' IJAZ NISAR, J.--Zaheer Uddin son of Sharaf Din (24/25) was tried for the murder of Munawar Khan deceased (28). By judgment, dated 16-12-1985, learned Additional Sessions Judge, Lahore convicted him under section 302, P.P.C. And sentenced him to death and a fine of Rs,5,000 or in default to undergo R.I. For one year. The fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation.
' Challenging his conviction and sentence Zaheer Uddin has filed this appeal. The learned trial Court has also made a reference under section 374, Cr.P.C. For confirmation of his death sentence.
Mubarik Khan, brother of the deceased has filed a revision for enhancement of compensation and fine of the appellant.
' All these matters shall be disposed of by this judgment.
2. The prosecution case is that the appellant had taken Rs,500 from Munawar Khan deceased and on the failure of the appellant to pay it the deceased had snatched his bicycle P.5. On 17-7-1984 at about 9 a.m. The dead body of Munawar Khan, Orderly, General Post Office, Lahore was found in the stairs leading to the roof of the General Post Office, Mall Road, Lahore with sharp-edged weapon injuries thereon.
' Irshad All Shah Postmaster Delivery, Lahore reported the matter to the police vide report Exh.P.L.
Recorded by Abdul Hafeez Inspector P.W.16. Formal F.I.R. Exh.P.L/1 was recorded on its basis at 10-25 a.m. On 17-7-1984 by Muhammad Hanif A.S.I. P.W.10.
' After recording F.I.R. Abdul Hafeez Inspector P.W.16 prepared the inquest report Exh.P.S. Of the deceased, collected blood-stained earth from the spot vide memos. Exh.P.G. And P.H. And took into possession the last worn clothes of the deceased. He also prepared the moulds of the footprints from the roof of the G.P.O. On 17-7-1984.
' Muhammad Saeed A.S.I., P.W.17 also investigated the case. He arrested the appellant on 25-7-1984 and took into possession his cycle P.5 on 30-7-1984 produced before him by Mubarik Ali P.W.6. On the same day the appellant got recovered his bloodstained Shalwar P.1, shirt P.2 and handkerchief P.3 from the house of his brother Sami through memo. Exh.P.D. He also led to the recovery of blood- stained Chhuri P.4 from under a Sofaida tree after digging up the earth. It was made into a sealed parcel through memo. Exh.P.E.
' On 29-7-1984 P.W.7 submitted an application Exh.P.Q. To the Assistant Commissioner for track parade of the appellant which was held on 7-8-1984 under the supervision of Ch. Abdul Haq, M.I.C., P.W.13. Amir Ali tracker P.W.19 found that the footprints of the appellant were Identical to the moulds which had been examined by him at the police station.
' The clothes of the appellant and Chhuri P.4 were sent for chemical examination and as per report Exh.P.V. Of the Serologist were found to be stained with human blood.
3. Dr. Zaheer Anjum Shirazi, P.W.4 conducted autopsy on the dead body of Munawar Khan deceased on 17-7-1984 at 5 p.m. And found the following injuries on his person:-
(1) Incised wound 2.5 c.m. x 0.5 c.m. x cavity deep on right nipple.
(2) Incised wound 1.5 c.m. x 0.5 c.m. x cavity deep on centre of chest, 10 c.m. Below sternal notch.
(3) Incised wound 2.25 c.m. x 0.5 c.m. x cavity deep on centre of chest, 1 c.m. Below injury No,2.
(4) Incised wound 2.5 c.m. x 0.25 c.m. x skin deep on left nipple transversely placed.
(5) Incised wound 3 c.m. x 2 c.m. x cavity deep with loop of intestine protruded out in right iliac fossa of abdomen.
(6) Incised wound 2 c.m. x 0.5 c.m. x skin deep on outer aspect of middle of right thigh.
(7) Incised wound 1.5 c.m. x 0.5 c.m. x 3.5 c.m. Medial to injury No,6.
(8) Incised wound 0.5 c.m. x 0.5 c.m. x skin deep on right lower chest, 13 c.m. Below injury No,1.
(9) Incised wound 7 c.m. x 0.5 c.m. Crescentic shape at junction of right thumb with palm.
' All the injuries were anti-mortem, caused by sharp-edged weapon. The cause of death was due to shock and haemorrhage and injuries to vital organs (heart and lung). The probable time between injuries and death was 5 to 30 minutes and that between death and post-mortem examination 1 to 2 days.
4. The appellant denied the prosecution allegation and stated that he had been involved due to enmity and suspicion. He stated that 6 persons were called up as suspects in the case but were let off on illegal gratification and he being a poor person could not accede to their illegal demand as a result of which he was challaned.
