' Fateh Khan, aged 45 years, his son Hakim Khan, aged 25 years, and Muhammad Yar, brother-in- law of Fateh Khan, were tried by Additional Sessions Judge, Mianwali, for having murdered Ghulam Muhammad on 7-6-1983, at 5-30 p.m., on the pathway, leading from Adda Fateh Sher Khailanwala to their Dera, in the area of village Muzaffarpur Shumali, at a distance of thirteen miles from Police Station Musa Khail, District Mianwali. The learned trial Judge convicted Fateh Khan and Hakim Khan under section 302/34, P.P.C., vide judgment dated 25-3-1986 and sentenced both of them to death, plus to pay a fine of Rs,2,000 each, in default whereof to undergo R.I. For one year each. Half of the fine, on realization, has been directed to be paid as compensation to the heirs of the deceased.
Muhammad Yar was acquitted vide the same judgment.
2. The convicts have filed appeal. The State has filed appeal against the acquittal of Muhammad Yar. The learned trial Judge has made reference for confirmation of death sentences. The complainant has filed criminal revision for enhancement of the amount of fine as well as the amount of compensation.
' As all the matters arise from the same judgment, they are being disposed of by single judgment.
3. F.I.R. (Exh.P.N.) was registered at Police Station Musa Khail by Ghulam Qasim, S.I./S.H.O. (P.W.15) at 8 p.m. On 7-6-1983, on the statement of Muhammad Amir (P.W.8).
' According to F.I.R., the complainant accompanied by the deceased, Muhammad Zaman (P.W.10) and Muhammad Niwaz (P.W.11), was going on foot to his Dera after getting down from the Suzuki Van at Adda Fateh Sher Khailanwala. When they covered a distance of seven and a half furlongs towards west, Ghulam Muhammad sat down for urination. After being free from urination, he started walking behind the complainant and other P.Ws. The distance between them was 15/20 Karams. It was 5-30 p.m. Fateh Khan armed with a Kulhari, Hakim Khan armed with a Chhuri and Muhammad Yar armed with a knife came out from the Sarkandas. Fateh Khan after giving a Lalkara to Ghulam Muhammad that they have come to avenge the murder of their brother, gave a Kulhari blow to him on the left side of the neck, below the ear, as a result of which Ghulam Muhammad fell down with face downward. Thereafter Hakim Khan gave a Chhuri blow on his back, on the left side. Muhammad Yar also inflicted a knife blow on the middle of the back. The occurrence was witnessed by the complainant and the two above noted witnesses. The accused ran away raising jubilant Lalkaras towards their Deras, on the alarm raised by the witnesses.
Ghulam Muhammad died at the spot.
' Motive for the occurrence was that Muhammad Khan, real brother of Fateh Khan accused was murdered in 1982 for which Fateh Khan son of the complainant and Sultan Khan, son of the deceased, were challaned. The case was pending.
4. Ghulam Qasim, S.I./S.H.O. (P.W.15), after registering the case, reached the spot. He despatched the dead body to the mortuary under the escort of Khan Sardar, Constable, after preparing injury statement (Exh.P.R.) and inquest report (Exh.P.S.). Due to the darkness, he postponed the inspection of the spot till the next morning.
' During spot inspection on the next morning, i,e, 8-6-1983, he collected blood-stained earth and took the same into possession. On being transferred, he handed over the investigation to M.H.C. On 16-6-1983.
5. The investigation of the case was entrusted to Sher Muhammad Bhochra, S.I. On 30-6-1983. He arrested Muhammad Yar on 18-7-1983. As Fatch Khan and Hakim Khan were absconding, he obtained their warrants of arrest on 21-7-1983 vide application (Exh.PA.) and entrusted the same to Ghulam Qadir, Constable for execution, vide endorsements (Ddi.P.B.1 and P.C./I) on the warrants. On Ghulam Qadir having failed to execute the warrants due to the abscondance of the accused, he made application (Exh.P.D.) for proceedings under section 87/88, Cr.P.C. The proclamations (Exhs.P.E. And P.F.) were entrusted by him to Ghulam Qadir, Constable for proceeding in accordance with law.
