' Ijaz Shah alias Ayyaz Shah, Alam Sher, Aswar Shah, Ramzan, Jalal, Muhammad Anwar and Kamir were tried by an Additional Sessions Judge of Sahiwal under section 302/148/149, P.P.C. For the murder of one Sher Shah and for rioting. The learned trial Judge, by his judgment dated 9-8-1981, convicted Ijaz Shah alias Ayyaz Shah and Alam Sher under section 302/34, P.P.C. And sentenced Ijaz Shah to death, subject to confirmation by the High Court and Alam Sher to life imprisonment and he also imposed a fine of Rs, 2,000 on each of the two accused or, in default thereof, to suffer rigorous imprisonment for two yeaRs, Full fine, if realized from Ijaz Shah and half of the fine, if realized from Alam Sher were ordered to be paid to the legal heirs of the deceased as compensation. The separate appeals (Criminal Appeal No, 143 of 1981 and Criminal Appeal No, 16 of 1982) preferred by Ijaz Shah and Alam Sher convicts against their conviction and sentences and the reference (Murder Reference No, 146 of 1981) sent up by the trial Judge for the confirmation of the death sentence awarded to Ijaz Shah, convict, are all now before us for consideration and will be disposed of by this judgment.
2. The brief facts of the prosecution case as unfolded at the time of trial are that Muhammad Shah (given up P.W.) is the uncle of ljaz Shah, accused, Aswar Shah accused, Said Shah P.W.5 and Sher Shah, deceased. Muhammad Shah (given up P.W.) was issueless. He had two squares of agricultural land in 'village Chahat Mehr, Tehsil and District Sahiwal. One year before the occurrence, Muhammad Shah (given up P.W,) gifted away his land to Said Shah P.W.5 and his real brother Sher Shah, deceased. Ijaz Shah and Aswar Shah accused felt aggrieved over the said gift, on the ground that Muhammad Shah, (given up P.W.) did not give them any land, though they too were his nephews like Said Shah, P.W.5 and Sher Shah, deceased. They, therefore, bore a grudge against Sher Shah, deceased. It is alleged that the other five co-accused had close relations with Ijaz Shah and Aswa r Shah, accused, because they had earlier purchased some land from them and also cultivated some other land belonging to them. It was thus that all the seven accused joined together to finish the life of Sher Shah deceased.
' The case of the prosecution is that on 21-1-1980 at about sunset time, while Sher Shah, deceased, his wife Mst. Imam Bibi P.W.4 and his son Abid Hussain (given up P.W.) were returning to their house from their Dhari and had covered about a few Killas distance and reached Killa No, 10 of square No, 19, when all the afore-mentioned accused all of a sudden, emerged there. Ijaz Shah and Alam Sher accused caught hold of the reins of the mare which Sher Shah, deceased, was riding at that time and the remaining accused threw him on the ground from the back of the mare. Mst. Imam Bibi P.W.4 and Abid Hussain (given up P.W.) raised alarm and on hearing their out cries. Said Shah P.W.5, Ahmad P.W.6 and one Muhammad Shah (given up P.W.) were attracted to the spot and thus saw the occurrence with their own eyes. It is alleged that Ijaz Shah and Alam Sher, accused raised Lalkara that they would teach a lesson to Sher Shah, deceased for getting land from Muhammad Shah. After felling the deceased on the ground, Ramzan accused held him from his legs, Kameer, accused held him from his head and Aswar, accused, caught hold of him from his hands. Aswar Shah, Alam Sher, Ijaz Shah and Jalal, accused then inflicted injuries to the deceased on his thighs, which resulted in multiple injuries. It is alleged that the eye-witnesses entreated the accused to spare the deceased, but they did not listen and the eye-witnesses were instead threatened with dire consequences. After the occurrence, the accused made good their escape from the spot along with their weapons. Sher Shah, deceased, became unconscious and was removed to the District Headquarters Hospital, Sahiwal, where he succumbed to his injuries soon after. Leaving Ghulam Hussain and Pehlwan with the dead body, Mst. Imam Bibi P.W.4 proceeded to the Police Station Noor Shah, where she lodged F.I.R. Exh. P.C. At 11-00 p.m. Which was recorded by Manzoor Hussain Shah S.I. P.W.7.
