' KHIZAR HAYAT, J.---Pervaiz alias Peja son of Muhammad Hussain, aged 24/25 years, was tried alongwith Muhammad Hayat, Muhammad Yaqoob and Yousaf Iqbal, for the murder of Shakeel Ahmad (deceased) on 5-6-1984 at 10-30 p.m. In his house in village Pacca Garha, District Sialkot, by learned Additional Sessions Judge, Sialkot. Learned trial Court vide judgment, dated 8-12-1986 convicted Pervaiz alias Peja (appellant) alone under section 302, P.P.C. And sentenced him to death and a fine of Rs,5,000 or in default of payment of fine to undergo two years, S.I. And acquitted the rest of the co-accused giving them benefit of doubt. It was further directed that a sum of Rs,10,000 shall be paid by the appellant, by way of compensation, to the legal heirs of Shakeel Ahmad (deceased) or in default thereof to undergo 6 months' Si
2. The convict has appealed. On the other hand Abdul Hameed, complainant in this case (father of Shakeel Ahmad deceased) has filed a Criminal Revision (No,334/87) against the acquittal of Muhammad Hayat, Muhammad Yagoob and Yousaf Iqbal accused, praying that their re-trial be ordered. We also have before us a reference under section 374, Cr.P.C. For confirming the death sentence awarded to the appellant by the learned trial Court. We propose to dispose of the appeal, the murder reference and the revision petition by this single judgment which arise from the same judgment.
3. According to the prosecution, on the fateful night at 10/10-30 p.m. Abdul Hameed, complainant (P,W.11), was sleeping on the rooftop of his house alongwith his family members when somebody rang his call bell. He looked in the street and saw Pervaiz alias Peja (appellant) standing there who called him down saying that he had some work with him. Abdul Hameed, complainant, alongwith his wife Mst. Razia Bano and his son Shakeel Ahmad (deceased) came downstairs and opened the door of their Baithak. At this, Pervaiz (appellant) and Yousaf Iqbal, co-accused, each armed with a Chhuri, Muhammad Yaqoob armed with a hockey and Muhammad Hayat empty handed, entered the Baithak. Muhammad Hayat accused addressed Abdul Hameed that they had come to settle accounts with him and would abduct his daughteRs, The complainant inquired from them as to what was his fault whereupon Yousaf Iqbal attacked him with Chhuri but the complainant having retreated avoided the blow. Shakeel Ahmad (deceased) intervened whom Muhammad Hayat accused took in his grips while Pervaiz alias Peja (appellant) inflicted a Chhuri blow in his chest. In the meantime Khalil Ahmad (P.W.13), another son of the complainant, came there and tried to save Shakeel Ahmad (deceased) but Muhammad Yaqoob accused gave him a hockey blow on his right leg. Thereafter all the four accused ran away raising Lalkaras. The occurrence was witnessed also by Abid Islam (P.W.12), Altaf Hussain and Mst. Razia (P.Ws. Not produced). Shakeel Ahmad (deceased) was removed to the hospital for treatment but he breathed his last before any medical aid could be provided to him. The motive for the offence was stated to be that about a year before the occurrence, Pervaiz, appellant's brother Farooq and Yousaf Iqbal (the acquitted accused) had quarrelled with Shakeel Ahmad (deceased) at the time of latter's- marriage. A case under sections 365/452, P.P.C. Was registered regarding that incident against the complainant and his two sons (Shakeel and Khalil) who were acquitted a month before the occurrence, which was resented by the accused party, hence this occurrence.
4. Javed Iqbal, A.S.I. (P.W.16) learning about the incident reached the hospital and recorded statement (Exh.P.B.) of Abdul Hameed, complainant at 11-20 p.m. And sent it to the police station Sadar Sialkot where formal F.I.R. (Exh.P.D./1) was recorded at 11-50 p.m. The A.S.I. (P.W.16) then prepared inquest report (Exh.P.H.) of the deceased and entrusted the dead body to Bashir Constable for taking and getting it post-mortemed. Khalil, P.W., appeared before him at 11-25 p.m.
Whom he sent for medical examination after preparing his injury statement (Exh.P.N.). He then handed over the investigation to Rana Muhammad Sarwar, S.I. (P.W. 15) who visited the scene of occurrence on 6-6-1984 and secured blood-stained earth from there vide memo Exh.P.F. He sent for the eye-witnesses and recorded their statements the following day. He arrested Pervaiz (appellant) on 4-9-1984 and recovered blood-stained Chhuri (P.3) from his house at his pointation on 15-9-1984 and secured it under memo Exh.P.E. Blood-stained earth removed from the Baithak of the deceased and the Chhuri (P.3) recovered from the appellant were found as stained with human blood vide Chemical Examiner's reports (Exh.P.K. And Exh.P.L.) and that of Serologist (Exh.P.M.