' Fateh Khan and Hakim Khan were ultimately arrested by Fida Hussain Shah, S.I./S.H.O. (P.W.16) on 16-11-1984, during a raid conducted under the supervision of D.S.P. The rifles found in their possession at the time of arrest were taken into possession. During interrogation on 21-11-1984, Fateh Khan got recovered hatchet (P.4), while Hakim Khan got recovered Chhuri (P.5) from the Kothas of their houses. They were taken into possession vide memos. Exhs.P.K. And P.L.
' After completion of necessary investigation, challan was submitted to Court. In fact, the challan had been submitted prior to the arrest of Fateh Khan and Hakim Khan and both of them had been shown as absconders. Prayer was made in the report under section 173, Cr.P.C. For proceeding under section 512, Cr.P.C.
6. The trial started after all the accused were arrested.
7. Statements of 16 P.Ws. Were recorded at the trial. Report (Exh.P.T.) from the office of the Chemical Examiner and report (Exh.P.T./1) from the office of the Serologist about the stains of human blood on the earth taken from the spot, were also tendered in evidence.
8. Dr. Shamas-ul-Haq, who had performed autopsy on the dead body of Ghulam Muhammad on 8-6-1983 at 10 a.m. Appeared as P.W 7. He had noted following injuries on the body of the deceased:-
(1) An incised wound, 4 c.m. x 1 c.m. On the left side of the neck, 4 c.m. Below the left ear-lobe and was 2-1/2 c.m. Below the angle of left mandible (superficial).
(2) (1)
A stab wound, 4 c.m. x 1-1/2 c.m. On the back of the vertebra cohn, 121/2 c.m. From inferior angle of scapula. A stab wound, 3 c.m. x 1 c.m. It was 8 c.m. To the right of injury No,2, mentioned above and 1 c.m. From middle side of the back.
(4) An abrasion, 8 c.m. x 1 c.m. On the right side of the right thigh, 5 c.m. From the greater trochanter (superficial).
' On internal examination, diaphragm, spleen and kindey were found punctured. Large intestine was healthy and full. Bladder contained about two ounces a urine.
' According to his opinion, injuries 2 and 3 individually ruptured spleen, left kidney and left renal vessel, which caused death, as a consequence of hemorrhage and shock. Probable time between injuries and death was opined within five minutes and between death and post-mortem was opined to be over twelve hours.
' During cross-examination, he stated that injury No,1 was not the cause of death and that due to clerical error injury No,1 was written as cause of death instead of injury No,3. According to him injury No,1 was superficial and had not been caused with force. He opined that the injured could not have fallen as a result of that injury. He opined that the quantity of urine found in the bladder of the deceased would have taken one or two hours' time. He expressed the opinion that the deceased might have urinated one hour before his death.
9. Muhammad Amir (P.W.8), Muhammad Zaman (P.W.10) and Muhammad Niwaz (P.W.11) deposed the ocular account.
10. Muhammad Amir (P.W.8) renarrated the facts given by him in the F.I.R. He stated that the deceased was his brother. During cross-examination, he admitted that P.Ws. Muhammad Zaman, Hayat Khan and Abdur Rehman were sons of his sister while P.W. Muhammad Niwaz was son of his real paternal-uncle.
' He gave out that he along with his deceased brother and Niwaz P.W. And others were challenged for the murder of Hayat Khan, in which deceased and his cousin Muhammad Sher were sentenced to death but he was acquitted. (The deceased was acquitted later in the appeal.). He admitted that he along with Dost Muhammad, his paternal-aunt's son were challenged for the murdor of one Khan Muhammad and both of them were sentenced to undergo R.I. For seven years, but were acquitted in appeal. He added that later they had entered into a compromise with the complainant party. He admitted that grown up sons of said Khan Muhammad were living at their Dera, twenty Karams away from the place of occurrence. He also admitted of having been challaned along with his brother and Fateh Sher, father of Fateh Khan accused and others for having murdered Muhammad Sher son of Alam Sher and Muhammad Khan son of Muhammad Sher. He admitted of having abducted Mst. Amiran 40 years prior to the occurrence but denied that his deceased brother had also abducted Mst. Nur Shari wife of Lalu. He explained that Mst. Nur Bhari daughter of the deceased was also murdered alongwith the brother of Fateh Khan accused, as they had developed illicit intimacy and she had been seen by his son and son of the deceased in a compromising position with Muhammad Khan. He gave out that his son was innocent in that case.
