The appellants Iftikhar Ahmed son of Abdul Aziz, resident of Chak No. 338/3.B., District Faisalabad and Sarfraz son of Muhammad Hussain, resident of 3901J.B., District Faisalabad have preferred this appeal assailing their conviction and sentences on the charge under section 302 read with section 34 of the Pakistan Penal Code recorded by the Additional Sessions Judge, Faisalabad vide judgment impugned, dated 26-5-1981. Vide the said judgment each of the appellant was sentenced to undergo life imprisonment, and to pay a fine of Rs.5,000 each, or in default of the payment of fine to suffer further R.I. For R term of six months each. It was also ordered by the learned trial Judge that the amount of fine if recovered shall be paid to the father of the deceased as compensation under section 544-A. Cr.P.C. The appellants were tried for having caused the murder of Ghulam Dastgir, on the night between 21/22 April, 1979, in a field within the area of Chak No. 339/3. B. Within the jurisdiction of Police Station Gojra, situated at a distance of 15 miles from the place of occurrence. The basis of the F.I.R. Was the statement of Muhammad Rafique. P.W. 7, .The father of the deceased which was recorded by Bashir Ahmed, Sub Inspector-Incharge Police Post Nawan Lahore, when he was present at the Bus Stand of Nawan Lahore in connection with the patrol duty. In the F.I.R. The prosecution story narrated by Muhammad Rafique P.W. 7 is as under:-- "That 1 (Muhammad Rafique), resident of Chak No. 3381J.B. And my only deceased son namely, Ghulam Dastgir, aged 16/17 years, who had taken his Matriculation Examination was present in the house at sun-set time and my brother Muhammad Shafi was also in the house alongwith other members of the family, when the appellants came to my house and called my son. My deceased son went out in response to the said call and -after about 2 minutes he again returned and while standing in the door, my deceased son told me, that he was going out alongwith the appellants.
My son did not return to the house till Sotewela whereupon. I and my brother Muhammad Shafi got worried and proceeded to search my son to the Adds Nawan Lahore. At the said Adds Muhammad Khalid, a class-fellow of my son informed, that my son was at the shop of another Sarfraz on the Adds and were planning to proceed towards village Jhoor. On getting the said clue, I and my brother Muhammad Shafi proceeded to village Jhoor through a Katcha path. On our way we come across Mukhtar Ahmed. P.W.8, whom I informed, that I was in search of my son. Mukhtar Ahmed P.W. 8 informed me, that he had seen the deceased, Ghulam Dastgir alongwith the appellants proceeding towards Abadi Bhadroo, Chak No. 340/J.B. And, that he had met them on the way. On receipt of this information, we proceeded towards the Chak Bhadroo and we had hardly covered a short distance when we heard the human cries coming from a deserted Teela in Chak No. 339/J.B.
Accordingly, we rushed to the said Teela and we saw, that two boys were inflicting knives blows to another boy lying on the ground. We caught hold both the assailants and noticed that they were appellants and we further noticed, that the victim of the attack was my son, who was profusely bleeding and in our view ate, breathed his last. We snatched the knives from the hands of the appellants and leaving Muhammad Shafi to guard the dead body. We, caught hold of the appellants which we are producing now alongwith their knives.
The motive for the crime is, that both the appellants, who were friends had a grudge against my deceased son to the effect, that my son brings bad names to them by circulating news, that both the appellants had illicit connection with each other as males and thus on account of this grouse my son has been murdered. "
Bashir Ahmad, Sub Inspector after recording the above-mentioned statement of Muhammad Rafique P.W.7, sent the same to Police Station Gojra for registration of the case. The Sub Inspector took the knives produced by Muhammad Rafique into possession. The appellants were arrested and their clothes were found to be stained with blood and hence they were also taken into possession.
2. Dr. Capt. Khalid Mahmood. Medical Officer, Rural Health Centre Shah Jewana, District Faisalabad conducted post-mortem examination on the dead body of the deceased on 22-4-1979 and noticed the following injuries:- (1)An incised wound -- " x -- " x 1 --" deep on upper part of middle line of neck on front side. Under the wound tissues were cut.
(2)An incised wound -- " x -- " x 2 -- " on right side of neck 3/ 4" from injury No. 1. On disection the organs underneath the wound including caroties vessels and jugular veins were found cut.
(3)An incised wound semi-circular in shape on right mendible. It was 1" x --" x skin deep.
(4)An incised wound --" x --" x --" deep on the left ,and lower side of umblicus at a distance of 1 -- ". The organs under the wound and paritonium were found cut.
5.A wound 3/4" x -- " x 3/4" deep 2" below and on right side of umblicus. The organs under the wound and paritonium were found cut.
(6).An incised wound 3/4" x --'' x --" deep on right side of abdomen 4 --" from umblicus.
(7)Many wounds skin deep around the umblicus.
