' SH. MUHAMMAD ZUBAIR, Haji Muhammad, his brother Allah Ditta and his sister Mst. Sakina Bibi were tried under section 302/34, P.P.C. By the learned Sessions Judge, Gujrat for the murder of Farzand Ali. The learned trial Judge vide his judgment, dated 27-5-1991 convicted Haji Muhammad under section 302, P.P.G. And sentenced him to suffer death and fine of Rs,50,000 or in default 2 years' R.I.
With the direction that if fine is recovered, Rs,30,000 be paid to the legal heirs of the deceased as compensation, whereas, his co-accused Allah Ditta and Mst. Sakina were acquitted of the charge.
The convict has filed the present appeal viz. Criminal Appeal No,615 of 1991. The learned Trial Judge has also referred the case to this Court under section 374, Cr.P.C. For confirmation of death sentence of Haji Muhammad. The complainant Mst. Aisha Bibi sister of the deceased has filed Criminal Revision No,525 of 1991 against the acquittal of Mst. Sakina Bibi and Allah Ditta. We propose to dispose of all the three matters by this judgment.
2. The occurrence in this case took place on 27-4-1990 at about 6-30 p.m. And formal F.I.R. Exh.P.B./1 was recorded the same day at 8-35 p.m. The motive for the occurrence is stated to be that there was dispute between Farzand Ali deceased and the appellant about the payment of some money.
3. The prosecution case as disclosed in the statement of Mst. Aisha Bibi P.W.7, sister of the deceased, which was recorded by Farooq Hussain, S.I. P.W.13 at 8-00 p.m. At Guliana Chowk, is that on the fateful day at about 6-30 p.m. The deceased and Mst. Aisha P.W. Were on their way to their house after cutting wheat crops. Farzand All deceased was ahead of Mst. Aisha Bibi whereas Mst.
Aisha was following him. When they reached in the street a short distance away from the house of Haji Muhammad appellant then the appellant and his brother Allah Ditta armed with knives and Mst. Sakina Bibi empty-handed emerged from their house. Mst. Sakina Bibi caught hold of the deceased from the back side, Haji Muhammad gave three successive blows with knife on the abdomen of Farzand Ali whereupon he fell down on the ground in injured condition. In the fallen condition Allah Ditta also caused 2/3 injuries one after the other with knife at his neck. On the hue and cry of Mst. Aisha Bibi, Ahmad Khan and Muhammad Aslam (not produced) were attracted to the spot, who witnessed the occurrence. They reprimanded the accused whereupon the accused raised Lalkara saying that they had taught a lesson to Farzand All for not returning the amount, remained alive for a short while thereafter on account of the injuries he died at the spot.
4. Leaving the dead body of Farzand All under the guard of Muhammad Aslam (not produced) and Rehmat Khan P.W.12, Mst. Aisha Bibi was on her way to police station in the company of Allah Ditta, when she met Farooq Hussain, S.I. At Guliana Chowk at 8-00 p.m., who as stated above, recorded her statement of Exh.P.B. On the basis of which formal F.I.R. Exh.P.B./1 was registered at Police Station Kharian, District Gujrat. It may be mentioned here that during the investigation, Farooq Hussain, S.I.
Found Allah Ditta and Mst. Sakina Bibi as innocent. His investigation was verified and approved by Muhammad Riaz, Inspector P.W.3. However, Ghulam Muhammad Kalyar, D.S.P., who partly investigated this case did not agree with the above findings. He only found Mst. Sakina Bibi as innocent and directed that challan be submitted against Haji Muhammad and Allah Ditta. After recording the statement of Mst. Aisha Bibi as P.W.1, Mst. Sakina Bibi was also summoned as accused to face the trial.
