' MUHAMMAD MU,dili KHAN, J.-This Criminal Appeal No, 87 of 1983 and the connected Murder Reference No, 46 of 1983 arise from the judgment of learned Sessions Judge, Multan whereby he on 22-1-1983 while acquitting Haq Nawaz, Allah Ditta convicted Zaman appellant under section 302, P.
P. C. For causing death of Manzoor Hussain and sentenced him to death and a fine of Rs, 5,000, in default thereof three years' R. I. It was directed that the fine if realized be paid to the legal heirs of the deceased. Sher Khan co-accused was murdered during the trial and as such could not be tried along with the appellant.
2. The occurrence took place at 9. a. m. On 16-10-1981 in village Dangra of Police Station, Tulamba.
The distance between the place of occurrence and the Police Station is six miles. F. I. R. Exh. P. E. Was lodged by Mapal P. W. 6 brother of the deceased at the Police Station on the same day at 11 a. m.
And was recorded by Ghulam Muhammad S -I. P. W.
10.
3. The motive as set up by the prosecution was, that five days prior to the occurrence, Zaman appellant had divested the water of Manzoor Hussain deceased who was a lessee -of the land owned by Saif Ullah Khan. On this Manzoor Hussain had given fist blows to Zaman appellant, hence this occurrence.
4. As far the main occurrence, it has been stated that at the eventful time, Mapal complainant and Manzoor Hussain deceased had gone to the village of the appellant to strike a bargain of cotton.
When they were on their way back to their house and the deceased was 10/12 Karams ahead, Mapal complainant found that co-accused Haq Nawaz and Sher Khan were catching hold of Manzoor Hussain and Allah Ditta co-accused was standing nearby armed with a gun. Zaman appellant gave a knife blow on the right side of the neck of Manzoor Hussain. The alarm raised by the deceased and Mapal complainant, attracted Mst. Ghulam Fatima P. W. 7 widow of the deceased and Alam Sher (given up) the son of the deceased to the spot. The deceased, on receiving the injury walked about 20/25 Karams and fell down near the house of Abdul Majid D. W. 1 and died immediately. The appellant and co-accused ran away taking the weapons with them.
5. On 17-10-1981 at 11 a. m. Dr. Abdul Ghaffar conducted postmortem examination on the dead body of Manzoor Hussain. He found-following injuries:- "An incised wound 1i" x 1" deep going into neck oblique in direction. The depth of the wound was going obliquely downwards with .a cut abrasion 5" x 1/6" at the lower end of the wound on the right side and base of the neck. This cut abrasion was present on the front and upper part of the right chest. Blood was oozing from the wound."
' On internal examination, right pleura was found cut and the upper part alongwith a cut on the upper lobe of the right lung. The cut was 1" x 4" x 1". The right chest cavity was full of blood. The blood vessels of the right side of the neck at its base were cut. The stomach contained semi-digested food two ounces.
' In his opinion, the cause of death was due to haemorrhage and shock as a result of the injury No, 1 which was sufficient to cause death in the ordinary course of nature. The injury was caused by sharp-edged weapon. The death occurred within few minutes of the 'receiving of the injury. The time between the death and the post-mortem was 24 to 36 hours. In cross-examination, the Doctor stated that after the infliction of injuries the deceased might have been able to take one or two steps and not more and be might have taken his last meal not more than three hours before the occurrence.
6. The appellant was arrested on 17-10-1981 by Ghulam Muhammad S.-I. P. W.
10. He led to the recovery of blood-stained knife P. 4 from the eastern wall of a primary school which was taken into possession vide memo. Exh. P. H. Attested by Ghulam Farid P. W. 8, and Muhammad Nawaz (not produced). The recovery was effected by Ghulam Muhammad S.-I. P. W.
