' KHALIL-UR-REHMAN, J.--Munawar Shah (aged 30 years) and his friend Iqbal Shah (aged 25 years) were convicted vide judgment dated 12-12-1983 by learned Additional Sessions Judge, Vehari, under section 302/34, P.P.C. And were sentenced to death and fine of Rs,2,000 each or in default to suffer further rigorous imprisonment for one year each. Both the appellants were also directed to pay Rs,1,000 each as compensation under section 544-A, Cr.P.C. Or to suffer six months' rigorous imprisonment each in default. Both the appellants have filed Criminal Appeal No,284 of 1983 and the learned Additional Sessions Judge has also referred the case of the appellants for confirmation of death sentence awarded to them as provided by section 374, Cr.P.C. By this judgment we propose to dispose of the appeal as well as the murder reference.
2. The prosecution case as narrated in the F.I.R. Exh. P.F. Lodged on 2-3-1982 at 3-30 p.m. By Iqbal Shah (P.W.8) and scribed by Muhammad Ibrahim S.H.O. (P.W.10) is that on the same day at Peshiwela the complainant was going to the blacksmith of Mauza Muhammadpur and when he reached the Rajbah Tail-Chiragh near the Bheni of Noorpur he saw Maqsood Shah deceased and Wazir Shah P.W. Coming on the bank of the Rajbah from Mailsi side riding upon a motor-cycle.
Maqsood Shah was sitting behind Wazir Shah upon the motor-cycle. At that time he saw Munawar Shah and lqbal Shah appellants appearing from the Rajbah Tail-Chiragh armed with hatchets.
Munawar Shah raised a Lalkara that Maqsood Shah will not be spared and will be taught a lesson for not returning Mst. Shamim. Lqbal Shah ran and came in front of the motor-cycle and as soon as the motor-cycle stopped Munawar Shah inflicted a hatchet blow upon Maqsood Shah on the left side of his neck whereupon Maqsood Shah fell on the ground. Thereafter Iqbal Shah inflicted a hatchet blow on the 'backside of the head of Maqsood Shah. Both the appellants then inflicted various blows on the neck, head and back of Maqsood Shah who had fallen down. It is also in the F.I.R. That on the alarm raised by the complainant and Wazir Shah (P.W .9), Muhammad Arif. Son of Malik Khamisa (given up P.W.) was attracted and he also saw the occurrence. It is also mentioned in the F.I.R. That the complainant and Wazir Shah stepped forward to rescue Maqsood Shah but the appellants threatened them that they will meet the same fate if they came near. Both the appellants then ran away towards Mailsi alongwith their weapons. Maqsood Shah succumbed to the injuries at the spot.
3. The motive for the offence disclosed in the F.I.R. Is that the complainant had four brothers out of whom Maqsood Shah being the eldest one was the head of the family and that his brother Baqar Hussain was betrothed to MSt. Shamim sister of Munawar Shah appellant sometime prior to the occurrence but Munawar Shah wanted to give the hand of his sister to Hussain Shah brother of Iqbal Shah appellant. It is also mentioned that abOut four months prior thereto Mst. Shamim sister of Munawar Shah came to Baqar Hussain of her own and entered into a Sharee Nikah with him in a Court due to which Munawar Shah and Iqbal Shah harboured grudge against them'. It is also mentioned therein that Munawar Shah asked Maqsood Shah to return Mst. Shamim or to give Watta for her but Maqsood Shah was not prepared for it and that Maqsood Shah was intentionally murdered by the appellants due to the aforesaid grudge.
4. The prosecution case rests on the ocular testimony of Iqbal Shah (P.W.8) and Wazir Shah (P.W.9); the recovery of blood-stained hatchets P.5 and P.6 from Munawar Shah and Iqbal Shah appellants respectively witnessed by Mukhtar Shah (P.W.6) and Muhammad Ibrahim (P.W.10) and the medical evidence contained in the statement of Dr. M.A. Raoof (P.W.7). As against this the appellants' case is that this was an unwitnessed occurrence and that the appellants have been implicated falsely by the complainant party with a view to retain and keep Mst. Shamim abducted sister of Munawar Shah appellant for ever. The appellants, therefore, pleaded innocence and produced in defence Muhammad Azam Head Constable (P.W.1) and Bashir Ahmad (D.W.2) motor taxation clerk of the office of the Excise and Taxation Officer Multan. Muhammad Azam Head Constable on the basis of the record brought with him deposed that Maqsood Shah deceased was involved in 15 criminal cases two of which were murder cases, one was a theft and dacoity case while the others were cases registered under section 411 or 379, 414, 457 and 380, P.P.C. In four of these cases cited at No,11 to 14 Wazir Shah was one of the co-accused of Maqsood Shah deceased. He fUrther deposed that Maqsood Shah was a history-sheeter under bundle 'A' at Police Station, Mailsi. Bashir Ahmad (D.W.2) on the basis of the record brought with him deposed that according to the said record motor-cycle No,7116-MNA was registered in the name of Khizar Hayat Khan son of Faiz Ullah Khan of 429-Nagashbandi Colony, Multan and that the said entry of ownership stands on record till date of the deposition since 16-2-1974.
