' RIAZ AHMAD, J.--- The appellants Muhammad Saced alias Seedu, Shahid alias Shandi, Qamar Waheed alias Waheedu, Mukhtar Ahmad alias Gogi alias Abdul Sattar all real brothers and sons of Muhammad Yusuf alongwith appellant Zulfiqar alias Japhu were tried by the learned Additional Sessions Judge at Gujranwala on the charge under section 302 read with section 148/149, P.P.C. For having committed the murder of Muhammad Ilyas deceased.
2. Vide judgment dated 30th of May, 1988, the learned trial Judge found all the appellants guilty on the aforesaid charges. Accordingly, on the charge under section 148, P.P.C. Each of the appellants was sentenced to undergo rigorous imprisonment for a term of three years each. On the charge under section 302/149, P.P.C. Appellant Muhammad Saced alias Seedu was sentenced to death, and to pay fine of. Rs, ten thousand, or in default to suffer six months' R.I. He was further directed to pay Rs,5.000 as compensation under section 544-A, Cr.P.C. Or in default, six months' R.I., while rest of the four appellants on this charge were awarded lesser penally, and were, therefore, sentenced to undergo life imprisonment, each plus a fine of Rs,5,000 each, or in default of the payment of fine, to suffer rigorous imprisonment for a term of three months each. They were further directed to pay Rs,2,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, or in default thereof, to suffer rigorous imprisonment for a term of three months each.
3. The occurrence resulting into the death of Muhammad Ilyas took place on 24th of August, 1985 at 3-15 p.m. At Sialkot Road Muhallah Moor Pura Gujranwala situated at a distance of three furlongs from police station Model Town, Gujranwala. F.I.R. Exh.P.D. Was lodged at the police station by Rehmat Ullah P.W.7, uncle of the deceased, and the same was recorded by Fazal Ahmad Masud P.W.10, Inspector S.H.O. Police Station Model Town, Gujranwala.
4. In brief, the first informant, in the F.I.R. Stated that he was a resident of Wanya Wala. On the fateful day at about 3-15 p.m. After purchasing grocery from the city, he was returning to the village. When he reached near the WAPDA Office at Aroop Sub-Division at Sialkot-Gujranwala Road, he got down from the Suzuki Pick-up at Noor Pura, where he came across his nephew namely Muhammad Ilyas who was an employee as lineman in WAPDA. Both the first informant and his relation Muhammad Ilyas stood outside the street in front of the office to wait for the Pick-up. In the meanwhile, a Suzuki Pick-up of blue colour arrived, and was parked near them. The appellants Saeed alias Seedu, Shahid alias Shandi, Mukhtar alias Gogi, Waheed alias Waheedu and Zulfiqar alias Japhu got down from the aforesaid Pick-up. Appellants Saeed armed with Chhuri, Shahid armed with Chhuri and Mukhtar who was armed with a revolver exhorted the others to catch hold of Muhammad Ilyas, and he should not be spared. On the sight of the appellants, and after hearing the Lalkara, Muhammad Ilyas ran towards his office. Appellant Waheed chased him, and held him in his Japhha from his back. Appellant Zulfiyar caught hold of the arms of the deceased Ilyas. Mukhtar appellant at the pistol point threatened the first informant, that if he intervened, he would be shot dead. Then appellant Saeed inflicted Chhuri blow on the inguinal 'area of Ilyas. Second blow with Chhuri was inflicted by appellant Shahid on the right thigh of Ilyas. Besides the first informant, Nazir Ahmad alias Boota and Murad Ali employees of the WAPDA after having seen the occurrence, raised hue and cry, upon which, the appellants while raising Lalkaras, boarded the Suzuki Pick-up, and ran away from the scene of occurrence. Deceased in an injured condition was removed to the Civil Hospital Gujranwala, who succumbed to his injuries in the hospital. After leaving the dead body of the deceased in the Emergency Ward in custody of Nazir Ahmad and Murad, the first informant proceeded to the police station, where he lodged the F.I.R., as stated above.
