' Sajjad Haider 42, Sikandar 16 and Muhammad Nawaz 35 were tried along with Ahmad Haider 27 brother of Sajjad Haider aforesaid, by a learned Additional Sessions Judge, Sargodha, under section 302/34 and 109, Pakistan Penal Code for causing the murder of Inayat Ali 20/21, their co- villager on 30-6-1979 at 7 p.m., in the area of Chak No, 21 Janoobi, Tehsil Bhalwal, District Sargodha.
The learned trial Judge, vide his judgment dated 13-10-1980, convicted Sajjad Haider and Sikandar aforesaid under sections 302/34, Pakistan Penal Code and Muhammad Nawaz under section 302/109, Pakistan Penal Code and sentenced each of them to imprisonment for life and a fine of Rs, 2,000 or in default three months' further S.I. It was further directed that the fine, if realised, would be paid to the legal heirs of the deceased. The co-accused Ahmad Haider, whose name was placed in column No,2 of the challan by the Police was acquitted.
2. Sajjad Haider, Sikander and Muhammad Nawaz have filed the present appeal (Criminal Appeal No, 1195 of 1980), whereby they have challenged their conviction and sentence. Muhammad Anwar the complainant and father of the deceased Inayat Ali has filed two criminal revisions, i,e, criminal revision No, 1075 of 1980 which is directed against the acquittal of Ahmad Haider and Criminal Revision No, 1076 of 1980 whereby enhancement of the sentence of the aforesaid three appellants is sought. This judgment shall dispose of these three matters, i,e, the criminal appeal and the two criminal revisions.
3. The occurrence was reported at the police station Kot Moman, at a distance of two miles from the place of occurrence by Muhammad Anwar, P.W.7, father of the deceased on 30-6-1979 at 10-30 p.m. He got recorded the first information report Exh. P.E. It was written by Rustam Khan, P.W.11 the then S.I./S.H.O. Police Station Kot Moman.
4. As per F.I.R. Account of the prosecution version, Inayat All deceased was betrothed with Mst.
Shamim sister of Sajjad Haider and Ahmed Haider a year before the occurrence. Ahmed Haider and Sajjad Haider were not prepared to give their sister in marriage to Inayat Ali deceased. They wanted to get her married to their cousin (mother's sister's son) Sikandar appellant herein. On 30- 6-1979 at 6-30 p.m. Muhammad Nawaz appellant a servant and tenant of Sajjad Haider and Ahmed Haider came to the Baithak of the complainant and asked Inayat Ali deceased that he was being called by Ahmad Haider etc. Inayat AU deceased accompanied him. From the house of Ahmad Haider etc. Inayat Ali deceased, Sajjad Haider, Ahmad Haider and Sikandar left for the fields. At that time Ahmad Haider, Sajjad Haider and Sikandar were armed with .12 bore guns. They passed by Killa No, 16 of Square No, 7 belonging to Muhammad Anwar. On that occasion Muhammad Anwar, P.W.7, Muhammad Saqlain, P.W.8 and Khuda Bakhsh (not produced) were ploughing land in Kilass Nos. 24 and 25 of Square No,7 with a tractor. Ahmad Haider, Sajjad Haider and Sikandar fired at Inayat All with their respective guns. Muhammad Anwar, Muhammad Saqlain and Khuda Bakhsh son of Allah Ditta (not produced) saw them while firing at the deceased. On the alarm raised by Muhammad Anwar etc., Ahmad Haider, Sajjad Haider and Sikandar made good their escape alongwith their guns. Inayat Ali fell down after receiving gun-shot injuries. He was taken to the Kot Moman Hospital but he succumbed to the injuries in the hospital.
5. After recording the F.I.R., Exh. P.E., Rustam Khan, S.I./ S.H.O., P.W.11, went to Kot Moman Hospital. He prepared the injury statement, Exh. P.H. And inquest report Exh. P.O. In respect of the deceased and despatched the dead body for post-mortem examination under the escort of Khizar Hayat F.C.
Thereafter, he went to the place of occurrence. On 2-7-1979, he arrested Sajjad Haider, Ahmad Haider and Sikandar appellants. Double barrel gun, P.4, along with three live cartridges Exh. P.5/1-3, was recovered from the possession of Sajjad Haider, vide memo. Exh. P.F., in the presence of Muhammad Nawaz (not produced) and Raja P.W.9. Single barrel gun, P.6 alongwith cartridges, P.7/1-2 were recovered from the possession of Sikandar appellant vide memo. Exh. P.G. In the presence of the aforesaid P.Ws.
