RAJA AFRASIAB KHAN, J:---- Shabbir Hussain and Waqar Haider sons of Nazir Hussain were convicted by the learned Sessions Judge, Sheikhupura on 12-12-1985 under section 302/34, P.P.C.
For committing the murder of Ghulam Hussain. Shabbir Hussain was sentenced to death with a fine of Rs.4,000 or in default thereof to suffer R.I. For one year while Waqar Haider was sentenced to imprisonment for life plus a fine of Rs.4,000 or in default thereof to suffer further R.I. For one year.
The fine amount, if recovered, was directed to be paid to the legal heirs of the deceased as compensation. The convicts have challenged their conviction and sentence by filing a joint appeal (Cr.A. No.768 of 1985) before this Court while a Reference (M.R. No.52 of 1986) has been sent by the learned trial Court under section 374, Cr.P.C. For confirmation of the death sentence. We propose to dispose of both the matters together by this judgment.
2. According to case, of the prosecution, Fazal Din son of Umar Din was engaged in carpet business.
Shabbir Hussain was a vagabond and used to stand in the Mohallah just close to the inhabited houses. About 5/6 days ago, Ghulam Hussain (deceased) asked Shabbir Hussain not to stand in the Mohallah which resulted in the exchange of abuses between them. However, the matter was patched up. On 6-10-1982 at about 9-00 a.m., Fazal Din, complainant, his son Ghulam Hussain, deceased, and Taj Din son of Khushi Muhammad, his nephew, came to Sangla Hill Town to sell carpets. They went to Saddique Hotel on Railway Road in order to take tea. Ghulam Hussain deceased' was standing at the corner of the street near that Hotel. Shabbir Hussain armed with a Khanjar, and his brother Waqar Ahmad empty-handed came there. Both of them declared that they had come to take revenge from Ghulam Hussain for giving them abuses. Waqar Ahmad held Ghulam Hussain and dropped him on the ground. He placed his foot on the neck of Ghulam Hussain whereupon Shabbir Hussain gave a Khanjar blow which landed on his armpit. Blood started coming out of the injury. Fazal Din and Taj Din tried to apprehend Shabbir Hussain and Waqar Ahmed but they ran away fiom the place of occurrence with the weapon. On alarm, people of the locality gathered at the spot. In an injured condition, Ghulam Hussain was taken to Civil Hospital, Sangla Hill by Fazal Din and Taj Din. However, on the wad he expired on account of his injuries. Leaving Taj Din to guard the dead body of Ghulam Hussain, Fazal Din left for the police station. Muhammad Ibraheem, A.S.I. Met him in the way who recorded his statement Exh.P.B. On the basis of his statement Exh.P.B. Formal F.I.R. Exh.P.B./1 was recorded by Zafar Mahmood, Muharrar Head Constable P.W.2 on 6-10-1982 at 9-45 a.m.
3. Muhammad Ibraheem S.I. P.W.7 investigated the case. He visited the spot and thereafter went to Civil Hospital, Sangla Hill where the dead body of Ghulam Hussain was lying. He prepared the inquest report Exh.P.F. He sent the dead body for post-mortem examination under the escort of Inayat Ullah F.C. No.371 and Abdul Aziz F.C. No.15. Blood-stained earth was taken into possession by him and was kept in a sealed parcel vide memo. Exh.P.C. Statements of the witnesses were recorded by the witness under section 161, Cr.P.C. He also recorded the supplementary statement of Fazal Din. The witness deposed that at about 1-30 p.m. Inspector Police came to the spot and took over the investigation from him. He, however, verified his investigation. The witness conceded in cross-examination that name of Manzoor Ahmad P.W. Did not figure in the statement Exh.P.B. Of the complainant. He also recorded the statements of Muhammad Shafi, Ghulam Sarwar, Siddique and Ramzan, shopkeepers of the locality where the occurrence had taken place. He also recorded the statement of Siddique, the proprietor of the Hotel where the complainant and the deceased were sitting at the time of occurrence. He conceded that he did not cite these persons as P.Ws. Qurban Ali on 6-10-1982 took into possession last-worn clothes of the deceased Shirt P.1, Shalwar P.2, Bunyan P.3, Safa P.4, all blood-stained, vide memo. Exh.P.C. He arrested the accused on 9-10-1982.
On 10-10-1982 Shabbir Hussain while in custody led to the recovery of blood-stained Chhuri P.5 which was taken into possession vide memo. Exh.P.E. Report of the Chemical Examiner dated 25-10- 1982 Exh.P.H. On earth and Chhuri was positive. However, the aforesaid articles were not sent to Serologist for determination of the origin of blood.
4. Dr. Rafique Ahmad Chaudhry, M.S., D.H.Q. Hospital, Rajanpur P.W.8 conducted the post-mortem examination upon the dead body of Ghulam Hussain on 6-10-1982 at 3-45 p.m., He found the following injuries on it:--
(1) An incised stab wound 3 c.m. x 1 c.m. x 6 c.m. On the left armpit.
