Dost Muhammad (50), Ata Muhammad (54), Faiz - Muhammad (40), Fateh Muhammad (44) sons of Mehr Khan, Ahmad Khan, (28), Jahan Khan, (20) sons of Ghulam Muhammad and Mehr Khan
(35) son of Fateh Sher, Awans by case, residents of Dhok Banera, District Mianwali, were tried by the learned Additional Sessions Judge, Mianwali, under sections 148, 302/149 and 307/149, P. P. C., on the allegations that on 5th December, 1976 at about 9 a. m., they formed themselves into an unlawful assembly in the area of Dhok Banera with the common object of committing the murder of Muhammad Nazir deceased and for making .Murderous assault on Mst. Bakht Bhari and Mst.
Bhag Bhari in the prosecu--petition of that common object of the said unlawful assembly and have actually committed the murder of Muhammad Nazir and attempted on the lives of the aforesaid P. Ws. By judgment dated 3rd July, 1979, Ahmad Khan, Mehar Khan, Fateh Muhammad and Jahan Khan accused were acquitted of all the charges while Dost Muhammad, Ata Muhammad, and Faiz Muhammad were convicted under sections 302, 324 and 326 read with section 34, P. P. C. Under section 302/34, P. P. C. They were sentenced to imprisonment for life and a fine of Rs. 7,000 each or in default in the payment thereof to undergo R. I. For two years each. Out of the fine, if recovered, 3/4th of the amount was ordered to be paid to the heirs of the deceased as compensation. Under section 324/34, P. P. C. They were sentenced to R. I. For two years and a fine of Rs. 2000 each or in default to undergo R. I. For six months each and under section 326/34, P. P. C.
They were sentenced to R. I. For five years and a fine of Rs. 3,000 each. Out of the fine 3/4th of the amount was ordered to be paid as compensation to each of the victims. The convicts have appealed Mst. Bhag Bhari complainant has filed Criminal Revision No. 536/80 praying for enhancement of the sentence of the convicts and for re-trial of the acquitted accused. Both these matters shall be disposed of by this judgment.
2., The brief facts of the prosecution case are that there was a dispute between the parties over the partition of land left by their predecessor-in---interest, namely, Kalu, who died issueless. Two months prior to the occurrence there was an exchange of firing between the parties and persons from both sides were challaned for keeping illicit arms and were also .Proceeded against under section 107 of the Code of Criminal Procedure.
The prosecution story goes that on the evening of 4th December, 1976 Muhammad Nazir deceased went to Dhok Hamsal to pay Eid-call on his friend Lal Khan P. W. And stayed for the night with him.
On the following morning when he alongwith Lal Khan was returning to his own Dhok and was at a distance of one furlong from the village, all the seven accused who bad hidden themselves behind bay-stacks, came out and challenged him. Dost Muhammad was armed with a dandali, Ata Muhammad, Faiz Muhammad and Jahan` Khan had sotas, Fateh Muhammad had a Vahola and Mehar Khan and Ahmad Khan had hatchets with them. The deceased raised an alarm attracting his mother Mst. Bhag Bhari and her sister Mst. Bakht Bbari. Acquitted accused Fateh Muhammad opened the attack by giving a Vahola blow on the head of the deceased as a result of which he fell down with his face to the ground. Then all the accused injured him with their respective weapons.
Mst. Bhag Bhari and Mst. Bakht Bhari rushed towards the place of occurrence. Acquitted accused Fateh Muhammad gave a Vahola blow from the wrong side on the left arm of Mst. Bhag Bhari, Dost Muhammad appellant gave a dandali blow on her right index-finger, acquitted accused Ahmad Khan gave a hatchet blow on her right arm and acquitted accused Mehar Khan gave hatchet blows on her left ribs. She fell on the deceased and was beaten by the accused in that position. Mst.