6. P.W.7 Muhammad Anwar, father of the deceased and P.W.8 Muhammad Saqlain first cousin of the deceased testified at the trial as eye-witnesses to furnish occular account of the prosecution version. They supported the prosecution version by and large at the trial. Muhammad Anwar, P.W.7 and his son Baqir, P.W.10 also deposed about the alleged motive,
7. It is noteworthy that no crime empty was found at the spot as admitted by Rustam Khan S.I., P.W.11 and Muhammad Anwar complainant, P.W.7. The alleged recoveries of guns, P.4 and P.6 from Sajjad Haider and Sikandar appellants are, therefore, of not much consequence as there is no positive proof on the record to the effect that these were used at the time of occurrence.
8. The appellants and Ahmad Haider, the acquitted co-accused, pleaded total denial and claimed that they were falsely involved in the case due to enmity. No evidence, however, has been produced by them in their defence.
9. Autopsy on the dead body of Inayat deceased was performed by Dr. Mumtaz Ahmad, Medical Officer, Primary Health Centre, Kot Moman, P.W.1 on 1-7-1979, at 7-30 a.m., vide post-mortem report, Exh. P.D. He noticed six firearm injuries on the person of the deceased and opined that the death occurred due to shock and haemorrhage as a result of injuries Nos. 1, 4 & 6 collectively and that these injuries were sufficient to cause death in the ordinary course of nature. He further observed that all these injuries were ante-mortem and caused by firearms. It was also observed by him that stomach contained semi-digested food weighing about 14 Oz. He disclosed that in fact he sent a Rukka, Exh. P.A. To the S.H.O. Police Station Kot Moman, informing him about the death of Inayat Ali deceased. In the cross-examination this witness disclosed that the deceased might have taken his food or 2 hours prior to his death. Muhammad Anwar, P.W.7, the complainant and father of the deceased, has stated that the occurrence took place at Deegarwela and by that time his son (the deceased) had not taken his meal. The statement of Muhammad Anwar to this extent is contradicted by the post-mortem report, according to which the stomach of the deceased contained semi-digested food and the Doctor opined that the deceased might have taken his food 11 or 2 hours prior to his death. The learned Additional Sessions Judge has held that the prosecution case against the appellant was proved by ocular evidence which has been corroborated by medical evidence and also evidence regarding motive. He has not placed reliance on evidence of alleged recoveries.
10. As regards medical evidence, it has already been observed that it contradicts the prosecution version to this extent that according to the prosecution case the occurrence took place at Deegarwela while the deceased had not yet taken his meal whereas the medical evidence suggests that he had taken meal 11 or 2 hours prior to the occurrence as his large and small intestines contained semi-digested food weighing about 14 Oz.
11. To prove the alleged motive, Muhammad Anwar, P.W.7 and Baqir P.W.10 have testified at the trial that about a year prior to the occurrence Mst. Shamim a sister of Ahmad Haider and Sajjad Haider was betrothed to Inayat Ali deceased; Ahmad Haider and Sajjad Haider were not willing to give her in marriage to the deceased and wanted to marry her to their cousin Sikandar appellant and, therefore, the appellants had done away with the deceased. Admittedly, Nikah of Mst. Shamim was not yet performed with the deceased. If Ahmad Haider and Sajjad Haider really wanted to give her in marriage to Sikandar instead of the deceased they could do so in spite of alleged betrothal of the deceased and Mst. Shamim, as betrothal alone short of Nikah served no legal bar against her contemplated marriage with Sikandar. The learned trial Judge has observed that father of the appellants had engaged Mst. Shamim with Inayat All deceased and, therefore, Ahmad Haider and Sajjad Haider could not act against this engagement. There is nothing on the record to show that father of Ahmad Haider and Sajjad Haider was not agreeable to the breach of alleged betrothal between Mst. Shamim and Inayat Ali deceased. It has been admitted by P.W.7 Muhammad Anwar that father of Ahmad Haider and Sajjad Haider was not even present at the time of alleged betrothal of Mst. Shamim and Inayat Ali. The alleged motive in such circumstances, does not furnish corroboration to the ocular evidence.
12. The ocular evidence as already observed, consists of testimonies of P.W.7 Muhammad Anwar and P.W.8 Muhammad Saqlain. Muhammad Anwar is the father of the deceased. Muhammad Saqlain is the first cousin of the deceased. Both of them have claimed that at the time of occurrence they happened to be present in the land belonging to Muhammad Anwar, ploughing the latter's field with tractor and that the occurrence took place on the road near Kills No,7 of Square No,16, belonging to Muhammad Anwar. The land is generally ploughed in the morning.
