' MAZHARUL HAQ, J.-- Pervez (25), Khizar Hayat (30), Zaffar (25) and Riaz (30) were tried by the Sessions Judge, Gujrat, for the murder of Shana and for destroying the evidence of murder on 27-1- 1981, they were convicted on the two counts under sections 302, P.P.C. And 201, P.P.C. Read with section 34, P.P.C. Pervez was sentenced to death. The remaining three accused were sentenced to imprisonment for life. All four were also fined Rs, 5,000 in default each to suffer 3 years' R.I. Further.
They were directed to pay Rs, 5,000 as compensation to the heirs of the deceased, in default each to suffer six months' R.I. On the count under section 201/34, P.P.C., all accused were sentenced to undergo six months' R.I. Their sentences were ordered to run concurrently. The appelas of the convicts and the connected murder reference are before us.
2. Five/six years before the occurrence in this case, Shana (deceased) along with his brother Fatteh Muhammad (informant), Nazar and their nephew Anara had beaten up Shan Ali for which they were prosecuted and sentenced to seven years' R.I., each. About six months before the occurrence in this case, they came home after serving their sentence. The earlier beating was the motive for the crime. According to the prosecution on 4-7-1979 at 9-30 p.m., Shana (deceased), his brother Fatteh Muhammad (informant), Ahmad Khan and Sardar Khan were putting earth on village Kacha road. Just then, Pervez and Zaffar armed with .12 bore guns, Khizar Hayat with a .12 bore carbine and Riaz armed with a hatchet appeared there. Khizar raised a Lalkara addressing Shana that they would teach him a lesson for beating Shan Ali, upon which Pervez fired his gun hitting Shana who fell. Khizar Hayat and Zaffar also fired one shot each. Riaz gave a hatchet blow to Shana who died at the spot; thereafter, the four accused took away Shana's dead body from the place of occurrence in order to destroy evidence. On the following day i.e, 5-7-1979 at 6 a.m. P.W. Fatteh Muhammad made report Exh. P.A. At Police Station Phalia to P.W. 12 Muhammad Anwar, S.I/S.H.O.
After registering the case, the S.I. Went to the place of occurrence, took into possession blood- stained earth through Memo. Exh. P.E. He recorded the statement of the witnesses on 6-7-1979. The same day, he arrested Zaffar, Pervez and Riaz, accused. At the instance of these three, he took into possession blood-stained stones from a canal through Memo. Exh. P.F. On the pointation of these three accused, headless dead body of Shana clad in Khaki shirt, was recovered from underneath the water of a reservior near the canal. Its right leg from knee joint and left leg from the hip joint had been cut. Its recovery Memo. Exh. P.G. Was attested by P.W.10 Sardar, P.W. 11 Shah Muhammad, P.W. 12 Muhammad Anwar, the Investigating Officer. From deceased's pocket one copy book pertaining to Shah Taj Sugar Mills containing data for the purchase of sugar for Sohni Khan, brother of the deceased, an envelope addressed to Shabbir Gondal, and an application for the purchase of cement were recovered. A Peacock was found tattooed on the right arm of the dead. The dead body was identified by P.W. 9 Fateh Muhammad, P.W.10 Sardara and P.W. 11 Shah Muhammad. Its Memo, of identification Exh. P.H. Was prepared. Exh. P.K. Is the Memo. Pertaining to the identification of the aforsaid documents recovered from deceased's pocket. It was attested by Sohni Khan (not produced). Riaz accused, in custody, led to recovery of blood-stained hatchet from within the bushes. It was taken into possession vide Memo. Exh. P.J. Attested by P.W. 10 Sardar and P.W. 11 Shah Muhammad besides the Investigating Officer. After preparing the injury statement and the inquest report, the dead body was sent for the post-mortem examination.
3. P.W.6 Dr. Nazeer Ahmad, held the autopsy on 6-7-1979 at 5 p.m. And found the following injuries on it:-
(1) A fire-arm wound of inlet 1" x 1" over the right side of back, right 7th and 8th ribs were found fractured and the right lung was found perforated.
(2) A fire-arm wound inlet 1" x 1" x going into the chest over the left side of back of the chest. Left 8th and 9th ribs were found fractured.
