]AVID IQBAL, J.---Muhammad Tufail alias Arrorha, son of Hasan Din, aged 40 years has been convicted under section 302, P. P. C. For the murder of Habib, aged 50 years, and vide judgment dated the 9th of October, 1976 of the Additional Sessions Judge, Sheikhupura, was sentenced to death-plus fine of Rs. 1,000 or in default to undergo one year R. I. He was also ordered to pay compensation to the heirs of the deceased amounting to Rs. 3,000 or in default to undergo six months R. I. Umer Din co-accused, real uncle of Muhammad Tufail alias Arrorha convict and Asghar Ali co-accused, his cousin, were acquitted. The jail appeal of the convict as well as reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.
2. The occurrence took place at midnight on the 17th/18th of June., 1974 in the Haveli of the deceased within the area of village Nazar Lubana, at a distance of six mile from Police Station, Sharakpur, District Sheikhupura. Statement Exh. P. A. Was made by Suleman P. W. 1, real brother of the deceased at 7-00 A. M. On the 18th of June, 1974 at the Bus Stand, Sharakpur while he was on way to the Police Station and it was recorded by Mushtaq Ahmad S. 1. P. W. 13, who happened to be present there on patrol duty and chanced to meet him. On the basis of the aforesaid statement formal F. I. R. Exh. P. A./1 was registered on the same day at the Police Station by Azmat Ullah A. S. I. P.
W. 12 at 7-02 a.m.
3. The motive asset up in the F. I. R. Is that 8/9 months before the present occurrence, Islam Din brother of the deceased had abducted Mst. Zubaida wife of the appellant. The appellant had been trying to get her back through Panchayat but did not succeed. However, the appellant had suspected that the deceased was deliberately hindering the restoration of his wife and consequently he bore a grudge against the deceased as well as his brother, namely, Suleman P. W.
1. It may be pointed out at this stage that the only witness produced in support of this motive is Suleman P. W. No member of the Panchayat was produced to support the same. The appellant has denied that he was married to any woman by the name of Mst. Zubaida. He had stated that he was not married at all. No Nikahnama was produced before the investigating officer. Therefore, it is not established that Mst. Zubaida was wife of the appellant nor was it established that she had been abducted by Islam Din brother of the deceased. Suleman P. W. Himself, who had stated in the F. I. R.
That she was the wife of the appellant, denied the same before the trial Court where he stated that this woman was actually abducted by the appellant and had come to their village 2/3 months before the present occurrence. Thus, the statement of Suleman P. W. Made before the trial Court cannot be reconciled with Exh. P. A. i.e. His statement on the basis of which formal F. I. R. Was recorded. In our view, therefore, the motive set up in the F. I. R. Could not be proved.
Another motive was introduced subsequently at the trial stage by Suleman P. W. And, that is, that four years prior to the present occurrence,, one Muhammad Ali was murdered and the deceased was one of the P. Ws. In that murder case. It was further stated that the present appellant and the acquitted co-accused belonged to the faction of the accused persons in that murder case. They insisted on the deceased not to support the prosecution case so far as the murder of Muhammad Ali was concerned but the deceased refused to do so and it was on that account that the appellant had murdered him. This motiye has not been believed by the trial Court as is evident from line 20 onwards at page 60 of the printed paper book. This motive does not figure in the F. I. R.
And there is no explanation for the omission. The finding of the trial Court is that 4 was introduced subsequently in order to strengthen the prosecution case as against Umar Din and Asghar Ali acquitted co-accused. It may be pointed out further that in the course of investigation Umar Din and Asghar Ali, acquitted co-accused were found innocent and the investigating officer, namely, Mushtaq Ahmad S. I. P. W. Was of the opinion that they were not present on the spot at the time of occurrence. It was stated by the Investigating Officer in Exh: D. B. At page 22 of the printed paper book (when he sent up the challan under section 173, "Cr. P. C.) that the two acquitted co-accused were found innocent but he sent up the :case so that their fate may be decided by the Court. Thus, in the light of the evidence on record, in our considered view, both the motives set up were not proved and are of a doubtful nature. However, according to the statement of Rehm Din P. W. 2 it is clear that the complainant side in the instant case belongs to one faction whereas Umar Din and Asghar Ali acquitted co-accused as well as the appellant belong to another faction which are inimical to one another.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Suleman,P. W. 1, real brother of the deceased and the first informant ; Rehm Din P. W. 2, who is stated to be inimical and partisan, and Wali Muhammad P. . W. 3 who - is also stated to be inimical and partisan as well as a Police tout. The fourth eye-witness cited in the F. I. R. Was Bashir Ahmad who was given up as having been won over but who, at the instance of the accused party, was produced as C. W. 1.