These two witnesses have stated that the tractor was being driven by somebody else and not by these persons. They were just present on the Watt (boundary line of a field) facing towards the road. In this manner, these two persons have claimed their presence near the place of occurrence as just per chance. In case of such close relations and chance witnesses, this Court as a rule of prudence in the administration of criminal justice has always insisted upon independent corroboration. Such corroboration is not forthcoming in this case. The medical evidence and the alleged motive, as already discussed above, do not furnish corroboration. Recoveries are also of not much consequence.
13. Great stress has been laid on behalf of the prosecution that the F.I.R. Has been recorded promptly which contained names of the appellants and ascribes specific role to them. P.W.6 Akbar has stated that in his presence the Sub-Inspector came to the spot and collected blood-stained earth. This witness further disclosed that on that occasion the Sub-Inspector enquired from Muhammad Anwar, the complainant as to who had murdered his son and the complainant named the appellants. It has further been stated by Akbar that on the spot the Sub-Inspector recorded the statement of Muhammad Anwar and obtained his thumb-impression thereon. P.W.11 Rustam Khan S.I. Has stated that he received Rukka, Exh. P.A., from the Medical Officer, Kot Moman, intimating about the death of Inayat All deceased in the hospital. In his cross-examination, he stated that he reached the hospital at 11 p.m. And before leaving for the hospital he had received Rukka, Exh. P.A. From the Doctor, a short while before 11 p.m. The Medical Officer, P.W.1, Dr. Mumtaz Ahmad has stated that he sent Rukka, Exh. P.A., to the SHO intimating him about the death of Inayat Ali at 9-45 p.m. On 30-6-1979. F.I.R., Exh. P.E. Purports to have been recorded on the statement of Muhammad Anwar complainant (P.W.7), on 30-6-1979 at 10-30 p.m. Obviously, Muhammad Anwar got recorded the F.I.R. After the Medical Officer had already sent Rukka, Exh. P.A. To the S.H.O., informing him about the death of Inayat All deceased. In view of the contradictory stands about the time of the receipt of Rukka, Exh. P.A. By the S.H.O. (P.W.11), a doubt is raised about the time of recording of the F.I.R. Possibility, therefore, cannot be excluded that the F.I.R. Was recorded after deliberations and after the S.H.O. Had already learnt about the death of the deceased through Rukka Exh. P A
14. The learned trial Judge has disbelieved the testimonies of the eye-witnesses as against Ahmad Haider, the acquitted co-accused, who was also found innocent and not present in the village at the time of occurrence as a result of investigation conducted by the local police as also by the Crimes Branch. In such circumstances, as against the appellant also, the statements of Muhammad Anwar and Muhammad Saqlain the so-called eye-witnesses, need to be considered with great caution. In Abdur Rehman and others v. State 1983 SC MR 958, it has been held by the Supreme Court of Pakistan that the High Court, in its appraisal held two witnesses to be truthful which conclusion in itself was contradictory as the Court disbelieved their ipse dixit as to the participation of those acquitted. It was found that these witnesses had deliberately perjured in implicating the acquitted accused. No independent corroboration is forthcoming to support the testimonies of G Muhammad Anwar and Muhammad Saqlain about the involvement of the appellants in the murder of Inayat All deceased.
15. Muhammad Nawaz appellant has been convicted on the charge of conspiracy under section 302/109 of the Pakistan Penal Code. There is not an iota of evidence of conspiracy on the record against him. Baqir; P.W.10, the brother of the deceased has simply stated that Muhammad Nawaz came to the Baithak and asked Inayat Ali deceased that he was being sent for by Sajjad Haider and Ahmad Haider. Even if this solitary statement of the brother of the deceased is believed, it furnishes no incriminating material against Muhammad Nawaz. In the absence of positive evidence, he cannot be burdened with knowledge that the deceased was sent for by Ahmad Haider and Sajjad Haider with an intention to murder him.
16. In the light of the infirmities noticed in this case as detailed above, it cannot be said that the prosecution has been successful to bring home the guilt to the appellants beyond reasonable doubt. Their appeal is, therefore, allowed, their conviction and sentence are set aside and they are acquitted. They are already on bail and shall stand discharged of their bail bonds.
17. Both the criminal revisions, in the circumstances, are dismissed.