QURBAN SADIQ IKRAM, J.--This is an appeal by Nazar Hussain 28 to challenge his conviction under section 302, P.P.C. By learned Additional Sessions Judge, Sheikhupura who vide judgment, dated 23-7-1983 sentenced him to death and fine of Rs.5,000 or in default six months' R.I. It was ordered that half of the fine if recovered shall be paid as compensation to heirs of the deceased.
The appellant having been sentenced to death, the proceedings are also before us for confirmation of sentence.
Mushtaq Ahmad 36, Muhammad Faryad 30 and Muhammad Aslam 25, co-accused of the appellants were acquitted by the same judgment.
2. The occurrence in this case took place at 9/10 a.m. On 9-10-1981 in the house of Manzoor P.W. In Mohallah Rasulpura, about 1-1/2 miles from the Police Station City Sheikhupura. The F.I.R. Ex.P.H. Was recorded at the police station by S.I. Shahid Farooq P.W. 15 on the same day at 11-45 a.m. At the instance of Inayat P.W. 9.
It was stated by Inayat P.W. 9 (complainant) in his F.I.R. That his brother Manzoor abducted Mst.
Khalida Parveen. a sister of Nazar Hussain about 4/5 days earlier. On 9-10-1981 Manzoor returned home at about 7/8 a.m. He; therefore, along with his brother Sultan deceased, Amir and Sardar P.Ws. Went to his house at about 9/10 a.m. They all were present in the courtyard of the house of Manzoor admonishing him for the abduction. In the meantime Nazar Hussain, Mushtaq Ahmad, Muhammad Faryad and Aslam entered the house armed with Chhuris and shouting Lalkaras.
Manzoor, in order to save his life ran away. Sultan Ahmad deceased entreated the accused to go back. Mushtaq accused gave Chhuri blow on the abdomen of Sultan who was given second blow by Nazar Hussain on left flank. Faryad accused inflicted Chhuri blows on the right arm of Sultan. At that time Aslam accused continued shouting Lalkaras that no one should come near. The accused left the spot in chase of Manzoor P.W. With their weapons. Sultan fell down. He was taken to hospital for treatment and examination by him along with Amir and Sardar P.Ws. Inayat P.W., then went to police station and reported the matter.
3. Dr. Muhammad Aslam P.W. 14 on 9-10-1981 at 11-30 a.m. Medically examined Sultan Ahmad deceased aged about 35 years when still alive and found four stab wounds of various dimensions on his "abdomen about 3 c.m. Above umblicus", "lateral aspect of lower part of chest", "on the front of right upper arm 5 c.m. Above the cubical fossa" and "on the right side of the back of chest". All these injuries had been caused by sharp-edged weapon and were fresh. Injuries on the abdomen and chest were kept under observation. The remaining two injuries were of simple nature.
Sultan Ahmad died in hospital on the day of occurrence at 3-20 p.m. After necessary formalities his dead body was sent for post-mortem examination which was conducted by P.W. 16 by Dr. Muhammad Siddique at 1-15 p.m. On 10-10-1981. The Medical Officer on external examination found the same injuries on the dead body. On dissection the transverse colon and stomach were found repaired under injury No. 1. The spleen was also absent. The dome of diaphragm, spleen and left kidney were found cut through and through. The right lung had also been cut through and through and both chest cavities contained blood. The abdominal cavity contained four ounces of blood.
The death was due to shock and haemorrhage as a result of injuries to right lung, spleen, left kidney, stomach and large gut. These injuries were sufficient to cause death in the ordinary course of nature, collectively and individually. These injuries had been caused by sharp-edged pointed weapon. The time between injuries and death was within six hours and post-mortem was conducted in about 22 hours of death.
4. S.I. Shahid Farooq P.W. 15 after registration of the case under took investigation. He, during inspection of the spot on 9-10-1981 collected blood-stained earth from the place of occurrence vide memo. Ex. P.G.
Muhammad Aslam accused was arrested on 9-11-1981 while the remaining three accused were arrested on 9-10-1981.
Muhammad Aslam accused on 9-11-1981 led to the recovery of blood-stained Chhuri P.3 which was taken in possession vide memo. Ex. P.D. By A.S.I. Nasir Ahmad P.W. 5 in presence of Muhammad Anwar P.W. 8 and Muhammad Khan P.W. Not examined.
