ASLAM RIAZ HUSSAIN, J.-Siraj Din alias Saja, aged 23 years and his brother Ziauddin alias Joja, aged 18/22 years, were tried by Ch. Shams-ud---Din, Additional Sessions Judge, Lahore, for causing injuries to Ibrahim (deceased) and thereafter detaining him illegally in a room and thus causing his death. The learned trial Judge by his judgment dated 8-7-1971 found them guilty of the said offences and convicted them under sections 302/34 and 342/34, P. P. C. He sentenced both of them to death under section 302/ 34, P. P. C., with a fine of Rs. 2()() each, and 6 months' R. I. Each under section 342/34, P. P. C.
2. The appellants have filed a joint appeal against their conviction and sentences. The matter has also been referred to us under section 374, Cr. P. C. For confirmation of the death sentence. We propose to dispose of both the appeal and the reference by a single judgment.
3. The occurrence took place at 9 a.m. On 28-8-1969 in front of 'Takia Isayaian', on Mohni Road, Lahore near Naila Cinema. The motive for the offence was that about six months prior to the occurrence there was a fight between Ibrahim (deceased) and one Leekar, on the one side, and Siraj Din alias Saja appellant on the other. In the fight Ibrahim (deceased) broke the leg of Saja appellant and a case under section 324, P. P. C. Was registered against Ibrahim and Leekar.
4. The facts of the prosecution case briefly are that at about 9 a.m. On 28-8-1969 Muhammad Ishaq P. W. 13 and his brother Ibrahim (deceased) were going from Karim Park to Mohallah Sammayan. When they reached near Wayam Shala on Mohni Road near Naila Cinema, Muhammad Ishaq P. W. 13 stopped to wash his hands and face, while Ibrahim (deceased) continued to walk on. When ire reached in front of the house of Siraj Din, appellant, both the appellants turned up and attacked Ibrahim. Siraj Din appellant was armed with a gains (pick-axe) while Ziauddin appellant was armed with a wooden Sairoo, (the shorter side of the wooden frame of a cot). On hearing the noise Muhammad Ishaq P. W. 13, rushed up to the spot and saw that Ibrahim (deceased) was lying on the ground and the two appellants were inflicting injuries on him with their respective weapons. When Muhammad Ishaq P. W. 13 tried to rescue his brother, the appellants warned him not to come near and threatened to kill him if he advanced. Muhammad Ishaq P. W. Continued to raise an alarm. Shaukat A.I and Muhammad Nazir P. Ws., who were passing through the street also stopped and saw the occurrence. But no one went near out of fear. A large number of injuries were inflicted by the appellants on the legs and the head of Ibrahim deceased.
They then carried him into their kotha inside the `Takiya' and chained the door from outside.
Thereafter they climbed on to the roof of the kotha and started throwing bricks on any one who tried to approach the room in which they had detained Ibrahim (deceased).
Leaving Muhammad Nazir and Shaukat A.I P. Ws. At the spot, Muhammad Ishaq P. W. 13 proceeded towards the Thana but met Muhammad Ashraf P. W. 15, Sub-Inspector Incharge of Police Post Lower Mall, Lahore, who was coming alongwith Inayat Khan Constable (P. W. 6) near the Chowk of Data Darbar Sahib, on Ravi Road. The S. I. Was pro--ceeding towards the spot on having received a report from the Emergency Police Centre that a fight was going on at Mohni Road near Wayam Shala. Muhammad Ishaq P. W. 13 told him of the incident, whereupon the S. I. Informed him that he was already proceeding towards the spot. Muhammad Ishaq P. W., therefore, accompanied them back to the spot. On reaching there Muhammad Ashraf, P. W 15, got the door of the Takiya opened and brought out Ibrahim with the help of the P. Ws. He also made the two appellants come down from the roof of their kotha and arrested them. He then carried Ibrahim, who was badly injured, but was still alive, to Mayo Hospital, Lahore, in a taxi. He was accompanied by Inayat Khan Constable P.
W. 6 and Muhammad Ishaq P. W.
13. While Ibrahim (deceased) was being placed in the taxi, an A. S. I. Alongwith some constables also turned up at the spot. Before leaving for the Mayo Hospital Muhammad Ashraf S. I. N. W. 15 ordered the A. S. I. To guard the accused. Ibrahim was got admitted in the hospital and was examined by Dr. Syed Riaz Hussain, Casualty Medical Officer (P. W. 2), at 9- 50 a.m. He found as many as 13 injuries on the person of Ibrahim. At the hospital, Muhammad Ashraf P. W. 15 is said to have recorded the statement Exh. P. A., of Muhammad Ishaq P. W. 13 at 10- 30 a.m. (This statement formed the basis of the formal F. I. R. Exh. P. A./1 recorded at 10-45 a.m. At Police Station New Anarkali). Thereafter Muhammad Ashraf S. I. Came back to the spot from where he collected blood-stained earth from two places and scaled them into parcels vide memo. Exhs.
