' ALI NAWAZ CHOWHAN, J.--- Muhammad Mansha appellant was convicted under section 302(b), P.P.C. By the learned Additional Sessions Judge, Toba Tek Singh vide judgment, dated 15-11-1999 in case F.I.R. No,56 dated 26-2-1998 registered under sections 302/10/34 (sic), P.P.C. At Police Station Pir Mahal District Toba Tek Singh and sentenced to death on two counts with direction to pay Rs,20,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of Abdul Rauf deceased, or in lieu thereof to undergo six months' S.I. He was also directed to pay compensation of Rs,20,000 under section 544-A, Cr.P.C. To the legal heirs of Naseer Ahmad deceased, or in lieu thereof to undergo six months' S.I. By the same judgment Muhammad Ashraf, Muhammad Aslam.
Muhammad Akram and Nazir Ahmad were acquitted of the charge. Muhammad Mansha appellant has challenged his conviction in Criminal Appeal No,1194 of 1999 whereas the learned trial Court has sent Murder Reference No,528 of 1999 for confirmation of death sentence awarded to Muhammad Mansha. Both these matters are being disposed of through this common judgment...
2, Ghulam Shabbir complainant while making his deposition before the Court as P.W.8 narrated the prosecution case as under:-- "On 25-2-1998, at about 9 p.m., myself, Muhammad Nawaz and Muhammad Bashir P.Ws. Were going to our land, Abdul Rauf and Naseer Ahmad deceased were ahead of us as they were also going to the land. When Abdul Rauf and Naseer Ahmad deceased reached near Killa No,5 of Square No,25,we heard a Lalkara that Abdul Rauf and Naseer Ahmad be done to death. We rushed to the place where Abdul Rauf and Naseer Ahmad deceased were present. We witnessed Muhammad Aslam accused armed with hatchet, Muhammad Mansha accused armed with pistol and Nazir Ahmad accused armed with rifle tying the hands of both the deceased behind their backs by pieces of clothes. Muhammad Aslam accused delivered hatchet blows to Naseer Ahmad deceased, Muhammad Mansha accused fired with pistol at Abdul Rauf deceased twice and the shots hit him on the front of his chest. After sustaining injuries, Abdul Rauf and Naseer Ahmad fell to the ground. All the three accused present in Court lifted Abdul Rauf and Naseer Ahmad and threw them in nearby sugarcane crop. The accused while firing, fled away. Myself, Muhammad Nawaz and Bashir P.Ws. Attended Abdul Rauf and Naseer Ahmad but they had succumbed to the injuries."
' The motive part of the story was narrated by him as under:- "The motive for this occurrence was that accused Akram and Ashraf had murdered my father and a murder case was registered. In that murder case Akram and Ashraf accused were convicted.
Akram and Ashraf accused abetted accused Muhammad Aslam, Muhammad Mansha and Nazir to murder Abdul Rauf and Naseer Ahmad. Naseer Ahmad deceased was my real brother whereas Abdul Rauf deceased was my sister's son."
' His statement was corroborated by Bashir Ahmad P.W.9 and Muhammad Nawaz P.W.10.
3. Dr. Ehsan-ur-Rashid P.W.1 conducted post-mortem examination on the dead body of Abdul Rauf deceased and found the following injuries on his person:--
(1) An entry wound 3 c.m. x 1-1/2 c.m. With inverted and burnt margins, burnt area around the wound was 7 c.m. x 4 c.m. On the lower part of front of left chest.
(2) An entry wound 1 c.m. x 1 c.m. With inverted and burnt margin on the lower end of sternal 7 c.m.
To the medial side of injury No, l.
(3) An exit wound of injury No,1 2-1/2 c.m. x 2 c.m. On the back and outer side of lower part of right chest 16-1/2 c.m. From the thoracic spine.
(4) An exit wound of injury No,2, 1-1/2 c.m. x 1 c.m. On the back and centre of left chest 8 c.m. Below from inferior angle of left scapulas, 8-1/2 c.m. From thoracic spine.
' According to the doctor the cause of death was haemorrhage and shock due to injuries Nos.1 to 4 which were sufficient to cause death instantaneously in ordinary course of life. All the injuries were ante-mortem and were caused by fire-arm. The probable duration that elapsed between injuries and death was immediate and between death and post-mortem was six to twelve hours. Exh.P.C. Is the post-mortem report.
' The same doctor on the same day conducted post-mortem examination on the dead body of Naseer Ahmad deceased and found the following injuries on his person:--
(1) An incised wound 1-1/2 c.m. x 3 c.m. x bone cut x brain matter cut, on the right side of head 6 c.m. From right ear.
(2) An incised wound 10 c.m. x 3 c.m. x bone cut x meniges and brain matter cut on the right side of head just adjacent with injury No,.1.
(3) An incised wound 11 c.m. x 2-1/2 c.m. x bone cut x meniges and brain matter cut, on the back of head 7 from right ear.
