Liaqat Ali, s6nof Mukhtar Ali, aged 25 armed with laths, Barkat Ali, son of Ghulam Hadhr, aged 60, armed with laths, Inyat Ali, son of Allah Rakha, aged 70, armed with lath! And Bashir Ahmad, son of Yusuf Ali, aged 32, armed with laths, have been convicted under section 302/34, P. P. C. For the murder of Abbas Ali, aged 35, and each of them was sentenced to life imprisonment plus fine of Rs.
1,000 or in default to undergo six months' rigorous imprisonment with the direction that if the fine was realised from them, it be paid as compensation to the heirs of the deceased. The judgment has been passed as against them by the Additional Sessions Judge, Faisalabad, on 20-12-1979.
Two of their companions, namely Akbar Ali, son of Allah Rakha, armed with lathi, and Bashir Ahmad, son of Hakim Ali, armed with lathi, were given the benefit of doubt and acquitted as they had also been declared innocent by the police in the course of investigation. All the members of the accused party are stated to be collaterals except Bashir Ahmad, son of Hakim Ali, acquitted co- accused. From amongst them, Inayat Ali convict and Akbar Ali, acquitted co-accused are real brothers. The appeal of the convicts is being taken up alongwith-Criminal Revision No. 194 of 1980 for enhancement of sentence awarded to the appellants from life imprisonment to death and it is being disposed of by this judgment.
2. The occurrence took place at 5 a. m. On 11-7-1977 near the canal bridge within the area of Chak No. 202/GB at a distance of ten miles from Police Station Mamun Kanjan, District Faisalabad.
Statement (Exh. P. F.) was made by Mahmud Ahmad (P. W. 9), brother of the deceased, at 8-45 a. m. On the same day at the Civil Hospital., Samundari and it was recorded by Muhammad Nawaz A.
S. I. (P. W. 12) who had arrived there on receiving information from the Medical Officer. On the basis of the aforesaid statement formal F. I. R. (Exh. P. F./1) was registered on the same day at 10-15 a. m.
At the Police Station by Muhammad Ashraf M. H. C. (P. W. 5).
3. The motive for crime as stated in the F. I. R. Is that two years before the present occurrence Mst.
Shamshad Begum, sister of Liaqat Ali appellant, was abducted by -the deceased who bad thereafter married her. A case of abduction .Had been registered against the deceased at the instance of the accused party and his trial was pending. On 9-7-1977 while the deceased was returning from his duty, he had a quarrel with Liaqat Ali appellant and Akbar Ali, acquitted co- accused, who used harsh language and warned him that they would deal with him since he had challenged their honour and was walking about proudly. However, they were separated and the matter was patched up by Niaz Ali (P. W. 8) and Bashir Ahmad; son of Jhandu (not produced). This incident was reported by the deceased to his brother Mahmud Ahmad (P. W. 9) complainant. The witnesses of the motive version are Mahmud Ahmad and Niaz Ali P. Ws. It may be pointed out at this stage that Liaqat Ali appellant in his statement before the trial Court has admitted that the deceased had abducted Mst. Shamshad Begum and that accordingly a case was registered as against him of abduction which was pending trial. Consequently, in my view the motive set up by the prosecution is established.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Mahmud Ahmad (P. W. 9), brother of the deceased, Arshad Ali (P. W. 10), relative of the deceased, and Nazir Ahmad (P. W. 11)- who is stated to be hostile to the accused party. Sakhawat Ali was cited as an eye-- witness but was not produced. Learned counsel for the appellants pointed out that two of these eye-witnesses namely, Arshad Ali and Nazir Ahmad P. Ws. Have not been relied upon by the trial Court. Only Mahmud Ahmad P. W. Has been relied upon. It may be pointed out at this stage that Mahmud Ahmad P. W. Attended to the deceased while he was in injured condition and in the course of doing so his shirt (Exh. P. 10) became blood-stained. At the time of the registration of the case the shirt (Exh. P. 10) of Mahmud Ahmad P. W. Was taken into possession by the Police and according to the report of the Serologist (Exh. P. R.) it was stained with human blood. Consequently the presence of Mahmud Ahmad P W. At the time of occurrence alongwith the deceased is stated to be established and it is for this reason that the trial Court has relied upon the testimony of Mahmud Ahmad P. W. As a natural witness.