Bashir Ahmad C. W. Had stated before the committing Magistrate that he was woken up by the alarm of Suleman P. W. And while he rushed to the house of Suleman P. W. He met the appellant on the way who was armed with a toka. He did not state before the committing Magistrate that he had seen the appellant causing toka injuries to the deceased. But as C. W. He stated before the trial Court that he saw that Umar Din acquitted co-accused had caught hold of the legs of the deceased and Asghar Ali acquitted co-accused was holding the arms of the deceased while the appellant was giving toka blows to the deceased. Thereafter, they scaled over the wall of the haveli of the deceased and ran away. According to him Umar Din acquitted co-accused was armed with a sofa and the appellant was armed with a toka. Thus, Bashir Ahmad C. W. Made a different statement before the committing Magistrate in which he did not support the prosecution version and, therefore, he was discarded by the prosecution and was not produced as P. W.
5. The appellant was arrested on the 20th of June, 1974, by Mushtaq Ahmad S. I. P. W. 13 whereas Umar Din and Asghar Ali acquitted co-accused were arrested by same Police officer on the 24th of June, 1974. No recovery was made from Umar Din and Asghar Ali acquitted co-accused. However, blood-stained toka P. 6 was recovered at the instance of, the appellant and taken into possession vide memo Exh. P. F. Dated the 20th of June, 1974. The attesting witnesses arc Ghulam Mohy-ud-Din P. W. 7 who is stated to be inimical, Ghulam Muhammad P. W. 8 who is stated to be a Police tout, Muhammad Bashir, not produced, and Mushtaq Ahmad S. 1. P. W.
13. Blood-stained shirt P. 7 was got removed from the person of the appellant at the time of his arrest and taken into possession vide memo Exh. P. G. Dated the 20th of June, 1974. The attesting witnesses are the same except Muhammad Bashir named above. According to the report of the Serologist Exh. P. K., at page 12 of the printed paper book, cutting from shirt P. 7 and scraping from toka P. 6 were found to be stained with human blood. In the instant case, a lantern P. 1 was also recovered from the spot anal 'taken into possession vide memo. Exh. P. C. Dated the 18th of June, 1974.
6. The appellant denied having participated in the occurrence. He disowned recoveries. He also denied motive by stating that he was an unmarried person and did not even know who Mst.
Zubaida was. He had stated that he was falsely implicated due to enmity and party faction. His verson was that Rehm Din P. W. Who belonged to the faction of the complainant party had abducted a woman by the name of Mst. Naziran alias Majeedan. She was physically lifted and taken away in a car. Subsequently, while he was going to Chak No. 22, Wali Muhammad, Rehm Din and Ghulam Mohy-ud-Din P. Ws. Had given him sofa blows and this had happened 15/16 days before the, present occurrence. His co-accused Umar Din was an eye-witness of the occurrence of abduction of Mst. Naziran alias Majeedan. The abductors in the said case had asked him to restrain Umar Din, acquitted co-accused from deposing against them. Umar Din acquitted co-accused got the girl restored. The abductors made a second attempt to abduct her but the accused party including the appellant intervened, and therefore, they were not successful to do so. He stated that he had been implicated in this murder case because of the background of enmity existing between the two factions. In defence he brought on the record documents, namely, Exh. P. G. At page 30 of the printed paper book which is the F. I. R. In respect of the abduction of Mst. Naziran alias Majeedan and in which Rehm Din P. W. Is mentioned as one of her abductors and Umar Din acquitted co-accused as an eye-witness of the occurrence ; Exh. D. D. At page 25, which is an application for cancellation of bail of certain persons belonging to the faction of the accused party who were involved in the murder of Muhammad Ali (under section 302/148/149, P. P. C.) and in which case the deceased was an eye-witness : Exh. D. E. At page 2o was the order of the Sessions Judge, Sheikhupura, dated the 29th of July, 1974 whereby the bail allowed to the accused persons previously was cancelled ; and Exh. D. F. At page 28 which is the statement of the deceased in that murder case made before the Magistrate on the 3rd April, 1973. The persons implicated in that murder case are Abdul Karim, Muhammad Ramzan, Ghafoor, Jamil, Rashid, Rehmat and Suleman.
