MUHAMMAD RAFIQ TARAR, J.-Saddiq (35) and Bashir (48), sons of Ilam Din, Ibrahim (50) and Muhammad Ismail (65), son of Ghulam Qadir, Sain (45) son of Abdullah, all Jats by caste, residents of village -Cheema, and Maqbool Ahmed (45) son of Abdul Ghani, Rajput, resident of Fatowal, Police Station Shahgharib, District Sialkot, were tried by the learned Additional Sessions Judge, Sialkot, under sections 148 and 302/149, P. P. C. On the allegations that on 12th 'November, 1976 at about Asarwela, they formed themselves into an unlawful assembly, in the area of village Jawaharpura, with the common object of committing the murder of Sain deceased and in prosecution of the said common object of the unlawful assembly actually committed his murder. - By judgment - dated 2nd June, 1.979, Ibrahim, Ismail, Sain and Maqbool Ahmad were acquit--ted of the changes but Siddiq and Bashir were convicted under section 302/ 34, Y. P. C. Siddiq was sentenced to death subject to confirmation by this Court and Bashir to imprisonment for life. Both of them were also fined Rs. 5,000 each or in default in the payment thereof to undergo R. I. For three months' each. The fine, if realised, was ordered to be paid to the legal heirs of the deceased as compensation. The convicts have appealed and the case is also before us on reference for confirmation of the death sentence awarded to Siddiq appellant. Both these matters shall be disposed of by this judgment.
2. The brief facts of the prosecution case are that on the 12th of November, 19.76 at about sunset time; Sain deceased, his brother Muhammad Nazir complainant and Muhammad Siddiq P. W. Were return--ing from village Mehgra after offering Fateha on the death of. Gahfur brother of Muzaffar Hussain P. W. (not produced), When they reached near the shrine of Baba Nur Shah, in the *area of village Jawaharpura. Siddiq appellant armed with Chhuri and the others empty-handed came there. Ibrahim caught hold .Of the deceased and felled him on the ground, Bashir appellant caught hold of his legs. Sain accused held his arms, Maqbool put his foot on his chest and Siddiq appellant slaughtered him with his Chhuri. Ismail accused took the complainant into his hold and did not allow him to rescue the deceased. Sain deceased scummbed to his injuries at the spot. The accused persons went away toward village Fatowal. Thereafter, Muhammad Nazir complainant went to his village Cheema and again came back to the place of murder along with some co- villagers. Hidayat Ullah, A. S.-I., came there and recorded his statement Exh. P. F. At 10 p. -m., on the basis of which forma: F. I. R. Exh. P. F./I was recorded at Police Station Shahgharib, at 11 p. m.
The motive for the offence was that three years prior to the occur--rence both the appellants abducted Mst. Irshad, daughter of Salt', deceased, on which a case was registered against them. A day prior to the occurrence all the accused persons approached the deceased with the demand to hand over Mst. Irshad to them and also to withdraw the abduction case but he declined, upon which they threatened him, with dire consequences saying that they will take revenge within a day or two.
3. After recording the statement of the complainant. Hidayat Ullah A. S.-I. Prepared the injury- statement (Exh. P: J.) and inquest-report (Exh. P. H) of the dead body and despatched it .To the mortuary for post-mortem examination. He secured some blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh. P. C. He also took into possession blood-stained Patka (P. 1) lying near the place of occurrence vide memo. Exh. P. D. On 14th November, 1976, Faqir Muhammad Sub-Inspector/S. H. O., Police Station Shahgbrib, took over the investigation from the A.
S.-I. He arrested the accused persons. On 22nd November, 1976. Siddiq appellant, while in police custody, led to the recovery of Chhuri (P. 5), shirt (P. 6) and Chadar (P. 7), all blood--stained, from his house vide memo. Exh. P. G. The Chhuri and the blood--stained clothes were made into separate sealed parcels. On the same day Bashir appellant, while in custody, led to the recovery of Shalwar (P. 8) and Shirt (P. 9), both blood-stained, which were made into a sealed parse; vide memo. Exh. P. K. After the investigation, he submitted the challan against all the accused persons.