And P.N.). Yousaf Iqbal, Muhammad Hayat and Muhammad Yaqoob, accused (since acquitted) were declared innocent during the investigation and the appellant was challaned.
5. Dr. Syed Sajid Ali (P.W.1) who conducted Post-Mortem Examination on the dead body of Shakeel Ahmad (deceased) at 10-00 a.m. On 6-6-1984 found on it an incised wound 1-1/2" x 1/2" on left side of opigestric area of abdomen. He observed that underneath the injury stomach was cut and peritonium cavity was filled with blood and stomach contents. The injury was ante-mortem and caused . With sharp-edged weapon. According to the doctor it was grievous, dangerous to life and sufficient to cause death in the ordinary course of nature. The death occurred instantaneously as a result of the injury while Post-Mortem Examination was conducted about 10/12 hours after the death of the deceased.
6. Khalil Ahmad (P.W.13) was examined by Dr. Muhammad Saleem (P.W.3) on 6-6-1984 at 1-45 a.m.
Who noted on his person an abrasion 2-1/2 c.m. x 1/2 c.m. On the front of right leg in lower part which was of a duration of within four houRs, He opined the injury to be simple in nature and caused with blunt weapon. This injury according to the doctor could be the result of a fall on the ground or by friction against any hard surface.
7. At the trial the prosecution examined 16 witnesses in support of its case. Of them Abdul Hameed, complainant (P.W.11), Abid Islam (P.W.12) and Khalil Ahmad (P.W.13) narrated the occurrence. Abdul Hameed and Khalil Ahmad (P.Ws.11 and 13) also stated about the motive while Abdur Raoof (P.W.8), a cousin of the mother of the deceased stated about the recovery of blood-stained Chhuri (P.3) from the appellant. The injuries of Khalil Ahmad, P.W., and that of Shakeel Ahmad (deceased) were proved by doctors, Syed Sajid Ali (P.W.1) and Muhammad Saleem (P.W.3).
8. When examined under section 342, Cr.P.C. The appellant as well as the acquitted accused denied the allegations. Pervaiz (appellant) stated that the deceased was done to death in darkness in some street and that he was involved in the case by the police in collusion with complainant due to enmity. He had neither himself appeared under section 340(2), Cr.P.C. Nor did he produce any other defence evidence to disprove the allegations.
9. Learned trial Court, on consideration of the, material on record, did not believe that Chhuri (P.W.3) which was recovered months after of the occurrence, was having bloodstains on it, and therefore, he did not use this recovery as corroborative evidence against the appellant. It further found the presence of Abid Islam (P.W.12), cited by the prosecution as an eye-witness to be doubtful, observing that his version that at the time of occurrence he happened to be going to the house of one Muhammad Khan Gujjar for getting a sum of Rs,500 for giving the same to one Iltaf who had visited him for borrowing money and that in the way he had seen the occurrence by standing in the street in front of the door of the Baithak of the house of the deceased, was not convicing. He is a person owning four cement agencies, and also has a telephone at his residence, therefore, it is not believable that he could not manage such a paltry amount from his own house for Iltaf. It was also observed that his conduct in having returned home from the place of occurrence, and gone to sleep instead of informing the police about this occurrence was highly unnatural. The learned trial Court however partly believed ocular account furnished by Abdul Hameed, complainant (P.W.11) and his son Khalil Ahmad (P.W.12) against the appellant and convicted and sentenced him but disbelieved him qua Muhammad Yaqoob, Muhammad Hayat and Yousaf Iqbal and acquitted them observing that participation of Muhammad Hayat was not probable as he was a week and old person of 70/75 years of age; that no injury whatsoever was attributed to Yousaf Iqbal who was allegedly carrying a Chhurri at the time of occurrence and no such weapon was recovered from him either; and that the abrasion on the calf of Khalil, P.W., said to have been caused with hockey blow by Yaqoob accused was not free from doubt particularly because it was insignificant simple abrasion.
