SHAFI-UR-REHMAN, J.-The three appellants along with four others were tried for catching hold of Iqbal deceased removing him to the shop of Bashir (acquitted accused) and inflicting on him injures resulting in his death. The trial Court found the appellants and their companion Nazir guilty of the offences under sections 302/34 and, 342, P. P. C. For the first offence they were sentenced to life imprisonment and a fine of Rs. 1,000, each, or in default to suffer one year's rigorous imprisonment each. They were also sentenced to undergo rigorous imprisonment for one year under section 342, P. P. C. They appealed against their conviction and sentence and succeeded to this extent that Nazir convicted by the trial Court, was acquitted as his name was not mentioned in the F. I. R. And the three appellants were acquitted of the charge under section 302/34, P. P. C. And instead were convicted under section 326,134, P. P. C. And sentenced to ten year's rigorous imprisonment and the fine as ordered by the trial Court. Their conviction and sentence under section 342, P. P. C. Was maintained. In a separate trial, Yusuf appellant was found guilty under section 13 of the Arms Ordinance for possessing without licence a spear. He was sentenced, to six months--- rigorous imprisonment which conviction and sentence was maintained in the High Court.
2. Leave to appeal was granted to the appellants on 15-1-1978 to examine whether the eye- witnesses produced in the case could be believed in spite of different versions of the weapons of offence carried by the appellants and their associates given by them and the fact that the names of two eye-witnesses Mst. Sardar Bibi and Mst. Begum Bibi were not mentioned in the F.
1. R. At all.
Further, whether such ocular evidence did require corroboration and whether corrobora--tion could be obtained from weapons which were not blood-stained and whose possession and recovery was proved only by the Investigating Officer, the other witnesses not supporting it.
3. The prosecution case was that the deceased was suspected of and reported against for committing a number of thefts. One or two such reports had been made by Abdur Rehman appellant. Besides, Abdur Rahman suspected the deceased of maintaining illicit relations with his sister Mst. Khudeja and had warned him twice but the deceased did not desist. On 11-4-1972, at about 6-30 p. m. Munshi (P. W. 9) along with his two sons Akhtar (not produced) and the deceased, was returning to the village Deer in District Sheikhupura. When they reached near the Abadi, Akhtar left their company to go to the house of Mst. Sardar Bibi (P. W. 12), his mother's sister. The deceased was ahead of Munshi (P. W. 9) by about 10 to 50 feet. When the deceased reached in front of shop of Bashir, it is said, he was lifted physically by the appellants and their other associates, taken inside the shop which was then bolted. Abdul Haq and Nur Muhammad, the accused placed in Column No. 2, were put on guard outside while the others in all seven persons inside the shop, gave a thorough beating to the deceased. A large number of people including Barkat (P. W. 10). Mst.
Begum Bibi (P. W. 13) and Mst. Sardar Bibi (P. W. 12) gathered at the spot. The appellants opened the door and went away. Yusuf and Abdur Rahman armed with spears, the others with Lathis. The deceased was found seriously injured and was removed to the hospital where Khalid Latif Cheema, the Investigating Officer (P. W. 14) recorded the statement of Munshi (P. W. 9) on which the case was registered. From the spot inside the shop of Bashir the investigating Officer recovered blood- stained earth. The appellants appeared before the Investigating Officer with their weapons, Yusuf with spear P. 6, Siddiq with Dang P. 7 and Nazir with hammer P. 8, none of which was blood- stained.
4. Iqbal deceased expired at midnight. The autopsy showed that he had 12 contusions on his dead body and three incised wounds. The three incised wounds were in the nature of stab wounds.
5. The appellants and their associates pleaded not guilty to the charge and Abdur Rehman stated that "Iqbal deceased was a habitual thief and 1 have been making complaints against him about theft and so I have been falsely involved in this case". The appellants denied having caused the injuries and stated that they were falsely implicated. Yusuf in his trial under Arms Ordinance denied the possession or production of the spear.
6. The trial Court held that the eye-witnesses were all closely relate to the deceased, that strictly speaking they were not interested witnesses but nevertheless some corroboration was necessary to record a conviction against the accused. From the medical evidence corroboration was obtained to the extent that the injuries had not been caused by one person but they had been caused by more than one person and different types of weapons were used for causing the injuries. The recovery witnesses had turned hostile so the investigating Officer was believed for the recoveries from the appellants and the trial Judge found some corroborative evidence against four accused only. Abdur Rahman was found to have a motive and he along with the three others who produced weapons was held guilty, convicted and sentenced as already mentioned.
