' Vide judgment dated 10-5-1987, lerned Additional Sessions Judge, Okara, convicted Khuda Yar, Sardar sons of Gahra, Allah Ditta son of Muhammad Rafiq, Kala son of Sajwara, Toga alias Nawaz son of Basara and Mansha son of Ashiq for having committed offences of rioting and murder and sentenced them all to one year's R.I, and a fine of Rs,1,000 each or in default to undergo six months'
R.I. Each under section 148, P.P.C. And to imprisonment for life and a fine of Rs,5,000 or in default to undergo one year's R.I. Each under section 302/149, P.P.C. It also allowed them benefit of the provision of section 382-B, Cr.P C. The convicts have jointly filed the instance appeal (Criminal Appeal No,291 of 1987) against their convictions and sentences.
2. The occurrence took place on 7-3-1984 at 8 a.m. At the Dhari of Sardar Ali deceased within the area of Mauza Kasmana Tehsil Depalpur, District Okara and Muhammad Ashiq (P.W.1) real son of Sardar Ali, deceased lodged report Exh.PA. At Police Station Depalpur, recorded by Maqbool Ahmad S.I. (P.W.12) the same day at .10-45 a.m.
3. Shera father of Muhammad Ali (P.W.3) was murdered in the year 1947 by certain accused including Basara, Bajwa brothers of Khuda Yar and Sardar appellants. In retaliation to that murder Muhammad Ali P.W. And Sardar Ali (deceased) killed Yaqoob and Khan, real brothers of Khuda Yar and Sardar appellants. It is stated that in order to take revenge of the murder of their brothers, Khuda Yar appellant alongwith other appellants killed Sardar Ali, deceased on the day of occurrence. The other motive was that Khuda Yar appellant was defeated by Sardar Ali (deceased) in Local Bodies Election.
4. Early in the morning, on the fateful day, Muhammad Ashiq complainant (P.W.1) was lifting cowdung at his Dhari and his father Sardar Ali, deceased, was milching his buffalo when all of a sudden Munsha, Allah Ditta, Sardar, Toga and Khuda Yar appellants armed with hatchets and Kala armed with Sota suddenly emerged from within the Dhari and raising Lalkara that they would not spare the deceased, attacked him. Mansha and Allah Ditta appellants gave one hatchet blow each which landed on the forehead of the deceased. Sardar appellant gave a hatchet blow on the face of the deceased while Toga appellant gave hatchet blow on his neck and cut it off. Khuda Yar then gave a hatchet blow on the right leg of the deceased while Kala gave Sota blow in his chest. Sardar Ali died of these injures then and there. On the alarm raised by Muhammad Ashiq, complainant (P.W.1 ), Muhammad Ali (P.W.3) a cousin of the deceased and Tufail (P.W.4) another cousin of the deceased, reached the spot and had seen the occurrence. All the appellants fled away from the spot, leaving Muhammad Ali and Tufail P.Ws. With the dead body, Muhammad Ashiq complainant lodged report at Police Station Depalpur,. As stated above.
5. S.I. Maqbool Ahmad (P.W.12) having recorded the F.I.R. Exh.P.A. Reached the spot. He collected and secured bloodstained earth under memo Exh.P.C. He prepared injury-statement Exh.P.H. And inquest report Exh.P.I. Of the deceased and sent it to the mortuary for post-mortem examination under police escort. On 2173-1984 he arrested Khuda Yar, Allah Ditta, Sardara, Toga, Munsha and Kala appellants. The case was partly investigated by Asghar Ali A.S.I. (P.W.8) who recovered blood- stained hatchet (P.1) at the pointation of Nawaz alias Toga appellant on 3-4-1984, which was seized under memo. Exh.P.D. Attested by Muhammad Ashiq (P.W.1) and Muhammad Ali (P.W.3).
6. Dr. Shabbir Suleman (P.W.10) conducted autopsy on the dead body of Sardar Ali deceased and found the following injuries on it: (2)An incised wound 8 c.m. x 3 c.m. x bone and brain deep oblique on left parieto temporal reason of scalp with brain matter coming out of the wound.
(3) An incised wound 10 c.m. x 3 c.m. x bone deep with brain matter coming out on forehead above eyes horizontally.
An incised wound 8 c.m. x 4 c.m. On left temporal region of scalp with brain matter coming out of wound. Injuries No,1 and 2 join on left side of forehead and injury No,3 extends backward from joint of union of No,1 and 2.
(4) An incised wound 8 c.m. x 2 c.m. On left side of face extending from angle of mouth to middle of the nose and cutting bones and tongue underneath.
(5) An incised wound 12 c.m. x 8 c.m. On left side of the face, neck extending from angle of mouth cutting lower jaw, muscles and vessels of the left side of neck underneath.
(6) An incised wound 11 c.m. x 7 c.m. x muscle and vertebrae deep with second vertical vertebra cut through its body. All blood vessels and structures on left side of the neck were cut including trachea and oesophagos were cut.
(7) An incised wound 5 c.m. x 2 c.m. x bone deep on right side of face.