5. Liaqat Ali, Inayat Ali and Barkat Ali appellants were arrested on 13-7-1977. Akbar Ali and Bashir Ahmad, son of Hakim Ali, acquitted co. Accused, were arrested on 22-7-1977, whereas Bashir Ahmad appellant was arrested on 26-7-1977. They were arrested by Sardar Khan S. I. (P. W. 13). No recoveries had been effected from the two acquitted co-occused, namely, Akbar Ali and Basbir Ahmad, son of Hakim Ali. However, from Liaqat Ali appellant was recovered lathi (Exh. P. 8) which was blood-stained and taken into possession vide Memo. Exh. P. K. From Barkat Ali appellant was recovered lathi (Exh. P. 6) which was blood-stained and was taken into possession vide Memo. Exh.
P. H. And from Inayat Ali appellant was recovered lathi (Exh. P. 7) which Was blood-stained and was taken into possession vide Memo. Exh. P. J. These recoveries were effected on 17-7-1977. From Bashir: Ahmad appellant was recovered danda beri (Exh. P. 9) which was blood-stained and was taken into possession vide Memo. Exh. P. L. Dated 27.7.1977. All the recoveries have been attested by Niaz Ali (P. W. 8), Yusuf Ali (not produced) and Sardar Khan S. I. (P. W. 13). The report of the Serologist (Exh. P. R.) regarding the lathis namely, Exh. P. 8, P. 6, P. 7 and P. 9 shows that they were stained with human blood.
6. The appellants as well as the acquitted co-accused in their statements before the trial Court denied having participated. In the occurrence, and those from whom recoveries were effected disowned the same. They stated that they had been falsely implicated due to previous enmity.
They pleaded innocence but did not produce any defence except Akbar Ali acquitted co--accused who produced three D. Ws. In order to support his plea of alibi. Liaqat Ali appellant at least.
Admitted the motive version to the extent that the deceased had abducted his sister and because of the 4bduction a case had been registered against him which was pending. The abduction had taken place two years prior to the present occurrence. It may-be pointed out that at this stage Akbar Ali as well as Bashir Ahmad son of Hakim Ali, acquitted co-accused, were found innocent by the police in the course of investigation. It appears that the trial Court had acquitted them by giving them the benefit of doubt not only for the reason that they were found innocent in the course of investigation by the police but also because no recovery had been made from them or in other words, the ocular testimony implicating them in the commission of crime was not being corroborated by the recovery evidence in respect of them.
7. Dr. Ghulam Rasul (P. W. 2) medically examined the deceased, while he was still alive, at 7-20 a. m.
On 11-7-1977, and found on his person 41 injuries in the form of contused wounds on the head and other parts of the body. While he was taking down his injuries, the deceased expired at about 8 a. m. The injuries on his person indicated that he had been beaten up mercilessly and all the injuries had been caused with blunt weapon. Apparen--tly it was not the job of a single person because such number of injuries could have only been caused by a number of persons. On the same day at 11.00 a- m., the same Medical Officer conducted the post-mortem examination on the dead body of the deceased and noted the same injuries on his person. He stated that on opening the abdomen the stomach was found containing about three ounce of semi-digested liquid food material. The bladder was healthy and empty. This indicated that the occurrence had taken place when he had woken up in the morning, had passed urine and even had his breakfast in the form of lassi etc. As it was summer. According to the Medical Officer, six injuries sustained by him were grievous, three injuries on the head were individually and three other injuries on the other parts of the body collectively were sufficient to cause death in the ordinary course of nature, whereas the rest of the injuries were simple in nature. All the injuries had been inflicted with blunt weapon. Death in his opinion was due to haemorrhage, both external and internal, shock and compression of brain caused by three head injuries and three other injuries. The time between the injuries and death was within three hours.
