' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 590 of 1981 and the connected Murder Reference No,208 of 1981 arise from the judgment of learned Additional Sessions Judge, Sialkot whereby he on 7-10-1981 while acquitting Muhammad Tufail convicted Ghulam Shabbir (17) and Naveed Iqbal (17/18) under section 302/34, P.P.C. For causing death of Bashir Ahmad (52) and sentenced them as under:-
(1) Ghulam Shabbir appellant to death and a fine of Rs,10,000 in default thereof two years' R.I.
(2) Naveed lqbal to imprisonment for life and a fine of Rs, 10,000 in default thereof two years' R.I.
' It was directed that the fine when recovered half of the same be paid to the legal heirs of the deceased. It may be noted that the 4th accused namely Muneer having been declared a proclaimed offender was proceeded against under section 512, Cr.P.C.
2. The parties are closely related inter se. Bashir Ahmad deceased was the paternal uncle of Ghulam Shabbir appellant. Tufail the acquitted accused and Muneer the absconder are real brother and they are the first cousin of Ghulam Shabbir appellant. Naveed lqbal appellant is stated to be a friend of Ghulam Shabbir appellant. Mst. Zubaida Bibi P.W.5 the complainant is the widow of the deceased. Murad Ali P.W.7 who is an eye-witness of the occurrence is the son of the deceased.
3. The occurrence according to the F.I.R. Took place on 25-7-1980 at 9 p.m. In front of the house of Bashir Ahmad deceased in the area of Muzaffarpur at a distance of two miles from Police Station Sadder Sialkot. The F.I.R. Is the statement Exh.P.C. Of Zubaida Bibi P.W.5 which was recorded on the same night at 11-30 p.m. By Mien Khan A.S.I. P.W.8 in Civil Hospital, Sialkot. Formal F.I.R. Exh.P.C/1 was drawn up by Muhammad Ashraf Moharrar Head Constable P.W.3 on the same night at 11-45 p.m.
4. The motive as alleged by the prosecution was that on 5-8-1979 Bashir Ahmad deceased had launched murderous assault on Muhammad Siddique his real brother (father of Ghulam Shabbir appellant) over land dispute and caused him grievous injuries with Chhuri. A case under section 307/324, P.P.C. Was registered on the report of Muhammad Siddique against Bashir Ahmad deceased. Bashir Ahmad was however acquitted by the Magistrate. So being aggrieved by the incident of the murderous assault upon his father the appellant Shabbir Ahmad in order to take revenge has murdered Bashir Ahmad deceased.
5. As far the main occurrence it has been stated that on 25-7-1980 at 9 p.m. Bashir Ahmad deceased, his wife Mst. Zubaida Bibi P.W.9, his son Murad Ali P.W.7 and Muhammad Riaz (not produced) were present in their house when Naveed lqbal appellant called out Bashir Ahmad deceased on which the deceased went out of his house. Mst. Zubaida Bibi P.W.9 followed Bashir Ahmad her husband out of curiosity up to the outer gate of the house. While standing at the thrashhold of the outer door of her house she saw the two appellants Muhammad Tufail acquitted accused and Muneer absconder duly armed. Naveed lqbal was carrying Chhuri whereas the other were armed with daggers. They launched attack on Bashir Ahmad. Shabbir Ahmad appellant caused injuries with his dagger on abdomen and chest. Naveed Iqbal caused injuries on the right side of the chest. Bashir Ahmad on receiving these injuries fell down. Thereafter Munir absconder gave Khanjar blow on the right scapula region while Muhammad Tufail gave blow with his dagger on his back and left scapula region. The alarm raised by Zubaida Bibi had attracted Murad Ali P.W.7 and Muhammad Riaz (not produced to the spot) who had also seen the occurrence. The appellants and the co-accused ran away taking the weapons with them. Mst. Zubaida Bibi and others removed Bashir Ahmad in injured condition to the hospital. When they reached the hospital succumbed to his injuries.
6. Dr. Rizwan Ali P.W.6 conducted post-mortem examination on the dead body on Bashir Ahmad deceased on 26-7-1980 at 11-30 a.m. He found the following injuries on his person:-
(1) Incised wound over the chest above the sternum 10 c.m. Below the clavical 5 c.m. x 105 c.m.