(4) An incised wound 7 c.m. x 2-1/2 c.m. x bone cut x meniges and brain matter cut on the back and right side of head 5 c.m. From right ear.
(5) An incised wound 8 c.m. x 2 c.m. x bone cut x brain matter cut just above right ear.
(6) An incised wound 3-1/2 c.m. x 1 c.m. x upper jaw cut on the left side of upper lip.
(7) An incised wound 4 c.m. x 1 c.m. x lower jaw cut on the left side of lower lip.
(8) Fracture of left maxillary bone.
(9) An incised wound 4 c.m. x 2 c.m. x muscles and blood vessels cut on the left side of neck.
(10) An incised wound 4 c.m. x 2 c.m. Muscles and blood vessels cut on the left side of neck.
(11) A stab wound 3 c.m. x 2 c.m. x muscle deep on the front and upper part of right upper arm.
(12) An incised wound 7 c.m. x 2 c.m. x bone deep on the upper part and outer side of right thigh.
(13) An abrasion 6 c.m. x 1 c.m. On the back of left chest.
' According to the doctor the cause of death was haemorrhage and shock due to injuries Nos.1 to 8 which were sufficient to cause death instantaneously in ordinary course of life. These injuries were caused by sharp-edged heavy weapon and were dangerous to life. Injury No,9 was Shajjah Madihah, ante-mortem in nature and was caused by a sharp-edged weapon. Injuries Nos.10 and 11 were also ante-mortem and were declared as Jurh Ghayr Jaifah attracting provisions of section 337-F(3), P.P.C. And were caused by a sharp-edged weapon. Injury No,12 was Jurh Ghayr Jaifah attracting the provisions of section 337-F(4), P.P.C. It was ante-mortem and was caused by a sharp-edged weapon. Injury No,13 was miscellaneous attracting provisions of section 337-L(2), P.P.C. It was ante-mortem and was caused by blunt weapon. The probable duration that elapsed between injuries and death was immediate and between death and post-mortem was 6 to 12 hours. Exh.P.F. Is the post-mortem report.
4. Muhammad Yaqoob constable P.W.2 escorted the dead body of the deceased to the mortuary for autopsy. After post-mortem examination he produced before the Investigating Officer last- worn clothes of the deceased who took them into his possession vide memo. Exh.P.G. Muhammad Siddique constable P.W.3 escorted the dead body of Naseer Ahmad deceased to the mortuary for autopsy. After post-mortem examination he produced before the Investigating Officer last-worn clothes of the deceased who took them into his possession vide memo. Exh.P.H. Muhammad Jahangir M.H.C. P.W.4 deposed about the safe custody of sealed parcels containing blood-stained earth, blood-stained hatchet in the Malkhana of the police station. Muhammad Anwarul Haq constable P.W.5 transmitted the sealed parcel said to contain bloodstained hatchet to the office of Chemical Examiner, Lahore. Muhammad Aslam constable P.W.6 transmitted the sealed parcels containing bloodstained earth to the office of Chemical Examiner, Lahore. Muhammad Ahmad Patwari P.W.7 prepared site plan of the place of occurrence. Javed Iqbal P.W.11 identified the dead bodies of both the deceased Naseer Ahmad and Abdul Rauf at the time of post-mortem examination. He is also a witness of recovery of a carbine P.15 and two live cartridges P.16/1-2 (Exh.P.N.) and blood-stained hatchet P.18 (Exh.P.O.) from Nazir Ahmad accused. Manzoor Ahmad P.W.12 is the witness of recovery of rifle P.19 and 15 live bullets P.20/1-15 (Exh.P.P.). Riaz Hussain S.-I.
P.W.13 on 26-2-1998 recorded statement of the complainant Exh.P.J. Then he visited the place of occurrence, inspected the dead body of Abdul Rauf, prepared injury statement Exh.P.A. And inquest report Exh.P.B. He also inspected the dead body of Naseer Ahmad deceased, injury statement Exh.P.D. And inquest report Exh. P. E. He also collected blood-stained earth from the places where the dead bodies of both the deceased were lying .Vide memos. Exh.P.K. And Exh.P.L. And after completing the investigation put up the challan. The reports of the Chemical Examiner with regard to blood-stained earth are Exh.P.R. And Exh.P.S. Whereas the reports of the Serologist are Exh.P.T. And Exh.P.U. The report of Chemical Examiner with regard to the blood-stained hatchet is Exh.P.V. And that of the Serologist is Exh. P. W .
5. The accused were examined under section 342, Cr.P.C. Muhammad Mansha convict took the following plea:- "It was an unseen occurrence. Unknown assailants murdered Abdul Rauf and Naseer Ahmad inside the sugarcane crop where their dead bodies were located later. On mere suspicion this false case was got registered against me and my co-accused, thereafter the recoveries were planted in order to strengthen the prosecution case. The complainant had been changing his stand for the reason that none of the alleged eye-witnesses had witnessed the occurrence."