It may be noted that the present appellant does not figure as an accused person in that case.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner : Suleman P.
W. 1 stated that on the fateful night since the buffalo of the deceased was to give a birth to a calf, the deceased slept in the courtyard of his haveli while the lantern was burning. Suleman P. W. Slept on the roof of his kacha house. There is a three feet high wall around the haveli. At midnight, the appellant armed with a toka, Umar Din acquitted co-accused armed with a sofa and Asghar Ali acquitted co-accused empty handed entered the house of the deceased from the north side saying that they would teach him 'a lesson for the abduction of the girl. On this Suleman P. W. Woke up and. Witnessed that Umar Din acquitted co-accused held the deceased by both his legs and Asghar Ali acquitted co-accused held the deceased from both of his arms. In the meantime, the appellant gave successive toka blows to the deceased which fell on his neck and face. On the alarm of Suleman P. W. Bashir Ahmad (given up as P. W. But produced as C. W. 1), Rehm Din P. W. 2 and Wali Muhammad P. W. 3 who were asleep on the roofs of their houses nearby rushed to the scene of crime and witnessed the same. The appellant and his companions ran away raising lalkaras. Suleman P. W. Came down from the roof and found that the neck of the deceased had been almost cut and he had died on the spot. Thereafter, many people from the village gathered there. Leaving behind Rehm Din, Wali Muhammad P. Ws. And Bashir Ahmad C. W. In order to guard the dead-body he proceeded to lodge the report.
8. Dr. Muhammad Aslam P. W. 4 conducted post-mortem examina--tion on the dead-body of the deceased at 6-00 p.m. On the 18th of June, 1974 and found on his person four incised wounds on the neck and the jaw. The injuries bad been caused by sharp-edged weapon and were sufficient in the ordinary course of nature to individually and collectively cause death which had resulted from the shock and haemorrhage as the neck vessels had been damaged. Probable time between the injuries and death was immediate. He stated in the cross-examination that the four injuries on the person of the deceased resulted from at least four strokes of a heavy sharp-edged weapon like a toka.
9. We have heard learned counsel for the appellant at the State expense and carefully perused the record. It has already been pointed out that the motives set out by the prosecution in F. I. R. And the one which was subsequently introduced could not be proved. But there is suffcient evidence on the record, particularly the statement of Rehm Din P. W., from which it can be inferred that there are two factions in the village opposed to one another and the complainant party belongs to one faction whereas the accused party belongs to the other. Thus, there is background of enmity between the parties and there are criminal cases pending between them. Suleman P. W. Is admittedly real brother of the deceased. Rehm Din P. W. Is --involved in the case of abduction of Mst. Naziran alias Majeedan in which Umar-Din acquitted co-accused was an eye-witness. He had stated in the cross examination that he, Suleman and Wali Muhammad P. Ws. Belonged to one party whereas Umar Din and Asghar Ali acquitted co-accused and others belonged to another party. From his testimony it is evident that all the three eye-witnesses produced in the instant case belong to a group which is inimical to the group to which Umar Din and Asghar Ali acquitted co- accused and the appellant belonged. Wali Muhammad P. W. Had stated in the cross-examination that he had appeared as P. W. In several cases in the past and, therefore, he can also be considered as a Police tout. In any case, Rehm Din P. W. Had stated before the committing Magistrate that Suleman P. W. Shouted that his brother had been murdered whereupon he and Wali Muhammad P. W. Rushed to the spot on hearing noise and saw that Habib deceased was lying murdered. Thus, it appears that since it was a night occurrence, the eye-witnesses arrived on the spot after the murder had been committed and they found the deceased lying murdered. We have already pointed out that Bashir Ahmad C. W. Did not support the prosecution version before the committing Magistrate and, therefore, was given up as won over. However, he was, produced as C. W. At the trial stage and there he supported the prosecution version. Since he had made two contradictory statements, no reliance can be placed on his testimony. In our considered opinion, the eye-witnesses produced in the instant case are inimical and partisan and consequently it would not be safe to rely on their testimony unless and until corroboration was forthcoming from some independent source. At the trial stage Suleman P. W. Refrained to mention Bashir Ahmad C.
