1. ' Appellants, Qabil, his father Suleman, Sain Bux, Naseer, his brother Wazir, Ramzan, Hakim Ali and his brother Allan were charged under sections 364, 148, 149, P.P.C. And tried before the learned IInd Additional Sessions Judge, Kandhkot, who has convicted them as follows:-
(a) Appellants Hakim Ali, Allan and Suleman
(i) Under section 148/149, P.P.C. R.I. For two years and fine of Rs,3,000 each, in default further R.I. For three months.
(ii) Under section 364/149, P.P.C. Life imprisonment, and fine of Rs,10,000 each, in default further R.I.
2. For one year.
(b) Appellants Sain Bux. Naseer, Ramzan Qabil and Wazeer; ' R.I. For one year and fine of Rs,1,000 each, in default further R.I. For one month.
3. ' R.I. For ten years and fine of Rs,5,000 each, in default further R.I. For six months.
4. ' The above sentences have been ordered to run concurrently.
5. ' The brief facts giving rise to the present appeal are that on 14-5-1986, complainant Ghulam Qadir lodged a report at Police Station Ghouspur, District Jacobabad inter alia alleging therein that:-- "I have taken Government land situated in Deh Nar on lease, which I cultivate myself. On the above land I have dispute with Hakim Ali and other Lolais and they have been issuing threats that I should give this land to them but I have been refusing. Hakim Ali, Allan and others have been threatening me that if I do not leave the said land, they will see me. My son, Muhammad Yousuf resides with me in the said house and cultivates the land. At about 8-00 a.m. In the morning, while I and my sons namely Muhammad Yousuf and Arsalan were sitting in the house when someone gave call from outside. On which I, my sons Muhammad Yousuf and Arsalan got up and went outside the house.
6. We saw accused, namely, (1) Hakim Ali, (2) Allan both sons of Dosoo, (3) Suleman son of Qabil, (4)
7. Sain Bux son of Ellahi Bux, (6) Naseer son of Sadoro, (6) Ramzan son of Bhagio, (7) Qabil son of Suleman, (8) Wazir son of Sadoro all Lolais by caste residents of Deh Nasir, Taluka Kandhkot, out of which Hakim Ali, Allan and Suleman were armed with guns, accused Sain Bux, Nasir and Ramzan were armed with hatchets while Qabil and Wazir were armed with Lathis. Accused Hakim Ali and Allan gave `Hakals' and observed that they had asked me to leave the lease land and hand over the same to them, but we refused and, therefore, they would teach me a lesson. On saying so, all the accused took my son Muhammad Yousuf in their possession and gave him beating. They asked us to be careful and not to approach them, and they would kill Muhammad Yousuf. Due to fear, we did not go near them. Thereafter accused dragged and took away Muhammad Yousuf towards east by giving him hatchet and Lathis blows and tiring. We made search for Muhammad Yousuf but could not find him. I suspect that due to dispute over land the accused have kidnapped my son Muhammad Yousuf with intention to murder him."
8. The above F.LR. Was recorded by A.S.I. Muhammad Iqbal Niazi, Incharge Police Station, Ghouspur and F.I.R. Has been produced as Exh.12. Thereafter A.S.I. Muhammad Iqbal Niazi visited the place of Wardat in presence of Mashirs Bijar and Shall Muhammad and prepared such Mashirnama which has been produced as Exh.15. On 26-5-1986, he arrested accused Suleman, Qabil, Ramzan, Wazir, Sain Bux and Nasir in presence of the same Mashirs and prepared such Mashirnama which has been produced as Exh.16. He secured Lathis from accused Qabil and Wazir and hatchets from accused, Suleman, Ramzan, Sain Bux and Nasir under Mashirnama which has been produced as Exh.17. He then visited the place on the bank of River Indus where the accused are alleged to have thrown the dead body of Muhammad Yousuf and prepared such Mashirnama in presence of the same Mashirs, and the Mashirnama has been produced as Exh.18. He also recorded the statement of P.W. Arsalan on 14-5-1986, he then challaned the accused in Court showing accused Hakim Ali and Allan as absconders. However, the record shows that accused Hakim Ali and Allan were granted bail before arrest by this Court on 3-11-1986 and thereafter they appeared before the trial Court.
9. ' A formal charge was framed against the accused, to which they pleaded not guilty.
