' This Criminal Appeal No, 32/1981 arises from the judgment of the learned Additional Sessions Judge, Dera Ghazi Khan, whereby, he, on 8th February, 1981 convicted Shah Ghulam and Allah Bachaya appellants (brothers inter se) under section 302/34, P.P.C. For causing the death of Muhammad Alam deceased and sentenced them to imprisonment for life and a fine of Rs, 5,000 each, in default thereof to further R.I. For 3 years. The appellants were also directed to pay Rs, 5,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr. P.C. Which in case of default, was directed to be recovered as an arrear of land revenue.
2. The occurrence took place on 17th January, 1976 at 3/4 p.m. In Chak Daim of village Rojhan. The F.I.R. Exh. P.B. Was lodged by Sana Ullah P.W.3, brother of the deceased at Police Station Rajhan at 4- 30 p.m. On the same day and was recorded by Nafees Ahmad 5.1. C.W.5. The F.I.R. Exh. P.B. Was registered against six persons namely, Shah Ghulam, Allah Bachaya and the acquitted four accused namely, Faqir Bakhsh, Miran Bakhsh, Wahid Bakhsh and. Niaz Muhammad Khan. As a result of the investigation only Shah Ghulam appellant was found to be guilty and challaned on 5th February, 1976. Feeling, dissatisfied with the investigation Sana Ullah P.W.3, filed a complaint Exh.
P.C. On 11th May, 1976 which was sent upto the learned Sessions Judge, who, sent the same for inquiry and report under section 202, Cr.P.C. To a Magistrate 1st Class who submitted his report only against Shah Ghulam appellant. The learned Sessions Judge, however, summoned Allah Bachaya and Shah Ghulam appellants to face trial for the murder of Muhammad Alam and refused to summon the remaining four accused namely, Faqir Bakhsh, Miran Bakhsh, Wahid Bakhsh and Niaz Muhammad Khan. Aggrieved by this order the complainant moved revision before the High Court.
The High Court vide its order, dated 24th May, 1980 directed that all the six accused be tried for the murder of Muhammad Alam. The case had been entrusted to the learned Additional Sessions Judge, Dera Ghazi Khan, who, vide his order, dated 10th January, 1981, decided to proceed with the complaint case first.
3. The prosecution case is that Shah Muhammad brother of the appellants was murdered 4/5 years before the occurrence. In that case Muhammad Alam deceased in this case and the complainant Sana Ullah with others were challaned as accused persons. They were, however acquitted by the learned Sessions Judge, Dera Ghazi Khan vide his judgment Exh. P.D.D., dated 21st August, 1972. To take the revenge, the appellant and others had allegedly killed Muhammad Alam deceased on 17th January, 1976 when he was on his way to his house accompanied by Sana Ullah P.W.3, Farman Ali P.W.4 and Sahiban (given up). It has been alleged that Shah Ghulam appellant and Faqir Bakhsh acquitted accused were armed with sticks. Allah Bachaya appellant was armed with a hatchet, Wahid Bakhsh, Miran Bakhsh and Niaz Muhammad Khan were empty-handed. Niaz Muhammad had raised Laikara, Wahid Bakhsh and Miran Bakhsh had taken the deceased in their grips, Allah Bachaya had initiated blow on the head of the deceased with his hatchet whereupon, the deceased fell down and then was injured by Shah Ghulam .And Faqir Bakhsh with their respective weapons. The accused persons, after causing injuries to the deceased fled away.
Muhammad Alam in injured condition was taken towards the Hospital but expired on the way.
4. In order to prove its case the complainant examined three witnesses. P.W.1 Dr. Saeed Ullah, on 18th January, 1976 at 8 a.m. Conducted the post-mortem examination on the dead body of Muhammad Alam and found the following injuries :--
(1) One vertically placed incised wound 5" x 2" x bone cut and fractured with brain matter coming out on the left tempro-parietal region just above the left ear. The brain matter and pieces of bones were present over the Charpye. He was baked in sand.
(2) One horizontal incised wound 2" x 1/2" x bone cut and fractured with brain matter coming out on the right side of midline at the crown of head about 44" from the right ear and 1" from the medial margin of right eye-brow.
(3) One horizontal incised wound 1/2" x 1/4"'x scalp deep at the mid line in front of injury No,2.
