MUHAMMAD SIDDIQ, J.-----According to the prosecution the brief facts of the case are that Mst.
Jamila daughter of Niaz Mohammad P. W., was engaged with Mohammad Latif appellant about 5/6 years back. Sardar Mohammad deceased brother of Niaz Mohammad P. W. Was unhappy over this engagement. According to Niaz Muhammad P. W., he broke her engage--ment with the appellant at the instance of the deceased, because the appellant was a bad character. Niaz Mohammad P. W. Claims to have informed the appellant that Sardar Mohammad deceased was not pleased over his engage--ment with his daughter Mst. Jamila. This, according to the prosecution is the motive in this case. On 1-5-1971, at about 6-30 p.m., when Abdul Salam (P. W. 8) along with his father Ghulam Sabir P. W., was standing in front of the door of their house, A.I Mohammad their relative came and informed them that he was going to the city when Rafique alias Babu and Mohammad Jamil (acquitted co-accused) encircled him near the gate of Islamia College, Lyallpur, and threatened that they would teach a lesson to Sardar Mohammad deceased for getting the engagement of the present appellant broken with Mst. Jamila. A.I Mohammad then went away and the witnesses came inside their house. At about 7-30 p.m. On the same evening, they heard commotion from the street. Ghulam Sabir, his son Abdul Salam, Niaz Mohammad, Mohammad Ashiq, A.I Mohammad and Abdul Aziz P. Ws. Came outside. They all saw the six accused persons including the present appellant and one Mazhar Shah absconder. Mohammad Latif appellant and his brother Mohammad Siddique were armed with knives, while the rest had dangs with them. The witnesses saw that the accused persons were dragging the deceased Sardar Mohammad and Ciulzar P. W. Ghulam Sabir P. W. Stepped forward to rescue the deceased over which Mohammad Ratique alias Babu co-accused and absconder Mazhar Shah caught hold of him and started to drag him as well. The accused party is alleged to have taken the deceased and P. Ws. Ghulam Sabir and Gulzar to an open plot belonging to one Umar Din. When the witnesses tried to intervene Mohammad Rafique co-accused raised a lalkara that Sardar Mohammad deceased be killed. Mohammad Latif appellant then inflicted a knife blow to the deceased at his back. The deceased raised a shriek and fell down on the ground. Ghulam Sabir P.
W. Advanced forward to see what had happened to the deceased over which Mohammad Siddique co-accused gave a blow to him with a knife at his back. The remaining accused persons gave sota blows to A.I Muhammad, Ghulam Sabir, Mohammad Ashiq, Abdul Salam and Gulzar P.
Ws. All the accused persons then declared that they had taken revenge for breaking of the engage--ment of Mst. Jamila with Mohammad Latif appellant and ran away. The prosecution witnesses then came to the deceased and found him lying dead in a pool of blood. Abdul Salam P.
W. Then went to the Police Station Civil Lines, Lyallpur, in the company of Abdul Aziz P. W. And Abdul Haq and lodged the F. I. R. (Exh. P. A.) at 8-45 p.m., on the same day. Mohammad Salim Akhtar, Sub- Inspector, after recording the F. I. R. Reached the spot and found the dead body of Sardar Mohammad deceased lying there. He prepared the injury statement (Exh. P. M.) and the inquest report (Exh. P. L.) of the dead body. He then entrusted the dead body to F. C. Mohammad Nawaz for taking it to the mortuary for post-mortem examination. He secured blood-stained earth from the place of occurrence and sealed it into a parcel as per recovery Memo. Exh. P. B. F. C. Mohammad Nawaz produced the last worn blood-stained clothes of the deceased, namely, shirt (Exh. P. 1), dhoti (Exh. P. 2) and safa (Exh. P. 3) which were taken into possession vide recovery Memo. Exh. P. C. The police officer also got the site-plan (Exh. P. D.) prepared from Aurangzeb Draftsman P. W. After the usual investigation, the Police challaned six persons including the present appellant under sections 302/149, 307/149 and 1-18, P. P. C. They were tried by the Additional Sessions Judge, Lyallpur, who acquitted five co-accused persons but convicted the present appellant under section 302, P. P. C.
For the murder of Sardar Mohammad deceased and sentenced him to death. The appellant has challenged his conviction and sentence before this Court through the present appeal. His case is also before us under section 374, Cr. P. C. For confirmation of the sentence of death. This judgment will dispose of both the criminal appeal as well as the Murder Reference.
