' Mazharul Haq, J.-- Muhammad Rafique (30), Muhammad Nawaz (32), Ghulam Muhammad (32)
Haitam (26), Mehmood (25) and Shamir (sin- dead) were accused of the murder of Barkat. Shamir died before the trial. Learned Additional Sessions Judge Multan convicted all accused except Mehmood who was acquitted on 16th June, 1980. Muhammad Rafiqu. And Muhammad Nawaz were sentenced to death. Ghulam Muhammad and Haitam were sentenced to life imprisonment. The four accused were fined Rs,5,000 each, in default to suffer one year R.I. Fine if realized wat ordered to be paid as compensation to the heirs of the deceased. Appeal of the convicts and the connected murder reference are before us.
2. About 14/15 years before the occurrence in this case, Barkat Al (deceased) alongwith Noor and Nazar murdered Salabat, a brother ci Muhammad Rafique accused but they were acquitted by the High Court, This was the motive for the crime in this case. According to the prosecution on 30th December, 1978 Haitam (informant) alongwith his maternal-cousin said Barkat were coming from Q Talpur to Manzar Abad on a mare. At 4 p.m. They reached near the bank of river Ravi a place called Pattan Shakrowala. They alighted from the mare in order to cross the river in the boat of Abdullah (not produced). As they went near the boat Haitam son of Nusrat Ghulam Muhammad, Rafiq Nawaz and Mahmood armed with hatchets and Shamir armed with Dang suddenly appeared and raised a Lalkara at Barkat that they would avenge the murder of Salabat. Rafique inflicted a hatchet blow on the left side of Barkat's head near the ear. Ghulam Muhammad inflicted a hatchet blow near his right eye. Barkat Ali fell down thereafter, Nawaz inflicted a hatchet blow on his neck. All accused then inflicted injuries with their respective weapons to him. Barkat Ali died at the spot. The occurrence was seen by Abdullah Ghulam Sarwar and Allah Bakhsh who were present in the boat. The accused frightened the witnesses with death and went away.
3. Covering a distance of two miles Haitam reached the Police Station Sarai Sidhu at 5-15 p.m. The same evening and made report Exh.P.F. To P.W.12 Raja Mehmud Khan S.I./S.H.O. After registering the case, the S.I. Went to the place of occurrence, prepared the necessary documents and sent the dead body for its post-mortem examination.
4. P.W. 1 Dr. Syed Ziaud Din Zaidi, Medical Officer, Civil Hospital Kabirwala, held, the autopsy on 31st December, 1978 and found the following injuries on the dead body of Barkat:--
(1) An incised wound on the right side of the face and head obliquely in front of right ear 5" x 1" x 4" cutting the scalp bone brain coming out.
(2) Incised wound on the right side of the right eye 1" x 3" x bone deep obliquely.
(3) Incised wound on the right side of the face and neck 4" x 13" x 2" obliquely with cutting of the mandible and blood vessels.
(4) Incised wound on the back of head extending to right side of the face measuring 1" x 3" x 4" cutting the scalp bone into pieces, brain matter coming out (This looks to be caused by multiple blows).
(5) Incised wound on the right side of the neck below injury No,4 measuring 13" x 3" x 1".
(6) An incised wound on the back of the head on right side at a distance of 2" from right ear. 3" x 3" x bone deep obliquely.
(7) Incised wound on the back of chest below neck 23" x 3" x 1" transversely.
(8) Contusion mark on the back of right scapula 3" x 3" obliquely upper part.
(9) Contusion mark on the back of right scapula 2" x 3" obliquely lower part.
(10) Contused wound on the back of chest on right side lower part i" x i" x skin deep transversely.
(11) Contusion mark on the front of right thigh upper part 33" x 1" transversely.
(12) Contusion mark on the front of right thigh lower part 23" x 1" obliquely.
(13) Abrasion on the front of right leg upper part 3" x 3".
Stomach contained water. Small intestine was empty. Large intestine contained faecal matter. In doctor's opinion death was due to bleeding and shock caused by injuries Nos.1, 3 and 4. They were individually sufficient to cause death in the ordinary course of nature.
5. All accused were arrested on 2nd January, 1979 except Mahmood. Since the clothes of the accused were blood-stained, P.W. 12 Raja Muhammad Khan, S.I., got them removed and took them into possession, Nawaz's Kurta P.12 and Chadar P.13 Ghulam Muhammad's Lungi P.W.14 and Kurta P.15, Rafique's Kurta P.16 and Chadar P.17., Haitam's Kurta P.18 and Chadar P.19 and Shamira's Kurta P.20 and Chaddar P.21. They were made into separate sealed parcel respectively through Exh.P.L., Exh.P.M.
' Exh. P.O. And Exh.P.Q. Attested by P.W.9 Mushtaq, Haitam (given up) and P.W. 12 Raja Muhammad Khan, S.I. On 6th January, 1979 all accused got recovered their blood-stained weapons. Rafique led to the recovery of blood-stained hatchet P.6 from his house. It was sealed into a parcel through memo. Exh.P.E. Nawaz got recovered his blood-stained hatchet P.7 from his house, its memo. Is Exh.P.F. Ghulam Muhammad got recovered his blood-stained hatchet P.8. Its memo. Is Exh.P.G.
