' This appeal is directed against the judgment of learned Additional Sessions Judge, Sheikhupura, dated 15-3-1980, whereby Abdul Ghaffar, Jabbar and Aslam alias Achu were convicted under section 302/34, P. P. C. And each of them sentenced to imprisonment for life and a fine of Rs, 5,000 or in default in payment of fine to undergo rigorous imprisonment for two years. It was ordered that the fine, if recovered, shall be paid to the legal heirs of the deceased, Akram alias Bhola, Haleem and Mehr ban co-accused were acquitted of the charge.
2. The occurrence took place on 3-7-1977 at 6-00 p.m., in the graveyard of Khanqah Dogran, which was at a distance of three/four miles from Police Station, Khanqah Dogran. Ali Muhammad (P. W. 4) made statement Exh. P. G., at Police Station on the same evening at 7-00 p. m. Which was recorded by Faiz-ul-Hassan, S. H.
0.(, P. W. 11).
3. On 3-7-1977, Ali Muhammad complainant, his sister's. Son Shah Nawaz deceased, Rahim Din (P.
W. 9) and Muhammad Shafi (not produced) were going towards their village Chhina from Khanqah Dogran. When they crossed the drain and reached the graveyard of Khanqah Dogran, the three appellants and the three acquitted accused emerged all of a sudden. The two acquitted accused, namely, Haleem and Mehrban carried guns while Akram acquitted accused had a revolver. Abdul Ghaffar and Jabbar appellants were armed with hatchets while Aslam alias Achu appellant carried a dang. Abdul Ghaffar and Jabbar appellants shouted that Shah Nawaz be done to death and taught a lesson for having become a witness against them and for conducting raid in the company of police. The three accuitted acqused fired shots in the air, whereas, the three appellants inflicted blows to Shah Nawaz deceased with their respective weapons, who fell down.
The appellants caused more injuries to the deceased after the deceased had fallen. The appellants inflicted blows to the deceased on the entire body and also fractured his both legs. Shah Nawaz succumbed to the injuries immediately.
' The motive for the present occurrence was that the deceased was an eye-witness in a case registered against Abdul Ghaffar, etc. Under sections 307 and 436, P. C. C.
4. After recording the F. I. R., Faiz-ul-Hassan, S. H. 0, reached the spot. He prepared injury statement and inquest report of the deceased and sent the dead body for post-mortem examination. He collected bloodstained earth from the spot and sealed it into a parcel. He arrested Abdul Ghaffar and Aslam appellants on 10-7-1977. He arrested Jabbar appellant on 11-7-1977. Ghaffar appellant, while in police custody, produced bloodstained hatchet from his house, on 17-7-1977 and it was sealed into a parcel. On the same date, Akram acquitted accused produced bloodstained hatchet from his house and it was sealed into a parcel. On the said date Aslam alias Achu appellant produced blood-stained stick and it was sealed into a parcel. The above-mentioned recovery memos. Were attested by Muhammad Rafiq (P. W. 6) and Suleman (not produced). The appellants were challaned after investigation.
5. The prosecution examined eleven witnesses in order to prove the case. Ali Muhammad complainant (P. W. 8) and Rahim Din (P. W. 9) supported the prosecution case and gave the eye account of the occurrence. They named the three appellants and the three acquitted accused as the assailants. Muhammad Rafiq (P. W. 6) made statement with regard to the recoveries of weapons of offence.
6. Dr. Manzoor Hussain Kazmi, conducted autopsy on the dead body of Shah Nawaz on 4-7-1977 at 5-45 p. m. And found sixteen injuries on his person. Injuries Nos. 3, 12, 13 and 15 consisted of multiple contusions. In the opinion of the doctor, the death was due to severe shock and haemorrhage on account of injuries Nos. 6, 8 and 12, which were sufficient to cause death in the ordinary course of nature. The said injuries and injury No, 7 were grievous. Rest of the injuries were simple. All the injuries were ante-mortem and caused by blunt weapon. The probable time between the injuries and death was within a few hours and between death and post-mortem within twenty-four hours.