Dr. Khurshid Ahmad on 2-5-1971 at 11 a.m. Performed the post-mortem examination on the dead body of Sardar Mohammad deceased and found the following injury on it:--
(1) Stab wound, 1--" x --' x penetrating left chest cavity on its back on inner side of left scapula. It was ante-mortem and direction was oblique.
First rib on left chest on back was cut. Both sides of heart were empty. Arch of aorta on its upper part was cut. In the opinion of the doctor, cause of death was shock and haemorrhage resulting from injury-No. 1 which cut the large blood vessel. It was caused by a sharp-edged weapon and was sufficient to cause death individually in the ordinary course of nature. Death occurred immediately and the post-mortem examination was performed between 12 to 18 hours.
3. The appellant when examined under section 342, Cr. P. C. Denied the prosecution allegations.
When asked why the P. Ws. Had deposed against him, he stated as under: "Due to enmity with the P. Ws. They are closely related inter se and to the deceased. I filed a case under section 307, P. P. C. Against P. W. Abdul Aziz and his brothers, the brother of Abdul Salam P. W.
And son of -P. W. Ghulam Sabir at Lahore before this occurrence in which I bad given evidence against them in Court. I have, therefore, been falsely implicated by them due to this enmity."
When asked whether he had anything else to say, he stated as under:-- "I am innocent. I am a married person and my marriage was per--formed on 15th August 1966, with Mst. Siddiqan Bibi my present wife. I produce my original Nikahnama as Exh. D. J. On the day of occurrence i.e., 1st May 1971 I and my brother Mohammad Siddique were present in the Court of Mr. Sarfraz-ul-Haq Beg, M.I.C., Lahore. I produce a certified copy of the interim order dated Ist May 1971, of that Court as Exh. D. K."
No evidence, however, was produced in defence.
4. In support of its case, the prosecution produced Abdul Aziz (P. W. 6), Abdul Salam (P. W. 8), Mohammad Ashiq (P. W. 9), Ghulam Sabir (P. W. 10) and Niaz Mohammad (P. W. 11) as eye- witnesses. The recovery of knife (Exh. P. 4) from the appellant is supported by Abdul Aziz (P. W. 6) and Khalid Hussain A. S. I. (P W. 5). The motive is supported by Niaz Mohammad (P. W. 11) and his other relations.
5. It may be observed at the outset that all the six accused persons are closely related inter se. Out of them, three are real brothers of the present appellant, while the fourth one is his nephew and the fifth is said to be his friend. Similarly, all the material prosecution witnesses are also related inter se.
Ghulam Sabir (P. W. 10), Niaz Mohammad (P. W. 11) and Gulzar (given up P. W.) are real brothers of Sardar Mohammad deceased. Mohammad Ashiq (P. W. 9) is the son of the deceased. Abdul Salam (P. W. 8) is the son of Ghulam Sabir (P. W. 10). Abdul Aziz (P. W. 6) is the brother-in-law of the deceased. Since the prosecution did not produce A.I Mohammad, the learned Additional Sessions Judge did not believe the earlier incident that said A.I Mohammad was encircled by Mohammad Rafique alias Babu and Mohammad Jamil co-accused near the gate of Islamia College and threatened that they would teach a lesson to Sardar Mohammad deceased for getting the engagement of the present appellant broken with Mst. Jamila. About the ocular testimony of the witnesses, the learned Additional Sessions Judge held that all the eye-witnesses were interested ones because they were related inter se and also to the deceased and they were also hostile and inimical towards the accused. He, therefore, found that such interested witnesses could not be believed unless their testimony was corroborated by some other independent and strong evidence. In the case of five co-accused he did not find any such corroboration and accordingly acquitted them. However, against the present appellant he found that the ocular testimony of the interested witnesses was fully corroborated by the motive attributed to him, the recovery of knife (Exh. P. 4) and the medical evidence. Accordingly, he convicted Hand sentenced the appellant as mentioned above.
