QURBAN SADIQ IKRAM, J:- This is an appeal by Bashir Ahmad 32 and Ahmad Yar 25 to challenge their conviction under section 302/34 PPC by learned Sessions Judge Sargodha who vide judgment dated 12.2.1985 sentenced them to imprisonment for life plus fine of Rs.2000/- or in defauIt one year R.I. Each for the murder of Nazar Muhammad aged about 25 years. It was ordered that the fine, if recovered, be paid as compensation to heirs of the deceased. The appellants were allowed benefit of section 382-B Cr.P.C.
Muhammad Aslam 35, a co-accused of the appellants was however, acquitted by the same judgment.
2. The occurrence in this case took place at Sehri-wela on 19.7.1982 at the Bethak of Nazar Muhammad deceased in Killa No.23 of square No.5 in village Nabba about 9 miles from police station Bhera District Sargodha. The FIR Ex.PG was recorded on the same day at about 9 A.M. At the police station by ASI Fazal Karim PW 14 at the instance of Muhammad Ramzan PW 8.
It was stated by Muhammad Ramzan in his report that his brother Nazar Muhammad had his Behak of cattle in killa No. 23 where they both were sleeping as guards. A lamp was burning nearby.
It was stated by him that at about Sehriwela he got up to ease himself. He saw that Bashir Ahmad, Muhammad Yar armed with Barchhis along with Muhammad Aslam empty handed came there.
Muhammad Aslam caught Nazar Muhammad from his legs. Muhammad Yar gave Barchhis blow on the left side of neck of Nazar Muhammad. The second Barchhis blow by Bashir Ahmad fell on the right side of neck of the deceased. The alarm by him and the deceased attracted Muhammad Khan, Ghulain Hussain and Muhammad PWs. They identified the accused running away. Nazar Muhammad died at the spot on account of injuries.
The motive was stated to be that Nazar Muhammad married Mst. Zareena daughter of Allah Bakhsh about 5/6 years earlier. He divorced her. A few days before this occurrence Nazar Muhammad had cut jokes with his divorced wife Mst. Zareena a sister of the accused. They came to know of this and sent massage to Nazar Muhammad that they would take revenge.
3. The police after registration of the case under took investigation. The dead body of Nazar Muhammad was sent for post mortem examination which was conducted by PW 4 Dr. Muhammad Rafique at 2 P.M. On 19.7.1982. On external examination the medical officer noted three injuries on the dead body. Injury No.l was "an incised would 7 cm x 1-1/2 cm on the left side of base of neck, It was bone deep". Injury No.2 was" an incised wound 7 cm x 1 cm on the front of left shoulder, It was skin deep". Injury No.3 was "an incised wound 6 cm x 1-1/2 cm on the middle of right side of neck".
On internal examination the tracheae was cut in front of third thoraxic vertebrea. The left and right common carotidatry and the vain were also cut. The death was due to shock and haemorrhage as a resuIt of injuries 1 and 3 which were, in the ordinary course of nature, sufficient to cause death. All injuries had been caused by sharp edged weapon. Injury No.2 was simple in nature and the other two were grievous. The time between injuries and death was immediate and post mortem was conducted in about 18 hours of death.
4. The investigating officer on 19.7.1982 during inspection of the spot collected blood stained earth vide memo Ex. PD. He took in possession the cot Ex. P.2 on which the deceased was lying at the time of occurrence vide memo Ex.PE. The lamp Ex.P.3 was taken in possession vide memo Ex.P.F.
The two appellants were arrested on 3.8.1982 and Aslam accused was arrested on 17.8.1982.
During police remand Bashir Ahmad accused on 17.8.1982 led to the recovery of blood stained barchhi P.4 from his residential Chhapar which was taken in possession by ASI Fazal Karim vide memo Ex.PH in presence of Muhammad Khan PW 9 and Rehmaan PW not examined. At about the same time in presence of the same witnesses Ahmad Yar accused while in police custody led to the recovery of blood stained barchhi P.5 vide memo Ex. PJ. These were found stained with human blood vide report of Chemical Examiner Ex.PN and that of Serologist Ex.PQ.