5. Motive for the commission of crime as stated by the complainant in the F.I.R. Was that Saeed appellant and others after taking liquor used to tease womenfolk in village Wanya Wala. Deceased and his brother used to restrain the appellant Saeed and others from committing such activities, on account of which, the relations became strained between them. It was further stated that on the mcrning of fateful day, the deceased and Saeed appellant had quarreled on the bypass, and appellant Saeed had threatened the deceased with dire consequences.
6. On 25th of August, 1985, P.W.4 Dr. Hafiz Muhammad Akram Gondal, Medical Officer, D.H.Q.
Hospital, Gujranwala conducted the post-mortem examination on the dead body of the deceased, and noticed the following injuries on his person:
(1) Incised wound 6 x 2 c.m. x 6 c.m. Deep in the left inguinal area.
(2) Incised wound 5 x 2 c.m. Bone deep in front of right thigh middle part near the right inguinal area.
' Due to injury No,1 external iliac artery with vein had been cut. Injury on the thigh was bone deep and under the injury veins on the way from skin to bone were cut. Injury No,1 was sufficient to cause profuse haemorrhage and shock. Injury No,1 was sufficient in the ordinary course of nature to cause death.
7. Appellant Zulkar was arrested on 4-9-1985, while the appellant Saeed was arrested on 18-9-1985.
The other appellants namely Shahid, Waheed and Mukhtar were arrested on 19-9-1985.
8. On 22-9-1985 the appellant Saeed while in custody led the police and got recovered a blood- stained Chhuri vide memo. Exh.P.F. Attested by Muhammad Ali P.W.9, Muhammad Siddique Sub- Inspector besides Abdul Hameed (not produced). No recovery was effected from the rest of the appellants.
9. Chhuri recovered at the instance of the appellant Saced was sent to the Chemical Examiner and the Serologist. According to the report of the Serologist, the said Chhuri was opined to have been stained with human blood.
10. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Rehmat Ullah P.W.7, uncle of the deceased, Nazir Ahmad P.W.B. P.W. Murad named in the F.I.R. Was given up. In addition to the ocular testimony, the prosecution also relied upon the medical evidence and the evidence as to the motive. Reliance was also placed upon the blood- stained Chhuri P.4 recovered at the instance of the appellant Saeed.
11. When examined under section 342, Cr.P.C. The appellants denied the charge in to. Appellant Saeed also denied the recovery of Chhuri at his instance and also denied the motive. He also pleaded, that his father was related to the family of Ashiq Ali who was murdered by the complainant Rehmat Ullah and his brothers Muhammad Khan while abducting one Mst. Parveen, and in that connection, his father used to pursue the murder case of Ashiq Ali, and the appellant was involved on account of the said grouse in this case by the complainant. He further stated that one Anwar Jai was murdered after six months of the murder of Ilyas and brothers of the deceased Ilyas were challenged and were acquitted alongwith Nazir P.W. The allegation leveled therein was that deceased's brothers suspected Anwar Jat to be responsible for the murder of deceased in this case. It was further stated that another Ilyas, Tariq, Achhu and Anwar were taking tea at the tea stall near the place of occurrence and they were attacked by deceased Ilyas along with his companions. In course of which, deceased Ilyas suffered injuries and subsequently died and that the appellants have been falsely implicated on account of the enmity with the complainant and Nazir Ahmed P.W. Presence of the eye-witnesses at the spot was also denied. Appellants Shahid, Mukhtar and Qamar pleaded their alibi and stated that they had produced evidence in support of their respective pleas during the investigation, therefore, the appellants were put in column No,2 of the report submitted by the police under section 173, Cr.P.C.
