' Mian Khan, his brother Nausher and his friend Mukhtar alias hatti were tried for the offences of house trespass and murder alongwith Muhammad Amir as their abettor, by Sessions Judge, Vehari. Learned trial Court vide judgment dated 29-3-1986, acquitted Muhammad Amir but convicted and sentenced the rest on both the counts i.e,, to imprisonment for life and a fine of Rs, 1,000 or in default to undergo 6 months' rigorous imprisonment each under section 302/.34, P.P.C.
And to 4 years' rigorous imprisonment and a fine of Rs, 500 each or in default to undergo 3 months' rigorous imprisonment each under section 449, P.P.C. It was further directed that they shall pay a sum of Rs, 1,000 each as compensation to the heirs of the deceased or in default to undergo 6 months' rigorous imprisonment each. The convicts have filed instant appeal (Criminal Appeal No, 52 of 1986) against their convictions and sentences and the complainant Muhammad Hussain through revision (Criminal Revision No, 86 of 1986) has challenged the acquittal of Muhammad Amir and also prayed for enhancing sentences of the convicts/appellants. Both appeal and the revision being connected matters are disposed of by this single judgment.
2. The occurrence took place on the night between 26/27-11-1984 at 4-00 a.m., in Chak No, 75/WB, tehsil Mailsi, district Vehari. Muhammad Hussain (P.W.8) brother of the deceased, lodged report (Exh. P.D.) of the incident with A .S.I. Maqbool Ahmad (P.W.5) at village Aziz Kum, 6 miles away from the place of occurrence, on the following morning at 7-00 a.m., on the basis of which formal F.I.R.
Exh. P.D/1 was drawn up at police station Mitru by A .S.I. Main Sher (P.W.6).
3. Prosecution story as disclosed at the trial was that Muhammad Hussain complainant (P.W .8) had joint cultivation , with his brother Dost Muhammad (deceased). Both of them used to sleep at their tubewell 6 Acres away from their residence. On the night of occurrence the complainant came to the tubewell at Ishawela and found Muhammad Amir (P.W.9) sitting there. They alongwith Dost Muhammad kept talking till 2-00 a.m., whereafter the deceased slept in the engine room the door of which had no shutters while the complainant and Muhammad Amir P.W. Slept on one cot in another room. About 30/40 minutes before 'Azaan' for morning prayers was called they woke up hearing a report of gun-fire and rushed to the engine room and saw Mian Khan, Nausher and Mukhtar alias Bhatti (appellants) coming out of the room carrying gun, hatchet and stick respectively, whom they identified in the light of a torch. The P.Ws. Challenged them by raising Lalkara whereupon Mian Khan threatened them at gun-point to keep away and they all escaped by scaling over the wall. Muhammad Hussain and Muhammad Amir P.Ws. Then entered the room and found Dost Muhammad lying dead with a fire-arm injury on his right eye. They raised alarm which attracted Muhammad Ali (P.W.10) and Muhammad Bashir Bhatti P.W. (not produced) to the spot whom they told that the appellants had murdered Dost Muhammad. Muhammad Ali and Muhammad Bashir Bhatti P.Ws. In turn told the complainant that they had seen the appellants going towards north and had passed by them. Motive behind the occurrence was stated to be that Dost Muhammad (deceased) had loaned a sum of Rs, 4,000 to Muhammad Amir Lambardar (acquitted accused) and the deceased for realising that amount went to him a month before the occurrence but Muhammad Amir Lambardar refused to pay the same and also abused him.
Mukhtar alias Bhatti (appellant) who was present at that time, had also abused the deceased. The complainant was informed about this incident. About 15 days before the occurrence Mukhtar alias Bhatti (appellant) while passing through the deceased's street was given Sota blows by Saif Ullah son of the deceased. On the following day the complainant went to the Dera of Muhammad Amir Lambardar and requested him to forgive Sail Uliah for misbehaving with Mukhtar alias Bhatti.
