QURBAN SADIQ IKRAM, J.~ This is an appeal by Tufail Ahmad 19 to challenge his conviction under section 302 PPC by learned Additional Sessions Judge, MuItan who vide judgment dated 9.2.1984 sentenced him to imprisonment for life and fine of Rs.5000/- or in defauIt 2 years R.I. It wasordered that the entire fine, if recovered, will be paid as compensation to heirs of the deceased.Muhammad Khan 25 and Sahib Yar 19, two co-accused of the appellant were acquitted by the same judgment.
Khurshid Ahmad complainant filed Crl. Revision 220 of 1984 to challenge the acquittal of two accused and for enhancement of the sentence of Tufail Ahamd. This was admitted and notice was given to the acquitted accused to show cause as to why their acquttal be not set-aside and to Tufajl Ahmad appellant to show cause as to why his sentence be not enhanced.
This judgment will dispose of both these matters together.
2. The occurrence in this case took place at 9.30 AM on 19.6.1981 by the side of Killa No.13 of square No.80 in village Lothar about 18 miles from PS Sadar MuItan. The FIR Ex.PA was recorded at the police station at 3.30 PM on the same day by S.I. Habib Ahmad PW10 at the instance of Khurshid Ahmad PW8.It was stated by Khurshid Ahmad in his FIR that on 19.6.1981 at morning time he and his brother Haji Muhammad Iqbal went to village Nanoowala. On their way back home on a motorcycle they reached Chah Waryam Wala at sbout 9.30 A.M. And saw a tractor parked on the path blocking their way. All of a sudden Muhammad Khan Tufail Ahmad and Sahib Yar accused armed with sticks came out of the Jawar field of Waryam. They challenged. He got down from the motercycle and went aside and started raising alarm out of fear. His brother Muhammad Iqbal was still holding the motorcycle when Tufail Ahmad gave stick blow on his head. The second stick blow by Muhammad Khan accused fell on his left arm. Thereafter Sahib Yar accused gave stick blow on the legs of Muhammad Iqbal who fell down. The three accused then started giving repeated blows to Muhammad Iqbal with their respective weapons. The alarm attracted Ghulam Farid, Haji Allah Yar Khan and Bashir Ahmad PWs. The accused then left the spot with their respective weapons.
It was stated by Khurshid Ahmad complainant that about 5 days earlier Tufail Ahmad accused was watering his lands. There was cut in the warter-course on account of which water entered and damaged his cotton crop. Tufail Ahmad suspected that this cut was made by Haji Muhammad Iqbal deceased. He protested with him which resuIted in exchange of hot words between them. Haji Muhammad Iqbal gave slaps to Tufail Ahmad accused who threatened to take revenge.
Haji Muhammad Iqbal while on way to hospital died near Sadiqabad Mills as a resuIt of the injuries, whereafter Khurshid Ahmad reported the matter to polce.
3. The dead body of Haji Muhammad Iqbal aged about 40 years, after necessary formalities was sent for post mortem examination which was conducted by Dr. Riaz-ud-Din PW7 at 8.30 A.M. On 20.6.1981. The medical officer on external examination found 18 blunt weapon injuries of various dimensions on different parts of the body. Injury No.l was "a contused wound on right side of head 4 cm x 1 1/2 cm x muscle deep about 12 cm from eye and about 12 cm from ear". On dissection of head the medical officer found considerable amount of blood under the scalp muscle with the opening of fronto parietal suture under injury No.l. On removal of the skuli /'?.p there was clotted blood under the memberance on the whole surface of brain and between the hemespheres. Death occurred due to intracaranial haemorrhage with compression of brain as a resuIt of injury No.l and also due to shock as a collective resuIt of all the injuries. Injury No.l alone was sufficient to cause death in ordinary course of nature while the remaining injuries were collectively sufficient to cause death in ordinary course of nature. All injuries were anti-mortem and caused by a blunt weapon.
The time between injuries and death was 1 to 2 hours and post mortem was conducted in about 19 to 20 hours of death.
The same medical officer on 22.6.1981 medically examined Tufail accused and found "an abrasion 3/4 cm x 1/4 cm on the palmer side of left middle finger about 3 cm below the tip of finger". The injury was simple, caused by blunt weapon and of more than 3 days duration.
4. S.I. Habib Ahmad PW10 during inspection of the place of occurrence on 19.6.1981 collected blood stained earth vide memo Ex.PK. He also took in possession motorcycle of Muhammad Iqbal deceased from the spot vide memo Ex.PL and the tractor of the accused vide memo Ex.PM.
The accused were arrested on 21.6.1981. On that very day Tufail Ahmad accused led to the recovery of Sota P3 vide memo Ex.PE; Muhmmad Khan accused led to the recovery of Sota P4 vide memo Ex.PE and Sahib Yar accused led to the recovery of Sota P5 vide memo Ex.PG in presence of S.I.
Habib Ahmed PW 10, Muhammad Aslam PW6 and Ghulam Furqani PW, not examined.
The accused were challaned after completion of investigation.
