' Muhammad Sharif (45), Muhammad Ameen (50) and Ali Ahmed (25) alongwith Rehmat Ali (90), Muhammad Bashir (50) and Muhammad Naeem (22) were sent up for trial by Police Station Saddar. Gujranwala, for an offence under section 302/148/149, P.P.C. The trial Court vide its judgment dated 3-111985 gave the benefit of doubt to Rehmat Ali, Muhammad Bashir and Muhammad Naeem and acquitted them. Muhammad Sharif, Muhammad Ameen and Ali Ahmed accused were however, found guilty for the murder of Muhammad Iqbal and each was sentenced to imprisonment for life under section 302/34, P.P.C. And a fine of Rs,2,000 each or in default one year's R.I. Each. They were further directed to pay compensation of Rs,5,000 each to the legal heirs of the deceased or in default one year's R.I. Each under section 544-A, Cr.P.C. The convicts have appealed challenging their convictions and sentences. The complainant has also filed revision seeking the enhancement of sentence of the convicts as well as challenges the acquittal of their co-accused. Both the matters will he disposed of by this judgment.
2. The prosecution story in brief as disclosed by Muhammad Khan real brother of Muhammad Iqbal deceased is to the effect that he is resident of village Buttala Sharam Singh. There was some Shamlaat land from which the first informant alongwith his brother Muhammad Iqbal and Muhammad Ameen had taken possession of 8 Marlas jointly. They had decided that after levelling the land they would deivide it equally amongst themselves. The first informant and his brother Muhammad Iqbal alongwith said Muhammad Ameen had also constructed a Kotha for tethering the cattle jointly. Fourteen/fifteen days before the occurrence Muhammad lqbal deceased tethered his buffalo and a mare in his portion of the land and asked Muhammad Ameen for partition of the same who did not agree to the same. Muhammad Iqbal deceased insisted upon the partition whereupon Muhammad Ameen appellant threatened him with dire consequences. On 23-12-1983, at 4 p.m., Muhammad Iqbal went to the Kotha where he had tethered his buffalo for milking. When he reached near the Kotha, Muhammad Sharif and Muhammad Ameen appellants armed with hatchets, Ali Ahmed appellant and Muhammad Naeem (acquitted co-accused) armed with Tokas, and Muhammad Bashir (acquitted accused) empty handed, emerged from behind the said Kotha. Rchmat Ali raised a Lalkara whereupon Muhammad Bashir held Muhammad !Oat in his clasp. Simultaneously, Ali Ahmed appellant gave a Toka blow on the left side of his neck which cut the neck almost into half. It was followed by a blow by Muhammad Naeem appellant which landed on the neck of Muhammad Iqbal whereupon he fell down.
Muhammad Ameen appellant gave eight injuries with his hatchet while Muhammad Iqbal had fallen down which hit on the various parts of his body. Thereafter, Muhammad Sharif appellant also gave eight injuries with his hatchet to the deceased hitting on various parts of his body whereupon he died at the spot because of the said injuries. The occurrence was witnessed by Muhammad Riaz and Muhammad Khan real brothers of the deceased who were per chance following him. After the commission of the offence the accused person decamped with their respective weapons.
3. F.I.R., Exh.P.G. Was lodged on 23-12-1983, at 6-15 p.m., by Muhammad Khan, P.W.8, brother of the deceased. It was recordcd by Mahmood Ahmed, A.S.I., P.W.10, at Police Station Saddar; Gujranwala.
The distance between the place of occurrencee and the police station was eight miles.
' After the registration of case Mahmood Ahmed, A.S.I. P.W.10 came to the spot and prepared injury statement, Exh.P.J. And inquest report Exh.P.K. Of the deceased. He secured blood-stained earth from the spot, vide memo. Exh.P.H. He recorded the statements of the witnesses and also got prepared the site plan, Exhs.P.M. And P.M./1 frpm the Draftsman and gave his notes in red-ink thereunder. He arrested Muhammad Arneen, Muhammad 'Shard, Ali Ahmed appellants and Muhammad Bashir acquitted accused on 25-1-1984. On 7-3-1984, he got recovered blood-stained Toka P.8 from the dera of Muhammad Naeem appellant which was secured vide memo. Exh.P.E.
