Appellants Muhammad Asghar (40), Muhammad lqbal (20/21). Muhammad Shafi (45), Muhammad Rafiq (32) and Abdullah aged 80 years according to his statement under section 342, Cr.P.C. According to P.Ws. He was 70 years) alongwith Muhammad Amin, acquitted co-accused, were tried for having committed the murder of Muhammad Tufail, at 7-30 a.m. On 5-10-1979, in front of his house, in village Saraiser, at a distance of six miles from Police Station, Kanganpur.
2. The learned Sessions Judge, Kasur, vide order, dated 17-1-1984, convicted the appellants under sections 148/149 and 302/149, P.P.C. Under section 148/149, P.P.C. All have been sentenced to undergo two years' R.I. Under section 302/149, P.P.C, each one of them has been sentenced to undergo imprisonment for life, plus a fine of Rs.2,000 each, in default whereof to undergo further R.I.
For one year. Whole of the fine, on realization has been directed to be paid as compensation to the heirs of the deceased.
Vide the same judgment, Muhammad Amin, co-accused was acquitted.
3. F.I.R. (Exh. P.J./1) was registered at Police Station Kanganpur on the same day at 9-30 a.m. By Muhammad Abdullah, H.C. (P.W. 7), on receipt of statement (Exh. P.J.) of Muhammad Hasan (P.W.
12), father of the deceased, recorded by Muhammad Sadiq, A.S.I. (P.W. 13), at 9 a.m. In village Shamkot, at distance of two and a half miles from the place of occurrence.
4. According to the F.I.R., the occurrence had taken place in the following manner:-- On 5-10-1979, Muhammad Tufail while on way to his house from the fields, reached Chowk near his house at 7-30 a.m., he was stopped by Muhammad Amin, who engaged him in talks. On a call given by Muhammad Amin, Muhammad Rafiq, armed with Kulhari, Asghar, armed with .12 bore gun, Shafi, armed with Sota. Muhammad Iqbal, armed with Kulhari and Abdullah armed with Dang, came out from the house of Muhammad Rafiq. Tufail tried to run away. He was taken into clasp by Muhammad Amin. Muhammad Rafiq etc. Started giving him blows with Dangs and Kulharis, as a result of which, he fell down, Muhammad Hasan complainant, Muhammad Ali, Shaft son of Khurshid and Mansha, went ahead to save him while raising noise, whereupon Asghar fired shots from the gun and told them that if anybody advanced, he will be shot at. Feeling scared, none of them went ahead. The accused continued beating Tufail. In the meantime, Mst. Hanifan Bibi sister of Tufail came there and lay herself upon Muhammad Tufail to save him. She also beseeched them not to beat him. The accused pushed her away and dragged Muhammad Tufail to the haveli of Asghar and gave him further beating. Presuming him to be dead, they went away. The complainant alongwith Muhammad Ali, Shaft, Mansha and others lifted Muhammad Tufail. He was still alive. He was placed on a Charpoy and was being taken to Civil Hospital, Chunian, when he died.
The motive for the occurrence was that 8/9 years prior to the occurrence, Ahmad Din, father of Muhammad Iqbal, accused, was murdered. Muhammad Tufail deceased was challaned and was acquitted. The other motive was that the complainant had purchased five Kanals of land from paternal aunt of Rafiq accused 4/5 years prior to the occurrence, as a result of which he was also annoyed.
5. Muhammad Hasan after the expiry of Muhammad Tufail proceeded to lodge the F.I.R. He came across Muhammad Sadiq, A.S.I. At village Shamkot who recorded his statement (Exh. P.J.) at 9 a.m.
The A.S.I., after despatching the statement to the Police Station for the registration of the case, proceeded to Civil Hospital, Chunian. He prepared the injury statement Exh. P.Q. And inquest report Exh. P.R. Of Muhammad Tufail deceased and sent the dead body for post--mortem examination.
Thereafter, he proceeded to the spot. On spot inspection, he collected blood-stained earth from the Chowk as well as from the haveli of Muhammad Asghar, and sealed them into two separate parcels, vide memo. Exh. P.K. An empty P. 10 was also taken into possession from near the house of the deceased, vide memo. Exh. P.L. The A.S.I. Had also noted dragging marks with blood-stains in the haveli of Muhammad Asghar. The investigation was thereafter taken over by Masud Pervaiz, S.H.O.
Muhammad Iqbal, Muhammad Rafiq, Muhammad Shafi appellants and acquitted co-accused Muhammad Amin were arrested by him on 6-10-1979. Asghar and Abdullah were arrested by him on 8-10-1979.