Muhammad Amir accepted the request but his cons, Mian Khan, Nausher and their friend Mukhtar alias Bhatti (appellants) as sequel to the said incident committed the murder of Dost Muhammad at the instance of Muhammad Amir Lambardar.
4. The complainant met A.S.I. Maqbool Ahmad (P. W.5) at village Aziz Kum who recorded his statement Exh. P.D. And sent it to police station for registering case and himself went to the spot and collected blood-stained earth, picked up empty cartridge P.4 found lying there and after preparing injury statement Exh. P.E. And inquest report Exh. P.F. Of the deceased sent the dead body for post-mortem examination under police escort. Dr. Zafar Ali (P.W.1) who conducted the post- mortem examination noted one gunshot wound on the right eye of the deceased which proved fatal as frontal bone underneath the injury had fractured. S.I. Abdul Ghafoor (P.W.4) arrested the accused on 13-1-1985. On the same day Muhammad Amir Lambardar (acquitted accused) produced his licensed gun, during investigation which was sent to Forensic Science Laboratory for examination and report if empty P.4 recovered from the spot had been fired through it? The expert had reported in the negative.
5. At the trial prosecution examined 10 witnesses in support of its case. Of .Them Muhammad Hussain complainant (P.W.8) brother of the deceased and Muhammad Amir (P.W.9) have narrated the occurrence while Muhammad All (P.W.10) is the "Waj-takker witness who claimed to' have seen the appellants going from the place of occurrence towards the north. The appellants denied the allegations and did not produce any defence.
6. The complainant (P.W.8) has largely supported the F.I.R. (Exh. P.D.). In cross-examination he stated that he had mentioned in the F.I.R. That Dost Muhammad had loaned out Rs, 4,000 to Muhammad Amir Lambardar and that when the deceased went to him to realise the same he and Mukhtar alias Bhatti (appellant) had abused him but on confrontation this story was not found recorded in Exh.D. It was also not found mentioned in Exh. P.D. That in order to get excused Saif Ullah who had given stick blows to Mukhtar alias Bhatti (appellant) a fortnight before occurrence, the complainant approached Muhammad Amir Lambardar who accepted their apology. He admitted that Muhammad Bashir Bhatti P.W. (not produced) contested election against Mian Khan (appellant). He also admitted that Muhammad Amir eye-witness (P.W.9) and Mian Khan (appellant) contested for the post of Lambardar of the village but was defeated by Mian Khan. He also admitted that Mian Khan is elected Vice-Chairman of his Union Council of which Sardar Khichi is Chairman. He denied that Mahmood Khan Khichi is inimical to Mian Khan. He stated that his house is 5/6 Killas away from his tubewell and that the A.S.I. Reached the place of occurrence in the morning at 8-00 a.m., following the night of occurrence. He also stated that he had sent Muhammad Amir (P.W.9) to Gujranwala to inform his brother Abdullah about the murder and for this reason Muhammad Amir's statement was' recorded by the police on the next day of the occurrence.
7. Muhammad Amir (P.W.9) stated that he went to the tubewell of complainant (P.W.8) on the night of occurrence for, getting from him an amount of Rs, 800/900 and also he took his she-buffalo there for mating. He stayed there for, the night and slept in a room on one cot with the complainant. At mid-night they woke up hearing report, of a gunfire and while running towards the room of Dost Muhammad (deceased) they saw in torch-light appellants coming out of that room.
Muhammad Hussain (complainant) challenged them by raising Laikara whereupon Mian Khan (appellant) aiming his gun towards them threatened not to get near them and then fled away by scaling over the wall. Then they entered the room and found Dost Muhammad lying dead with a gunshot injury on his right eye. They raised alarm which attracted Muhammad Bashir Bhatti and Muhammad Ali P.Ws. To the spot who told them that they had seen the appellants running away.
