Muhammad Arif son of Pir Muhammad, aged 55, armed with Toka, and Mushtaq Ahmad son of Habibullah, aged 27, armed with Drant, have been convicted under section 302/34, P. P. C. For the murder of Muhammad Hanif, aged 26, and vide judgment dated 26th February, 1981 of the Addi-- tional Sessions Judge, Sialkot, each of them was sentenced to life imprison--ment plus fine of Rs.
10,000 or in. Default to undergo six months' rigorous imprisonment with the direction that if fine vas realized, it should be paid as compensation to the legal heirs of the deceased. Habibullah, father of Mushtaq Ahmad convict, stated to be empty-handed, was given the benefit of doubt and acquitted. The, appeal of the convicts is being disposed of by this judgment.
Muhammad Arif appellant is on bail on medical ground.
2. The occurrence took place at Im30 a. m. On the night between 8thi 9th June, 1980, at the dera of the deceased within the area of village Ghanokay, at a distance of 12 kilometres; from Police Station Satrah, District Sialkot. Statement Exh. P. C. Was made by Hafeez Ahmad P.W. 11, brother of the deceased, at village Bhagatpur, at a distance of If miles from the spot while on way to the Police Station and it was recorded at 8-30 a. m. On 9th June, 1980 by Ahmad Hussain S. IL.P. W. 12, who happened to be present there in connection with the investigation of some cases as well as patrol duty. On the basis of the aforesaid statement formal F. I. R. Exh. P. C./1 was registered at Police Station Satrah by Manzoor Hussain, A. S. I., P. W. 4 at 9-30 a. m. On the same day.
3. The motive for crime, as stated in the F. I. R. Is that at the Deegar--wela on 8th June, 1980 the deceased and his brother Muhammad Sharif (not produced) had an altercation with Habibullah, acquitted co-accused, over the turn of water. The deceased is stated to have told him that he would take the turn of water first when the water came whereas Habiblullah, acquitted co- accused, retorted that before he took his turn of water, he would be done to death. The witness of motive produced is only Hafeez Ahmad P. W. There is nothing on the record to prove the same. No warabandi or other documentary evidence has been placed on record to establish that this altercation had taken place on the day preceding the night of occurrence and that according to the arranged warabandi it was the deceased's turn of water or vice versa. It is also not clear as to why this altercation took place. There is no other background of enmity given. Thus, in my view, the prosecution has not really been successful in establish--ing the motive.
4. The prosecution has produced only one eye-witness of the occur--rence, namely, Hafeez Ahmad P. W. 11, who is brother of the deceased. Two chance witnesses, namely, Muhammad Khan P. W. 9 and Muhammad Sadiq P. W. 10, were produced as Wajatkkar witnesses. They claimed that they were returning on the night of occurrence to their village at 2-00/3-00 a.m. And saw the appellants as well as the acquitted co-accused armed as des--cribed above.
5. The appellants and the acquitted co-accused were arrested on 25th June, 1980 by Ahmad Hussain S. I., P. W.
12. The recoveries, in the in--stant case, are of no consequence. Nothing was recovered from Habibullah, acquitted co-accused. From Muhammad Arif appellant instead of they recovery of Toka, was recovered battery torch which does not connect him, with the commission of crime. From Mushtaq Ahmad appellant was' recovered Drant P. 7 (not blood-stained) and taken into possession vide memo Exh. P. L. Dated 8th July, 1980. The attesting witnesses are Ahmad Hussain S. I., P. W. 12, Khalil Ahmad (not produced) and Masood Ali P. W. 8, who was declared hostile and did not support the prosecution Since none of the recoveries was blood-.Stained, they were not sent for chemical examination. In short, the recovery evidence has no corroborative, value and the case of the prosecution, therefore, is founded only on the ocular testimony of a single eye- witness supported by the Wajtakkar evidence.
6. The appellants and the acquitted co-accused, in their statements before the trial Court, denied having participated in the occurrence. The appellants disowned the recoveries and stated that they had been falsely implicated due to suspicion and enmity.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner. On the fateful night the deceased slept at the roof of his dera in order to guard the cattle whereas his brother Hafeez Ahmad P. W. 11 slept below on the ground near the animals. At about 1-30 a. m.
