The six appellants Sardar Muhammad son of Hassan Din, Sardar son of Allah Ditta, Muhammad Ashraf, Muhammad Nawaz, Muhammad Boota and Tufail were tried by a learned Additional Sessions Judge, Gujranwala, for an offence under sections 3021323/149 and 148 of the Pakistan Penal Code for the murder of Muhammad Siddiq son of Muhammad Khan and causing injuries to Muhammad Hashir (P. W. 12).
2. The trial Court vide its judgment dated 29-6-1971 acquitted the appellants of the charge under section 302, P. P. C. But convicted them under section 326/149, P. P. C. Sardar Muhammad appellant No 1 was sentenced to seven years R. I. And a fine of Rs. 1,500 and in default of payment thereof to undergo further six months R. I. Under section 326, P. P. C. He was also sentenced to three years' R. I.
Under section 148/149, P. P. C. Muhammad Ashraf and Tufail appellants Nos. 3 and 6 respectively were sentenced to five years' R. I. And a fine of Rs. 1,0J0 each and in default of payment of fine to undergo further four months' R. I. Under section 326, P. P. C. Both of them were also sentenced to two years R. I. Each under, section 148/149, P. P. C. Sardar appellant No. 2, Muhammad Nawaz appellant No. 4 and Muhammad Boota appellant No. 5 were each convicted and sentenced to three years' R. I. And a fine of Rs. 500 or in default of payment of fine to undergo further two months'
R. I. Under Section 326, P. P. C. Similarly, they were sentenced to one year R. I. Each under section 148/149, P. P. C. The sentences were ordered to run concurrently in each case. The fine if realised, half of it was ordered to be paid to the heirs of the deceased.
3. The F. I. R. In this case was lodged by Lal Khan (P. W. 13) brother of the deceased, which was recorded on the basis of his statement by Muhammad lqbal A. S. I. (P. W. 16) at Police Station Wazirabad Saddar on 25-7-1969 at 6-45 p.m. In respect of the alleged occurrence which took place at, peshiwela the same day, the distance between the police station and the place of occurrence being six miles.
4. According to the prosecution version, as disclosed in the F. I. R., the incident was the result of contest between the deceased and Sardar Muhammad appellant No. 1 at the last B. D. Elections in which Sardar Muhammad had been successful. This time again both these persons were preparing to contest the B. D. Election. It was alleged in the F. I. R. That Muhammad Siddiq enjoyed more influence and this was the reason why he was attacked on account of this political rivalry.
The other factor for motive given was that Sardar Muhammad Ranjha appellant wanted to put a parnala on the roof of his own house which would result in the water flowing into the courtyard of Nawab (P. W. 7). The deceased Muhammad Siddiq was a helper of said Nawab and this was the result of another cause of friction.
However, as regards the occurrence, it was stated in the F. I. R. That Lal Khan son of Muhammad Khan the complainant had four brothers. His real brother Muhammad Siddiq deceased carried on a commission agent shop in the city in partnership with Khwaja Muhammad Yousaf, Ghalla Mandi, Wazirabad and he also resided in the city. Market remained closed on Friday and so was it closed on the day of the incident which was a Friday. The brother of the complainant Muhammad Siddiq had come over to. Mauza Chak Beg to see his parents and after meeting them in the company of Muhammad Bashir (P. W. 12) they came to Chah Darekwala at about peshlwela. At that time they were returning to the village and the complainant was also following them. When Muhammad Siddiq deceased and P. W. 12 Muhammad Bashir reached near the school then Sardar Muhammad son of Hassan Din appellant No. 1, Muhammad Ashraf appellant No. 3, Tufail appellant No. 6 armed with hatchets while the other three appellants namely, Sardar son of Allah Ditta, Muhammad Nawaz and Muhammad Boota armed with Dangs, all sitting in ambush, came out of the school whereupon Sardar Muhammad Ranjha appellant No. 1 shouted a Lalkara that Muhammad Siddiq deceased be put to death and then he aimed a blow from the blunt side of his hatchet at the head of the deceased but Muhammad Siddiq brought forward his left arm and thus the blow landed on his left arm. This was followed by a blow from Muhammad Ashraf with his hatchet which also landed on his left arm. Then Muhammad Nawaz gave a Dang blow which landed on his left leg.