P. F. And P. G. Siraj Din appellant produced his blood-stained gainti P. 4 while Ziauddin (appellant)- produced his blood--stained sairoo P.
5. These were taken into possession vide memo. Exhs. P. H.
And P. M. Respectively. He also got the blood-stained clothes of the two accused removed. These are shalwar P. 6 and shirt P. 7 of Siraj Din appellant, which were taken into possession vide memo.
Exh. P. N. And shalwar P. 8 and shirt P. 9 of Ziauddin appellant, which were taken into pos--session vide memo. Exh. P. L. The weapons and the aforementioned clothes were found to be stained with human blood. On 29-8-1969 at about 7 p.m. The S. I. Received a telephonic message from the hospital about the death of Ibrahim. He thereupon proceeded to the hospital; prepared the necessary documents and sent the dead body for post-mortem examination. After the completion of the investigation both the accused were challaned and were ultimately committed to the Court of Session to stand their trial.
5. At the trial, the prosecution produced 15 witnesses in support of its case. The prosecution evidence consists of the following categories of evidence:-
(1) the motive,
(2) the ocular evidence deposed to by Muhammad Nazir P. W. 12, Muhammad Ishaq P. W. 13 and Shaukat A.I P. W. 14,
(3) the recovery of the blood-stained weapons as well as the blood--stained clothes of the accused, and
(4) the medical evidence.
6. We have heard the learned counsel for the parties at some length and have also gone through the entire record.
The learned counsel for the appellants argued that the entire prosecution story was false; that in fact the police reached at the spot when Ibrahim (deceased), had already been removed to the hospital; that his brother Muhammad Ishaq P. W. 13 also reached the hospital subsequently and had not seen the occurrence; that the F. I. R. Was not recorded in the hospital as alleged by the prosecution but was recorded at the spot, after preliminary investigation, and that the eye- witnesses are chance witnesses and, in any case, their testimony is not worthy of reliance because they are procured witnesses, who had not seen the occurrence. He also submitted that `previous enmity', between Muhammad Ishaq P. W. 13 and the two appel--lants, is admitted and that Muhammad Nazir and Shaukat A.I, the other two eye-witnesses had appeared at Muhammad Ishaq P. W.'s request. He submitted further that the version as to the manner of arrest of the accused as well as the recovery of the blood-stained gainti and sairoo and the blood--stained clothes of the appellants is false.
7. After having thoroughly considered the evidence we are inclined to agree with the abovementioned contentions of the learned counsel for the appellants for the reasons which are as follows: The facts relating to the motive given by Muhammad Ishaq P. W. 13 as put forward by the prosecution itself, and reproduced in paragraph No. 3 above, clearly go to show that there was old enmity between Ibrahim (deceased) and Siraj Din appellant. The existence of old standing enmity between the parties need not, therefore, be required to be proved through independent evidence.
Muhammad Ishaq first informant has also admitted at the end of his cross-examination that he and Shaukat A.I P. W. 14 (another eye-witness), were co-accused in a case under section 307, P. P.
C., for causing knife injuries to one Ikram and that Muhammad Nazir P. W. 12, (the third eye- witness), is a friend of Shaukat A.I P. W. 14, both of whom are Rehra drivers.
8. The first question to be considered is whether Muhammad Ishaq P. W. 13, the brother of the deceased had actually witnessed the occurrence and had, thereafter, lodged the F. I. R. At the hospital, as alleged by the prosecution. Muhammad Ishaq P. W. 13 has stated at the trial that he was present with the deceased and had seen the entire occurrence and that immediately thereafter he rushed towards the thana to inform the police but met the police (i.e. Muhammad Ashraf S. L, P. W. 15 and Inayat Khan Constable P. W. 6) at `Hotelwala Chowk' of Darbar. Data Sahib.