6. It is vehemently argued by Mr. Mahmud A.I Qasuri, the learned counsel for the appellant, that the case of Muhammad Latif appellant also stands at par with the other accused as the so-called pieces of corroborative evidence have not been legally established against him. We accordingly proceed to examine the said corroborative evidence. The first item used against the appellant is the motive. According to the prosecution 4/5 years before the occurrence Mst. Jamila, daughter of Niaz Mohammad P. W. (brother of the deceased) was betrothed with the appellant. The deceased, who was uncle of said Mst. Jamila, did not like this engagement and at his instance the engagement was broken. Exh. D. G. Is the copy of the plaint filed by Muhammad Ashiq P. W., son of Sardar Muhammad deceased on 1-9-1966, against Mst. Jamila, her father Niaz Muhammad P. W., Mst. Mukhtar. Bibi wife of Niaz Muhammad, Fazal Muhammad, and Roshan Din son of Chiragh Din for restitution of con--jugal rights. A perusal of this document shows that Nikah of Muhammad Ashiq was performed with Mst. Jamila about 20 years back, while the parties were still in India. The parents of Mst. Jamila wanted to marry her with Roshan Din, son of Chiragh Din, and that marriage was to take place on 2-9-1966. The present appellant was not impleaded or even shown as a party in that suit. It was Roshan Din son of Chiragh Din, who was going to marry Mst. Jamila. Exh. D. G. 2 is a copy of affidavit of said Muhammad Ashiq filed along with the plaint on 1-9-1966 in support of his application for obtaining injunction. Exh. D. H. Is a copy of the Vakalatnama executed by said Muhammad Ashiq in favour of Ch. Khalid Bashir and Ch. Abdul Wahid, Advocates to prosecute his suit for restitution of conjugal rights. Exh. D. B./1 is the order of the Civil Court dated 22-9-1966, to the effect that the plaintiff (Muhammad Ashiq) did not want to prosecute the case. Accordingly, the suit was dismissed and the file was consigned to the record room. It appears that' the plaintiff did not want to prosecute the case and his counsel made that statement, because on 2-9-1966 marriage of Mst. Jamila with Roshan Din must have taken place and the Court did not grant any injunction restraining the marriage. On the basis of the above-- mentioned material placed 'on the record, it can safely be presumed that the marriage of Mst. Jamila with Roshan Din took place on 2-9-1966 and that at that stage the grievance of the complainant party in this behalf was against those persons mentioned as defendants in that suit. The present appellant was not even In the picture at that stage and was not even cited as a defendant. Exhibit. D. J. Is a copy of this Nikahnama showing the Nikah of the present appellant with one Mst. Siddiqan Bibi, daughter of Mohammad A.I of Chak No. 67/JB. According to this document, the marriage of the appellant with said Mst. Siddiqan Bibi took place on 15-8-66. Thus, the marriage of the appellant took place about 17 days before the marriage of MAR Jamila with Roshan Din. After going through the above- mentioned material, we are clearly of the view that the prosecution has failed to establish the alleged motive against the appellant.
7. Now we take up the question of the alleged recovery of knife at the instance of the appellant. The recovery Memo. Of knife (Exh. P. 4) is Exh. P. W. 5/1 which is attested by Ch. Muhammad Yaqub, Master Abdul Aziz and Khalid Hussain A. S. I. The prosecution did not produce Ch. Muhammad Yaqub but has relied only upon the testimony of Abdul Aziz (P. W. 6) and Khalid Hussain A.S.I.
According to this recovery Memo the appellant got this knife recovered from the house of Muhammad Jamil co-accused. It may be mentioned here that the appellant is the resident of Lahore, while Muhammad Jamil co-accused was the resident of Lyallpur. This Memo. Does not say whether at the time of its recovery the knife was blood-stained or not. According to the learned counsel for the appellant, it was not blood-stained, otherwise the police officer could not omit to mention that fact in the Memo. However, both Khalid Hussain A. S. I. And Abdul Aziz P. Ws. Have stated before the trial Court that the knife was blood-stained when it was recovered. Khalid Hussain A. S. I. In cross-examination has admitted that he had stated before the committing Magistrate that the knife was almost clean. His statement before the committing Magistrate is silent whether the knife was blood-stained or not. Abdul Aziz (P. W. 6) has admitted that he is the brother-in-law of the deceased. It is also admitted that he was an employee of the Police Department for about 15 years. His enmity with the present appellant also stands admitted as he was one of the accused persons in a case under section 307, P. P. C., filed by the present appellant at Lahore. The pro--secution has not offered any explanation why Mohammad Yaqoob, the other independent recovery witness of the knife, was not produced. Out of the present two recovery witnesses, Khalid Hussain is a regular employee of the Police Department, while the other (Abdul Aziz) apart from being ex-Head Constable of the Police Department, is also closely related to the deceased and inimical towards the appellant. The occurrence took place on 1-5-71, while the recovery was made on 18-5-71. The appellant was arrested on 17-5-71, while the other co-accused were arrested earlier. If the appellant had kept the knife in the house of co-accused Mohammad Jamil as alleged by the prosecution, then he had ample opportunity during this period to destroy this piece of evidence. Moreover, it is admitted by the recovery witnesses that the house of Mohammad Jamil from where this recovery was made was locked and the key was brought by the Chowkidar. In this house Mohammad Jamil and his father reside together. It is also an admitted fact that there are shops and residential houses around the place of recovery, but none was produced to support the present recovery. According to the recovery Memo. The knife is described as kamanidar, while before the Court the witnesses described it as grariwala. There is another very material circumstance which goes against the prosecution. The Pro--secuting Inspector while submitting the challan did not rely upon this piece of evidence and did not include this in the list of documents attached with the challan. Neither the knife, nor the recovery memo. Was produced before the committing Magistrate. It is for the first time before the trial Court that the prosecution has relied upon this piece of evidence. After taking into consideration the entire material available on the record regarding the recovery of knife (Exh. P. 4), it can safely be held that the prosecution has not proved this recovery beyond reasonable doubt. According to the learned counsel for the appellant, this recovery is a fabricated one. We find that this allegation is not without substance.