' He neither opted to appear as his own witness under section 340(2), Cr.P.C. Nor produced any defence evidence. However, Muhammad Aslam acquitted accused produced Muhammad Ashraf Assistant Director Planning Office of Chief Executive Canal Road, Faisalabad D.W.1 and Munawar Hussain Assistant Lineman WAPDA Sub-Division Kamalia D.W.2 in support of his plea of alibi.
Muhammad Ashraf acquitted accused produced certified copy of judgment Exh.D.B. In his defence.
6. It has been argued by the learned counsel for the appellant that admittedly no blood was found at the place of occurrence nor were there any dragging signs visible and thus the story of the prosecution that the deceased were injured at one place, dragged to another place is belied and the story which emerges is that they may have been done to death at the place where their dead bodies were lying.
7. It is said that when allegedly eye-witnesses were witnessing the killing of these two person why will the accused side drag the bodies to an obscure place for hiding the evidence. That there is no recovery of any empties from the spot and the pistol which is recovered from Mansha was recovered from near a bus stop on 21-4-1989 and this bus stop is far away from the place of occurrence. It was further stated that the rifle too was recovered in the same manner on 27-4-1998 from Mansha from the same place.
8. About the recovery from Nazir Ahmad it was said that this was a hatchet which according to the prosecution story kept lying at the place of occurrence in the fields and the blood remained on the hatchet despite lapse of about two months. Learned counsel states that this was against the principle of Pathology because the blood would cog late after some period.
9. It was also argued that in view of the fact that the witnesses were highly interested a strong corroboration was required. Reference is also to be made to the following portions of the judgment which are reproduced below in extenso:-- "I agree with the contention of learned defence counsel that P.W.8 Ghulam Shabbir and P.W.9 Bashir Ahmad are interested witnesses. Needless to say that following are some of the broad legal principles which should be kept in mind while deciding a case involving capital punishment. One such principle is that, if an interested witness claiming to be an eye-witness charges a person with the commission of an offence, the first thing which the Court has to determine is, whether he saw the occurrence and was in a position to identify the accused..."
"But if the Court finds that the interested witness has exaggerated the number of accused, the Court will insist for corroboration of his testimony from some additional circumstances in the case."
10. The learned trial Court had acquitted Muhammad Ashraf, Muhammad Aslam and Muhammad Akram in this case while convicting Mansha alone. It is said that he carried out the plan of the abettors which meant that Mansha had himself no motive to commit the crime.
11. The learned trial Court was very careful in his appreciation of the evidence and was right in stating that when the witnesses are so much interested and inimical an independent corroboration was required which he did not find adequately in the statement of Ghulam Shabbir and Bashir Ahmad and came to a conclusion at page 29 of the judgment that the likelihood was that Muhammad Mansha the accused associated himself with some hired assassin to commit murder of the two deceased. But while blaming Mansha he was mostly relying on the testimony of Muhammad Nawaz P.W. Who according to the learned trial Court was one amongst the witnesses who could be called disinterested. He was also a person who belonged to that area and thus, was a natural witness.
12. Muhammad Nawaz in his examination-in-chief had stated the same facts as were said by the complainant who himself was not sure about Muhammad Aslam. Muhammad Nawaz is also a recovery witness of pistol from Mansha and five bullets which were taken into possession vide memo. Exh.P.M. Bearing his attesting signatures. The relevant portion of his examination-in-chief is as under:-- "I had not stated in my statement before the police that when both the deceased reached near Killa No,15 of Square No,25, we heard a Lalkara raised by the accused that both the deceased should not be left alive. I had made statement to the Investigating Officer in this case for the first time on 26-2-1998. I had not nominated Nazir Ahmad as accused in my statement made to the police on 26-2-1998. It is correct that I had stated in my statement before the police that Muhammad Aslam and Muhammad Mansha accused were accompanied by an unknown assailant."
' It means that he was not accusing Nazir Ahmad who has been acquitted and he said so in his statement. But the accused Muhammad Aslam as an assailant which became unacceptable because of various reasons. Muhammad Mansha was named by him specifically and according to Muhammad Nawaz he was accompanied by unknown assailants which statement was borrowed by the learned trial Court who used it in his judgment.
13. Now what is the evidence against Mansha convict. A recovery of pistol not wedded with the crime-empty because none was recovered. There is no motive against him and, there is the eye- witness account given by Muhammad Nawaz P.W.10 on which the trial Court has placed some reliance.
14. But can Muhammad Nawaz be relied upon as far as Mansha is concerned while the story which he narrated against the other accused was not believed by the Court itself.
15. The circumstances and the story so made out particularly with respect to the tying of the two deceased after doing them to death and also the story that the bodies were while the witnesses were watching dragging into the crop fields and there have been no trace of dragging and no blood available from any other place except from the field where crop was standing make it clear that the eye-witnesses have not seen the occurrence nor has the occurrence taken place in the circumstances which were depicted. We, therefore, feel that even the case of Mansha was doubtful and we, therefore, acquit him of the charge. The appeal is disposed of accordingly while returning the murder reference in the negative.