12. Appellant Zulfiqar also stated that he was falsely implicated on account of the enmity with the prosecution witnesses and particularly with Murad and Nazir. The appellants also entered the witness box and were examined under section 340(2), Cr.P.C. The appellant Saced also led the defence evidence, and produced Saddar Din Supervisor in the. Water Supply Office Mechanical Branch at Municipal Corporation, Gujranwala as D.W.1, Muhammad Bashir A.S.I.- Muharrir Police Station Model Town as D.W.2 and Ghulam Rasul Sub-Inspector Police Station Saddar Gujranwala as D.W.3. D.W.1 Saddar Din did not support the contention of the appellant to the effect that Nazir P.W.
Was absent from duty, and his attendance in the register had been interpolated. Remaining defence evidence revealed that on 22-9-1985 appellant Saced was detained in the Police lock-up in Police Station Saddar, and that he was not taken out from the lock-up for the whole day.
Muhammad Bashir A.S.I.-Muharrir D.W.2, stated that according to daily diary appellant Saced did not come to the Police Station Model Town on 22-9-1985, and that Siddique Sub-Inspector left the police station on 22-9-1985 at 8-10 a.m. And returned to the police station on the next day i,e,, 23- 9-1985 at 3-35 p.m.
13. With the assistance of the learned counsel for the appellants and the State, we have carefully gone through the record of this case, and we have also heard them at length. It was stated by the learned counsel for appellants that the F.I.R. Was recorded at the spot, and not at the Police Station, and that too, after preliminary investigations. It was further argued that the eye-witness Rahmat Ullah complainant and Muhammad Nazir P.W. Both were the chance witnesses, and from their cross-examination, it was established beyond any doubt, that their explanation for their presence at the spot was least satisfactory. It was further contended that complainant Rchmat Ullah was a close relation of the deceased Ilyas, and therefore, his evidence was interested and inimical.
Further contended that Nazir Ahmad P.W. Was involved in several criminal cases, and he was a.
Partyman of the complainant side, and had common enemies and friends, and thus, he also had the animus to falsely implicate the appellant.
14. Recovery of Chhuri at the instance of Saced appellant was also criticized, and it was argued by the learned counsel for the appellants, that the same was fake. Further vehemently contended, that no independent evidence worth the name had been brought on the record, so as to establish the truth of the prosecution case. To brand the recovery as fake, it was contended that the same could not have been recovered by Sub-Inspector Siddique in view of the statements of D.Ws.2 and 3 respectively. It was further contended, that assuming otherwise, even, the appellant Saced was guilty of the commission of offence under section 326, P.P.C., because he had inflicted a Chhuri blow on the thigh of the deceased
15. In cross-examination Nazir Ahmad P.W.8 stated that the complainant Rehmal Ullah came at the spot alongwith Police Inspector who inspected the spot, and recorded the statement of Rehmat Ullah complainant and obtained his signatures. But the next day, while P.W.8 was still in the witness box and was being cross-examined, he resiled from the stance taken by him earlier, and denied the visit of Rehmat Ullah complainant with the police at the spot. On the other hand, Rehmat Ullah P.W.7 stated that after the occurrence, he had gone to the police station, and after lodging the F.I.R.
There, he had proceeded to his village, and did not visit the spot. It is noteworthy to mention, that P.W.7 is the uncle of the deceased. If we believe his statement, then his conduct is strange, that after having seen his nephew being subjected to violence, he did not care to go back to the scene of occurrence to find out the fate of his nephew. Rehmat Ullah P.W.7 is admittedly an uncle of the deceased, and the record shows that P.W.8 Nazir Ahmad is a partyman of the complainant side.
Both are residents of the same village. Rehmat Ullah P.W.7, in Court stated that he was present at the scene of occurrence, because he had to visit the WAPDA office at Aroop Sub-Division in connection with the correction of his electricity bill. He further stated that after making purchases from the city, he had gone to seek the aforesaid correction. No bill was produced by the witness, nor the same was taken into possession by the Police during the investigation.