8. In the F. I. R. The occurrence is reported to have taken place in the following manner: On the fateful day, the deceased alongwith his real brother, namely, Mabmud Ahmad P. W. Was proceeding in the morning to the D. C. Office, Lyallpur for his duty, whereas Mahmud Ahmad P. W.
Accompanied him in order to go to Samundari on a private business. When they arrived near the canal bridge, the appellants and the acquitted co-accused armed as described above, emerged out of sarkandas. Liaqat Ali appellant raised a lalkara to the effect that the deceased would not be spared and he would be taught a lesson for having damaged their honour. Liaqat Ali appellant thereafter gave a lathi blow which fell on the head of the deceased. The second lathi blow was given by Akbar Ali, acquitted co-accused, which also fell on his bead and the third lathi blow was given by Barkat Ali appellant which likewise fell on the head of the deceased. On receiving these injuries the deceased fell down on the ground. While in the fallen condition the other appellants gave successive lathi blows to him on the head, legs, arms and other parts of the body, while Inayat Ali appellant went on raising lalkara to the effect that he should be finished. He also warned Mahmud Ahmad P. W. That if he came near, be would meet the same fate. On the alarm raised by Mahmud Ahmad P. W., Arshad Ali (P. W. i0), Nazir Ahmed (P. W. 11) and Sakhawat Ali (not produced) were attracted to the scene of crime and witnessed the same. They appealed to the accused party that they should spare the deceased but the accused party did not listen to them and went on giving successive lathi blows to the deceased who became unconscious. Thereafter, they left him and ran away. The deceased was brought to the Civil Hospital, Samundari, in an extremely serious unconscious condi--tion but he died while he was being medically examined by the Medical Officer. The police arrived there and the statement of Mahmud Ahmad P. W. Was recorded who at the time of recording his statement also presented the human blood-stained shirt which he was wearing and which was taken into possession by the police.
9. I have heard learned counsel for the parties and carefully perused the record. It may be stated at the outset that the motive for crime, which is being supported by Niaz Ali and Mahmud Ahmad P.
Ws. As well as by Liaqat Ali appellant, is established. Liaqat Ali appellant has admitted in his statement before the trial Court that the deceased had abducted Mst. Sbamshad Begum, his sister, and that accordingly a case was registered as against him of abduction which was pending trial at the time of the occur--rence. It is also stated by Niaz Ali and Mahmud Ahmad P. Ws. That two days before the present occurrence while the deceased was returning from his duty, he had a quarrel with Liaqat Ali appellant and Akbar Ali, acquitted co-accused, who used harsh language and warned bin that they would deal with him since he had challenged their honour But they were separated and the matter was patched up by Niaz Ali P. W. Alongwith one other. This incident was reported by the deceased to his brother Mahmud Ahmad P. W. So, it is clearly established that there exists enmity between the parties and the root cause of the same is abduction by the deceased of the sister of Liaqat Ali appellant two years prior to the present occurrence. It may be pointed out at this stage that all the members of the accused party are collaterals except Bashir Ahmad son of Hakim Ali, acquitted co-accused. Learned counsel for the appellants while commenting on the ocular testimony, in the instant case, has vehemently argued that none of the eye-witnesses was present at the time of the occurrence. It is stated that two out of the three eye- witnesses produced by the Prosecution, namely, Arshad Ali and Nazir Ahmad P. Ws., had not been relied upon by the trial Court. So far as Mahmud Ahmad P. W. Is concerned, although the trial Court has accepted his testimony as a natural witness, it is argued that he was the real brother of the deceased and interested as well as put up witness. So, the first argument of the defence is that the eye-witnesses were not present at the time of occurrence and being an unwitnessed occurrence, their testimony should be completely discarded. Furthermore, since there was background of enmity, the complainant side had falsely implicated as many members of the accused party as possible in the commission of crime mainly on suspicion. It was next argued that even if these witnesses were to be considered to have been present on the spot, then the fact must not be ignored that Mahmud Ahmad P. W. Was real brother of the deceased, Arshad Ali P. W. Was a close relative of the deceased and Nazir Ahmad P. W. Was stated to be hostile to the accused party. Two out of them have not been believed by the trial Court, namely, Arshad Ali and Nazir Ahmad P. Ws.
