' QURBAN SADIQ IKRAM, J.--Ghulam Farid aged 35 years' Janey Khan aged 30 years, Waryam aged 25 years and Sarwar Khan aged 60 years were convicted for the murder of Amir Khan on 8-12-1980, at Degarwela within the area of village Haveli Jewan Shah by learned Additional Sessions Judge, Jhang, vide judgment dated 14-6-1982, under section 302/34, P.P.C. And sentenced to death plus a fine of Rs, 5,000 or in default two years R.I. Each. Half of the amount of fine, if recovered, was ordered to be paid to the heirs of the deceased. They filed Criminal Appeal No, 323 of 1982 against their conviction and sentences. The four appellants having been sentenced to death, proceedings of the case were submitted to this Court for confirmation of their sentences vide Murder Reference No, 115 of 1982. The complainant filed Criminal Revision No, 767 of 1982 for enhancement of fine imposed upon the four appellants. In this revision petition, a notice was issued to the four appellants- respondents to show cause as to why, in case their appeal is dismissed, they should not be directed to pay compensation to the heirs of the deceased under section 544-A, Cr.P.C. All these matters will be disposed of by this judgment.
2. In brief, the prosecution case is that in June 1980, Pathaney Khan and Ali Khan were murdered for which a case was registered against Shamir Khan, a son of Amir deceased and others. It is alleged that Janey Khan and Waryam accused, sons of Pathaney Khan and Sarwar Khan accused, the real brother of Pathaney Khan, felt aggrieved on account of these murders, On 8-12-1980, Amir Khan deceased along with his brother Dost Muhammad complainant went to Nasirabad to bring an amulet (Taweez) from Syed Fida Hussain Shah. They were returning to their house in the evening of that very day, and when they reached near the well known as Chah Smailwala in the area of village Haveli Jewan Shah, suddenly Sarwar Khan and Janey Khan accused armed with guns, Ghulam Farid accused, a friend of Janey Khan accused, armed with hatchet, and Waryam accused armed with stick, encircled them after coming out of the place where they were hiding themselves. They all challenged the complainant and Amir Khan deceased, who tried to run away. Sarwar Khan fired the first shot which hit Amir Khan on his abdomen and he fell down. Thereafter, Janey Khan fired a second shot at Amir Khan deceased from a close range on his back. Ghulam Farid accused gave various hatchet blows on the ear, neck, back, head and hands of the deceased. The alarm attracted Allah Dad, Karam Khan and Janey Khan (P.W.5) son of Murad Khan, who also witnessed the occurrence. Amir Khan died at the spot. It is alleged that the accused, took possession of the dead body and Dost Muhammad complainant went to the police station Garh Maharaja, District Jhang, 12 miles from the spot, and lodged F.I.R. Exh. P.J. On the same day at about 7-15 p.m.
' After registration of the case, the police undertook investigation. Two empty cartridges P.8/1-2 were collected by the police from the spot from near the dead body of Amir deceased and took them in possession vide memo. Exh. P.L. Blood-stained earth was taken in possession from the spot vide memo Exh. P.K. By the police. The two recovery memos Exh. P.L. And Exh. P.K. Were attested by Dost Muhammad (P.W.8), Ghulam Hasan (given up P.W.) and prepared by A.S.1. Nasrullah (P.W.11).
Ghulam Farid and Janey Khan accused son of Pathaney Khan were arrested on 13-12-1980. They were associated with the investigation. On 20-12-1980, Ghulam Farid accused led to the recovery of hatchet P.6 which was taken in possession vide memo Exh. P.G. It was found to be stained with human blood vide report of the Chemical Examiner Exh. P.S. And that of the Serologist Exh. P.T. On the same day, Janey Khan accused son of Pathaney Khan led to the recovery of unlicensed single barrel .12 bore gun P.7 from behind the boxes lying in his house which was taken in possession vide memo Exh. P.H. Both these memos. Exh. P.G. And Exh. P.H. Were prepared by A.S.I. Nasrullah (P.W.11) and attested by Nazar Abbas (P.W.7) and Ghulam Hassan (given up P.W.). The report of the Fire- arms Expert was not formally proved and brought in evidence in this case. After completion of the investigation, all the four accused were challaned and convicted as stated above.