Moreover, this recovery loses all significance when Khalid Hussain A. S. I. Admitted that he had stated before the committing Magistrate that the knife was almost clean. In other words, it was not blood-stained when it was recovered. If it had been so, the police officer could not omit to mention that fact in the recovery memo. Itself. Thus looked from any angle we find that the prosecution cannot use this circumstance as a corroborative piece of evidence against the appellant.
8. As regards the last piece of corroboration, namely, medical evidence, that also does not help the prosecution. The mere fact that the doctor found a stab wound on the person of the deceased will not automatically corroborate the testimony of eye-witnesses that the wound was caused by the present appellant and none else. According to the statement of Abdul Salam (P. W. 8) Sardar Muhammad deceased received a knife blow under the blade of his left shoulder at the back.
Similar is the statement of Ghulam Sabir P. W. According to the post-mortem examination report (Exh. P. K./1) the injury is on the inner side of the left scapula which is just below the neck. Thus, the medical evidence on this point goes against the ocular testimony. According to the eye-witnesses, the deceased was dragged to a considerable distance and then he was given this knife blow.
According to the medical evidence, no marks of dragging were found on the person of the deceased. On this point also the medical evidence goes against the testimony of the eye- witnesses. Thus, we find that in the first instance the medical evidence does not corroborate the ocular testimony and even if it does, then it will not prove that it was the present appellant who inflicted that knife blow. It is clear that the appellant was the main enemy of the complainant party.
The possibility of false attribution of this injury to the appellant, therefore, cannot be excluded. As there were in all seven accused persons, who according to the prosecution participated in the alleged occurrence, the possibility that some other accused may have inflicted this injury can also be not ruled out. 1t is an admitted fact that all adult male members of the family of the present appellant were involved in this case. This clearly establishes the enmity of the complainant party with the present appellant. In this background, the plea of the defence that the, injury to the deceased is falsely attributed to the appellant may be probable.
9. After going through the entire record and taking into consideration the facts and circumstances of the case, we find that the case is not free from doubts of general character. The State did not challenge the acquittal of the co-accused persons. The circumstances relied upon by the trial Court as corroboration in fact are not proved as corroboration. The case of the present appellant, therefore, will stand at par with the acquitted co-accused and is not distinguishable from them.
The following observations of their Lordships of the Supreme Court in Wasiullah's case (PLD 1963 SC 25) are fully applicable to the present case:- "On further examination, it appears that the case is not free from doubts of a general character.
These are caused by (1) the false inclusion of the name of Hassan A.I at the outset, and the circum- -stances attending its exclusion later, (2) the weakness of the evidence to show recovery of the alleged 'crime empties' and (3) the dubious manner of arrest of five of the accused persons and of the recovery of weapons and cartridges, both live and empties from them. When such be the case, and the main direct evidence be also that of interested persons i.e. Enemies of the persons charged, it is proper to ask that the evidence in corroboration should be exceptionally strong, almost if not quite sufficient by itself to establish the guilt of individual accused person beyond reasonable doubt."
10. For the foregoing reasons, we find that the prosecution has not been able to prove the guilt of the present appellant beyond reasonable doubt. Accordingly, giving benefit of doubt to the appellant we accept his appeal and set aside his conviction and sentence, and acquit him. He shall be set at liberty forthwith if not required in connection with any other case.