Bakht Bbari also suffered injuries at the bands of all the accused. There--after, all the accused went away taking the weapons with them. Muhammad Nazir deceased was removed to his house where he died after half an hour. Thereafter, Mst. Bhag Bhari reported the occurrence to Muhammad Hayat Sub-Inspector at 1-30 p. m. At Dhok Garori vide her statement Exh. P. D., on the basis of which formal F. I. R. Exh. P. D. I was recorded at the police station at 3 p. m.
3. Aftar recording the statement of Mst. Bhag Bhari, the Sub-Inspector prepared her injury statement (Exh P. X.) and then reached the spot at 3-30 p. m. The dead body of Muhammad Nazir was lying in the house of Mat. Bhag Bhari. After preparing the injury statement (Exh. P. Y.) and inquest report (Exh. P. Y. 1) he despatched it to the mortuary for post-mortem examination. Mst.
Bakht Bhari was also present there. He recorded her statement under section 161, Cr. P. C. And prepared her injury statement Exh. P. Z. He sent Mst. Bhag Bhari and Mst. Bakht Bhari to the hospital for medical examination.
4. On 6th December, 1976 he secured some blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh. P. O. Thereafter, he recorded the statement of Lal Khan P. W. Under section 161, Cr. P. C. On the same day Malik Attar Khan produced Dost Muhammad, Ahmad Khan, Mehar Khan and Jahan Khan accused before him who produced dandali (Exh. P. 7), hatchet (Exh. P.
9), hatchet (Exh. P. 8) and Sota (Exh. P. 10) respectively before him which he took into his possession vide memos. Exhs. P. Q., P. S., P. R. And P. T., respectively. Acquitted accused Ahmad Khan had injuries on his person. The Sub-Inspector prepared his injury statement Exh. P. B. Thereafter he arrested all the four aforementioned accused persons and sent Ahmad Khan accused to D. H. Q.
Hospital, Mianwali, for medical examination.
5. On 7th December 1976 Malik Attar Khan also produced Ata Muhammad and Faiz Muhammad accused before the Sub-Inspector who produced Sow Exh. P. 11 and Exh. P. 12 which were taken into possession vide memos. Exhs. P. U. And P. V. Res--pectively. Acquitted accused Fateh Muhammad was formally arrested by Mehr Khan A. S. I., Police Station Chakrala, from the police lock up of Police Station Sadar, Mianwali. On 26th December 1976 Muhammad Hayat Sub-Inspector prepared report under section 173, Cr. P. C. Showing Jahan Khan accused in column No. 2 of the challan. Mst. Bhag Bhari made an application against Jahan Khan accused which was entrusted to Muhammad Khan, Inspector, C.
1. A. Mianwali, for investigation. He made a report that Jahan Khan accused should be placed in column No. 3 of the challan. The Superintendent of Police, Mianwali agreed with his report and a supplementary challan was submitted against Jahan Khan accused.
6. On 6th December 1976 at 9 a. m. Dr. Muhammad Akram Khan, Medical Officer, D. H. Q. Hospital, Mianwali, conducted the autopsy on the dead body of Muhammad Nazir deceased and found the following injuries on it
(1) A rounded swelling 1' x I' on the back side of the head 7' from the base of the nose and 6' from the right ear.
(2) A rounded bruise 1' x 1' on the front of head 3 -- ' above the base of the nose.
(3) Swelling 1' X 1' on the left back side of the head, 9' from .The base of the nose and 4' from the left ear.
(4) Swelling on the right back side of the head -- x -- . It was 2' backward from the right ear.
(5) Swelling1 --' x 1on the back side of the head 5' from the right ear and 5---' from the left ear.
(6) A curved bruise on the right side of forehead coming down to the right side of the face 2 -- ' X - - .
(7) A bruise -- ' x -- ' on the front of the nose.
(8) Three bruises varying from 2' x -- ' to 3' X -- ' on the outer side of the right arm.
(9) Twelve bruises varying from -- ' x -- ' to 2' x -- ' on the right forearm.
