Karamat Ali and Waris Ali sons of Faqir Muhammad, Ehsan Baig Null Muhammad Siddique Baig and Javed Iqbal son of Muhammad Ismail were tried by an Additional Sessions Judge of where under section 302/34, P. P. C. For the murder of Muhammad Afzal deceased and convicted under the said section and sentenced to life imprisonment each with a fee of Rupees Five Hundred (Rs. 500) each or in default of payment of fine to undergo further six months' rigorous imprisonment each. It was also ordered that out of the fine, if realised, half of it would be paid to the legal heirs of the deceased. The joint appeal (Cr. A. 502 of 1980) preferred Baig and Javed Iqbal and the joint appeal (Cr. A. No. 572 of 1980) preferred by Karamat Ali and Waris Ali against their conviction and sentences, to--gether with the private revision (Cr. R. 435 of 1980) filed by Shahabud Din against all the convicts for enhancement of their sentences and for the award of compensation under section 544-A, Cr. P. C. Are all now before me for disposal.
2. The brief facts of the case as submitted by Muhammad Aslam P. W. 5 complainant, in his statement Exh. P. C. Recorded on 12-4-1976, are that he was living with his uncle Shahabud Din P. W.
12 in Muslim Colony, Samanabad, Lahore, Five/six months back. Ehsan Baig accused complained to Shahab Din P. W. 12 that his son Muhammad Afzal deceased was teasing his sister whilst passing in the way and he threatened that if Muhammad Afzal did not desist from his behaviour, he would meet a very bad fate. Shahabud Din P.-W. 12, after consoling Ehsan Baig accused, sent him away. A few days before the occurrence, all the four accused threatened Muhammad Afzal deceased that if he passed near their home he would be killed. On 11-4-1976 at about 9-00 p.m. When Muhammad Aslam P. W. 5, Muhammad Rafiq P. W. 6, and Rana Muhammad Hanif P. W. 9, were going on Bastami Road, they heard a noise near the Tandoor of Karamat Ali and Waris Ali accused and when they reached the Tandoor they saw all the four accused giving a merciless beating to Muhammad Afzal with sotas and dandas. The three witnesses intervened and separated Muhammad Afzal deceased from the accused and brought him to his house. During the night time the accused tried to secure pardon through the intervention of some respectables. As the condition of Muhammad Afzal deceased became very serious in the morning, Muhammad Aslam P. W. 5 got him admitted in Mayo Hospital, Lahore.
3. Dr. Nasrullah Khan P. W. 1 examined Muhammad Afzal at 12-15 p.m. On 12-4-1976 and found one incised wound in the apace between index and middle finger of the left hand and seven multiple contusions on various parts of his left arm and both legs. All the injuries were kept under observation. The probable duration of the injuries was within a day. Apart from the incised injury in- between the fingers, which was caused by sharp-edged weapon, the rest were declared to be caused by blunt weapons. Dr. Nasrullah Khan immediately reported the arrival of Muhammad Afzal deceased in the hospital to the police. Sh. Muhammad Siddique Inspector P. W. 13 on receipt of ruqqa Exh. P. W. 13/ 1, reached the hospital at 12-30 noon, where Muhammad Aslam P. W. 5 met him and gave him statement Exh. P. C. About the incident, which he had already written out earlier. On the basis of the said statement, formal F. I. R. Exh. P. C. 1 was recorded at Police Station-Nawankot at 1.00 p.m. By Shababud Din P. W. 3.
4. The Investigating Officer could not record the statement of Muhammad Afzal deceased in the hospital, as he was not in a fit condition to make a statement. The Investigating Officer then proceeded to the spot and inspected the place of occurrence.
5. On 14-4-1976 Ihsan Baig, Karamat Ali and Waris Ali accused were arrested by Sh. Muhammad Siddique Inspector P. W.
13. Karamat Ali and Waris Ali accused led to the recovery of sticks P. 1 and P.
2 from their houses, which were taken into possession by the police vide memos. Exhs. P. E. And P. F.