Haitam led to the recovery of his blood-stained hatchet P.9 from his house. Its memo. Is Exh.P.H.
Shamira (since dead) led to the recovery of his Dang P.10 from his house,its memo. Is Exh.P.U.
Mehmood who was arrested on 6th January, 1979 led to the recovery of his hatchet the same day from a cluster of Sukanda. It was made into a sealed parcel and taken into possession through memo. Exh.P.K. All the aforesaid memos. Were attested by P.W.7 Sher Muhammad, Bashir Ahmad (given up) and P.W.10 Allah Dad S.I After completing the investigation, the accused were sent up for trial
6. Ali accused denied guilt and ascribed the case to enmity with the witnesses. Admitting their inter se relationship, they denied their friendship with Mehmood (acquitted-accused). Rafique accused denied knowledge of his brother Salabat's assailants. As according to him he was too young at that time. Explaining away the motive, the other accused supported Refique's statement. All accused denied the recovery of their blood-stained clothes and weapons. They led no evidence in defence.
7. Relying on the solitary statement of P.W. 13 Haitam (informant) and that of the recovery of blood- stained clothes of the accused, trial Court came to the conclusion that the prosecution case was satisfactorily proved against all accused except Mehmood who had no motive to join the others in the commission of the crime. There was no recovery of bloodstained clothes from him either.
Moreover, the blood-stained hatchet got recovered by him was found from an open place accessible to all. For these reasons, he was given the benefit of doubt and acquitted.
8. Criticizing trial Court's finding, learned counsel for the appellants contended that Haitam the solitary eye-witness in this case was related to Barkat (deceased). Though he had no direct enmity but by virtue of his close relationship with the deceased he would be a partisan of the complainant party. Moreover, the three eye-witnesses Abdullah, Ghulam Sarwar and Allah Bakhsh who were named in the F.I.R. Were not produced at the trial. Under these circumstances, the solitary statement of Haitam required corroboration from an independent source which was lacking in this case. Learned counsel for the appellant next contended that Haitam son of Rana who had attested the recovery memos, of the blood-stained clothes of the appellant had been given up but at the trial strangely enough P.W.13 Haitam son of Saada (informant) claimed to have attested these memos. Which on the face of it was incorrect P.W.9 Mushtaq Ahmad, the other witness of this recovery admittedly lived at a distance of two miles away from the place of arrest of the accused which was said to be near the bank of fiver Ravi. This witness claimed to have land near the place of the recovery but his evidence did not inspire confidence for the reason that he did not mention the names of the other witnesses who attested the recovery with him. According to P.W. 12 Raja Mehmand Khan, S.I. Haitam (informant) was present at the place of occurrence with P.W. Mushtaq but we find that the recovery memos. Of the bloodstained clothes are attested by another person namely Haitam son of Rana who had been given up and Haitam (informant) took up a false position that he had attested these recoveries. Moreover, there is another suspicious circumstance about the recovery of the blood-stained clothes i,e, according to P.W.12 Raja Mehmand Khan, S.I., Muhammad Nawaz, A.S.I. Produced the accused before him at the place of occurrence on 2nd January, 1979 and it was there that he arrested them. This A.S.I. Has not attested the recovery memos, of the blood-stained clothes not only that, he is not even cited as a witness in this case. It may also be mentioned here that according to P.W. Mushtaq, the accused were in handcuff when the A.S.I. Produced them at the place of occurrence. As such the prosecution has failed to prove as to when and from where the accused were arrested by Muhammad Nawaz A.S.I. Even otherwise it was highly improbable that the accused were wearing blood-stained clothes on the fourth day of the occurrence where they were said to have been arrested. They had ample time to wash away their clothes. As to the recovery of the blood-stained weapons of the accused suffice it to say that for good reasons it has not been relied upon by the trial Court i,e, there were other members of the family of the accused present in the house when the recoveries were effected.
9. Sole question for determination in this appeal would be whether Haitam P.W.13 the solitary eye- witness can be relied upon. Undoubtedly e is closely related to Barkat (deceased) who was involved in the murder of Rafique appellant's brother. It has been mentioned earlier that P.W.13 Haitam misstated about having attested the recovery of the blood-stained clothes of the accused.
His evidence even otherwise does not inspire confidence. He claimed to have accompanied the deceased. They were to board a boat to cross the river for going to village Manzar Abad. When they reached near the river bank, the occurrence took place. P.Ws. Abdullah, Ghulam Sarwar and Allah Bakhsh were in the boat. They have not been produced. Moreover, the story put up by P.W. 13 Haitam was improbable because there were three persons in the boat who had come ashore but not put up resistance against the accused. On the other hand we find that the deceased and the informant had a mare with them on which they rode upto the river. It is in evidence that the accused were at a distance of 28 paces when they were first sighted, the deceased and the informant had enough time to escape on the mare. We find that the mare was also not taken into possession in this case.
10. For the foregoing reasons, we do not consider it safe to place reliance on the solitary statement of Haitam (informant) who is an interested witness and whose evidence even otherwise does not inspire confidence. We, therefore, accept the appeal, give the benefit of doubt to the appellants and acquit them. They shall be released forthwith if not required in any other case.