' He did not call any oral evidence in his evidence.
5. At the trial, the prosecution examined 19 witnesses in proof of its case. Ata Ullah P.W.14 and GuI Muhammad P.W.15 furnished the ocular account. Muhammad Saeed P.W.5 and Muhammad Saeed A.S.I. P.Vg.17 proved recoveries of blood-stained clothes and Chhuri P.4 at the instance of the appellant. Muhammad Rasheed Rashid P.W.7, Ch. Abdul Haq, M.I.C., P.W.13, Abdul Hafeez Inspector P.W.16 and Amir All Tracker P.W.19 deposed about the preparation of moulds and their identification with the footprints of the appellant. Mubarik P.W.6 deposed about the motive as also production of cycle P.5 of the appellant before the police.
6. Relying on the motive, the ocular testimony and recovery of bloodstained clothes of the appellant the trial Court convicted and sentenced the appellant as stated above. However, recovery of Chhuri P.4 at the instance of the appellant and the foot identification was considered to be doubtful and not taken into consideration.
8. Criticising the judgment, the learned counsel for the appellant contends that it was an unwitnessed occurrence and the appellant has been involved on account of suspicion only. The so-called eye-witnesses kept mum for a period of 10 days after the occurrence and appeared for the first time on 27-7-1984 whereas the occurrence had taken place on 16-7-1984. The recovery of blood-stained clothes of the appellant could not corroborate them because the witnesses testifying to it had not been relied upon in respect of recovery of blood-stained Chhuri P.4 at his instance. The motive is also not proved, it is added.
9. Neither the appellant nor the eye-witnesses are mentioned in the F.I.R. The occurrence had taken place on 16-7-1984 while Ata Ullah P.W.14 and Gul Muhammad P.W.15 who claim to have witnessed the occurrence appeared before the police on 27-7-1984. No explanation has been given by them for their keeping mum for such a long period. According to Ata Ullah P.W. 14 the deceased was raising alarm and quite a large number of persons were present on the ground floor in the G.P.O.
But he did not raise any noise even on reaching the ground floor nor did he inform any official of the G.P.O. About the incident nor did he inform the police. He stated in the cross-examination that for 11 days after the occurrence he did not tell any body about his having witnessed the occurrence.
According to him he and Gul Muhammad P.W. Used to work as labourers in the G.P.O. But admitted that on the day of occurrence no work was in progress there nor was any labourer or mason present there. Gul Muhammad P.W.15 also made a similar statement and stated that during those 10 days he did not inform anybody including the family members of the deceased of the incident.
Since they kept silent for a period of 10 days after the occurrence without any reasonable cause it is not considered safe to place implicit reliance on their testimony. If they were actually present at the scene of offence the natural course of conduct for them was to have immediately raised alarm or informed the officials of the G.P.O. Or the police present there about the incident but they did not do so and left for their houses quietly and appeared before the police 10/11 days thereafter.
10. The motive is also weak and vague. There is no mention of it in the F.I.R. Or the statements of the eye-witnesses. Mubarik real brother of the C deceased who deposed about it had appeared before the police on 30-7-1984 i,e, two weeks after the incident. He could have informed the police about it when he appeared before them for the identification of the dead body but he did not make any such statement. The recovery of blood-stained clothes of the appellant cannot be said to be of any corroborative value because Muhammad Saeed P.W.5 who deposed about it is not a witness of the locality. He is resident of Shadbagh, Lahore which place is 10 miles away from the place of recovery.
He admitted that the house from where the recovery was effected was sorrounded by other inhabited houses and many residents of the locality had gathered at the time of recovery but strangely no person from the said vicinity was examined by the' prosecution. Even otherwise, it is not appealing to reason that the appellant would be keeping blood-stained clothes in the house of his brother for about a fortnight after the occurrence. He could have easily destroyed them and there was no point in preserving them. Muhammad Saeed P.W.5 who was also a witness to the recovery of blood-stained Chhuri P.4 at the instance of the appellant was not relied upon so far as the said recovery was concerned.
' As already stated above the tracker's evidence was disbelieved by the trial Court.
11. For the reasons discussed above, the prosecution case is not free from doubt and the conviction of the appellant is not sustainable in law. Accordingly we accept his appeal, set aside his conviction and sentence and acquit him of the charge by giving him the benefit of doubt. He shall be released forthwith if not required in any other case.
12. The death sentence is NOT confirmed.
13. In the light of the above discussion, the revision for enhancement of compensation and fine automatically fails and is dismissed accordingly.