4. The case was also partly investigated by Sher Bakhsh, Inspector/S.H.O. Police Station Saddar, Gujranwala, who took over investigation from Mahmood Ahmed, A.S.I. He interrogated the accused and on 2-2-1984, Muhammad Ameen appellant while in custody led to the recovery of blood- stained hatchet, P.6 from his house which was secured, vide memo. Exh.P.D. Muhammad Sharif appellant on the same day also got recovered blood-stained hatchet P.6 from his house which was taken into possession, vide memo. Exh.P.C. On the same day, Ali Ahmed appellant while in custody also got recovered blood-stained Toka, P.7 from his house, vide memo. Exh.P.E. All the said weapons of offence were sealed into parcels and memos were got attested from the witnesses.
After the usual investigation he challaned the appellants.
' Dr. Najam-ul-Hassan Kazmi, Medical Officer, Civil Hospital, Gujranwala; on 24-12-1983, at 11-30 a.m., conducted the post-mortem examination on the dead body of Muhammad Iqbal and found the following injuries:--
(1) Incised wound 10 x 1-1/2 c.m. Front of forehead extending upto the mid hair of scalp and it was bone deep.
(2) Incised wound 8 x 3 c.m. Left parital region of scalp. It was bone deep.
(3) Incised wound '4 x 2 c.m. Scalp deep left occipital region of scalp.
(4) Incised wound 3 x 1 c.m. Left side of the neck.
(5) Incised wound 11 x 6 c.m. Muscle deep extending upto the second survical vertabrae of left side of neck.
(6) Incised wound 11 x 2-1/2 c.m. Front of neck below the crecoid cartilage.
(7) Incised wound 6 x 1 c.m. Skin deep left side of the neck above the supraclavical fossa.
(8) Incised wound 5 x 4 c.m. Muscle deep left upper arui.
(9) Contusion 10 x 2 c.m. Left upper arm below the 8th wound:
(10) Contusion 10 x 2 c.m. Left upper arm below the 9th wound.
(11) Incised wound 5 x 1 c.m. Left forearm.
(12) Incised wound 10 x 1/2 c.m. Right upper arm on the medial surfitce.
(13) Incised wound ;5 x 1-1/2 c.m. Right ulner side of hand.
(14) Contusion 1 x 1/2 c.m. Right shoulder.
' In his opinion all the injuries were ante-mortem. Injuries Nos. 9, 10 and 14 were caused by blunt weapon where as the rest were caused by sharp-edged weapon. In his opinion the dcath had occurred because of shock and httc.Morrhage caused by the injuries, which were sufficient to cause death in the ordinary course of nature.
5. The prosecution in support of its case produced twelve witnesses in all. Muhammad Ali, F.C. P.W.1 escorted the dead body of the deceased to the mortuary on 23-12-1983. Muhammad Yousuf, F.C.
P.W.2 received three parcels containing blood-stained hatchets and Toka. On 16-2-1984 for onward transmission to the Office of Chemical Examiner, which he deposited in the said offices on 18-2- 1984. Murrawat Hussain, P.W.3, was Muharrir, at Police Station Saddar, Gujranwala in March 1984. On 7-3-1984, he received a parcel containing Toka which he handed over to Muhammad Yousaf Foot Constable on 22-3-1984 for onward transmission Ghaus Ali, F.C. P.W.4 received warrant of arrest of Muhammad Naecm appellant which he could not execute, therefore, he received a proclamation which he affixed on the house of the accused. Muhammad Inayat, P.W.6 had witnessed the recoveries at the instance of all the accused while in custody. Muhammad Riaz, P.W.7 identified the dead body. The eye-witness account was furnished by Muhammad Khan and Muhammad Riaz P.Ws. 8 and 9, respectively. Mahmood Ahmed, A.S.I., P.W.10 had partly investigated the case. Sher Bakhsh, Inspector/S.H.O., Police Station Saddar, Gujranwala, P.W.11 had investigated the case and challaned the accused. Muhammad Hussain Shah, P.W.12 was posted at Police Station Saddar, Gujranwala and had received sealed parcels.