(l0) Six bruises varying from 2' x 1' to 4' x 1' on the left arm and forearm.
(11) A bruise on the left side of chest 2' x 1'. It was 4 -- '. Below the left nipple.
(12) A bruise 5' v 1' on the left side of abdomen, upward and downward, 2 -- ' below Injury No. II .And 2 -- ' from the umbilicus.
(13) A bruise 1 -- ' X -- ' on the right side of abdomen just below the ribs and 5' from the umbilicus.
(14) A bruise 2 -- ' x 1' on the right side of costal cartilage. It was 5' from the umbilicus.
(15) A bruise 5' x 1' on the right side of abdomen, going backward and upward.
(16) Fourteen bruises on the back varying from 2' x 1' to 5' x 1'.
(17) Eighteen bruises on the right buttock and the back of right leg, varying from 2' x 1' to 4' X 1--.
(18) Twelve bruises on the left buttock and back of left from 1' x 1' to 4' x 1 ".
(19) Six bruises on the front of right thigh and right leg varying from 1' x 1' t o 3' X 1 ".
(20) A lacerated wound -- " X -- ' on the front of left leg 3J' below the left knee joint.
There was no fracture of skull. Vertebra, membranes, brain and spinal cord were healthy. In the opinion of the doctor, death was due to shock and heart failure. All the injuries were ante-mortem, caused by blunt weapon and sufficient to cause shock and heart failure.
On 5th December, 1976 Dr. Salima Akhtar, W. M. O., D. H. Q. Hospital, Mianwali, examined Mst. Bakht Bhari and found eight contusions and two contused wounds on her person. All the injuries were declared simple in nature.
On the same day the same doctor, examined Mst. Bhag Bhari and found, seven injuries on her person, all cased by blunt weapon. Injuris Nos. 3 to 6 were kept under observation and the rest were simple. Subsequently, injuries Nos. 3, 4 and 5 dezlared grievous in nature.
On 7th December 1976 Dr. Ashiq A.I, Medical Officer, D. H. Q. Hospital, Mianwali, examined Ahmad Khan accused and found a partially scabbed abrasion of 1-- length on front of right leg.
7. In support of its case the prosecution examined three eye-witnesses, namely, Mst. Bhag Bhari, Mst. Bakht Bhari and Lal Khan afore-mentioned friend of the deceased. It also relied on the motive, the medical evidence and the recovery of weapons at the instance of the accused other than Fateh Muhammad.
8. The accused persons pleaded not guilty to the charge and contended that the actual assailants could not be traced as the occurrence took place during the dark hours and they have been falsely implicated due to enmity.
Dost Muhammad appellant examined Ghulam Yasin, Head Constable, in his defence who proved Exh. D. F. To be the correct copy of the F. I. R. No. 6, dated 5th February, 1976.
9. After examining the evidence on the record, the learned trial Judge held that presence of Mst.
B.Hag Bhari and Bakht Bhari P. Ws. At the spot was fully established as they suffered injuries during the occurrence. He rightly concluded that their evidence would require corroboration as they were inimical towards the accused. He rejected the evidence of recoveries on the ground that the recovery witness Muhammad Nawaz and the investigating Officer had made conflicting .
Statements regarding the manner of recovery of weapons and the presence of blood stains thereon. He further observed that Lal Khan. P. W. Who was admittedly a close friend of the deceased, belonged to a different village and had, appeared before the police on the next day of the occurrence, therefore, his statement could not be accepted "without qualification". He acquitted Fateh Khan, Ahmad Khan and Mehar Khan accused on the ground that they were alleged to have injured the deceased and the P. Ws. With sharp weapon .But no such injury was found on them.
About Jehan Khan it was observed that he was declared innocent by Riaz Ahmad Inspector and placed in Column No. 2 of the challan but almost, a year after, the matter was re-investigated and he was directed to be placed in Column No. 3. It was observed that Riaz Ahmad Inspector was an important witness but he was not examined by the prosecution, therefore, case of Jehan Khan accused was not free from doubt and he , was also entitled to acquittal.