4. On 14th November, 1976 at 10 a. m. Dr. Nazir Ahmad, Medical Officer, Narowal, conducted the autopsy on the dead body of Sain deceased and found an incised wound 10-- x 3 1/3 bone deep in front and on sides of neck at the level of thyroid cartilage. All big vessels alongwith wind pipe, trachea and oesophagus were cut through and through In the opinion of the doctor, death occurred due to shock and haemorrh--age resulting from the above injury which was sufficient to cause death in the ordinary course of nature.
5. In support of its case the prosecution examined two eye-witnesses, namely, Muhammad Nazir and Muhammad Siddiq and it also relied on the recovery of blood-stained articles from the- appellants.
6. The appellants pleaded not guilty to the charge. ' They admitted that a case for the abduction of Mst. Irshad, daughter of Sain deceased, was registered against them. Bashir appellant stated that it was a false case. Siddiq appellant contended that Mst. Irshad was his legally wedded wife and he had never abducted her. No evidence was led in defence.
7. The trial Judge accepted the prosecution evidence against the appellants and convicted and sentenced them as mentioned above. He however, gave the benefit of doubt to the other accused persons and acquitted them of the charges.
8. The learned counsel for the appellants has contended :-
(a) it was an unwitnessed occurrence and it was for that reason that nobody went to the police station to lodge the report.
(b) both the eye-witnesses are interested and their conduct was highly unnatural, and
(c) it is fully established on the record that the statement of the com--plainant was recorded at the spot after the preliminary investigation and this fact, coupled with the inordinate delay in despatching the dead body for post-mortem examination, is sufficient to reject the entire prosecution case.
The learned State counsel contends that the ocular evidence finds corroboration from the motive and has been, therefore, rightly accepted against the appellants.
9. At the trial Muhammad. Nazir and Muhammad Siddiq P. Ws, supported the prosecution version of .The occurrence as detailed in the earlier portion of this judgment Muhammad Nazir P. W. Is the real brother of the deceased. Muhammad Siddiq P. W. Admitted that his brother Nazir cultivates the land of the deceased and is also a prosecution witness (P. W. 4) in this case. He further admitted that he himself appeared as a witness for the deceased in an application made by him against the appellants under section 107, Cr: P. C. From these facts it is manifest that he is a party-man of the complainant party. It is the pro--secution's own case that the appellants alongwith others abducted Mst. Irshad, daughter of the deceased, three years prior to the occurrence and he got a case registered against them which was pending at the time of occurrence. It is, thus, evident that the parties were inimically disposed towards each other and, in that view of the matter, the evidence of the A alleged eye-witnesses would require corroboration from an independents and unimpeachable source.
10. According to the F. I. R. The occurrence took place on 12th November, 1976 at about sunset time in the area of village Jawaharpura. On the day of occurrence, the sunset time at Lahore was 5.08 p. m. According to Muhammad Nazir complainant, distance between village Jawaharpura and the police station is only one mile. The, statement of Muhammad Nazir complainant which forms the basis of the F. I. R, in this case, is shown to have been recorded at the spot by Hidayat Ullah, A. S.-I., at 10 p. m. No explanation for this inordinate delay in lodging the F. I. R. Has been given by the prosecution. At the trial Muhammad Nazir complainant made a futile attempt to explain the delay saying that after the occurrence he and Muhammad Siddiq P. W. Had gone to their village and after half an hour they again came to the spot with some villagers. He was confronted with his statement before the police (Exh. P. F.) where it was not so recorded. If his above statement is accepted, even then the delay remains unexplained. According to his own showing, be returned to the spot within half an hour and still there was no report regarding the occurrence till 10 p: m. When the police allegedly arrived at the spot.
There is sufficient material on the record to show that the complain--ant and the Police Officer deliberately delayed the recording of the F. I. R. In order to gain time so as to build up a story.
Hidayat Ullah, A.S.-I stated that he proceeded to the spot on receiving information about the murder when he was on patrol duty and reached there at 10 p. m. On the other hand, Muhammad Rafiq F. C. (P. W. 6) who claimed to have accompanied the A. S.-I. To the spot, stated that information about the occurrence was received at the police station "at about 4 p. m.