7. On appeal the High Court in clear terms held that the witnesses were not interested and while examining their statements it was held that:- "No doubt the eye-witnesses contradicted each other on the points of weapons carried by each of the accused including the appellants and also contradicted each other about the number of persons who made their exit from the door and from the back window but the discrepan--cies in their testimony are not material points. All the eye-witnesses were closely related with the deceased and the discrepancies in their testimony are due to lack of observation and confusion.
The medical evidence was found to corroborate inasmuch as the postmortem showed that stomach of the deceased was full of milk and fats. The Investigating Officer was believed in the matter of recoveries.
As regards the nature of the offence committed the learned Judges in the High Court came to the conclusion that keeping in view the nature of the injuries the intention of the appellants was to cause grievous injury by dangerous weapons and the offence fell under section 326, P. P. C. The conviction and sentence was accordingly altered. Nazir was given the benefit of doubt only on the ground that his name did not find mention in the F. I. R. The investigating Officer was believedin matter of recovery of weapons and hence Yusuf convictionsection 13 ofthe Arms Ordinance was maintained.
8. As regards the relationship of the appellants and their associates, nothing was brought on record. From their parentage it appears that Abdur Rehman appellant is the son of Raja who bad according to the F. I R twice reported of theft against the deceased. He suspected the deceased of 'maintaining illicit relationship with his sister Mst. Khudeja, had twice warnedthe deceased but the later did not desist. Siddiq and Yusuf are sons of Mehr, Yaqoob and Yusuf of Lala and Abdul Haq and Noor Muhammad ofGhulam Muhammad and Bashir is the son of Abdul Haq. No specific relationship has been alleged between them except that they were partymen of Abdur Rehman.
9. As regards the prosecution eye-witnesses, all four are closely related. Munshi (P. W. 9) is the father of deceased and husband of Mst. Begum Bibi (P. W. 13) father-in-law of Barkat (P. W. 10). Mst.
Sardar Bibi (P. W. 12) is the sister of Mst. Begum Bibi.
10. The enmity between the two groups had a beginning when it is said the deceased was accused of theft and more than one case was reported against him by the appellant's party. This would have afforded a grievance to the complainant party for it was their belief that these charges were false. One may in this context refer to the statement of Munshi (P.W.9) who said:. ---my son Iqbal alleged to have illicit relations with Mst. Khudeja the sister of Abdur Rehman accused. On this account all the seven accused were his enemies. In he Kabaddi matches the accused tried to break his legs. Then the accused made a few false cases of theft against him."
He also admitted that "Iqbal was challaned on a report of Lal, father of Yusuf accused, but the case was false, because no theft was committed in his house". This background of relationship between the complainant and the appellants and their associates led the trial Court to look for some corrobora--tion from other quarters. The learned Judges in the High Court however considered these factors to be not sufficient to make these witnesses interested witnesses. By taking the other accused to be partymen of Abdur Rehman and being convinced that Abdur Rehman had time and again reported against the deceased involving him in serious criminal litigation without just cause would certainly make Munshi and others related to him interested witnesses qua Abdur Rehman.
11. For the purposes of this appeal however, the more important question is whether the eye- witness are deposing truthfully about the occurrence and whether the occurrence was in fact witnessed by them. The learned Judges in the High Court have noted the discrepancies, the incon- -sistencies and the shortcomings in the eye-witness account given by these witnesses. In the first version given to the Police the deceased was shown to be returning to the village in the Company of his father Munshi and brother Akhtar. At the trial Akhtar was shown to have left their Company on reaching the abadi in order to go to the house of Mst. Sardar Bibi (P. W. 12). In the F. I. R. Akhtar was said to be present at the start of occurrence at the spot and was raising alarm which attracted others but not so at the trial. The deceased who was shown in the F. I. R. To be accompanying Munshi (P. W. 9) was shown to be 10 paces and then 10 karams ahead o Munshi in the abadi bazar.