Thereafter the deceased fell down and Sardar Muhammad Ranjha, Muhammad Asbraf and Tufail alias Baghar with blunt side of the hatchets and Nawaz, Boota and Sardar Cheema with Dangs gave blows to the deceased on his back and buttocks. Muhammad Bashir (P. W. 12) tried to rescue the deceased but Muhammad Nawaz gave him a Dang blow which landed on his left wrist. The complainant and Ghulam Qadir (P. W. 14) and Faqir Sain (P. W. 15) then raised hue and cry but they were deterred from coming near the deceased because Sardar Muhammad Ranjha shouted that if any one came near they would also be put to death. The complainant and his companions with difficulty got the deceased released. The motive has already been noticed earlier.
It was further stated in the F. I. R. That the deceased Muhammad Siddiq had been brought on a charpal by the complainant, Ghuam Qadir, Faqir Sain, Risat Ali Cheema and Muhammad Shatif to Civil Hospital Wazirabad but he succumbed to the injuries. The complainant had thus come to lodge the report.
5. Dr. Imtiaz Ahmad Cheema (P. W. 1) Medical Officer Gujranwala gave evidence regarding the injuries on the basis of post-mortem examination conducted by him on the deceased. The opinion of the doctor was as follows : (1)Contusion 3--" x 1" on the top of right shoulder.
(2) Contusion 10"x 1" on the left side of chest starting from the top of left shoulder runs downwards 2" away from the left nipple.
(3) Abrasion 3" x 1/6" on the front and upper part of left arm.
(4) An abraded contusion in an area of 10" x 3" on the back and outer aspect of left arm.
(5) Contusion 9" x 4" on the left forearm, both the bones were fractured at the middle of left forearm.
(6) Abraded contusion in an area of 13" x 11" on the back of lower chest, lumber region and sacral.
(7) Abraded contusion 10" x 9" on the left buttock.
(8) Abraded contusion 11" x 7" on the outer and back aspect of left thigh.
(9) Abraded contusion in an area of 11" x 7' on an outer back aspect of left leg. Tibia bone in its lower end fractured.
(10) Contused wound 1--" x --" on the right knee cap. Patella underneath was fractured.
(11)Contused would 1--" x --" on the front of right shin at the middle.
(12) An abrasion 3" x 1" on the inner aspect of right knee.
According to the doctor, injuries Nos. 5, 6, 9 and 10 were grievous and rest were simple. All the injuries were caused by blunt weapons. Death in his opinion was due to injuries Nos. 5, 6, 9 and 10 causing shock and haemorrhage. The injuries were sufficient to cause death in the ordinary course of nature. The time between injuries and death was within 9 hours and between death and post- mortem within 24 hours.
In respect of the injury suffered by Muhammad Bashir (P. W. 12) evidence was furnished by Dr. Manzoor Ahmad (P. W. 2) who examine the him on 25-7-1969 at 10 p. m. As a private patient and found an abraded contusion 1--" x --" on the left forearm middle 1/3 back side. The abraded contusion was on a swelling 2" x 1--". In the opinion of doctor, this injury was simple in nature caused by blunt weapon within about 3 to 12 hours.
6. At the trial, the prosecution in addition to the other formal witnesses produced eye witnesses, namely, Muhammad Bashir (P. W. 12) the injured witness, Lal Khan (P. W. 13), Ghulam Qadir (P. W. 14) and Faqir Sain (P. W. 15).
The appellants in their statements under section 342, Cr. P. C: pleaded innocence and false involvement on account of enmity. When asked why this case against them, they again pleaded that this was due to village party friction and enmity with the P. Ws.