The learned trial Judge was, - however, of the view that the evidence of Mst. Bhag Bhari and Mst.
Bakht Bhari that the appellants caused injuries to the victims with, dandali and sofas (blunt weapons) was corroborated by medical evidence as all the injuries on them. Were the result of blunt weapons. He, therefore, convicted and sentenced them as mentioned above.
10. The learned counsel for the appellants contended that presence of Lal Khan P. W. At the spot was not established, and the other two eye--witnesses, namely, Mst. Bhag Bhari and Bakht Bhari were closely related to the deceased and inimical towards the appellants, therefore, their evidence against them could not form the basis of conviction, particularly when the same was not relied upon against as many as four accused persons. He submitted that the mere fact that the injuries on the injured P. Ws. And the dead body of the deceased were by blunt weapons was not sufficient corroboration to establish the guilt of each of the appellants beyond a reasonable doubt. He further submitted that the circumstances were consistent with the assumption that the deceased and the injured P. Ws. Were attacked by some unknown persons in the dark hours and the appellants and their co-accused were falsely implicated due to enmity after due deliberation.
11. At the trial, Mst. Bhag Bhari, Mat. Bakht Bhari and Lal Khan P. Ws. Supported the prosecution version of the occurrence. MO. Bhag Bhari is the mother of the deceased. Mst. Bakht Bhari is real sister of Mst. Bhag Bhari and both of them have long-standing enmity with the accused persons.
Mst. Bhag Bhari admitted that thirty two years back she made a report under sections 148, 307 and 325 149, P. P. C. Against the fathers of all the accused persons, in respect of an occurrence in which she and her husband, brothers, mother and sister .W. Bakht Bhari P. W. Were injured. She, however, added that the case was not sent to the Court for trial as there was a compromise between the parties. She further admitted that a year after the afore-mentioned occurrence his brothers Tufail and Shah Wali were involved in a case under section 307, P. P. C. For making murderous assault on Fateh Muhammad, a real uncle of-Dost Muhammad appellant. The trial of this case ended in conviction and her brothers were sentenced to rigorous imprisonment for four years each. She further admitted that about fourteen years back her brother Shah Wali lodged a report against the appellants for rioting and for causing injuries to him, his brother's wife, Nazir deceased and latter's brother Iqbal. It is also in her statement that during the day of occurrence both of her sons, namely, Muhammad Nazir deceased and lqbal, were involved in a case under the Arms Ordinance, in which acquitted accused Ahmad Khan sad his father Ghulam Muhammad were witnesses against them.
It is the prosecu--petition's own case that there was a dispute between the parties over the partition of land left by their predecessor-in-interest, namely, Kalu, and two months prior to the occurrence there was an exchange of firing between them over that land. It is, thus, fully established on the record that the parties had long standing enmity spreading over more than three decades.