Respectively. The said recoveries were witnessed by Shabbir Hussain P. W. 11, Sh. Muhammad Siddique Inspector P. W. 13 and Muhammad Islam. (given on P W)
6. On 16-4-1976 Javed Iqbal accused was arrested by Sh. Muhammad Siddique Inspector P. W. 13.
At 6-00 p.m. The same day Muhammad Afzal deceased breathed his last in Mayo Hospital.
7. On 17-4-1976 at 11-00 a.m. Dr. Tahir Anees P. W. 7 conducted the post-mortem examination on the dead body of Muhammad Afzal deceased and found two contused swellings on the head, one abraded contusion on the forehead, nine multiple contusions on the left arm and both the legs, two contused swellings on both the hands, one abraded contusion on the right lumbar region and an incised wound between the left index finger and middle finger. The doctor also found four surgical stitched wounds. The injuries other than surgical injuries, particularly the head injuries were declared sufficient in the ordinary course of nature to cause death. Probable time between injuries and death was declared to be a few days and between death and post-mortem examination about 12 to 14 hours.
8. On 18-4-1976 Ihsan Baig and Javed Iqbal accused led to the recovery of a blood-stained Khoncha P. 3 and a stick P. 4 from their respective houses, which were taken into possession vide Memos. Exhs. P. G. And P. H. Respectively. The said recoveries were witnessed by Shabbir Hussain P.
W. 11, Sh. Muhammad Siddique P. W. 13 Muhammad Islam (given up P. W).
9. After completing the necessary investigation, the challan against the accused was sent up.
10. At the trial, all the four accused denied the allegations levelled against them. In his statement under section 342, Cr. P. C., Ihsan Baig accused stated that :- "Afzal deceased was a vagabond, drunkard and a desperate person. He was neglected by his father. He used to assault the people of the Ilaqa and extract money by force. On the night of occurrence he was drunk and was causing harassment in the Mohallah. The police was intimated, who came there and gave him beating and took him to the police station where he was also given beating. In consequence of which the deceased later on died. The police to save their own skin and with the assistance of the complainant party fabricated this case against me."
Karamat Ali and Waris Ali accused adopted the statement of Ihsan Baig accused. Javed Iqbal accused, however, submitted a different version as follows "My father and Shahab Din had got business rivalry since long before the occurrence. My father owned five residential houses in Muslim Colony. He owned two brick kilns and one hotel namely, Ragina on Mall Road. Shahab Din P. W. Has been very jealous of our family status and prosperity in the business. He is a close friend of S. I. Muhammad Siddique P. W. They have both conspired and have involved me falsely in this case, being the dearest son of my father. Muhammad Hanif P. W. Is also very inimical to me. He bad been helping the prosecution of the false case against me under section 307, P. P. C. Which was pending in the Court of Mr. Abdul Hakeem, Assistant Commissioner, Lahore in which I was acquitted. I produce certified copy of the statement of Abdul Latif P. W. In that case. It is Exh. D. G.
11. The learned trial Judge, relying upon the motive, the ocular testimony furnished by Muhammad Ralique P. W. 6 and Rana Muhammad Hanif P. W. 9, the recoveries and the medical testimony, convicted all the four accused, as stated in para. 1 above. The learned trial Judge, however, did not rely upon the testimony of Muhammad Aslam P. W. 5 as regards the motive, the occurrence and the dying declaration and that of Shahab Din P. W. 12 as regards the dying declaration.
12. I have heard the arguments of the learned counsel for the appellants, the complainant and the State and have perused the record. Muhammad Aslam P. W. 5 and Shahab Din P. W. 12 were disbelieved by the trial Judge. The learned counsel for the complainant and the State did not seriously contest the said findings as regards Shahab Din P. W. 12 but did press into service the evidence of Muhammad Aslam P. W. 5 as regards the occurrence. His evidence will, therefore, be taken into account at the proper place.