5. In support of its case prosecution examined 10 witnesses in all. PWS Khurshid Ahmad and PW9 Ghulam Farid are eye witnesses of the occurrence. Allah Yar Khan and Bashir Ahmad, two eye witnesses named in FIR were not examined during trial. The recoveries of crime weapons from the accused were witnessed by PW6 Muhammad Aslam. Ghulam Farid PW9 also witnessed recoveries from the spot during inspection of the place of occurrence. The medical evidence was furnished by PW7 Dr. Riaz-ud-Din. The case was investigated by S.I. Habib Ahmad PW10. The evidence of rest of the witnesses was of formal nature.
6. The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They produced DW1 Muhammad Ashraf Malik Examiner of Questioned Documents who proved his report Ex.DN stating therein that the recovery memos prepared during investigation of this case were not in the hand-writing of S.I. Habib Ahmad PW10.
The learned Additional Sessions Judge, in the impugned judgment came to the conclusion that the presence of Khurshid Ahmad PW at the spot at the time of occurrence was doubtful; that the occurrence did not take place at 9.30 A.M; that the evidence of incriminating recoveries was not reliable; that Muhammad Khan and Sahib Yar accused had no motive; that the prosecution has proved motive against Tufail Ahmad accused and that Ghulam Farid PW had witnessed the occurrence. He, therefore, convicted Tufail Ahmad appellant as stated above.
7. We have carefully gone through the evidence on record and have heard the learned counsel appearing for the parties.
We need not examine the merits of the case in detail because after hearing learned counsel for the parties we are inclined to accept the connected criminal revision and remand the case for fresh trial and decision according to law.
The prosecution had cited Haji Allah Yar and Bashir Ahmad as eye witnesses of the occurrence.
These two witnesses were named in the FIR but were given up by the ptosccution during trial as unnecessary witnesses. In our view the learned trial .1 udge, keeping in view the facts and circumstances of this case should have examined them as Court witnesses. Secondly, while recording statements of accused under section 342 Cr.P.C, after dose of prosecution evidence no question was put to Tufail Ahmad accused to explain injury on his person. Thirdly,, it is in evidence that a tractor belonging to accused was taken in possession by investigating officer on 19.6.1981.
The accused were not asked any question in their statements after close of prosecution evidence regarding ownership of this tractor. Fourthly, we have noticed that in para 14 of the impugned judgment the learned Additional Sessions Judge held that" the contention of the said learned counsel carries no weight because Khurshid PW has given the explanation about his presence that he went along with his deceased brother to have a round of their fields as their servants were spreading fertilizer in the fields. The land owners always try to have a round of the crops and also to check the proper use of the fertilizer, hence the explanation given by the said PW seems to be plausible". However, in the concluding part of the same paragraph he held that " the presence of Khurshid Ahmad complainant also seems to be highly doubtful because a real brother cannot become a silent spectator when his brother was being belaboured by the assailants". Fifthly, it was held by the learned trial Judge that prosecution has proved motive against Tufail Ahmad accused but ignoring the relationship of Muhammad Khan and Sahib Yar accused with Tufail Ahmad accused came to the conclusion that the motive against them was not proved. And sixthly, we find some force in the contention of learned counsel for complainant that the evidence of eye witnesses was not divisible. It was contended that specific injuries were attributed to all the three accused on the person of Iqbal Khan deceased. The medical officer found injury No.l individually fatal whereas the remaining injuries were collectively sufficient to cause death in ordinary course of nature. On an over all assessm ent of the evidence on record and facts and circumstances of the case we are of the view that the learned Additional Sessions Judge not only omitted to record evidence of material witnesses during trial but also failed to appreciate evidence in accord with principles laid down in Safdar Ali vs. Crown (PLD 1953 F.C.93) and Mst. Mairaj Begum Vs. Eiaz Anwar and others (PLD 1982 S.C.294). The lower court made illegal approach to the question of guiIt or innocence of Tufail Ahmad, Muhammad Khan and Sahib Yar accused, which has resuIted in grave miscarriage of justice justifying remand of case for fresh trial according to law.
8. In view of the above discussion Crl. Appeal 57 of 1984 is accepted. The conviction and sentence of Tufail Ahmad appellant is set-aside and his case is remanded to sessions Judge, MuItan who will himself hold fresh trial according to law along with Muhammad Khan and Sahib Yar, acquitted accused.
We accept Crl. Revision 220 of 1984. The impugned judgment acquitting Muhammad Khan and Sahib Yar accused is set-aside. The case against them is remanded for fresh trial and decision according to law.
The evidence .Already recorded will remain intact and those witnesses will not be recalled for examination. The learned trial Judge will record the statements of Haji Allah Yar and Bashir Ahmad eye-witnesses as Court witnesses. The statements of accused under section 342 and 340(2) Cr.P.C, will be recorded afresh. The accused will be given an opportunity to produce defence evidence, whereafter the case will be decided after hearing arguments of the parties by learned Sessions Judge uninfluenced by any observation in this judgment.
9. The three accused are directed to appear before learned Sessions Judge, MuItan on 4.12.1988 who will complete trial of this case before 23.12.1988.
Tufail Ahmad, Muhammad Khan and Sahib Yar accused shall remain on bail on their furnishing of fresh bail bonds in the sum of Rs.50,000/- each with two sureties each in the like amount to the satisfaction of learned trial Judge.