' ASLAM RIAZ HUSSAIN, J.-Ahmad, aged 30 years, Murad, aged 40 years and Rajab son of Bahab, aged 45 years were tried along with Haji alias Bashira and Rajab son of Hashim for offences under sections 148 and 302/452/149, P. P. C. By Mian Abdul Majeed, Additional Sessions Judge, Lyallpur at Jhang. The learned trial Judge vide his judgment dated 29-6-1970 acquitted Haji alias Bashira and Rajab son of Hashim but convicted Ahmad, Murad and Rajab son of Bahab of offences under sections 302/34 and 452, P. P. C. And sentenced them as follows:- ' Under section 302/34, P. P. C. Ahmad to death, and Murad and Raj ab son of Bahab to transportation for life.
' Under section 452, P. P. C. To three years' R. I. Each.
' The three convicted accused have filed an appeal against their conviction and sentences. The matter has also been referred to us under section 374, Cr. P. C. For confirmation of the sentence of death awarded to Ahmad appellant. We propose to dispose of the appeal and the reference by a single judgment.
2. The F. I. R. Exh. P. A. Was lodged by Wall Dad P. W. 12, a brother of Mst. Zohran deceased. The story as given in the F. I. R. Is as follows- "About 13 years prior to the occurrence Wali Dad P. W. 12 was married to Mst. Khatoon, the sister of Ahmad appellant. In return, the nikah of Mst. Zohran, the sister of Wali Dad P. W. 12, was performed with Ahmad appellant. About four years prior to the occurrence Wali Dad P. W. 12 divorced his wife Mst. Khatoon but the rukhsati of Mst. Zohran (deceased) who was still very young, had not been taken place. Ahmad appellant, however, insisted that she be sent with him.
' On 22-6-1969 Ahmad appellant brought a punchayat to the house of Pehiwan P. W. 9, the father of Wali Dad P. W. 12 and Mst. Zohran (deceased) for this purpose. Murad and Rajab son of Bahab appellants also came as members of the punchayat. Pehiwan P. W. 9, however, refused to send her daughter with Ahmad appellant. This was resented by the accused party and while leaving, the three appellants threatened Pehlwan P. W. 9 his wife Mst. Khanan and patrer Qasim P. W. 13, saying that "they would give them the taste for not sending Mst. Zohran (deceased) with them."
' On the night of occurrence i,e, the night between 29/30-6-1969 Wall Dad P. W. 12, his mother Mst.
Khanan and his four sisters, namely, Mst. Zohran (deceased, Mst. Allah Jawai, Mst. Ghulam P. W. 10 and Mst. Sullan P. W. 11 slept, as usual, in the court-yard of their house, situated at Chak Salianwali Dakhali, village Pir Abdul Rehman, (Police Station Garh Maharaja), District Jhang. Shortly after mid- night they woke up on hearing the shrieks of Mst. Zohran (deceased) and saw the three appellants giving injuries to her with hatchets. They (the P. Ws.) raised an alarm. Wali Dad P. W. 12 and his sister Mst. Allah Jawai struggled with Ahmad appellant and were successful in snatching away his hatchet. Thereafter all the three appellants ran-away. Mst. Zohran died at the spot. Leaving the dead body with the other witnesses Wali Dad P. W. 12 proceeded to Police Post Ahmad Pur Sial to lodge the report. In the way he was informed by Nusrat Machhi that the police was present in village Pir Abdur Rehman. He, therefore, reported the matter to Malik Ghulam Muhammad, A. S. I., In charge of Police Post Ahmad Pur Sial (P. W. 15), who was present in the said village. The A. S. I.
Recorded his statement Exh. P. A. At 5-00 a.m.; read it over to him and got it thumb marked by him in token of its correctness. After recording the F. I. R. The A. S. I. Sent the same to Police Station Garh Maharaja for the registration of the case and himself accompanied Wali Dad P. W. 12 to his house.
He found the dead body lying there and prepared the injury statement and the inquest report whereafter he sent the dead body to the mortuary at Jhang for past-mortem examination. The A. S. I. Then took some blood-stained earth into possession vide memo. Exh. P. D. Mst. Allah Jawai, the sister of Mst. Zohran (deceased) produced blood-stained hatchet P. 1, said to have been snatched from Ahmad appellant, which was taken into possession by the A. S. I. Vide memo. Exh. P. E. He also took into possession lantern P. 3, which is said to have been burning in the court-yard of the house, vide memo. Exh. P. G. He found two pates of shoes lying at the spot. These are said to be the shoes of two of the appellants, which they left at the spot. These are P. 4/1-2 and P. 5/1-2. They were taken into possession by the A. S. I. Vide memo. Exh. P. H. The A. S. I. Also took into possession the blood- stained cot P. 6, blood-stained talai P. 7 and blood-stained pillow P. 8 on which Mst. Zohran (deceased) was sleeping at the time of her murder, vide memo. Exh. P. J. The recoveries were witnessed by Abdul Sattar B. D. Member (not produced), and Ashiq Hussain P. W.