10. ' At the trial prosecution examined complainant Ghulam Qadir P.W.1, he has produced the F.I.R. As Exh.12, Arsalan F.W.2, an eye-witness and son of complainant, Mashir Bijar he has produced Mashirnama of place of Wardat as Exh.15, Mashirnama of arrest of accused Qabil, Suleman, Ramzan, Sain Bux, Wazir and Nasir as Exh.16. Mashirnama of production of Lathis and hatchets by accused as Exh.17, Mashirnama of the place on the bank of river Indus from where it is said that accused had thrown the dead body of Muhammad Yousuf in the river, as Exh.18, A.S.I. Muhammad Iqbal Niazi, P.W.4, he has carried on the investigation of the case and had challaned the accused.
11. ' After close of the prosecution case, the statements of the appellants were recorded under section 342, Cr.P.C. In which they denied the allegations. They also made statement on oath as envisaged by section 340(2), Cr.P.C. In which they have denied the allegations and have further stated that they have been implicated falsely due to enmity over land. However, they did not examine any witness in their defence.
12. ' After taking into consideration the evidence produced by the prosecution and the statements given by the appellants on oath, the learned trial Judge while relying upon the ocular evidence, has convicted the appellants vide judgment dated 18th September, 1987, and the present appeal is directed against the above judgment of conviction.
13. ' The evidence against the appellants consists of ocular evidence of complainant and his son Arsalan, motive and pointing out of place on the bank of River Indus from where it is alleged that the accused had thrown Muhammad Yousuf in river.
14. ' As far as ocular evidence was concerned, complainant, Ghulam Qadir and his son Arsalan have testified that all the eight appellants had come to their house in the morning at 8-00 a.m. And had kidnapped Muhammad Yousuf at the point of deadly weapons, That the appellants/accused threatened them and, therefore, due to fear they did not raise cries nor chased the accused. That after the accused left they made search for Muhammad Yousuf but could not find him and thereafter complainant Ghulam Qadir went and lodged the report.
15. ' The evidence of Mashir Bijar shows that he had acted as Mashir of Wardat and he has produced Mashirnama as Exh.15, and arrest of appellants except Hakim Ali and Allan and he has produced the Mashirnama as Exh.16. According to him the accused had produced hatchets and Lathis before the police and such Mashirnama was prepared in his presence which has been produced as Exh.17.
16. The police had visited the place from where the dead body of Muhammad Yousuf was thrown by the accused in the river. This place was shown to police by accused themselves, and the police prepared such Mashirnama, which he has produced as Exh.18.
17. ' A.S.I.P. Had recorded the F.I.R. And carried on investigation as mentioned in the earlier part of this judgment.
18. ' I have heard Mr. Abdul Hafeez Pirzada, learned counsel appearing for the appellants, Mr. A.K. Jatoi, learned counsel appearing for the State; and have gone through the R&P of the case.
19. ' It has been contended by Mr. Abdul Hafeez Pirzada, learned counsel appearing for the appellants that there was long-standing enmity between the parties and the ocular evidence was inimical, interested, contradictory and unreliable, and the learned trial Judge has erred in relying upon the same. That the motive was double-edged weapon and it could not be used as corroborative evidence. It was further contended that the evidence of pointing out the place on the bank of river from where it is alleged that the accused had thrown Muhammad Yousuf in the river was rightly discarded by the learned trial Judge. That there was no other evidence to corroborate the evidence of complainant and his son Arsalan and, therefore, no reliance could be placed on their evidence, especially when the F.I.R. Was belated and people of different caste had come to the place of Wardat but they were not examined.
20. ' Mr. A.K. Jatoi, learned counsel appearing for the State has contended that no doubt the complainant and his son had strained relations with the accused but that could not be reason for exonerating actual culprits and implicating the present appellants. He has further contended that the police had spoiled the case but in spite of that, the evidence of complainant and his son was reliable and the appellants were rightly convicted.
21. ' I have considered the contentions of the learned counsel. It is admitted by both the parties that there was a long-standing dispute between the parties over the lease of Government land. It is also an admitted position that the complainant is father of victim Muhammad Yousuf while P.W.
22. Arsalan is his brother. Unfortunately, the dead body of Muhammad Yousuf has not been recovered.
23. According to the complainant, the dispute between him and the appellants over land had been going on for the last ten years before the incident. There is nothing in the evidence of the complainant or his son Arsalan that any of the appellants attacked the complainant or any of his sons during the intervening period of ten years. There is also nothing on record to show that there was some immediate cause for the appellants to kidnap the son of the complainant. The incident is alleged to have taken place at 8-00 a.m. And the report was lodged at 2-00 p.m. The distance between the place of Wardat and police station was only four kilometres. The explanation of the complainant that he and his son went in search of Muhammad Yousuf and when they were unable to find him, the complainant went and lodged his report appears to be absurd. Inasmuch as if they had seen the appellants taking away Muhammad Yousuf and the appellants had threatened that they will commit murder of Muhammad Yousuf, therefore, there was no reason for the complainant and P.W. Arsalan to waste time in searching for Muhammad Yousuf. On the contrary if they had seen the incident they would have immediately gone to the police station so that the police could chase the accused and rescue Muhammad Yousuf from their clutches. The evidence of P.W.