7. I have gone through the evidence on the record as well as the judgment of the trial Court with the assistance of the two learned counsel. It is an admitted feature of this case that there was enmity based on political rivalry and previous criminal litigation between the two parties. There was no independent eye-witness in this case. It is rather strange that in this set of circumstances the trial Court overlooked the rule of caution enunciated by the Supreme Court in Nazir and others v. The State (P L D1962 SC 269) that the rule of prudence as well as caution in criminal matters required that ordinarily in case of interested witnesses the Court must look for corroborative evidence coming from independent source so as to sustain a conviction. The trial Court in para. 9 of its judgment, despite being cognizant of the fact that it had been shown that the P. Ws. Were inimical towards the accused, held that it was not sufficient to discredit the P. Ws. And displace their testimony altogether. The learned trial Court in my view misconstrued the legal position and the rule enunciated by the superior Courts. The question in such like cases is not that the evidence of inimical persons is to be discredited or their testimony displaced altogether as of an incompetent person but the superior Courts have enunciated the principle that it would not be safe to base conviction on such testimony unless corroboration was forthcoming from independent sources. Therefore, the learned trial Court was wholly wrong in taking the view that he was not ready to attach much importance to the fact that the alleged eye-witnesses were somewhat inimically disposed towards the accused and had a background of past rift with the accused party.
It must be pointed out that an interested witness is that which has the motive to falsely implicate an accused. This requirement was fully met in the facts and circumstances of this case. There were no circumstances shown to justify departure from the normal rule.
8. Coupled with the above circumstances, one may advantageously note remarks from the judgment of the trial Court itself. In para. 12 of the judgment, the trial Court held that the prosecution role in the case was not free from suspicion although it might not be tainted or 'dishonest. He also took note of the fact that although P. Ws. 12, 14 and 15 were available to the police when the F. I. R. Was lodged yet their statements under section 161, Cr. P. C. Were not recorded till a day after. This was contrary to normal course of human conduct and the practice of police department regarding investigation.
9. The trial Court rightly disbelieved all the recoveries for the simple reason that the procedur6 prescribed by law had not been followed and additionally for the reason- that none of the weapons of offence was blood-, stained and thus they were never forwarded to the Chemical Examiner and Serologist for his report.
10. The next interesting feature of the case is that the trial Court thought that the injury on the person of Muhammad Bashir the only injured witness was of no consequence. Furthermore, disbelieving the prosecution evidence he acquitted all the accused from the blame of causing injury to Muhammad Bashir (P. W. 12). Thus, the evidence of P. W. 12 also disappeared from the scene.
11. On the above analysis of the evidence of the record and circum stances of the case it appears obvious that except for the ocular evidence inimical and interested witnesses there was no independent corroboration coming from any source or quarter. At the cost of repetition, it may pointed out that the evidence of injured P. W. Muhammad Bashir was disbelieved and all the accused acquitted of the blame of causing him injury. There was also discrepancy as regards the manner in which the injury had been caused to said P. W. 12 in the version given before the police as well as at the trial. The recoveries were disbelieved and thus no material hags been pointed out or was available on the record which could provide by itself sufficient corroboration in respect of the interested testimony of the eye-witnesses. I, therefore, feel that the conviction and sentence of the appellants before me was ordered by making a visible departure from the salutary rule that in cases of enmity, rancour, spite or motive to falsely implicate, the Court would not consider it safe to rely on such evidence, unless the same was corroborated from unimpeachable independent source. This rule has been completely overlooked by the trial Court and since no such evidence is forthcoming to corroborate the evidence of the interested witnesses, I think the conviction of the appellants was wholly uncalled for No conviction can be based in a criminal matter merely on the basis of motive when there are other circumstances of the case which point to the innocence of the accused or the prosecution has failed to bring home the charge beyond reasonable doubt. The appeal is thus accepted, the conviction and sentence of the appellants is set aside and that they are acquitted of all the charges.
12. The appeal having been accepted for reasons already stated, there is no scope left for entertaining Criminal Revision No. 940 of 1971 for enhancement of sentence. The same is, therefore, dismissed.