5. At the conclusion of the prosecution evidence the appellants were examined under section 342, Cr.P.C. Without oath wherein they refuted all the prosecution allegations and pleaded innocence. In answer to a question it was also asserted that the present case had been registered against them because of enmity, as 17/18 years earlier father of the first informant was murdered in which they did not support the version of the complainant, therefore, the accused mentioned in the F.I.R. In the said murder case were discharged. It was further asserted that the complainant side were desperate people and the appellants used to keep a check on their activities, therefore, the complainant side wanted to eliminate them.
' It is contended by learned counsel for the appellants that the prosecution has not been able to prove its case against the appellants at all. Submits that the learned trial Court had erred in law by relying upon the eye-witness account when the same had been disbelieved qua three acquitted co-accused. Submits that the occurrence was witnessed by the brother of the deceased only who had no business to be present at the spot and no independent person was cited as a witness though the area where the occurrence took place was inhabited. Contends that no reliance on the recoveries can be placed because Muhamamd Inayat P.W.6 was admittedly a stock witness. The contentions have been opposed by learned counsel for the State as well as learned counsel for the complainant. According to the learned counsel for the complainant, the case against the appellants was proved beyond any doubt. According to him, the eye-witness account can safely be relied upon as it was corroborated by the evidence of the recoveries as well as the motive qua the appellants.
' I have heard the learned counsel at length and gone through the evidence with their assistance.
The motive in the instant case is that eight Marlas of Shamlaat Deh was taken possession of by the complainant side on the one hand and Muhammad Amin, appellant, on the other jointly. They had also agreed to partition the said land equally once it had been levelled, but later on the appellant side backed out and retained the possession of the entire land. The prosecution in order to prove the motive had produced Muhammad Khan and Muhammad Riaz, P.Ws.8 and 9, respectively. Both of them asserted that the land in dispute was Shamlaat Deh. No documentary evidence about this has been brought except for the bare statements of the witnesses regarding the status of the land.
On the contrary, the appellants asserted that the land in question was not Shamlaat Deh but had been purchased by Muhammad Sharif, appellant from Sadiq Hussain Shah, D.W.2. The receipt Exh.D.C. Was also produced by said Sadiq Hussain Shah, D.W. The Investigating Officer also did not take into possession any document which could indicate that the land in question was Shamlaat Deb. Sadiq Hussain Shah, D.W.2 stated on oath that in the year 1981 he had sold the land in question for Rs,1,200 to Muhammad Sharif, appellant. He was cross-examined at length but nothing could be brought on the record to indicate that he was not the truthful witness. The site-plan Exh.P.M. Also indicated that a room on the land in dispute had been constructed. If the disputed land was jointly owned, there was no occasion for constructing a Kotha on the land which was yet to be partitioned.
This aspect clearly indicates that the story as set up by the prosecution is not very convincing.
Therefore, I hold that the motive has not been proved. The eye-witness account was furnished by Muhammad Khan and Muhammad Riaz, P.Ws.8 and 9, respectively. Both of them were stepbrothers of Muhammad Iqbal deceased. They gave a detailed account of the occurrence. Muhammad Khan also supported the F.I.R. Having been lodged by him. Both of them were cross-examined at length and during cross-examination they were confronted with material improvements which they had made from their earlier statements. They had earlier stated before the police that Muhammad Ameen gave eight injuries with a Toka, and thereafter Muhammad Sharif gave eight injuries on the person of the deceased with hatchet while in Court both of them were confronted with the improvements but could not give any plausible answer. The occurrence took place at 4 p.m. On 23-12-1983 and the reasons given by them for being present at the spot were that they were going to another village while following their brother Muhammad Iqbal who was going to the land in dispute for milking buffalo. According to them they were going to Roohiwala to see a buffalo which was purchased by Khurshid. It is strange that Khurshid had purchased the buffalo and thereafter they were going to see the same. Even otherwise also, during the month of December, at 4 p.m., it is almost evening time and there was no occasion to go to another village to see a buffalo when they would have reached there late in the evening. This clearly indicates that the story of going to another village to see buffalo which had already been purchased is an afterthought.
