This is an appeal by Muhammad Tufail (30), Mushtaq Ahmad (27) and Muhammad Ishaq (50) against their conviction under sections 302/34 and 307/34, P.P.C. By learned Additional Sessions Judge, Sahiwal, vide judgment, dated 17-7-1982. The three appellants were sentenced to imprisonment for life and a fine of Rs.2,000 or in default one year's R.I. Each under section 302/34, P.P.C. It was ordered that half of the fine if recovered, will be paid as compensation to the heirs of Mst. Momnan deceased. They were sentenced to suffer two years' R.I. Under section 307/34, P.P.C.
For causing injuries to Muhammad Akbar P.W. The sentences were ordered to run concurrently.
Their co-accused Khurshid (55) and Ali Muhammad (36) were acquitted by the same judgment.
Muhammad Akbar complainant filed Criminal Revision No. 273 of 1982 against the three convicted accused for enhancement of their sentence. He also filed Criminal Revision No. 274 of 1982 to challenge the acquittal of Khurshid and Ali Ahmad. Accused. These two revisions which were ordered to be heard alongwith the criminal appeal, will also be disposed of by this judgment.
2. The occurrence in this case took place at 1-00 p.m. On 8-6-1981, in Chowk Nayyanwala in Chak No. 143/E.B., about six miles from P.S. Arifwala, District Sahiwal. The F.I.R. Exh. P.C. Was recorded on the same day at 4-00 p.m. At the police station by A.S.I. Ata Muhammad P. W. 8 on the statement of Muhammad Akbar P. W. 9.
Muhammad Akbar complainant stated in the F.I.R. That on 8-6-1981, his were Mst. Momnan deceased took her daughters Mst. Salma P.W. To Arifwala for consulting Dental Surgeon. At about 1- 00 p.m., they returned to the village. He also came back from his land on a bullock cart. When they all were in Chowk Nayyanwala, suddenly Muhammad Tufail armed with hatchet, Ishaq, Mushtaq, Khurshid and Ali Ahmad armed with sticks came there. They caught Mst. Momnan deceased.
Muhammad Tufail gave hatchet blow on her shoulder. The remaining four accused gave stick blows on her legs. Muhammad Akbas tried to rescue her but he was given stick blows by Mushtaq, Ishaq and Ali Muhammad on his back and arm. The legs of Mst. Momnan we broken by the accused. She became unconscious. In the meanwhile, Razzaq P.W. Also reached there alongwith other residents of the village. The accused went away from the spot with their weapons. Mst.
Momnan was placed on the bullock cart for taking her to Arifwala but she died on the Northern corner of the village.
It was further stated in the F.I.R. By the complainant that about 2 -- years earlier, he had obtained 4 Kanals 6 Marlas of land for cultivation from Talib Hussain who later sold this, he (complainant) filed a suit to pre-empt the said sale to the annoyance of Muhammad Tufail and others. He further stated that his were used to give applications against the accused which also caused annoyance to them.
3. The police after registration of the case undertook investigation. Dr. Fazal Miran P.W. 2 on 9-6- 1981, at 7-00 a.m. Medically examined Muhammad Akbar P.W. He found an abrasion 3 c.m. x 5 c.m.
On the back of right shoulder. He also found a bruise 8 c.m. x 2 c.m. On the back of upper arm and, a swelling 3 c.m. x 2 c.m. On the front of lower right leg. These injuries had been caused by blunt weapon and were of within 12 to 24 hours. Injury No. 1 which had been kept under observation was found grievous while the remaining injuries were of simple nature.
The same Medical Officer on the same day at 7-30 a.m., conducted post-mortem examination on the dead body of Mst. Momnan aged 65 years and noted 14 injuries of various dimensions. Injury No. 2 was an incised wound 9 c.m. x 2 c.m. On the right scapula with underneath bone cut through and through. This was by sharp-edged weapon. The remaining injuries had been caused by blunt weapon and were on the left side of head, right hand, right leg, right knee, front of lower left thigh, left knee, left leg and right elbow. Injury No. 4 was 2 c.m. x 1 c.m. Bone deep on front of upper right leg. Both bones were fractured into pieces. Injury No. 8 was an abrasion 2 c.m. x 1 c.m. On the front * of left lower leg with both bones fractured into pieces.
Injuries Nos. 4, 8 and 10 were grievous. These injuries had caused shock and haemorrhage and were collectively sufficient in the ordinary course of nature to cause death. The time between injuries and death was within 1 to 3 hours and the post-mortem was conducted after about 16 to 24 hours, Ali Ahmad accused was arrested on 17-6-1981 while the remaining four accused were arrested on 12-6-1981. On 17-6-1981, Muhammad Ishaq led to the recovery of Sota P. 4 vide memo.
Exh. P.J., Mushtaq accused led to the recovery of Sota P. 5 vide memo. Exh. P.K. And Tufail accused led to the recovery of hatchet P. 6, vide memo. Exh. P.L. These recovery memos were prepared by A.S.I. Ata Muhammad P.W. 8 in the presence of Noor Muhammad and Dana, P.Ws. (both not examined). These three weapons were not stained with blood and, therefore, not sent for analysis.
The accused were challaned after completion of the investigation.