He has stated further that the aforementioned two policemen were coming on a conga. At the trial Muhammad Ishaq P. W. Vehemently denied the sugges--petition that he had met the aforementioned police officials near the Islamia High School, Bhati Gate. But, he had stated before the committing Magistrate that he had met the police party near `Islamia High School' and further that they were coming on foot (and not on a tonga). Similarly, Muhammad Ashraf S. I. (P. W. 15) has also made conflicting statements. He too stated at the trial that he was proceeding to the spot alongwith Inayat Khan Constable P. W: 6 on a tonga, on receiving telephonic informa--petition about the incident from the Emergency Police Centre. He met Muhammad Ishaq P. W. 13 in the way and asked him to follow him to the spot. Hut before the committing Magistrate he had given a different version and had stated that he had met Muhammad Ishaq P. W. 13 for the first time "at the place of the occurrence". He stated further that he did not record the statement of Muhammad Iahaq P. W. At the spot because he was not paying attention due to the serious condition of his brother Ibrahim (deceased). He also stated that he did not" make inquiries about the incident from ether persons because he thought it to be more important to save the life of Ibrahim. According to the S. I. He, together with Muhammad Ishaq P. W. 13 and Inayat Khan Constable P. W. 6 had taken Ibrahim to Mayo Hospital, in a, taxi.
It is, however, interesting to note that Inayat Khan Constable P. W. 6 had stated before the committing Magistrate that Muhammad. Ashraf S. I; had gone to the spot from the Police Post at about 11/12 noon on the day of the occurrence. It would be recalled that Dr. Syed Riaz Hussain P. W. 2 had examined Ibrahim at the Casualty Ward of Mayo Hospital as early as 9-50 a.m. On that very morning. From this it clearly follows that: the two policemen had reached the spot after the dead, body had already been removed to the hospital. This view is further supported by the statement of Inayat Khan F. C. (P. W. 6) that:- "We came to know from the spot that the injured had been taken to the hospital by his brother so we went to the hospital."
Inayat Khan F. C. (P. W. 6) had also stated before the committing Magistrate that when they (i.e. Policemen), reached the hospital, the injured Ibrahim was already lying in the Emergency Ward and a doctor was present nearby. These facts go to show that when the police arrived, the deceased had already been removed from the scene of the occurrence and even Muhammad Ishaq P. W. 13, the brother of the deceased had come subse--quently, as he has said that he had followed the S. I. After the latter met him near Data Darbar Sahib or alternately was still at the spot when the police arrived.
9. While on this subject it may also be mentioned that according to the entry in the relevant column of medical report Exh. P. J., prepared by Dr. Syed Riaz Hussain P. W. 2 (who medically examined Ibrahim deceased in the Casualty Ward) he (i.e. Ibrahim) bad been got admitted in the hospital by a `friend'. The doctor, when examined at the trial, further clarified that the patient (Ibrahim) was brought by a friend and not by the police or any relative. He admitted that:- "It is correct that if a medico-legal case is brought to the hospital, the Casualty Medical Officer always prefers to incorporate the name and the particulars of the relative if he is available at the time of medical examination. It is also correct that if the injured is brought by the police, we give the name and rank of the police officer in the medico. Legal report."
It would be recalled that Muhammad Ashraf S. I. P. W. 15, claims that it is he who had taken Ibrahim (deceased) to the hospital in a taxi, with Inayat Khan P. W. 6 and Muhammad Ishaq P. W. 13, and got him admitted there. But Muhammad Ishaq P. W. 13 stated before the committing Magistrate that it was he (i.e. Muhammad Ishaq (P. W. 13) who had taken Ibrahim (deceased) to the hospital alongwith Muhammad Nazir P. W. 12, Shaukat A.I P. W. 14 and the Sub-Inspector Muhammad Ashraf (P. W. 15). More--over, he (Muhammad Ishaq P. W. 13) stated, at the trial, that it was he himself who had got his brother Ibrahim (deceased) admitted in the hospital. He stated further that on an inquiry by the doctor he had told the doctor that Ibrahim was his brother and not his friend. But, as already mentioned above, Dr. Syed Riaz Hussain P. W. 2, who had examined Ibrahim after his being admitted in the hospital, has mentioned the relevant column of the report that he bad been got admitted by a `friend'. These contradictions also support the view that some one else had already removed the injured man to the hospital before Muhammad Ishaq P. W. Or the police reached at the spot. As already mentioned above that he had met Muhammad Ishaq P. W. For the first time at the spot, it appears that in saying so he had inadvertently blurted out the truth and it appears that even the F. I. R. Was written there. The last mentioned view is strengthened by the following statement of Muhammad Nazir P. W. 12:- "I do not remember the number of the persons who gathered at the spot. I remained standing at my place till the police arrived. Police recorded the statement of Ishaq in my presence. I do not remember on the spat. The police party consisted of one Thanedar and one constable."