The accused were challaned after completion of investigation.
5. In support of its case, prosecution examined 14 witnesses in all. PW 8 Muhammad Ramzan, PW 9 Muhammad Khan and PW 10 Muhammad appeared as eye witnesses of the occurrence. Ghulain Hussain, another eye witness named in F.I.R, was given up as unnecessary. The medical evidence was furnished by PW 4 Dr. Muhammad Rafique as given in detail above. The incriminating recoveries were witnessed by PW 9 Muhammad Khan who also was an eye witness. The evidence on motive was finished by PW 7 Allah Bakhsh and PW 10 Rehman. The case was investigated by ASI Fazal Karim PW 14. The evidence of the rest of the witnesses was of formal nature.
The accused in their statements after close of prosection evidence ucnied the charge and pleaded innocence. They examined Rana Sher Muham mad D.S.P. DW 1 and H.C. Mukhtar Ahmad DW 2 in their defence.
Both these witnesses are of formal nature. Rana Sher Muhammad DW 1 proved the statements of Muhammad Khan and Muhammad PWs recorded by him in the case diary. DW 2 Mukhtar Ahmad proved the statements of eye witnesses recorded by Mr. Aftab suItan A.S.P, during verfication,. Of investigation.
The learned Sessions Judge placed reliance on the evidence of motive, incriminating recoveries and the eye witnesses and sentenced the appellants as stated above.
6. I have heard the learned counsel appearing for the parties and have minutely examined the record.
It was stated by Muhammad Ramzan PW 8 that Nazar Muhammad married Mst.Zareena a sister of Bashir Ahmad etc. Accused about 10/12 years ago. Mst. Zareena after divorce from the deceased married Muhammad Yar accused. However, Nazar Muhammad deceased used to tease her often which annoyed the accused. In my view the motive set up by the prosecution was improbable. The deceased lived in village Nabba while the accused and Mst. Zareena lived in village Utman. It was admitted by Muhammad Ramzan PW that the Dera of Bashir Ahmad and Aslam was about 2/3 squares to the north of village Utman and that Muhammad Yar accused resides in village Booga Surkhuru, about 5/6 furlongs from the spot. He admitted that after divorcing his wife Nazar deceased married Mst. Irshad Bibi. He also admitted that Mst. Zareena married Muhammad Yar accused about 7/8 years earlier and she gave birth to a son of Muhammad Yar about one year before this occurrence. It, therefore, seems improbable that Nazar deceased having himself married a second wife would cut jokes with his first wife Mst. Zareena who lived at some distance from the place of occurrence. Even this allegation is vague, Allah Bakhsh PW 7 was married to a sister of Nazar Muhammad deceased. It was stated by him that Muhammad Yar accused had lodged a protest with him about 1-1/2-months prior to the occurrence that Nazar Muhammad be restrained from teasing his wife. This witness is related to the deceased. His village was about one mile from the place of occurrence. There was no reason that Muhammad Yar accused should have conveyed massage to the deceased through him. He claimed to have met Muhammad Yar per chance while grazing buffalos. He did not talk this fact to Muhammad Ramzan complainant or to father of the deceased. PW 10 Rehmaan stated that about 1-1/2 months before the occurrence he had gone to village Boonga Surkhuru to get iron wheel. On his return he saw Mst. Zareena washing clothes and Nazara deceased going on the bank of Rajbah (water channel) about 2 Kanals (80 karms) from Mst. Zareena who told him that Nazra had cut jokes with her. She asked him to tell the father of Nazara deceased to admonish his son. The evidence of both these witnesses does not inspire confidence. No incident or quarrel took place between the deceased and the accused during the intervening period. PW 10 Rehmaan did not himself see the deceased cutting jokes with Mst. Zareena who raised alarm at that time. The witnesses made material improvements in their statements during the trial. As such I am of the view that prosecution has failed to prove motive against the accused.The occurrence took place on 19.7.1982. Barchhies. P 5 and P 4 were recovered on 17.8.1982 i.e. After about a month of the occurrence. It was, therefore, not possible that the accused would have kept: the blood intact on them. Even otherwise the blood must have disintegrated during this period. The two appellants were arrested on 3:8.1982 but the recoveries were effected from their houses after about 14 days of their arrest. The police did not search their houses prior to the recoveries. These recoveries'have been witnessed only by Muhammad Khan who was also an eye witness of the occurrence. As such no reliance can be placed on the evidence of recoveries of the crime weapons.