He admitted that they had ill-will towards the accused due to the murder of Muhammad Khan and Mst. Bhag Bhari and so were inimical to them.
' In answer to a question, he stated that the deceased had covered a distance of 6/7 Karams after having answered the call of nature, when he was attacked.
' He explained that on the day of occurrence he had gone to see his ailing brother Dost Muhammad at Wan Bhachran alongwith the deceased and Muhammad Niwaz P.W. He added that Muhammad Zaman P.W. Was already sitting in the Suzuki, which he alongwith the deceased and Niwaz P.W. Had boarded for return. According to him, the deceased had sat to ease himself on the path near the Sarkandas. He denied the suggestion that the deceased had enmity with so many persons and that some one of them had murdered him and that he had not witnessed the occurrence.
11. Muhammad Zaman (P.W.10) (son of sister of the deceased) while corroborating the statement made by the complainant, stated that the deceased after having eased himself was following them 15/20 Karams behind when he was attacked by the three accused, after coming out of the Sarkandas (reed bushes). Although he claimed himself to be a relative of the accused as well, but he did not disclose the exact nature of his relationship with any of the accused. He stated that he had gone to Wan Bhachran to have his sickles sharpened from the blacksmith and that the deceased and complainant met him on boarding the Suzuki Van, on which he was already sitting.
He stated that the police had reached the spot at 10 p.m. And had collected the blood-stained earth during the same night after recording their statements and dispatching the dead body to the mortuary. He claimed to have shown the police the place where the deceased had eased himself.
He stated that according to his assessment, Fateh Khan had given Kulhari blow with full force. He denied the suggestion of having made a false statement because of his relationship.
12. Muhammad Niwaz (P.W.11), a cousin of the deceased and the complainant and whose brother is married to the daughter of the deceased, while corroborating the statement made by Muhammad Amir, stated that the deceased was following them at a distance of 10/15 Karams, after having made water (urinating) when he was attacked. During cross-examination, he stated, that they had shown the place to the police where Ghulam Muhammad had urinated. According to him, the deceased had not tried to run away hearing the Lalkara. He stated that Fateh Khan accused had given hatchet blow with full force. He denied the suggestion of not having witnessed the occurrence.
13. Ghulam Qasim, S.1., who had registered the case, had inspected the spot and sent the dead body for post-mortem, after preparing necessary papers while appearing as P.W.15 and deposing those facts stated that because of late in the night he had inspected the spot on the next morning and collected blood-stained earth at that time. During cross-examination, he denied the suggestion that he had sent for Muhammad Zaman and Muhammad Niwaz P.Ws. For recording their statements while being at the spot. He was, however, found to have recorded in the case diary that Muhammad Niwaz and Muhammad Zaman have appeared on Talab He explained that by Talab, he did not mean that they were sent for. He denied the suggestion that the P.Ws. And the complainant party had threatened him on 9-6-1983 to challan the accused. However, he refused to read paragraph 6 of daily diary dated 9-6-1983 in that regard.
14. Fida Hussain Shah, S.I., who had arrested Hakim Khan and Fateh Khan on 16-11-1984 and had taken into possession hatchet (P.4) and Chhuri (P.5) on the pointing out of Fateh Khan and Hakim Khan, respectively, on 21-11-1984, appeared as P.W.16. During cross-examination, he denied the suggestion that the recoveries were fake.
' Abdur Rehman (P.W.5) (sister's son of the deceased) corroborated his statement about the recoveries of hatchet and Chhuri from Fateh Khan and Hakim Khan. He stated that Sher Muhammad alias Shera S.I. Who had obtained the warrants of arrest of Fateh Khan and Hakim Khan and had entrusted the same for execution to Ghulam Qadir, Constable and thereafter had obtained proclamations vis-a-vis both the accused and had entrusted the same also to Ghulam Qadir, Constable appeared as P.W.1, and stated those facts. He denied the suggestion that the accused were available but they had not been arrested intentionally.
' Ghulam Qadir, Constable (P.W.2) deposed about having been entrusted the warrants of arrest of Fateh Khan and Hakim Khan, the reports made by him on the warrants of having failed to arrest the accused and of having affixed copies of proclamations on the doors of their houses and on the notice board of the Court. During cross-examination, he admitted that he had not got the reports verified from any Lambardar or Chowkidar. He expressed inability to give directions of the house of the accused, which he claimed to have visited.