10. Since the report of the Serologist was withheld, the trial Court has not acted upon on this recovery.
7. To prove its case, prosecution examined 10 witnesses. Dr. Abdul Ghaffar P. W. 1 has proved the post-mortem examination of Manzoor Hussain deceased. Mapal P. W. 6, Mst. Ghulam Fatima P. W. 7 have given the ocular account of the occurrence. They claim to have seen Zarnan appellant causing knife injury on the person of Manzoor Hussain resulting in his death. Mapal has also deposed about the motive of the appellant to kill the deceased. Ghulam Farid P. W. 8 and Ghulam Muhammad S.-I. P. W. 10 have supported the recovery of bloodstained knife P. 4 from the appellant.
The rest of the evidence is more or less of formal nature.
8. When examined under section 342, Cr. P. C. The appellant denied all incriminating circumstances. He raised plea of false implication due to political rivalry with Hirajs and land dispute with Pathans. In defence four witnesses were produced. Abdul Majid D. W. 1 stated that on the eventful date, at 8/9 a. m. He was present in his house. On hearing the alarm, be went to the place of occurrence. He found Manzoor Hussain deceased was lying in pool of blood in the street, near the house of Ramzan Mussali and that Ramzan had told him that he knew nothing about the occurrence. The witness stated that neither the accused persons nor the eye-witnesses namely Mapal and Mst. Ghulam Fatima or Alam Sher were present there. Muhammad Ramzan D. W. 2 stated that on the eventful day at 8/9 a. m. He was cutting fodder. On hearing the alarm, he came out and saw Manzoor Hussain deceased lying injured. Neither accused persons nor Mapal, Mst.
Ghulam Fatima or Alam Sher were present there. Muhammad Bukhsh D. W. 3 was the councillor of the Union Council, Ghauspur. He stated that on the eventful day at 9-00 or 9-30 a. m. He was present at the hotel of Sardar at Railway Station Abdul Hakeem. Mapal complainant was also present there. Wasaya Machhi came there and informed Mapal P. W. About the murder of his brother. The witness stated that Railway Station Abdul Hakeem is at a distance of 5/6 miles from Rasti Dangra. Abdur Rehman D. W. 4 stated that on 15-10-1981 Zaman appellant had come to his house in the evening to take Rs, 5,000, the price of the bullock from him. He stayed for a night with him and departed on the following day at about 1 p. m.
10. The learned trial Court while giving benefit of doubt to the three co-accused, acquitted them and believing the motive and the ocular testimony, has convicted and sentenced Zaman appellant as stated above.
11. The learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the F. I. R. Was recorded after preliminary investigation; that there was inordinate delay in the despatch of the dead body for post-mortem examination; that the occurrence was not seen by Mapal and Ghulam Fatima; that Ramzan and Abdul Majeed D. Ws. Had come to the spot on hearing the alarm and they found that Manzoor Hussain was lying in pool of blood and the two eye-witnesses were not present there; that the ocular evidence is in conflict with the medical evidence and that the three co-accused involved by the eye-witnesses were found innocent by the police and have also been acquitted by the trial Court. Conversely the learned counsel for the State supported the judgment of the trial Court. He maintained that the two eye-witnesses having no previous enmity with the appellant are quite dependable and their testimony finds support from circumstances such as motive and promptly lodged F. I. R. Containing the names of the eye-witnesses as well as appellants and his co- accused.
12. We have considered the arguments advanced by the learned counsel for the parties with care.
We feel persuaded to agree with the learned counsel for the appellant. It seems to us that F.
1. R. Exh. P. E. Is not a genuine document. It was not recorded at the time and place as it indicates.
The prosecution case is that immediately after the occurrence Mapal left for the police station where he lodged report Exh. P. E. At 11 a. m. On the same day, whereas Allah Diwaya constable P. W.
