Jagga son of Khaira, Shan son of Jan Muhammad and Shan son of Ibrahim have filed the instant appeal against the order of Additional Sessions Judge, Pakpattan Sharif, dated 26-2-1986, whereby they have been convicted and sentenced to 2 years' rigorous imprisonment each under section 148, P.P.C. And to imprisonment for life and fine of Rs.5,000 each or in default of payment of fine to further undergo rigorous imprisonment for one year each under section 302/149, P.P.C., while Yousaf, Sasta and Nawab alias Labhu have been acquitted.
2. The prosecution story as disclosed at the trial was that Nazir Ahmad complainant (P.W.2) and his maternal-uncle Abdul Aziz (deceased), residents of village Mal, District Sahiwal, went to Arifwala at 8/9 a.m., on 21-1-1980. On their way back they visited Chak Gillan and then left for their village on a bicycle at about 7-00/7-30 p.m. When they reached near the lands of Hassan Shah in the area of Mauza Chak Shah Khagga about 1--1/2 miles short of their village they found Jagga armed with a hatchet, his brother Dillu, and Shan son of Jan Muhammad armed with sticks present near a culvert who advanced towards them raising Lalkaras. They abandoned the bicycle there and ran backwards to save their lives but Khaliq Nawaz and Shan son of Ibrahim armed with Dangs came in their front. Meanwhile, Jagga, Dillu and Shan son of Jan Muhammad also arrived and encircled them. Nazir Ahmad complainant managed to slip away but Abdul Aziz was attacked. Jagga gave blows on his head with wrong side of the hatchet as a result of which he fell down whereupon remaining accused also started giving blows on him causing more than two dozen injuries, quite extensive spread all over his body. Muhammad Ali (P.W.5) brother of the deceased and their friend Allah Ditta P.W. (not produced) also arrived meanwhile and witnessed the occurrence. In the end Jagga put a muffler round the neck of the deceased, dragged him upto some distance and then throwing him in a watercourse fled away. Abdul Aziz died on the spot on account of the injuries.
Nazir Ahmad complainant leaving Muhammad Ali and Allah Ditta P.Ws. With the dead body first went to his village and thence to Police Station Malka Hans situate about 6 miles away from the spot and lodged report Exh.P.B. At 1 a.m. (midnight), which was recorded by Inspector Raja Sikandar Hayat (P.W.6). Two-fold motive for the attack has been stated. Firstly, that about 14 years before the occurrence Abdul Aziz deceased, his brother Muhammad Ali P.W. And one Muhammad Amin murdered Ahman cousin of Jagga, and secondly, Jagga, etc. Committed number of thefts and the deceased lodged complaints against them with police over which the accused felt annoyed and killed the deceased.
3. After registering the F.I.R. Exh.P.B., Inspector Raja Sikandar Hayat (P.W.6) reached the spot and preparing the injury statement Exh.P.H. And the inquest report Exh.P.J. Sent the dead body for post- mortem examination to the Civil Hospital under police escort. He also collected blood-stained earth and picked up Chappel P.8 and bicycle P.9 belonging to the deceased from there and seized them vide memos. Exhs. P.F. And P.G. Respectively. On 27-1-1980 he arrested Dillu, Jagga, Shan son of Ibrahim and Shan son of Jan Muhammad and challaned them. The case was also investigated by Mr. Tariq Khosa, A.S.P. Who directed Inspector Raja Sikandar Hayat (F.W. 6) to challan Yousaf, Sasta and Nawab as well placing them in column No.2 of the charge-sheet on the basis of extra-- judicial confession made by them before Hazar Din, Ghulam Rasul, Muhammad Yar, Muhammad Sadiq and Muhammad Fazil P.Ws. The order was complied with.
4. Dr. Mushtaq Ahmad, Senior Medical Officer, Pakpattan (P.W.3) conducted post-mortem examination on the dead body of Abdul Aziz on 22-1-1980 and observed 27 injuries (some of them described as multiple contusions and opined that deceased had died due to shock and haemorrhage produced by the injuries which were sufficient to cause death in ordinary course of nature. Injuries Nos. 14, 17, 19, 23 and 24 were declared as grievous in nature caused with a blunt weapon. The detail of injuries is given below:-----
(1) A lacerated wound 5-1/2 c.m. x 1/2 c.m. x bone deep on the back side of head.
(2) A lacerated wound 4 c.m. x 1/2 c.m. x bone deep on the back of right side of head.
(3) A lacerated wound 2-1/2 c.m. x 1 c.m. x bone deep on the left eyebrow.
(4) A red contusion 3 c.m. x 1-1/2 c.m. On the left side of face close to the eye.
(5) A lacerated wound 1/2 c.m. x 1/4 c.m. x 1/2 c.m. On the right ear.
(6) An abrasion 1 c.m. x 1/2 c.m. On the right mastoid region of the head.
(7) A red contusion 16 c.m. x 4 c.m. On the back of right side of chest upper most part with abrasion 1-1/2 c.m. x 1-1/2 c.m.