5. Learned counsel for the defence argued that the prosecution was not able to prove the guilt of the appellants beyond all shadow of doubt; that the ocular account of the eye-witnesses stands contradicted by the medical evidence; that the oral testimony of Iqbal Shah and Wazir Shah cannot be relied upon without independent corroboration from an unimpeachable source as Iqbal Shah is a chance witness besides being a real brother of Maqsood Shah whereas Wazir Shah P.W.
Being a bosom friend of Maqsood Shah was shown to be accompanying Maqsood Shah on the motor-bike but the said motor-bike was not found at the spot when the Investigating Officer visited the spot and was produced before him on 9-3-1982. It was also argued that Muhammad Aril who was given up as unnecessary was the most important witness as he belonged to a different caste and resided near the place of occurrence. It was then submitted that he was not produced as he was not prepared to support the prosecution case. The recovery of blood-stained hatchets was also criticised with the plea that Mukhtar Shah harboured a grudge against Munawar Shah and as such was not an independent witness and that in any case the assailants would not leave the blood stains intact on the hatchets so that the same could be used against them. In reply the learned counsel for the complainant and the State supported the judgment of the learned trial Court with the argument that the prosecution has succeeded in proving the guilt of the appellants by producing the eye-witnesses whose testimony stands corroborated by the medical evidence and by the recovery of blood-stained hatchet.
6. We have gone through the entire record minutely and have also given serious consideration to the respective pleas of the learned counsel for the parties. Iqbal Shah (P.W.8) and Wazir Shah (P.W.9) are the eye--witnesses of the occurrence. Iqbal Shah complainant is the real brother of the deceased and admittedly happened to witness the occurrence by chance. Wazir Shah (P.W.9) witnessed the occurrence as he had accompanied Maqsood Shah deceased to Mailsi on his motor-bike and both of them were returning from Mailsi when the occurrence allegedly took place.
The motor-cycle was not found on the spot by the Investigating Officer when he arrived at the spot.
The presence of the motor-cycle at the spot was also not mentioned in the inspection note, site plan or in the inquest report. Iqbal Shah (P.W .8) in his statement at page 22 line 36 claimed that the motor-cycle was at the spot when the Investigating Officer reached there. As against this Wazir Shah (P.W.9) stated at page 27 lines 18-20 that the motor-cycle was not present at the spot at the time when the police arrived at the spot at 5 p.m. And so it could not be shown to the police for the reason that the motor-cycle had been taken away by Mumtaz Shah to bring the elder brother of Maqsood Shah. This will further show that Maqsood Shah was not the eldest brother. Had he been the eldest of all Wazir Shah would not have deposed that Mumtaz Shah had gone to bring the elder brother of Maqsood Shah. He further deposed that the police came. To the spot about 7-8 days thereafter and it was then that he produced the motor-cycle before him. In the same breath he, however, admitted that Mumtaz Shah had returned the motor-cycle in the night of the day of occurrence. If the motor-cycle was brought back in the night of the day of occurrence then the same could be produced before the Investigating Officer as admittedly the Investigating Officer stayed for the night of 2nd of March, 1982 and also on the following day. Muhammad Ibrahim (P.W.10) the Investigating Officer admitted in his cross-examination that he was aware that the question of presence of motor-cycle at the spot was quite important in the case. He, however, tried to explain the factum of not taking the motor-cycle in possession by saying that he did not attend to the recovery of motor-cycle between the 2nd of March 1982 to 9th of March, 1982 as he was busy in the matter of arrest of the appellants. As regards his claim of pre-occupation in the matter of arrest of the appellants he admitted that he alongwith an A A.S.I. And 2-3 constables remained in the village but they did not raid any house to arrest the accused and that he did not mention the place in the relevant Zimni where he conducted the Search of the accused. The claim of pre- occupation in the matter of arrest of the accused, as such, remains unexplained. As regards the presence of the motor-cycle it is important to note that admittedly the number of the motor-cycle was not mentioned in the F.I.R. And as pointed out above the presence of the motor-cycle was also not mentioned either in the inspection note or in the site plan or in the inquest report. The Investigating Officer further admitted that he did not notice the tracks of the wheel of the motor- cycle upon the bank of Rajbah. He also admitted that he did not ride over the motor-cycle himself to make it ply upon the said bank in order to determine as to whether it could actually move about over the bank. He also admitted that the bank of the said Rajbah was 2-3 feet wide and that the said bank comprised of ups and downs and that he also did not see as to whether the service road below the bank of Rajbah was road-worthy or not. The Investigating Officer admittedly did not verify the motive; did not inquire about the incident from the surrounding area and also did not verify the statement of Wazir Shah (P.W.9) that he in the company of the deceased had visited Mailsi and had been waiting for Maqsood Shah deceased, who had gone to meet a Zamindar, at a shop at Mailsi. He also failed to find out about the ownership of the said motor-cycle. According to the record produced by Bashir Ahmad (D.W.2) the motor-bike was registered in the name of one Khizar Hayat Khan. The Investigating Officer also did not inquire as to whether- the said motor- cycle was available to Wazir Shah on the day of occurrence or as to how the said motor-cycle was with Wazir Shah (P.W.9). In view of these things noted above the availability of the motor-cycle or at least the presence of the motor-cycle at the time of occurrence appears to be highly doutful.
