Zakir Hussain 28, Ahmad Yar 33, Madad Ali 21, three real brothers Were found guilty of the charge of committing the murder of Muhammad Hussain 36, by Mr. Muhammad Akram Baitu, learned Additional Sessions Judge, Faisalabad vide his order dated 2nd September, 1981. Each of them was convicted and sentenced to imprisonment for life and to a fine of Rs, 5,000 or in default to undergo imprisonment for two years. It was directed that the fine, if realised, half of the same shall be paid as compensation to the heirs of the deceased. The conviction and sentence has been challenged in this appeal. Muhammad Younis complainant has filed a revision petition seeking enhancement of the sentence of the three appellants. This judgment will dispose of both the appeal and the revision petition.
3. Muhammad Younis complainant and Muhammad Hussain deceased were proceeding towards their Dhari from the village at 6.00 a.m. On 14th May, 1979 when the appellants came out of biding from a clump of trees and after raising lalkara attacked the deceased with hatchets. Zakir Hussain appellant gave a hatchet blow on the head of the deceased from its blunt side while Ahmad Yar and Madad Ali appellants gave two blows each with their hatchets from the sharp side on the back of the deceased resulting in his death five days later in the hospital without regaining consciousness. Muhammad Younis complainant, a brother of the deceased tried to intervene but he was scared away by the appellants. The occurrence was, however, witnessed by two others, Bashir and Hayat P. Ws. Who were attracted to the place of occurrence. Muhammad Younis P. W.
And Muhammad Hussain deceased were sentenced to eight years' R. I. Eighteen/nineteen years before the present occurrence for causing injuries to the father of the appellants and it was on that account an attack was mounted on the deceased. The matter was reported promptly to the police at 8.15 a.m. The same day. The complainant was going towards Police Station Chak Jhumra which is fourteen miles away when he was met by the S. H.O. On the road side. The formal F. I. R. Was recorded at the Police Station at 8.35 a, in. The hatchets said to have been used in the commission of the offence were recovered from Ahmad Yar and Madad Ali. The hatchet belonging to Madad Ali was found to be stained with blood. The licensed Gun belonging to Muhammad Hussain deceased which the deceased was carrying at the time of occurrence was also recovered from Madad Ali. No recovery was made from Zakir Hussain appellant. The recovery of the gun from Madad Ali appellant took place on 29th May, 1979 and of the hatchets on 30th May, 1979. Apart from the Investigating Officer, the recovery was witnessed by Manzoor, P. W. 6 who is claimed to be an independent witness but according to the appellants the maternal grandmother of Manzoor was the paternal grandmother of the deceased. The case was also investigated by Mr. Abdul Waseh, D.S.P., D. W. 1 and Muhammad Shafi Saleem, D. S. P., D. W.
2. According to these Police Officers the complicity of Zakir Hussain and Madad Ali appellants was not proved. Nevertheless all the three appellants were challaned by the police after investigation.
3. The case of the appellants in a nutshell is that they have been falsely implicated on account of enmity and the real culprit was an unknown person as the occurrence was not witnessed by any of the eye. Witness. It is also argued on their behalf that the eye-witnesses are not worthy of reliance as they are closely related to the deceased and there is proved enmity between the parties. It is contended further that there is no corroboration of ocular testimony which evidence is necessary before coming to a conviction that the accused are guilty of the offence in view of the admitted enmity between the parties. The case of the complainant, on the other hand, is that the F. I. R. Was prompt and the accused were mentioned in the F. I. R. As were the eye-witness and there is no reason for sparing the real culprit and substituting the appellants for the real assailants. As regards the investigation conducted by the two Deputy Superintendents of Police who were called as defence witnesses, it is submitted on behalf of the complainant that their reports should be of no consequence as they conducted the investigation more than four months after the occurrence.
4. Muhammad Younis complainant P. W. 7 was accompanying the deceased when the occurrence took place. And on his alarm Bashir and Hayat the two other eye-witnesses were attracted to the place. The testimony of Muhammad Younis, therefore, is of paramount importance. He described the injuries caused to the deceased in considerable detail but it is strange that while an attack was mounted on Muhammad Hussain deceased Muhammad Younis was not attacked at all, whereas according to the complainant both he and the deceased were responsible for causing injuries to the father of appellants eighteen/nineteen years ago. In fact according to the First Information Report Muhammad Yunis alone was responsible for causing injuries to the father of the appellants and was sentenced to eight years' R. I. He does not mention the deceased at all as one of his co- accused in the F.I.R. In the statement before the Court, he, however, refers to himself as well as the deceased as persons responsible for causing injuries to the father of the appellants which became the motive for the present occurrence. If the F. I. R. is to be believed Muhammad Younis should have been the first target and not the deceased and if the statement of Muhammad Yunis made before the trial Court is believed then both Muhammad Younis P. W. and his brother Muhammad Hussain deceased would be the targets. On the other hand, Muhammad Younis wishes it to be believed that he was not attacked at all and the appellants were content only in scaring him away and preventing him from interfering in the assault. This can lead to only one conclusion. Either Muhammad Yunis was not present at the place of occurrence at all or he is not telling the truth.