3. During trial, the prosecution examined 13 witnesses in all. P.W.8 Dost Muhammad, a real brother of the deceased, P.W.9 Allah Dad, a son-in-law of Dost Muhammad complainant, and P.W.10 Janey Khan son of Murad, a cousin of the deceased, were examined as eye-witness in the case. Karam Khan P.W. Another eye-witness was given up as unncessary. Dr. Syed Muhammad Firdaus (P.W.1) conducted post-mortem examination on the dead body of Amir Khan on 9-12-1980 at 1-30 p.m. He found five incised wounds on the dead body of Amir Khan aged about 50/60 years; on the back of his skull; on upper part of the neck with cutting of pina of the right ear; on the outer part of the left eye on the back of left hand and on the midle and outer part of the right hand. He found four contusions; two on the right shoulder, one on the upper part of the chest below the clavical, and one on the right side of abdomen lateral to the umblicus. He also found 9 fire-arms wounds: one on the right upper arm, second on the back of middle right arm, third on the outer side of right elbow, fourth on the right hand middle finger which fractured bone underneath, fifth on the left side of umblicus from where a pellet was also recovered, sixth and seventh on the outer part of right side of chest, and eighth on the outer part of the right buttock. The 9th fire-arm injury which was an independent wound was found to be "going deep cutting the underneath vertebrae." In the opinion of the medical officer, this was a wound of entrance with inverted margins. The margins of the wound and the surrounding skin were black. A wad was also recovered from this wound which was almost in the middle of spinal column. In the opinion of the doctor, injury No,18 caused by fire-arm (described above as nineth injury) was alone sufficient to cause death in the ordinary course of nature.
4. Nazar Abbas (P.W.7) identified the dead body of the deceased at the time of post-mortem examination, and also witnessed the recoveries from two accused as given in detail above. P.W.6 Ghulam Muhammad produced copy of the F.I.R. Dated 20-6-1980 lodged by Sarwar Khan appellant against Shamir Khan and others pertaining to the murders of Pathaney Khan and Ali Khan. He also produced a copy of the F.I.R. Exh. P.F. Recorded on 22-6-1980 at the instance of Ghulam Hassan (given up P.W. In this case) as a cross-case to the F.I.R. Exh. P.E. Mentioned above. P.W.11 Nasruallah A.S.I. Investigated the case and arrested Ghulam Farid and Janey Khan accused son of Pathaney Khan on 13-12-1980. P.W.12 Muhammad Khan S.I. Arrested Waryam and Sarwar Khan accused on 27-12-1980. No crime weapon was recovered from them and they were both found innocent during investigation of the police. The evidence of rest of the witnesses is of formal nature.
5. The accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence. They did not produce any evidence in their defence. After recording of the evidence, learned Additional Sessions Judge held that there was no delay in lodging of the F.I.R.; that the eye- witnesses though related and inimical had seen the occurrence; that the ocular account was supported and corroborated by a very strong motive and the medical evidence; that plea of alibi of Sarwar accused could not be believed; that the opinion of the police regarding innocence of Waryam and Sarwar Khan accused could not be accepted because the investigating officer had tried to help the accused and that it was not a case of vindication of family honour. He also relied upon the recoveries of the crime weapons and the empties from the spot.
6. We have gone through the record of this case with the assistance of the learned counsel for the appellants, learned counsel for the State and the learned counsel for the complainant.