On 15-10-1979, Asghar led to the recovery of gun P.4 and licence of gun P.5, which were taken into possession, vide memo. Exh. P.C. Muhammad Rafiq led to the recovery of blood-stained Kulhari P. 6, Muhammad Iqbal led to the recovery of blood-stained Kulhari P.7, Abdullah led to the recovery of blood-stained Sota P. 8 and Muhammad Shafi led to the recovery of blood-stained Sota P. 9, which were taken into possession vide memos. Exhs. P.D., P.E., P.F. And P.G., respectively, attested by Muhammad Siddique P.W. 4 and Nizamuddin P.W.5, apart from the S.H.O.
6. The autopsy of the dead body of Muhammad Tufail was performed by Dr. Muhammad Ashraf P.W. 1 at 4 p.m. On 5-10-1979. At the time of autopsy, the doctor noted seven lacerated wounds, seven contusions, one abrasion and one cut wound. Except the cut wound, which was opined to have been caused by a sharp-edged weapon, all other injuries were opined to have been suffered by blunt weapons. The lacerated wounds included an injury on the head as well.
According to the opinion of the doctor, the deceased died as a result of irreversible shock due to collective result of the injuries.
7. At the trial fourteen witnesses were examined. The ocular evidence was deposed by Muhammad Ali P.W. 9, Shaft P.W. 10, Mansha P.W. 11 and Muhammad Hasan complainant P.W.
12. Positive report of Chemical Examiner Exh. P.Y. About the earth taken from two places and report of Chemical Examiner Exh. P.Y./1 about blood-stains on weapons of offence and report of Serologist about earth from the two places Exh. P.Z. And report (without Exhibit) of Serologist about the weapons of offence having been stained with human blood, were also tendered in evidence.
8. Muhammad Hasan P.W.12 repeated the account of the occurrence given by him in the F. I. R. He also repeated the motive for the occurrence stated by him in the F.I.R. (Although in the English record it is stated that he had purchased land from Mst. Ralan, paternal-aunt of Iqbal, but in the Urdu record purchase of land from paternal-aunt of Rafiq is mentioned, which fact was stated by him in the F.I.R).
Muhammad Ali P.W. 9 and Muhammad Shafi P.W. 10 have corroborated him in so far as the account of occurrence is concerned. Mansha P.W. 11 also corroborated him in examination-in-chief, but during cross-examination he stated, that when he reached the place of occurrence, he saw Iqbal alongwith his four brothers accompanied by Kalal causing injuries to the deceased.
According to him, Ghafoor only, was holding a hatchet and he, also, had given only one injury from its sharp-edge.
9. All the eye-witnesses stated categorically during cross-examination that the occurrence took place in a thickly inhabitated area and the houses of many other persons excluding the P.Ws.
Surrounded the place of occurrence.
Muhammad Ali P.W. 9 in cross-examination even admitted of 10/15 men and women having reached the spot at the time of occurrence, after hearing alarm raised by them. He, however, expressed his inability to give their names.
Siddique P.W. 5 stated about having attested the recovery memos, of weapons recovered from the appellants.
Siddique, however, stated that Shafi had not led to the recovery of anything in his presence. Both stated categorically, that the recoveries were effected on the third day of the occurrence.
10. The appellants during their examination under section 342, Cr.P.C. Denied the allegations. They pleaded innocence and stated that they have been involved falsely because of enmity.
11. The prosecution case consists of ocular account, evidence of motive, medical evidence and evidence of recovery of weapons of offence.
Although the weapons of offence said to have been recovered from the appellants were found to have been stained with human blood, as opined by the Chemical Examiner and the Serologist, but their opinion, is not an evidence of the fact that the recoveries were genuinely effected from the appellants.
According to the recovery memos. And the statement of Masood Pervaiz, S.I. P.W. 14, the recoveries were effected on 15-10-1979, i.e. Ten days after the occurrence. The S.I. Stated that he had arrested Iqbal, Rafiq, Amin and Shafi on 6-10-1979 and Asghar and Abdullah on 8-10-1979, but he has been contradicted by Muhammad Shafi P.W. 10 and Muhammad Hasan P.W. 12, who stated that the police had taken the accused into custody on the very fir t day. To be exact, Shafi stated that he had seen the accused with the police on the spot on the first day, while complainant P.W. 12 stated that the police had arrested the accused before their visit to Civil Hospital, Chunian. The two a recovery witnesses, i.e. P.W. 4 and P.W. 5, have also categorically stated that the recoveries were attested by them on the third day of the occurrence. These classic contradictions make the case of the prosecution very doubtful about the authenticity of the evidence of recovery of weapons of offence. I am, therefore, inclined to agree with the learned counsel for the appellants that the evidence of recovery in the case is not worth reliance, as it does not inspire confidence.