The only one who remains in the field is Mahmud Ahmad P. W. Who is real brother of the deceased and being an interested witness, his testimony should be considered with abundant caution. It was next argued by learned counsel for the defence that so far as Mahmud Ahmad P. W. Is concerned, his testimony has not been relied upon in respect of the two acquitted, co-accused namely, Akbar Ali and Bashir Ahmad, son of Hakim Ali. It may be recapitulated that to Akbar Ali acquitted co- accused, he has ascribed a specific part in the commission of crime. Both the acquit--ted co- accused were found innocent in the course of investigation and no recovery was effected from them. Thus, the reasoning of learned counsel is that Mahmud Ahmad P. W., the only eye-witness who had been relied upon by the trial Court, being an interested witness, should either not be believed at all or his testimony should be subjected to scrutiny. It was then argued that the recovery evidence, in the instant case, was not free from doubt. The reasoning is that all the recoveries, in the instant case; made from the appel--lants, namely, human blood-stained lathi (Exh. P. 5), human blood-stained lathi (Exh. P. 6), human blood-stained lath! (Exhs. P. 7) and human blood--stained danda beri (Exh. P. 9) were recovered from spots which were accessible to the general public. Next it is argued that lathis (Exbs. P. 6, P. 7 and P.8) were recovered six days after the occurrence, whereas danda beri (Exh. P. 9) was recovered sixteen days after the occurrence.
According to learned counsel these articles could have not remained blood stained after such a long time particularly danda beri (Exh. P. 9). It was submitted that since this was the position, the recovery evidence was not a reliable Piece of corroborative evidence of the ocular testimony provided by Mahmud Ahmad P. W. Who was a highly interested witness. It was then argued that the prosecution version was even otherwise improbable. Learned counsel submitted that two of the appellants, namely, Barkat Ali and Inayat Ali, are respectively aged 60 and 70. They being old men, could have not wielded lathis to cause injuries to the deceased particularly when two other younger members of the family, namely, Liaqat Ali and Bashir Ahmad appellants were alleged to be causing injuries to the deceased. It was also argued that two of the acquitted co-accused, in the instant case, had definitely been falsely implicated and that if the reasoning of learned counsel is to be followed, then no line could be drawn between the guilty ones and the innocent ones, in the instant case, and that as it was uncertain as to who had or who had not participated in the commission of crime, all the appellants deserved to be given the benefit of doubt.
Learned counsel for the complainant, on the other hand, argued that the accused party had a motive to commit the crime and the motive is clearly established in-the instant case. It was next submitted that out of the eye--witnesses Nazir Ahmad P. W. As revealed from his cross- examination, was probably hostile to the accused party but there was no reason why the testi-- mony of Mahmud Ahmad and Arshad Ali P. Ws. Should not be accepted. According to learned counsel, Mahmud Ahmad P. W. Was a natural witness of the occurrence and his presence on the spot is established. His being real brother of the deceased would not make him an intereste4 witness unless and until it is established that he had hostility towards the accused party. It was also 'submitted that Arshad Ali P. W. Was only distantly related to the deceased and that otherwise he was an independent witness whose testimony should be accepted. It was argued that even if he is considered to be a relative of the deceased, there was nothing on the record to show that he had any animosity with the accused party or had a motive to falsely implicate them. According to learned counsel, it was not an unwitnessed occurrence. Mahmud Ahmad P. W. Was certainly present on the spot and had witnessed the same as a natural witness and so was Arshad Ali P. W.