3 and Khan Muhammad P. W. 5 have stated that the statement of Mapal complainant was recorded by the police on the spot. Mst. Gtiulam Fatima P. W. 7 has stated that the statement of Mapal was recorded on the spot on the following day of the occurrence. Furthermore, the dead body was received in the Hospital after 24 hours of the occurrence. Dr. Abdul Ghaffar P. W. 1 has stated that the dead body was received in the mortuary on 17-10-1981 at 9 p. m. And that it was not broughbefore him on 16-10-1981. We do not see any reason to disbelieve him. If the occurrence had been witnessed by Mapal and Mst. Ghulam Fatima and the culprit been identi led and F. I. R. Had been recorded at the Police Station, then there was no reason and occasion to record statement of Mapal on the spot. The delay in the despatch of the dead body also creates doubts as to the identification of the culprits at the time of occurrence. There is thus a reasonable apprehension that the interval was spent in deliberations, consultation and preliminary investigation. Despite these observations, we would not throw away the prosecution case. Thise suspicious circumstances are however sufficient enough to put us on our guard against placing implicit reliance on the F. I. R. Exh. P.E. And inquest report Exh. P.K.
13. Adverting to the ocular evidence furnished by Mapal and Mst. Ghulam Fatima, we find that they are brother and wife of the deceased, respectively. They did not reside in the bassi where the occur rence took place. There was no plausible cause of their presence near the spot at the time of occurrence. There is also no circumstantial guarantee or judicial certainty of their presence on the spot. There are rather reasons to doubt that they in fact saw the occurrence. Dr. Abdul) Ghaffar has stated that after the receipt of injury, the deceased could take one or two steps and not more whereas Mapal P. W. Has stated that after having received the injury Manzoor Hussain walked about 20/25 Karams and then fell down in the street and succumbed to the injury. Ghulam Fatima P. W. 7 stated that after the infliction of injury on his person, Manzoor Hussain started walking towards the west and fell down at a distance of 10/15 paces near the house of Ramzan and expired there. Mapal and Mst. Ghulam Fatima stated that the blood had fallen on the place where Mazoor Hussain was injured and that there was also a trail of blood from the spot where he received the injury up to the place where he fell down. Fateh Muhammad draftsman P. W. 4 stated that the distance between these two places was 105 feet. Ghulam Muhammad S.-1. Stated that he did not see any blood on the place where Manzoor Hussain was allegedly injured and that no trail of blood was seen by him anywhere. He stated that he had collected the blood-stained earth from underneath the cot upon which the dead body of Manzoor Hussain was lying. Mst. Ghulam Fatima stated that the deceased had taken his last meal about 10/15 minutes before the occurrence but the post-mortem report revealed that the stomach contained semi-digested food. Admittedly Manzoor Hussain fell down in injured condition near the houses of Muhammad Ramzan and Abdul Majid D. Ws. And died. Abdul Majid and Ramzan have stated that on hearing the alarm they came out of their houses and found Manzoor Hussain lying in pool of blood in the street and that Mapal and Mst. Fatima P. Ws. Were not present there. We do not see any reason to disbelieve them. They have successfully faced the test of cross-examination. Neither they are related to the appellant nor they have any animosity against the complainant party. Al! This, leads us to an irresistible conclusion that the occurrence was in fact not seen by two eye-witnesses produced by the prosecution. In any case the rule of prudence would require independent corroboration of the statements of these two witnesses in all material particulars. We have anxiously looked around for independent corroborative evidence which may be C relied upon to rehabilitate the evidence of the eye-witnesses. On careful appraisal of the direct/circumstantial evidence, we do not see any reliable independent corroborative evidence, in the circumstances relied upon by the learned counsel for the appellant. It has already been found by us that F. I. R. Exh. P. E. Is not a genuine document and it was not recorded at 11 a.m. On 16-10-1981 as it indicates. The next circumstance relied upon by the learned counsel for the appellant was the motive. There can be no two opinions that enmity is a double-edged weapon and, it cuts both ways. In the circumstances of the case we are of the opinion that benefit of this maxim should not be given to the prosecution. The reasonable possibilty of the false implication of the appellant on account of ill-will or suspicion that he might have killed the deceased or might have hand in the murder cannot be ruled out. The recovery of the weapon of offence from the appellant has already been disbelieved by the trial Court and we do not see any reason to disagree with this, finding of the trial Court.
14. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the appellant and while giving him the benefit of doubt, he is acquitted of the charge.
' He shall be released forthwith if not required to be detained in any' other case.