8. They also attested the memo. Of recoveries. So did Malik Ghulam Muhammad A. S. I. (P. W. 15).
The A. S. I. Also got the statements of Wali Dad, Mst. Ghullan and Mst. Sullan, the three eye- witnesses recorded under section 164, Cr. P. C. These are Exhs. P. S , P. U. And P. V. Respectively. The investigation was then taken over by Raja Muhammad Iqbal, S. H.
0. Police Station Garh Maharaja (P. W. 14), who recorded the statements of the prosecution witnesses. During the course of investigation he came to know that Rajab son of Hashim and Haji alias Bashira, (the two acquitted accused), had also accompanied the three appellants and were standing outside the court-yard. He, therefore, challaned them alongwith three appellants. All five of them were subsequently committed to stand their trial before the Court of Session.
3. Dr. Ghulam Mustafa P. W. 1, who performed the post-mortem examination on the dead body of Mst. Zohran on 30-7-1969, found the following injuries on her person:-
(1) An incised wound 3i" x lf" opening into oral cavity with fracture in lower and upper jaws, teeth broken of both jaws left side, extending from the left side of lower lip to the lobule of left ear.
(2) An incised wound 4" x 1i" x vertebral column deep. Cartiod vessels jugular veins left side cut.
Wound continuous cut. Wound continuous with No, 1 to back of the neck middle.
(3) An incised wound 3" x 1" x bone cut extending from I" above the left eyebrow f" in front of the tragus.
(4) An incised wound 4' x 1" x larynx cut with fracut of lower jaw right extending from mid line of chin to the right side of neck 1}" below the right ear.
(5) An incised wound 2i" x 1" x muscle deep on the outer aspect or right shoulder.
(6) Left hand cut completely from the left fore-arm just below the wrist.
(7) Left index finger cut completely at the root from the left hand.
(8) An incised wound 3/4" x x bone cut at the distal inter phalyngeal joint of left thumb.
(9) An incised wound i" x i" x bone cut on the lateral side of middle finger left at its root.
' Injury Nos. 1, 2, 4 and 6 were dengerous to life while Injury Nos. 3, 7 and 8 were grievous. Injury Nos. 5 and 9 were simple. All the injuries were caused by a sharp-edged weapon. Seven of these injuries were sufficient to cause death in the ordinary course of nature.
4. At the trial the prosecution produced 15 witnesses in support of its case and relied on the evidence of motive, the ocular evidence, the recoveries and the medical evidence, Pehlwan P. W. 9, the father of Mst. Zohran (deceased) was produced to depose with regard to motive, Mst. Ghulam P. W. 10, Mst. Sultan P. W. 11 and Wali Dad P. W. 12 were produced as eye-witnesses. Mst. Khanan, the mother of the deceased and Mst. Allah Jawai, who alongwith Wali Dad P. W. 12, is said to have snatched the hatchet P. 1 from Ahmad appellant were not produced. In any case, Pehlwan P. W. 9 as well as all the three eye-witnesses named above resiled from their statements and did not support the prosecution. They were therefore, declared hostile and were allowed to be cross- examined by the Public Prosecutor. The statements of all four of them made before the Committing Magistrate were brought on the file of the trial Court under section 288, Cr. P. C. To be read as evidence. Ashiq Hussain P. W. 8 and Malik Ghulam Muhammad A. S. I. P. W. 15 deposed about the recoveries mentioned above. Qasim P. W. 13 also deposed with regard to the motive. He is one of the persons who had gone to the house of Pehlwan P. W. 9 as a member of the punchayat with Ahmad, Murad and Rajab son of Bahab appellants. The learned trial Judge relied on the statements of Pehlwan P. W. 9 and the three eye-witnesses, made by them before the Committing Magistrate, in preference to those made by them at the trial. He also believed the statement of Qasim P. W. 13 with regard to motive as well as the statement of Ashiq Hussain P. W. 8 and Malik Ghulam Muhammad A. S. I. P. W. 15 with regard to the recoveries. Relying on a number of authorities mentioned in the judgment he observed that corroboration of the statements of the eye-witnesses made before the Committing Magistrate (and transferred under section 288, Cr. P. C.) was required before they can be relied upon. Thereafter he observed that the evidence of motive, the recovery of hatchet P. 1 from Ahmad appellant and the statements of the eye-witnesses under section 164, Cr.