Who had reached the spot on the alarm of Mahmud Ahmad P. W. It was next pointed out that even if the testimony of the eye-witnesses was to be considered as interes--ted, then the rule is that it should not be accepted without corroboration and corroboration was. Forthcoming in the present case in the form of recove--ries. According to learned counsel, the recovery evidence was reliable in the instant case and provided the legally required corroboration. It was sub--mitted that all the recoveries had been concealed and only the appellants knew where the weapons of offence were lying. A perusal of the Memos., clearly indicated that the appellants led to these recoveries.
According to learned counsel, lathis (Exhs. P. 6, P. 7 and P. 8) were found concealed or under the dheri of sugarcane crop and only the appellants knew where these articles were lying, for, they led to these recoveries. Similarly, danda beri (Exh. P. 9) was recovered from the Khola of Bashir Ahmad appellant by him after removing a little earth as it had been concealed in the Khola of his kotha.
Thus, according to learned counsel, these recoveries were not effected from spots which were accessible to the general public, but they were lying concealed and only the appellants knew how to get them recovered. It was next submitted that all these articles were found to be human blood- stained by the Serologist vide his report (Exh. P. R.). Three of the recoveries namely, lathis (Exhs. P. 6, P. 7 and P. 8) were made six days after the occurrence and there is no reason why they should have not been blood-stained. Danda beri (Exh. P. 9) was recovered after sixteen days of the occurrence and the blood on the same had also not disintegrated, as it was lying concealed in the Khola of the kotha. It was then pointed out that all these recoveries were being attested by Niaz Ali P. W., who is definitely an independent witness, besides the police officer namely, Sardar Khan S. I., P. W. So, the reasoning of learned counsel is that the recovery evidence in the instant case is free from doubt and must be believed as corroborative piece of evidence of the ocular testimony in the instant case. The argument of learned counsel is that the ocular version was not only being corroborated by the recovery evidence, in the instant case, but it was further being supported by, the motive evidence as well as the medical evidence, because such a large number of injuries could have not been caused by one or two men, but it was certainly the job more than two men. It was then submitted that there was no substance in the argument of learned counsel for the defence that two of the appellants, namely, Barkat Ali and Inayat Ali were 60 and 70 years old, respectively and that they might have been just passive spectators, while the two other younger members of the family, namely, Liaqat Ali and Bashir Ahmad appellants were causing injuries to the deceased. The argument of learned counsel is that since the recoveries had been, effected from them, they were able-bodied and they had participated in the commission of crime. In this connection it was also pointed out that the total number of injuries received by the deceased, in the instant case, is 41 and this was further evidence of the fact that a large number of culprits had caused injuries to the deceased and not just one or two persons. It was, therefore, submitted that in the light of the evidence on record it was a pre-planned murder and that consequently the sentence awarded to the appellants under section 302/34, P. P. C. Should be enhanced to death.
I have carefully, considered the arguments advanced by both the sides. In the light of what has been discussed above, I am convinced in my mind that the accused party, generally speaking, had a motive for the commission of crime and particularly Liaqat Ali appellant was directly connected with the motive. Also in the light of the above discussion, I am convinced in my mind that Mahmud Ahmad P. W. Was present on the spot at the time of the commission of crime and he attended to the deceased when he sustained injuries at the hands of the members of the accused party, so much so that his own shirt became blood-stained, it was taken into posses--sion by the police and subsequently sent for chemical examination. The report of the Serologist about his. Shirt is that it was stained with human blood. Thus. It is obvious that Mahmud Ahmad P. W. Was present on the spot as a natural witness and he had witnessed the occurrence. Therefore even if the other two eye-witnesses were disbelieved, as the trial Court has not relied upon them, there is no reason why the testimony of Mahmud Ahmad P: W. Should be disbelieved. The next point which requires consideration is that Mahmud Ahmad P. W. Was closely related to the deceased, being his real brother, and, therefore, he should be considered as an interested witness. If he was to be considered as an interested witness.6 in the sense that his testimony has not been relied upon in respect of the two acquitted co-accused, then we can only accept his testimony if it is being corroborated by pieces of evidence which come from unimpeachable or independent source. The testimony of Mahmud Ahmad P: W. Is being corroborated by the recovery evidence particularly in respect of Liaqat Ali and Barkat Ali appellants. So far as Liaqat Ali appellant is concerned, he is directly connected with the motive. The memo. Of the recovery of lathi (Exh. P. 8) made at his instance indicates that at the time of the recovery of the same it was found to tie blood-stained.