13. The evidence as regards motive is mainly furnished by Shabab Din P. W. 12, father of the deceased and supported by Muhammad Aslam P. W.
5. According to the testimony of Shahab Din P. W. 12, about five/six months before the occurrence, Ihsan Baig appellant had visited him at his house at about 11-00 a.m. And had complained against the conduct of his son Muhammad Afzal deceased who used to tease his sister on the way in the Mohallah. He pacified Ihsan Baig appellant and undertook to tell his son to desist from his conduct and assured the appellant that the deceased would not repeat the same in future. Ihsan Baig appellant, however, gave him a threat at the time of his departure that in case the deceased failed to mend himself he would not be saved as Javed Iqbal appellant was his friend. Shabab Din P. W. 12 has been disbelieved by the trial Judge on a number of important matters, such as the deceased being taken from his house before the occurrence by Waris and Karamat Ali appellants, the dying declaration being made by the deceased imputing the various roles played by the four appellants in injuring him and Ismail, father of Javed Iqbal appellant, accompanied by Muhammad Bakhsh, Advocate and Fateh Muhammad P. W. Coming to visit him at 1 p.m. On 12-4-1976 to compromise the matter. It is, therefore, pleaded that his solitary testimony with regard to the motive involving Ehsan Baig and Javed Iqbal appellants should not be believed without corroboration. There is no prior enmity between Shahab Din P. W. 12 and Ehsan Baig or Javed lqbal appellant so as to induce Shahab Din P. W. 12 to falsely implicate the latter two, but considering the fact that he has been disbelieved by the learned trial Judge on three other important matters on which he ventured to offer testimony, and which ridings of the trial Judge I fully endorse and approve, I cannot accept the solitary testimony of Shahab Din P. W. 12, considering that Muhammad Aslam P. W. 5, who also ventured to support Shabab Din P. W.
12 on the motive, was also disbelieved in that respect and also as to his role as an eye witness which he had attempted to assert. Where a witness brazenly attempts to assert facts, which are ultimately disbelieved, he is himself to blame if on certain others, he is disbelieved.
14. The ocular account in this case is furnished by Muhammad Aslam P. W. 5, Muhammad Ratiq P.
W. 6 and Rana Muhammad Hanif P. W. 9 Muhammad Aslam P. W. 5 is a maternal cousin of the deceased, whereas the other two are not related to the deceased. Ostensibly none of the three eye-witnesses have any enmity or animus against any of` the appellant. However, for reasons given by the learned trial Judge in his appraisement of the evidence under the heading --- DirectEvidence---, Muhammad AslamP. W. 5 has been disbelieved as an eye-witness. The detailed and cogent reasoning given by the learned trial Judge is based on the evidence on the record and proper inferences flowing therefrom, which findings I fully endorse and approve. I would have very much liked to discuss this aspect of the case and to record the said findings myself, but to do so would only mean the repetition of the appraisement as found by the learned trial Judge, which would only drag a greater length of chain. I fully approve the view taken by the learned trial Judge that Muhammad Aslam P. W. 5 was not present at the spot and that he was not a witness to the occurrence and that at best he can be credited with the role of taking the deceased to the hospital the next day on 12-4-1976. This now leaves me with the testimony of Muhammad Rafique P. W. 6 and Muhammad Hanif P. W.
9. Muhammad Rafique P. W. 6 at the time of occurrence resided in Khalid Street in Muslim Colony, Sawtanabad, and Muhammad Hanif P. W.
