ASLAM RIAZ HUSSAIN, J.-- Muhammad Tasneem appellant was tried alongwith Muhammad Iqbal and Muhammad Arif co-accused, for the murder of William alias Bills. The offence took place at about 1 p.m. On 14-5-1976 near Zia Girls High School, Municipal Park, Jinnah Colony, Faisalabad.
The F.I.R. Was lodged by Inderyas (Andrews) P.W.6 (the father of the deceased) at Police Station Gulberg, on the same day at 1.30 p.m., which was recorded by Ghulam Muhammad, Head Constable P.W.3. The complainant was not himself an eye-witness but is stated to have been informed of the incident by Sawarn Masih P.W.7, one of the alleged eye-witnesses.
2. The prosecution case as contained in the F.I.R. Is that on the day of occurrence William deceased was returning after finishing his work. When he reached near Zia Girls High School, Municipal Park, Jinnah Colony, Faisalabad, at 1 p.m. Muhammad Tasneem appellant and his co-accused Muhammad Iqbal and Muhammad Arif armed with chhuris and daggers encircled him (William deceased) and while raising Lalkara that he would not be allowed to go, they assaulted and caused injuries on his chest and back with their respective weapons, as a result of which he died at the spot. The occurrence is stated to have been witnessed by Ashraf, Gorkhi and Sawarn Masih P.W.7. The latter conveyed information about the occurrence to his father Andrews (P.W.6), who immediately rushed to the place of occurrence and seeing the dead body of his son lying there, went to the police station to report the matter.
3. The motive of the occurrence is stated to be that 11 months prior to the incident Muhammad Tasneem appellant had inflicted knife injuries to Ilmas, another son of Inderyas (Andrews), complainant for which a case under section 324, P.P.C. Was registered against him. In addition to the above motive it was stated at the trial that 4/5 days before the murder of William deceased, he had given a beating to Muhammad Tasneem appellant, as a result of which the latter entertained a grudge against him.
A copy of the F.I.R. Was sent by Ghulam Muhammad, Head Constable (P.W.3) to Moeenuddin P.W.9, the then S.H.O. Of Police Station Gulberg, at Adds Narwala, Faisalabad, where he was on duty. He immediately reached the place of occurrence and after preparing necessary documents despatched the dead body of the deceased for post-mortem examination. He also inspected the spot and took into possession some blood-stained earth and a folded Saria (P.4) meant for the lifting of the covers of manholes.
Muhammad Tasneem appellant and Muhammad Iqbal were arrested on 15-5-1976. Five days later, on 20-5-1976, Muhammad Tasneem appellant, while in police custody, led to the recovery of blood-stained Chhuri (P.5), from underneath Gulabasi plants, where the appellant is supposed to have hidden it subsequently. Muhammad Arif co-accused was arrested on 26-5-1976, but nothing is stated to have been recovered at the instance of the to co-accused.
4. The post-mortem examination revealed 5 stab wounds and 2 incised injuries on the person of the deceased.
5. At the trial the prosecution relied on the ocular testimony of Sawarn Masih P.W.7 (a real uncle of the deceased) and Rangoo P.W.8 (Phoopha of the deceased), whose name had not been mentioned in the F.I.R. It also relied on the recovery of the blood-stained Chhuri which on examination by the Serologist was found to be stained with human blood; the evidence of motive and the medical evidence.
6. The accused pleaded innocence and stated that they had been involved due to animosity.
7. The trial Court believed the prosecution evidence and convicted all the three accused under sections 302/34, P.P.C. It sentenced Muhammad Tasneem appellant to death and sentenced the other to accused to imprisonment for life and a fine of Rs.5,000 each or in default to undergo further R.I. For 2 years, each.
All of them filed appeal before the High Court, which acquitted Muhammad Iqbal and Muhammad Arif, co-accused, but maintained the conviction of Muhammad Tasneem appellant and confirmed his sentence of death.
Feeling aggrieved Muhammad Tasneem appellant filed a petition for special leave to appeal. A Division Bench of this Court granted leave to him vide order, dated 15-12-1979, for reappraisal of the evidence on the record to consider whether the conviction of the appellant had been recorded on proper appreciation of evidence.