10. Learned counsel appearing on behalf of the appellants has argued that in a room, which is said to be 8' x 10' wide, four accused persons duly armed would not be able to use their weapons against four P.Ws. Present there besides the articles of furniture lying there, therefore, it was doubtful that occurrence had taken place in the Baithak as alleged by the prosecution rather the deceased seems to have been injured somewhere else; that the eye-witnesses in this case are interested as they apart from being related to the deceased are also inimical towards the accused, therefore, their evidence cannot be acted upon without any independent corroboration which is badly wanting in this case; that the ocular testimony which has been disbelieved qua three acquitted co-accused cannot be safely relied upon against the fourth accused. It is pertinent to note that learned trial Court while acquitting Yaqoob found that he had not injured Khalil (P.W.) which means both P.Ws.11 and 13 had definitely perjured themselves by having implicated Yaqoob (since acquitted), hence the appellant's conviction on such unreliable evidence cannot be sustained. Learned counsel appearing on behalf of the State as well as for the complainant have however defended the impugned judgment but they have not seriously pressed the Criminal Revision which is still at motion stage.
11. We agree with the finding of the learned trial Court that the Chhuri (P.3) said to have been recovered on 15-9-1984 i.e, after three months of the occurrence from the appellant would not be having bloodstains on it and was I therefore rightly ignored.
12. Pervaiz (appellant) is convicted on the basis of ocular testimony furnished by Abdul Hameed (P.W.11) and Khalil Ahmad (P.W. 13), the father and brother of the deceased, respectively. The question is whether their evidence can be safely relied upon for sustaining conviction of the appellant on capital charge? Answer to this question would also decide the fate of the Criminal Revision filed against acquittal of co-accused of the appellant.
13. It is in evidence that a year before the occurrence there took place a quarrel between the complainant party and the appellant's brother Farooq etc. Wherein the complainant and his sons Shakeel (deceased) and Khalil, P.W., were challaned and a few days before the occurrence they were acquitted from that case. It of course constitutes motive on the part of the accused party against the complainant party but at the same time it is hard to believe that in presence of such a background of enmity and mistrust, Abdul Hameed (complainant) would readily come down in response to the call of the appellant, made late at night, and then open "Baithak" for him. If the complainant had at all reposed confidence in him then why should his two sons and wife come to the "Baithak" with him when complainant alone had been called. Again if four accused persons armed with deadly weapons entered the "Baithak" of the complainant with intention to launch attack on inmates of the house then it was not possible for them to escape unhurt excepting the deceased who suffered solitary stab wound. Their version that three other witnesses saw the occurrence standing at the door of their Baithak too seems incorrect because if they were there then they would have attempted to capture the accused. Both Abdul Hameed and Khalil Ahmad, P.Ws., insisted that Abid Islam (P.W.) was present at the time of occurrence but learned trial Court for good reasons found him to be not present. The P.Ws. Implicated Yaqoob, Hayat and Yousaf Iqbal who have been found by the trial Court, of course, for cogent reasons to have not taken part in the attack.
14. It is noteworthy that Khalil Ahmad, P.W., who claimed to have suffered injury in the transaction did not accompany his dying brother (Shakeel deceased) to the hospital. He admitted that he stayed at home and went to the hospital two hours after the occurrence. It means that either he was not present at home at the relevant time or the deceased was injured at a place other than his house. Learned trial Court's finding that he had self-suffered the injury under some advice seems to be correct. Evidence of Abdul Hameed, complainant also is not free from doubt. According to him there were four assailants and he was attacked by Yousaf Iqbal with a Chhuri but he, by retreating, had avoided the blow and that Yousaf Iqbal did not repeat the blow. This is strange. If the accused party went there, duly armed, in order to settle the account themselves as the complainant and his sons had been acquitted from the case lodged by them, they would have given good thrashing to all those available to them in the "Baithak" and would have not stopped at causing solitary injury to the deceased. We would also not believe that despite deceased's father, mother and brother being present at the time of occurrence, they put up no resistance to the accused party. They would have at least clung fast to the appellant, the main striker, without caring for their life, to save the deceased. The complainant party is neither docile nor cowardly as it is in evidence that appellant's brother Farooq has been allegedly murdered by Hameed and Khalil, P.Ws., and they were facing trial in that case. Therefore, we have no doubt in our minds that if the occurrence had taken place in the Baithak of the complainant and in presence of the P.Ws., whether the appellant was alone or the acquitted accused were with him then they would have not returned safe as has been described by prosecution.
14-A. For the above discussion, we find that the occurrence had neither taken place in the manner described by the P.Ws. Nor were the P.Ws. Present when the deceased had suffered the fatal injury.
Needless to say that ocular testimony which had been disbelieved qua three accused cannot be relied upon against fourth accused/appellant, particularly, when no corroboration of unimpeachable character is forthcoming against him. Consequently we would allow this appeal, set aside the conviction and sentence of the appellant and acquit him. Death sentence is not confirmed.
15. The appellant was acquitted by our short order dated 29-8-1989 and these are our reasons for the same.