Wilayat alias Wallu (22) was tried for the murder of his co-villager Muhammad Saeed by the Additional Sessions Judge, Faisalabad. On 24- 5- 1984, he was convicted under section 302, P.P.C.
And sentenced to imprisonment for life with a fine of Rs.8,000 in default to undergo two years' R.I.
Further. He was also directed to pay Rs.8,000 as compensation to the heirs of the deceased in default to undergo six months' R.I. Further. Appeal of the convict is before me.
2. Eight years before the occurrence in this case, Khan, a brother-in---law and first cousin of the appellant was murdered. Muhammad Saeed (deceased), Allah Bakhsh (informant) and one Saleh Muhammad were tried. Saeed and Saleh Muhammad were acquitted in appeal but the informant was sentenced to four years' R.I. Who after serving the sentence returned to the village. This was the motive for the crime in this case. According to the prosecution on 5-9-1981 at about 7-00 a.m.
Muhammad Saeed (deceased) and P.W. Nazeer Ahmad went to the Dera of Muhammad Sher, Lambardar for the Fateha Khawani of Ali Muhammad, Lambardar. An hour later, Allah Bakhsh (informant), a brother of Saeed (deceased) went for a hair cut to the shop of Shabbir barber. As soon as he reached Bazar Machine Wala, he saw Muhammad Saeed returning from the Dera of Muhammad Sher, Lambardar. When he reached near the shop of one Dosa (given up as won over), just then Wilayat appeared with a hatchet saying that he had come to avenge the murder of Khan and charged on Saeed. He inflicted a hatchet blow on the back of left side of the head which felled him. Thereafter, he inflicted more injuries to him in the back, the left buttock and on the left thigh.
The alarm attracted P.Ws. Nazeer, Mst. Janat Bibi widow of the deceased and Dosa. Saeed succumbed to the injuries; thereafter Allah Bakhsh proceeded to Police Station Chak Jhumra but on the way at bus stand Salar Wala he met with P.W.II Farooq Azam A.S.I. And made statement Exh.P.C. To him at I1-45 a.m. On the basis of which formal F.I.R. Exh.P.C./1 was registered at the Police Station Chak Jhumra at 12-15 noon the same day. The A.S.I. Went to the place of occurrence, prepared the necessary documents and sent the dead body for its post-mortem examination.
3. P.W. Dr. Muhammad Idrees, Medical Officer, Health Centre, Chak Jhumra, held the autopsy on the dead body of Saeed on the following day at 10-00 a.m. And made the following observations:-
(1) An incised wound 9 c.m. x 1/7 c.m. x bone deep on left side of head going posterior to left ear and cutting through middle of left ear, going towards left cheek, underneath bones were cut. Brain matter was coming out of the wound.
(2) An incised wound 10 c.m. x 2.5 c.m. x bone deep on left cheek starting from medial margin injury No. 1 towards nose. Underneath bone was cut.
(3) An incised wound 10 c.m. x 1 c.m. x bone deep on left cheek, 1 c.m. Above injury No. 2. Underneath bone was cut.
(4) An incised wound 6 c.m. x 2 c.m. x bone, deep starting from right eye towards nose and adjacent to injury No.2. Tip of nose was cut and underneath bone was also cut. Right eye was destroyed.
(5) An incised wound 6 c.m. x 0.5 c.m. x scalp deep on head 10 c.m. Above route of nose.
(6) An incised wound 7 c.m. x 0.5 c.m. x bone deep on left side of head 10 c.m. Above left ear. Bone underneath was cut.
(7) An incised wound 3 c.m. x 2 c.m. x scalp deep on left side of head 1c.m. Below injury No. 6.
(8) An incised wound 3.5 c.m. x 2 m.m. x scalp deep on left side of head. 1.5c.m. Below the injury No. 6.
(9) An incised wound 2.5 c.m. x 3 m.m. x scalp deep on right side of head 12 c.m. Above right ear.
(10) An incised wound 2 c.m. x 2 m.m. x bone deep on right side of back of head and underneath bone was cut.
(11) An incised wound 4 c.m. x 5 m.m. x scalp deep on left side of back of head 1.7 c.m. Posterior to injury No. 6.
(12) An incised wound 2.5 c.m. x 1 m.m. x bone deep on back of right side of head.
(13) An incised wound 1.5 c.m. x 5 m.m. x skin deep on left side of lower lip.
(14) An incised wound 1 c.m. x 3 m.m. x skin deep on left side of chin.
(15) An incised wound 6 c.m. x 3 m.m. x skin deep on outers side of upper third of left upper arm.
(16) An incised wound 2 c.m. x 2 m.m. x skin deep on front of middle third of left thigh.
(17) An incised wound 2 c.m. x 2 m.m. x skin deep on outer side of middle of left thigh.
(18) An incised wound 9 c.m. x 3 c.m. x muscle deep on left buttock.
In doctor's opinion death occurred due to shock and haemorrhage caused by injuries Nos. I to 4, 6 and 10.
