LEHRASAP KHAN, J.----Mukhtar (20), his brother Mushtaq (24) and his father Muhammad Tufail (80), were tried by a learned Additional Sessions Judge, Gujranwala, for the murder of Mehr Din (55). The learned trial Judge vide his judgment, dated 23-11-1984, acquitted Muhammad Tufail and Mushtaq but convicted Mukhtar under section 302, P.P.C. And sentenced him to death and a fine of Rs.5,000, or in default two years' R.I. It has also been directed that the fine, If realized, two-third of same would be paid to the heirs of the deceased as compensation.
The convict Mukhtar has challenged his conviction and sentence through Criminal Appeal No. 673 of 1981, while the matter also stands referred to us under section 374, Cr.P.C. Vide Murder Reference No. 8 of 1982, seeking confirmation of the death sentence awarded to Mukhter, Muhammad Ali complainant has filed Criminal Revision No. 393 of 1982, challenging the acquittal of Mushtaq and Muhammad Tufail. The Criminal revision has been ordered to be heard alongwith the appeal. This judgment shall dispose of all the aforementioned three matters.
3. The occurrence in this case took place on 17-7-1979, at 4.00 p.m. In the area of Mohallah Khanpura of Hafizabad. The occurrence was reported by Muhammad Ali P.W. 8 through statement Exh. P.H. Which he made before Nazar Muhammad A.S.-I. P.W. 12 in the Civil Hospital, Hafizabad, at 5-45 p. m. Formal F.I.R. Exh. P.H / 1 was recorded at the police station at 5-55 p.m. By Muhammad Saleem, Moharrir Head Constable (P.W. 11).
4. Regarding motive, it has been alleged that P.W 7 Munshi Mirasi was forcibly ejected from a house in his occupation by Mukhtar appellant and others. Munshi Mirasi brought a criminal case against Mukhtar, etc. Mehr Din deceased used to help Munshi Mirasi in his case against Mukhtar and others and despite their request he did not desist from helping Munshi Mirasi. The appellant and his co- accused thus harboured grudge against Mehr Din.
5. As for the main occurrence, it has been stated that at the eventful time, Mehr Din deceased was coming back from the Court as it was a date of hearing in Munshi. Mirasi's case on that day. At that time, Muhammad Ali complainant P.W. 8 was standing outside his house in the street. Mukhtar appellant armed with Chhuri, Mushtaq acquitted co-accused armed with knife and Muhammad Tufail acquitted co-accused armed with Sota emerged from Mukhtar Ahmad's shop known as Shakoori Dawakhana. Muhammad Tufail raised a Lalkara that Mehr Din be taught a lesson for helping Munshi Mirasi, whereupon Mehr Din ran towards his house for his escape. He was given Chhuri blows by Mukhtar and Mushtaq Mukhtar stabbed him twice in the abdomen Mushtaq stabbed him in the flank, but Mehr Din tried to ward of the blow and thus his right hand was injured, at the index finger of the right hand. Mehr Din fell down and Mukhtar caused another Chhuri blow on his head. Tufail gave a stick blow to the deceased on the back in fallen condition. A child Zahid Nazir (not produced) got threatened and reached near Mehr Din. He was also given a Chhuri blow by Mukhtar. The alarm attracted Muhammad Bashir (P.W. 9), Noor Muhammad (P.W. 10) and Muhammad Ashfaq (given up as unnecessary) to the scene of occurrence. They witnessed the occurrence. The accused made good their escape with their respective weapons. Mehr Din was removed to Civil Hospital, Hafizabad where he succumbed to the injuries at 5-30 p.m. The same day. Dr. Muhammad Sadiq P.W. 1 Medical Officer, Hafizabad, through Ruqqa Exh. P. C. Informed the police of the death of the deceased.
6. P. W. 1 Dr. Muhammad Sadiq medically examined Mehr Din while he was still alive on 17-7-1979 at 5.15 p.m. And noticed the following injuries on his person vide medico-legal report, carbon copy whereof is Exh. P.A.:--- (1)Oblique stab wound, 10 c.m. x 3 c.m., abdomen cavity deep, on front right part chest lower region, reaching midline and 11 c. m. Down to right nipple.
(2)Vertical stab wound, 7 c.m. x 2 c.m. Abdominal cavity deep, with gut protruded out on front of abdomen left umbilical, 1 -- c.m. Away of umbilical.
(3)An incised wound 1 c.m. x 1 c.m. Cutting away of nail making naked the nail bed on back terminal phalanx right forefinger.
(4)Transverse stab wound, 4 c.m. x 1-1/2 c.m., on back lumbar region, 5-1/2 c.m. Away of midline.
(5)An incised wound 3-1/2 c.m. x -- c.m. Bone deep, on back of head, right part, 8 c.m. Above and behind right ear and 2 c.m. Away of midline.