24. Arsalan shows that he had gone with the complainant to police station and left the place of Wardat after 2/3 minutes of the departure of the accused. It further shows that they took more than half an hour to reach at Police Station Ghouspur.
(1) In the case of Nura v. The State PLD 1966 (W.P.) Lah. 383; wherein the murder was committed at 3-30 or 4-00 p.m. But the F.I.R. Was lodged at police station (5 miles away) at 9-45 p.m. a Division Bench of the Lahore High Court was pleased to observe that-- "The fact shows that there has been inordinate delay in lodging of the report at the police_ station and, therefore, the possibility of falsely charging the appellant for murder of the deceased cannot be ruled out."
(2) In the case of Ghuiam Sikandar and others v. Mamraz Khan and 2 others PLD 1985 SC 11; it was observed by their Lordships of the Supreme Court that:-- "When the witness is clearly enimical witness and so the most likely person to have falsely implicated one or the other accused, therefore, it was absolutely essential to seek corroboration against each one of them."
25. ' In the present case two important factors were pointed out by Mr. Abdul Hafeez Pirzada, learned counsel appearing for the appellant; firstly, that it has been admitted by the complainant in cross- examination that he had informed his Nekmard Sardar Khan Muhammadani about this incident but he has not been examined. That P.W. Arsalan has admitted that after the departure of the accused, the other persons of surrounding area had assembled at Wardat and they had narrated the facts of the incident to them, and had also disclosed the names of the accused to them but none of them has been examined as witnesses.
(3) In the case of Muhammad Sharif v. Tahirur Rehman and 3 others 1972 SCMR 144 wherein the prosecution had alleged that large number of persons had gathered at the place of occurrence but none of them was produced as witness in support of the prosecution case. The High Court while giving benefit of doubt to the accused held that:-- "No implicit reliance could be placed on evidence of interested eyewitnesses in the absence of corroboration." ' and the accused was acquitted. The complainant filed acquittal appeal but their Lordships of the Supreme Court agreed with the conclusion of the High Court and the appeal was dismissed.
26. ' There is another aspect of this case which could not be overruled i,e, the conduct of the complainant and P.W. Arsalan. Admittedly, the complainant is father of Muhammad Yousuf while Arsalan was his brother. They neither chased the appellant nor it is alleged by the complainant that they had raised cries to attract the neighbours. According to F.I.R. The appellants/accused took away Muhammad Yousuf while giving him hatchet and Lathi blows whereas according to the complainant in Court, the accused had dragged and taken away Muhammad Yousuf by giving him blows with the butts of the guns. It is possible that Muhammad Yousuf might have left his house on his own or might have left the house due to annoyance with the complainant and P.W.
27. Arsalan or even he may have been missing and since the relations between the parties were strained, the possibility of concoction and implication of the appellants due to suspicions cannot be ruled out.
(4) In the case of Lashkari and 4 others v. The State PLD 1981 Kar. 1; it was observed by a Division Bench of this Court that:-- "Where witnesses are deeply interested and enimical to the appellants, rule of caution which has virtually ripened into a rule of law requires that their testimony cannot be accepted without corroboration for the reason that false implication is not very rare in this country."
28. ' It was further observed that:-- "Motive is just a second name of enmity and in relying upon such motive which is born of enmity trying Judge followed a wrong process of appreciation of evidence."
(5) In the case of Rasool Bux and another v. The State 1980 SCMR 225; it was observed by their Lordships of the Supreme Court that:-- "When a corroboration of interested evidence is required, it must come from the independent source. When the motive which is used as corroborative evidence comes from the mouth of the same witness whose evidence required corroboration, the motive could not be used as corroborative evidence."
29. In view of the above factual as well as legal position, I am of the considered view that the prosecution had failed to prove its case against the appellant beyond any reasonable doubt, and the learned trial Judge has erred in convicting the appellants on interested and ocular testimony. I, therefore, allow this appeal, set aside the convictions and sentences of the appellants and they are acquitted of the charges. They shall be released forthwith if not required in any other case.
30. ' I had decided the above appeal on 10-1-1990 by a short order, and these are the reasons for the same.