4. On 16-9-1981, P.W.1 I Frooq Azam A.S.I. Was present at the bus stand Barnala. Ahmad son of Raja produced Wilayat accused before him there. The A.S.I. Arrested him. On 20-9-1981, the appellant led to the recovery of hatchet P.4 from his house. It was made into a sealed parcel and taken into possession through memo. Exh.P.E. Attested by P.W.7 Muhammad Yaqoob, the Investigating Officer and Falak Sher (given up as unnecessary). Same day, the A.S.I. Also recovered blood-stained Chaddar P.5 and Kurta P.6 of the accused which were made into a sealed parcel and taken into possession through memo. P.F. Attested by the same aforesaid witnesses. All articles were found to be stained with human blood. After completing the investigation the accused was sent up for trial.
5. On examination the appellant denied guilt and ascribed the case to enmity. He also denied the recovery and alleged that in fact, he was a permanent resident of Ahmadpur Sharqia, District Bahawalpur. He led no evidence in defence.
5. Relying on the evidence of the eye-witnesses and the recoveries from the appellant, trial Court came to the conclusion that the prosecution case was satisfactorily proved against the accused.
7. Criticizing the finding, it was contended that the ocular testimony was interested and there was no reliable corroboration of the same. Out of four eye-witnesses, Dosa was given up as having been won over. Out of the remaining three, P.W.8 Allah Bakhsh and P.W.9 Nazeer Ahmad were the first cousins of the deceased. P.W.10 Mst. Janat Bibi was deceased's widow. In their cross- examination, the eye-witnesses have admitted their long standing enmity with the accused arising out of previous murders in their families. No doubt some of the murders are over a decade old but I find that the enmity persisted between their families and there have been instance of violence, five years before the occurrence or even less than that. For instance, P.W. Nazir's father Siddiq was murdered by appellant's brother Nosha who was prosecuted. It may also be mentioned here that besides appellant and his other relations, the deceased had other enemies as well with whom there was previous murder history. On the basis of this background, it was contended that the appellant was a permanent resident of Ahmadpur Sharqia, District Bahawalpur and this fact is supported by P.W.7 Muhammad Yaqoob a recovery witness, who admitted under cross--- examination that Wilayat was not cultivating any land in their village nor was he a tenant or a lessee of anyone. It was thus argued that the deceased may have been murdered by one of his other enemies. It was further argued that if the appellant wanted to avenge the murder of his brother---in-law Khan then Allah Bakhsh informant would have been the victim because he was attributed a fatal injury with a Chhuri in that case, whereas Saeed deceased was only alleged to have held Khan and his presence at the spot was doubted.
8. To my mind, the sole question for determination in this appeal is whether interested ocular testimony can be relied upon. The only corroborative piece of evidence was the incriminating recoveries from the appellant. The appellant was arrested eleven days after the occurrence. Would he let the blood remain on the hatchet and his clothes for the Investigating Officer to discover was a doubtful matter. Even otherwise, the recovery witnesses are no better than the eye-witnesses because they too, are related to the deceased and are inimical towards the accused, as such, they would also be interested witnesses. It has been the practice that there should be reliable corroboration of interested evidence. Nevertheless, in cases where the evidence of an interested witness so fit in with the circumstances of the case that it inspires confidence, in that case, such evidence cannot be easily brushed aside. But in this case, the circumstances appearing in the evidence are to the contrary, for instance, variation in the dimensions and the number of injuries indicated that two type of sharp-edged weapons appear to have been used. The occurrence also appears to have taken place after midnight, or in the early hours of the morning when it was dark.
This is supported by the medical evidence because the deceased's stomach and small intestines were empty which indicated that till death, he had nothing to eat but the occurrence was alleged to have taken place at about 8 a.m. In the month of September. Further, I find that deceased's large intestines contained faecal matter which also indicated that he had not evacuated. On the other hand, it is the prosecution case that the deceased had gone for condolence on the demise of Ali Muhammad, Lambardar, and on his way back home, he was done to death. It would not stand to reason that he left his house without going for the call of nature and without eating anything. It is also in evidence that the appellant had no cultivation in the village. Last but not the least, the F.I.R., in this case was not made at the police station. The argument is that it was a blind murder and upon discovering it in the morning, the F.I.R. Was made after due deliberation. The Investigating Officer admitted that he recorded informant's statement at 11-45 a.m. At Adda Salarwala which was 7/8 miles away from the police station and was connected by a metalled road. He also said that after recording the statement of the informant, he went to the place of occurrence where he reached at 1 p.m. i.e. It took him an hour and fifteen minutes to reach there. The informant would have taken about the same time in reaching Adda Salarwala from the place of occurrence. From this data, it follows that the informant, in all probability, left the village at about 10-30 a.m. Making the report and the occurrence according to the prosecution took place at 8 a.m. This lends support to the argument that the F.I.R. Was belated. Under the circumstances, the ocular testimony inspires no confidence. An unimpeachable corroboration of the same is also lacking. Accepting the appeal, I set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith if not required in any other case.