Suddenly two persons secured Habib Ahmad P. W. And the third one lighted the torch over him. In the light of the torch Hafeez Ahmad P. W. Could identify that Habibullah, acquitted co-accused, and Mushtaq Ahmad appellant had secured him while Muhammad Arif appellant had lighted the torch in his face. Thereafter, Muhammad Arif appellant said to his com--panions that Hafeez Ahmad P. W. Was neither Muhammad Sharif (brother of the deceased) nor was he Muhammad Hanif (deceased), but actually he was Hafeez Ahmad P.W. On this Habibullah, acquitted co- accused, ordered them to fetch a rope. In compliance of the same Muhammad Arif appellant went inside the Kurh and brought the rope. With this rope were tied the hands and feet of Hafeez Ahmad P. W. By Habibullah, acquitted co-accused, and Mushtaq Ahmad appellant. Thereafter, Habibullah, acquitted co-accused, covered the mouth of Hafeez Ahmad P. W. With his hand and sat near him while Mushtaq Ahmad and Muhammad Arif appellants, armed as described above, climbed the roof. The first Drant blow was given to the deceased, who was asleep on the roof, by Mushtaq Ahmad appellant and the second toka blow was given to him by Muhammad Arif appellant.
Thereafter, all the three ran away towards, the village Kot Agha. Hafeez Ahmad raised alarm and Muhammad Khan P. W. 9 as well as Muhammad Sadiq P. W. 10 were attracted to the scene of crime. They both untied Hafeez Ahmad P. W. Then the three of them climbed up the roof and saw that the deceased had, deep injuries on his mouth and nose due to which he died on the spot.
8. Dr. Mumtaz Ahmad Bhatti P. W. I conducted post-mortem examination on the dead body of the deceased at 6-00 p. m. On 9th June, 1980 and found on his person two incised wounds on the mouth and across the nose and an abrasion on the upper part of the neck. Death, in his opinion, was due to shock and haemorrhage as a result of the first two injuries which had been caused with heavy sharp-edged weapon and were sufficient to cause death in the ordinary course of nature.
The first two injuries were grievous whereas the third injury was simple in nature. The third injury was caused with a blunt-weapon. The probable time between injuries and death was 5 to 15 minutes. .
It may be pointed out at this stage that the Medical Officer had only conducted post-mortem examination on the dead body of the deceased. But there is nothing on the record to show that Hafeez Ahmad, P. W. Who, according to his statement, was tied with a rope and had marks of this rope over his hands and feet was not subjected to medical examination in support of his oral testimony by the police.
9. I have heard learned counsel for the parties and carefully perused the record. As I have pointed out earlier, there is nothing on the record to establish the motive. Similarly, the recovery evidence is of no use. So far as the ocular testimony is concerned, Hafeez Ahmad P. W. Has mad somewhat conflicting statements before the Police and at the trial stage. For instance, in the F. I. R. His story is that Muhammad Arif appellant was armed with a Toka and Mushtaq Ahmad appellant was armed with a Drant whereas Habibullah, acquitted co-accused, was empty-handed. But at the trial stage he stated that Mushtaq Ahmad appellant was carrying Drant and Habibullah, acquitted co- accused, was armed with a Toka. At the trial stage Muhammad Arif appellant was stated to be holding only torch and then the version proceeds that after tying him with the rope Habibullah, acquitted co-accused, put his hand on his mouth although he could see. Then Muhammad Arif appellant searched with the torch and saw a cot on the kotha. Mushtaq Ahmad appellant climbed up the kotha whereas Muhammad Arif appellant afforded him light with torch. From the cot he could see as to who was injuring the deceased. According to him, Mushtaq Ahmad appellant inflicted Toka blow first on the deceased and then Muhammad Arif appellant also inflicted a Toka blow on the deceased. This version is slightly different from what has been stated in the F. I. R. By him. He stated in the cross-examination that there were signs of scratches of rope on his hands and on the feet which he showed to the police at the time of recording his statement. But there is nothing on the record in support of this assertion.