This gives a direct lie to an important part of the prosecution story that the F. I. R. Was prepared by the S. I. At the hospital after getting Ibrahim admitted there. From what has been mentioned above, it appears to us, that even Muhammad Ishaq P. W. 13 was not present at the spot where the occurrence took place and that the police had recorded the F. I. R., Exh. P: A., at the spot after the deliberations and in consultation with Muhammad Ishaq and other P. Ws. All this casts serious doubt on the entire prosecution story including the assertion that Muhammad Ishaq P. W.I had seen the occurrence.
10. As to Muhammad Nazir and Shaukat A.I P. Ws., the learned defence counsel argued that they are chance witnesses. Both of these witnesses have attempted to show that they were passing on Mohni Road where the occurrence took place, in the routine performance of their respec--tive duties. The reason for that was to show that they were not passing that way merely (by chance) but that it was their usual route. Muhammad Nazir P. W. 12 has stated that he used to carry ice from an Ice Factory m the vicinity of the place of occurrence and deliver it to some one in Mochi Gate, whose name he did not know. But on being questioned about it, he displayed a complete lack of familiarity with the land-marks of the locality. A glaring example of this is that (although at the trial he denied it), he had stated before the committing Magistrate that 'Nails Cinema' was not visible from the place where he was standing when he witnessed the occurrence. A look at the site-plan Exh. P. U./1 would show that Naila Cinema has a front of 208 feet on Mohni Road and it dominates the area where Muhammad Nazir P. W. 12 is said to have been present at the time of the occurrence. As a matter of fact he has been shown in the site plan as having stood and seen the occurrence from a place close to one of the gates of that cinema as such his statement before the committing Magistrate (which is earlier in time), that the cinema was not visible from where he was standing at the time of occurrence, goes to show, not only that he was not present there at the relevant time but also he had not gone in that locality before and was not familiar with it at all. This gives a lie to his assertion that he used to get ice from a factory in that area to deliver the same at Mochi Gate.
11. Similarly Shaukat All P. W. 14 stated that he used to supply milk to his cousin Nazir alias Haji Kala who used to reside in Karim Park; that his (Shaukat A.I P. W's) brother too had a milk card shop, in Bazar Sammayan and that their business was joint. The witness has stated that he used to go daily from Karim Park to Mohallah Sammayan to supply milk "some time at 8 a.m., some time at 8-30 a.m., and some time at 9 or 9-30 a.m." But, on being questioned, he had to admit that milk sellers supply milk to their customers early in the morning between 5 to 7 a.m. This is indeed a matter of every day observation, and is a fact of which even judicial notice can be taken. The admission that milk is supplied to shop--keepers pretty early in the morning knocks the bottom out of Shaukat A.I P. W.'s assertion that he was present at the spot at the time of occurrence. It appears, however, that Shaukat A.I P. W. Had no choice in the matter and he bad to say that some times he used to supply milk between 9 to 9-30 a.m., because otherwise he could not explain how he happened to be near the spot at the time of the occurrence. But in view of the practice prevalent in the 'Milk trade' the milk is supplied to the milk sellers in the very early morning. We are not inclined to accept that he was present near the place of occurrence at 9 a.m. In connection with the supply of milk. As a matter of fact during the cross-examination, he showed such ignorance about the situation of Karim Park and other prominent spots and features of the locality in question that it can safely be assumed that he had never been there. All this casts serious doubt about his presence at the spot and his having seen the incident.
As a result of what has been discussed above, we are of the view that neither Muhammad Nazir P.
W. 12 nor Shaukat A.I P. W. 14 was present at the spot at the relevant time. In any case, both of them are, obviously chance witnesses, who did not know the accused persons prior to the occurrence.
Muhammad Nazir P. W. 12 admitted during the cross-examination that he did not know the accused prior to the occurrence and that the police had not called him to identify the accused.
Shaukat A.I P. W. 14, who was examined subsequently, had evidently become wiser and began his statement at the trial by saying that he knew both the accused persons previously. He was, however, confronted with his statement before the committing Magistrate where he had stated that he did not know the accused persons prior to the occurrence. The reason for the anxiety, on his part, to show that he knew the accused persons even before the occur--rence, is apparent, because in cases where the witnesses do not know the accused persons previously, there is always a doubt whether they had identified the accused correctly, until they are made to identify them through an identification parade. But no such formal identification was got made and we are of the view that, in the circumstances of this case, even if it be assumed that Muhammad Nazir and Shaukat A.I P. Ws. Had seen the accused, it cannot be said, with any certainty, that they had correctly identified them. Their testimony has, therefore, to be left out of considera--petition for the reason mentioned in paragraphs Nos. 8 and 9 above.