He was asked by the brother of the complainant to go to Madhora (in district Gujranwala) to inform his 'brother Abdullah about the murder of Dost Muhammad from where he returned on the following night at 10/11 p.m., and next day appeared before the police and made his statement. In cross-examination he asserted to have told the police about purpose of his visit to the tubewell of the complainant but that was not found mentioned in his police statement Exh. D.A. He admitted that he contested with Mian, Khan (appellant) for the office of Lambardar and was defeated. He stated that his house was only two squares away from the place of occurrence yet he chose to stay for the night at the tubewell of complainant instead of going home because there was no urgency.
8. Muhammad Ali (P.W.10) stated that on the night of occurrence he was irrigating his land with canal water. Muhammad Bashir Bhatti P.W. (not produced) also came there. At 3/4 a.m., 'they heard the report of a gunfire from the side of Post Muhammad's tubewell and also heard hue and cry. They went towards the tubewell and in the Way saw Mian Khan, Nausher and. Mukhtar alias.
Bhatti (appellants) coming from the side of tubewell carrying a gun, hatchet and soti respectively and going towards north. Reaching the tubewell Muhammad Hussain and Muhammad Amir P.Ws.
Informed them that the appellants had murdered Dost Muhammad. He saw Dost Muhammad lying dead in the engine room with a gunshot injury on his right eye. He told them of having seen the appellants running away towards north. He further stated that about a week before the occurrence he alongwith Dost Muhammad (deceased) went to the Dera of Muhammad Amir Lambardar (acquitted accused) as the deceased had to realise a sum of Rs, 4,000/5,000 from him but Muhammad Amir Lambardar refused, to pay him the amount and threatened to murder him. Next day in' the evening' just before Ishawela he and Yar Muhammad P.W. (noti produced) went to the Baithak of Muhammad Amir Lambardar. Its doors were closed. They overheard Muhammad Amir Lambardar saying (to the appellants) that he' would go to Gujranwala and that they should murder Dost Muhammad before his return. They entered the, Baithak and saw the appellants sitting with Muhammad Amir Lambardar. They went to Dost Muhammad and informed him all about it, who kept just silent. In cross-examination he stated that he did not inform the police about the plan of Muhammad Amir Lambardar and of the appellants to murder Dost Muhammad. He admitted that he was prosecuted under the Arms Ordinance and also for stealing two goats and for receiving and keeping in his possession stolen property of Allah Ditta. He also admitted to have been named an thief in a case of Mailsi police,
8. Learned trial Court observing that Muhammad All (P.W.10) was a professional thief and a person of questionable respectability refused to 'act upon his testimony. He was not believed to have Overheard Muhammad Amir Lambardar instructing the appellants to kill the deceased while he would be away to Gujranwala for it improbable that Muhammad Amir Lambardar gave such direction to the appellants so loudly to be overheard by the witness and consequently learned trial Court acquitted Muhammad Amir Lambardar from charge of abetment. Acquittal of Muhammad Amir Lambardar in view of the evidence on record appears to me as perfectly justified.
9. Learned trial Court further did not believe Muhammad Ali (P.W.10) that he had seen the appellants, running towards north from the place of occurrence and passed by him where he was irrigating his fields with canal water, because land of the witness is towards north of the place of occurrence while the land of Mian Khan is towards its south, therefore, it was not probable for the appellants o have gone towards north after the occurrence. I however, find that since no record of Warabandi showing that this witness had his urn of water on the night of occurrence had been produced, therefore, his presence even in his -own land on the night of occurrence is not free from doubt. Learned trial Court to my mind therefore rightly is believed this witness.
10. Testimony of Muhammad Amir (P.W.9), an eye-witness, too as been discarded by the learned trial Court for the reason, that e is inimical to Mian Khan appellant who defeated him in Lambardari case, that his statement was recorded on the day next to the day of occurrence without any reasonable explanation, and that the reasons e gave for his presence at the place of occurrence i.e,, that he ad gone to the tubewell of the complainant to get money from Muhammad Hussain or that he stayed there for mating his she-buffalo with the bull of the complainant, do not find mention in his statement Exh. D.A. Recorded by the police during investigation. It of course books improbable that the witness passed the night on one cot with he complainant than to have returned to his house (only two squares way from there) and enjoyed comfortable sleep.