Thereafter it was sent for chemical examination and the report of the Serologist is that it was human blood-stained. Niaz Ali P. W. Who is the attesting witness of this recovery, is an independent witness. So far as the recovery of lathi (Exh. P. 6) made from Barkat Ali appellant is concerned, its memo. Also indicates that at the time of this recovery being taken into possession it was found to be human blood-stained. Niaz Ali P. W. Is also the attesting witness of this recovery. The recovery of danda beri (Exh. P. 9) made at the instance of Bashir Ahmad appellant may now be considered. In its memo. It is written that at the time of taking it into possession it was found to be stained with human blood. But this recovery was effected after sixteen days of the occurrence. Be that as it may, the report of the Serologist is that it too was human blood-stained, but learned counsel has taken me through para--graph 14 of the impugned judgment in which, while assessing the value of this piece of evidence, the trial Court has observed that Bashir Ahmad appellant was arrested fifteen days after the occurrence and that, therefore, he had got sufficient time to wash off danda beri or to destroy the same. It is further stated that the prosecution version to the effect that he led to the recovery of blood-stained danda beri (Exh. P. 9), fifteen days after the occurrence, was not acceptable. However, despite the fact that the trial Court did not rely on the recovery made from him, it is not clear from the judgment as to on what basis he had proceeded to convict and sentence Bashir Ahmad appellant. Then remains in the field Inayat Ali appellant who is seventy years old, from whom recovery was effected of lathi (Exh. P. 7) and in its memo. It is not mentioned that lathi (Exh. P. 7) recovered from him was stained with blood. So the argument of learned counsel for the appellants is that the recovery effected from Inayat Ali appellant had no corroborative value.. In the light of the above discussion, it has been vehemently argued before me by learned counsel for the appellants that the recoveries effected from Inayat Ali and Bashir Ahmad appellants were of no corroborative value. I have carefully considered this aspect of the case as well and my conclusion is that the prosecution has succeeded in establishing its case as against Liaqat Ali and Barkat Ali appellants beyond any shadow of doubt and, therefore, their conviction as well as sentence awarded to them were quite proper. These are accordingly maintained. The result is that the appeal of Liaqat Ali and Barkat Ali appellants is hereby dismissed.
The Jaii authorities are hereby directed to give the benefit of the provisions or action 382-B, Cr. P. C.
To Liaqat Ali and Barkat Ali appellants at the time of the computation of their imprisonment for life sentence.
So far as Inayat Ali and Bashii Ahmad appellants are concerned, in my considered opinion, the prosecution has not succeeded in establishing its case as against them beyond any shadow of doubt. The interested ocular testimony in their case is not being corroborated by pieces of evidence which come forth from an entirely independent or unimpeachable source. The recoveries effected from them were not free from doubt. Since this is the L position, their conviction as well as sentence awarded to them were not proper and they are hereby set aside. I grant the benefit of doubt to Inayat Ali and Bashir Ahmad appellants and their appeal is accepted. Their conviction as well as sentence awarded to them are hereby set aside and they are acquitted. They shall be released from jail forthwith if not wanted in any other case.
10: In the light of the above discussion, I do, not find any substance in Criminal Revision No. 194 of 1980, which is accordingly dismissed in limine.