7. The eye witness account has been furnished by PW 8 Muhammad Ramzan a brother of Nazar deceased, It is admitted by Muhammad Khan PW 9 that his wife is sister of Muhammad PW 11. He further admitted that they are paternal cousin (Phuphizad) of Ramzan complainant. He also admitted that SuItan father of Rehmaan Gondal PW 10 was his paternal counsin. All the witnesses are, therefore, related to the deceased. It was stated by Ramzan PW 8 in FIR that on hearing the alarm Muhammad Khan, Muhammad and Ghulam Hussain PWs identiGed the accused while leaving the place of occurrence. Same statement was made by him during the trial. This means that they were not the eye witnesses of the occurrence. They did not thus see the accused inflicting Barchhi blows to the deceased.
They only allegedly identified the accused when they were retreating. The site plan Ex. P.C. Indicates that Muhammad and Muhammad Khan PWs were present at a distance of 62 Karams at the time of occurrence which took place during darkness. It was, therefore, not possible for them to identify the accused even if lamp was burning at the spot. Muhammad Ramzan complainant was about 29 Karams from the spot when he saw the occurrence. He could also not have identiGed the assailants from that distance. Secondly it appears from the evidence that the assailants took care to conceal their identity and committed the crime in dark hours of the morning. It, therefore, does not seem probable that they would have committed the murder knowing that Muhammad Ramzan was present nearby after easing himself. Thirdly, it was stated by Allah Bakhsh PW 7 that "I learnt about the occurrence at 5.A.M. On the morning of the night of occurrence when a person was sent to my village to inform him about the occurrence. My father Muhammad Bakhsh had brought a tracker from our village to track the foot prints of the culpirts from the spot but the foot prints were dim." This evidence clearly indicates that the complainant party did not know who precisely were the assailants of Nazar Muhammad. They were trying to trace out the culprits before reporting the matter to pohce. The occurrence admittedly took place at about Sehri-wela time which during the days of occurrence should be about 3.30. A.M. The FIR was recorded at 8 A.M. i.e. After about 4-1/2 hours of the occurrence. Allah Bakhsh PW 7 got information about the murder in his village at about 5 A.M. This means that the complainant party remained searching for the accused before lodging of the FIR. This view is further strcftgthend by the admission of Muhammad Ramzan PW 8 in cross examination that they had pursuaded the accused up to the Rajbah for a distance of about one Killa from the spot. Fourthly, the case was investigated by Mr. Aftab SuItan A.S.P, who during verGcation of investigation recorded the statements of all the eye witnesses. They were duly confronted with those statements. These witnesses made totally different statements before the said ofGcer than the story in the FIR. The improvements made by them during the trial make them false witnesses. Fifthly, it was admitted by Muhammad Ramzan PW 8 "it is correct that my paternal uncle Sardara had murdered one Noor Muhammad of Chak Ramdas but I was only a boy at that time. He was acquitted in that case". This means that there was an old murder enmity between the family of Noor Muhammad of Chak Ramdas and Sardara, a paiernai uncle of the complainant. In view of these circumstances I am not inclined to place any reliance on the evidence of the eye witnesses.
8. In view of the above discussion I find that the prosecution has failed to prove its case against the appellants. This appeal is accordingly accepted. They are acquitted. Their conviction and sentence is set-aside. They shall be released from prison forth-with if not required in any other case.