7. The learned counsel for the appellants contended that Ali Muhammad complainant and Rahim Din eye-witnesses were closely related to the deceased and inimical towards, the appellants and thus their statements could not be accepted without independent corroboration that the eye- witnesses had made an ugly attempt to involve as many as six persons, out of whom, three were acquitted by the trial Court and thus on the statements of Ali Muhammad and Rahim Din P. Ws., the judgment of conviction could not be recorded; that the complainant stated in F. I. R. As well as in Court that Abdul Ghaffar and Jabbar appellants were armed with hatchets while Aslam appellant carried a stick and they caused injuries to the deceased with their respective weapons, but this version was belied by the medical evidence as the deceased had no injury with sharp-edged weapon ; that in order to bring his statement in line with the medical evidence. Rahim Din changed the version in Court and stated that Ghaffar and Jabbar appellants caused injuries to the deceased from the wrong side of hatchet and that he was duly confronted with his statement Exh.
D. B., where it was not so recorded; that post-mortem examination was conducted on the next day, at 5-45 p.m, and it was an indicative of the fact that the prosecution version was fabricated and the dead body was sent late on the next day ; that the recovery of weapons of offence was not proved and the only recovery witness from the public was also a close relative of the deceased.
8. The contentions of the learned counsel for the appellants have been considered in the light of the evidence on record. Ali Muhammad complainant and Rahim Din eye-witnesses had named the three appellants and the three acquitted accused as assailants. In case, the assailants had been carrying fire-arms nothing would have prevented them from using the same. No empty cartridge was recovered from the spot, which was an indication that fire-arm weapons had not been used. It was stated by Ali Muhammad complainant in Court that the accused, who were armed with fire- arms, fired at them, but there was no injury with fire-arms either to the deceased or to any of the eye-witnesses. The two eye-witnesses made false statements against Akram, Haleem and Mehrban acquitted accused.
9. The deceased was a nephew of Ali Muhammad complainant and a cousin of Rahim Din (P. W. 9) and Muhammad Shafi (not produced). The two eye-witnesses were closely related to the deceased and on account of previous enmity, they were interested witnesses. The statements of the two eye-witnesses were contradicted by the medical evidence. Ali Muhammad deposed in Court that Abdul Ghaffar and Jabbar appellants armed with hatchets and Aslam armed with stick inflicted injuries to the deceased with hatchets and dangs, but this version was belied by the medical evidence, Rahim Din made an attempt to bring his statement in line with the medical evidence by stating that Ghaffar and Jabbar appellants caused injuries to the deceased from the wrong side of the hatchets. He was duly confronted with his statements Exh. D. B. Made before the police, where it was not so recorded. Both the eye-witnesses were chance witnesses. The occurrence had taken place at a distance of two killas from their village. The complainant stated that he had gone to Khanqah Dogran to purchase cloth, whereas Shah Nawaz had purchased two Seers of gurh and one seer of tobacco and Muhammad Shafi and Rahim Din P. Ws. Had not made any purchases. Both had gone to purchase fertilizer, which was not available. But statement of the complainant was contradicted by Rahim Din, who deposed that he had purchased five Seers seed of jawar and two Seers of bajra while Shah Nawaz deceased did not purchase anything. In case, the two eye-witnesses B had been present at the spot, they would have also recieved injuries. It clearly proved that none of the eye-witnesses was present at the spot.
10. The recovery memos. In respect of the blood-stained hachets and blood-stained stick were attested by Rafiq (P. W. 6) and Suleman (not produced). It was admitted by Muhammad Rafiq (P.
W. 6) that the deceased was his first cousin. This recovery witness was also interested. He stated in Court that he joined the police party in the village. He was duly confronted with his statement Exh.
D. A., where it was recorded that he and Sultan jointed the police at the police station. 'The second recovery witness named, Suleman, who was not produced, was also a first cousin of the deceased.
It was admitted by Muhammad Rafiq P. W. That many persons had collected in the village at the time of recoveries, but none from the residents of the village was produced in support of the recoveries. In view of these circumstances, no reliance could be placed on the statement of Muhammad Rafiq P. W. The recoveries of weapons of offence had not been proved through any reliable disinterested evidence Hence those recoveries could not be taken to be a corroborative piece of evidence against Abdul Ghaffar and Jabbar appellants.
11. After having considered the record, I hold that the prosecution failed to prove the case against the appellants beyond doubt. The appeal is accepted and the impugned judgment is set aside.
The appellants are acquitted of the charge. They shall be set free forthwith unless required in any other case.