(8) A red contusion 7 c.m. x 2 c.m. On the right side of back of chest.
(9) A red contusion 20 c.m. x 5 c.m. On the back of right side of chest in the middle.
(10) A red contusion 9 c.m. x 2 c.m. On the right lumber region.
(11) A lacerated wound 1-1/2 c.m. x 1/2 c.m. x 1/2 c.m. On the outer side of right arm above the elbow.
(12) A red contusion 10 c.m. x 4 c.m. On the outer side of right elbow.
(13) A red contusion 10 c.m. x 5 c.m. On the back of right forearm.
(14) A red contusion 5 c.m. x 3 c.m. With abrasion 1/2 c.m. x 1/2 c.m. On the back of right hand with fracture of 4th and 5th metacarpal bone.
(15) A red contusion 12 c.m. x 3 c.m. On the outer side of left arm.
(16) A red contusion 12 c.m. x 3 c.m. On the front of left thigh lower arm.
(17) A lacerated wound 2 c.m. x I-1/2 c.m. x bone deep on the front of left knee with fracture of ptella bone.
(18) A lacerated wound 1-1/2 c.m. x 3/4 c.m. x bone deep just below injury No. 17.
(19) A lacerated wound 20 c.m. x 10 c.m. x bone deep on the inner side of left leg with multiple fracture of the underneath bone.
(20) A lacerated wound 1 c.m. x 1/2 c.m. x bone deep on the front of left leg.
(21) A lacerated wound 1 c.m. x 1/2 c.m. x bone deep on the front of left leg in the middle.
(22) A red contusion 7 c.m. x 4 c.m. On the outer side of left ankle.
(23) A lacerated wound 3 c.m. x 3/4 c.m. x bone deep on the front of right knee.
(24) A red contusion 8 c.m. x 4 c.m. On the outer side of right knee and lower part of thigh with fracture of femur bone lower end.
(25) A red contusion 8 c.m. x 4 c.m. On the inner side of right knee.
(26) Multiple red contusion marks in an area of 27 c.m. x 24 c.m. On the inner front and outer side of right leg.
(27) Multiple red contusion marks in an area of 16 c.m. x 10 c.m. On the right buttock.
5. At the trial, Jagga son of Khaira, Shan son of Jan Muhammad, and Shan son of Ibrahim (appellants) with Khaliq Nawaz and Dillu were charged under sections 148 and 302 read with 149, P.P.C. While Yousaf, Sasta and Nawab and Dillu were separately charged under section 302/34, P.P.C. It may be mentioned that Khaliq Nawaz and Dillu died during the pendency of the trial and the case against them had abated.
6. The prosecution gave up those cited witnesses before whom Yousaf, Sasta and Nawab accused had allegedly made extra-judicial confession. This means that no evidence connecting them with the crime was brought on record and the eight witnesses examined by the prosecution at the trial are those who implicated the appellants only. Nazir Ahmad, the first informant (P.W.2) and Muhammad Ali (P.W. 5) stated about the occurrence. Dr. Mushtaq Ahmad (P.W.3) proved death of deceased to have occurred due to violence and Inspector Raja Sikandar Hayat (P.W.6) narrated about investigations carried out by him. Both sets of accused in their statements under section 342, Cr.P.C., denied the allegations and professed innocence. Jagga, Shan son of Jan Muhammad and Shan son of Ibrahim (appellants) appearing in their own defence under section 340, Cr.P.C., denied the allegations on oath. In cross-examination, Jagga admitted that he was challaned in about 30 cases of theft but explained that those cases were made against him after he was released on bail in this murder case. Shan son of Jan Muhammad and Shan son of Ibrahim denied friendship with Jagga and stated that they have been falsely implicated due to suspicion. The learned trial Court acquitted Yousaf, Sasta and Nawab for want of evidence but convicted and sentenced Jagga, Shan son of Jan Muhammad and Shan son of Ibrahim, as indicated above, hence this appeal.
7. The prosecution case as indicated above rests on the ocular evidence furnished by Nazir Ahmad (P.W.2), and Muhammad Ali (P.W.5), besides recovery of Chappal P.8 and bicycle P.9 of the deceased from the spot as deposed to by Muhammad Ali (P.W.5), the Investigating Officer Inspector Raja Sikandar Hayat (P.W.6) and the evidence of motive.