This circumstance when 'noted in the light of the statement of Wazir Shah to the effect that on reaching Mailsi on the day of occurrence at about 11 a.m. He waited at a .Shop but he was not aware of the name of the Zamindar whom the deceased had gone to see as he had remained sitting at a shop. Wazir Shah also did not remember the name of the shopkeeper at whose shop he had remained sitting. He further deposed that he did not meet any body in Mailsi excepting the shopkeeper at whose shop he remained sitting till 2 or 2-30 p.m. And then they returned home. It is apparent from his statement that he had intentionally avoided to give the name of the Zamindar and the particulars of the shopkeeper so that his claim that he had gone to Mailsi could not be verified. It will, therefore, be seen that no direct or circumstantial evidence is available on record in support of the version of Wazir Shah that he had accompanied Maqsood Shah deceased to Mailsi and that both of them had returned on the motor-cycle to the place of occurrence. In this connection we have just the bald statement of Wazir Shah that he and Maqsood Shah were returning on a motor-cycle which was stopped by the appellants and then Maqsood Shah was done to death. Wazir Shah was deeply interested in Maqsood Shah deceased as he was not only his bosom friend but was also his co-accused in a murder case, a dacoity case and two other theft cases. Such a person can conveniently be produced to support the version of the prosecution for the purpose of screening out the adversary of a bosom friend. In our considered view the evidence of the eye-witnesses of the type produced in the case cannot safely be relied upon unless it is corroborated by independent evidence. The version of these eye-witnesses also stands contradicted by the medical evidence. A perusal of the medical evidence would show that the injuries were caused by two hatchets of different sizes and weight and a Dang was used by the assailants. Injuries Nos. 8, 9, and 10 were contusions of the following dimensions;-
8. A contusion 10 cm. x 3 cm. On the upper part of left shoulder blade.
9. A contusion 5 cm. x 2 cm. On the back and middle of left chest.
10. A contusion 7 cm. x 2 cm. On the lumber region.
' The doctor opined that these injuries might have been caused by Dang/ Sots. It was not the case of the prosecution that hatchets were used from the wrong side also. It will, therefore, be seen that these three injuries remained unexplained. As regards the recovery of blood-stained hatchets from the appellants, it is to be noted that these recoveries were allegedly made after six days but on the very day of the arrest of the appellants. Firstly from the evidence on record it does not appear that any serious effort was made by the police to arrest the appellants soon after the occurrence.
Secondly an accused would not leave the blood-stained for six days intact on the hatchets as every accused would instinctively destroy incriminatory material in his possession. These recoveries were witnessed by Mukhtar Shah who had admitted in his cross-examination that his sister who was wife of Munawar Shah appellant had committed suicide about 7-8 years back. He, however, failed to give any reason as to why his sister had committed suicide. He though denied the suggestion that "we had levelled the allegation against Munawar Shah accused in a Punchayat that the said accused had murdered her" and that he harboured a grudge against Munawar Shah accused due to suicide yet it can be seen that in these circumstances Mukhtar Shah Cannot be said to be favourably inclined towards Munawar Shah appellant. Moreover, the sister of Maqsood Shah deceased is the wife of Mukhtar Shah P.W. And the widow of Maqsood Shah was his maternal-niece. For all these reasons Mukhtar Shah cannot be said to be an independent witness.
The other recovery witness is the Investigating Officer himself and because of the reason that he had not conducted the investigation in above-board manner he cannot also b relied upon. We for all these reasons are not prepared to rely on the recovery of the blood-stained hatchets. We are of the considered view that the prosecution has failed to bring home the guilt of the appellants beyond all shadow of doubt. We, therefore, accept the appeal, se aside the conviction and sentence of the appellants and acquit them by extending them the benefit of doubt. The sentence of death awarded to the appellants is, therefore, not confirmed. The appellants shall be set at liberty forthwith if not required in any other case. The reference I answered accordingly.