3. After recording the F.I.R. Exh. P.C., the Investigating Officer proceeded to the hospital where, after preparing the necessary papers, he sent the dead body to the mortuary for post-mortem examination. Thereafter, he proceeded to the spot, where he recorded the statements of the witnesses.
4. On 22-1-1980 at 2-00 p.m. Dr. Khalid Mahmood P.W.8 performed the post-mortem examination on Ole body of Sher Shah, deceased, and found a multiple contusion 35 c.m. x 15 c.m. On the outer back portion of the middle of right thigh, a multiple contusion 24 c.m. x 17 c.m. On the inner back portion of the lower part of the left thigh a contusion 5 c.m. x 3 c.m. On the back of scrum of left testis and a multiple contusion 6 c.m. x 2 c.m. On the left right inguinal region. The left and the right femur and the right fibula were found fractured. The left knee joint was disorganized. Death was due.To shock and hemorrhage resulting from injuries to the left and right thighs, which were grievous. Fatal and sufficient individually and collectively to cause death in the ordinary course of nature. Probable time between injuries and death was within 5 to 6 hours and that between death and post-mortem examination was within about 18 hours,
5. On 27-1-1980 all the accused, excepting Kameer, were arrested by Manzoor Hussain S.I. P.W.7.
6. On 28-1-1980, Kameer, accused, was arrested by the same Police Officer.
7. On 3-2-1980, Alam Sher and Ijaz Shah accused, led to the recovery of Sotas P.4 and P.5 from their respective residences, which were taken into possession vide memos. P.G. And P.H. In the presence of Ahmad P.W.6, Manzoor Hussain S.I. P.W.7 and Muhammad (given up P.W.)
8. After completing the necessary investigation, the challan against all the accused was sent up.
9. At the trial, the prosecution produced Mat. Imam Bibi P.W.4 and Said Shah P.W.5 to prove the motive, the said two persons and Ahmad P.W.6 in proof of the ocular account, Manzoor Hussain S.I.
P.W.7 and Ahmad P.W.6 in support of the recoveries and Dr. Khalid Mahmood P.W.8 to corroborate the medical testimony.
10. All the accused who are Sughla by caste, namely, Alam Sher, Jalal, Kameer and Aswar, denied that ljaz Shah or Aswa r Shah were their relations or that they had taken any land belonging to them on tenancy. They imputed their false implication to enmity. Ramzan and Jalal accused imputed their false implication because of their relationship with Kameer. Alam Sher, Muhammad Anwar and Kameer accused imputed their false implication to the prosecution witnesses who had enmity against them. Alam Sher accused produced F.I.R. Exh. D.F. Lodged against Said Shah P.W.5 and stated that as he had appeared against him as a witness in the Court a few months ago, he had been falsely implicated. He also produced certified copy of Khasra Girdawari. Exh. D.G. Showing that Naseera Machi was the tenant of Sher Shah, deceased, at the time of occurrence and stated that the occurrence was witnessed as it had taken place in the darkness of the night. Kameer, accused, also stated that he had been falsely involved at the instance of Ahmad P.W.6, Ghulam Hussain P.W.1 and Pehlwan (given up P.W.) who were inimical to him, as he had appeared as a witness in the murder case against Ahmad 6, his brother Khadim Hussain and Pehlwan P.Ws. In which case Khadim Hussain was convicted. Ljaz Shah and Aswar Shah, accused, denied that they had any grudge over the gift made by Muhammad Shah (given up P.W.) to Sher Shah, deceased, and Said Shah P.W.5 and imputed their false implication to enmity with Said Shah P.W.5 and Ahmad P.W.6.
They also denied the recoveries effected at their instance.
11. The learned trial Judge, relying upon the motive, the ocular account furnished by Mst. Imam Bibi P.W.4 Said Shah P.W.5, the recoveries and the medical testimony, convicted and sentenced ljaz Shah and Alam Sher, accused, as stated above and acquitted the rest.