7. It was contended by the learned counsel for the appellants that the eye-witnesses were related to the deceased and inimical towards the accused on account of previous murders and, as such, were deeply interested to depose against the appellants; that there was no independent corroboration to the interested ocular account; that the conduct of the eye-witnesses was highly improbable which makes the entire prosecution case doubtful; that the F.I.R. Was not recorded at the police station as stated by Dost Muhammad (P.W.8) but was, in fact, recorded after some preliminary inquiry; that the recoveries could not be believed as these were supported by highly interested witnesses; and finally that the police found Waryam and Sarwar Khan accused innocent during all the investigation conducted by various agencies. It was, therefore, argued that the prosecution has miserably failed to prove its case against the four appellants.
' Learned counsel referred to Aks Shajra Exh. D.C. But stated that he will not place any reliance on other documents Exhs. D.D., D.E., D.F., and D.G. Tendered in defence evidence.
8. Learned counsel for the State controverted the arguments of the learned counsel for the appellants, and argued that the case against the four appellants stands fully proved by the evidence on record. Learned counsel for the complainant also supported the arguments of the learned counsel for the State.
9. We have given our anxious consideration to the arguments of the learned counsel for the parties, and have also gone through the record of this case. In the instant case, the three eye-witnesses are closely related to the deceased. Dost Muhammad (P.W.8) is real brother of the deceased. Allah Dad (P.W.9) is son-in-law of Dost Muhammad P.W. Janey Khan (P.W.10) son of Murad is first cousin of the deceased. Besides this, his daughter is married to a son of Amir deceased. The parties have murder enmity as is evident from the two F.I.Rs, Exhs. P.E. And P.F. Thus, the three eye-witnesses are not only related but have got murder enmity with the accused party. Janey Khan and Waryam accused are sons of Pathaney Khan, who alongwith Ali Khan was murdered only six months earlier.
Sarwar Khan appellant is real brother of said Pathaney Khan and was a complainant against Shamir Khan, a son of Amir Khan deceased and others involved in the above-mentioned two murders. Ghulam Farid accused, though not related, is stated to be a friend of Janey Khan accused. As such, we have to see whether there was any independent corroboration to the ocular evidence. The eye-witnesses, no doubt, fully supported the prosecution case in all details, but their conduct seems to us highly unnatural and improbable. The two eye-witnesses, Allah Dad (P.W.9) and Janey Khan (P.W.10), stated that at the time of occurrence they were proceeding to village Kot Bahadar to see one Jam Khan Baloch from whom Allah Dad P.W. Had to get Rs,400, needed by him for the purchase of fertilizer. He took Karam Khan (given up P.W.) and Janey Khan as Punchait. It was at about Degarwela when they reached near Chah Smailwala, they heard hue and cry being raised by Amir Khan deceased and Dost Muhammad P.W. They rushed to that side and saw the four accused inflicting injuries to Amir Khan deceased. Both these witnesses admitted in cross- examination that after the occurrence they did not stay on at the place of occurrence but went to their own house. These two witnesses were closely related to the deceased and were expected to stay near the dead body after Dost Muhammad had left to lodge the F.I.R. At the police station.
These witnesses were not the residents of the locality where the occurrence took place and were chance witnesses. Secondly, the place of occurrence is not a regularly defined path. The witnesses claimed that they were following a short-cut on the Bunnas of the fields and, therefore, happened to see the present occurrence. The Aks Shajra Exh. D.C. Indicates that there was no path at the place of occurrence and the defined regular path was located at some distance towards south- west of the place of occurrence. Thirdly, these two witnesses were closely related to the accused involved in the murder case of Pathaney Khan and Ali Khan and if had been present at the place of occurrence, they would not have been spared by the accused. The police arrived at the spot on the day of occurrence at 8-30 p.m. But did not find these two witnesses present near the dead body.
