ASLAM RIAZ HUSSAIN, J.-- Muhammad Hussain appellant, his brother Khurshid and Nazir son of Faqir Muhammad, were tried by the learned Additional Sessions Judge, Sheikhupura, under sections 302/34, P.P.C. For having committed the murder of Tufail Nabi (deceased) by intentionally causing his death with sharp-edged weapons in a field in Square No. 82 , Killa No. 4 of Mauzia Malikpur, Police Station Narang, Tehsil Ferozewala on 21-12-1973 at mid-day.
2. The facts of the case are that Abbas Ali (P.W.9) is a resident of Meerowal. Three or four days before the occurrence he came to his maternal aunt's daughter Mukhtar Bibi's house at Malikpur and stayed with her. His nephew Tufail Nabi had 5 squares of land at Chah Maliyawala in the area of Malikpur. Muhammad Hussain, Khurshid and Nazir used to destroy the standing crop of Tufail Nabi by grazing their goats in his fields and were not amenable to requests not to do so.
3. On 21-12-1973 at Deoaphrwela Abbas Ali, P.W. And Tufail Nabi went to their fields to look after the crops. They found Muhammad Hussain, Khurshid and Nazir grazing their goats in the gram fields of Tufail Nabi. Tufail Nabi asked them not to do so, whereupon they gave him a beating. Arshad, Amanat Ali and Muhammad Akram heard the noise and came from their adjoining fields.
Muhammad Hussain accused then injured Tufail Nabi with his knife hitting him on the neck and in the armpit. Nazir hit him with his hatchet on his head and left wrist. Khurshid held Tufail Nabi in his grip. When Abbas Ali (P.W.9) and Arshad etc. Tried to intervene they were threatened with dire conse--quences. Tufail Nabi fell on the ground and the assailants made good their escape.
4. Abbas Ali P.W.9, Soofi Faiz Muhammad Khan and Asghar Ali then transported injured Tufail Nabi to the Mayo Hospital, Lahore, where he sccumbed to his injuries at about midnight.
5. Ghulam Nabi, A.S.I. (P.W.13) of Police Station Narang received information from the Mayo Hospital about the occurrence. He thereupon rushed to the hospital and recorded the statement of Abbas Ali (P.W.9) Exh. P.A. He sent it to the police station where the case was registered on its basis at 3 p.m.
6. Muhammad Hussain appellant was arrested on 30-12-1975. At that the he was carrying blood- stained knife (Exh. P.3), which was taken into possession by the police. On examination, however, it was found that the blood on it had disintegrated. Nazir accused led to the recovery of a hatchet (P.4) from the cattle-shed of Muhammad Hussain appellant.
7. At the trial the prosecution relied on the ocular testimony of Abbas Ali P.W. 9 (maternal-uncle of the deceased), Amanat Ali P.W.10 (paternal-uncle of the deceased) and Muhammad Akram P.W.11 (brother---in-law of the deceased) and Arshad Ali P.W.12, who was declared hostile and was not relied upon by the Courts below). It also relied on the evidence of the above-noted recoveries; the evidence of motive and the medical evidence.
8. The accused pleaded innocence. In his statement under section 342, Cr.P.C., Muhammad Hussain appellant stated that he had been involved falsely due to enmity. He added that he had supplied the information to the Rangers Police against Abbas Ali P.W.9, complainant, as a result of which the police raided his Dera and arrested three Sikh smugglers and also recovered smuggled betel leaves from Abbas Ali aforesaid. Abbas Ali P.W. Subsequently learnt that it was he (i.e. Muhammad Hussain appellant) who had supplied information against him to the Rangers Police.
He and his companions, therefore, wanted to kill him (Muhammad Hussain appellant) but since they could not find an opportunity to do so they involved him in the instant case to take revenge.
9. The trial Court acquitted Khurshid co-accused, but convicted Muhammad Hussain and Nazir co- accused under sections 302/34, P.P.C. It sentenced Muhammad Hussain to death and a fine of Rs.5,000 or in default of payment of fine to undergo further six months' R.I. Nazir was sentenced to imprisonment for life and a fine of Rs.5,000 or six months' further R.I. In case of non-payment of fine.