12. We have heard the arguments of the learned counsel for the appellants and the State and have also perused the record. The evidence as regards motive is furnished by Mst. Imam Bibi P.W.4 and Said Shah P.W.5. According to their version, one Muhammad Shah (given up P.W.) who was issueless had gifted about 52 Acres of his land to Sher Shah, deceased and his brother Said Shah P.W.5 which was resented by ljaz Shah, appellant, and Aswar Shah, acquitted accused, who were also nephews of the said donor. This version is also supported by the fact that ljaz Shah, appellant and his two other brothers, namely, Jadar Shah and Arshad, had also challenged the said gift in the civil Court. Some criminal cases had also sprouted after the said gift and there was bad blood.
In these circumstances, the motive as against A ljaz Shah, appellant, stands proved, though that against Alam Sher, appellant, does not stand borne out from the record.
13. The ocular account in this case is furnished by Mst. Imam Bibi P.W.4, Said Shah P.W.5 and Ahmad P.W.6. Mst. Imam Bibi P.W.4 and Said Shah P.W.5 are the widow and brother respectively of Sher Shah, deceased, whereas Ahmad P.W.6 is an independent witness, Ahmad P.W.6 was disbelieved by the learned trial Judge after having read the evidence, we share the same view, which finds support from the fact that the learned counsel for the State has not decided to press his evidence before us in appeal. This leaves us, therefore, with the evidence of Mst. Imam Bibi P.W.4 and Said Shah P.W.5, who are related to the deceased. Their version already stands recorded in the brief facts submitted in para. 2 above, which need not, therefore, be repeated. However, questions arise whether the F.I.R. Was recorded promptly, whether the said witnesses can be stated to be disinterested and whether the version offered by them can be safely accepted. The F.I.R. Exh. P.C. By Mst. Imam Bibi P.W.4 appears to have been recorded at 11-00 p.m. On 21-1-1980 at Police Station Noor Shah, particulars of the Kills and square numbers in which the occurrence took place is also given therein. Mst. Imam Bibi P.W.4 admitted in cross-examination that it was only after occurrence and after the patwari had told the Investigating Officer about the particulars of Killa and square numbers in which the occurrence occurred, that thereafter her F.I.R. Was recorded at the Police Station. Manzoor Hussain S.I. P.W.7 stated that after recording the F.I.R. He first proceeded to the hospital and thereafter to the spot. In these circumstances, it is clear that after the information was received by the Investigating Officer about the occurrence, that he first proceeded to the hospital and then to the spot and after getting relevant particulars of the Killa and square numbers of the place where the occurrence occurred, he thereafter scribed the F.I.R. Exh. P.C. At Police Station. This shows that the F.I.R. Was lodged after preliminary B investigation, which further stands fortified by the fact that a large number of innocent persons were falsely roped in, who have been acquitted by the learned trial Judge. Apart from being related to the deceased Mst. Imam Bibi P.W.4 and Said Shah P.W.5 also appear to be inimical to the appellants. On 29-11-1978 Shahadat Bibi wife Muhammad Shah (given up P.W.) had lodged F.I.R. Exh. D.F. At the Police Station against Sher Shah (the husband of Mst. Imam Bibi P.W.4), Shah P.W.5, Adil, Sher and Naseer, in which case Alam Sher appellant, was cited as a witness. Said Shah P.W.5 in his cross-examination admits that Ijaz Shah, appellant, and his brother Jafar Shah had filed civil suits against him and Sher Shah (the husband of Mst. Imam Bibi P.W.4): that 7/8 months before the occurrence he, Sher Shah deceased, Ahmad P.W.6 and Muhammad (given up P.W.) were arrested and bound down under section 107/151, Cr.P.C.
