Arshad (20) son of Malik Naseem, caste Rajput, Rohail Ahmad (20) son of Rafi Ullah, caste Pathan, and Muhammad Saleem (20) son of Sukha Muhammad, caste Kalasen, all residents of Chak No. 226/G. B. Police Station, Samundari, District Faisalabad, were tried by the learned Additional Sessions Judge, Faisalabad, under section 302/34, P. P. C., on the allegations that on the night between 26/27th August, 1977, at about 1 a. In., they committed the murder of Muhammad Sharif deceased in the area of Chak No. 226/G. B., in furtherance of their common intention. By judgment dated 13th May, 1980, they were convicted on the said charge and sentenced to imprisonment for life and a fine of Rs. 10,000 each or in default in the payment thereof to undergo R. I. For three years each. Out of the fine, if realised, half of the amount was ordered to be paid to the heirs of the deceased as compensation. The convicts have appealed.
2. The brief facts of the prosecution case are that Muhammad Sharif deceased used to run a shop in Ihata No. 53 belonging to Mst. Shah Begum, in Chak No. 226/G. B. On the fateful night, he and his brothers Muhammad Rashid (not produced), Muhammad Rafiq complainant, Muhammad Hamid and Muhammad Iqbal P. Ws. Were sleeping in the said Ihata to keep watch over their cattle. At about 1 a. m. Muhammad Rafiq complainant woke up by the noise produced by the movement of the cattle. 1n the moonlight he found Arshad and Rohail appellants armed with hatchets and Muhammad Saleem appellant empty handed standing near the cot of Muhammad Sharif deceased, upon which he awakened his brothers. Within their view, Muhammad Saleem appellant held the legs of the deceased and the other two gave one hatchet blow each on his neck. The complainant and his brothers raised alarm and chased the accused but they made good their escape taking their weapons with them. Muhammad Sharif succumbed to his injuries at the spot.
The motive alleged by the prosecution was that the deceased was having illicit relations with Mst.
Bakhat Begum, mother of Arshad appel--lant, since one year prior to the occurrence. The appellants who are stated to be fast friends inter se killed him on that score.
After the occurrence Muhammad Rafiq complainant went to Police Post Tarkani. And reported the occurrence to Abdul Hamid Khan Niazi, Sub-Inspector, at 2.30 a. m. Vide his statement Exh. P. A. On the basis of which formal F. I. R. Exh. P. A./ 1 was recorded at the Police Station at 3.15 a. m.
3. After recording the statement of the complainant, Abdul Hamid Khan, Sub-Inspector, reached the spot. He prepared injury-statement Exh. P. K. And inquest-report Exh. P. L. Of the dead body of Muhammad Sharif deceased and despatched it to the mortuary for post-mortem examination.
Then he took some blood-stained earth into his possession from the spot and made it into a sealed parcel vide memo. Exh. P. C. He also took into his possession cot (P. 1), Dari (P. 2), Pillow (P. 3) and Khes (P. 4), all blood-stained, vide memo. Exh. P. D. He also secured articles P. 5 to P. 16 vide memo. Exh. P. E. He arrested the accused persons on 29th August, 1977. On the same day Arshad accused, while in custody, led to the recovery of hatchet (P. 17) and Shalwar (P. 18), both blood- stained, from the house of Rohail appellant, which were made into separate sealed parcels -vide memo. Exh. P. F. On the same day Rohail appellant led to the recovery of hatchet (P. 19) and Chadar (P. 20), both blood-stained, from a sugar cane field which were made into separate sealed parcels vide memo. Exh. P.-G. After the investigation the accused persons were challaned.
4. On 27th August, 1977, at 4 p. m. Dr. Ghulam Rasul, Medical Officer, Civil Hospital, Samundari, conducted the autopsy on the dead body of Muhammad Sharif deceased and found the following injuries on it :-
(1) An incised wound 8" x 3" x 4----- upon front and right side of neck cutting completely all vessels on right side, larynx, oesophagus third cervical vertebra and spinal cord.
(2) An incised wound 10" x 3" x 4----- upon right side, and back of neck close to injury No. 1 cutting completely oesophagus, larynx blood-vessels and body of 4th cervical vertebra and spinal cord.
In the opinion of the doctor, death was due to shock and haemorrhage and injury to spinal cord and larynx. Caused by both the aforementioned injuries which were sufficient to cause death in the ordinary course of nature individually as well as collectively. The time between injuries and death was immediate and between death and post-mortem 12 to 18 hours.