(3) A furro type fire-arm wound 1/2" x 1/4" x skin deep partially cut by the wound that caused cutting of the head.
(4) An incised wound 1-3/4" x 1/4" x 1/4" over the anterior abdominal wall on the right side.
(5) The neck was cut off by the repeated applications of sharp-edged weapon.
(6) Right lower limb was cut off from the middle of the thigh.
(7) Left lower limb was cut off through left hip joint.
' The stomach was found empty, intestines contained gases and faecal matter and the bladder contained about 1/2 ounce of urine. In doctor's opinion death occurred due to shock and haemorrhage caused by injuries Nos.1 to 4 which were sufficient to cause death in the ordinary course of nature. According to the doctor, injuries Nos.1 and 2 could be individually fatal. 'Injuries Nos.1 to 3 were caused with a fire-arm and the rest with a sharp-edged weapon. The doctor further observed that injuries Nos.1 to 4 were ante-mortem and the rest were post-mortem. The probable time that lapsed between injuries and death was 10 to 20 minutes and between death and post- mortem 36 to 48 hours. After the post-mortem examination, sealed bottle containing a piece of wad and two pellets were handed over by the doctor to the constable.
4. The same day i.e, 6-7-1979 Khizar Hayat, accused, was arrested at bridge Ranmall Sharif village.
Upon his personal search carbine P.1 was recovered from the fold of his Chadar. It was taken into possession vide Memo. Ex.P.L. Attested by P.W.8 Nawab Khan and Palhu (given up). After completing the investigation, the accused were sent up for trial
5. All accused denied guilt and ascribed the case to suspicion. Pervez, Khizar Hayat and Zaffar admitted their relationship inter se i.e, Khizar Hayat and Pervez are first cousins and Zaffar is their maternal-cousin. The three accused alleged that. Since 1960 Zaffar's father has been contesting election against Pervez's father, therefore, Zaffar had enmity with them. Riaz accused, denied connection with the remaining three accused. They added that the deceased was a bad character and had many enemies who may have murdered' him. Pervez, Khizar Hayat and Zaffar further said that in fact the informant entertained a grudge against them because he and his brothers were sentenced to 7 years for beating Shan Ali. According to them, the eye-witnesses were related to the deceased. Denying the recoveries, the accused claimed to have voluntarily appeared before the police. Pervez added that he was a Graduate and at the time of the occurrence, he was posted as Manager, Express Commercial Finance Corporation at Phalia; whereas according to Zaffar, he had passed Intermediate Examination and at the time of the occurrence was employed in a Bank. His father had a factory at Gujrat where he resided with him. He produced copy of writ petition Exh. D.K., its order Exh. D.L. And copy of Form No,14 Exh. D.M. Issued by the Returning Officer to show previous enmity with the co-accused on account of elections. No accused led defence evidence.
6. Trial Court did not rely on the evidence of the recovery of the dead body because all accused jointly pointed out the place of recovery. Further the recovery of carbine P.1 from Khizar Hayat was kept out of consideration because there was no crime empty recovered to connect the accused with the weapon. For sound reason, trial Court also did not rely on the recovery of copy book pertaining to Shah Taj Sugar Mills, envelop addressed to Shabbir Gondal and the application for the purchase of cement, which were said to have been recovered from the pocket of the deceased after the dead body had been recovered from the reservoir. These documents were never produced at the trial. Moreover, the dead body remained in water for a long time and for these documents to have remained intact was an improbability. There is no reason forthcoming in evidence to show as to why these documents were not produced at the trial. Trial Court also did not rely on the recovery of hatchet P.2 from Riaz accused because in its memo. Of recovery Exh.P.J.
There was no mention of its being blood-stained nor it was mentioned that weapon was made into a sealed parcel. It was, however mentioned in the Chemical Examiner's report that the handle towards blunt side of the weapon contained stains of blood. It may, however, be added here that the accused who had severed the head of the dead body and other parts in order to make it unidentifiable, would under the circumstances leave blood on the hatchet and throw it in the canal bushes. However, relying on the ocular testimony of P.W.9 Fateh Muhammad, brother of the deceased and that of P.W. 10 Sardara it came to the conclusion that the prosecution case was satisfactorily proved against the accused.