9. Resided in Gulzeb Colony, Samanabad. Both these witnesses, though ostensibly disinterested, subscribed to the fact that on the night of occurrence at 9-10 p.m. They, with Muhammad Aslam P. W. 5, were on Bastami Road, Muslim Colony, when fortuitously they heard noise near the Tandoor of Waris Ali and Karamat Ali appellants and on going there found the four appellants beating Muhammad Afzal deceased with dandas and a Khoncha, that they then saved the deceased from further assault and carried him to his house. Muhammad Rafique P. W. 6 also stated in cross-examination that Shahab Din P. W. 12 father of the deceased was present in his house when they took the deceased to his house. The learned trial Judge has correctly held that Muhammad Aslam P. W. 5 was not present at the spot. In these circumstances, it cannot be doubted that the testimony of Muhammad Rafique P. W. 6 and Muhammad Hanif P. W. 9 on the facts submitted above is untrue.
In these circumstances, before it can be decided whether their testimony can be accepted safely without corroboration, a mere deeper appraisal of their evidence is first required. In the first instance, it is nowhere stated by any of these two witnesses what brought them together with Muhammad Aslam P. W. 5 on Bastami Road and what was the purpose of their getting together and where they were destined for. In cross-examination, Muhammad Rafique P. W. 6 stated that he did not know Muhammad Hanif P. W. 9 prior to the occurrence, but he knew Muhammad Aslam P.
W. 5 and Shahab Din P. W. 12 about two years prior to the occurrence and Muhammad Afzal deceased about 2/3 months prior to the occurrence. He denied the suggestion that be had been a personal servant of Shahab Din P. W. 12 for the last fifteen years. Muhammad Hanif P. W. 9 in cress- examination admitted that he knew Shahab Din P. W. 12 when he started living in his neighbourhood as his tenant in 1965, that he knew Muhammad Aslam P. W. 5 from the same year and that he met Muhammad Rafique P. W. 6 for the first time at the time of occurrence. Since the presence of Muhammad Aslam P. W. 5 at the spot on the day and time of occurrence has to be discarded, the question how Muhammad Rafique P. W. 6 and Muhammad Hanif P. W. 9 got together somehow remains a mystery, if the common denominator, i.e. Muhammad Aslam P. W, 5, is omitted from the scene. In these circumstances, the question whether they were together on Bastami Road at the relevant time is one of doubt. If it was their case that they were passers-by and came upon the scene by chance, it was possible to believe that, but they have introduced Muhammad Aslam P. W. 5 as a common friend to bring them together and this fact being disproved, their presence at the spot even independently is open to doubt. Certain other features in the evidence also show that Muhammad Rafique P. \V. 6 and Muhammad Hanif P. W. 9 do not appear to be as disinterested as they would want me to believe, but appear to be of a partisan character. In cross-examination Muhammad Rafique P. W. 6 admitted that he went to the house of Shahab Din P. W. 12 on the next day at about 9/10 a.m., that .He came to know that Muhammad Aslam P. W. 5 had taken Muhammad Afzal deceased to the hospital, that he went to the hospital at about 12-00/12-30 noon, that the police came at the hospital at about 1-00 p.m., that he gave a statement before Muhammad Siddique, S. I. Inspector P. W. 13 at 1 p.m. In the hospital, that the F. I. R.