(8) An incised wound 4 c.m. x 2 c.m. x bone deep on outer aspect and upper part of left arm.
(9) An incised wound 3 c.m. x 1 c.m. x bone deep on outer aspect of left arm below injury No,8.
(10) An incised wound 6 c.m. x 2 c.m. x bone deep on back and lower part of left upper arm near elbow joint.
(11) An incised wound 3 c.m. x 1 c.m on back of left elbow joint x muscle deep.
(12) An incised wound 4 c.m x 1 c.m x muscle deep on back of the left elbow joint 1/4 c.m below injury No,11.
(13) An incised wound 7 c.m. x 2 c.m. x bone deep on outer aspect and upper part of left forearm.
(14) An abrasion 8 c.m. x 1/4 c.m. x muscle deep on back of left scapular region.
(15) Abrasion 14 c.m. x 1 c.m. On lateral aspect of left side of chest lower part.
(16) Abrasion 7 c.m. x 1/2 c.m., 5 c.m. x 1/2 c.m., 6 c.m. x 3/4 c.m. On outer aspect of left thigh in an area of 10 c.m. x 9 c.m.
(17) An incised wound 4 c.m. x 1 c.m. x muscle deep on outer aspect and upper part of left side.
(18) Abrasions 6 c.m. x 1/2 c.m., 8 c.m. x 1 c.m., 7 c.m. x 1/2 c.m. Outer aspect and middle of left thigh below injury No,17.
(19) An incised wound 19 c.m. x 3 c.m. x bone deep with bones cut on front and middle of right leg.
' All the injuries are ante-mortem and excepting abrasions they are caused with sharp-edged weapon. In the opinion of the doctor, death had occurred due to shock and haemorrhage, injuries No,1 to 7 were sufficient to cause death in the ordinary course of nature and probable time between injury and death was instantaneous and between death and post-mortem examination was 9 hours.
7. Prosecution examined 12 witnesses in all in support of its case. Muhammad Ashiq complainant (P.W.1). Muhammad Ali (P.W.3) and Tufail (P.W.4) have narrated the occurrence. Muhammad Ashiq and Muhammad Ali P.Ws. Aforesaid also deposed about the recovery of blood-stained hatchet effected from Toga and the motive part of the story. Dr. Shabbir Suleman (P.W.10) proved the injuries of the deceased.
8. The appellants when examined under section 342, Cr.P.C. Denied the allegations and professed innocence. Khu4a Yar, appellant, produced Bashir Ahmed, D.S.P. (D.W.1) in his defence who stated to have recorded statements of some persons who supported the pleaof alibi raised by Sardar and Khuda Yar appellants. He further stated that according to his investigation both the appellants were innocent. The other appellants did not produce any witness in defence.
9. Learned trial Court, on consideration of the material on record, found the appellants guilty and sentenced them accordingly, hence this appeal.
10. Learned counsel appearing on behalf of the appellants contends that eyewitnesses in the case are interested and the only corroborative piece of evidence available on record is recovery of blood-stained hatchet from Toga appellant only which is fake because it could not be expected to carry blood stains at the time of recovery i,e, 25 days after the occurrence. Therefore, it is urged, that ocular account cannot be safely acted upon. He insisted that the police investigation is not above board for it appears to have sent the hatchet Exh.P.1 to the Expert after staining it with blood.
He further submits that the evidence of the eyewitnesses does not inspire confidence and the deceased appears to have been done to death at dead of night when he was asleep for guarding his cattle and nobody else witnessed occurrence. Learned State counsel defends the impugned judgment.
11. The prosecution case hinges on the eye-witness account furnished by Muhammad Ashiq (P.W.1), Muhammad Ali (P.W.3) and Tufail (P.W.4), besides evidence of motive and recovery of hatchet from Toga appellant.
12. Muhammad Ashiq complainant (P.W.1) is the son of the deceased. He stated the facts, according to his F.I.R. Exh.P.A. According to him the Dhari (place of occurrence) is two squares away from his house and that he and his father reached the Dhari from their house early in the fateful morning. He (complainant) started lifting cow-dung while his father (deceased) got busy mulching buffalo when the appellant suddenly emerged there and attacked the deceased and killed him with their respective weapons. In his cross-examination he admitted that Muhammad All P.W. Is deceased's first cousin and also his brother-in-law; that Dhari of Tufail P.W. Is about 5 Acres away from there; that Yacloob and Khan, brothers of Khuda Yar appellant were murdered about 15 years ago and Muhammad Ali (P.W.3) and Sardar Ali deceased were challenged for these murders.
He denied that the deceased was inimical to Shappu Sheikh or had illicit connections with his womenfolk. He admitted that their cattle are usually tethered at their Dhari during the night and nobody used to sleep there for guarding the cattle; that he saw the accused for the first time when Mansha, appellant, gave first blows to the deceased as a result of which the deceased fell down; and that each accused dealt two blows to the deceased. He, however, admitted that his statement was recorded on the spot when the Thanedar came there at 11/12 noon, and obtained his thumb- impression on the statement. He admitted that hatchet (P.1) recovered from Toga appellant was of common pattern but denied that his father slept alone at the Dhari for guarding his cattle on the night preceding the day of occurrence or that he had been done to death by unknown culprits.