P. C. Constituted such corroboration and as such based the conviction of the appellants on the aforementioned evidence.
5. We have heard the learned counsel for the appellants and the learned State counsel and have also gone through the entire record. The learned counsel for the appellants contended that-
(1) the motive was not proved satisfactorily,
(2) the recoveries too were not proved satisfactorily,
(3) the prosecution tory, as stated in the F. I. R. And by the eye-witnesses in their statements before the Committing Magistrate was highly improbable and was the result of concoction,
(4) the F. I. R. Was lodged after considerable delay and after consultation with Qasim P. W. 13,
(5) the circumstances that Malik Ghulam Muhammad A. S. I. (P. W. 15) happened to be present in the village of occurrence is in itself, a very suspicious circumstances and goes to show that the F. I.
R. Was recorded after preliminary investigation by the A. S. I. At the spot,
(6) the fact that the A. S. I. Got the statements of the father as well as brother and sisters of the deceased recorded under section 164, Cr. P. C. Was a further circumstance casting suspicion on the prosecution version,
(7) the non-production of Mst. Khanan, the mother of the deceased and Mst. Allah Jawai, the sister of the deceased, who was a grown up girl, also casts a grave suspicion on the prosecution story, and that-
(8) the two pairs of shoes P. 5/1-2 and P. 6/1-2 found at the spot were not made to fit to any of the appellants and cannot, therefore, be connected with them.
' We have carefully considered all these contentions. The most suspicious feature in this case appears to us to be that the F. I. R. Was lodged after a considerable delay, which remains unexplained and that the prosecution story, as given in the F. I. R. (and supported by the eye- witnesses in their statements before the Committing Magistrate) is highly improbable. It appears to us that the story was indeed cooked-up, after due consultation and deliberation with Malik Ghulam Muhammad A. S. I. P. W. 15, who first visited the spot and conducted preliminary investigation. The version recorded in the F.
1. R. Bears the hall marks of a story prepared by a Police Officer, as shall be discussed presently.
6. It will be noticed that according to the eye-witnesses the occurrence took place shortly after mid-night. Wali Dad P. W. 12, the brother of the deceased is said to have left for the police post for lodging the report shortly after the occurrence but, as chance would have it, Malik Ghulam Muhammad P. W. 12, the Incharge of the said police post was himself present in village Pir Abdur Rehman in village of the occurrence. Wall Dad P. W. 12, therefore, did not have to go very far to lodge the report, but strangely enough his statement Exh. P. A. Was recorded by the A. S. I. At 5-00 a.m. This is the time given by the A. S. I. On the said statement. The formal F. I. R. Exh. P. A./1 was, of course, recorded an hour later. The presence of Malik Ghulam Muhammad A. S. I. P. W. 12 is in itself a suspicious co-incident. Moreover, assuming that the occurrence had taken place an hour after mid-night and another hour was lost in going to Malik Ghulam Muhammad A. S, I. P. W. 12, there is still three hours delay to be explained. In the karwai police recorded at the bottom of Exh. P. A., the A.
S. I. Has explained his presence in the village by saying that he had gone there in connection with the investigation of another case. He is, however, directly contradicted by Ellahi Bakhsh Foot Constable (P. W. 4), who had accompanied him. This is what he has stated during his cross- examination:- "I was with A. S. I. Ghulam when he received intimation as to the occurrence in this case. Myself and A. S. I. Had left the police post at 3-00 a.m. And reached mouza Pir Abdur Rehman at about 6-00 a.m. We remained at the spot for about 3-4 days."