On 17-10-1981 N1ushtaq Ahmad accused got recovered Chhuri P.4 vide Memo. Ex. P.J; Nazar Hussain got recovered Chhuri P.5 vide memo. Ex. P.K. And Faryad accused got recovered Chhuri P.6 vide memo. Ex.P.L. All the three Chhuris were stained with blood. These recovery memos. Were prepared by S.I. Shahid Farooq P.W. 15 and attested by Muhammad Akram P.W. 12 and Nazir Ahmad P.W. Not examined.
Chhuri P.3 was found stained with human blood vide report of Chemical Examiner Exh. P.R./1 and that of Serologist P.S./1. The Chhuris P.4 to P.6 were found stained with human blood vide report of Chemical Examiner Ex.P.R. And that of Serologist Exh. P.S.
5. The accused were challaned after completion of investigation.
6. In support of its case prosecution examined 16 witnesses in all. P.W. 9 Inayat, P.W.10 Manzoor and P.W. 11 Amir appeared as eye-witnesses of the occurrence. Sardar another eye-witness named in F.I.R. And Ghulam Rasul eye-witness not named in F.I.R. Were given up as unnecessary. The incriminating recoveries were witnessed by Muhammad Anwar P.W. 8 and Muhammad Akram P.W.
12. The medical evidence was furnished by Dr. Muhammad Aslam P.W. 14 and Dr. Muhammad Siddique P.W. 16 as given in detail above. The case was investigated by S.I. Shahid Farooq P.W. 15.
The evidence of the rest of the witnesses was of formal, nature.
In cross-examination of the eye-witnesses it was suggested that Sultan deceased was killed by Nazar Hussain accused under grave and sudden provocation. However, in their statements after close of prosecution evidence, the accused denied their presence at the spot and pleaded innocence.
6. The learned trial Judge came to the conclusion that the prosecution has failed to prove motive against the accused; that the statements of the eye-witnesses did not inspire confidence; that the recoveries of crime weapons were not proved and that the investigation in this case was dishonest.
However, taking in consideration the suggestion of grave and sudden provocation in cross- examination the learned Additional Sessions Judge, convicted and sentenced Nazar Hussain accused for the reason that he had failed to prove that he committed the offence under grave and sudden provocation.
7. We kept waiting for learned counsel for the appellant but no one turned up to argue this appeal.
We have gone through the record of this case with the assistance of learned State counsel. In our view the prosecution has failed to prove its case against Nazar Hussain beyond a reasonable doubt.
The motive in this case was stated to be that about 7/8 days before this occurrence Manzoor P.W.
10 had abducted Mst. Khalida Parveen for which he and his brother Inayat P.W. Were named as accused. It is surprising that Inayat P.W. Though present at the place of occurrence was not given any injury by the accused. It is in evidence that Manzoor accused managed to run away which in our view was not possible in presence of four armed accused in the house. Sultan deceased was in no way involved in the abduction of Mst. Khalida Parveen. There was, therefore, no occasion for the accused to murder him. Nazar Hussain accused was in no way related to the three acquitted accused. Those persons had no motive to join hands with Nazar Hussain accused. Manzoor P.W. 10 stated during the trial that Mushtaq Ahmad accused used to purchase fodder from him on credit and that he did not pay Rs.10,000 on that account. This statement would show that in fact the complainant party had grievance against Mushtaq Ahmad accused who was, therefore, involved in the present occurrence. In our view the prosecution has failed to prove motive against the accused.
8. The evidence on recoveries of crime weapon is also not free from doubt. We need not discuss the recoveries of Chhuris from the acquitted accused because there is no revision or appeal against their acquittal.
Nazar Hussain appellant was arrested on 9-10-1981 but in spite of that the recovery of Chhuri P. 5 at his instance was made 8 days thereafter. It does not seem probable that the accused would have kept blood-stained; Chhuri in his house during these days. Muhammad Akram P.W. 12 who witnessed recovery of Chhuri from Nazar Hussain is son of Sultan Ahmad deceased. No other person of the locality was associated at the time of this recovery. It was stated by Investigating Officer that those persons had refused to be witness in this case but in spite of that no action according to law was taken by him against them. S.I. Shahid Farooq P.W. 15 admitted that the recovery memo. Ex. P.K. Like other recovery memos. Was not in his hand. There is no reasonable explanation to the question as to why he did not prepare the recovery memos. In his own hands.