13. The other two eye-witnesses namely Muhammad Ali (P.W.3) brother-in-law of the deceased and Tufail (P.W.4) his cousin, have corroborated the version of Muhammad Ashiq complainant (P.W.1). Muhammad Ali P.W. Stated in his cross-examination that his Dhari is about two squares away from the place of occurrence. He arrived at his own Dhari from his house on the morning of occurrence from where he went to the spot hearing the alarm raised by Muhammad Ashiq complainant (P.W.1) within 2/3 minutes. He saw the deceased miliching the buffalo, who, in his presence, was given first blow and also the last blow. He asserted that he stood at a distance of 4/5 Karams during the occurrence. He admitted that he did not point out to the police the field where he heard the alarm raised by Muhammad Ashiq complainant. According to him, the dead body was sent to the hospital 1-1/2 hours after the arrival of the police. He denied that D.S.P., Depalpur, investigated the case or had held Shappu etc. As responsible for the murder of the deceased.
14. Tufail (P.W.4) in his cross-examination stated that his Dhari is about 1-1/2 squares away from the place of occurrence. He got up at sunrise time and went to his Dhari where he stayed for about an hour and then went towards his wheat field about 7 Acres away from the spot, where he heard a noise. He ran in that direction reaching the place of occurrence within 5 minutes and saw the occurrence. He stated that he did not raise any Lalkara or made any noise. He asserted that the deceased was given blows after he had reached the spot. He admitted that statements of Muhammad Ali and that of Muhammad Ashiq complainant were recorded at the place of occurrence.
15. Recovery of blood-stained hatchet (P.1) from Toga appellant has been proved by the eye- witnesses, Muhammad Ashiq (P.W.1) and Muhammad Ali (P.W.3).
16. It may be at once stated that the F.I.R. In this case deserves no weight since it had been admitted by Muhammad Ashiq (P.W.1), the maker of the F.I.R. And Muhammad Ali (P.W.3), that F.I.R.
Was recorded on the spot which means that it was recorded after preliminary investigations. The eye-witnesses are closely related to the deceased and existence of enmity between the parties is not denied by the complainant. Admittedly both parties got murder cases registered against each other, therefore, the eye-witnesses are interested. Their evidence cannot, therefore, be safely acted upon unless corroborated by other independent evidence capable of removing all doubts in the mind of the Court about complicity of the accused/appellant. Recovery of blood-stained hatchet from Toga appellant and the motive are pressed into service as corroborative evidence. Needless to say that in this case the motive can be taken as a circumstances supporting the prosecution provided the eye-witnesses presence at the time of occurrence is established beyond doubt.
17. Regarding ocular evidence, I would express at the outset that presence of Muhammad Ali (P.W.3) at the time of occurrence is doubtful for the reason that the appellants had rancour against him as they had against Sardar Ali deceased i,e, both of them were accused of murdering Yaqoob and Khan, brothers of Khuda Yar appellant. Therefore, had appellants been the assailants of the deceased, then they would not have spared Muhammad Ali P.W. As well if he was found near or around the place of occurrence. As for the claim of Tufail (P.W.4) that he reached the spot from a field 1-1/2 squares away and on hearing the alarm and then saw the first blow being given to the deceased by the appellants is simply incredible. Muhammad Ashiq complainant son of the deceased clearly stated that he saw the appellants when Mansha gave the first injury to his deceased father which means that Muhammad Ashiq P.W. Raised alarm after appellant started inflicting blows to the deceased. Therefore, the witness could not see the infliction of first blow to the deceased as claimed by him. Rather the assailants, whosoever they were, would have disappeared before Tufail P.W. Could have reached the spot from 1-1/2 squares distance. The presence of Muhammad Ashiq (P.W.1), also is not established beyond doubt. Had he been present at the place of occurrence then he being son of the deceased would have physically intervened to rescue his father and received injuries during the process. According to Ahmad Ali (P.W.2) he reached the spot at 8 a.m. After learning about the murder and found Muhammad Ali etc. Present on the spot. He has not named Muhammad Ashiq complainant, Muhammad Ali and Tufail P.Ws. As the persons present near the dead body. Ahmad Ali P.W. Further stated that it was he who took the dead body to the hospital. The deceased has suffered as many as 19 injuries. I suggests that the assailants had a free hand to deal with him leisurely and to their satisfaction without any body being near the place of occurrence.
18. In the absence of reliable ocular evidence, the evidence of recovery of IF. Weapon and motive is rendered of no use.
19. For all these reasons I would say that there is no reliable evidence on record connecting the appellants with the commission of murder of Sardar Ali deceased. Resultantly conviction and sentences recorded by the lower Court is not sustainable. In the result I would allow this appeal, set aside their conviction and sentence and acquit them. They are on bail. They are discharged of their bail bonds.