(evening,)through the Lambardar of the village and they reached the place of murder within half an hour or so. Thus, according to him the police was at the spot at about 5 p. m. Generally no importance is attached to the admission made by a formal witness but in the instant case the statement of Muhammad Siddiq (P. W. 12) who is a star witness of the prosecution, also shows that the police reached the spot much before 10 p. m. According to him, Hidayat Ullah A. S.-I., reached the spot in his presence at8 p. m. It is thus fully established that the statement of the complainant which forms the basis of the F. I. R., was recorded after the preliminary investigation.
11. Delay in the post-mortem examination is another circumstance which tells heavily upon the prosecution, From the statement of Hidayat Ullah A. S.-I. It appears that after recording the statement of the complainant at 10 p. m. He despatched the dead body for post-mortem examination Muhammad Rafiq F. C. (P. W. 6) who escorted the dead body, stated that he started for Shakargarh mortuary at 6 or 7 a. m. On13th November, 1976 but the doctor was not available and then he took it to Narowal and delivered it to the doctor intact. It is in his statement that Shakargarh mortuary is five or six miles away from the place of occurrence and Narowal is at a distance of twenty miles from Shakargarh and is connected with a metalled road. The post- mortem examination was conducted on 14th November, 1976 at 10 a. m. The foot-constable would not have taken more than an hour or so to reach Shakargarh and if the doctor was not available there, he could conveniently take the dead body to Narowal within an hour or so. Had he started with the dead body on 13th November, 1976 at 6 or 7 a. m. As alleged, the post-mortem examination could be conducted on the same day. It appears that the despatch of the dead body was deliberately delayed so as to build up a story and incorporate the same in the inquest-report which had to be sent alongwith the dead body. In taking this view we find support from Muhammad Ali's case (1971 P Cr. L J 1181). Considering all the facts and circumstances of the case, we are of the considered view that possibility of the alleged eye-witnesses having reached the spot after learning about the occurrence through some other source cannot be ruled out. If they had seen the occurrence and identified the assailants, there was. No reason for them not to make a report at the police station situate only at a distance of one mile from the spot.
12. The conduct of the eye-witnesses was also highly unnatural. They did not make any effort to save the deceased. Both of them stated that they did not even raise any alarm. Muhammad Nazir complainant admit--ted that after the occurrence he did not send any person to the police station for lodging the report and when he returned from the village to the place of murder, the dead body was lying unattended. The com--plainant is the real brother of the deceased and the other alleged eye--witness is a party.-man of the complainant side. It is inconceivable that they would go to their village leaving the dead body unattended at the spot.
13. Muhammad Siddiq P. W. Admitted that he filed a complaint against Muhammad Nazir complainant of the present case and another under section 504, P. P. C. And made a statement in the said complaint that Muhammad Nazir complainant was pressurising him to depose falsely against Maqbul Ahmad accused (since acquitted) although he had not participated in this occurrence. It is to be noted that in his examination-in-chief Muhammad Siddiq P. W. Has named acquitted accused Maqbul Ahmad as one of the accused persons. He is thus a self---condemned liar.
14. We are not relying on the evidence relating recoveries for the reason that at the trial the two recovery-witnesses, namely, Muhammad Sharif and Bashir Ahmad, who allegedly witnessed the recoveries from both the appellants and attested the recovery memos. Exhs. P. G. And P. K. Did not support the recovery from Bashir appellant. The occur--rence took place on 12th November, 1976 and the blood-stained Chhuri and clothes were allegedly recovered from the appellants on 22nd November, 1976. We are reluctant to believe that the appellants would keep these articles in their house for ten long days so that the same could be subsequently produced before the police and used as evidence against them.
15. After giving our careful consideration to the entire evidence and the arguments addressed by the learned counsel for the parties, we are of the view that the case against the appellants is highly doubtful. We, therefore, accept the appeal, set aside their conviction and sentence and acquit them of the charge. They shall be set at liberty forthwith if not required to be detained in any other case.
The death sentence of Siddiq appellant 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.