As against Ijaz Shah appellant, Aswar Shah acquitted accused and others; and that sometime before occurrence, his brother Manzoor Shah had instituted a criminal complaint against him, Sher Shah deceased, Ahmad P.W.6 and Muhammad (given up P.W.), which was still pending, and in which Ijaz Shah, appellant, was a prosecution witness. Further, Ghulam Hussain P.W.1 admits in cross-examination that Ahmad P.W. 6 and his brother Khadim and one Pehlwan (given up P.W.) were challaned in the double murder of Ahmad and Bakhsh, deceased, in which case Kameer, acquitted accused, was a prosecution witness and Khadim was convicted in the case. These circumstances conclusively show that Mat. Imam Bibi P.W.4, Said Shah P.W.5 and Ahmad P.W.6 are inimical to Alam Sher, and Ijaz D Shah, appellants. The presence of Said Shah P.W.5 at the spot appears to be somewhat doubtful. If he was present, he would most assuredly have been killed, as he was also a donee of the lands as Sher Shah, deceased. If he had not been killed, he would have accompanied Mst. Imam Bibi to the Hospital or at least gone to the Police Station to report the matter. It is admitted by Mst. Imam Bibi P.W.4 that she went with her son to the Hospital and the Police Station. Taking all circumstances into consideration, we hold that the ocular account the interested, that a large number of innocent persons were falsely involved by the complainant in her F.I.R., who later were found to be innocent, and that, therefore, relying on the rule laid down by the Supreme Court in Wasi Ullah's case, PLD 1963 SC 25, very strong corroboration is required against the appellants, almost, if not quite, sufficient by itself to prove their participation in the crime in instance, before we can convict any of them.
14. The corroboration offered in the case are the recovery of Sotas at the instance of the appellants, which is proved by Ahmad P.W.6 and Manzoor Hussain S.I. P.W.7. Ahmad P.W.6 as already by the trial Judge, is an interested and inimical witness. His testimony with regard to the recovery is, therefore, of no value. The evidence of Manzoor Hussain Shah S.I. P.W.7, even if accepted, would not advance the F case of the prosecution, as the Sotas, recovered at the instance of the appellants, would not prove that they were the same used at the time of occurrence. The deceased suffered internal injuries, clearly leading to no external bleeding. The Sotas recovered are not blood-stained.
In view of the strong enmity between the eye-witnesses and the appellant, the recovery of the Sotas by themselves not offer that strong corroboration which we are looking for, sufficient to convince us of the participation of the appellants.
15. The medical testimony furnished by Dr. Khalid Mahmood P.W.8 does show that Sher Shah, deceased, suffered three multiple and a single contusion on different parts of his body, which leads to the G inference that a number of assailants, more than one, armed with blunt weapons, attacked and injured the deceased. However, the injuries by themselves do not prove the participation of the two particular appellants.
16. The upshot of the above discussion is that though the motive stands proved, the ocular account is furnished by highly interested and inimical witnesses, that one of the said witness, namely, Mst.
Imam Bibi P.W.4 complainant, also falsely involved a large number of persons, who were later declared as innocent by the police and were also acquitted by the trial Court, and that without strong corroboration, almost sufficient by itself to prove the participation of the appellants in the crime in instance, which is wanting in the case, neither of the two appellants can be held guilty. We record with regret that the probability that innocent persons were named in the F.I.R. Exh. P.C. By Mst. Imam Bibi P.W.4 at the instance of Ahmad P.W.6, in order to induce him to be a witness in the case, cannot be totally excluded. It appears that the real assailants have been mixed up with innocent persons by Mst. Imam Bibi P.W.4 parts have been ascribed to some. It cannot, therefore, be un-travelled with certainty who the real assailants are or whether they are those who have been assigned the correct parts or whether they are those who have led to the recovery of the true weapons of offence. It is too difficult to separate the real assailants from the innocent victims in the present case. In addition, it appears that the deceased was a person of shady character, had been involved in string of criminal cases and had much too many enemies. We need not detail this list, but the admissions of the three eye-witnesses supporting these facts, are more than sufficient. The probability that Sher Shah, deceased, was done to death by one or more of his enemies, cannot be totally excluded. We have, therefore, no alternative but to allow the benefit of doubt to the present appellants.
17. For the forgoing reasons this appeal is accepted and the conviction and sentences of ljaz Shah and Alam Sher, appellants, are hereby set aside. They shall be set free, if not required in any other case. Fines, if any recovered from them, shall be refunded to them. The sentence of death of Ijaz Shah appellant is not confirmed.