5. After recording the statement of Mst. Aisha Bibi P.W.1, Farooq Hussain, S.I. Proceeded to the spot in village Sadkal. He prepared the injury statement Exh.P.G. And inquest report Exh.P.H. And sent the dead body of Farzand Ali for post-mortem examination. He took into possession bloodstained earth from the spot vide memo. Exh.P.C. He recorded the statement of P.Ws. Under section 161, Cr.P.C. On 28-4-1990, he got prepared site plan Exh.P.F. And Exh.P.F./1 from the Draftsman, Akhtar Naqash, P.W.10. On the same day Saeed Ahmad, F.C. P.W.1 produced before the Police Officer the last worn clothes of the deceased, which were taken into possession vide memo. Exh.PA. On 25-5- 1990, the appellant and Allah Ditta (since acquitted) were produced before Farooq Hussain, S.I. By Khan Bahadar, Advocate. They were arrested. On 1-6-1990, the appellant got recovered knife P.3, which was taken into possession vide memo. Exh.P.D. He investigated the case till 13-6-1990 and then the investigation was transferred to Ghulam Muhammad Kalyar, D.S.P. P.W.9. He summoned the parties on 17-7-1990 and came to the conclusion that Mst. Sakina Bibi was innocent whereas Haji Muhammad and Allah Ditta were found involved in the case. On 23-8-1990, Muhammad Riaz, Inspector P.W.3 prepared the report under section 173, Cr.P.C. Against the appellant and Allah Ditta.
6. Dr. Farooq Ahmad Bungush, P.W.8 conducted the post-mortem on the dead body of Farzand Ali on 28-4-1990 and noticed six incised wounds and an abrasion thereon. The doctor opined that the death had occurred due to shock and haemorrhage as a result of all injuries. Injuries Nos.1 and 5 which were an incised wound 1-1/2 c.m. x 1/2 c.m. x going inward on front of neck and an incised wound 2.5 c.m. x 3/5 c.m. x going inward on the mid apigastrium respectively were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem, probable time between injuries and death was immediate and between the death and post-mortem examination it was about 17 hours.
7. The appellant when examined under section 342, Cr.P.C. Admitted his relationship inter se with his co-accused namely Allah Ditta and Mst. Sakina Bibi. He denied the existence of dispute regarding payment of money between him and the deceased. He also denied the presence of Rehmat Khan P.W.12 and Aslam (given up P.W.) at the spot. He also denied the recovery of knife at his instance and explained the case against him in the following words:- "Farzand Ali deceased was a thief, he was involved in many criminal cases and about 4 months prior to the occurrence I made an application against him and Mst. Aisha P.W. That they had committed theft in my house as a result of which both were summoned by the police and my stolen articles were recovered and returned to me. Both the deceased and Mst. Aisha P.W. Were also involved in an abduction/cheating case by Sargodha Police, who came to our village and on my information both were arrested by the police and taken away to Sargodha and due to this grievance and grudge a false case has been registered against me and my co-accused. My sister was married in Gujrat City about 10 years back and she was residing there with her husband and my brother Allah Ditta was residing separately from me."
8. He produced in defence F.I.R. No,63, dated 24-2-1989 (Exh.D.B.), F.I.R. No,68, dated 28-2-1989 (Exh.D.C.), F.I.R. No,59, dated 20-2-1989 (Exh.D.D.) and certificate from the Superintendent District Jail, Sialkot (Exh.D.E.) showing that both the deceased and his sister Mst. Aisha Bibi were involved in different cases of theft and under the Arms Ordinance. He also produced Saeed Ahmad, Constable as D.W.1 in his defence, who deposed about the criminal disposition of the deceased.
9. The learned trial Judge believing the prosecution version, of course, discarding the evidence of recovery, convicted and sentenced the appellant as indicated above.
' The learned counsel for the appellant vigorously contended that the F.I.R. Was recorded after preliminary investigation; hence no sanctity is attached to this dubious document, especially when two persons, out of three were involved falsely, as Mst. Sakina Bibi and Allah Ditta, accused, who were later on acquitted, were found innocent by the police; that it was an unwitnessed crime, which took place in the darkness of night and none of the eye-witnesses saw the real culprit(s); they have involved the appellant on account of enmity and suspicion; that the deceased was a man of criminal disposition, who had many enemies; hence possibility cannot be ruled out that someone inimical to the deceased might have killed him, when in the darkness of night he came out of his house to urinate; both the eye-witnesses besides being inimical are also the chance witnesses of the occurrence and have deposed due to their relationship with the deceased; the ocular version is being negated by the medical evidence; both the eye-witnesses made material improvements in their statements before the Court; hence it would be dangerous to place implicit reliance upon their uncorroborated evidence; the prosecution has miserably failed to prove its case against the appellant, so this appeal may be accepted.
' The learned counsel for the State supported the impugned judgment on the basis of reasons which prevailed with the learned trial Judge while recording the conviction of the appellant.
' We have carefully gone through the record with the able assistance of the learned counsel for the parties and have also minutely examined their respective submissions.