3. In the opinion of the doctor the death occurred due to shock and haemorrhage caused by injuries Nos. 1 to 7. Injuries Nos.1, 2, 4 and 5 were opined to be sufficient to cause death in the ordinary course of nature. In cross-examination doctor admitted, that he did not notice any cut mark on the shirt of the deceased corresponding to the injuries. The doctor further admitted, that he had omitted to mention in his report that injury No. 1 was on the front of the neck. The doctor further opined, that possibility of injury No. 3 having been caused by some animal could not be ruled out. The doctor further admitted that injury No. 7 on the body of the deceased consists of innumerable cuts which could not be counted.
4. On the application of the police on 22 April, 1979 at 5 p.m. The same doctor examined appellant Iftikhar Ahmad and three abrasions mixing with each other were noticed on the neck of the appellant Iftikhar Ahmad. The doctor stated, that the said abrasions were caused by a blunt weapon and might have also been caused by a finger nail.
5. At the trial the prosecution relied upon the ocular testimony furnished by Muhammad Rafique complainant P.W.7 and Mukhtar Ahmad P.W.
8. The evidence as to the recovery of the blood- stained clothes worn by the appellants at the time of their arrest was also relied upon as corroborative evidence.
"On the day following the night of occurrence in early morning I and Sarfraz accused were called to Police Post, Nawan Lahore where I was manhandled by the police. I was interrogated about the whereabouts of the deceased. Later on I and Sarfraz accused were taken to Police Station Gojra alongwith the P.Ws. Where late in the evening a case was registered against us by fabricating evidence against us. I have been involved in this case because of enmity with Rafique complainant and political rivalry with Sarwar brother of Khalid P.W. The deceased died in mysterious circumstances and the occurrence was not witnessed by anyone.
Sarfraz appellant made the following statement:- "On the morning of 22-4-1979, I and Iftikhar were called by the Police Nawan Lahore. We were Manhandled and the police wanted us to confess before them that we had committed the murder of Ghulam Dastgir. We had no reason at all to commit the murder of a fellow citizen. We were threatened and then taken to Gojra. Where this false story was cocked and false circumstances evidence was concocted. About a year before the occurrence I had left school where I was studying in 8th Class and I opened a shop at Adda Nawan Lahore. Ghulam Dastgir Was known to me and he had appeared in the Matriculation Examination. I have been implicated due to suspicion."
5. I have heard the learned counsel for the appellants and the State at length. I have also carefully scrutinized the ocular account of the prosecution version. After anxious consideration, I have come to the conclusion, that the prosecution version is unreliable and the eye-witnesses in no circumstance could have seen the occurrence, nor in my view they, were capable to overpower the appellants who were young boys, aged about 16/17 years and were armed with knives. Similarly, the assertion by the eye-witnesses, that they had caught hold of the appellants and had tied them with their Safas for taking them to the police station is against the course of human conduct and behaviour. It was a dark night and the witnesses claimed to have reached the place of occurrence after hearing the cries of the deceased to the effect. It is highly improbable that in view of the injuries on the neck, the deceased would 'have been able to raise hue and cry and that too, at a time when allegedly the eye-witnesses had to pass at a distance of 2/3 Acres from .The place of occurrence. It is improbable, that the appellants would not have noticed approaching the eye- witnesses to the place of occurrence, that being so, I cannot believe, that the appellants would have so readily and voluntarily surrendered themselves before the eve-witnesses anti to have offered themselves to be tied with a Safa particularly when they were armed with knives.
6. As far as Mukhtar Ahmad P. W. 8 is concerned, he is a chance witness and his presence and having accompanied Muhammad Rafique P.W. 7 and Muhammad Shafi his brother (not produced) is unbelievable. The said witness gave an explanation that he had gone to village Badroo for settling the bargain for the purchase of a bullock and on his return from the said village he came across Muhammad Rafique P.W. 7 and his brother Muhammad Shafi. The occurrence admittedly took place between 11 and 12 p.m. I am not prepared to believe, that at such late hours Mukhtar Ahmad would be returning from a village where he had gone to strike the bargain for the purchase of a bullock. It was month of April which being harvest season the absence of cultivator from his field is unnatural. Mukhtar Ahmad is Arain by caste and so is the complainant and I am of the view,nd that on account of the Bradary affinity, he has entered into witness-box to oblige the complainant.
The prosecution story if believed give rise to the inference, that the appellants would be waiting for the witnesses to pass from near the place of occurrence to kill the victim of attack. A word about the motive would also be necessary because the prosecution has set it up. The motive is too feeble to be believed. Assuming it to be true, how it is possible, that the deceased would have told the alleged illicit liaison between his two male friends to his own father. Furthermore even if it is believed that the complainant knew about such liaison, why would he permit his son to accompany them at sun-set time. The findings arrived at by the learned trial Judge on the motive and to believe its truth, is not sustainable. If at all the appellants had any grouse, the deceased would have known it and, therefore, would not have accompanied them as alleged by the prosecution.
7. As far as the recovery evidence is concerned it is of no avail to the prosecution, inasmuch as, the ocular testimony in this case is unworthy of the credit and, therefore, the recovery losesits corroborative significance.
8. In this view of the matter, this appeal must succeed and is, therefore, allowed. The appellants would be set at liberty forthwith if not required in any other case.