11. Learned trial Court has however, accepted the evidence of Muhammad Hussain complainant (P.W.8) saying that it is corroborated the evidence of motive and medical evidence and on its basis convicted the appellants. Therefore, it needs to be seen whether evidence of this Solitary witness who is brother of the deceased can form safe basis for the conviction of the appellants on capital charge?
12. In the first instance, I would say that medical evidence and he evidence of motive in certain cases do advance the prosecution case but this evidence is never treated as corroborative piece of evidence. Assuming that the medical evidence can be treated as corroboration then I fail to understand how in this case the medical evidence serves as corroboration against Nausher and Mukhtar alias Bhatti (appellants) who allegedly were armed with 'hatchet and stick respectively at the time of occurrence but no injury caused with A such weapons is present on dead body of the deceased. I would not agree with the trial Court that Mukhtar 'alias Bhatti and Nausher appellants) had, gone with their co-accused (gun man) to defend him against eventual resistance put up by the other party. I think the principal murderer of the deceased (whosoever he was) who carried a gun hardly needed anybody else to protect him with Dang/hatchet because he could effectively defend himself with his gun.
13. Motive for killing the deceased according to the complainant is that the deceased when demanded his money back from Muhammad Amir Lambardar was abused by him and Mukhtar alias Bhatti (appellant). To avenge this insult deceased's son Sail Ullah gave beating to Mukhtar alias Bhatti and on this account Dost Muhammad (deceased) was done to death by the appellants. Obviously Dost Muhammad (deceased) did not annoy any of the appellants or Muhammad Amir Lambardar (since acquitted), therefore they had no motive to kill him?
Furthermore, there is no mention in the F.I.R. That Muhammad Amir Lambardar owed any money to the deceased or that he abused the deceased. Again, if Saif Ullah beat Mukhtar (appellant) then it B is Saif Ullah and not his father (deceased) who could be the target. Now since Mukhtar alias Bhatti (appellant) had been beaten by Saif Ullah, therefore, had he been among the assailants he must have given injuries to the deceased with his weapon to satisfy his venom. But as stated earlier, there is no injury on the person of the deceased caused with blunt weapon.
14. As to the veracity of Muhammad Hussain complainant's testimony I would say that his story, that on the relevant night he was sleeping with Muhammad Amir (P.W.9) in a room at his tubewell and at morning prayers time hearing report of a gun fire they rushed to the room of the deceased and there they saw the appellants in the light of torch and that Muhammad Ali (P.W.10) etc., were attracted by their alarm whom they told about the murder of Dost Muhammad committed by the appellants, has been impliedly disbelieved by the trial Court because, as indicated above, it had found presence of Muhammad Amir and Muhammad Ali (P.Ws. 9/10) on the spot as doubtful and is their testimony unworthy of credit. I think, the mere fact that the complainant introduced these false witnesses in itself is sufficient to discredit him. Again, I find that there was no occasion or necessity for the complainant to sleep in the room where fodder chopping machine only had been installed particularly when Dost Muhammad (deceased) was already sleeping in the engine room for guarding its machinery, etc. Night of occurrence was admittedly a dark night and the deceased suffered only one gunshot injury which the assailant would have fired in a split of second and disappeared. Assuming that the complainant was sleeping in the adjoining room of occurrence even then it was not possible for him to wake up on the report of gunfire and see the assailant at the place of occurrence as by the time he arrived there the murderer must have gone out of sight.
15. For what has gone above, I find that the testimony of the complainant does not inspire confidence and does not furnish safe basis for conviction of appellant either on capital charge. The result is that I would allow this appeal, set aside the conviction and sentence of the appellants and acquit them. They shall be released forthwith if not wanted in any other case. The revision petition for the same reasons automatically stands rejected.