8. We have heard the learned counsel for the appellant as well as the learned State counsel and have also gone through the judgments of the to Courts below as also the evidence of the relevant witnesses on the record.
9. The learned counsel for the appellant pointed out that while the trial Court had relied mainly on the testimony of Rangoo P.W.8 whose name had not been mentioned in the F.I.R. And held Sawarn Masih P.W.7 to be merely a chance-witness the le.-rned High Court had dis--believed the testimony of Rangoo aforesaid and relied on the ocular testimony of Sawarn Masih P.W.7 alone for maintaining appellant's conviction. He also pointed out that the learned High Court had observed in paragraph 10 of the impugned judgment that Sawarn Masih being a close relative of the deceased was an interested witness, and therefore, it was necessary to look for corroboratory evidence before his testimony could be relied upon. Since corroboration in the shape of the recovery of blood-stained knife (P.5) was available only against Muhammad Tasneem (appellant before us) and no such corroboration was available in respect of Muhammad Iqbal and Muhammad Arif, co-accused it upheld the convic--tion and sentence of the appellant while acquitting the to co-accused.
The learned counsel, for the appellant, however, urged that the evidence of recovery in this case was itself weak, inasmuch as the recovery witness namely Iqbal Masih P.W.5, was himself a very close relative of the deceased and as such was an interested witness like Sawarn Masih P.W.7 and that his testimony required corroboration.
He also pointed out that the knife was recovered 5 days after the appellant's arrest which makes it all the more doubtful. He submitted further that the testimony of Iqbal Masih P.W.5, and Moeenuddin P.W.9, S.H.O., is contradictory as far as the place from where the knife is stated to have been recovered, is concerned.
He also urged that Sawarn Masih P.W.7 besides being an interested witness was a chance witness whose testimony ought not to have been believed and that if the testimony of knife (P.5) is excluded, the case of the appellant is at par with that of the to acquitted co-accused and as such the conviction of the appellant should also be set aside.
10. We are inclined to agree with these submissions. The. High Court has rightly disbelieved the testimony of Rangoo P.W.8 as his name was not mentioned in the F.I.R. As for Sawarn Masih, the only remaining eye-witness, he is, indeed, a chance witness, as he had admitted during his cross- examination that he was on his way from Gurunanakpura to Basti Esaian when he happened to see the incident in question. He also admitted that there were 2 or 3 other routes from Gurrunanakpura leading to Basti Esaian and had he taken any other route except 'the one which he is alleged to have taken, the place of occurrence would not, have fallen on his way and he would not have seen the occurrence. He has not been able to give any satisfactory explanation as to why he chose' this particular route.
11. We respectfully agree with the High Court that Sawarn Masih P.W.7 is an interested witness because he is a close relative of the deceased and admittedly there is hostility between the parties. The High Court, therefore, rightly observed that the rule of caution required that independent corroboration of his testimony should be sought before relying upon it. It then relied on the recovery of blood-stained knife (P.5) as evidence corroborating the statement of Sawarn Masih P.W.
We are, however, of the view that the recovery of this knife is extremely doubtful. In the first place it was recovered 5 days after the arrest .Of the appellant, when he is said to have informed the police as .To where it was lying. Secondly the only witness to the recovery apart from the investigating officer, namely Iqbal Masih P.W.5, is admittedly aclose relative of the deceased being his real uncle.
If Sawarn Masih P.W.7 was held by the High Court to be an interested witness because he was closely related to the deceased, then by the same measure Iqbal Masih must also be held to be an interested witness whose testimony requires independent corroboration before it can be relied upon. But no such evidence is forthcoming on the record. Moreover, there is glaring discrepancy between the statement of the S.H.O. And Iqbal Masih as to the distance between the place from where the knife was allegedly, recovered and the place of occurrence.
We are, therefore, not inclined to rely on the recovery of knife (P.5). The result is that no evidence is left on the record to corroborate the interested testimony of the solitary eye-witness on whom the High, Court relied. Consequently a are of the view that the conviction of the appellant cannot be maintained thereon.
13. As a result we allow the appeal set aside the impugned judgment and acquit Muhammad Tasneem appellant. If not required in any other) case he shall be set at liberty forthwith. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.