' No doubt Zafarullah Khan (P. W. 2), Muharrir of the Police Post has stated that Malik Ghulam Muhammad A. S. I. P. W. 12 was out in the field since two or three days prior to the occurrence but he has also stated that he did not know whether he was in village Pir Abdur Rehman or not. The learned trial Judge has given preference to the statement of this witness on the ground that he is a `Muharrir' while Elahi Bakhsh was only a Foot Constable. We are afraid we cannot agree with this view, because the rank of a witness, by itself, is not the correct criterion for judging the veracity of a witness. Moreover, the prosecution has not disowned the statement of Elahi Bakhsh F. C. (P. W. 4), by getting him declared hostile. As a result, when there are two versions on the record, one against the accused and the other favouring him, then in accordance with a long established principle of appreciation of evidence, the version favouring the accused has to be accepted. In his statement before the Committing Magistrate, which has been relied upon by the learned trial Judge Wali Dad P. W. 12 has stated that he was informed about the presence of the A. S. I. In the village by one Nusrat Mochhi Chawkidar of the village. Strangely enough the prosecution has not cared to produce this witness. All these facts cast a serious doubt on the version that the A. S. I. Was, per chance, present in the village on the night of occurrence.
7. As already mentioned the delay of about three hours remains unexplained. This is sufficient time for the witnesses to put their heads together and concoct a story. This view is supported by the admission of Qasim P. W. 13, (whose statement also has not been disowned by the prosecution), that Wali Dad P. W. 12 "left for the purpose of lodging the report after having consultation with me."
Another suspicious circumstance in the story is that during the investigation Raja Muhammad Iqbal S. H.
0., (P. W. 14) the Investigating Officer found that two other persons, namely, Haji alias Bashira and Rajab son of Hashim also accompanied the appellants and were challaned alongwith them.
During the investigation this very Investigating Officer has stated that:- "In the course of investigation it was brought to my notice that the three accused, Ahmad, Murad and Rajab son of Bahab (i,e, the three appellants) were innocent,"
' We have mentioned that we find the prosecution story, as given in the F.I.R. And deposed to by the eye-witnesses before the Committing Magistrate, is in itself vague and highly improbable. Three grown up persons, armed with hatchets, are said to have come and attacked Mst. Zohran (deceased). The nature of some of the injuries show that the attack was merciless, yet the witnesses would have us believe that Wali Dad P. W. 12 and his sister Mst. Allah Jawai (not produced) went forward and physically struggled with Ahmad appellant and were in fact successful in snatching away his bloodstained hatchet P.
1. They would also like us to believe that Murad and Rajab son of Bahab as well as the other companions of Ahmad appellant remained silent spectators of the struggle of Wali Dad and Mst.
Allah Jawai with Ahmad appellant and permitted them to snatch away his hatchet. Further it is not alleged by the prosecution that either Wali Dad P. W. 12 or Mst. Allah Jawai received even a scratch during this struggle. We are afraid this story is a bit too thin to swallow and appears to be the result of a brain wave of Malik Ghulam Muhammad A. S. I. P. W. 12 for in accordance with the usual practice the police was keen for some corroborative evidence. The two pairs of shoes P. 5/1-2 and P. 6/1-2 which are said to have been left at the spot by two of the appellants are the result of a similar attempt to create corroborative evidence, for it is un-imaginable that two of the appellants would leave both their shoes at the spot. In any case, the Investigating Officer admitted that these shoes were not got fitted to any of the appellants and cannot, therefore, be said to constitute a piece of independent corroborative evidence.
9. We have no quarrel with the principle that the statements made before the Committing Magistrate and transferred to the Sessions file under section 288, Cr. P. C. Have to be corroborated by positive and independent evidence before they can be relied upon. We are, however, of the view that in the present case no such corroborative evidence is available on the record.
' The motive, by itself, cannot serve to corroborate the testimony of the witnesses whose veracity is in doubt, though its presence may be taken into consideration as a factor strengthening the testimony of reliable witnesses or its absence may further weaken an already weak prosecution case.
' The next piece of evidence relied upon by the learned trial Judge as corroborating the eye- witnesses is the recovery of hatchet P.
1. As already discussed by us above in Paragraph No, 8, this recovery appears to be fictitious and cannot therefore be used as corroboration of the testimony of the eye-witnesses. As to the statement of the eye-witnesses recorded under section 164, Cr. P. C. Obviously these cannot be used to corroborate their own statements, for one piece of tainted evidence cannot corroborate another piece of tainted evidence.
10. For the reasons given above we are inclined to think that the prosecution story as given in the F.
I. R. And deposed to by the eye-witnesses before the Committing Magistrate is not a true one but is the result of concoction. Moreover it is not corroborated by any independent evidence on the record. As a result we hold that the prosecution has not been able to establish its case against the appellants beyond reasonable doubt. Consequently we accept the appeal and acquit all the three appellants. The sentence of death awarded to Ahmad appellant is not confirmed. This disposes of the appeal and the reference.