While dealing with the evidence of Mst. Bhag Bhari and Mst. Bakht Rhari, the learned trial Judge rightly held that in view of the enmity between the parties, the exaggeration in the number of the accused could not be ruled out as in the rural areas there is a tendency to implicate innocent persons alongwith the real culprits. This case is a glaring example of such a tendency. The evidence on the record shows that the complainant party had thrown the not too wide to implicate all the male members of .The accused party available in the village on the day of occurrence. In cross-examination Mst. Bbag Bhari stated that Dost Muhammad, Ata Muhammad, Faiz Muhammad and Fateh Muhammad have a real brother, namely, Mehar Muhammad, who was serving in Pakistan Army when the occurrence took place. She further stated that they have also three step brothers, namely, Nur Muhammad, Yar Muhammad and Sultan Muhammad. Nur Muhammad was serving in Pakistan Army while Yar Muhammad and Sultan were employed in Karachi. She further admitted that Jehan Khan and Ahmad Khan had two other brothers, namely, Muhammad Khan and Ghulam Asghar. The latter was minor while Muhammad Khan was residing in Karachi during the day of occurrence. In the circumstances, the mere fact that the in1u~ries on the victims were the result of blunt weapon, could not furnish corrobora--petition of the type which is always insisted upon in criminal cases involving capital punishment. In Wasiullah v. Mirza A.I and others PLD1963SC25while con--sidering the evidence of inimical witnesses who were injured during the occurrence, it was observed that when the case is not free from doubts of a general character "and the main direct evidence be also that of interested persons i. e., enemies of the persons charged, it is proper to ask that the evidence in corroboration should be exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons, beyond reasonable doubt". .In the instant case Lal Khan P. W. Has supported the version of Mst. Bhag Bhari and Bakht Bhari, but on going through the record I find that his presence at the spot is not established. The case of the prosecution is that on the evening preceding the day of occurrence, i. e., on 4th December, 1976, the deceased went to his house situate two miles away for Eid-greeting and stayed for the night with him. The witness claims to have seen the occurrence when he was accompanying the deceased on his return journey to Dhok Banera on the following morning. The explanation given by him for his presence at the spot is not at all convincing. The Eid day fell on 2nd December, 1976 but Mst. Bhag Bhari stated that the deceased had gone to the house of Lal Khan four days after the Eid, i. e.. on 6th December, 1976. If the deceased had gone to the house of the witness for an Eid call, there was no reason for the latter to accompany him on his return journey and this story seems to have been invented to show his presence at the spot. Admittedly, he is a close friend of the deceased and resident of a place two miles away from the place of occurrence. Both the eye- witnessas stated that he was present with the dead body when the Police arrived there but his statement was recorded on the next day of occurrence and this delay has not been reasonably explained. In the circumstances of the case, this fact alone should be enough to reject his evidence.
12. It is also to be noted that the occurrence took place at 9 a. m. And the statement of Mst. Bhag Bhari is shown to have been recorded at 1.30 p. m. And that, too, not at the police station but in another village, namely, Dhok Garori. When .The F. I. R. Is not recorded at the police station, the ordinary presumption is that it was recorded at the spot after preliminary investigation. The Investigating Officer (P. W. 14) stated that he got intimation of the present occurrence at about 1.30 p. m., and not prior to that. However, in Column No. 3 of the :inquest report he had recorded that he learnt about the occurrence at 12. 15 p. m. When confronted with this situation, he could not offer any reasonable explanation. This fact amply shows that the Investigating officer had learnt about the occurrence much before the recording of the F. I. R. According to the Patwari, Dhok Garori is at a distance of about one mile from the metalled road towards its south east and Dhok Banera where the occurrence took place, is at a distance of about three miles from the said road on its southern side. which would indicate that the distance between Dhok Garori and the place of occurrence was about two miles. If the Sub Inspector had come to know about the occurrence at 12-15 p. m. He could conveniently reach the spot before 1-30 p. m. It is, therefore, amply established that the F. I R.
Was recorded at the spot after the preliminary investigation and the complainant had gained sufficient time for deliberation.
12. The alleged recovery of weapons at the instance of the appellants also does not led any support to the evidence of the eye-witnesses. There is nothing in the recovery memos to show that the dandali and sofas produced by the appellants were stained with blood or made into sealed parcels. This evidence was, therefore, rightly ignored by the learned trial Judge.
13. The upshot of the above discussion is that Mst. Bhag Bhari and' Mst. Bakht Bhari are highly interested witnesses and there is no reliable corroboration of their statements to ensure against the false implication of the appellants. I, therefore, allow this appeal, set aside the conviction and sentence of the appellants and acquit them of the charges. They shall be set at liberty forthwith if not required to be detained in any other case.
Criminal Revision No. 536 of 1980 automatically fails and is dismissed.