(4) One horizontal incised wound 1" x 1/4" x bone cut and fractured at the right side of back of head over the occipital area.
(5) One oblique lacerated wound 3" x 1/2" x bone fractured at the left side of crown of head about 34" from the left ear and 9" on the medial end of left eye-brow.
(6) One vertically placed lacerated wound 14" x 3/4" x bone fracture on the left side of back of head over the occipital bone area.
(7) One horizontal placed lacerated wound 1" x 1/4" x scalp deep crossing the mid line on both sides at the middle of back of head.
(8) One horizontal lacerated wound 4" x 1/4" x scalp deep just above the lateral end of left eye- brow.
(9) One horizontal lacerated wound 4" x 1/4" x muscle deep just below the right eye.
' In the opinion of the doctor the death had occurred due to laceration and compression of brain resulting in coma from the fractures of skull bones. All injuries were ante-mortem and injuries Nos. 1, 2, 4, 5 and 6 were sufficient to cause death in the ordinary course of nature. The rest of the injuries were simple in nature. Injuries Nos. 1 to 4 were caused with sharp-edged weapon and the rest with blunt weapon. On a query the doctor replied that injuries Nos. 5 to 9 were possible with Danda but as far as sharp-edged injuries Nos. 1 to 4 were concerned some time if a weapon like that was used on a hard surface like skull etc., it could produce just like the injuries of sharp weapon. P.W.2 Safdar Ali had identified the dead body of Muhammad Alam at the time of post-mortem examination.
P.W.3 Sana Ullah and P.W.4 Farman Ali have given the ocular account of the occurrence and supported prosecu on case. The trial Court has, however, examined as many as 7 C.Ws. Khawand Bakhsh Patwari, had prepared the site plan Exh. C.W.I /A. C.W.2, Qadir Bakhsh A.S.I. Had prepared the copy of the F.I.R. No, 149, dated 26th June, 1975. C.W.3, Ghulam Farid, Head Constable had got the parcels in safe custody, and handed over the same to Muhammad Jamil F.C. For onward transmission to the office of the Chemical Examiner. C.W.4, Muhammad Ismail, F.C., took the parcels to the Office of the Chemical Examiner intact. C.W.5, N'afees Ahmad S.I. Had recorded the F.I.R., investigated the case and submitted the challan against Shah Ghulam alone, C.W.6, Syed Mahmood Ali Shah, D.S.P., Rajanpur had partly investigated the case and had found the accused persons other than Shah Ghulam, innocent. C.W.7, Sardar Mobeen Azam, Advocate for the complainant was examined as Court witness. He stated that he did not appear before the Investigating Officer in connection with the investigation of the case. It is remark3ble that after his statement he was allowed to conduct the case on behalf of the complainant.
5. The appellants denied the incriminating circumstnaces and stated that they were falsely involved. In defence two witnesses namely, Barkat and Bakhsha were examined.
6. The appellants were arrested on 20th January, 1976, no recovery was effected from Allah Bachaya appellant. Shah Ghulam appellant, however, produced Sota Exh. P.C. (not blood-stained) which was taken into possession vide memo. Exh. C.W. 5/F attested by Allah Jawaya (not produced). Hasil Muhammad (not produced), Nemat Ullah (not produced) and Nafees Ahmad C.W.5. The blood-stained shirt Exh. C/8 was removed from the person of Shah Ghulam vide memo.
Exh. C.W. 5/E attested by the same witnesses. According to the Chemical Report Exh. P.D. The shirt was stained with blood. The Serologist's report has, however, been withheld. This recovery was attested by the same witnesses.
7. Learned counsel for the appellants submits that the eye-witnesses namely, Sana Ullah P.W.Ti, and Farman All P.Ws, being interested and chance witnesses are not reliable and in any case conviction should not be upheld on the uncorroborated testimony of these witnesses. The learned State counsel has, however, defended the judgment of the learned trial Court.