5. Bashir and Hayat are the two eye-witnesses to the occurrence. Bashir is the son-in-law of the deceased and Hayat is a brother-in-law of the deceased. They were both attracted to the place of occurrence on the alarm raised by Muhammad Younis P. W. but their presence near the place of the occurrence is only by chance. While Bashir P. W. was only a few karams away from the place of occurrence. Muhammand Younis w as 2 killas away from the place of occurrence. It is, however, strange that none of them took any steps to intervene and save the deceased who was their close relative. Bashir P. W. in particular was close enough, like Muhammad Younis P. W.. to attempt at saving the deceased. These two eye-witnesses have done nothing of the sort which is an unusual A conduct and creates considerable doubt regarding their very presence at the spot.
6. According to the prosecution the deceased was carrying a gun and a bag containing cartridges when the occurrence took place. He was carrying the gun for his protection but he did not use the gun to protect himself because perhaps the attack was too sudden. This, however, is not so. The complainant has categorically stated that the appellants raised a lalkara on coming out of the cluster of trees before actually opening the attack. This should ordinarily give enough opportunity to the deceased to use the gun out it is possible, on the other hand, that he was carrying an unloaded gun and that there was not time enough to load and use it.
7. The previous enmity between the parties cannot be denied and similarly the close relationship of the eye-witnesses with the deceased cannot be denied. Even if it is assumed that the eye- witnesses were present when the occurrence took place their testimony cannot be believed without corroboration as obviously the eye-witnesses are interested witnesses. No conviction can be based on the evidence of interested witnesses unless there is independent corroboration. It is argued that the medical evidence and the evidence of recovery of the weapons of offence provide sufficient corroboration. The medical evidence however, does not provide any corroboration because five injuries were found on the person of the deceased and anyone who had seen the deceased in an injured condition could make a statement regarding their location. Yet another circumstance which militates against the medical evidence being corroborative in nature is the fact that injury No 5 was caused by sharp-edged weapon by two attempts. This means that there were not five injuries but six. Muhammad Younis P. W. 7, however, has described only five injuries. I, therefore, find no reason to rely on the medical evidence as a corroborative piece of evidence. As regards the recovery of hatchets and a gun from the appellants, it may be observed first of all that there was no recovery from Zakir Hussain appellant. The hatchet recovered from Ahmad Yar appellant was not stained with blood. It was the hatchet recoverd from Madad alone which was found to be stained with blood. This, however, is no mean circumstance that the blood was still present on the hatchet even after two weeks of the occurrence at the time of recovery of hatchet.
The recovery of gun belonging to the deceased from Madad Ali appellant has particularly been stressed upon by the prosecution but it can be argued with equal force that a licensed gun belonging to the deceased was planted on the appellant because it was quite convenient to do so.
This brings us to the reliability of Manzoor P. W. 6 the recovery witness. The appellant's claim is that his maternal-grandmother was a paternal grandmother of the deceased but this has not been accepted by the witnesses when he was cross-examined about it. Although the keenness of Muhammad Younis P. W. 7 in stating that he did not know the name of his grandmother or grandmother lends support to the inference that something is being kept from the Court, in support of what had already been submitted by Manzoor P. W. 6 regarding this relationship, yet it cannot be ignored that Manzoor P. W. belongs to another village. He does not enjoy any particular position in the area. nor is there any explanation that suitable persons were not available from the village where the recovery took place. All the circumstances put together create a doubt regarding] the reliability of Manzoor P. W. Needless to say that there is need tolD sift the recovery evidence very carefully as in view of the interested nature of the occular testimony, the fate of the case depends heavily on the evidence which may be produced in corroboration of the ocular testimony.
8. Ch. Muhamthad Shafi Saleem, D. S. P., D. W. 2 joined one Dosa of Gujrat district in the investigation as a suspect. The role played by Dosa, if any, is not clear unless he was a hired assassin, as no1/3 effort was made to prove or disprove the suspicion. P. W. 10, the Investigating Officer, denied that any such person was joined in the investigation by the Deputy Superintendent of Police, but the fact came out, nevertheless, when the D. S. P. was called as D. W.
2. One wonders, if Dosa was the key to the present occurrence but nothing more can be said about it as there is no material on record justifying an inference for or against him.
In view of the above discussion I find no corroboration for the eye-witnesses. What is more the very presence of the eye. witnesses at the place of occurrence is not proved by the material on record.
Under these circumstances the conviction and sentence of the appellants cannot be sustained.
The appeal is, therefore, allowed. Their conviction and sentence is set aside and they are acquitted of the charges against them. They shall be set at liberty forthwith if not wanted in any other case.
The revision petition is dismissed.