(2) Incised wound left side of chest 5 c.m. x 1.5 c.m. Placed 15 c.m. Below and lateral left nipple.
(3) Incised wound 6 c.m. x 1.5 c.m. Placed 15 c.m. Below the right nipple over the chest.
(4) Incised wound 5 c.m. x 1.5 c.m. Over the right lateral part of chest i.e,, 12.5 c.m. Lateral to injury No,3.
(5) Incised wound 6 c.m. x 1.5 c.m. Over the abdomen placed on left side omentum was lying out of wound. 10 c.m. Supro lateral to the umbilicus.
(6) Incised wound 6 c.m. x 1 c.m. x 0.5 c.m. Over the right biceps (upper arm).
(7) Incised wound 7.5 c.m. x 4 c.m. Below the right scapula 7 c.m. At the base.
(8) Incised wound 5 c.m. x 1 c.m. Verticle over the left lumber area.
(9) Two abrasions 2.5 c.m. x 1 c.m. On the left knee in area of 7 c.m. x 5 c.m.
(10) Two abrasions 1 c.m. x 1 c.m. On inner aspect of left foot."
' In his opinion death was due to shock and haemorrhage resulting from injuries Nos. 1 to 5 and 7 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante- mortem. Injuries 1 to 8 were by sharp-edged weapons rest were by blunt weapons. Death was instantaneous. The time between the death and post-mortem was 13 to 14 hours.
7. The appellants were arrested on 29-7-1980 by Muhammad Younis Inspector Police P.W.9. On 30- 7-1980 Ghulam Shabbir led to the recovery of blood-stained dagger P.3 from his house which was taken into possession vide memo. Exh.P.E. Attested by Bashir Ahmad and Nazir Ahmad (both not produced). On the same day Naveed Iqbal led to the recovery of the blood-stained Chhuri P.9 from his house which was taken into possession vide memo. Exh. P.F. Attested by the same witness. The recoveries were effected by Muhammad Younis Inspector Police P.W.9. Serologist Exh.P.M. Is positive.
8. During the investigation it so happened that on 25-8-1980. Mst. Zubaida Bibi complainant moved application Exh. D.A. Before the learned. Sessions Judge for recording statements of the witnesses under section 164, Cr.P.C. The application was supported by affidavit Exh.D.B.. The learned Magistrate recorded statement Exh.D.E. Of Mst. Zubaida Bibi, Exh.D.F. Of Murad Ali P.W.7 and Exh.D.G.
Of Riaz (not produced). In the application and the statements recorded under section 164, Cr.P.C.
The eye-witnesses exhonerated Muhammad Tufail and Munir co-accused and as such their names were placed in column No,2 of the challan. When the case was sent to the learned Sessions Judge, he summoned Muhammad Tufail and Munir to face trial. In the meantime Munir had left for Saudi Arabia. He therefore, could not be arrested and was declared absconder. Muhammad Tufail was prosecuted but acquitted by the trial Court.
9. To prove its case prosecution examined 9 witnesses. Zubaida Bibi P.W.5, Murad All P.W.7 gave the ocular account of occurrence. Despite their statements recorded under section 164, Cr.P.C.
Exonerating Muhammad Tufail and Munir co-accused, the two eye-witnesses fully supported the version of the occurrence given in the F.I.R. They claimed to have seen the two appellants and the acquitted co-accused causing injuries to Bashir Ahmad resulting in his death. Their plea at the stage of trial was that the statements under section 164, Cr.P.C. Were obtained through pressure.
Dr. Rizwan Ali P.W.6 has proved the post-mortem report. Muhammad Younis Inspector Police P.W.9 stated that blood-stained dagger P.3 and blood-stained Chhuri P.4 were recovered from Ghulam Shabbir and Naveed lqbal, respectively. The rest of the evidence is of formal nature.
10. When examined under section 342, Cr.P.C. The appellants denied all incriminating circumstances. They raised plea of false implication on account of enmity. In reply to question No,9 Ghulalm Shabbir stated: "I am innocent. Bashir Ahmad deceased celebrated the second marriage with Mst. Zubaida informant contrary to the wishes of our family. Rather they did not tolerate it. There was a disopute over the distribution of Agricultural land and the houses going on between my father and his brother on one side and Bashir Ahmad deceased on the other side. Bashir Ahmad was murdered by unknown assailants at the dead of the night. The complainant lodged this case in order to blackmail our family."