16. Nazir Ahmad P.W.8, is a tube-well operator, and works as such at the water supply tank, Satellite Town Gujranwala. He claimed, that on the day of occurrence, his duty was from 10-00 a.m. To 4-00 p.m. He stated that on the day of occurrence, he had left the tank before the expiry of his duty hours, and had gone to Khalid Medical Store to purchase medicines, the medical store was situated at a distance of one mile from his office. The witness however failed to explain, as to why, he did not make purchase of medicines from the nearby medical stores. At the time of lodging of the F.I.R., the complainant. Rehmat Ullah P.W.7, did not mention, that he had reached the WAPDA Office at about 12-30 noon for the correction of his electricity bill. The complainant also suppressed the fact, that he was sentenced to imprisonment for life for the murder of Ashiq Ali. He further suppressed the fact, that his brother Muhammad Khan had abducted Mst. Parveen. Both the witnesses P.Ws.7 and 8 contradicted each other on the question of actual occurrence. P.W.8 stated that he was waiting alongwith P.W.7, for the Pick-up, and that Ilyas deceased was injured on the Katcha portion of the road, whereas, according to P.W.7, the occurrence took place in the street.
P.W.8 Nazir Ahmad was accused in a case under section 420/468/471, P.P.C., and was facing his trial before a Court. His services were terminated by the Head of Ushr and Zakat department on account of a case registered against him under section 380/411, P.P.C. Record further reveals that Nazir Ahmad P.W.8, is a complainant in a Hadood case, and a prosecution witness in a theft case.
He was also involved in the murder case of Anwar Jatt along with brothers of Ilyas deceased, and was acquitted after the trial. The witness was also involved in a case registered under section 307/324, P.P.C. For inflicting hatchet blows to appellant Zulfiqar, but he stated that a compromise had taken place in that regard.
17. The next crucial question falling for determination is whether these eyewitnesses could have seen the occurrence and were present at the spot as claimed by them. After anxious consideration, we are of the view that these eye-witnesses were not present at the spot, and have failed to render any satisfactory explanation about their presence at the scene of occurrence. P.W.7, Rehmat Ullah did not mention in the F.I.R. That he had also gone to the WAPDA Office for the correction of his electricity bill, but stated that after making purchases, he was returning to his village and was waiting for the Suzuki when he saw the occurrence. No electricity bill has been produced, nor the same was taken into possession by the Investigating Officer. Therefore, we are satisfied, that the complainant had not seen the occurrence. Similarly P.W.8, a tube-well operator stated that he had to remain on duty till 4-00 p.m., whereas the occurrence took place at 3-15 p.m. He claimed that he had gone to his office to receive his salary, and then he had gone to Khalid Medical Store at a distance of one mile to purchase medicines. Record shows that there were many other medical stores near the place of occurrence. That was a busy road, and shopkeepers were also present, and had seen the occurrence. We are therefore, not convinced about the truth of his claim.
Admittedly, both the eye-witnesses are inimical and interested, and both the witnesses belong to the same party faction, and both were involved in a number of cases. Thus, antecedents of the witnesses do not inspire confidence so as to sustain conviction on a capital charge. There is no corroborative evidence on the record, because in such like cases rule of law is to look for corroboration. Recovery of Chhuri at the instance of appellant Saeed is highly doubtful, because the Investigating Officer was not present at the police station on the day of occurrence, and the appellant Saeed was not brought from the Police lock-up. Statement of P.W.9 Muhammad All to vouch for the recovery of Chhuri cannot be taken into consideration, and therefore, we are of the view, that the trial Court rightly rejected the recovery evidence. Investigation also reveals that no evidence was forthcoming against the appellants other than Saeed, that is why, they were placed in column No,2. Evidence as to the motive has also not been substantiated and the same has come from the mouth of an interested witness. Therefore, no weight can be attached to the same.
18. Upshot of the above discussion is that the prosecution has failed to produce satisfactory evidence on the record to bring guilt home to the appellants. Therefore, we hold, that the case of the prosecution is not free from doubt. Accordingly, both the appeals are allowed, and the appellants are acquitted of the charges. They shall be set at liberty, if they are not required to be detained in any other case. With these observations, these appeals are allowed. Reference is answered accordingly.