(6)Oblique contusion, 10 c.m. x 2 c.m. On back chest left at the middle of scapula.
Dr. Muhammad Sadiq opined that injuries Nos. 1 and 2 were dangerous, injury No. 4 was grievous and injury No. 5 was simple.
7. On the same day at 6.00; p.m. He medically examined the child Zahid Nazir, aged 3-1/2 years and noticed an incised wound, 2-1/2 c.m. x 1-1/2 c.m. Scalp deep on left part of head, 3-1/2 c.m. Away of midline and 5-1/2 c.m. Back to forehead line. This injury was ultimately declared as simple.
8. Dr. Muhammad Akram, the then Medical Officer, Civil Hospital, Jalalpur Bhattian conducted the post-mortem examination on the dead body of Mehr Din on 18-7-1979 at 9.15 a.m. He noticed the following injuries on the body of the deceased:-- (1)A stab wound 10 c. m. x 2-3/4 c. m. On right side of chest, lower part reaching midline, 11 c.m.
Down to right nipple and going deep. On dissection 8th rib is cut at its upper edge at the costocartilage junction. Liver is cut through and through at the right and left lobe, cutting through and through the stomach and also cutting through and through spleen reaching the abdominal wall.
(2)Stab wound 71 c. m. x 2 c. m. On abdomen left side, 1-- c. m. Away of umbilicus going deep on dissection cutting into mesentery of large intestine. Abdominal cavity full of defibrinated blood.
(3)Incised wound 1-- c.m. x 1 c.m. Cutting away of nail making naked nail bed at right side forefinger (index finger) back of terminal phalanx.
(4)A stab wound, 4 c.m. x -- c.m. On-right lumbar region back reaching. 5-- c.m. From midline, on dissection cutting abdominal wall and penetrating the abdominal cavity Kidney and no other viscera are cut under this injury.
(5)Incised wound 3--c.m. x -- c.m. x bone deep, on the back head right part, 8 c.m. Above behind and right to the right ear.
(6)Oblique contusion, 9 c.m. x 2 c.m. On back chest left scapula.
He opined that apparent cause of death was due to injuries Nos. 1 and 2 which caused haemorrhage and shock and these injuries were sufficient to cause death in ordinary course of nature. He further opined that all the injuries were, ante-mortem and caused by sharp-edged weapon except injury No. 6 which was caused by blunt weapon. Dr. Muhammad Sadiq in his cross- examination admitted that injury No. 6 on the person of the deceased could be caused by a fall on the threshold of the door.
9. Mukhtar appellant was arrested on 18-7-1979 by Nazar Muhammad A.S.I. P.W. 12, Muhammad Tufail accused was also arrested on the same day. Mushtaq accused was arrested by the same police officer on 20-7-1979. On 18-7-1979, Mukhtar appellant led to recovery of blood-stained Chhuri P. 2 from the drawing room of his house, which was taken into possession vide memo. Exh.
P.J., attested by Muhammad Bashir P.W. 9, Nazar Muhammad A.S.I. P.W. 12 and Muhammad Ashfaq (given up). On the same day Muhammad Tufail accused got recovered Sota P.3 from the courtyard of his house which was secured vide memo. Exh. P.K. Witnesses are the same. No recovery could be effected from Mushtaq accused. Vide Serologist's report Exh. P.O. In case of Chhuri P. 2 material was not sufficient to determine the origin of the blood. Sota P. 3 allegedly recovered from Muhammad Tufail was not blood-stained and, therefore, it was not sent for analysis. In view of Sota P. 3 not being blood-stained and the Serologist's report that A material in case of Chhuri allegedly recovered from Mukhtar appellant was not sufficient to determine the origin of blood, these weapons are not connected with the crime and, therefore, the alleged recoveries of these weapons--------------------------------------------------------------------------------- ------------------------------.10 11---------------------------------------------------------------------------------------- --------..
Muhammad Tufail acquitted accused in answer to question No. 6 why this case against you stated:- "As stated by my co-accused Mushtaq."
12. In this case, as already observed, the recoveries are of no consequence. So far as the motive is concerned, originally P.W. 7 Munshi Mirasi after his alleged forcible eviction from the house under his occupation, got registered a case against Nazir Bashir. In that case Mushtaq and Mukhtar were not cited as accused. Mushtaq was shown as a witness. Subsequently, however, the were of Munshi Mirasi filed a complaint in which Mukhtar was also cited as an accused. Munshi Mirasi has stated that Mehr Din deceased used to help him and he also attended the Court on the eventful day when his case was fixed before the Court on that day. In these circumstances it can be said that motive, as alleged in the F.I.R. Has been proved.
13. The eye-witnesses in this case, as already stated, are Muhammad Ali P.W. 8, Muhammad Bashir P.W. 9 and Noor Muhammad P.W.