8. After hearing the leaned counsel for the parties and going through the record I find that Shah Muhammad brother of the appellants was murdered 4/5 years before the occurrence. For his murder Muhammad Alam deceased and Sana Ullah complainant with others were challaned as accused persons. In that murder case, Allah Bachaya appellant, Faqir Bakhsh acquitted co- accused among others were prosecution witnesses. It is, thus, crystal clear that there was enmity between the parties and the complainant Sana Ullah had a motive to falsely involve the appellants and the acquitted co-accused. There is no denying that this motive is a double-edged weapon and it could have been a cause for the murder of Muhammad Alam also. I am of the opinion that the benefit of this enmity, in the circumstances of the case, however, may not be given to the prosecution. Be that as it may, the fact remains there, that there is enmity between the parties and as such the eye-witnesses namely, Sana Ullah brother of the deceased and Farman Ali son of the deceased who belongs to the hostile camp have to be termed as interested witnesses. Since the occurrence had taken place at considerable distance from the house of these witnesses, they at least cannot be declared as natural witnesses. Both of them have stated that they had gone to Rojhan to make some purchases. Sana Ullah complainant has stated that they had gone to Rojhan to purchase sundry article. Farman Ali P.W.4 had accompanied them for the sake of company, they had purchased 'Dal' etc. From shops situated in Rojhan. He admitted that during the investigation the shopkeepers from whom they had made purchases had refused to support them. He further stated that at the time of occurrence, the articles purchased by them fell on the ground which were taken into possession by the police through recovery memos. It is to be noted that the investigating officer has stated that he had not seen any article lying on the spot and had also not taken any article in his possession. Farman All P.W.4, stated that they had gone to Rojhan for purchasing some household articles. They had purchased vegetables and no other article was purchased by them. He clearly stated that Sana Ullah complainant, did not purchase anything on that day. He further stated that -he had produced the articles purchased by his father before the police but the same were returned to him and that no recovery memo. Was prepared. He admitted that during the investigation the police had taken him to point out the shopkeepers from whom his father had made purchases but he expressed his inability to point out those shops. The discrepancies pointed out above indicate that these witnesses have failed to give any cogent reasons for their presence at the place of occurrence when the murder was committed. I further find that these witnesses had involved four co-accused namely, Faqir Bakhsh, Miran Bakhsh, Wahid Bakhsh and Niaz Muhammad Khan but they have been acquitted by the trial Court. It is worth noticing that according to these witnesses Faqir Bakhsh had also inflicted Dang blows on the person of the deceased and they have assigned him the same role as that of Shah Ghulam appellant but Faqir Bakhsh was acquitted by the trial Court.
9. For what has been stated above I am of the opinion that it would be highly unsafe to uphold the conviction of the appellants on the uncorroborated testimony of these two witnesses. Sahiban P.W.
Who is sister's husband of the deceased has not been produced' to corroborate these two witnesses and was given up as having been won over. Since the Sota allegedly recovered from Shah Ghulam was not blood-stained and the Serologist's report with regard to his shirt Exh. C/8 allegedly removed from the person of Shah Ghulam appellant have been withheld, the alleged recoveries cannot be used as corroborative evidence. The recovery of the shirt is even otherwise doubtful because Shah Ghulam appellant was found wearing blood-stained shirt when he was arrested after three days of the occurrence. The motive, in the circumstances of the case, cannot be used to corroborate the story of the prosecution of the identity of the assailants.
10. The upshot of the above discussion is that the prosecution has failed to prove its case against the appellants beyond reasonable doubts. The appeal is accordingly accepted. The appellants are acquitted of the charge. They shall be set at liberty forthwith if not required in any other case.
11. Before parting with the judgment. I would like to observe that some irregularities were committed during the proceedings inasmuch as Sardar Mobeen Azam Khan, learned counsel for the complainant was allowed to withdraw simply because, C.W.6, Syed Mahmood All Shah D.S.P., had stated that Sardar Mobeen Azam Khan, Advocate had visited him during the investigation. The trial Court allowed Sardar Mobeen Azam Khan, Advocate to withdraw from the case. Thereafter, the Public Prosecutor who was not in charge of the case was asked to cross-examine the C.W.
Forthwith. Then Sardar Mobeen Azam Khan, Advocate was examined as C.W.7 and was allowed to prosecute the complainant. Since no objection was taken by the complainant at that time, he has also not challenged the judgment of the trial Court through appeal against acquittal or revision. I am of the opinion that these irregularities do not vitiate the trial. Further the same have not caused prejudice to parties. Since the prosecution evidence has not been considered sufficient for convicting the appellants I need not to discuss the C.Ws. And D.Ws.--