10. Both of them filed an appeal before the High Court which vide the impugned judgment, dated 20-3-1979, discarded the evidence of recovery but relied on the ocular testimony which it felt was supported by the evidence of motive and the medical evidence, and therefore, maintained the conviction of Muhammad Hussain appellant and confirmed his death sentence. It, however, acquitted Nazir co-accused because his name was not mentioned in the F.I.R.
11. Muhammad Hussain filed a petition for leave to appeal before this Court and leave was granted to him by order, dated 13-5-1981 for reappraisal of the evidence to consider, inter alia, the effect of the plea of defence put forward by Muhammad Hussain in his statement', made under section 342, Cr.P.C. And to see whether the well-established principles of appreciation of evidence in criminal cases, were kept in view.
12. We have heard the learned counsel for the appellant as well as the learned State counsel, at length and have also gone through the entire evidence as also the judgments of the to Courts below.
13. As is evident from what has been stated above the evidence of recovery having been discarded the prosecution case rests only on the ocular testimony of Abbas Ali P.W.9, Amanat Ali, P.W.10, and Muhammad Akram, P.W.11, supported by the evidence of motive and the medical evidence.
In the first place we notice that during his cross-examination Abbas Ali complainant (P.W.9) admitted that prior to the occurrence he and his nephew Mushtaq had been called by the police and interrogated with respect to the charge of smuggling. He also admitted that the Rangers also searched his house as well as the house of Mushtaq and other relatives and that his nephew Mushtaq was also challenged, though ultimately acquitted. This supports the plea of defence put forward by Muhammad Hussain and is by itself sufficient to discard his (Abbas Ali's) testimony.
We also notice that the star witness in the case, namely, Abbas. Ali P.W.9 (complainant) (maternal- uncle of the deceased) is not resident of the village where the occurrence took place but resides in altogether a different village called Meerowal situated at a distance, variously_ stated as between 1 to 3 miles from village Malikpur. According to hi he had come to visit his sister and was returning to his own village of the next day when he happened to see the occurrence. He was, therefore, a chance witness. In view of his failure to inform the police about the incident earlier, either himself or through someone else, we are incline to agree with the contention that he was sent for from his village after the occurrence and that the F.I.R. Had been recorded by the police on the next day after due deliberations and consultations with him any other witnesses. This finds support from the fact that Arshad Ali P.W.4, who is a relative of the deceased, admitted during the cross--- examination that the police recorded the statement of Abbas Ali P.W.9 (complainant) at the spot in village Malikpur where he had reached on the next day.
Even otherwise the statement of Abbas Ali, P.W. Made at the trial is replete with contradictions with his statement made earlier before the Committing Magistrate. This is evident from the following portion of his statement made during the cross-examination:- " .....I did not state before the C.M. As under:- "Tufail and my sister requested me that I may advise the accused and that I went there."
(Confronted. So recorded in A to A there). Sufi Faiz Muhammad P.W. Accompanied me. I did not state before the Magistrate on 9-11-1974 that I went to bring the ---thanedar--- on the night of death of the deceased. (Confronted, so recorded in B to B there). I did not state before the C.M. That I visited P.S. Narang and there, one Muharrir and a constable were present. (Confronted. So, recorded in C to C there). I did not state to the Magistrate that the A.S.I . Or S.I. , were not present on my arrival in the police station and that I took with me written Parcha which I delivered to the Munshi. (Confronted. So, recorded C-C there). I did not state before the Magistrate, that I reached the police station at 110' Clock.",
14. Similarly we find that the testimony of the remaining to eye--witnesses, namely Amanat Ali P.W.10 and Muhammad Akram, P.W.11, who are closely related to the deceased, is full of contradictions and is not worthy of reliance.
It appears to us that it was an un-witnessed occurrence. Tufail Nabi (deceased) having been found injured in his field was taken to hospital. On being informed by the police Ghulam Nabi, A.S.I., also reached there and the story was concocted after consultations with Abbas Ali P.W. Who had been called from his village and only very close relatives of the deceased were named as eye- witnesses in the case. No doubt they cannot be dubbed as interested witnesses, but keeping in view the defect in the testimony of the eye-witnesses and the fact that the plea taken by the appellant in his statement under section 342, Cr.P.C., substantial part of which has been admitted by the complainant we do not consider it safe to maintain appellant's convic--tion on the ocular testimony in this case.
We, therefore, allow the appeal, set aside the judgment of the High Court and acquit the appellant.
He shall be set at liberty fortwith unless wanted in any other case.