15. Muhammad Khan, Patwari, who had prepared the site plan while appearing as P.W.3, stated during cross-examination that there were no Sarkandas (reed bushes) near point No,1 or point No,2. The statements of the remaining P.Ws. Are more or less of a formal nature.
16. The appellants as well as the respondent in the State appeal during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence.
17. Learned counsel for the appellants, after taking us through the prosecution evidence, criticised the impugned judgment and contended that ocular account in this case has admittedly been deposed to by related, interested and inimical witnesses and that none of the eye-witnesses appeared to have witnessed the occurrence. Learned counsel pointed out that there is enough material on record to assume that the deceased had so many enemies with whom he was pitched in so many criminal cases and so he might have been done to death by anyone of them. Learned counsel contended that there being no evidence of recovery of blood-stained weapons from the accused, there was nothing to corroborate the statements of the interested and inimical witnesses except the so-called evidence of ascendance. According to him, this evidence was neither sufficient nor worth sustaining the conviction of the appellants or for setting aside the acquittal of Muhammad Yar. Learned counsel in that regard cited Taj Muhammad v. Pesham Khan etc. 1986 SCMR 823 and Fateh Muhammad v. State PLD 1981 Lah.
403.
18. Learned counsel for the State/complainant, on the other hand, defended the judgment of the trial Court and contended that the ocular account furnished by the eye-witnesses was natural and consistent. According to them, the ocular account stands corroborated by the evidence of motive as well as the evidence of abscondence, which stands proved through the statements of P.Ws.1 and 2.
18-A. All the eye-witnesses are admittedly closely related inter se as well as to the deceased.
19. The murder of Muhammad Khan, brother of Fateh Khan appellant, which has been mentioned as motive for the occurrence had not taken place singly. In that Mst. Bhag Bhari daughter of the deceased in this case was also murdered alongwith him. In fact, it has been given out by the complainant (P.W.8) that Mst. Bhag Bhari had illicit intimacy with Muhammad Khan and that Muhammad Khan and Mst. Bhag Bhari were done to death on having been seen in a compromising position by his son and Sultan Ahmad son of the deceased. He, however, vehemently stated that his son was innocent and had been implicated falsely by Muhammad Yar (respondent in the State appeal). The sons of the deceased and 0. Complainant stood challaned for the murders of Khan Muhammad and Mst. Bhag Bhari.
' He admitted during cross-examination that they had got ill-will and were inimical towards the accused due to the murder of Muhammad Khan and Mst. Bhag Bhari.
The motive mentioned for the occurrence, therefore, in the circumstances of this case, definitely cuts both ways. In fact, the complainant seems of be more aggrieved, as not only his niece had been murdered alongwith Muhammad Khan, but his son had also been involved innocently in that case. The other two witnesses being closely related to the complainant as well as the deceased would have also same feelings. In the circumstnaces, we find force in the argument of the learned counsel that evidence of motive is of no corroborative value for ocular account.
20. Like other criminal cases the important question in this case is also, whether the witnesses who have furnished the ocular account had really witnessed the occurrence? Can their presence at the spot be believed unhesitantly? Or there is enough substance to doubt their presence at the spot at the time of occurrence?
21. We have minutely examined the recod to find answers to those queries.
22. The claim of Muhammad Amir and Muhammad Niwaz P.Ws. For having reached the spot alongwith the deceased is based on the disclosure made by Amir having cross-examination that the occurrence had taken place when they were returning from Wan Bhachran after inquiring about the health of Dost Muhammad, their brother, who was suffering from fever for the last 4/5 days. But for this, they had no other reason to be at the place of occurrence together. Except the assertion made by this witness during cross-examination, there is nothing else on record to say that Dost Muhammad was actually ill and the witnesses actually had gone to inquire about his health alongwith the deceased and were returning from there. Niwaz P.W. Did not say any such thing.
' There is no mention of the presence of these witnesses in the relevant column of the inquest report as well, neither they had authenticated the same.