5. In support of its case the prosecution examined three eye-witnesses namely, Muhammad Rafiq, Muhammad Hamid and Muhammad Iqbal. It also relied on the evidence relating to motive and the recoveries.
6. The appellants pleaded not guilty to the charge. Arshad appel--lant denied chat Rohail and Muhammad Saleem appellants were his friends. He also denied that the deceased had illicit relations with his mother and added that she was Purdah Nashin, pious and, aged lady (the word (Umer Raseda) occurring in Urdu-record has been translated by the trial Judge as `ageless' which actually, means 'never growing old'). He denied all the allegations and stated that it was a blind murder and he was falsely implicated due to suspicion and enmity. The other two appel--lants also denied the allegations and contended that they had been falsely implicated. No evidence was led in defence.
7. The learned trial Judge accepted the prosecution evidence against the appellants and convicted and sentenced them as mentioned above.
8. The learned counsel for the appellants contended that all the eye-witnesses are real brothers of the deceased and their presence at the spot is highly doubtful. He further submitted that the circumstances were consistent with the assumption that the murder was discovered in the early hours of the morning and the appellants were falsely implicated on mere suspicion. The learned State counsel submitted that the eye--witnesses had no enmity with any of the appellants and their evidence regarding the actual occurrence, recoveries and motive was rightly accepted t by the trial Court.
9. According to the F. I. R., the motive for the offence was that Muhammad Sharif deceased was having illicit relations with the mother of Arshad appellant since one year prior to the occurrence.
At the trial Muhammad Rafiq complainant re-affirmed this version and made a categorical statement in examination-in-chief that his brother Muhammad Sharif deceased was having illicit relations with the mother of Arshad appellant since one year prior to the occurrence and the appellants who were fast friends inter se, killed him on that score. In cross-examination he gave out that he learnt about this illicit affair ten or fifteen days prior to the occurrence but he never asked the deceased about it as he 'did not believe it'. He admitted that Mst. Bakht Begum might be 50 years of age and was a Purdah Nashin lady. Muhammad Hamid (P. W. 3), another brother of the deceased, stated that he "only hard about the illicit connections of the deceased with Mst. Bakht Begum during the period o: one year before the occurrence" and he could not say whether or not he was having illicit relations with other women. Both these P. Ws. Had, to face a difficult situation when they were asked whether the deceased was a person of good or bad character. Muhammad Rafiq complainant stated .That he could not say anything about it while Muhammad Hamid made a more clumsy attempt to wriggle out of the situation saying that the deceased was a man of good character but he was having illicit connec--tion with Mst. Bakht Begum. Both of them are unreliable and their statements merely show that they heard about the illicit affair from others. The investigating officer stated that besides the eye-witnesses he did not cite any other person as a witness for the motive and did not investigate into or record the statement of any person in support of the allegation that the three accused were fast friends inter se. In the circumstances, the prosecution has failed to substantiate the motive attributed to the appellants.
10. At the trial Muhammad Rafiq, Muhammad Hamid and Muhammad Iqbal P. Ws. Supported the prosecution version of the occur--rence. All the three are real brothers of the deceased. The occurrence took place after midnight at 1 a. m. On 27th August, 1977 near the shop of the deceased.
Muhammad Rafiq P. W. Admitted that the said shop was situated in Ihata No. 53 belonging to Mst.
Shah Begum. He further admitted that all his brothers alongwith their families were residing in Ihata No. 65 belonging to his father situated two Killas away from the place of occurrence. The prosecution has not produced any independent witness in support of the version that the complainant party used to tether their cattle in the Ihata of Mst. Shah Begum. Muhammad Hamid P. W. Stated that he and his brothers were 'empty-handed and. So they were afraid of the accused who were armed. It goes without saying that those who sleep near the cattle to guard them always keep weapons with them so that the same might be used in case of any emergency. It is understandable that the deceased might be sleeping near his shop but so far as his brothers are concerned, ordinarily they were expected to sleep in Ihata No. 65 where they were residing with their families. The story regarding their presence in the Ihata of Mst. Shah Begum of guard--ing the cattle seems to have been introduced with a view to make them eye-witnesses of the occurrence.
The complainant stated that he woke up by the noise produced by the movement of the cattle and then he physically awakened his other brothers Muhammad Hamid P. W. Stated that he was not awakened by any such noise and it was Muhammad Rafiq complainant who physically wakened him. Muhammad Iqbal P. W., on the other hand, stated that Muhammad Rafiq complainant awakened him and his brothers by saying that some persons had come. It is really strange that the noise produced by the movement of the cattle alerted only the complainant and not his brothers.