They were not summoned by the police immediately after its arrival at the spot but according to these witnesses they appeared before the police at the spot next day of the occurrence of their own. Fourthly, the reason of their presence at the spot given by these witnesses is also not convincing. Fifthly, the place of occurrence being not a regular path, it was not possible for the accused-appellants to foresee or judge that the deceased would be following the Bannas in the fields and would pass from that place. The story that the accused were waylaying the deceased (Thera) is improbable and, therefore, cannot be believed. In this view of the matter, we feel that the conduct of these two witnesses is unnatural and the story put forth by them is improbable. So far as Dost Muhammad P.W. Is concerned, he also is a chance witness. He was not the resident of a place near the spot of occurrence. He was a real brother of the deceased. It is stated by him that he left the spot soon after the occurrence aid reached the police station at 7-15 p.m., after about three hours of the occurrence, and lodged the report in the instant case. It is further stated by him that after lodging of the report at the police station, he accompanied the police party to the place of occurrence. According to A.S.I. Nasarullah (P.W.11), he was present at Garh Morr, about three miles from the police station, where he received information and papers pertaining to this case, and from there he reached the place of occurrence at 8-30 p.m. Alongwith Dost Muhammad P.W.
The place of occurrence is about 12 miles from the police station, which would mean that it was about 9 miles from Gar Morr. It was not possible for Dost Muhammad and the police party to cover this distance of 12 miles in one hour and fifteen minutes. These facts indicate that the F.I.R. Was not recorded in the manner stated by Dost Muhammad P.W. But it was recorded after some preliminary inquiry at the spot. This view is supported by the fact firstly that the inquest report is not signed by the complainant or by any of the eye-witnesses; that the two crime empties alleged to have been recovered from the spot were not mentioned in the inquest report; and finally that the dead body of Amir was found to be covered with a Chaddar when the pence arrived at the spot and prepared the inquest report. These facts also support the view that the eye-witnesses had not seen the occurrence and that the dead body had been covered by someone else who had found it lying at the spot. No one of the witnesses claimed to have covered the dead body with a Chaddar.
This fact creates doubt in the prosecution story. Another fact which requires to be noted is that Dost Muhammad P.W. Also attested the recovery memos of two crime empties and the blood- stained earth from the place of occurrence on 9-12-1980. It is admitted by him that he had accompanied the dead body from the spot to the mortuary and had also identified the same before the doctor at the time of post-mortem examination. The Medical Officer conducted the post-mortem examination at 1-30 p.m. On 9-12-1980. It was, therefore, not possible for Dost Muhammad to witness the recoveries of crime empties and the blood-stained earth and attest their recovery memos. Confronted with this situation, Dost Muhammad came out with a story that leaving the dead body at the mortuary, he came back to the place of occurrence and attested the two memos. And then again went back to the mortuary and identified the dead body. This story, on the face of it, appears to be false. There was no need for him to come back to the place of occurrence only to attest the two recovery memos. There were other persons present at the spot with the police including the two eye-witnesses, namely Allah. Dad and Janey, Khan. It indicates that the story of recovery of the crime empties etc, is false and the conduct of Dost Muhammad P.W. Also becomes questionable. The conduct of Dost Muhammad is highly improbable which makes his statement doubtful and unreliable, In view of the above, we find that the three eye- witnesses were not present at the spot at the time of occurrence and they did not see the deceased Amir Khan being injured by any one. It may here be added that the investigating officer found the dead body of Amir Khan lying on a cot. He made a graph/sketch of the position of the dead body in the inquest report. When in witness-box A.S.J. Nasrullah was confronted with the inquest report, he denied that the dead body was lying on a cot. He explained that the markings were only to describe the position of the dead body and not to indicate the cot. We are not prepared to accept this explanation. The sketch prepared by the investigating officer in the inquest report clearly shows the same to be a cot on which the dead body was lying. It is, therefore, not clear as to who placed the dead body on the cot and then placed the Chaddar thereon. This fact also makes the prosecution case doubtful.
10. The recovery of gun P.7 is of no avail to the prosecution. There is no evidence to indicate that this gun was used at the spot. There is also no evidence to connect the two crime empties P.8/1-2 with the gun P.7. As such, this recovery cannot be considered as a corroborating evidence to the eye- witnesses. The recovery of hatchet P.6 at the instance of Ghulam Farid accused is also doubtful.
The story of recovery of hatchet is supported by Nazar Abbas (P.W.7), who was 'married to Mst.