10. Muhammad Ali P.W. 8, at the trial stated that on reaching the Chowk, Mushtaq accused inflicted the knife blow on the riot frank of Mehr Din. He ran towards the residential haveli and fell down in front of his door. Mukhtar accused caused a Chhuri blow on his head and Muhammad Tufail accused inflicted a Sots blow on his back. He further disclosed at the trial that at the time of occurrence he was standing in a street in front of the house of Shafi Ansari.
In the F.I.R. Exh. P.H./1, this witness had stated that he was standing in the street in front of his house.
He had further disclosed in the F.I.R. That the deceased was assaulted upon when he came back to the Mohallah. He did not say in the F.I.R. That on reaching the Chowk, Mushtaq opened the attack and inflicted a knife blow. In the F.I.R. It has been disclosed that Mukhtar caused two repeated blows with Chhuri in the abdomen of the deceased. This witness had not mentioned about these two repeated blows in the abdomen of the deceased while appearing as P.W.8 at the trial. He has been confronted with all these improvements and contradictions for which he has not been all to offer any proper explanation. It is noteworthy that as per site-plan Exh.P.E if he was standing in the street in front of his house at the time of occurrence, he could not witness the place from where the appellant and his co-accused came out armed with Chhuri and Sots and he also could not see the occurrence when first the deceased was attacked and caused Chhuri blows.
Muhammad Bashir P.W. 9 unlike Muhammad Ali and Noor Muhammad stated at the trial that Mehr Din deceased came out of the mosque and was coming to the Chowk when he was attacked upon. He further stated at the trial that Muhammad Ali was ahead of him when Mehr Din deceased passed in front of the shop of Mukhtar accused. He disclosed that when Mehr Din reached in the Chowk, Mukhtar appellant came in front of him and gave two blows with Chhuri in the abdomen. In his statement Exh. D.A. Recorded by the police, it has not been stated that the deceased had come out of the mosque when he was attacked upon. In Exh. D.A. It has also not been recorded that when Mehr Din reached in the Chowk, Mukhtar accused came in front of him. In Exh. D.A. He did not say that after receiving three injuries, the deceased had started running towards his house. All the improvements made at the trial vis-a-vis the statement recorded under section 161, Cr.P.C. Were confronted to the witness but he failed to offer any explanation about these improvements and contradictions.
Noor Muhammad P.W. 10 stated that at the eventful time he was standing in the Chowk and saw Mehr Din deceased coming in the street and when he passed in front of Shakoori Dawakhana, all the three accused came out of that Dawakhana and launched an assault upon the deceased It has been noticed that this witness in his statement recorded under section 161, Cr.P.C. (Exh. D.C.) had stated that at the eventful time, the deceased after having become free from the Court was present in his Mohallah "in front of his house in the street when Mukhtar appellant armed with Chhuri, Mushtaq armed with knife and Muhammad Tufail armed with Sots, attacked upon the deceased. This witness had further disclosed that Mukhtar appellant repeatedly caused three blows with Chhuri to the deceased, two in his abdomen and one on his head and thereafter Mushtaq accused caused him an injury with knife in the right flank but that injury was received by the deceased at his hand.
14. We have closely considered and analysed the testimonies of the three eye-witnesses. We have also considered the improvements which they made at the trial via-a-via their statements made before the police. Muhammad Ali, who is the complainant in this case, at the trial has absolutely failed to state that the appellant caused two injuries with Chhuri in the abdomen of the deceased which as per medical evidence proved to be fatal. All the three eye-witnesses have given different places of the occurrence and have also contradicted each other about other material details of the occurrence. They have also shifted the venue of their presence at the time of the occurrence at the trial qua the one disclosed before the police and in the F.I. R. The place from where Muhammad Ali allegedly saw the occurrence, as per contents of the F.I.R. Was said to be the street in front of his house. It appears from the site plan that from that place he could not witness the occurrence at all.
As a result of the above analysis of the testimonies of the eye-witnesses, we have come to the conclusion that the eye-witnesses had actually not seen the occurrence and, therefore, their testimonies cannot be relied upon. The motive alone cannot be made basis for conviction on a capital charge in the absence of reliable ocular evidence and other independent corroboratory evidence. The medical evidence certainly does not connect the appellant and the acquitted accused with the crime.
15. For the foregoing reasons, the prosecution has failed to bring home the guilt to the appellant as also to the acquitted accused beyond any reasonable doubt. In this view of the matter, we allow the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be set at liberty forthwith if not required to be detained in any other case. Death sentence awarded to Mukhtar appellant is thus not confirmed.
Criminal revision filed by Muhammad Ali against the acquitted accused, namely, Mushtaq and Muhammad Tufail is also dismissed in limine.
H.A.K. Appeal accepted.