Chhuri P.5 was recovered at the instance of Nazar Hussain from a house jointly occupied by others.
It could, therefore, not be said that the Chhuri P.5 was recovered from his exclusive possession. As such recovery of Chhuri P.5 cannot furnish corroborating evidence to the ocular account of this case.
9. The prosecution examined 3 eye-witnesses in support of its case. Inayat P.W.9 and Manzoor P.W.10 were real brothers of Sultan Ahmad deceased. It was admitted by Amir P.W.11 that he was the son of a maternal aunt (Khala) of the deceased and that his niece was married to the deceased. It is, therefore, apparent that these three witnesses were closely related to the deceased. Inayat P.W.
9 did not make any mention of the injury on the back of Sultan Ahmad deceased. According to the F.I.R. Ex. P.H. Sultan Ahmad deceased received three injuries on his person but according to the medical evidence there were four injuries. If Inayat P.W. Had been present at the spot he would not have omitted to mention fourth injury on the person of the deceased. It was stated by Inayat P.W. In his F.I.R. That he had gone to the house of Manzoor P.W. Along with Sultan deceased and Amir and Sardar P.Ws. However, while appearing as witness, during the trial he omitted the name of Sultan and stated that he entered the house of Manzoor with Amir and Sardar P.Ws. And that Sultan came there to protest with Manzoor for the abduction of Mst. Khalida Parveen Inayat P.W. Stated during the trial that Mushtaq accused gave Chhuri blow to Manzoor P.W. As well but he was not hit. This fact was not mentioned by him in the F.I.R. There is another aspect of case as well. In the F.I.R. Inayat P.W. Gave full description and parentage etc, of the accused but during the trial he stated that he did not know the particulars of the accused. This would indicate that the F.I.R. Was recorded after some preliminary investigation by the police. It is in evidence that Manzoor P.W. Resided in separate house while Inayat P.W. And Sultan deceased lived in another house. There appears no ostensible reason for the witnesses to be present in, the house of Manzoor at the time of occurrence. It was stated by Manzoor P.W. That on seeing the accused he took to his heels and scaled over the wall to save himself. This statement seems improbable. He was sitting close to other witnesses. All the accused rushed in his house armed with Chhuris and as such there was hardly any occasion for him to run away. If he had been present there, he would not have been spared by the accused. It was' further stated by him that he was encircled by the accused but he managed; to escape by threwing brick bats upon them. There is no other witness to support this part of the prosecution case. It is correct that three of the accused were found injured at the time of their arrest but there is no evidence that these injuries were received by them during the occurrence. It was stated by Manzoor P.W. That many other persons had assembled ad the time of occurrence but no one was examined by the prosecution during the trial. Amir P.W. 11 did not reside with the deceased or Manzoor P.W. He was a cart driver. There was no occasion for him to be present in the house of Manzoor P.W. At the time of occurrence. It appears that he has come forward to support the prosecution case on account of his relationship with the deceased. The evidence of these three witnesses does not inspire' confidence and as such cannot be made basis of conviction of Nazarl Hussain appellant. These three witnesses were disbelieved by the learned, trial Judge. Three co-accused of the appellant were acquitted on the same evidence, which was not divisible as against the present appellant. Nazar Hussain appellant did not plead any exception and also did not admit his presence in his statement under section 342, Cr.P.C. It was suggested to the eye-witnesses that he had killed Sultan deceased under grave and sudden provocation. There is no evidence that Mst. Khalida Parveen was present m side the room of the house of Manzoor Ahmad at the time of, occurrence. There is no circumstance to show that Nazar Hussain accused, alone caused injuries to Sultan Ahmad under grave and sudden provocation. It may be added that after disbelieving the entire prosecutions evidence and without there being any plea of exception by the accused in statement under section 342, Cr.P.C. Conviction could not have been recorded by the trial Court simply on the basis of some suggestions in cross-examination of the eye- witnesses.
10. In view of the above discussion we find that the prosecution has failed to prove its case against Nazar Hussain appellant. We, therefore, accept this appeal and set aside his conviction and sentence. The sentence of death is not confirmed. Nazar Hussain is acquitted. He shall be released from prison forthwith if not required in any other case.