' In defence Muhammad Aslam D.W.1 stated that at the eventful time he was present in his shop when two unknown persons came there and called Mushtaq Ahmad shopkeeper. They asked Mushtaq Ahmad to call out Bashir Ahmad deceased from his house: Mushtaq Ahmad went to the house of Bashir Ahmad and knocked at his door. Bashir Ahmad came out. Mushtaq told him that he was wanted by two persons. Bashir Ahmad went towards those two persons who took him towards Rorras Road and started inflicting injuries with their Chhuris on the person of Bashir Ahmad. After inflicting injuries the two unknown persons ran away. Thereafter he went to the spot and found Bashir Ahmad lying on the ground in injured condition, so he went to the house of the deceased and woke up Mst. Zubaida Bibi P.W.5 and his son who came to the spot and removed Bashir Ahmad injured in a Tonga to the hospital. The witness further stated that he met Mian Khan A.S.I. P.W. 8 and informed him of the occurrence.
11. The trial Court while not acting upon the statements of the eye-witnesses qua Muhammad Tufail, acquitted him and having sought corroboration of the ocular testimony from the motive and recoveries has convicted the two appellants.
12. The learned counsel for the appellants contended that the two eye-witnesses being related inimical and having made divergent statements are not reliable that the recoveries are fake, and the motive could not have been used as corroborative piece of evidence. The learned counsel also stated that the parties have effected compromise and that Mst. Zubaida Bibi and the minor children of the deceased have adequately been compensated. Mst. Zubaida Bibi who is present in the Court states that she is no more interested in the conviction of the appellants. Since offence under section 302, P.P.C. Is not compoundable so far, we therefore, proceed to dispose of the appeal on merits.
13. After having appreciated the prosecution case and its evidence in accordance with the guiding principles laid down by the superior Courts, for the appreciation of such like cases, we feel inclined to disbelieve the ocular testimony for numerous reasons. The two eyewitnesses are closely related to the deceased. Mst. Zubaida Bibi P.W.5 is the widow and Murad Ali is the son of the deceased; that there was previous criminal litigation between the Bashir Ahmad deceased and father of Ghulam Shabbir appellant; that there was dispute over the land between the deceased and the father of Ghulam Shabbir appellant; that the occurrence did not take place inside the house and as such the presence of the two eye-witnesses at the place of occurrence which was at some distance outside the house, cannot be termed as natural; that the two eye-witnesses have given divergent statements and that the two eye-witnesses have owned application Exh.D.A. And statement Exhs.D.E. And D.F. Recorded under section 169, Cr.P.C. Wherein they had not only exonerated Muhammad Tufail and Munir appellant but had also stated that they had given their names as culprits in the F.I.R. And statement before the Police at the instance of others. No doubt they have stated that the statements under section 164, Cr.P.C. Were got recorded under pressure but this does not appeal to reason inasmuch as Mst. Zubaida Bibi complainant moved application before the learned Sessions Judge on whose direction the statements were recorded by the Magistrate.
From the trend of the statements of the eye-witnesses it is very much obvious that they are basically dishonest witnesses and had given evidence before the Police, the Magistrate and the learned trial Court with a motive other than that of telling the truth. The learned trial Court has not relied upon their statements qua Muhammad Tufail co-accused. The weapons of offence were recovered from the appellants after five days of the occurrence. The presence of blood on the weapons appears to be doubtful. Ordinarily the culprits might have washed off the blood and would not have kept the weapons intact in their houses. The public witnesses were not produced to prove these recoveries. The motive being a double edged weapon, it cuts both ways and in the peculiar circumstances of the case, could also be a reason for suspecting that the appellants might have done away with the deceased. For all these reasons, we are of the view that it would be highly unsafe to place reliance on the ocular testimony as well as recoveries of the weapons of offence from the appellants.
19. The upshot of the above discussion is that there being no satisfactory basis to uphold their convictions, and while giving them benefit of doubt, the appellants are acquitted of the charge.
They shall be released forthwith if not required to be detained in any other case.