' Admittedly, the formal F.I.R. Exh.P.B./1 was recorded on the basis of the statement Exh.P.B. Of Mst.
Aisha Bibi P.W.7, which was made by her at Guliana Chowk to Farooq Hussain S.I. (P.W.13), the Investigating Officer. He conceded this fact that he had gone out of the police station in connection with the investigation of case F.I.R. No,208, under section 302, P.P.C., but no one belonging to Guliana Chowk was either accused or witness in that case. He also conceded that Police Station Kharian is at a distance of 4/5 miles from the said Chowk. From the perusal of his evidence, it is crystal clear that he had no business to be present at Guliana Chowk in the performance of his official duty; hence we find great force in the submission of the learned counsel for the A appellant that in this case the F.I.R. Was recorded after preliminary investigation. Even if the F.I.R. Is recorded after preliminary investigation, still I it would not per se be a ground to discard the prosecution evidence, so collected, but the Courts are loath to place reliance on the evidence so collected, unless that evidence gets ample corroboration from some other evidence of unimpeachable character, i,e, the medical evidence, which is unfortunately lacking in this case.
' The ocular evidence given by Mst. Aisha Bibi P.W.7 and Rehmat Khan P.W.12 is not confidence inspiring, because they deposed that the appellant gave three knife blows to the deceased, whereas there are no stab wounds on the body of the deceased. Mst. Aisha Bibi P.W.7 deposed that the deceased had taken his meals at Chhawela as well as noon time, whereas according to Dr. Farooq Ahmad Bangash P.W.8, who conducted the postmortem of the deceased deposed that the deceased might have taken his last meals one to two hours before his death, which belies the ocular version. According to the prosecution, the occurrence took place in the thoroughfare of village Sadkal on the Eid day at 6-30 p.m., which is surrounded by many houses, but none came to witness the crime except the close relations of the deceased, who, as per their own statements, are the chance witnesses of the occurrence. As per the complainant, she was coming alongwith her deceased brother after cutting the wheat crop, but during the cross-examination she conceded this fact that neither any sickle nor the cut wheat crop was shown to the Investigating Officer. It is against the normal human conduct that the complainant and the deceased would go to the field to harvest the wheat crop on the day of Eid, which is a most scared festival for the Muslims. The complainant or Rehmat Khan P.W.12 did not try to intervene, though they had sickles with them. The version given in the F.I.R. That Mst. Sakina Bibi acquitted accused took Farzand All deceased in her clasp is against the normal conduct of a woman of the area. The motive, though alleged, was not proved, which adversely affects the prosecution case, as a whole. The nature and manner in which the deceased received the injuries suggest that nobody was present at the scene when the deceased in the darkness of night came out of his house bare-footed to urinate, as is apparent from the post-mortem report, because the bladder of the deceased was empty. Mst. Aisha Bibi P.W.7 made lot of material improvements in her statement to bring her evidence in line with the medical evidence, for which- she was duly confronted as is apparent from her statement at 31 of the paper book. Rehmat Khan P.W.12, as per his own admission, is the chance witness of the occurrence, as he was returning after urinating. He conceded this fact that for the purposes of easing, open lands are situated near his house. It appears that he coined that pretext that he had gone to urinate just to become an eye-witness of an occurrence, which took place in the darkness of night, due to his relations with the complainant party. In addition to this, his statement also suffers from those infirmities as noticed above while discussing the evidence of Mst. Aisha Bibi, the other eyewitness. The judgment of the learned trial Judge is self-contradictory, as on the same evidence he has given benefit of doubt to Allah Ditta, co-accused of the appellant, who had also caused injuries on the neck of the deceased as is borne out by the post-mortem report. During the investigation, out of three persons named as accused in the F.I.R., with specific role, Allah Ditta and Mst. Sakina Bibi were found innocent, which shows that the complainant had the tendency to implicate so many innocent persons in the crime. The rule of prudence F requires that this type of ocular evidence should not be believed qua the appellant, unless and until there is independent corroboration of the prosecution version available on the record, which is not forthcoming in the present case.
' The upshot of the above discussion is that due to the infirmities pointed out above, the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt; hence we accept this appeal, set aside the conviction and sentences of the appellant and acquit him. We direct that the appellant shall be set at liberty forthwith, if not required to be detained in any other case. The sentence of death is not confirmed and the reference is rejected. In the circumstances, the revision petition fails and is dismissed in limine.