8. Admittedly, Nazir Ahmad, first informant, is son of the sister of the deceased while Muhammad Ali P.W. Is his real brother. This is also an admitted fact that Ahman, first cousin of Jagga appellant, was murdered about 14/15 years before the occurrence and Abdul Aziz deceased along with his brother Muhammad Ali P.W. Were challaned but were ultimately acquitted. Both the P.Ws. Have admitted that they as well as the accused party lived in the same village after murder of Ahman and that they have been pursuing their normal vocation and going to and coming from Arifwala, etc., but never before they were assaulted/attacked by the accused party. It means that the motive regarding murder of Ahman had become dormant. As for the second and the immediate motive, Nazir Ahmad P.W. Stated that the deceased had made numerous complaints of theft against Jagga, etc. To the police over which Jagga had felt annoyed. No doubt Jagga has admitted in his cross-examination that he had been challaned in about 30 theft cases but at the same time he explained that these cases related to the post-occurrence period. This statement of Jagga has not been controverted by the prosecution. No certified copy of any F.I.R. Or a challan has been produced showing that the said cases related to the period prior to the occurrence or that they were based on complaints made by the deceased. In the circumstances, therefore, it cannot be accepted that Jagga was annoyed with the deceased on account of his making complaints to the police against him. There is nothing on record to show either that Shan son of Jan Muhammad or Shan son of Ibrahim had any grudge whatsoever against the deceased.
9. Main evidence against the appellants in this case is of two eye--witnesses, namely, Nazir Ahmad and Muhammad Ali P.Ws. Question is whether their presence at the time of occurrence has been established beyond doubt? Nazir Ahmad (P.W.2) stated to have gone with the deceased on the day of occurrence for purchasing articles from Arifwala. They were returning together on a bicycle at 7/7-30 p.m. When they reached in the vicinity of village Chak Shah Khagga at 7/7-30 p.m., they were waylaid by the appellants. He managed to escape but the deceased was attacked and injured by them. In cross-examination, he stated that he had purchased some clothes, potatoes and Daal from Arifwala, but he did not remember to have told the police about it. To avoid further questions he took up the position that he was not carrying these articles at the time of occurrence as he had sent them through Zafar Dogar to his village although Zafar Dogar had no conveyance with him. Had he been returning with the deceased on a bicycle after shopping then he would have normally carried these articles himself which according to him weighed only 4/5 kilograms. The witness further stated that he did not know if the deceased had purchased anything from Arifwala?
In the circumstances, the witness's story of going to and returning from Arifwala in the company of deceased does not appear to be convincing.
10. Muhammad Ali P.W. (brother of the deceased) the other eye--witness, resided 1-1/2 miles away from the place of occurrence. He claimed to be present in the company of Allah Ditta, his friend (not produced) in the lands of Pir Hassan Shah in village Chak Shah Khagga at the relevant time and saw the accused injuring the deceased. He stated that when he arrived at the scene the deceased had already fallen on the ground. He tried to intervene but was threatened by the accused and, therefore, stood 2/3 paces away, however, none of the accused advanced towards him. According to him, it was 7th of the lunar month and there was sufficient moonlight at the time of occurrence. He emphatically denied that it was first or second of the lunar month or that there was no moon at that time. The witness has not stated as to in what connection he had come to village Chak Shah Khagga at that odd hour. Nazir Ahmad P.W. (first informant) stated that Muhammad Ali P.W. Had told him that he came there per chance while searching for the deceased but the witness does not say so. It is noteworthy that Muhammad Ali P.W. Was not assaulted by Jagga and his companions despite the fact that he was also challaned along with the deceased for having murdered Ahman, a cousin of Jagga appellant, therefore, it appears to me that had Muhammad Ali been available near the spot at the time of occurrence then he would also have been done to death, if it were the appellants who killed Abdul Aziz (deceased). Both the eye- witnesses stand further belied by the fact that the night of occurrence fell on second of the lunar month and not on the 7th as stated by them. Sunset time on that day was 5-29 p.m., and at 7-30 p.m. (the time of occurrence) it must be pitched dark and, therefore, it was not possible for any one to identify the assailants of the deceased at that time. Again the presence of 21 injuries on the person of the deceased suggests that the occurrence was unwitnessed one and the assailants, whosoever they were, did their job quite at leisure.
11. It may be noted that the learned Court, though, has held Muhammad Ali P.W. As an inimical witness, yet it wrongly treated his evidence as corroborating the testimony of Nazir Ahmad P.W.
(son of sister of Muhammad Ali P.W.) whom it found as independent witness. If maternal-uncle (Muhammad Ali P.W.) is inimical to the appellants then how could his nephew (Nazir Ahmad P.W.) be an independent witness? Evidence of both the so-called eye-witnesses apart from the reasons given earlier cannot be safely relied upon because one tainted piece of evidence' does not corroborate the other tainted piece of evidence. Recovery of bicycle P.9 of the deceased from the spot is of no consequence particularly because its recovery is also doubtful as Inspector Raja Sikandar Hayat P.W., the Investigating Officer, admitted that he did not mention this fact in the inspection note as well as in the site plan.
12. For what has been stated above, I find that the motive part of the story has not been proved, the ocular evidence not only comprised interested witnesses but their presence on the spot is also doubtful, therefore, the conviction and sentence of the appellants based on such unreliable evidence on capital charge cannot be sustained. In the result, I would allow this appeal, set aside conviction and sentence of the appellants and acquit them. They shall be released forthwith if not wanted in any other case.