Munir appellant has come up in appeal against his conviction by the learned Additional Sessions Judge, Lyallpur (Faisalabad), vide judgment, dated 27-1-1977 , convicting him under section 302, P P.C. To imprisonment for life and a fine of Rs.2,000 or in default one year's R. I.
2. The prosecution case as disclosed in F.1.R. Exh.P.G. Lodged by Fazil (P.W.8) is that on 14-6-1974 at about 5 a.m. He alongwith Mst. Sardarn deceased, his brother Nusrat, and Mst. Nuri, were of Nusrat, were proceeding to Tandalianwala where they had to get a small child, named, Nasir, treated for fever. When they were near the house of Kallu Kumhar, Munir appellant armed with hatchet alongwith four acquitted accused, Mustafa, Akbar, Sarwar and Muzaffer, all armed with hatchets came there and gave injuries with their respective weapons to Mst. Sardaran. The complainant and his companions witnessed the occurrence. It was further stated that the motive for this murder was that about 8 years ago Mst. Sardaran deceased had illicit relations with Doss, a brother of Fazil P.W.
She eloped with him, but got restored to her family by Yousaf, another brother of Fazil P.W.
Thereafter, she was married to Munir appellant. In spite of this marriage it is alleged that she was carrying on with Doss aforesaid, as a result of which she was murdered by Munir and his co- accused. After registration of the case the police undertook investigation. The appellant Munir was arrested on 23-6-1974 and led to the recovery of blood-stained hatchet P.9 which was taken in possession, vide memo. Exh.P.E. By S.I. Ata Muhammad (P.W.11) in the presence of Allah Ditta (P.W.7) and Nur Muhammad (given up P.W). The appellant was challaned after investi--gation alongwith acquitted accused and was convicted as stated above.
3. In support of its case, the prosecution examined 11 witnesses in all. P.W.8 Fazil, P.W.9 Mst. Nuri and P.W.10 Hamed were examined as eye-witnesses. As stated above, Allah Ditta (P.W.7) witnessed the recovery of blood-stained hatchet P.9. The post-mortem examination was conducted by P.W.1, Dr. Ghulam Rasool who had found 14 incised wounds on the dead body of Mst. Sardaran deceased.
These injuries included injuries on the spinal cord, cervical vertebrae, neck, mandible, left ear and other parts of the body. In the opinion of 1)r. Ghulam Rasool injuries Nos.1,2 and 4 were individually sufficient to cause death in the ordinary course of nature P.W.11 S.I. Ata Muhammad investigated and challaned the case. The rest of the witnesses are of formal nature.
4. The accused when examined denied the charge and did not produce any evidence in defence.
5. I have heard at great length the learned counsel for the appellant and the learned counsel for the State. It is contended by the learned counsel for the appellant that the witnesses were hardened criminals. They were inter-related and inimical to the accused and there is no independent corroboration to their testimony as against the appellant. It was next contended that the recovery in the instant case was witnessed by Allah Ditta (P.W.7), who was also an interested witness and one interested evidence cannot corroborate another interested evidence. It was finally argued that the evidence in this case against the appellant was not divisible. All the five accused named in the F.I.R. Had been attributed specific injuries to the deceased and there was nothing to distinguish the case of the present petitioner, especially when the recovery of hatchet P.9 has been supported only by Allah Ditta (P.W.7). Learned counsel for the State has controverted the arguments of the learned counsel for the appellant.
6. I have considered the above submissions. It is in evidence of P.W.8 Fazil that all the accused are closely inter-related. Fazil (P.W.8) is a real brother of Doss with Whom, Mst. Sardaran deceased had illicit relations. Mst. Nuri (P.W.9) is the were of Nusrat, a brother of Fazil P.W. She is also a sister of Mst.
Sardaran deceased. Hamed (P.W.10) is not related but he belongs to a different village at a distance of more than five miles from the place of occurrence and he was, for the first time, examined by the police 5 days after the occurrence on 19-6-1974. Fazil (P.W.8) in cross- examination admitted that he and his brothers had been challaned on various theft cases. It was also admitted by him that his brothers, Yousaf, Doss etc. Were prosecuted under section 302, P.P.C and Hatem, a first cousin, of Sarwar accused was a prosecution witness against them. It was further admitted by him that his brothers were also challaned in the murder of Bashir Ora, who was the husband of Mst. Nekan. He further admitted that he himself was once convicted for the murder of one Ghulam and sentenced to 20 years' R.I. He further admitted that Mst. Nekan was a were of Ghulam aforesaid and she was the mother of Akbar and Sarwar accused. He further admitted that his brother Sarwar had been challaned for the murder of Shah Bahram, .a brother of Akbar and Sarwar accused. It was admitted by him that his brother had been challaned in Control of Goonda Act and their house is not located in the street where the occurrence had taken place. He admitted that there was the house of Saran and the house of Kallu Kumhar in the street where the occurrence took place. They were not, however, cited as witness. In this view of the matter, Fazil P.W.
Is admittedly a criminal, having deep-rooted murder enmity with the accused. Mst. Nuri (P.W.9) is married to Nusrat, a brother of Fazil P.W. She, therefore, is bound to support any story put forth by Fazil and is not independent witness. Hamed (P.W.10) is resident of a village more than 5 miles away from the place of occurrence. In cross-examination, he 'admitted that the place of occurrence did not come in the way while going from his village to Bhathian Mohlanwala. He was examined by the police after five days of the occurrence. These. Facts make his presence at the time of occurrence doubtful. Allah Ditta (P.W.7), who witnessed the recovery of hatchet P.9 from the accused is related to Fazil P.W.8, as admitted by him in the first four lines of his cross-examination.
The recovery of hatchet P.9 is said to have been made from underneath a heap of stack. This was an open A space accessible to all. In this view of the matter also it cannot be said that the recovery of hatchet was from the exclusive possession of the accused. I agree with the learned counsel for the appellant that the case of Munir accused was not distinguishable from that the acquitted accused. All the five accused had been attributed injuries to the deceased and the evidence of the witnesses was not divisible. In view of the above discussion, I find that the case against the present appellant is doubtful. He is given the benefit of doubt and acquitted. He is on bail. His bail bond and sureties shall stand cancelled.