12. Besides what has been said above, vie feel that certain portions of the prosecution story are so absurd as to render the same unbelievable. For instance it is stated that after causing injuries to Ibrahim they lifted and carried him in the 'Takiya' placed him in the room (at point No. 2 in the site- plan); chained the door from outside and then climbed on to the roof of the said room, from where they started pelting bricks at any one who tried to approach the door. This part of the prosecution story is patently absurd because it is utterly against the common sense that instead of making good their escape, after the murderous assault the two appel--lants should have taken the trouble of bringing the victim all the way to their own 'Takiya' confining him in a room in their own premises and then, literally proclaiming their guilt 'from house-tops', by climbing on to the roof of that room and throwing bricks at people in the street below. It appears to us that before recording the F. I. R. At the spot, the police concocted this version so as to be able to show that arrest of the accused as well as the recovery of their blood-stained clothes and weapons at the spot itself. We are, however, not inclined to believe the manner in which the appellants are stated to have acted after the assault or their arrest at the spot, as alleged by the prosecution.
13. The result is that the recovery of their blood-stained clothes and weapons of offence are also rendered unreliable. It may, however, be mentioned as to the recovery of gainti P. 4 and sairoo P. 5 that there are serious discrepancies between the statements of the Investigating Officer, Muhammad Ashraf S. I., P. W. 15 and the only other recovery witness, namely, Nazir Ahmad P. W. 11 as to the manner in which the recoveries took place. While the latter deposed that:-- "At that time neither the gainti nor the sairoo was with the accused but they brought the gainti and sairoo from inside the house. The police went with, (again said) the accused led the police inside the house and then got recovered the gainti and the sairoo."
But Muhammad Ashraf S. I., P. W. 15 stated that:- "The accused did not give any nishandahi of the place where they had kept the weapons of offence. At my enquiries as to where were the gainti and the sairoo, Siraj Din accused went and brought the gainti and Ziauddin accused went and brought the sairoo, within the Ehata of Isayan.
Myself and the witnesses remained sitting there. I did not know as to actually from which place the accused brought the weapons. Nazir Ahmad P. W. Belongs to the locality where the occurrence took place."
The discrepancy in the two statements is evident and in the face of the said discrepancy the testimony of the aforementioned two P. Ws. With regard to the recovery of the alleged weapons of offence cannot be relied upon.
14. Even the medical evidence does not appear to be in consonance with the ocular evidence and the injuries found on the body of the deceased during the post-mortem examination did not appear to correspond to the weapons alleged to have been used by the accused. According to the ocular evidence the two accused had opened the attack by inflicting blows on the deceased's head with their respective weapons i.e. Gainti P. 4 and wooden sairoo P.
5. But on studying the dimension of the injuries on the head we feel that none of these injuries could have been caused by a gainti (i.e. a pickaxe). This implement is used for breaking rocks or digging up hard surfaces like pakka roads or cemented floors. We have examined the pick-axe in ques--petition. Its, blade is about 4 to 5 seers in weight, and its length is given in the recovery memo. Exh. P. H., as one foot seven inches. One of its ends is pointed while the other is tapered and flattened and is not pointed.
If used by this side the gainti could cause injuries of the length and breadth of injury Nos. 11 and 13, but even in that case the nature of those injuries would have been totally different. Such a weapon is generally used by striking it from one of its pointed or tapered ends and even if it is used with moderate force, the end of the pick-axe striking the head would penetrate right into the skull, causing a deep and gaping wound and not merely a narrow, scalp-deep injury. Even if it is used from the broad side, it would depress a considerable part of the skull. Keeping in view the weight and the size of its blade we are of the view that even injuries on the legs of the deceased which are either abrasions, some of which are only `skin deep' or small wounds, none of which caused any fracture of the bones underneath, was caused by the pick-axe in question. From the above it is evident that even if a sairoo was used in the occurrence, a gains (pick-axe) had not at all been used. We are, therefore, of the view that the medical evidence is in conflict with the version of the incident given by the alleged eye-witnesses. Their evidence is, therefore, rendered extremely doubtful.
15. The not result of the above discussion is that we are not inclined to believe the eye-witnesses and the version given by them as to the actual occurrence. In fact it appears to us that none of them was present at the spot. Even the arrest of the appellants at the spot is highly doubtful, for the reasons given above. This renders the recoveries of the weapons (even if believed) to be superfluous and redundant, because once the ocular evidence is washed away, such recoveries, which are merely corroborative evidence are of no value by themselves. Consequently we accept the appeal, set aside the conviction and sentences of the appellants and acquit them. They should be set at liberty forthwith unless they are wanted in some other case. The sentence of death imposed upon them is not confirmed.
This also answers the reference under section 3 74, Cr. P. C.