Now may be examined the testimony of the Wajtakkar witnesses, namely, Muhammad Khan, P. W. 9 and Muhammad Sadiq P. W.
10. Muhammad Khan P. W. Does not give a plausible reason as to why he had gone to village Kot Agha alongwith Muhammad Sadiq P. W. And further--more as to why he was returning at 2-00/2-30 a. m. Alongwith him. Thus, both of them are chance witnesses. Their version is that they saw three persons coming from the side of the dera of the deceased and these were the appellants and the acquitted co-accused. Mushtaq Ahmad appellant was carrying a Drant, Muhammad Arif appellant was carrying a toka and Habibullah, acquitted co-accused, was empty-handed. They passed from near them very quickly and thereafter they heard alarm and went to the spot. They saw Hafeez Ahmad P. W. Sitting on the cot and untying himself. Then they climbed up the roof alongwith Hafeez Ahmad P. W. And saw that the deceased took two or three breaths and then expired. Hafeez Ahmad P. W. Told them that the appellants and the acquitted co- -accused had murdered the deceased. While examining the testimony of these witnesses the statement made in the cross-examination of Ahmad Hussain S. I., P. W. 12, the Investigation Officer, may also be considered. He stated that it was correct that the appellants and the acquitted co.
Accused produced evidence in their defence. None from the surrounding deras of the village came in support of the statement of Hafeez AhmadP. W. To the effect that the appellants and the acquitted co accused had committed the murder of the deceas&3. He further stated that it was correct that the D. S. P., Daska also investigated this case and as per his Zimini No. 15 dated 10th July, 1980 he doubted the participation of the appellants and the acquitted co-accused in the present occurrence. The aforesaid D. S. P. Arrived at this conclusion on the basis of the statements of about 60/65 persons belonging to the village. Bhaddal village is situated near the place of occurrence and from this village also a number of persons appeared and deposed about the innocence of the appellants and the acquitted co--accused. Muhammad Khan and Muhammad Sadiq P. Ws. The so-called Wajtakkar witnesses did not give any cogent reason or purpose for the visit to village Kot Agha on the fateful night. So brief this is the testimony of the sole eye-witness, the Wajtakkar witnesses and the Investigating Officer, in the instant case. If this evidence is properly assessed, then the case of the prosecution appears doubtful. The case of the defence I that the deceased was done to death by some unknown assailant while he was asleep all alone on the kotha of his dera guarding the cattle. The occurrence was unwitnessed and was discovered only in the morning When the dead body of the deceased was found lying on the roof. The statement before the police is stated to have been made at 8-30 a. m. On 9th September, 1980 after consultation and deliberation. Thus, the possi--bility cannot be ruled out that the appellants and the acquitted co-accused were named as the assailants in the F. I. R. Merely on suspicion. Further-- more, if the trial Court arrived at the conclusion that Habibullah, acquitted co-accused, who was directly connected with the motive so far as the prosecution case is concerned, deserved to be given the benefit of doubt an acquitted, then the same principle should have been applied also in the case of the appellants. I have already pointed out that the motive could not be established by the prosecution and it remained of a doubtful nature. The ocular testimony of Hafeez Ahmad P. W.
Also does not inspire confidence. The Wajtakkar witnesses are merely chance witnesses who had no reason to be present in the outskirts of the village at that unearthly hour a 2-00/2-30 a. m. When they claimed to have seen the members of the accused-- party, armed as described above, moving very fast. They did not eve talk to them. The recovery evidence, in the instant case, is of - no help. The occurrence is reported to have taken place at 1-30 a. m. By Hafeez Ahmad P. W. But he makes the statement on the following day as late as 8-30 a. m.
In the light of the above discussion, in my view, the prosecution has not succeeded in establishing its case as against the appellants beyond any shadow of doubt. In that view of the matter, the conviction and sentence awarded to the appellants were not proper and they should have been given the benefit of doubt which I hereby give to them. The result is that the conviction and sentence of the appellants are hereby set aside and they are acquitted. Their appeal is accepted.
Muhammad Arif appellant is already on bail on medical ground. His bail bonds stand discharged.
Mushtaq Ahmad appellant should be released from jail forthwith if not wanted in any other case.