4. The prosecution during the trial examined ten witnesses in all. Mst. Sheeman P.W. 3 daughter of Mst. Momnan deceased and Muhammad Akbar P.W. 4 husband of the deceased were examined as eye-witnesses. Abdur Razzaq and Mst. Salma P.Ws., named as eye-witnesses in the F.I.R., were given up as unnecessary. Dr. Fazal Miran P.W.2 furnished medical evidence as given in detail above.
The case was investigated by A.S.I. Ata Muhammad P.W.
8. The dead body of Mst. Momnan was identified by her son Muhammad Akram P.W.
1. The evidence of rest of the witnesses was of formal nature.
The accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence.
They denied the recoveries of crime weapons at their instance. They did not produce any evidence in defence.
The learned trial Judge placed reliance on the evidence of the eye-witnesses, recovery of the three crime weapons P. 4 to P. 6 and the medical evidence and convicted the accused as stated above.
5. I have gone through the record of this case and have heard the learned counsel for the parties at great length.
Muhammad Akbar P.W.4 and Mst. Sheema P.W.3, as stated above, are closely related to the deceased. It is admitted by Muhammad Akbar P.W. 4 in the F.I.R. As well as in his statement during the trial that he had filed a pre-emption suit against Tufail accused about 11 years before the present occurrence. He admitted in cross-examination that about one month before the present occurrence, Tufail accused had got a false criminal case registered against him and his son Mansha. He stated that he and his son were allowed bail after one day of their arrest in that case which was still pending. Mst. Sheema P. W. 3 in her Statement during the trial admitted that Ali Ahmad accused had abduction case. It is, therefore, clear that firstly, the two eye-witnesses are not only on inimical terms with the accused but they also had enmity in between themselves. In view of this, it is necessary to seek independent corroboration to the statements of these two eye- witnesses in order to record a verdict of guilt against the accused. The prosecution relied upon the recoveries of the crime weapons P. 4 to P. 6 from the accused as evidence to corroborate the ocular account in this case. In my view the recoveries of crime weapons cannot furnish corroborating evidence in the instant case because firstly the two recovery witnesses were not examined during the trial and secondly, no one of the three crime weapons was found stained with blood. These are common weapons found in the houses of Zamindars. I am, therefore, of the view that these recoveries are of no help to the prosecution in support of this case. We are, therefore, left with the statement of the two eye-witnesses only. According to Muhammad Akbar P.W. 4 he was in his field before the occurrence and was returning on a bullock cart to his house when he witnessed the occurrence. On the other hand, his son Muhammad Akram P.W. 1 stated that he worked with his father in his square, about five squares from the place of occurrence throughout the day. He further admitted that they had constructed a Dera in the land and had tethered their cattle at the said Dera. A perusal his statement would snow that Muhammad Akbar P.W. Was present with his son in his land throughout the day. Muhammad Akram P.W. Admitted that he reached the hospital on receipt of information about the occurrence; that his father, sisters and brother Razzaq were present near the dead body; and that he remained in the hospital on that day and also during the following night but the police did not visit the hospital in his presence. He further stated that on the following day, a Thanedar came to the hospital and recorded the statements of his father and sisters. It would show that the F.I.R. Was recorded by the police at the hospital. This fact finds further support from the statement of Muhammad Akbar P.W. 4 who in cross-examination stated that the F.I.R. Was recorded by S. I. Falak Sher to whom he had narrated the whole incident and who had got his thumb-impression on that statement. He further stated that S.I. Falak Sher P.W. 9 had accompanied him to the place in his village where the dead body was lying. It was stated by him that S.I. Falak Sher inspected the injuries of his were at the place in his Chak and sent the dead body to Civil Hospital, Arifwala. This statement by; Muhammad Akbar is clearly against the prosecution case according to which, the F.I.R. Was recorded by A.S.I. Ata Muhammad P.W. 8 who also had prepared the injury statement and inquest report with respect/ to the dead body. I am, therefore, of the view that the F.I.R. Was recorded by the police not in the manner stated by A.S. I.
Ata Muhammad but in some other manner after preliminary inquiries, Muhammad Akbar` P.W.
Claims to have received injuries at the spot during the occurrence. In the F.I.R. Exh. P.C., he stated that three accused caused him injuries on his back and arm. In cross-examination, he admitted that he did not mention the injury on his shoulder in F.I.R. Would show that the injuries on the person of Muhammad Akbar were not noted in the Karwai Police at the bottom of the said document. The F.I.R. Was~ recorded at 4-00 p.m. Muhammad Akbar could have been sent for medical examination to Arifwala hospital, at a short distance from police station, immediately thereafter but surprisingly he was medically examined on the next date at 7-00 a.m. I am of the view that the injuries on the person of Muhammad Akbar P.W. Seem to have been fabricated for the purposes of this case.
The occurrence took place in Chowk Nayyanwala. It is admitted by the witnesses that there were many shops and residential houses in that Chowk. Surprisingly, no one from those houses and shops witnessed the occurrence. The house of the two witnesses is at some distance D and for that reason, according to Farooq Ahmad P.W. 7, not indicated in the site plan. In my view these two witnesses were not present at the spot at the time of occurrence.
6. In view of the above discussion, I am of the opinion that the prosecution has failed to prove its case against the appellants. This appeal is accepted. The conviction and sentences of the appellants under sections 302/34 and 307/34, P.P.C. Are set aside. They are acquitted. They shall be released from prison forthwith, if not required in any other case.
7. As a result of the above finding both the criminal revisions are dismissed in limine.