23. The presence of Muhammad Amir P.W. Appears to be doubtful from another angle. The grievance, which according to the prosecution, the accused had against the deceased, was as sound against Muhammad Amir complainant as well because his son also stood charged for the murder of Muhammad Khan, brother of Fateh Khan appellant. It is not the case of the eye- witnesses that the accused had attempted at the life of Muhammad Amir P.W., but he had escaped by running away or that he had hidden himself on seeing the accused. Their case is that the accused after having inflicted injuries to the deceased ran away raising jubilant Lalkaras. We feel that if Muhammad Amir P.W. Had been there, he would not have been left so easily, as the prosecution would like us to believe.
24. The claim of Muhammad Zaman P.W. Of having come across the deceased and the two eye- witnesses in the van while returning from Wan Bhachran, after giving the sickles to the blacksmith for sharpening, also does not appear to be sound and cogent. There is nothing on record to believe that there was no blacksmith in his village or in the nearby villages to sharpen the sickles. Normally blacksmiths are available in the villages for doing such like minor things. In our assessment, his claim does not appear to be beyond doubtful limits particularly for the reason that even if he had gone for sharpening the sickles he Would instead of leaving them there would have brought them with him after getting the those sharpened because that would not have taken so much of time.
Yet the other fact, which in a way, is, contradictory to the medical evidence, is that according to all of them, Fateh Khan had given Kulhari blow with full force on the head. The doctor, on the other hand, had opined that the said injury was superficial and had not been caused with force. The doctor had also opined that the said injury could not have resulted in the fall of the deceased.
25. Apart from all what has been noted above, there is one fact of significant importance in this case which makes the claim of the presence of the eyewitnesses at the spot highly doubtful. In that, it is prosecutions' case that the deceaed while walking with P.Ws. Had sat down for urination and was attacked after he was following them at a distance of 10/15 Karams, after urinating. The witnesses did not leave the matter there to admit any argument that the deceased might have changed his mind and started walking behind the P.Ws. Without urinating and died as a result of the injuries caused to him in that state. The P.Ws. On the other hand, have made that position categorically clear. Muhammad Zaman (P.W.10) stated as follows in line 7, page 46 of the paper book:- "We showed the place to the police where the deceased had eased himself."
' Muhammad Niwaz (P.W.11) stated during cross-examination, in line 16 at page 52 of the paper book as follows:-- "We had shown the place where Ghulam Muhammad had urinated?
' In fact, in the F.I.R. Also it is clearly recorded as Follows:-{{URDU TEXT}} ' Unfortunately for the prosecution, the fact of the deceased having urinated minutes before he was caused injuries and done to death, is negated. In that, the doctor, who had performed autopsy, had not only found two ounces of urine in the bladder of the deceased but had also opined that the quantity of the urine found in the bladder could have taken one or two hours (in making that quantity), in the summer season.
26. The positive stand of the witnesses, therefore, of the deceased having been done to death immediately after having urinated stands negative by the statement of an independent witness.
The argument of the learned counsel for the complainant that the deceased might not have fully cleared the bladder has not impressed us, the reason being that the deceased was neither old nor ailing. He was described to be a stout middle-aged man, aged about 50 years, by the doctor, who had performed autopsy. There is no evidence that he was suffering from any urological disease affecting the passage of urine.
27. As a result of the above analysis of the evidence in regard to the factum of the presence of the eye-witnesses with the deceased at the time of occurrence, we have reached the conclusion that the presence of the eye-witnesses, if not disproved, is highly doubtful and so it will be extremely unsafe to sustain conviction of the appellants or convict the acquitted accused.
28. The next piece of evidence that the prosecution can place reliance upon is ascendance of the appellants. Apart from the observations made by their Lordships in the judgments cited by the learned counsel for the appellants that the evidence of absconding is not of that high value on which conviction can be based, we ourselves are also of the view that conviction on a capital charge cannot be based merely on the evidence of ascendance even if it is supported by the documents, i,e, warrants of arrest of the absconding accused and the issuance of proclamations.
' As a sequel to the above discussion, the appeal filed by Fatah Khan and!, Hakim Khan is allowed and they are acquitted. The State appeal filed against the acquittal of Muhammad Yar also fails fix- the same reasons and is hereby dismissed. The revision petition filed by the complainant also fails for the same reasons and stands dismissed.