11. The conduct of the alleged eye-witnesses was also quite un--natural. The complainant stated that after seeing the accused standing near the cot of the deceased he awakened his brothers but did not raise any alarm before that. Muhammad Hamid and Muhammad Iqbal P. Ws. Also stated that they did not raise any alarm. It is difficult to believe that the real brothers of the deceased would keep mum on seeing three persons surrounding the cot of their brother at dead of night.
They appeared to have stated so in order to meet the argument that no person from the vicinity was cited as a witness of the occurrence. It is admitted by the draftsman and the investigating officer that there were inhabited houses of other persons around the place of occurrence. The complainant also admitted that there were inhabited Ihatas of other persons at a distance of 30/40 feet from the spot. He, however came up with the version that none of them was sleeping outside their houses on the night of occurrence but this statement does not ring true because the occurrence took place in the month of August when villagers generally sleep outside their houses.
The eye--witnesses unanimously stated that they chased the accused persons up to a distance of one kills. Muhammad Hamid P. W. Stated that while doing so they kept raising alarm but nobody came to their help. This statement too is not believable because if they had chased the assailants raising alarm, many persons from the vicinity would have been attracted. It is to be noted that in this case the investigating agency has taken special care not to cite any unconnected person as a witness and only three real brothers of the deceased have been produced in support of the actual occurrence, the motive and the recoveries.
12. The case was registered on the statement of the complainant wh4h he claims to have made at Police Post Tarkani before Abdul Hamid, Sub-Inspector. Muhammad Hamid P. W., however, admitted that the "statement of Muhammad Rafiq P. W. And the recovery memos were prepared on the spot which was thumb-marked by him". At the same time he further stated that the statement of Muhammad Rafiq complainant was also recorded at. Police Post Tarkani. He, however, admitted that he did not accompany the complainant to the said Police Post. Abdul Hamid, Sub-Inspector, stated that he did not record any statement of the complainant at the spot which might have been attested by him and .He also did not attest any recovery memo. In that view of the matter, the possibility of the F. I. R. Having been recorded at the spot after the preliminary investigation cannot be ruled out.
Muhammad Inayat (P. W. 11) who identified the dead body at the time of post-mortem examination, stated that his house was at a distance of one and a half killas from the place of occurrence. He reached the spot on hearing the alarm and found Muhammad Sharif lying murdered on the cot. He did not see any other cot lying at the spot. It is also in his statement that he "learnt about the occurrence a little before the sunrise'". 1n the circumstances, the possibility of the murder having been discovered in the early hours of the morning, cannot be excluded.
13. If it be assumed that the alleged eye-witnesses were sleeping at the place of occurrence, even then it cannot be said with judicial certainty that they had identified the assailants. There were only two injuries on the dead body which, according to the doctor, could be caused with one and the same weapon. The assailants must not have taken more than a few second to cause those injuries.
In that view of the matter, it is difficult to believe that the alleged eye-witnesses had sufficient opportunity to correctly identify them. It will not be out of place to mention here that criminals choose night time for committing the crime so that after achieving their object they may escape unnoticed. For that purpose they generally take precautions to conceal their identity.
14. The evidence relating to recoveries does not advance the case of the prosecution any further.
The recoveries are also supported by the alleged eye-witnesses, namely, Muhammad Hamid and Muhammad Iqbal, who are real brothers of the deceased. It is in their statements that many other persons were present at the time of recoveries. The investi--gating officer also admitted that three or four respectables of the village were present at the time of recoveries but they did not attest the recovery memos. He further stated that he arrested all the accused on 29th August, 1977, but Sadiq Ali constable gave out that be found all the accused in police custody at the spot on the morning following the night of occurrence. Muhammad Hamid P. W. Gave yet another version saying that Arshad and Muhammad Saleem were arrested on 27th August, 1977, and Rohail on 29th August, 1977. Muhammad Hamid P. W. Stated that the sealed parcels were prepared at the police post on the next day of the recoveries. In the circumstances, I am not inclined to accept the evidence relating to recoveries.
15. After giving my careful consideration to the entire evidence and the submissions made by the learned counsel for the parties, I am of the view that the case of the prosecution is fraught with serious doubts and the conviction of the appellants is unsustainable. I, therefore, allow this appeal, set aside the conviction and sentence of the appellants and acquit them of the charge.
Muhammad Saleem appellant is on bail. He shall be discharged from his bail, bonds. Arshad and Rohail appellants shall be set at liberty forthwith if not required to be detained in any other case.