12. The medical evidence instead of lending corroboration to the ocular account, contradicts the same. It has been categorically stated by P.Ws. 9,10,12 and 11 also in examination-in-chief, that two of the appellants were armed with hatchets. None of them stated that any of the appellants armed with hatchets had used the same from wrong side. Some of them have stated that each one of the accused had given 2/3 injuries while some of them stated that they had given 5/6 injuries. If that was the position, the doctor who performed the post-mortem examination on the dead body of Tufail should have found at least five to ten injuries by sharp-egged weapons, but the doctor had only observed one injury by sharp-edged weapon, which was a cut wound.
13. Out of the four eye-witnesses, Muhammad Hasan P.W.12 is father of the deceased. Sister of Muhammad Ali P.W.9 was married to the deceased and in turn, sister of deceased is married to him. Shafi P.W. 10 is real maternal-uncle of the deceased.
P.W. 11 (Mansha) is, however, not related to the deceased and as such he can be deemed to be an independent witness. But his statement lacks any evidentiary value, for the reason that in cross-- examination he excluded the participation of appellants other than Iqbal in the occurrence. In that also, he did not mention that any of the accomplices of Iqbal was holding a gun, nor he has stated that any of them had fired any shot. The only person armed with hatchet, according to him, was Ghafoor. As noted in the earlier part of the judgment, he was neither declared hostile, nor cross- examined. Nor such request was made even. He contradicted the account given by him in examination-in-chief, during cross-examination, and thus his statement, therefore, cannot be relied upon for maintaining the conviction of the appellants. In fact, his statement cannot be made use of against Iqbal even, as he has lost all worth for reliability.
14. The evidentiary value of the statements of P.Ws. 9,10 and 12 have to be judged with care and caution, in view of their close relationship with the deceased, particularly so, when the medical evidence does not corroborate their statements.
15. The conduct of P.Ws. 9 and 10 is not having accompanied the deceased from the village to Chunian Hospital casts shadows of doubts on their veracity. Both of them have clearly stated that they had not accompanied Tufail deceased from the village, when he was being taken to the hospital. Tufail must then be, in a very precarious condition. In fact, he was mortally wounded. If they had been present at the time of occurrence or had been available when Tufail was being taken to the hospital, they could not have afforded to stay back in their houses because of close relationship.
The conduct of these three eye-witnesses, in not trying to save the deceased from the accused when he was being assaulted, particularly so, when Mst. Hanifan, sister of the deceased and were of Muhammad Ali P.W. According to them, had laid herself upon Tufail deceased to save him, is highly questionable, to say the least. If a woman could afford to lay herself on her brother, when he was being assaulted by enemies, these witnesses could have at least lent some support to her in saving him. In fact, they could have brought weapons as well from their houses which were nearby, to save the deceased, by way of launchind a defensive attack even. No effort on their part, of bringing out other persons from the area to save the deceased further damages their veracity.
The expression of inability by Muhammad Ali P.W. To name any, out of 10/12 men and women, who, according to him, had reached the spot, during the occurrence, further damages his credibility. If he had seen 10/12 men and women having reached the spot he could not have forgotten their names. They were not only his co-villagers but they were also his neighbours as well.
The purport and the impact of these facts make the claim of the three eye-witnesses to have witnessed the occurrence, doubtful.
Although the fact of Ahmad Din father of lqbal appellant having been murdered and Tufail having been challaned and acquitted for his murder has not been denied, but it is also on record that lqbal had two other brothers, one of whom was major at the time of murder of his father.
Be that as it may, the fact remains that if ocular account is not considered worth reliance, the evidence of motive, even if believed, cannot advance the case of the prosecution, for maintaining conviction.
The statements of P.Ws. 9,10 and 12, apart from the reasons advanced above, do not inspire confidence even otherwise when read as a whole.
The argument of the learned counsel for the appellants that the possibility of the F.I.R. Having been recorded in this case after preliminary investigations at the spot also contains some weight, particularly, in view of the prosecution case that the statement (Exh. P.J.), on the basis of which F.I.R.
Was registered at the Police Station, was made by the complainant to the A.S.I. In village Shamkot.
The complainant has not explained as to how hey came to know about the presence of A.S.I. Sitting in the Baithak of somebody in village Shamkot. Shamkot is stated to be at a distance of 2J miles from the place of occurrence. If the complainant had known that the A.S.I. Was in village Shamkot, he would have approached him much before 9 a.m., in view of the short distance.
16. For all the reasons enumerated above, the whole of the prosecution evidence bristles with doubts. It will not be a safe administration of justice to place reliance on such an evidence, for sustaining the conviction of the appellants. The appeal is accepted and the appellants are acquitted F by way of grant of benefit of doubt. Appellants Muhammad Asghar and Abdullah are on bail. Their sureties and bail bonds stand discharged. The other appellants, Muhammad lqbal, Muhammad Shafi and Muhammad Rafiq, shall be released forthwith, if not required in any other case.