KHALIL-UR-REHMAN RAMDAY, J.- Muhammad Ismail and his sister's husband, namely, Muhammad Inayat were tried by the learned Sessions Judge of Okara for the murder of one Nazir Ahmad.
2: Through a judgment dated 31.5.1989, both the said accused persons were found guilty by the learned trial Court and after being convicted U/Ss 302/34 P.P.C., each one of them was sentenced to suffer death and also to pay a fine of Rs. 10,000/- or to undergo two years R.I. In default of payment of the said fine. Half of this amount of fine, if recovered, was directed to be paid as compensation to the heirs of Nazir deceased.
3. Murder Reference No. 118/89 seeks confirmation of the above- mentioned sentences of death imposed on Muhammad Ismail and Muhammad Inayat who in turn challenged the above- mentioned conviction and sentences recorded against them, through Crl. A. No. 427/89.
4. Both these matters are being disposed of together through this single judgment.
5. It was one Muhammad Aslam, a brother of Nazir deceased who had conveyed the information of his brother's murder to the Inspector/S.H.O. Of Police Station, Saddar, Okara at about 2.00 p.m. On 28.6.1988 by alleging that his brother Nazir deceased was working as a mason for the construction of government quarters in the area of Chak No. 52/2-L.
6. He had further alleged that on 28.6.1988 he had taken the mid-day meals for his deceased brother at the place of his work but was informed that his deceased brother had gone to HAZRAT KARMANWALA alongwith Ismail and Inayat appellants for taking their meals.
7. Aslam complainant had further claimed that he sat down at his deceased brother's place of work and started waiting for the deceased to return and that shortly thereafter he found the deceased and the two appellants returning from HAZRAT KARMANWALA and proceeding towards the DERA of one Ijaz Ahmad Arain whereafter instead of coming towards their place of work, all the three proceeded/towards the DERA of Muhammad Sharif Jat.
8. The complainant had further reported that he went towards the deceased alongwith the meals that he was carrying when he suddenly heard alarm from the maize crop fields of the said Muhammad Sharif; that he rushed towards the spot and found that Ismail and Inayat appellants were inflicting Churri blows on the person of Nazir deceased.
9. The complainant further alleged that in the meantime, Abdul Sattar (PW-8) and Mushtaq DW-1) had also reached the spot and had also witnessed the occurrence and further that three of them who tried to intervene to rescue Nazir deceased had been threatened with dire consequences against such an intervention.
10. Disclosing the motive for the murder in question, Aslam complainant had stated that about 12/13 days prior to the occurrence in question, Nazir deceased had an altercation with the two appellants on account of some money transaction and that although the complainant had affected a compromise between them yet it was on account of the same grievance that the two convicts had done the deceased to death.
11. The defence of the two convicts, as pleaded through their statements U/S 324 Cr.P.C., was that Nazir deceased was on visiting terms with Ismail appellant and had got some photographs of a sister of Ismail appellant who had been given in NIKAH to Inayat appellant. It had been further claimed that a dispute had ensued between the deceased and Ismail appellant on the said account and that the two convicts hd been falsely implicated in the occurrence in question on account of suspicion.
12. It may be mentioned here that Muhammad Mushtaq who had been claimed through the F.I.R, as an eye-witness of the occurrence in question and who had been given-up at the trial as having been won over, was produced by the defence as D.W.-l and had claimed that he had found a dead body lying in a field of maize crop near HAZRAT KARMANWALA: that he had gone and reported about the same at the police station; that after reaching the spot the police had made announcements on loud speakers regarding the presence of an un-identified dead body and that it was thereafter that Aslam complainant and his mother had reached the spot and had identified the dead body as being that of Nazir deceased.
13. To the same effect was the statement of Muhammad Ashfaq F.C. (PW-5) who claimed that on receiving information regarding the presence of a dead body, he reached the spot alongwith other police officials at about 8.00/9.00 a.m. And that it was in pursuance of announcements made on loud speaker that an old woman and her son reached the spot and identified the said dead body as being of Nazir deceased and further that after about two hours of proceedings by the police at the spot, he took the dead body to the mortuary where the postmortem examination of the same was conducted the same day at about 2.00 p.m.
14. Muhammad Aslam complainant who is brother of Nazir deceased had claimed to have seen the occurrence on account of his having taken the mid-day meals for Nazir deceased at the place of Nazir deceased's work.
15. It has come on record that the two brothers did not live together. It was also admitted by Aslam complainant that he was living with his inlaws during the days of occurrence.
16. In the circumstances, the claim of Aslam complainant who was not living with his deceased brother and who was himself living on his inlaws, regarding his taking the meals for his deceased brother is not a claim which could be reasonably believable. It is common knowledge that the workers such as the deceased usually take their meals before going to work or else they carry their mid-day meals with them, in any case even if some body was to take the meals for the deceased, it would be obviously some-one from his own house and not his complainant brother who was living separately in the house of his inlaws and more so when Aslam complainant would not even know whether Nazir deceased required any lunch at his place of work. The claim of the complainant becomes further doubtful because of his admission that during the days of occurrence he had sustained injuries in his eyes and was taking rest in his house and had not even gone for his own work.
17. In view of the facts above noticed, the presence of Aslam complainant at the place of occurrence at the relevant time becomes a doubtful affair and the same thus does not inspire confidence.
18. Similar is the position of Abdul Sattar (P.W.-8) whose aunt is a cousin of the deceased. He is also a chance witness and has no unimpeachable reason for his presence at the place of occurrence at the relevant time.
19. According to the prosecution, the occurrence in question had taken place at about 12 noon on 28.6.1988 at a place which was only a few miles away from Okara City, yet the post-mortem examination had been conducted at 2.00 p.m., the next day i.e on 29,6.1988. This rather inordinate delay in the holding of the post-mortem examination also casts serious doubts on the ocular testimony and in fact lends support to the material available on record suggesting that the occurrence in question was a blind murder and it was some-times later that the dead body of Nazir deceased had been spotted in a field and was thereafter identified being the body of Nazir deceased.
20. Except a bald claim by the complainant regarding a dispute between the deceased and the two appellants on account of some money matter, nothing exists on record to substantiate this assertion. The motive becomes further unbelievable because of the admissions of the complainant that he had patched-up the dispute between the parties and that the deceased had been visiting the house of the appellants after the said compromise.
21. The only other piece of evidence which could have offered corroboration to the ocular testimony is the recovery of a blood stained dagger and a blood stained Churri at the instance of Inayat and Ismail appellants respectively. The said recoveries were effectee almost 18 days after the occurrence in question from the places which were easily accessible to every one. In the circumstances, even the evidence of these recoveries fall short of the kind of corroboration which could be sufficient to make the eye-witness account believable.
22. This appreciation of the evidence available on record renders it unsafe to sustain the conviction of the two appellants on the basis of the material available on record.
23. Consequently Cr.A. No. 427/89 filed by Ismail and Inayat appellants is allowed and the conviction and sentences recorded against the said appellants through the impugned judgment dated 31.5.1989 of the learned Sessions Judge of Okara are set-aside. The two are acquitted of the charge levelled against them.
24. They shall be set at liberty forthwith if not required to be detained in any other case.
25. M.R.No. 118/89 is answered in the above terms.