W. As a witness of the occurrence. Further, all the three eye-witnesses produced ascribed specific parts to the two acquitted co-accused. But the Police found that the two acquitted co-accused were innocent and were not even present on the spot as the time of occurrence. The trial Court has not relied on the ocular testimony respecting participation of the two acquitted co-accused. In order to find corroboration of their testimony in respect of the participa--tion of the appellant in the commission of crime, we have carefully considered the recovery evidence. The witnesses of recoveries are Ghulam Mohy-ud-Din P. W. 7, who has stated in the cross-examination that 15/20 days before the present occurrence his cattle beads trespassed into the field of the appellant and the appellant had given him dang blows. According to the statement of the appellant this witness belonged to the faction of the complainant party. In our view he is an inimical witness. Then there is Ghulam Muhammad P. W. 8, who had stated that he joined the investigation with the Police usually and was a P. W, in several cases: Thus, this witness sounds to be a Police tout. Ghulam Mohy-ud--- Din P. W. Had stated that blood-stained toka P. 6 was recovered in his presence but he does not say anything about the recovery of blood-stained shirt P.
7. On the other hand, Ghulam Muhammad P. W: states that both Toka P. 6 and shirt P. 7 were taken into possession i-- his presence. It is difficult to believe that the appellant was wearing a human blood--stained shirt for two days after the occurrence and when he was formally arrested on 20th June, 1974, he was wearing the same. Since the --witnesses of these recoveries are either inimical or Police tout, we are reluctant to place any reliance on them. In our considered view, the recoveries are not free from doubt. If the site plan is studied, it reveals that Suleman P. W. Was asleep at a distance of about 15 feet from the deceased whereas the house of Rehm Din P. W, was at a considerable distance i. e. About 100 feet. It was admittedly a dark night. It is also evident from the evidence on record that the occurrence might have taken place between 1-00 and 2-00 a. m. Of that night when everyone was fast asleep. If the assailant of the deceased was a single person, he could have very easily scaled over the boundary wall which was not higher than three feet and after giving 3 or 4 toka blows to the deceased while he was asleep, he could have run away un- witnessed by any one ; and it was possible that Suleman P. W. Discovered the murder of his brother afterwards when he raised alarm. Our view is that the possibility could not be ruled out that it was an un-witnessed occurrence in the darkness of the night and the assailant of the deceased managed to escape while no one identified him. But since there was a background of enmity between the parties, the appellant and his companions were implicated due to suspicion. It is evident from the record that the deceased was an eye-witness in the murder case of Muhammad Ali in which the accused persons were Muhammad Ramzan etc. The present appellant was probably implicated not because any motive could be established as against him but since he was stated to be belonging to the faction of his uncle, namely. Umar Din acquitted co-accused and this faction was opposed to the complainant party. Any way, the ocular testimony in the instant case is uncorroborated and not reliable. In our considered view, therefore: in the peculiar circumstances of the case. If the ocular testimony had been disbelieved in respect of Umar Din and Asghar Ali acquitted c6-accused, who had been assigned specific parts, it was not proper on the part of the trial Court to have convicted and sentenced the appellant on the basis or A the same ocular testimony when the so-called corroborative evidence was not free from doubt. In our opinion, it was a case in which the appellant should have been given the benefit of doubt. The result of the above discussion is that the prosecution has not succeeded in establishing its case as against the appellant beyond reasonable doubt. Therefore, while giving the benefit of doubt to the appellant we set aside his conviction and sentence and acquit hint. His appeal is accepted. He shall be released from jail forthwith if not wanted in any other case.
10. The death sentence is not confirmed. 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.