There is no explanation available on the record why Muhammad Khan P.W. Who was also a co- sharer of the land in dispute was spared and his younger brother alone was done to death.
According to the prosecution story Muhammad Khan was also a partner in the joint ownership of the. Shamlaat Dch on which a Kotha had been constructed jointly and the dispute was regarding the partitioning of the land. If Muhammad Khan P.W. Was present then he should have also been done to death or at least should have been given some injuries. According to the prosecution story Muhammad Khan and Muhammad Riaz alongwith two others had witnessed the occurrence yet no attempt whatsoever was made to rescue Muhammad Iqbal deceased from the clutches of the appellants or even tried to raise a Lalkara to desist the appellants from their design. The conduct of the witnesses is highly unnatural. The argument of learned counsel for the State that they were only two in number, therefore, out of fear they did not challenge the assailants is also incorrect because according to the F.I.R. They were four in number who had witnessed the occurrence out of which three were brothers of the deceased. In these circumstances I hold that the witnesses were not present at the spot. They have made material improvements in the statements before the Court.
Therefore, I hold that the learned trial Court has rightly given the benefit of doubt to the accused who had been acquitted. Similarly, the learned trial Court had rightly held that they could not be relied upon unless corroborated. He had sought corroboration from the motive as well as recoveries at the instance of the appellants. As far as the recoveries are concerned, I have considered and hold that the same are not proved. As the recoveries were effected from the appellants on 2-2-1984 whereas the occurrence took place on 23-12-1983 which means almost 1- 1/2 months after the occurrence. The recoveries were effected from the Kotha of the appellants.
Strangely enough the said recoveries were found stained with human blood when the appellants had ample time to do away with the stains as they were arrested on 25-1-1984 which is after more than a month of the occurrence. The sealed parcels of the said recoveries were deposited in the Malkhana on 2-2-1984 and the same were handed over to Muhammad Yousuf P.W. On 16-2-1984 for onward transmission yet the parcels were deposited in the concerned offices on 18-2-1984. The only explanation with regard to two days delay was that they were spent in obtaining dockets. This on the face of it is not convincing at all. If Muhammad Yousaf P.W. Could not deposit the parcels in the concerned offices then he should have redeposited them in the Malkhana for safe custody which was not done. This casts serious doubt. The aforesaid recoveries were witnessed by Muhammad Inayat P.W.6. He admitted that he generally joined the police investigation, this means that, he was a stock-witness. He was also not the resident of the village. In these circumstances, I hold that the learned trial Court rightly ruled out of consideration the statement of this witness and only relied upon the evidence of the Investigating Officer. A close scrutiny of the statement of Investigating Officer indicates that he did not conduct the investigation in a straightforward manner. The number of the F.I.R. Was missing on the inquest report. There was no indication how and when the F.I.R. Was sent from the police station and on which date. There was no mention in column 12 of the inquest report regarding the weapons of offence. These facts indicate serious lapse on the part of the Investigating Officer, therefore, it would not be safe to rely upon the statement of the Investigating Officer as far as the recoveries are concerned.
For what has been discussed above, I hold that the prosecution has not been able to prove the recoveries as well as the motive against the appellants. The eye-witness account is not free from doubt and the same cannot be relied upon E without corroboration which is missing in the present case. In these circumstances, while giving the benefit of doubt to the appellants, I accept the appeal and set aside the convictions and sentences. They shall be released from custody forthwith if not required in any other case.