(2) A bruise 4 c.m. x 2 c.m. Below left eye.
(3) An abrasion 1 c.m. x 1-1/4 c.m. x skin deep on right upper lip.
(4) An incised wound 3 c.m. x 1 c.m. x 1 c.m. On right thigh.
(5) An abrasion 6 c.m. x 4 c.m. On right leg upper one-third.
(6) An abrasion 3 c.m. x 1 c.m. On middle of right leg.
All the injuries were ante-mortem. Injuries Nos.1 and 4 were caused by a sharp long-edged weapon. Other injuries were caused by blunt weapon. Injury No.1 was grievous and dangerous to life. In the opinion of the Doctor, death occurred due to shock and haemorrhage as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was half to one hour and that between death and post-mortem examination was 6 to 12 hours.
5. Eye-witness account was furnished by Fazal Din P.W.3, Taj Din P.W.4 and Manzoor Ahmad P.W.5.
The appellants in their statements under section 342, Cr.P.C. Denied the allegations levelled against them. They took the plea that they had been falsely implicated in the case due to party-faction.
They also pleaded their innocence. However, no evidence was led by the accused in their defence.
6. By believing the ocular account, medical evidence, recovery of weapon of offence and motive, the learned trial Judge convicted and sentenced the appellants as mentioned above.
7. Learned counsel contends with vehemence that it is established on record that the prosecution witnesses did not see the occurrence and that it took place early in the morning. He argues that the medical evidence is in direct conflict with the ocular account and the prosecution version was wholly negated by the medical evidence. He maintains that the prosecution witnesses are related and interested and as such their evidence cannot be accepted without any independent corroboration. The learned A.A.-G. Tried to support the conviction and sentence of the appellants.
8. We have heard the learned counsel for the parties- at considerable length and have read the whole record with their assistance. For the reasons to be presently recorded we hold that the prosecution has failed in proving its case against the appellants beyond reasonable doubt. The eye-witnesses are related and interested. Fazal Din P.W.3 the first informant, is the father of the deceased. Taj Din is cousin of the deceased. Manzoor Ahmad P.W.5 was disbelieved by the learned trial Judge for good reasons. It may be observed that he was not mentioned in the F.I.R. Fazal Din P.W.3 deposed that on the day of occurrence, Ghulam Hussain had a sum of Rs.16,000 in his possession because he was dealing in the business of carpets. He further stated that the accused attacked Ghulam Hussain in order to deprive him of the aforesaid money and that he was subjected to attack for no other purpose. He also made a reference about another incident having taken place about 5/6 days earlier to the occurrence in hand. Fazal Din P.W. Stands contradicted by the medical evidence. According to the complainant only a solitary blow was inflicted by h the accused while the medical evidence shows that Ghulam Hussain suffered as many as six injuries.
Injuries Nos.1 and 4 are incised wounds while the remaining injuries are abrasions and bruises. To the same effect is the evidence of Taj Din P.W.4. There is absolutely no explanation of the remaining five injuries found on the body of the deceased. Injuries Nos.2, 3, 5 and 6 could be caused by struggle but injury No.4 could not be so caused because it is an incised wound. Thus, we are of the opinion that the eye-witnesses had not seen g the occurrence as claimed by them. According to the prosecution version, it was a day time occurrence having taken place in a busy Bazar of Sangla Hill Town and as such the incident must have been witnessed by number of people as admitted by Muhammad Ibraheem S.I. P.W.7. It was for that reason that he had examined shopkeepers of the locality and Siddique Proprietor of the Hotel where the complainant sat and took tea but we fail, to understand why they were not produced by the prosecution in support of its case. The only inference which can be drawn from the non-production of these important witnesses is that in case they were produced they would not have supported the case of the prosecution.
9. Recovery of Chhuri P.5 is also of no significance as it was never sent to Serologist for determination of the origin of blood. In the circumstances narrated above the evidence of the eye- witnesses examined by the prosecution was required to be corroborated by some independent evidence but the same is missing. The evidence of motive is also not convincing. Fazal Din P.W.3 gave a different version than the one mentioned by him in the F.I.R. Exh.P.B./1. He stated that as a matter of fact, the accused wanted to snatch a sum of Rs.16,000 from the deceased. Thus, the motive has also to be discarded under these circumstances. This being so, the prosecution has failed to prove its case against the appellants beyond doubt. The prosecution evidence does not inspire confidence and as such cannot be relied upon. It is evident that the best possible evidence available was withheld by the prosecution for reasons best known to it. Hence, by giving them the benefit of doubt we proceed to acquit the appellants. They shall be set at liberty forthwith, provided, of course, they are not required in any other criminal case. The Murder Reference is answered in the negative. The appeal succeeds and is allowed.
N.H.Q./S-148/L