The first version was that all the appellants and their associates who bodily lifted the deceased and took him inside the shop were armed with this. After closing the door from inside they gave a beating and on the intervention of others of the village they opened the door and went away. While the beating was going on inside the shop Abdul Haq and Nur Muhammad were keeping guard outside and they had joined the appellants and others in physically lifting the deceased and taking him inside the shop. Munshi (P. W. 9) when confronted with this situation at the trial made the following statement to explain his conduct:- "I have given the names of Abdul Haq and Noor in the F. I. R. They, did not enter into the shop and they did not inflict any injury on my son. They were outside the shop and they had gone to the mosque at the time of beating. However, Abdul Haq and Noor had helped others in removing Iqbal into the shop and after the shutters were closed from inside, they had gone to the mosque. I did not state in the F. I. R. That both these persons remained standing outside the shop having dangs in their hands (confronted so recorded). When the, police arrived in the village I made another statement to the police stating that Abdul Haq and Noor were innocent and that their names were inserted in the F. I. R. In advertantly."
Nazir, the acquitted accused, was not mentioned in the F. I. R. And it was explained by him in following words:-- "I did not state before the police in my statement Exh. DD. That the name of Abdul Haq was wrongly given and that in fact I had given the name of Nazir (confronted so recorded)."
12. In the F. I. R. Munshi stated that when accused emerged from the room after beating the deceased Yusuf and Abdur Rehman alone had spears. At the trial he stated Yusuf had a datri, Bashir had a chhuri, Siddiq hatchet and Abdur Rehman had a spear and this was a material departure from the first information report.
13. As regards the other eye-witnesses, we find that Mst. Sardar Bibi and Mst. Begum Bibi are not mentioned as eye-witnesses in the F. I. R. Barkat had his residence at the Dera of Inayat outside the Abadi and he claimed before the police that he had come from his Dera. If that were so, he could not have been in time to see the occurrence. At the trial he shifted his presence from his Dera to the house of Mst. Begum Bibi where he is said to have taken his meals before the arrival of his father-in-law Munshi and the deceased though Mst. Begum Bibi says that she did not offer or provide anymeals to him at all. In view of the absence of the name of these witnesses in the F. I. R.
And failure of Barkat to plausibly account for his presence and contradiction with his earlier statement, it is not possible to hold their claim to be eye-witnesses made out.
14. The discrepancy with regard to the weapons with which the appellants were armed is also significant. Apart from what Munshi stated Barkat at the trial stated that Abdur Rehman was armed with a hammer.
In the commitment Court he stated that Abdur Rehman was armed with Datar. To Nazir he ascribed a knife at the trial, a spear in the commitment Court. The witnesses who claimed to have seen the occurrence and the accused armed with various weapons could not be so discrepant. As regards the recovery, spear is said to have been produced by Yusuf, Dang by Siddiq and hammer by Nazir, the acquitted accused, There were not blood-stained. They had no incriminating element to afford any corroboration. The intrinsic value of the statement of these witnesses is considerably reduced by these inconsistencies and their claim to have witnessed by occurrence becomes doubtful.
15. All the eye-witnesses stated that when they entered the shop of Bashir apart from the injured they found two hammers, both smeared with blood, and a piece of wood lying there. In the F. I. R.
One such hammerand a piece of wood was said to be lying there. The Investigating Officer claims to have reached there and to have taken the incriminating articles into possession. No hammer was taken into possession nor was it seen by him. Subsequently it was Nazir, the acquitted accused, who produced one of the hammers which was not blood-stained at all.
16. The recoveries in this case were effortless. On 13-4-1972 Yusuf appellant appeared with the spear Exh. P. 6 and was arrested. The same day Siddiq appellant appeared with the Dang Exh. P. 7.
And he was also ' arrested. On 22-4-1972 Nazir, acquitted accused, appeared with a hammer Exh. P.
8. And a piece of wood Exh. P. 9 and was arrested. None of these articles was blood-stained. There were two recovery witnesses, Ghulam Muhammad and Muhammad Hussain. They were not produced at the trial. They were not expressly given up by the Public Prosecutor. It however appeared from the record that they were produced and examined in the commitment Court, did not support the recovery and were declared hostile. The factor which weighed with the Court in determining the suffciency of evidence and proof of recovery was that though both the complainant and accused were Dogars, the complainant were settlers in this village after the Partition while the accused were the original residents. The Investigating Officer's statement about the possession of these weapons. By the appellants and their production was implicitly believed so as to record their conviction and sentence. The view that we have taken of the ocular evidence and the investigation (failure to recover the two hammers and a piece of wood, all smeared with blood and lying at the spot) does not justify such implicit reliance on the statement of the Investigating Officer when none of the recovery witnesses came forward to support the recoveries.
17. We find that the prosecution failed to bring home the charges to the appellants. Both the appeals are allowed and their conviction and sentence are set aside. They shall be released forthwith unless their detention is required in some other cause.