' Gulbaz Khan, J.--Murder Reference and two criminal appeals filed separately by Abdul Qayyum alias Kaloo and Nasir Ahmad alias Nasiria are being disposed of together as they arise out of the same judgment.
2. Abdul Qayyum and Nasir Ahmad were tried alongwith Abdul Rashid for offences under sections 302/34, 307/34 and 450, P.P.C. Abdul Rashid co-accused was acquitted of the charges, while Abdul Qayyum and Nasir Ahmad were convicted under the aforesaid offences.. Abdul Qayyum was sentenced to death and a fine of Rupees five thousand or in default in payment of fine to undergo R.I. For two years under section 302/34, P.P.C., whereas Nasir Ahmad was sentenced to imprisonment for life and a fine of Rupees five thousand or in default thereof to suffer R.I. For two years. Both the appellants were sentenced to undergo R.I. For seven years and a fine of Rupees three thousand each or in default in payment of fine to undergo R.I. For one year under section 307/34, P.P.C. They' were further convicted under section 450, P.P.C. And sentenced to undergd R.I.
For three years and a fine of Rupees five hundred each or in default thereof to undergo R.I. For six months. All the substantive sentences were ordered to run concurrently. It was further ordered that two-third fine imposed under section 307/34, P.P.C., if recovered, shall be paid to the legal heirs of the deceased and two-third-fine imposed under section 307/34, P.P.C., if recovered, shall be paid to Muhammad Shafiq P.W. As compensation.
3. On 30th September, 1979, Abdul Qayyum and one Humayun robbed of Muhammad Shafiq P.W.For which a case F.I.R. No,287 was registered on 4th October, 1979 under section 382. P.P.C. On the statement of Muhammad Shafiq P.W. It was alleged in the present case that Abdul Qayyum appellant and his friends Nasir Ahmad and Abdul Rashid bore grudge on that account.
4. On 23rd November, 1979 at 5-30 p.m., Muhammad Shafiq complainant (P.W.16) and his younger brother Muhammad Nafis deceased were present at their shop. Abdul Qayyum, Nasir Ahmad and an unknown person (who was later found out as Abdul Rashid acquitted accused) came to their shop armed with daggers. Abdul Qayyum appellant shouted that Muhammad Shafiq and Muhammad Nafis be done to death and inflicted dagger blows to Muhammad Nafis deceased.
Nasir Ahmad and Abdul Rashid also inflicted dagger blows to the deceased. The deceased tried to catch hold of Abdul Qayyum but the latter gave him a bite near the left wrist. The deceased ran out of the shop and fell near the house of Haji Muhammad Ibrahim. The appellants and the acquitted accused caused injuries to Muhammad Shafiq complainant with daggers after entering into the shop. The complainant raised noise. Muhammad Rafiq P.W.17 (brother of the deceased) and Nawab Din (not produced) came to the spot and witnessed the occurrence. The appellants and the acquitted accused fled away from the spot. Muhammad Nafis expired near \Crown Cinema when being taken to Civil Hospital Gujranwala, by Muhammad Rafiq and Nawab Din P.Ws.
Muhammad Shafiq complainant was also taken to the Hospital by the above-mentioned two witnesses. Muhammad Yasin, 5.11.0. Police Station Baghbanpura, Gujranwala, received information on telephone about the two injured persons having been taken to D.H.Q. Hospital. He reached the hospital on the same day at 6-00 p.m. He made query from the doctor if Muhammad Shafiq complainant was fit to make statement. On receiving doctor's reply in the affirmative, he recorded the statement of Muhammad Shafiq Exh. P.E. And sent it at the Police Station for registration of the case. Formal F.I.R. Was recorded the same day at 7-15 p.m. The S.H.O. Prepared injury statement and inquest report of the deceased and despatched the dead body to the mortuary for post- mortem examination. He collected blood-stained earth from the place where the deceased fell down and also from the shop of the complainant and made them into separate parcels. He took into possession blood-stained Shalwar of Shafiq P.W., which was produced by Rafiq P.W. He arrested Abdul Rashid acquitted accused on 25th November, 1979, who was wearing blood-stained shirt P.7 and blood-stained Shalwar P.8 and the same were removed from his person and sealed into a parcel vide memo. Exh. P.L. The memo. Was attested by Muhammad Yusuf (P.W.12) and Muhammad Akram (not produced). He was interrogated about the weapon of offence. On 29th November,1979 he produced blood-stained dagger P.10 from his house and it was sealed into a parcel. The relevant memo, was attested by Manzoor Ahmad (P.W. 14) and Abdul Majid (not produced). Abdul Qayyum and Nasir Ahmad appellants were arrested on 11th December, 1979. On the same day, each of them produced blood-stained dagger, which were sealed into separate parcels. Nasir Ahmad (P.W.15) and Muhammad Sharif (not produced) attested the memo, of dagger produced by Abdul Qayyum appellant while Muhammad Rafiq (P.W.17) and Khalid Mahmood attested the memo. Of dagger produced by Nasir Ahmad appellants and the acquitted accused were challaned after investigation.
5. For valid reasons, the trial Court did not place any reliance on the statement of Muhammad Rafiq (P.W.17) who was an eye-witness in his case. The second eye-witness named Nawab was not produced in Court as having been won over. The trial Court also did not believe the recoveries referred to above.