Was recorded at the Mayo Hospital at 1-30 p.m., that he was inside the Emergency Ward when Muhammad Aslam P. W. 5 gave his statement to the Police, that he stayed outside the Emergency Ward alone for about two hours and that he remained in the hospital for about 1/2 hour. Rana Muhammad Haneef P. W. 9 also stated in cross-examination that he went to the house of the deceased the following day at about 7/8 a.m., that he learnt from the women-folk that Muhammad Afzal deceased had been removed to the hospital, that he came back to his house and; therefore, went to Mayo Hospital at 2-00/2-30 p.m., that his statement was recorded by the S. H. O. In the hospital at about that time, that he stayed in the hospital for about 30/45 minute, that he came with the Police from the hospital to the spot at about 4/5 p.m., that he returned to his house from the spot at about 6-00/6-30 p.m. And that he remained with the Police for 4/5 days during investigation. This conduct of both the eye-witnesses shows that they were very much of a partisan character, even though Muhammad Rafique P. W. 6 denied that he was called from his village by Shahab Din P. W. 12 as he was his private servant and both denied the fact that they had not seen the occurrence and had been falsely introduced as eye-witnesses. It cannot be denied that the statement Exh. P. C. Was lodged after almost fifteen hours delay by Muhammad Aslam P. W. 5 for which there is no proper explanation. This reacts very strongly against the prosecution case, considering that Shahab Din P. W. 12, the father of the deceased, had both a telephone and a car which could have been pressed into service for the lodgement of a prompt report. The goshwara Exh. D/1 of the police station concerned shows that no fresh Zimni with regard to the instant case was written after Zimni No. 2 during the period 13-4-1976 to 18-4-1976. In the light of the fact that the testimony of Muhammad Aslam P. W. 5 and Shahab Din P. W. 12 has been disbelieved, the further inference that the delay in the lodgement of the F. I. R. Was used to fabricate a story or to trump up eye-witnesses or falsely involve persons who bad not participated in the occurrence, cannot be totally excluded. I feel that the occurrence has occurred in a totally different way and under different circumstances. Taking all circumstances into consideration, I am of the considered view that Muhammad Rafique P. W. 6 and Muhammad Hanif P. W. 9 are partisan and not totally disinterested witnesses, that there is no proper and sufficient explanation for their being present at the spot and that whilst having some reservation about their actually having witnessed the occurrence, I would look for very strong corroboration, almost sufficient by its own probative force to prove the participation of each appellant in the crime in instance, before accepting their testimony.
15. The corroboration in the instant case is offered by the recoveries of sticks P. 1, P. 2 and P. 4 at the instance of Karamat Ali, Waris Ali and Javed lqbal appellants and the recovery of a blood-stained Khoncha P. 3 at the instance of Ehsan Baig appellant. The sticks P. 1, P. 2 and P. 4 recovered/ at the instance of Karamat Ali, Waris Ali and Javed Iqbal appellants from their respective houses are ordinary sticks normally found in ordinary home; No blood oozed out from any injury of the deceased. The sticks which were recovered were not blood-stained. In any case the recoveries of the sticks do not furnish the strong and independent corroboration which, I desire. Further, the recovery of the blood-stained Khoncha P. 3, does no also advance the prosecution case, as initially Muhammad Aslam P. W.5 in his statement Exh. P. C. Did not refer to Ehsan Baig appellant being armed with a Khoncha. Rather, he was shown to be armed with a stick. It appears that it was only after the medico-legal report was obtained by the police showing the deceased having one minor sharp-edged injury between the left index and middle finger, that the Khoncha was introduced in the hands of Ehsan Baig appellant. As already stated above, the Goshwara of the police station concerned shows that no case diary with regard to the instant case (F. I. R. No. 170) was prepared from 13-4-1976 to 18-4-1976. In these circumstances, the recovery of the blood-stained Khoncha does not ring true. Taking all circumstances into consideration, I cannot rely upon the recoveries as such strong and independent corroboration which by its own probative force is sufficient to connect each of the appellants with the crime in instance.
16. As regards the medical testimony furnished by Dr. Nasrullah Khan P. W. 1 and Dr. Tahir Anees P.
W. 7, the number and nature of injury found on the person of the deceased do show that three to four persons armed with dandas and a Khoncha could have caused the same, but the injuries do not disclose the identity of the assailants and the medical evidence, therefore, does not stand up to the test of corroboration. Which I hive set for this case.
17. For the foregoing reasons, taking all circumstances into consideration, I am of the view that the prosecution has not been able to prove its case to the hilt against all the four appellants. In these circumstances, the convictions and sentences of the appellants are not proper.
18. For the foregoing reasons, this appeal is accepted and the convictions and sentences of the appellants are set aside. All the appellant shall be released forthwith, if not required in any other case. Fines, if any, recovered from them, shall be refunded to them. The revision petition I (Cr. R.
435/80) filed by Shahabud-Din against all the convicts has no merit and is dismissed in limine.