Muridan Mai, a daughter of Amir Khan deceased. It is alleged that the hatchet was got recovered from beneath the wood near southern wall of the Haveli of Janey Khan. The place of recovery is not owned or possessed by Ghulam Farid. The Haveli from where the hatchet was got recovered by Ghulam Farid belonged to Janey Khan, his co-Accused. As such, it could not be said that this hatchet was recovered from his exclusive possession. In this view of the matter, we find that the recovery of hatchet P.6 could not be attributed to Ghulam Farid and, as such, did not provide any corroboration to the ocular account of the present occurrence.
' There is another aspect of this recovery. Hatchet P.6 was made into a sealed parcel. The seals on this parcel had the initials 'G.H.'. The recoveries were made by A.S.I. Nasrullah and the words 'G.H.' means Ghulam Hussain. It was explained by A.S.I. Nasarullah that he did not have his own seat and, therefore, had obtained the seal of Ghulam Hussain H.C. Which was accordingly used to initial the seals on the parcel of this hatchet. This explanation cannot be accepted. A.S.I. Nasrullah had not proceeded to the place of occurrence from the police station for the purposes of investigation of the present case. He was on patrol duty and present at Garh Morr when he got the information. This place was three miles from the police station. There was, therefore, no occasion for him to get the seal from Ghulam Hussain H.C. Before leaving for the place of occurrence. He was definitely not in need of any seal while leaving the police station on patrol duty. The seal 'G.H.' also casts doubt on the recovery of hatchet from Ghulam Farid accused.
11. There is yet another aspect of the case which needs consideration. According to S.I. Muhammad Khan (P.W. 12), he found Sarwar Khan and Waryam accused innocent during investigation. Dost Muhammad (P.W.8) also admitted at the end of his cross-examination that "the case was first investigated by an A.S.I. And then by S.I. And then by Circle Inspector and then on my application by Inspector, Crimes Branch, and all of them held Sarwar Khan and Waryam Khan as innocent and they were placed in column No,2 of the challan (volunteered that all the police officers wrongly declared those two accused innocent. In fact, they wire at the spot and committed the occurrence)." S.I. Muhammad Khan stated that he arrested the accused Sarwar Khan and Waryam on 27-12-1980. In cross-examination, he stated that on that day Sarwar Khan and Waryam took the plea of alibi before him. In support of this plea both the accused produced many witnesses during investigation. He further stated in cross-examination that on 6-1-1981, the complainant and the accused party were summoned at the police station for consultation with each other. On that day, 13 persons appeared on behalf of the complainant party including the eye-witnesses while 59 persons appeared on behalf of the accused. It was stated by him that all the persons appearing on behalf of the accused endorsed their plea of alibi. He further stated that the accused challenged the complainant party that if Allah Dad, Karam Khan and Janey Khan witnesses state on solemn affirmation by putting their hands on Holy Quran that they were guilty then they should be challaned. The complainant party refused to do so. The investigation was then conducted by S.D.P.O. Shorkot, and also by an Inspector, Crimes Branch, Sargodha, who all confirmed and endorsed the investigation conducted by him. From a perusal of the statement of this witness, we find that the opinion of the police that Sarwar Khan and Waryam were innocent was based on sound material. This fact also makes the prosecution case highly doubtful. Even in the F.I.R. No injury to the deceased or any of the witnesses was attributed to Waryam.
12. So far as the motive is concerned, it is admitted by both the parties that they had murder enmity between themselves. Motive is a double-edged weapon. It could be a motive for -the accused to murder Amir Khan deceased and it could also be a motive for the complainant party to falsely implicate these appellants. As such, motive cannot provide a corroboration to the highly interested ocular account.
13. In view of the above, we find that the prosecution has failed to prove its case against the appellants. The appeal is accepted. The sentence of death awarded to the appellants is not confirmed. They are accordingly acquitted. They shall be released forthwith, if not required in any other case.
14. In view of the above, we find no merit in Criminal Revision No, 767 of 1982, which is accordingly dismissed.