6. Dr. Nazir Ahmad conducted autopsy on the dead body of Muhammad Nafis, on 24th November, 1979 at 11-00 p.m. He found four stab wounds, three incised wounds and two abraded contusions on the dead body. Injuries Nos. 5 and 6 were abraded contusions on the back of left forearm and according to doctor, most probably they were the result of teeth bite. The death was due to shock and haemorrhage on account of injuries Nos. 1 and 8 which were individually sufficient to cause death in the ordinary course of nature. Both were stab wounds on the chest and left upper thigh.
The time between injuries and death was immediate and between the death and post-mortem about twenty hours.
' The same doctor had earlier examined Muhammad Shafiq P.W. On 23rd November, 1979 at 8-25 p.m. He had noticed four incised wounds on his body. The patient was in shock. His pulse was feeble and the condition was unsatisfactory. All the injuries had been caused by sharp-edged weapon. His injuries were kept under observation but later found simple in nature. The injuries were the result of sharp-edged weapon.
7. We are now left with the statement of Muhammad Shafiq complainant. His version has already been described above. He had received injuries and his presence could not be disputed. The question is as to whether or not he had made a correct statement. The place of occurrence was surrounded by inhabited houses. The complainant admitted in cross-examination that the neighbours had come to the spot at the time of occurrence. It was not the case of the prosecution that none else, except the eye-witnesses, saw the occurrence. None from the neighbours, who witnessed the occurrence, came forward to support the prosecution case. The trial Court erred in holding that Muhammad Shafiq was a disinterested witness. It was not correctly observed by the learned Sessions Judge that there was no previous enmity between the parties. While making this observation the learned Sessions Judge did not keep in mind that about 1-3/4 months, prior to the occurrence, Muhammad Shafiq had lodged a report under section 382, P.P.C. Against Abdul Qayyum and one Humayun. Even in the present case, the previous occurrence was stated to be the motive for assault. In view of these circumstances, Muhammad Shafiq could not be considered as disinterested witness.
' The conduct of Muhammad Shafiq was unnatural. He neither tried to catch hold of the accused nor tried to run away. He did not make any attempt to cause injury to the accused. He even did not raise noise. Dr. Nazir Ahmad stated in Court that the deceased was having condom (contraceptive sheeth) commonly known as french leather on his penis and the same was removed by the doctor.
The deceased had not been done to death within the shop. His dead body was found near the house of Haji Muhammad Ibrahim and the distance between the shop and the place, where the dead body was found, was about fifty feet. The prosecution had not explained as to how the deceased was having condom on the penis. It was suggested to the complainant that the deceased had gone to the house of Haji Muhammad Ibrahim and inmates of the house caused him injuries as he tried to molest the woman and when he (complainant) went to rescue the deceased, he was also caused injuries. For the reasons that the deceased was not done to death in his shop and was having condom on the penis and the dead body was found in the lane near the house of Haji Muhammad Ibrahim, it could not be said that defence suggestion was without any basis. The conduct of the complainant at the spot showed that the occurrence had not taken place in the manner as stated by the complainant. The statement of the complainant could not be accepted without independent corroboration which we find lacking in this case. The complainant had not given the correct time of occurrence. He gave the time of occurrence in the F.I.R. As well as at the trial as 5-30 p.m. During cross-examination he stated that he reached the hospital at 5- 45/6-00 p.m., which meant that the distance from the spot to the hospital could be covered in fifteen/thirty minutes. In case Muhammad Shafiq and the deceased had been taken to the Hospital, the doctor would have examined Muhammad Shafiq complainant soon after his arrival.
The doctor stated in Court that he examined Muhammad Shafiq P.W. At 8-'25 p.m. In medico-legal report of Muhammad Shafiq Exh. P.B., against column of date and hour of arrival, the time of arrival had been recorded as 8-25 p.m. No time has been given in the query Exh. P.C. Made by the S.H.O.
Regarding the condition of Muhammad Shafiq. Henc the prosecution had no evidence to show that the query had been made prior to the examination of Muhammad Shafiq. On 23rd November, 1979, the sunset time was 5-00 p.m. It is another indication that the deceased and the complainant were caused injuries some time late in the evening, and not at 6-30 p.m. As stated by the complainant.
The injuries on the person of Abdul Qayyum and Nasir Ahmad could not be considered as a corroborative piece of evidence. Nasir Ahmad was medically examined on 12th December, 1979.
The duration between the injuries and the medical examination was twelve days. If that period is counted the said appellants had received injuries on or about 30th November, 1979, whereas the present occurrence had taken place on 23rd November, 1979. It was not the case of the prosecution that the two appellants had sustained injuries at the spot. In these circumstances, injuries on the persons of the two appellants could not be considered as a corroboration.
8. After having considered the entire material on record, we hold that Muhammad Shafiq complainant had not come out with truth. The prosecution failed to bring home the guilt of the appellants beyond doubt. We accept this appeal, set aside the impugned judgment and acquit the appellants of the charges. They shall be set free forthwith, if not required in any other case.
' The death sentence of Abdul Qayyum alias Kaloo is not confirmed.