7. Criticizing the finding, learned counsel for the appellants contended that it was a blind murder, committed at about mid-night and after its discovery in the morning, the eye-witnesses who were inimical towards the accused, after the deliberation and consultation made a belated F.I.R. At 6 O'Clock in the morning, of which there was no satisfactory explanation. We have considered the matter. The occurrence was said to have taken place at 9-30 p.m. At a distance of 5 miles from the police station. P.W.9 Fateh Muhammad (informant) asserted that out of fear of the accused, he did not go to the police station to report the matter at night and went there in the morning at Sehri time. If the informant was so much afraid of the accused, then he would not have gone alone to make the report and that too on foot. His conduct as such does not lend support to his assertion, that out of fear he did not go earlier.
8. The sole question for determination in this case would be whether the two eye-witnesses could be relied upon. The prosecution case is that P.W.9 Fateh Muhammad (informant), his brother Shana (deceased), P.W.10 Sardara and Ahmad (given up as having been won over) were throwing earth on the Kacha road, when the accused appeared there with their weapons and attacked the deceased. It may be mentioned here that at 9-30 p.m. Was hardly the time for working on the road.
Moreover, it would be improbable that P.W.10 Sardara who had come at Degarwela to fetch his mare from P.W.9 Fateh Muhammad (informant) and was asked to stay for the night because the mare was not available,would join the others in putting earth on the road. The story of the prosecution that the eye-witnesses were working on the road, further becomes doubtful for another reason i.e, according to Fateh Muhammad (informant), the mare for which P.W.10 Sardara had come to their village was taken away to Kot Hamid Shah by deceased's son two days before the occurrence in this case and they had apprised Sardara about this fact. On the other hand, P.W.10 Sardara's version was that Fateh Muhammad (informant) took the mare from him because his mother had to go to village Bhaki to visit a shrine. Since the mare was not returned to him within three/four days, he, therefore, went to informant's village to fetch it, but was informed by Fateh Muhammad that the mare had not yet been brought back from village Bhaki, therefore, the witness was asked to stay for the night, as it may arrive because someone had been sent to fetch it. This obvious contradiction, as to which village the mare had been sent to, created a doubt about the presence of P.W.10 Sardara in the village of the informant. It is also noteworthy that after the occurrence P.W.10 Sardara who was expecting his mare to arrive did not stay in the house of the informant, instead went to spend the night in the house of one Umer Hayat. Though the mare reached the following day but he did not go to his village for about five/six days. These circumstances create a doubt about his presence at the place of occurrence. Admittedly Fateh Muhammad (informant) had enmity with the accused. Shana deceased -had a number of other enemies. On the other hand, the deceased and the informant had suffered seven years rigorous imprisonment for beating Shan Ali, uncle of the three accused. As such the grievance would be to them to avenge the conviction. In any case, their previous strained relations cannot be denied.
Being inimical and the real brother of the deceased, Fateh Muhammad (informant) was thus an interested witness and his evidence needed corroboration from an independent source. The evidence of P.W.10 Sardara as mentioned earlier did not inspire confidence, he was admittedly a close associate of the deceased. He had been involved in a number of criminal cases. He admitted that the deceased was involved with him in a hurt case of his village. Although he disowned friendship with the deceased, but his involvement with him in a criminal case and his dealings with deceased's brother do not indicate that he was an associate of the deceased. His presence at the place of occurrence was also not free from doubt. Under these circumstances, it would not be safe to rely on his evidence.
9. There is another aspect of the case which requires consideration i.e, according to Sardara, the deceased had the last meal with him in the evening who was said to have been killed at about 9- 30 p.m. The doctor found his stomach empty which indicated that the occurrence took place late in the night. Moreover, the distance from which the deceased was said to have been fired at by the accused, is contradicted n by the medical evidence because the doctor found card-wad inside the" wound which would show that the deceased was fired at from a close range.
10. For the foregoing reasons, we are not satisfied with the prosecution evidence. Giving appellants the benefit of doubt, we accept their appeals set aside their conviction and sentences and acquit them of the charges. They shall be released forthwith, if not required, in any other case.