accused. He laid great emphasis on the statement of Mistri Noor Muhammad (P. W.) and argued that he was an independent witness and if his testimony is believed, different conclusion would follow then that drawn by the trial Court. Learned counsel, however, could not controvert the contention of the respondents' counsel that the evidence of Muhammad Yousaf and Rehmat Ali (P. Ws.) was interested because of admitted enmity between the accused and the complainant party.
10. We have considered the arguments raised by the learned counsel for the parties and have perused the record with reference to their submission made at the Bar. It is true that Rehmat Khan and Muhammad Yousaf (P. Ws.) are related to the deceased and have their admitted enmity on the record. Thus their evidence without corroboration would require abundant caution before believing it against the respondents. The statement of Mistri Noor Muhammad (P. W.) who claimed himself to be an eye-witness of the occurrence requires closer examination. It is in evidence that he was neighbour of the deceased. He had stated that he had a shop near the house of the deceased while Rehmat Khan complainant contradicted him and said that he had his house adjacent to that of the deceased. It appears that he had his house in the neighbourhood of the deceased, but deliberately did not state the truth. Furthermore, Mistri Noor Muhammad stated at the trial that he could see the back sides of the accused while they were running after the deceased and had no opportunity to see their faces. He, however, later on made explanation for his contradictory stand on a Court question but the learned trial Judge did not agree to his explanation. It is noteworthy that the trial Court had the advantage of observing the demeanour of the witness when he changed his position. The remarks of the trial Court are significant. "He has clearly stated in reply to a question that he had opportunity to see the accused by their faces any time after they started chasing the deceased." The trial Judge did not feel satisfied with his explanation and held that the witness did not see the faces of the accused at that time. It is also worth mentioning that this witness made some improvements in his version at the trial, for instance, he stated at the trial that the accused also chased Rehmat Khan (P. W.) and asserted that he had similarly stated before the Committing Magistrate but on confrontation it was found otherwise.
11. Rehmat Khan and Yousaf (P. Ws.) were not only related to the deceased but inimically disposed against the accused. Rehmat Khan is son of the maternal uncle of the deceased whereas his sister is wife of Yousaf P. W. Rehmat Khan admitted that he and the deceased were bound down to keep peace and that he had common cultivation with the deceased.
12. The presence of Yousaf P. W. At the scene of occurrence does not appear to be free from doubt.
It was alleged that at the relevant time be was present in his tobacco field, but no documentary proof regarding his ownership of land and the tobacco crops sown by him was produced. The non- production of such evidence would lead to a presumption against the prosecution regarding the presence of this witness on the scene of occurrence at the relevant time.
13. The medical evidence does not support the ocular evidence inasmuch as the doctor had drawn a distinct line between the injuries caused by sharp-edged weapon, between stab wounds and incised wounds which would inevitably mean that two types of sharp-edged weapons were used, but the ocular evidence and the evidence of recoveries only sown the use of spears in the occurrence. Furthermore, the evidence of recoveries also does not provide corroboration to ocular evidence. The recoveries were effected from the Dera of Ghulam Muhammad. Abdul Haq (P. W.) had materially contradicted Hashmat Ali (P. W.). Ali Dad, although cited as an attesting witness of recovery, was not produced. Sardar Khan, B. D. Member, who had produced the accused, persons before the Sub-Inspector for arrest was also not examined as a witness of recovery. The manner and place of recovery have also created doubt because incriminating weapons of offence are not normally concealed in open and places accessible to everyone like deras. The learned trial Judge had rightly rejected the evidence of recovery and we do not consider it safe to hold that it provides corroboration to the ocular version.
14. We are satisfied that the conclusion reached by the trial Court is neither perverse nor has it caused serious miscarriage of justice. Reference in this behalf may be made to Ahmad v. Crown (P L D1951 FC 107).
15. In any case, having discarded the ocular evidence, the medical evidence and the evidence of recoveries, the mere proof of motive would be of little significance warranting conviction of the respondents on capital charge. This appeal has no substance and is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.